Re S (A Child) (Residence Order: Condition)
| Jurisdiction | England & Wales |
| Judgment Date | 2001 |
| Year | 2001 |
| Date | 2001 |
| Court | Court of Appeal (Civil Division) |
Residence order – Residence order granted to mother subject to condition of residence in specified area – Whether judge having jurisdiction to impose condition on residence order – Children Act 1989, ss 11, 13.
The mother and the father had been married and had a child, V, who had Down’s Syndrome and a congenital heart and lung defect. Following the separation of the parents, V was cared for by the mother but had regular contact with her father and his extended family. The mother subsequently began a new relationship with Mr C who was in the process of renovating a bungalow in Cornwall so that it would be suitable for V’s needs. On hearing of the mother’s plan to relocate to Cornwall with V, the father made a number of applications. The judge heard evidence from an expert witness in the field of the educational needs of children with learning disorders, who stated that V would find it difficult to adjust to the reduced contact with her father that would result from such relocation. The judge made a residence order in favour of the mother and then considered that, as a consequence of previous authority and pursuant to ss 11 and 13 of the Children Act 1989, he had a discretion in such an exceptional case to impose a condition that V was to continue to reside in her present location unless otherwise ordered by the court. The mother appealed against that decision on the grounds, inter alia, that the present case was not such an exceptional case that the court ought to keep control over one parent by way of conditions.
Held – In determining whether conditions would be attached to a residence order, previous authority was not to be interpreted as giving trial judges general latitude to strive for an ideal over and above the proposals of primary carers. That approach could lead to unsustainable restrictions on ordinary adult liberties. The effect of the statute was to impose express restrictions where the primary carer sought to remove a child from the jurisdiction, and it was implied that within the United Kingdom the court would not ordinarily seek to dictate the primary carer’s place of residence. The great importance of not imposing restrictions on the primary carer’s freedom to choose a preferred way of family life and a preferred place of residence had to be recognised for two reasons: (i) such a restriction was often contrary to good sense, and (ii) the imposition of restrictions was likely to have an indirect adverse effect on the welfare of a child through the emotional and psychiatric disturbance caused to a primary carer by the denial of freedom to exercise reasonable choice. It was a matter of ordinary sense that
whatever tests were applied to an applicant under s 13(1)(b) of the 1989 Act, they could not be less stringent than the tests to be applied to the primary carer seeking a purely local relocation. Moreover, the imposition of choice of residence within the United Kingdom was not within the ordinary use of jurisdiction created by s 11(7) of the 1989 Act. Where a judge decided, despite the disadvantages of the location element, to grant a residence order in favour of one parent over another, that was the end of the matter and it was not open to the court to strive for an ultimate ideal to determine what was best for the family but which invaded the freedom of the primary carer. The imposition of conditions under s 11 would be restricted to cases where the court had direct concerns about the ability of the primary carer to achieve satisfactory standards. In the present case, the judge had placed great weight on the expert evidence, but had failed to look at the whole matter with regard to the broader family dynamics and the well-being of the family, and had not assessed the impact that denying the mother’s feelings and aspirations might have on V’s welfare. The judge’s order would therefore be quashed and the matter remitted for reconsideration, looking not only at the educational disadvantages relocation might cause to V, but also the disadvantages of imposing a restriction on the mother and Mr C and their ordinary adult freedoms. Accordingly, the appeal would be allowed.
Cases referred to in judgmentsD (minors) (residence: conditions), Re[1996] 2 FCR 820, [1996] 2 FLR 281, CA.
E (minors) (residence: conditions), Re[1997] 3 FCR 245, [1997] 2 FLR 638, CA.
Payne v Payne [2001] l FCR 425, [2001] 1 FLR 1052, CA.
AppealThe mother appealed from the decision of Judge Ellis made on 24 October 2000 in the Croydon County Court whereby he concluded that he had a discretion, provided that he was satisfied that the case was exceptional, to impose conditions upon a residence order. As a consequence he ordered that the child reside with the mother but that she should not be removed from the Borough of Croydon without the leave of the court. Permission to appeal was granted by the judge. The facts are set out in the judgment of Thorpe LJ.
Elizabeth Gumbel QC (instructed by Grants) appeared for the appellant.
Peter Jackson QC and David Vavrecka (instructed by White and Sherwin) appeared for the respondent.
THORPE LJ.[1] This is an appeal from the decision of Judge Ellis sitting in the Croydon County Court on 24 October 2000. He had before him an application by the father. V was born on 18 March 1993 and was the only child of her parents’ marriage. The marriage had taken place in 1991 but did not endure beyond the summer of 1994. Since that separation, and indeed throughout her life, V has been cared for by her mother. That is a particular responsibility since V suffers
from Downs Syndrome. She was born with a congenital heart and lung defect and, accordingly, has a much shortened life expectancy. The medical evidence established that she will be fortunate to live beyond her teenage years.
[2] Following the separation of the parties, in the spring of 1999 the mother entered into a relationship with Mr C. Mr C was, and probably still is, working and living in central London, but he is a Cornishman from St Austell. His attraction to London was simply the opportunity of earning more than he could in his home county; an opportunity that would enable him to do up a bungalow that he had bought in his home area. This project should come to fruition in about 18 months from now.
[3] When the father got wind of the plan for mother to relocate with Mr C and V to the St Austell area, on 23 December 1999 he issued an application in these terms:
‘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...
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