S (Children) [2011] EWCA Civ 454: Leave to remove/international relocation

Showing how unique the circumstances can be in these types of cases, the leave to remove application was by the father in this instance and related to 2 children aged 16 ½ and 12. At 1st instance, the father was granted permission to relocate with the children even though mother had residence and was the primary carer and he only had the stereotypical alternate weekend and one day midweek contact. Both children expressed a wish to relocate to Canada with their father. Indeed after the permission was granted the eldest left so the application was essentially whether the youngest should also be allowed to relocate. That depended upon an assessment of the youngest child's needs quite separate from the understandable driver of keeping both siblings together. On that basis it was held that the child the subject of the appeal (“C”) should remain in England.

The approach of the Court of Appeal was necessarily different from the first instance judge because pursuant to the consent of both parents, the boys themselves and CAFCASS the 2 boys were treated as a unit at the 1st instance hearing but at the time of the appeal C alone remained in England as B had already left to Canada.

This case and many others show the need to obtain proper advice to ensure that the case is best presented whether for or against the relocation.

The case is interesting because whilst the Court of Appeal can substitute its own discretion in place of the 1st instance judge where the latter was plainly wrong in the exercise of his or her discretion, because of the intervening departure of the eldest child, the Court of Appeal had to undertake the role of a 1st instance court by adjourning the appeal for the purpose of acquiring further evidence and an updated CAFCASS report dealing with the changed circumstances.

The appeal was allowed so that C remained in England largely as result of the fact that after the eldest son had relocated, the Court of Appeal had the assistance of evidence as to the reaction of the youngest in missing Canada and his brother, neither of which were such strong emotions as to permit him to join his brother in Canada. CAFCASS agreed with the mother's assessment of the reaction of C in this regard. It is not frequently the case that the Court of Appeal would entertain fresh evidence but clearly has an ability to do so. The Court of Appeal stated that the paramountcy principle of what is in a child's best interests must be applied to each child concerned and not as a unit. Undoubtedly in disengaging from the principle that the 2 boys as siblings should be kept together the post 1st instance hearing reaction of younger child was absolutely essential. Without the presence of the influence of the elder boy over younger, the latter's views about emigrating to Canada and living away from his mother became only to clear. It is suggested that this case does not represent a psychological shift in preferring the separation of siblings in itself.

Whilst the Court of Appeal justified allowing the appeal on the basis that the 1st instance judge was wrong in his decision by not giving priority to the welfare interests of the younger in refusing both boys permission to relocate, there is no doubt that the subsequently acquired evidence which came to the attention of the court regarding C’s reaction after his elder brother had left the Canada were pivotal to the success of the mother's appeal.