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Kara Swift
Kara Swift
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RELOCATION: R v C and S (Through his Child’s Guardian) [2013] EWHC 1295 (Fam)

Date:11 JUN 2013
Law Reporter

(Family Division, Peter Jackson J, 17 May 2013)

The Colombian mother applied for permission to relocate to her home country with the 6-year-old child. The biological father was not involved in the child's life but his psychological father, the mother's estranged English husband, who held parental responsibility for the child in Columbia, opposed the application. He sought a residence or shared residence order.

For the first 3 ½ years of the child's life he lived in Columbia with the mother before they relocated to the UK. Following the parents' separation the child had lived with the mother and had weekly contact with the father.

The father claimed that the region of Columbia where the mother and child would be living was substandard and dangerous. He believed that the mother would not be the main carer and that he would not be able to obtain contact in either country. The guardian was critical of the father's overall approach and considered that he lacked understanding of the mother's position. She supported the mother's application to relocate and expressed her concern at how the mother would cope if permission were refused.

An earlier order made by a district judge conferring parental responsibility under English law on the father was set aside. The father's appearance on the Columbian birth certificate was insufficient for the purposes of s 4(1)(a) of the Children Act 1989. An order was made pursuant to s 4A granting parental responsibility to the father.

There was no doubt that it was in the child's best interests to live with the mother. Given the acrimonious relationship between the parents a shared residence order would be a recipe for conflict and inconsistency. The mother would be unable to meet the child's needs if she were forced to remain in the UK. She was under great stress without any real support. Her ability to meet his needs would be markedly improved in her own country where she had the support of family and friends. Her feelings and reasons for wanting a return were genuine and compelling.

Although a return to Columbia would be a significant change for the child it was a return to a familiar lifestyle and setting. While material conditions would not replicate those in England they were good enough for him for the first 3 years of his life and there was no reason to believe this would change. Practical and financial difficulties in contact could not be denied but if the father were willing to meet the mother halfway in re-establishing mutual respect for each and co-operation there was every reason to believe that contact would take place in Columbia and England.

The fact that the father was not the biological father had some relevance in assessing the losses that relocation would entail. He was an important figure in the child's life but his active role had been intense during an 18-month period of cohabitation but was of lesser significance both before and after that period.

The mother was granted permission to relocate and a residence order. Orders for contact prior to their departure and afterwards were made. The parents were encouraged to engage in mediation before relocation took place.