C (Older Children: Relocation), Re

Factual and Procedural Background

This family appeal arises from a dispute between separated parents concerning financial matters and child arrangements involving two teenage boys, aged 17 and 15. The parents, both originally from France, separated in 2005 after living in London for several years with their children. A shared residence order was made by consent in 2006, which has governed the children's living arrangements. The mother sought permission to relocate the children from London to New York, which was refused by the trial judge. The mother and one child, E, appealed against this refusal. The appeal court granted permission to appeal and admitted fresh evidence, ultimately allowing the appeal in relation to E and dismissing it in relation to J. The court also directed that the existing order concerning J would cease when he reaches the age of 16.

Legal Issues Presented

1. Whether the court has the power to make or continue child arrangements orders affecting children over the age of 16, particularly in the context of relocation applications.
2. The weight to be given to the wishes and feelings of older children in child arrangements decisions.
3. The appropriateness of making or refusing relocation orders based on practical considerations such as housing, visas, and financial plans.
4. The application and implications of the 'no order' principle under the Children Act 1989 in relation to mature children.

Arguments of the Parties

Appellant's Arguments

• The recorder erred in law by finding he had the power to make an order affecting a child over 16 years of age.
• Insufficient weight was given to the children's wishes and feelings.
• Insufficient consideration was given to the consequences of refusing the relocation.
• Excessive scrutiny was applied to the mother's practical plans without similar scrutiny of the father's position.
• Conditional permission for relocation should have been granted to allow time to resolve outstanding practical issues such as visas.

Respondent's Arguments

• The recorder properly considered the children's views, noting their desire to maintain relationships with both parents.
• The mother's plans were not well thought out despite ample time to prepare.
• The welfare checklist was correctly applied and the balancing exercise was thorough and sound.
• The refusal was justified due to practical difficulties and the best interests of the children.
• The mother's position that she would relocate regardless of the court's decision was unusual and relevant to the assessment.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by emphasizing the importance of the 'no order' principle under s.1(5) of the Children Act 1989, which requires that the court must consider whether making an order would be better for the child than making no order at all. The court noted that the statutory framework, particularly s.9 and s.91, restricts the making and duration of child arrangements orders for children over 16 unless exceptional circumstances exist.

The court found that the trial judge was entitled to refuse the mother's application for relocation concerning J, given the child's wishes and the practical difficulties identified. However, in relation to E, who was then over 16, the court held that it was not better to make or continue any order affecting him. The mature child's autonomy and ability to make decisions were recognized, limiting the court's power to impose orders contrary to his wishes.

The court rejected the appellant's criticism of the welfare assessment, concluding that the trial judge conducted a thorough and holistic balancing exercise. The judge considered the children's wishes and feelings, the parents' positions, and the practicalities of relocation. The court also acknowledged the emotional toll on the children caused by prolonged litigation and stressed the importance of parental cooperation in resolving future arrangements.

Consequently, the court discharged the 2006 child arrangements order insofar as it related to E and amended it to cease upon J reaching 16 years of age, reflecting the legislative intent and the children's maturity.

Holding and Implications

The court's final decision was to ALLOW the appeal in relation to the older child, E, and DISMISS the appeal in relation to the younger child, J. The orders concerning E were set aside, effectively allowing him autonomy over his living arrangements, while the existing order concerning J was maintained until he reaches 16, after which it will cease.

The decision underscores the principle that courts should exercise caution in making or continuing child arrangements orders for children over 16, respecting their growing autonomy and the 'no order' principle. It also highlights the necessity for parents to resolve disputes amicably to avoid protracted litigation that adversely affects children. No new legal precedent was established; rather, the ruling applied existing statutory provisions and case law to the specific facts.