High Court allows father's appeal on child relocation, prioritizing child's welfare over mother's desire to move to UK.

THE HIGH COURT

FAMILY LAW

[2025] IEHC 687

RECORD NO. 2025 48 CAF, 2025 47 CAF

E

APPLICANT/RESPONDENT

-AND-

L

RESPONDENT/APPELLANT

JUDGMENT of Mr. Justice Jordan delivered on the 29th day of July 2025.

1. The parties were married to each other in the United Kingdom in 2013. They have two children – A who was born in 2016 and B who was born in 2018.

2. The parents reside along with the children in the family home in Dublin. They are living “separate and apart” from each other though under the one roof. These living arrangements are very difficult for the parents and the children.

3. The mother is a UK citizen and the father is an Irish citizen. The parents both have good employment.

4. The mother issued proceedings seeking relief pursuant to the Guardianship of Infants Act 1964, proceedings under the Judicial Separation and Family Law Reform Act 1989 and the Family Law Act 1995 - and then proceedings in May 2024 under the Family Law Divorce Act, 1996 (as amended).

5. The proceedings encompassed a claim for judicial separation and ancillary relief and a claim for divorce and ancillary relief – and the most contentious aspect of the litigation between the parties which is a proposed relocation by the mother and the children to Town Z in the United Kingdom.

6. The initial proceedings were the relocation proceedings followed by the judicial separation proceedings and then came the divorce proceedings. Ultimately, the proceedings were consolidated and heard and determined in the Circuit Court with the judgment and order in May 2025. The Circuit Court order permitted the relocation (inter alia) and the father has appealed the decision. It is a full appeal although the core issue in dispute is the proposed relocation. The evidence at the hearing of the appeal focussed primarily on the father’s opposition to relocation and the mother’s desire to achieve same.

7. In a written judgment Shannon J. in the Circuit Court analysed the law (including caselaw) and he carefully explained his decision. However, this is a re-hearing and the Court must approach it’s decision accordingly.

8. In essence, the Court is here engaged in a child welfare assessment. Without wanting to repeat what is said in the judgment of the Circuit Court, it is perhaps appropriate to set out some of what is said in the authorities concerning relocation applications.

The Law.

9. The Court of Appeal has dealt with the law in this area in a recent appeal concerning a relocation application – in the case of K v K [2022] IECA 246. At para. 3 and 4 of her judgment in K v K Whelan J. states; - “3. The choices confronting the court in a relocation application are binary. The primary aim must be to minimise, in so far as practicable, the rupture in the unsuccessful parent’s relationship with the children and to establish measures to secure, so far as practicable, the maintenance of a relationship between the children and the left-behind parent.

4. Ultimately in such applications the burden rests with the moving party to demonstrate to the satisfaction of the court the benefits to be conferred on the child or children by the proposed move abroad, while satisfying the court that the relationship of the child with the left-behind parent can and will be maintained over time by the constructive ongoing operation of sufficiently comprehensive and extensive contact and access with the left-behind parent.”

10. Whelan J. also stated in K v K; -

“Stability and certainty in connection with access and contact arrangements are especially important where a significant change is in contemplation and where children may have to adjust to living in another jurisdiction away from one parent and, perhaps, learn a new language. It is for the court to assess the bona fides of an applicant parent who seeks to relocate and whether, in light of the evidence, there is a likelihood that an applicant will have due regard to the rights and welfare of the children, bearing in mind the importance for a child's welfare of the maintenance of an ongoing constructive and positive relationship with the left-behind parent.”

11. In his judgment in K v K Collins J. cited with approval Whelan J. in S.K. v A.L. [2019] IECA 177; - “What is involved is “an exercise in welfare assessment”, without any presumption either in favour of or against the proposed relocation. The exercise is necessarily comparative: what the court is required to do is to identify and evaluate the available options, carrying out a “balancing exercise in which each option is evaluated to the degree of detail necessary to analyse and weigh its own internal positives and negatives and each option is then compared, side by side, against the competing option or options”.

12. A summary of necessary considerations is that set out by Butler Sloss P. in Payne v Payne [2001] EWCA Civ 166: - “(a) The welfare of the child is always paramount.

(b) There is no presumption in favour of the applicant parent.

(c) The reasonable proposals of the parent with a Resident’s Order wishing to live abroad carry great weight.

(d) Consequently, the proposals have to be scrutinised with care and the court needs to be satisfied that there is a genuine motivation for the move and not the intention to bring contact between the child and the other parent to an end.

