I (Children), Re

A parent with a residence order is ordinarily free to choose where to live and exercise parental responsibility. The court should restrict that choice only in the most exceptional circumstances. In deciding relocation and contact applications, the court must address the welfare checklist, including the children’s wishes and feelings, and must fairly weigh both benefits and disadvantages. Important decisions should not be made on evidence to which the opposing parent has had no proper opportunity to respond. Where procedural unfairness is combined with a material failure to perform the welfare assessment, the appropriate course may be to set aside the order and direct a prompt retrial.

The father appealed from an order made by Her Honour Judge Pearce in the Luton County Court on 7 May 2002. The order permitted the mother to move with the three children from Letchworth to Linton, dismissed or rejected the father’s competing residence case, and reduced his staying contact.

The mother’s proposed move had changed shortly before trial. Her revised evidence and a substantial exhibit were served immediately before the hearing. The father was absent through alleged medical unfitness, and the judge refused an adjournment. The central issues were whether the hearing should have proceeded, whether relocation and residence could fairly be decided on the evidence available, and whether the children’s wishes and feelings had been properly considered.

1. Appeal allowed. The order of 7 May 2002 was set aside and a retrial was ordered, to proceed as swiftly as possible.
2. A parent holding a residence order is ordinarily free to choose the area in which parental responsibility and caring functions will be exercised. The court should not circumscribe that choice save in the most exceptional circumstances. The court must nevertheless weigh the opposing parent’s case, the need for continuity of care and schooling, and the children’s wishes and feelings.
3. The judge should have investigated whether the father had received proper notice of the mother’s revised relocation case and had a fair opportunity to answer it. The refusal to adjourn was particularly important because the revised evidence was served immediately before trial and included contentious matters.
4. Contact could not properly be reduced on the evidence of one parent alone where the other parent had no opportunity to respond. The issue should have been severed and separately determined if necessary.
5. The judge’s welfare analysis was materially defective. Although she asserted that she had considered the welfare checklist, she did not expressly address the children’s wishes and feelings or the disadvantages of losing proximity to their father’s home. The same omission affected the decision on future contact.
6. The combination of possible procedural injustice and the failure to perform the essential welfare balancing exercise required a retrial of the relocation, residence and contact issues. The Court recognised the adverse consequences of delay and expense and directed that the rehearing be expedited.

• Court of Appeal (Civil Division): The appeal from the Luton County Court order of 7 May 2002 was allowed. The order was set aside and the issues were remitted for retrial.