Children's Interests Need to be Assessed Individually

The cardinal rule in proceedings involving children is that the welfare of the child comes first. In some cases, the interests of individual children in a family are sufficiently different for them to be considered separately.

In a case involving a Canadian man and his British wife, who had separated leaving their two sons living with their mother, this was exactly what happened. The two boys were 16 and 12 years old at the time of the hearing and had regular contact with their father, who remained resident in the UK although he expressed a desire to return to Canada. After visiting Canada with him on holiday, the boys were keen to move there to live with him and gave cogent evidence supporting their wishes.

Noting that the current arrangements, whereby the boys lived with their mother, were ‘working well’, the judge nonetheless granted the father’s application. The mother appealed, but only in respect of the younger child, arguing that his circumstances were such that moving abroad would not be in his best interests.

The Court of Appeal considered that the judge had erred in treating the two boys as ‘one unit’ and upheld the mother’s appeal.

In this case, the Court held that what was beneficial for the younger child was not the same as for his elder brother and the needs of the two had to be assessed separately.

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