(e) The effect upon the applicant parent and the new family of the child of a refusal of leave is very important.

(f) The effect upon the child of the denial of contact with the other parent and in some cases his family is very important.

(g) The opportunity for continuing contact between the child and the parent left behind may be very significant.”

13. In his judgment in K v K Collins J. dealt with the appropriate approach by a court in some detail. It is worth setting out some of what he had to say ; - “82. The agreed starting point is the decision of this Court in SK v AL [2019] IECA 177, in which Whelan J gave the sole judgment (Edwards and McCarthy JJ agreeing). SK v AL involved an application to relocate to the United States. The applicant was the mother and primary carer of the child – a 10-year-old girl - and the respondent was the father. The parties had previously been in a relationship but were not married. The application was allowed in the High Court and the father’s appeal was unsuccessful. The facts differ significantly from the facts here but the judgment of Whelan J gives general guidance as to the proper approach to applications for relocation.

83. Whelan J began her analysis by noting that the approach of the court is governed by the Constitution, the 1964 Act and the jurisprudence governing the ascertainment of the best interests of the child. She noted that in any trans-national child relocation case a variety of conflicting or competing interests are potentially engaged, including the best interests of the child in question, the rights and interests of the relocating parent (including their family circumstances) and of the left-behind parent. Such an application, she observed, “frequently, if not invariably, brings into stark relief the conflicting aims and objectives of the parent who proposes to relocate and who is usually the primary carer of the child with the rights of the left behind parent to maintain a relationship with the minor” (at para 40). Even if PIK is not the primary carer here given that she and DK share the care of the children, that observation undoubtedly holds good here.

84. Whelan J emphasised that, having regard to the constitutional mandate and the clear legislative provisions, there “can be no presumption in favour of or against either the applicant parent or the remaining parent.” What is involved “is purely an exercise in welfare assessment” (at para 42). In carrying out that exercise, the conduct of either parent (including previous wrongful removal or retention of a child) could be considered “to the extent that it is relevant to the child’s welfare and best interests only” (as per section 31(4) of the 1964 Act). The objective of that legislative approach is “to direct the focus of the enquiry away from recriminations, blame or fault finding with regard to the past conduct of either parent” unless relevant to the child’s welfare and best interests (at para 52).

85. It was, in Whelan J’s view, “imperative” that in relocation applications the views of the child are considered and taken into account. On the facts, the “constitutional mandate to obtain the ascertainable views of the child” had been met by means of the appointment of a consultant clinical psychologist pursuant to section 32 of the 1964 Act who had interviewed the child, prepared a report and who had given evidence in the High Court and had been cross-examined at length by the father. Notably, Whelan J characterised the psychologist as a witness of the court and not a witness for either party (at para 54).

86. While noting that parents in relocation proceedings may invoke rights, including rights of free movement, Whelan J emphasised that the paramount consideration in any relocation application must always be the best interests of the child (para 56). In carrying out a best interests assessment in that context, Whelan J identified the following particular factors as being of potential relevance: “(a) The minor's emotional and/psychological dependency upon the primary carer. (b) The relationship between the child and the remaining parent. (c) The relationship between the child and his or her extended family, including siblings, step-siblings, step-parents and grandparents and the extent to which the dynamics of those relationships that operate positively and beneficially for the minor may be affected by the relocation, and considerations as to how such changes might be ameliorated or addressed. (d) The reasonableness of the proposed relocation and, so far as relevant, the motivation of the parent who proposes to relocate which is required to be objectively assessed. (e) The practical consequences of a refusal of the application for all of the directly concerned parties and in particular the minor, the directly concerned parents or guardians.” (at para 55).

87. Access for the non-custodial parent is also a key consideration in this context. SK v AL involved an application to relocate to the United States and in that context Whelan J observed that “significant distance can impact on the frequency and modalities of contact and generally can be a relevant factor in judicial consideration of the minor’s bests interests in the context of such an application” (at para 39). Where relocation was permitted, care had to be taken to structure contact arrangements so as to preserve and vindicate the child’s relationship with the non-relocating parent so as to ensure that, as far as practicable, the relation is maintained in such a manner as operates in the best interests of the child (para 57).

