SB v M [2021] EWFC 49 (11 June 2021)

Application by a Mother for permission to relocate to a country in Africa with the parties’ son, N aged 12.

The Father opposed the application and if permission was refused he applied for a shared care arrangement in this country.  

By order by consent in 2016 the Father had contact with N on alternate weekends and during the school holidays, one week at Christmas, one week at Easter and 3 weeks in the Summer two weeks together and a further separate week.

The Court summarises the relevant case law in relation to international relocation cases – Re F (A Child)(International Relocation Case) [2015] EWCA Civ 882 and K v K [2011] EWCA Civ 793.

When looking at the relevant principles in these cases the Judge was concerned about the Mother’s ability to be flexible as to N’s needs as they change over the coming few years and her overall attitude towards the father which may have an effect on M’s own outlook especially if he goes for substantial periods of time without seeing him [para 43].

The Judge was clear this is not a case where the mother has alienated N from his father or broken court orders. The Cafcass officer was right to say that the parents have not been able to co-parent without tension and acrimony. Ultimately the Judge felt that the mother tolerates the father’s relationship with N because she realises she should, but she has a certain lack of respect for the role that he plays and is quite quick to become annoyed or angry when she perceives him as making demands she does not agree with [para 50].

The Judge was clear that N and the mother if the application was refused will be able to continued to live much as they have been for the last few years – comfortable life with good schooling for N. The mother is an intelligent and thoughtful individual whose career chances are far from poor if she remained in the UK.

The Judge suggested the parents attend mediation as N gets older as it would be much better for all concerned if they could talk through decisions and manage issues such as alcohol, screen time, relationships and going out [para 60].

Although the Judge found that N’s physical and educational needs will be met equally whether he lives in Country A or in London, it was N’s emotional needs to have a good and strong relationship with each of his parents if at all possible will be affected particularly with his father if he moves to live in Country A. The day-to-day aspect of going to his father’s home during term time is very important for N because it will mean his father is involved in his life more generally, Facetime does not really make up for that [para 62].

Although the Judge had been critical of the mother’s attitude towards the father she made clear the mother impressed having done an excellent job in being N’s primary carer and the father too has forged a loving relationship with his son [para 66].

Comparing the two options for N and taking his welfare as my paramount consideration the Judge came to the conclusion the mother’s application should be refused. The better option for N is to remain here, having his main home with the mother but with regular, frequent term time and holiday time with the father. She believed the mother would be able to work and to come to terms with the decision not least because it does not stop her putting into effect her wishes within a few years when she is still young and able to command good employment (and further her private life too). The Judge believed staying here would be much better for N’s relationship with his father than it would if there is a relocation to Country A and that this is important for him, and that a balance of all the other factors leads to the same conclusion.  The decision is an interference with the mother’s Article 8 rights to live and work in a place of her choosing and also to engage in a relationship but the Judge considered that it is necessary and proportionate to do so to respect N’s welfare needs [para 69].