B & Anor (children), Re

In an application by a primary carer to relocate with children, the court must evaluate not only practical arrangements and contact, but also the effect of refusal on the new family and the step-parent or prospective step-parent. That factor may be decisive where the partner’s work, nationality, family ties or immigration status makes life abroad the natural future of the family. This does not prefer adult interests to the children’s welfare. The question remains whether the children’s welfare can be secured within a stable and viable family unit. A trial judge must assess the primary carer’s emotional and psychological response to refusal and give clear reasons before rejecting unchallenged evidence. Where the evidence is sufficient, the appellate court may exercise its own discretion and grant relocation while safeguarding meaningful contact with the left-behind parent.

The Court of Appeal heard two appeals concerning applications by primary-care mothers to relocate with children. In B (Children), the Cambridge County Court granted the mother residence but refused permission to relocate with the children to South Africa to live with her partner. In S (Child), the Luton County Court refused the mother permission to relocate with her son to Australia, where she intended to marry her partner.

Both appeals challenged the trial judges’ application of the relocation guidance and their assessment of the effect of refusal on the mothers, their partners and the children. The central issue was how the welfare evaluation should treat the prospects of the new family unit, particularly where the step-father or prospective step-father’s work, nationality or family connections pointed abroad.

Disposition. Thorpe LJ delivered the leading judgment, with which Judge LJ and Sedley LJ agreed. Both appeals were allowed. In B (Children), permission to relocate to South Africa was granted subject to the mother’s proposed liberal contact arrangements. In S (Child), permission to relocate to Australia was granted, including provision for substantial contact over Christmas and the New Year.

1. The relocation guidance in Payne v Payne [2001] EWCA Civ 166, also reported at [2001] 1 FCR 425, was principally directed to cases where a primary carer sought to return to her country of origin. Its guidance did not sufficiently emphasise the effect of refusal on a new family and the step-father or prospective step-father. The guidance was therefore extended.
2. The welfare assessment must include the practical arrangements for the children’s homes, schooling, medical care, maintenance and education. It must also evaluate the effect of refusal on the mother, the new family and the step-father or prospective step-father. The natural gravitation of a new family may be decisive, especially where a foreign national’s work, history, family ties and loyalties point to another jurisdiction.
3. This approach does not place an adult’s interests above the children’s welfare. Relocation may be refused where it is driven by a selfish relationship potentially injurious to the children. In B (Children), however, there was no evidence of that kind, and the trial judge had wrongly speculated about the fragility of the relationship after accepting that it would survive refusal.
4. In S (Child), the trial judge failed properly to evaluate the mother’s clear and unchallenged oral evidence that refusal would seriously affect her well-being and her ability to parent. The omission of that evidence from her written statement did not justify disregarding it. A conclusion based on demeanour or presentation would have required clear and strong reasoning.
5. Where the appellate court has sufficient evidence to exercise its own discretion, it may determine the relocation application rather than order a retrial. A retrial was unnecessary where it would cause delay, expense and continuing stress, and the court did not need to investigate the partner’s willingness or ability to immigrate to the United Kingdom.
6. The court should make liberal and worthwhile contact arrangements with the fathers. Sedley LJ additionally observed that substantial periods of residence may preserve parental bonds more effectively than brief intermittent contact, while recognising that the children would eventually be able to make their own choices.

The approach was consistent with the policy of the Children Act 1989 favouring a stable and viable family unit in which children can grow up.

1. Court of Appeal (Civil Division): Both appeals were unanimously allowed. Permission to relocate was granted in each case, subject to liberal contact arrangements with the fathers.
2. Cambridge County Court: Residence was granted to the mother, but her application for permission to relocate with the children to South Africa was refused.
3. Luton County Court: The mother’s application for permission to relocate with her son to Australia was refused.