88. Whelan J noted that, while there is no international convention or protocol governing international family relocation, in March 2010 the Washington Declaration on International Family Relocation had been published. Although the Declaration did not have any legal effect, Whelan J noted that the factors that it identified as being relevant to decisions on international relocation (set out at para 58 of her judgment) appeared to resonate with the provisions of the 1964 Act. 89. Certain of the provisions of the 1964 Act have already been referred to. I have already noted the section 3(1) injunction to regard the best interests of the child as the “paramount consideration” in deciding questions relating to guardianship, custody and access. Section 3(2) provides that the best interests of the child are to be determined in accordance with Part V of the 1964 Act. Part V was inserted by the Children and Family Relationships Act 2015. Section 31(1) provides that in determining what is in the best interests of a child, the court “shall have regard to all of the factors or circumstances that it regards as relevant to the child concerned and his or her family.” …..

90. Section 31(2) – which is broadly similar to section 1(3) of the (UK) Children Act 1989 - provides a useful checklist which helps to structure the court’s assessment of what is in the best interests of the child in any given circumstance. However, the extent to which those factors are engaged, and the weight to be given to them, will vary from case to case. In any given case, different factors may point in different directions. That is not a criticism of the section; rather it is a reflection of the complex and untidy reality of family relationships and the breakdown of such relationships. As Moore-Bick LJ observed in K v K (Children: Permanent Removal from Jurisdiction) [2011] EWCA Civ 793, [2012] Fam 134, “the circumstances in which these difficult decisions have to be made vary infinitely and the judge in each case must be free to weigh up the individual factors and make whatever decision he or she considers to be in the best interests of the child” (at para 86). That approach is, in my view, entirely consistent with the 1964 Act.

91. As Whelan J stressed in her judgment in SK v AL, what is involved is “an exercise in welfare assessment”, without any presumption either in favour of or against the proposed relocation. The exercise is necessarily comparative: what the court is required to do is to identify and evaluate the available options, carrying out a “balancing exercise in which each option is evaluated to the degree of detail necessary to analyse and weigh its own internal positives and negatives and each option is then compared, side by side, against the competing option or options” (per McFarlane LJ in Re G (Care Proceedings: Welfare Evaluation) [2013] EWCA Civ 965, [2014] 1 FLR 670……………..

98. In his judgment, Kirby J expressed the view that treating the maintenance of the status quo as an alternative proposal (i.e. if the mother confirmed that she would not relocate without the children ) effectively meant that the wife’s application for relocation would never really be determined on its merits, given that the status quo involved the advantage of continued access by both parents. Courts, in his view, “should not ignore the disproportionate burden typically placed upon women by their being effectively immobilised as the custodial/residence parent” (at paras 144- 145)”.

Discussion.

14. The Court has read and carefully considered the detailed written submissions on behalf of the father and the mother. Both sides present their arguments comprehensively and with a clear focus on the evidence before the Court - and the findings that each say ought to be made by the Court. The Court’s findings of fact and conclusions are set out below - and where the Court agrees and differs from the submissions made this will be obvious.

15. The Court has also carefully considered the expert evidence and reports.

16. A and B were both born in the United Kingdom. Their mother and father had met in 2007 at University. They moved to Town Z in 2008 and they were resident there for about ten years. They purchased a property jointly while there. The father was resident in the United Kingdom between 2003 - 2018. Then, shortly after the birth of B, the parties moved to Ireland in October 2018. After renting for over a year they later purchased their current family home around March 2020. Thus, the family had an established connection with the UK, and with Town Z in particular, for many years.

17. It is clear from the evidence that the mother was reluctant about the move to Ireland. Her evidence is to the effect that she made this clear to the father and that he knew her feelings about the move. Her evidence is to the effect that he reassured her that they could always move back to the United Kingdom if things did not work out in Ireland – “He said if we did not settle we could come back”.

18. Although the father was at first very entrenched in his position that there was no such assurance given it became quite apparent later in his evidence that the option of moving back to the United Kingdom if things did not work out had been discussed.

19. When pressed by the Court on the issue the father said that he did remember discussing the possibilities of pursuing a job in Liverpool. It was nearer to Dublin. A discussion about Birmingham was also involved at the time. He went on to say that he never said they could not come back to the United Kingdom and that it was about him being able to see the children at the weekends – and that he was open to move to different places. In evidence on 9/7/25 the following exchange took place –

• Judge : Can I ask, you have referred a few times to the fact that there have been many discussions about this, are you saying that throughout your discussions that your wife never asked what is going to happen if it doesn’t work out?

• Husband: Oh absolutely, ye, we discussed it in terms of jobs and houses and accommodation. I was open to any solution if it didn’t work out. It was never specifically about returning to Town Z, about going anywhere.

