B (A Child), Re

At the permission stage, an arguable challenge that a first-instance judge inadequately analysed an application to remove a child from the jurisdiction may justify an inter partes oral hearing, particularly where the opposing party has not been heard. The permission application may be adjourned, with any appeal to follow if permission is granted. A discretionary residence decision supported by careful consideration of the welfare checklist presents a substantial obstacle to permission, especially where a proposed shared-residence arrangement was not argued below. The child's welfare remains paramount in a removal application, and contact arrangements require careful consideration.

The father applied for permission to appeal from an order made by Her Honour Judge Fisher in the Coventry County Court on 22 January 2002 concerning the residence of H, contact, and the mother's proposed move with him to Spain. The judge made a residence order in favour of the mother and approved contact arrangements agreed between the parties. The father argued that the court should have made a shared-residence order and challenged the adequacy of the judge's analysis of the proposed removal from the jurisdiction. He also identified Human Rights Act arguments which were not reached. The central question was whether the application should proceed to an inter partes hearing.

1. Disposition. The application for permission to appeal was adjourned for oral argument on notice to the mother's advisers, with an appeal to follow if permission was granted. The respondent had not appeared or been represented at the hearing.
2. Residence. The proposed shared-residence argument had apparently not been made before the trial judge. That was a substantial difficulty. The residence decision was discretionary and was plainly based on a careful examination of the welfare checklist under section 1 of the Children Act. The judge indicated that the residence ground would probably be dealt with shortly by the full court and might not result in permission being granted.
3. Removal from the jurisdiction. The trial judge had treated the child's welfare as paramount and had recognised the importance of contact. Nevertheless, it was arguable that her analysis of the relevant authorities and her investigation of the circumstances in which the mother and child would live abroad were insufficient. That issue warranted consideration at an inter partes hearing so that the other side could respond.
4. The court did not determine whether permission should ultimately be granted or whether the appeal would succeed. The adjournment was procedural and was not intended to raise false expectations about the merits.

• Court of Appeal (Civil Division): On an application for permission to appeal, the court adjourned the application for an inter partes oral hearing, with appeal to follow if permission was granted: [2002] EWCA Civ 1338.
• Coventry County Court: Her Honour Judge Fisher made an order on 22 January 2002 concerning residence, contact and the mother's proposed relocation of the child to Spain.