C & M (Children)

In relocation cases, the conventional approach which gives substantial weight to the primary carer’s reasonable proposal applies where parental roles are relatively clearly divided between a custodial or primary carer and a contact parent. It requires careful qualification where care is substantially shared and children depend on regular access to two homes. In such cases, the effect of relocation on the children’s security and welfare requires particular attention. A judge departing from a clear welfare report must give clear reasons, especially where the contrary view depends on an unsupported prediction about future arrangements. Where the discretionary decision is flawed and the evidence permits, the appellate court may exercise the discretion afresh rather than remit the matter.

The mother applied for leave to remove two children permanently from England to Ireland. Each child had a different father, and both fathers had developed extensive and regular contact arrangements. The children’s care was substantially shared between homes situated close to one another.

The Colchester County Court granted leave to remove the children, despite a clear court welfare officer’s recommendation that they remain in England. Both fathers appealed. The central issues were whether the judge had applied the correct relocation principles, adequately assessed the consequences of disrupting the shared-care arrangements, and sufficiently explained his departure from the welfare report.

1. Appeal allowed. The order granting the mother leave to remove the children was set aside, and her application was refused.
2. The conventional relocation approach derived from Poel v Poel [1970] 1 WLR 1469 and Chamberlain v de la Mare [1983] 4 FLR 434 is directed to cases in which parental roles are relatively clearly divided between a primary or custodial carer and a secondary or contact parent. It was not appropriate to apply that approach without qualification where care was shared substantially equally and the children relied on the ready availability of two adjacent homes.
3. In a shared-care case, relocation is likely to affect the children’s sense of security and welfare because it disrupts the established division of their lives between both homes. The mother’s strong personal desire to return to Ireland could not be treated as determinative.
4. The judge’s expectation that the existing voluntary arrangements would soon cease lacked a sufficiently clear evidential foundation. If that concern was material, it should have been put to the court welfare officer, who had investigated the arrangements and was available to respond.
5. The welfare officer had made an unusually clear and strong recommendation. The judge’s rejection of it was inadequately explained. The court was also left in doubt whether the judge had properly understood the guidance in the authorities.
6. The discretionary exercise was therefore flawed. The Court of Appeal had sufficient material to exercise the discretion afresh, including recent social-services evidence concerning the children’s distress at losing their relationships with their fathers and extended families. Remittal for rehearing was unnecessary. There was no order as to costs, save legal aid taxation of all parties’ costs.

• Court of Appeal (Civil Division): allowed the fathers’ appeals from the decision of His Honour Judge Brandt in the Colchester County Court, set aside the order granting leave to remove the children, and refused the mother’s application.