• Judge: But, you’re living in Town Z, one toddler and another child about to be born and there are many discussions. In fact the second child may not even have been conceived at the time of some discussions, going on your version of events. It seems to be likely that a wife in the position would ask the specific question, what happens if it doesn’t work out? What did you say to her when she asked what happens if it doesn’t work out, if she did ask?

• Husband: We were confident that we would be ok and look at it again. I never said specifically that I didn’t want to come back to the UK.

• Judge: I want you to think back. This is an issue of some significance. It seems you agree that this question was asked - what happens if it doesn’t work out? In terms of answers - One of them is “tough, if we go over there we stay”. Another answer is “don’t worry we can come back” – and another is “I don’t know what we are going to do”. I’d like to know your recollection of your answer. If you don’t recollect then so be it.

• Husband: I remember discussing the possibilities of pursuing a job if it didn’t work out in Dublin – and that it was specifically about seeing the children. We mentioned Liverpool because it was closer to Dublin. I remember Birmingham being brought up. We seemed to have a good idea that we were happy and that the time was right to go. If I couldn’t get a job in Dublin I never said we couldn’t come back to the UK or Scotland. My concern was getting a job so I could see the children. I don’t recall exactly where we said but I was open to a lot of suggestions. I didn’t want to move back to Dublin to not have a job or house. That is why we never moved back before that. I was totally open to moving to different places.

20. The evidence is to the effect that the father gave in his notice in respect of his job approximately six weeks before the birth of B. The mother says that the tendering of notice was without consultation with her and that she was told by the father that they were moving to Ireland. Although she was not in favour of the move she went along with it. She had asked for a pause for a year but the father refused – although he does acknowledge she did ask. She says that she was sleep deprived after B’s birth because the father was concerned about sudden death syndrome and had a strict regime in place which required the children not to be left alone at any time. And she believed she had the assurance about moving back if things did not work out. Whatever words were actually said in the latter respect it was clearly sufficient to persuade the mother that a move back to England was possible if Ireland did not work out. Perhaps more importantly, the mother as a result of the discussions had no reason to contemplate that the father would oppose a move back to England if things did not work out.

21. The mother’s recollection of the discussions and of the events surrounding the move to Ireland are the more credible of the two. The Court accepts as correct her account.

22. The mother did not settle in Ireland. She gave evidence that she asked the father about moving back to England as a family around May of 2021 and he said no.

23. It is not possible to say if the marriage would have survived if the husband did agree to move back to England and if the family did so. While such a move would have removed one source of unhappiness for the wife it does seem clear that there were other problems emerging in the relationship.

24. It is important to observe also that no good reason has emerged in the evidence as to why the father could not move back to England and obtain employment there – whether before or after the marriage breakdown. Indeed, at this stage the equity in the Family Home would help set up two homes in the Town Z area. Granted, moving back to the UK now would mean significant upheaval for the father – and for all concerned – but marriage breakdown is rarely if ever without upheaval.

25. In terms of the proposed relocation the discussions about the possibility of moving back might be said to be of peripheral relevance to the child welfare assessment at hand. However, they are relevant circumstances and must feature in the Court’s considerations. Discussions concerning such a move clearly did take place and did leave the mother with the impression that a return to the United Kingdom was possible if things did not work out. The father’s initial trenchant denial of any such assurance and his assertion that it was a fabrication on the part of the wife does illustrate an uncompromising personality - and reveals the father as an unreliable historian. Such characteristics cannot be ignored in the context of the child welfare assessment at hand.

26. Ms H expressed the view that the mother has more insight into the emotional needs of the children. Having heard the evidence the Court shares that opinion. It is also probable that many of the father’s actions concerning the children since the mother first mentioned a move back to the UK and certainly since the relocation proceedings were served on 13 January 2022 have been designed to bolster his Defence and opposition to relocation. The discussions he had with the GP about the mother and the report to Tusla which he was responsible for were unwise and without substance. The mother was understandably devastated when she found out about these as she felt it was vindictive and uncalled for.

27. The audio recordings of the mother without her knowledge were opportunistic attempts to paint a negative picture of her as a mother.

28. Involving the two boys in sports six days a week and taking them to his mother’s house during the week after sports before returning home late is likely designed to keep their mother out of the picture.

29. The parents discussed telling the children of the Circuit Court decision soon after and the mother did not want to. The father took the two children to his mother’s house where he told them anyway (and he said in evidence that he recorded the conversation with the two children). He did this even though the decision was being appealed and it was unknown whether or not there would be a relocation. Little will be gained by speculating on his motive, but it is difficult to understand what good the father believed telling the boys then would do.

