RE H (CHILDREN) (RESIDENCE ORDER: CONDITION) [2001] EWCA Civ 1338, [2001] 2 FLR 1277 (Thorpe LJ, Astill J)

http://www.bailii.org/ew/cases/EWCA/Civ/2001/1338.html

Father, holder of a residence order in relation to two children of 10 & 5, applied for permission to take the children to Northern Ireland. The children remained with the father when the mother left the family home when they were 6 and 2 to make a career for herself. She was successful in that endeavour but was dependant on alcohol. The father gave up work to care for the children. When the father informed her of his plan to return to Northern Ireland the mother applied for a residence order and a prohibited steps order to prevent the removal. The court found that the mother was a more suitable person to care for the children, subject to her being cured of alcoholism. The court was also concerned that the motivation of the father was more to do with thwarting mother’s application for residence or out of spite. The father had spent very little time in Northern Ireland when he was 16 visiting no more than annually. He had no accommodation arranged and no employment although he was likely to be able to organise both. The father was granted interim residence, with extensive contact to the mother. At a subsequent hearing it became apparent that the mother had not achieved abstinence from alcohol and the father was granted full residence but the mother’s application for a prohibited steps order was granted.

Held:

The father’s appeal was refused.

The UK included Northern Ireland and therefore this was a case concerning internal relocation rather than external relocation and as such the test to be applied was less stringent. There were clear policy reasons why this was so.   However, even relocation within the UK could be highly problematic and subject to challenge by an application for a prohibited steps order or for the imposition of a condition to the residence order. In making its decision the court should apply the welfare test.

The decision of Munby J in Re X and Y (Leave to Remove from the Jurisdiction: No Order Principle) [2001] 2 FLR 118 should not be followed. It was decided just before Payne which was to be preferred. No order was simply not an option when faced with competing applications.

The impact on the children of being deprived of their regular contact to the mother would be akin to a bereavement. The effect on the mother would be devastating and potentially capable of tipping her back into alcoholism. This in turn would be devastating for the children.