B (A Child)

In a proposed international relocation case, the child’s welfare remains paramount. The judge must examine the applicant’s motives and practical proposals, then balance the impact of refusal on the primary carer against the child’s disadvantage from reduced contact with the other parent. A judgment should address those matters sufficiently fully and specifically. However, an appellate court may refuse permission where any procedural deficiency would make no practical difference, particularly where the relocation has occurred, contact arrangements are operating, and reconsideration would inevitably produce the same result.

The father sought permission to appeal against a Coventry County Court order granting the mother permission permanently to remove their young child to Spain, while making residence and contact arrangements. Wall J adjourned the permission application for an oral hearing, identifying an arguable deficiency in the judge’s analysis of relocation authorities and the proposed circumstances abroad. Before the Court of Appeal, the father challenged the fact-finding and alleged that the judge had misunderstood or misapplied Payne v Payne. The central issues were whether the judge had properly applied the relocation test and whether the case should be remitted for reconsideration.

1. Permission refused. The Court of Appeal refused the father’s application for permission to appeal.
2. The complaints about fact-finding were substantially quibbles over phraseology. The judge had a sufficient understanding of the essential facts to apply the appropriate legal test.
3. In relocation cases, welfare is paramount. The judge must first consider the applicant’s motives and practical proposals. If those matters are satisfactory, the judge must conduct a discretionary balancing exercise. That requires weighing the effect of refusal on the primary carer against the detriment to the child arising from reduced time and proximity with the other parent.
4. The judge’s reasoning was open to serious criticism because the balancing exercise was stated too perfunctorily. In particular, the judgment did not fully set out the impact of refusal on the mother’s capacity to care for the child or the detriment caused by diminution of the child’s relationship with the father.
5. Remittal would nevertheless be impractical and pointless. The mother and child had already relocated, a new regime had been established, and contact was operating. The judge’s assessment of the parents’ differing qualities, supported by the Children and Family Reporter’s view, made it transparently clear that reconsideration would reach the same conclusion.

• Court of Appeal (Civil Division): Permission to appeal refused. The decision under appeal was an order of the Coventry County Court, made by Her Honour Judge Fisher, granting the mother leave permanently to remove the child from the jurisdiction.
• High Court: Wall J adjourned the father’s permission application for an oral hearing, stating that the adequacy of the lower court’s analysis was open to argument.