30. Regrettably, the above criticisms of the father cannot be avoided because the Court must form a view on such events when considering the welfare of the two children. The character, personality and behaviour of both parents is relevant - not least because a good pointer to future behaviour is past behaviour. Unfortunately, it does seem that the father has been unable to stand back and take an objective view of the situation and of the options available to him since the mother told him of her desire to return to the UK. Since then, his own desire to stay in Ireland and for the children to stay here appears to have consumed his thoughts and plans. The welfare of the children has not been forgotten by him, but it has taken second place to his wishes – and he likely does not see or appreciate this fact. It is fair to say in reply that the mother’s desire to return to Town Z has occupied much of her thoughts also. However, although that is so her parenting and her actions over the past four years do not appear to be driven by that objective in the same way as the father’s parenting and actions have clearly been largely motivated by his desire to prevent a relocation of the children.

31. It is the position that the mother has a good family network in and proximate to Town Z – as well as a network of friends. This is where the parties had actually decided to live and base themselves for many years - and it is where they resided when the children were born.

32. The mother was separated from her family network and friends on moving to Ireland in 2018. On this, the Court is satisfied that the mother has made friends in Ireland and has maintained family contact. However, the family contact and support is much less than existed whilst the family resided in Town Z and the network of friends is not as good as that enjoyed by the mother while there. Now that the marriage is over the mother wants to return to her family and friends and to where the family resided in the United Kingdom before the move in 2018. This is a reasonable and perfectly understandable position. The discussions which did take place about possibly moving back are relevant in this context also. Absent in many relocation applications (and certainly in most of those which have been dealt with by this court) is a stand-out feature of this case – i.e. the application by the mother is to return with the children to the place where the family chose to live for many years and to where the family resided when the children were born. And her application arises in circumstances where she was reluctant to move but understood from her husband that a return was possible if things did not work out.

33. The Court has already expressed a view on the relevance of the discussions. But at a more granular level in the context of a child welfare assessment it is a fact that both parents were happy with Town Z as a place to reside, to have children and to have a home. If the father hankered a desire to return to Ireland it clearly was not the mother’s preference and was not a jointly agreed plan.

34. Dealing with a number of discreet issues raised in the course of the hearing, the Court will observe as follows; -

(a) There is no doubt but that the mother has better family support and better friendships in Town Z. While the Court is ultimately concerned with the children’s welfare and best interests it cannot ignore the mother’s situation or the actual circumstances. These are all inextricably linked.

(b) It is clear that the father has good family support in the Dublin area where he is living – and where he has established friendships. He is heavily involved in coaching gaelic (football) and soccer and he is now resident in the area which he was familiar with before moving to the United Kingdom. On the other hand, he did reside for several years in the UK and he was resident in Town Z area for many years. He worked in the UK for many years, and he had friends and colleagues there – and he was involved in sports there. In evidence he referenced being in Scotland between 2003 and 2007 and then in England from 2007 to 2018. He played soccer in the UK and he played GAA when in University in Scotland. In Town Z he had less time but generally played one soccer match a week.

(c) It is a fact that the two boys are thriving and happy and benefitting from two very good and very committed parents. That contact will continue even if relocation is allowed but it will be more difficult if the children are in Town Z and the father is in Ireland. Regular contact is nonetheless quite feasible if the relocation occurs and if the father remains living and working in Ireland.

(d) It is a fact that the two boys have established friendships, schooling and extracurricular pursuits where they presently reside in the Dublin area. It is a fact that the two boys do not want to move to the United Kingdom. The most recent report of Ms F comprehensively captures the views and voices of both children. There is no ambiguity about their expressed wishes – both say they do not want to move to the United Kingdom. The Court must have regard to their views but same do not determine what is in their best interests. They are of an age where they are averse to change and they are in the situation where their parents are separating and they naturally wish to keep everything as normal and as familiar as possible. The Court must also have regard to the expert opinion of Ms H - with which it agrees in so far as the best interests of the children are concerned. It is necessary to add that the Court has itself formed its own view in light of all the evidence adduced as to what is in the children’s best interests.

(e) Insofar as accommodation is concerned, it is clear that housing is very significantly cheaper in the Town Z area than it is in Dublin or its surroundings. It is also clear that long term rental is also substantially cheaper and more affordable there.

