Re S (Children): The welfare of each child should be considered separately

Re S (Children) [2011] EWCA Civ 454 concerned the unusual circumstance of a father obtaining leave to remove two children from the jurisdiction, but the mother only appealing in respect of the younger child.

Facts: The father is Canadian and the mother English by birth. They were married in 1992. They have two sons: B, who was born in Canada on 1 April 1994 and C, who was born in the UK on 7 September 1998. The marriage broke down in 2006, after which the children remained with the mother, but had regular contact with the father.

In October 2009 the mother, having learned of the father's desire, shared by the boys, to move to Canada, applied for a Residence Order, which was made in April 2010. The father made his application to remove in June 2010.

On 4 November 2010 the judge made an order granting the father's application to remove B and C from the jurisdiction to live with the father in Canada on or after 1 January 2011. In coming to his decision the Judge treated the boys as a unit for the purposes of deciding whether or not they should be permitted to go to Canada with the father. He did so by common consent of the parties supported by the approach of the CAFCASS reporting officer that the siblings should remain together.

Faced with jubilation on the part of B at the outcome of the proceedings, the mother decided to pursue her appeal in respect only of C whose reaction, according to her, has been ambivalent, and she obtained a stay from the court in respect of C. B left for Canada on his own, shortly before the hearing of the appeal.

The primary ground of appeal was that the judge had erred in principle in treating the two children as a "unit", by failing to have regard to their individual needs and welfare, particularly those of C.

Held: The Court of Appeal directed that the CAFCASS officer should file a further report dealing with the best interests of C in the light of the change in circumstances that B had now gone to Canada, such report including C's wishes and feelings. The CAFCASS officer found that C had chosen to "sit on the fence" and that there was no overpowering reason why C should not remain in his mother's care.

In his leading judgment, Sir Mark Potter found (at paragraph 57) that the judge: "fell into clear error by his failure to recognise that the welfare interests of the children, considered individually, were substantially at odds, rather than in harmony, in the light of their different ages, the stages of their development and the nature of their needs, with the result that the welfare interests of C were wrongly subordinated to the wishes and perceived interests of B." He went on (at paragraph 61): "Had the Judge separately considered the welfare interests of each [child] he should, in my opinion, have been driven to the conclusion that the application should be refused." He concluded:
"I consider that the Judge was wrong in his decision that the boys (collectively) should go to Canada rather than maintaining the status quo, on the basis that priority should have been given to the welfare interests of C in the balancing exercise which the Judge was obliged to perform. I am satisfied that the evidence now available in respect of C following B's departure serves to enhance that view ... It also serves to reassure me that C is content to leave the decision to the court and will accept it whichever way it goes. In my view it should go in favour of maintaining what is still the status quo in respect of C."

Accordingly, the appeal was allowed and the permission granted to the father to remove C from the jurisdiction was set aside.

Lord Justice Patten and Lord Justice Lloyd gave concurring judgments.