The Court of Appeal has ordered a fresh assessment of a mother’s application to move three children from country X to country Y, saying the High Court must reconsider the case with each child’s welfare and views in focus.
In a judgment delivered on 28 October 2022, Ms Justice Máire Whelan agreed with orders proposed by Mr Justice Collins. She said the relocation application must be assessed afresh for reasons set out in his judgment. The supplied judgment does not reproduce those orders, so it does not specify the precise terms of the appeal court’s order.
The children had lived and attended school in country X for more than nine years, according to Whelan J. The mother sought to move them to another EU member state under her EU free-movement rights; the judgment said the proposed move was not prompted by a specific job offer or immediate personal or professional necessity. The father opposed the move.
The judgment recounts that the mother took the children to country Y in June 2019 without notice to their father, when they were due to holiday with him. Courts in country Y later ordered their return under proceedings that included the Hague Abduction Convention. The mother’s appeal there was unsuccessful, and the judgment says she did not comply with the return order, leading to further enforcement proceedings. The children ultimately returned to country X. These are matters for the High Court to evaluate, Whelan J said, including the circumstances of the non-compliance and its relevance to future contact arrangements.
Whelan J said there was evidence that both parents had shared the children’s care. She cautioned against assuming that a parent who worked mainly in the home should automatically be treated as the primary carer in a relocation case. The children’s views must be genuinely heard and considered in light of their age and maturity, she said, and the court must assess the realistic options and the likely effect on each child’s relationship with both parents.
The judgment also identified questions for the High Court about the expert report previously available to it. Whelan J said it appeared not to address the abduction, the period of limited contact with the father, or events connected with the children’s return. She also criticised the report’s positive descriptions of country Y, saying the basis for those assessments was not identified and the expert appeared to lack independent knowledge of that country.
The High Court must weigh the children’s welfare, the proposed arrangements for ongoing contact, the parents’ conduct, and the practical prospects of enforcing any conditions abroad. The Court of Appeal’s judgment does not decide whether the children may relocate; that question remains for the fresh assessment.