(f) The Court is satisfied that the schools in the Town Z area in the United Kingdom are good schools and it is probable that places in a suitable school will be found with relative ease if the children relocate. A and B are intelligent boys and the Court does not have concerns about their education being adversely impacted by a move to the United Kingdom.

(g) Insofar as it is suggested that Town Z is a relatively deprived area the Court accepts the mother’s evidence to the effect that there are some deprived areas but they are areas which she would avoid. As stated above the family chose to live there and did so for many years. The Court is not concerned that a relocation there would involve the children moving into a rundown or deprived area to live.

(h) Insofar as employment is concerned, the mother makes the point that her employment prospects in the United Kingdom are better than they are in Ireland. The Court is not satisfied that the evidence proves this to be so. It appears from the evidence that the mother is an experienced and well-regarded person with good job prospects and opportunities for advancement in the United Kingdom and in Ireland. It is however true that her prospects in her current employment are likely to improve if she relocates to the UK.

(i) Insofar as their cultural identity is concerned, it is apparent from the evidence that the two boys are immersed in the GAA and in the Irish language because of their father’s interest in both. However, they also play soccer and it may well be that their sporting interests will develop and change as they grow older. The mother does have a complaint about the children’s English identity being sidelined and their English cultural heritage being neglected. The reality is that both children may well develop a closer connection to the country in which they reside – whether that be Ireland or England. Although each parent can have a significant influence on the children in terms of maintaining their dual cultural identity the country of residence is at an advantage in this regard. At present the two boys are more in tune with their Irish culture than their English culture as they are resident here and because of the influence of their father to whom his (and their) Irish cultural heritage is very important. The mother does foster their connection to their English cultural heritage, but it is more difficult to do so when resident in Ireland.

(j) The breakdown of the relationship between the father and the mother has resulted in high conflict between them both. There is little trust on either side and each is entrenched in their own position.

(k) Both parents are totally committed to the children since birth. Both parents enjoy a close and loving relationship with the two children. It is clear that the father has had a hands-on role in their upbringing since their birth - and indeed different parenting styles and opinions were a significant source of conflict in the marriage. If there is a criticism of the father as a parent it is that he has clearly sought to sideline the mother as a parent.

(l) Part of the father’s case is that he is concerned that his contact and his relationship with his children will be diminished substantially if they are allowed to relocate with their mother and he makes the point that this would be contrary to their welfare. The Court has already pointed to the options available to allow good contact to be maintained. It is nonetheless true that a relocation is likely to impact on his contact with the children and the Court must be careful to order a clear and generous contact regime if relocation is to happen.

(m) Of note is the fact that this is not a situation where the mother going with or without the children arises for debate. The mother has no intention of leaving the children. Her case is that she wants to move and needs to move to Town Z with the two children because she can have a life and a future there which she cannot have in Ireland and this is better for the children – and in circumstances where the father said they could move back if things did not work out in Ireland. The father wants her to stay in Ireland with the children so as to allow the status quo to be maintained as much as possible post separation.

(n) The practical situation following the breakdown of the marriage is that the mother feels alone and isolated in Ireland. The mother’s aspirations to move “home” are rational and understandable. Furthermore, they are eminently reasonable given all of the circumstances and discussions surrounding the move to Ireland.

(o) This does not appear to be a situation where the father would have insurmountable difficulty living and working in the UK in proximity to the children – or for that matter working in Ireland and having a permanent base in the UK near them. It does appear that there is accommodation available to him in the Dublin area (e.g. in his mother’s large house) even if the Family Home is disposed of and the net proceeds apportioned between the parents. This is a necessary observation in light of the evidence given although recognising that neither side suggested this as an option. Inevitably marriage breakdown creates change - and usually calls for many compromises. While a Court may be faced with a binary choice in terms of its decision in relocation cases parents frequently have a number of options – as the father probably has here in the event of a relocation being allowed.

35. Turning then to the s.31(2) of the Guardianship of Infants Act, 1964 (as amended)

considerations; -

(a) the benefit to the child of having a meaningful relationship with each of his or her parents and with the other relatives and persons who are involved in the child’s upbringing and, except where such contact is not in the child’s best interests, of having sufficient contact with them to maintain such relationships; Both of the children will benefit from continuing to have good contact with both parents and the extended families on both sides. This is feasible. There are two fundamentally decent parents and families on both sides of the unfortunate family crisis.

