C-G (Children), Re

In relocation cases, the trial judge retains the discretion and responsibility to assess parental motivation, resilience, the children’s relationships and the consequences of relocation or refusal. An appellate court should not grant permission merely because another judge might have reached a different conclusion. Permission is inappropriate where the challenge does not disclose a legitimate basis for interfering with the trial judge’s evaluative decision and has no realistic prospect of success. A fresh application may be appropriate where family circumstances materially change over time.

Following the breakdown of the parents’ marriage, the mother applied in the Brighton County Court for permission to relocate with the children to her home town in Spain. The application was supported by the court welfare officer but was refused by His Honour Judge Hayward.

The mother sought permission to appeal, alleging that the judge had undervalued the impact of refusal on her, given insufficient weight to the elder child’s wishes, and wrongly attributed to her a motive of excluding the father from the children’s lives. The central issue was whether the judgment disclosed an arguable basis for appellate intervention.

1. Application refused. The judge had directed himself by reference to the principles in Payne v Payne [2001] 1 FLR 1052, and there was no doubt that the correct principles had been applied.
2. The judge’s conclusion followed a comprehensive balancing exercise. He considered the impact of refusal on the mother, the effect of an unhappy mother on parenting, the children’s relationship with the father and his extended family, and the likely consequences of relocation. Those evaluative assessments were matters for the trial judge.
3. The fact that another judge might easily have reached the opposite conclusion was not a legitimate basis for permission to appeal. The discretion rested with the judge at trial, together with the responsibility for assessing adult motivation and resilience.
4. The established relocation guidance in Poel v Poel [1970] 1 WLR 1469 had endured, and its compatibility with the Human Rights Act had been reviewed in Payne v Payne. The present decision did not displace those principles.
5. As a practical matter, the mother’s prospects might be improved by making a fresh application in the trial court after a reasonable interval. Family dynamics were not static, and a later judge would have to consider the position afresh. The application was therefore refused.

• Brighton County Court: His Honour Judge Hayward refused the mother’s application to relocate with the children to Spain.
• Court of Appeal (Civil Division): The application for permission to appeal, renewed after provisional refusal on paper, was refused. Mr Justice Harrison agreed with Lord Justice Thorpe.