S (Children)

In a residence dispute involving proposed relocation, the court must assess the children’s welfare against the parents’ genuine plans and the practical consequences of each arrangement. The sincerity and motivation of a parent proposing a major change of life may be crucial. Where an alternative arrangement depends on the other parent’s continuing earnings, that financial dependence may properly form part of the welfare appraisal. In a relocation case, prospective finances are forecasts; the judge may evaluate them by informed guesswork and need not defer the residence decision until ancillary-relief proceedings, provided the assessment is sensible and evidence-based. An appellate court will be slow to interfere with such a discretionary evaluation absent a realistic prospect of success.

The parents appealed from cross-applications for residence orders concerning their two children. His Honour Judge Ryland had to choose between the mother’s proposal to relocate with the children to West Lothian and the father’s proposal that the children remain in London. Both parents accepted that the non-residential parent should have generous contact. The father challenged the decision, alleging gender discrimination and arguing that financial findings should have been left to the ancillary-relief proceedings. The central issues were whether the judge had properly evaluated the mother’s motivation and the practical and financial consequences of the competing residence proposals.

Application for permission to appeal refused. Lord Justice Thorpe delivered the substantive judgment, and Lord Justice Buxton agreed.

1. The residence decision involved a discretionary welfare jurisdiction. The appellate court was not persuaded that the proposed grounds had any realistic prospect of success.
2. The allegation of gender discrimination failed. The result depended on the evidence and on the practical consequences of the competing proposals, rather than on a presumption that residence should favour either parent. The judge’s crucial evaluation concerned the mother’s sincerity and motivation. He was entitled to accept that her wish to give up work and relocate was genuine.
3. The father’s proposal was substantially dependent on the mother continuing to earn high city earnings. If that financial contribution ceased, the proposal would not remain viable. That dependency was therefore relevant to the assessment of the children’s interests.
4. The judge was entitled to make financial findings in determining residence. The case was properly treated as a relocation case in which future financial circumstances could only be forecast. The judge could make an appraisal based on informed guesswork, and the residence inquiry did not have to await the later ancillary-relief hearing.

The order was that the application for permission to appeal be refused.

1. Court of Appeal (Civil Division): on 17 April 2002, the application for permission to appeal was refused: [2002] EWCA Civ 583.
2. Principal Registry of the Family Division: His Honour Judge Ryland heard the parents’ cross-applications for residence orders and determined that the mother’s relocation proposal was preferable.