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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> S (A Child), Re [2001] EWCA Civ 847 (11 May 2001) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2001/847.html Cite as: [2001] EWCA Civ 847, [2001] 3 FCR 154 |
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OF
JUDICATURE
IN THE COURT OF
APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CROYDON COUNTY COURT
(HIS HONOUR JUDGE ELLIS)
![]() ![]() Strand London WC2A 2LL Friday 11 May 2001 |
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LORD JUSTICE CLARKE
____________________
IN THE MATTER ![]() ![]() |
||
![]() ![]() |
____________________
of
the Palantype Notes
of
Smith Bernal Reporting Limited, 190 Fleet Street,
London EC4A 2AG
Tel: 020 7421 4040 Fax: 020 7831 8838
Official Shorthand Writers to the Court)
E
A GUMBEL QC (Instructed by Messrs Grants, Croydon, CR0 4RE) appeared on behalf
of
the Appellant
MR P JACKSON QC and MR D VAVRECKA (Instructed by Messrs White and Sherwin, Croydon, CRO 6BA)
appeared on behalf of
the Respondent
____________________
OF
JUDGMENT
Crown Copyright ©
"I want my contact with [V] to be regularised and in particular I want reasonable holiday contact. I believe [the mother] is proposing to move to Cornwall. That would greatly reduce my contact and would not, in my view be in [V]'s interest. I am asking for a prohibited steps order preventing [V's] removal from the Croydon area, and if [the mother] does not wish to stay in Croydon, a residence order so that [V] can stay here with me."
"The father does not seek to pursue an application for a residence order, nor for the time being does he need to pursue his application for a prohibited steps order."
"that the child continue to reside within the Boroughof
Croydon unless otherwise ordered..."
alternatively:
".... should not be removed from that area without leaveof
the court."
"A section 8 order may-
....
(b) imposeconditions
which must be complied with by any person-
(i) in whose favour the order is made;
(ii) who is a parentof
the child concerned;
(iii) who is not a parentof
his but who has parental responsibility for him: or
(iv) with whom the child is living,
and to whom theconditions
are expressed to apply."
"Where a residence order is in force with respect to a child, no person may-
....
(b) remove him from the United Kingdom;
without the written consentof
every person who has parental responsibility for the child or the leave
of
the court."
"In my view the principles set out in a long lineof
authorities relating to leave to remove permanently from the jurisdiction have no application to
conditions
proposed under s 11(7)."
"The wordingof
the subsection is wide enough to give the court the power to make an order restricting the right
of
residence to a specified place within the UK. But in my view a restriction upon the right
of
the carer
of
the child to choose where to live sits uneasily with the general understanding
of
what is meant by a residence order."
"A generalimposition of conditions
on residence orders was clearly not contemplated by Parliament and where the parent is entirely suitable and the court intends to make a residence order in favour
of
that parent, a
condition of
residence is in my view an unwarranted
imposition
upon the right
of
the parent to choose where he/she will live within the UK or with whom."
"The correct approach is to look at the issueof
where the children will live as one
of
the relevant factors in the context
of
the cross-applications for residence and not as a separate issue divorced from the question
of
residence. If the case is finely balanced between the respective advantages and disadvantages
of
the parents, the proposals put forward by each parent will assume considerable importance. If one parent's plan is to remove the children against their wishes to a part
of
the country less suitable for them, it is an important factor to be taken into account by the court and might persuade the court in some cases to make a residence order in favour
of
the other parent.
....
The judge attempted to identify the present circumstances as exceptional, but even if he were justified in imposing thecondition
, which in my view he was not, it would give rise to the temptation to impose
conditions
in many cases where the proposals for the children were not, as they often are not, ideal. It is not unusual for the suggested arrangements to have the effect
of
depriving the children
of
frequent contact with the other parent and his relatives,
of
their present home,
of
their schools and their friends."
"There may be exceptional cases, for instance, where the court, in the private law context, has concerns about the abilityof
the parent to be granted a residence order to be a satisfactory carer, but there is no better solution than to place the child with that parent. The court might consider it necessary to keep some control over the parent by way
of conditions
which include a
condition of
residence."
"Of
course the mother believes that she is the best person as [V's] mother to make judgments with regard to [V]. She in evidence said that it has for a long time been her ambition to move away from the Croydon area; she likes the idea
of
living in the country. She thinks it will be better for [V] in all sorts
of
ways to live in the country, and I can understand her feelings about that."
31. LORD JUSTICE CLARKE: I recognise, of
course, that my experience in this area
of
the law is very limited indeed, whereas that
of
my Lord can scarcely be greater. Nevertheless, I would like to add a few words
of
my own in the light
of
the submissions that have been made.
"A section 8 order may-
....
(b) imposeconditions
which must be complied with by any person-
(i) in whose favour the order is made;
(ii) who is a parentof
the child concerned;
(iii) who is not a parentof
his but who has parental responsibility for him: or
(iv) with whom the child is living,
and to whom theconditions
are expressed to apply."
"A generalimposition of conditions
on residence orders was clearly not contemplated by Parliament and where the parent is entirely suitable and the court intends to make a residence order in favour
of
that parent, a
condition of
residence is in my view an unwarranted
imposition
upon the right
of
the parent to choose where he/she will live within the UK or with whom.
There may be exceptional cases, for instance, where the court, in the private law context, has concerns about the abilityof
the parent to be granted a residence order to be a satisfactory carer, but there is no better solution than to place the child with that parent. The court might consider it necessary to keep some control over the parent by way
of conditions
which include a
condition of
residence. Again, in public law cases involving local authorities, where a residence order may be made by the court n preference to a care order, s 11(7)
conditions
might be applied in somewhat different circumstances."
"In summary a reviewof
the decisions
of
this court over the course
of
the last 30 years demonstrates that relocation cases have been consistently decided upon the application
of
the following two propositions; (a) the welfare
of
the child is the paramount consideration; and (b) refusing the primary carer's reasonable proposals for the relocation
of
her family life is likely to impact detrimentally on the welfare
of
her dependent children. Therefore her application to relocate will be granted unless the court concludes that it is incompatible with the welfare
of
the children."