(b) the views of the child concerned that are ascertainable (whether in accordance with section 32 or otherwise); - The children’s views are commented on above. They are important but not determinative. The boys are still young and the views expressed by them are no surprise. The marriage breakdown is and will pose challenges for them regardless of the outcome of the relocation application.

(c) the physical, psychological and emotional needs of the child concerned, taking into consideration the child’s age and stage of development and the likely effect on him or her of any change of circumstances; - The children will be affected by a relocation and are affected by the breakdown of their parents’ relationship. They would like their parents to remain together and they do not want change. However, the court is in agreement with the opinion of Ms H as to what is in the children’s best interests. The Court is satisfied that the two boys will adapt to a relocation and to the changes in their lives. Their welfare interests are best served by a move back to Town Z. They may need some support in dealing with the upheaval caused by their parents’ separation and the relocation - and this ought to be made available to them if they require it.

(d) the history of the child’s upbringing and care, including the nature of the relationship between the child and each of his or her parents and the other relatives and persons referred to in paragraph (a), and the desirability of preserving and strengthening such relationships; - As mentioned above, the children are closely attached to both parents and both extended families – and have been throughout. It is the case that the paternal grandmother is a big part of their lives. While that will change in the event of relocation it will not end. A regular contact schedule will enable the relationship to continue albeit with changes.

(e) the child’s religious, spiritual, cultural and linguistic upbringing and needs; - There is something of a divide between the parents in this regard and the Court has referred to it above. Having regard to the likelihood of ongoing close contact between the father and the children a relocation does not mean that their Irish Heritage and language will be lost to them – nor can it be given some pre-eminence over their English heritage.

(f) the child’s social, intellectual and educational upbringing and needs; - These are likely to be equally well served in either country.

(g) the child’s age and any special characteristics; -

The boys are both intelligent and they are thriving in all respects.

(h) any harm which the child has suffered or is at risk of suffering, including harm as a result of household violence, and the protection of the child’s safety and psychological well-being; - This is not really an issue although it has to be said that the mother remaining in Ireland would likely increase her sense of isolation and create for her resentment, a sense of injustice and ongoing frustration at her predicament. That would not be in the boy’s best interests as they would likely note her sadness/unhappiness and be somewhat burdened by it.

(i) where applicable, proposals made for the child’s custody, care, development and upbringing and for access to and contact with the child, having regard to the desirability of the parents or guardians of the child agreeing to such proposals and co-operating with each other in relation to them; - A clear contact regime is desirable – and the proposals made on both sides show that both parents appreciate this fact.

(j) the willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent, and to maintain and foster relationships between the child and his or her relatives; - Much of the conflict and tension in the family is due to the difficult circumstances caused by both living with the children under the one roof. Once that changes and when a Court Order regulating custody and access exists the Court considers that the parents will together co-operate to make the arrangements work.

(k) the capacity of each person in respect of whom an application is made under this Act—

(i) to care for and meet the needs of the child,

(ii) to communicate and co-operate on issues relating to the child, and

(iii) to exercise the relevant powers, responsibilities and entitlements to which the application relates; - Both parents are committed and have the requisite capacity mentioned - although the father’s uncompromising approach to parenting issues leaves something to be desired. He needs to work on improving his approach so as to be open to the collaboration required while parenting when separated.

36. Article 6 and 8 of the ECHR do not really raise any issues that are not covered in the above considerations. Furthermore, allowing the relocation is a proportionate measure in all of the circumstances.

37. This relocation application fell victim to system delays in the Circuit Court and it ought to have been dealt with much earlier. Relocation applications by their very nature require to be given priority within the system.

38. The Court is satisfied that the enforceability of this Court’s order in the UK is not a concern even if Brexit has altered the landscape in that regard. The 1996 Hague Convention is in full force and effect in the UK and the father can enforce his rights in the UK if necessary - although automatic recognition under European law no longer exists.

39. The father did raise some arguments of substance against relocation – such as the children’s own views and the fact that they are well settled in Dublin. The Court has spent time weighing all of the evidence and has pondered the arguments advanced on both sides in order to decide what is in the best interests of the two boys. On balance the Court is satisfied that the welfare of the children is best served by allowing the proposed relocation – and on terms similar to those set out in the order under appeal.

40. In so far as the Divorce is concerned the Circuit Court correctly set out the applicable legal principles and the considerations under Section 20 are appropriately dealt with. The various factors are in large measure subsumed in the consideration of the relocation issue and understandably have not really featured as a separate debate or dispute. The Court has nonetheless considered Section 20 fully in arriving at its decision.

