Attaching condition to residence order

In Re H (Children: Residence Order: Relocation) (CA TLR 29 August)

A parent with a residence order in his or her favour does not require the courts permission under s13(1)(b) of the Children Act 1989 to remove the children from England to Northern Ireland, because that does not involve their removal from the United Kingdom. However, where objection was taken to the proposed relocation, whether within or without the United Kingdom, by the other parent, the welfare of the child was the paramount consideration and the court was entitled in an exceptional case, applying the welfare principle, to attach a condition to a residence order under s11(7) of the Act to prevent a threatened move within the United Kingdom. The court upheld an order granting the mother’s application for a condition to be imposed on the father’s residence order preventing him from removing their two daughters from Gloucester to Belfast. The relevant law was as laid down in Payne v Payne (20/LL p45) which confirmed that the general principles established in the line of cases dating back to Poel v Poel ([1970] 1 WLR 1469) gave valuable guidance to the approach the court should adopt and had not been affected by the Human Rights Act. The mother, father and the child all had rights under article 8.1 of the Convention which were inevitably in conflict and, under article 8.2, each had to be balanced against the rights of the others. The welfare of the child was the first and paramount consideration, but the true balancing exercise had to take into account the effect on the children of interfering with the life of the custodial parent. The decision in Re X and Y ([2001] 2 FCR 398) should not be followed.