ETS v BT (A Child)

Judgment

Lord Justice Wall :

Introduction

The mother of L, a girl born on 17 March 2004, and thus rising 5, seeks permission to appeal against an order made by His Honour Judge Welchman sitting in the Lambeth County Court on 17 November 2008. The only formal application before the judge (which he rejected, and from which there is no appeal) was by L’s father (who is the respondent to the application in this court) that a shared residence order made by the same judge on 12 December 2007 he varied so that L’s time was divided equally between her parents on a four day rotation.

However, the real issue between the parties was the mother’s wish to relocate with L from North London, where both parents were living, to Chew Magna in Somerset, where she had obtained employment. The judge refused the mother permission to relocate. He did so, not by imposing conditions under section 11(7) of the Children Act 1989 (the 1989 Act), but by varying the shared residence order; (1) to extend the periods L spent with her father at weekends “from after school on Fridays until the beginning to the school day on Tuesdays on alternate weeks”; and (2) “from after school on Tuesdays until the beginning of the next school day being the Tuesdays in the weeks following the Tuesdays in (1)”.

L began at primary school in North London in September 2008. We were told at the bar that pending the hearing of this application, the mother has been commuting daily to Somerset from North London, and that when L is not at school or with her father, she is being looked after in the day time by the mother’s husband, whom she married in November 2007.

I saw the case on paper at the end of the Michaelmas term, and listed the application on notice to the father with the appeal to follow if permission was granted. This is, so far as I am aware, the first case to reach this court in which the question of what I propose to call “internal relocation” (that is, relocation within England and Wales) arises where there is already in existence a shared residence order. For that reason, amongst others, I would grant permission to appeal.

The facts

The mother is 37, and is British, although she also has an Israeli passport. Her mother is Scottish and her grandfather Israeli. The father is 39. He is Serbian, but is settled in England. The mother and the father began a relationship in 1999, which finally ended in December 2005, when the mother left the father, taking L with her. They did not marry, and L