41. The Court is satisfied that the Decision of Shannon J. is correct. The Court considers however that some changes to the Circuit Court Order are appropriate. Among the changes the Court will alter the provision to be made for the wife in respect of the family home to what it considers proper. It is jointly owned. While property in Town Z is cheaper to buy or rent - and the father will have greater travel costs as a result of the relocation - the mothers interest in the Family Home requires more meaningful recognition.

42. The Court will order as follows; -

1. A Decree of Divorce pursuant to section 5(1) of the Family Law (Divorce) Act 1996.

2. An Order pursuant to section 11 of the Guardianship of Infants Act 1964 (as amended) and section 5(2) of the Family Law (Divorce) Act 1996 granting the parties joint custody of their minor children A and B - with primary day to day care to the mother.

3. An Order pursuant to section 11 of the Guardianship of Infants Act 1964 (as amended) that the mother does have liberty to relocate to Town Z with the minor children A and B - with said relocation to take place on ………….

4. An Order pursuant to section 11 of the Guardianship of Infants Act 1964 (as amended) that the father be entitled to extensive access with the said minor children A and B as set out below –

• A very detailed access schedule is here set out – but is redacted

5. Such further or other access as may be agreed between the parties.

6. Passports. Each parent to have an Irish passport for the children – the father to hold the book and the mother the card once available - and to co-operate with one another in order to get and renew same. The mother is to obtain and retain a UK passport for each child and is to obtain a UK passport card also for each child if and when such cards become available. The parents are to co-operate in order to get and renew the UK passports. If and when a UK passport card issues for each child the father is to hold same. Irish passport costs/renewal costs will be paid by the father and UK passport costs/renewal costs will be paid by the mother. A parent who loses a child’s passport will bear the costs of the replacement. In the event the loss of the passport results in the cancellation of travel plans, the parent who lost the passport will reimburse any loss to the other parent.

7. The mother is to be given the Irish Passports [Book or card] for each child on or before ………..

8. An Order pursuant to section 13(1) of the Family Law (Divorce) Act 1996 directing the respondent to pay periodic maintenance in the sum of €250 per month [per child] total [€500 per month] commencing on ………….. together with 50% of any medical, dental (including agreed orthodontic) expenses - and same to be re-imbursed within 14 days of the relevant vouchers being provided. The child maintenance to increase each year on the date of this Judgment in line with the Consumer Price Index. The parties are to share third level education costs equally but there needs to be discussion and agreement in advance on the third level institution and with due regard to the wishes of the child.

9. The applicant to receive any child benefit in England.

10. The respondent to maintain VHI for A and B for when they are in Ireland.

11. An Order pursuant to section 14(1) of the Family Law (Divorce) Act 1996 directing the applicant to transfer the entire of her legal and beneficial interest in the family home to the respondent in consideration of the payment to her of €…….. and subject to the respondent removing the applicant from the mortgage within 12 months of today’s date.

12. a. In default of payment and the respondent removing the applicant from the mortgage within twelve months from the date hereof, the family home is to be sold and, after discharge of the mortgage and sale/legal costs, the net proceeds to be divided equally between the parties. b. An order dispensing with the need for the applicant’s consent to a sale of the family home. c. An order permitting the respondent to reside in the said family home to the exclusion of the applicant from the ………..

13. An Order pursuant to section 14(5) of the Family Law (Divorce) Act 1996 directing the County Registrar to execute all documents, do all acts or deeds necessary to give effect to the within orders in the event that either party fails, refuses of neglects to do so within

21 days of being called upon to do so.

14. Each party to retain the benefits of their respective pension schemes - with a nominal order and blocking order. An order that the death in service contingent benefit in respondent’s scheme be assigned to the benefit of A and B. Applicant to secure the equivalent or a similar order in respect of her pension scheme for the benefit of A and B if it is possible to do so. The parties are to provide all relevant information concerning their pensions to the other to show compliance with this order and to allow formal orders to be prepared and ruled.

15. The said Orders under section 17 of the Family Law (Divorce) Act 1996 to be formally drafted and the perfection of same is adjourned to when the papers are in order.

16. An Order and Cross Order under section 18(10) of the Family Law (Divorce) Act 1996 excluding each of the parties from applying for provision from the estate of the other.

17. An Order lifting the in-camera rule to the extent necessary to give effect to the orders herein in particular providing for disclosure of the orders to the financial institution.

18. No order as to costs.

19. Liberty to apply.