S v S (Relocation)

Factual and Procedural Background

An application was made on 3rd April 2017 by the father to relocate his two sons, aged 15 years three months and 13 years nine months, to live with him in Switzerland. The boys currently live with their mother, who opposes the application. The boys are separately represented in the proceedings. The family is of Russian origin with Cypriot citizenship and has lived in Cyprus, England, and other countries. The father, having retired early after success in the oil business, has been largely absent from day-to-day parenting, leaving the mother as the primary carer. The parents’ marriage broke down by 2006, and by 2008 the mother and children were living in Cyprus with the father’s consent.

In 2014, the mother and the two boys moved to England with the father’s financial support. The boys attended private schools and lived a privileged lifestyle, though this brought challenges rather than benefits. Problems intensified in recent years, especially after the father concealed a new relationship and a baby from the mother and children until mid-2016, which caused significant family tensions. The father took the boys to visit a Swiss school without the mother’s knowledge in early 2017, contributing to the current dispute.

From early 2016, the boys expressed dissatisfaction with life in England and their mother’s behaviour, increasingly aligning with the father and seeking to live with him. The father, although motivated by a genuine wish to help, did not collaborate with the mother but instead funded legal representation for the boys from February 2016, which further destabilised the family dynamics. The mother was unaware of much of this activity until legal proceedings intensified in 2017.

The case progressed through various hearings, including a pre-trial hearing in July 2017. Expert reports were obtained, including from a Swiss attorney confirming enforceability of court orders in Switzerland and an independent social worker who recommended granting the relocation application based on the boys’ strong wishes and the current state of family relationships.

Legal Issues Presented

1. Whether it is in the welfare best interests of the children to relocate to live with the father in Switzerland.
2. How to balance the children’s wishes and feelings against concerns about their relationship with the mother and the potential harm of relocation.
3. The appropriate financial arrangements to support the children’s relocation and ongoing parental contact.
4. The appropriate allocation of legal costs in these proceedings, considering the conduct of the parties.

Arguments of the Parties

Father's Arguments

• The father sought to relocate the children to Switzerland where he now lives with his new family.
• He argued that the boys' wishes to live with him should be respected as they are old enough to make such decisions.
• He maintained that he cared for the children and was capable of meeting their day-to-day needs.
• He proposed financial support to facilitate the mother’s continued contact with the children, including funding for accommodation in Switzerland.
• He resisted the mother’s application for costs, noting his success in the application and the unusual nature of ordering costs against a successful party.

Mother's Arguments

• The mother opposed the relocation, arguing that the children’s wishes had been incited by the father and that the children could be made to settle with her if the court intervened.
• She contended that the father’s conduct, including deception and undermining her authority, contributed to the family breakdown and the need for litigation.
• She sought a substantial contribution towards her legal costs from the father, arguing that his behaviour was reprehensible and caused unnecessary proceedings.
• She criticised the level of financial support proposed by the father as insufficient for her to maintain a meaningful relationship with the children in Switzerland.

Children's Representation

• The boys, through their solicitors, expressed a strong and consistent wish to live with their father in Switzerland.
• They engaged with their legal representatives independently and supported the relocation application.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112	Establishes that a child with sufficient understanding has the right to make decisions affecting themselves.	The court applied this principle to recognise the boys’ capacity to instruct lawyers and have their wishes and feelings given significant weight.
Re W (A Child) [2016] EWCA Civ 1051	Addresses the evolving right of children to participate in proceedings concerning them.	Referenced in relation to the duties and conduct of the children’s solicitors and the importance of respecting the children’s participation.
Re F (Children) [2016] EWCA Civ 546	Further elaborates on children’s rights to participation and representation in legal proceedings.	Used to support the analysis of the legal representatives’ duties towards the children.
Re T [2012] UKSC	Sets out the general rule that in most children cases, no order for costs is made unless conduct is reprehensible or unreasonable.	The court applied this principle but found the father’s conduct sufficiently reprehensible to justify a costs order against him.
E-R (Child Arrangements) [2016] EWHC 805	Provides guidance on when costs orders may be justified in family proceedings involving children.	The court relied on this summary to assess the appropriateness of a costs order based on conduct linked to the proceedings.

Court's Reasoning and Analysis

The court approached the welfare of the children as paramount, applying the statutory welfare checklist. It acknowledged the complex family background, including the parents’ separation, the children’s itinerant lifestyle, and the father’s new family situation. The court noted that the children had no strong roots in England and that a move to Switzerland would not constitute a drastic upheaval given their prior international moves and privileged lifestyle.

The children’s wishes were given significant weight due to their age and maturity, despite the court’s recognition that their views might be unwise or immature. The court found that the father’s conduct, while flawed and at times reprehensible—particularly his deception and failure to collaborate with the mother—stemmed from a genuine desire to help the children. The court was persuaded by the independent social worker’s recommendation that the move would likely improve the boys’ relationship with their mother rather than harm it, contrasting with the current deteriorating situation.

The court considered the parental capacity to meet the children’s needs, recognizing both parents’ intelligence and care but noting their recent failures to manage the situation effectively. The risk of harm was assessed primarily in terms of the children becoming spoiled and disrespectful, and the fragile relationship with the mother. The court concluded that refusal of the application would likely exacerbate these problems.

Regarding legal representation, the court acknowledged the children’s right to independent legal advice but expressed unease about the secrecy surrounding the children’s meetings with their solicitors without the mother’s knowledge. The court highlighted the tension between the child’s right to confidentiality and the parent’s need to be informed for proper care, identifying this as an area needing further consideration.

On costs, the court recognized the exceptionally high legal fees and the general rule against costs orders in children cases. However, it found the father’s conduct sufficiently reprehensible and directly linked to the proceedings to justify a substantial contribution to the mother’s costs, while also acknowledging the mother’s partial responsibility for the family breakdown.

Holding and Implications

The court granted the father’s application to relocate the two boys to live with him in Switzerland.

The order will provide for the children to have a home with each parent, with arrangements for the division of time to be settled after further submissions. The court imposed conditions including financial support from the father to the mother to facilitate her continued contact with the children, including funding for accommodation in Switzerland. The departure date was set for 22nd September 2017, allowing time for the children and mother to spend time together beforehand.

The court ordered the father to pay a substantial contribution of £150,000 towards the mother’s legal costs within 28 days, reflecting his reprehensible conduct that contributed to the litigation. The mother was not awarded full costs, as she bore some responsibility for the family’s difficulties.

This decision does not establish new legal precedent but applies established principles concerning child welfare, the weight of older children’s wishes, and costs in family proceedings. The court emphasised the potential for the mother and children to repair their relationship despite the distress caused by the relocation decision.