W v A

In an application to remove a child temporarily from the jurisdiction, the court must not automatically apply the demanding principles developed for permanent relocation. The shorter and more finite the absence, the less weight those principles carry. The court must assess welfare afresh, balancing the impact of refusal on the applying parent’s concrete career opportunity against the effect on the child and the other parent’s relationship. It should investigate practical direct and indirect contact arrangements. A real career opportunity, and the loss of employment or prospects if permission is refused, may benefit the child and must not be reduced to a lifestyle choice.

The mother and father shared care of their nearly four-year-old daughter. The mother sought permission to take the child to South Africa for two years while undertaking a PhD project requiring fieldwork there, with a return to Newcastle contemplated. Her Honour Judge Moir refused permission and made a joint residence order. On appeal, the mother accepted that the joint residence order should stand if permission were granted. The central issue was whether the judge had erred by applying the approach in Payne v Payne [2001] EWCA Civ 166 to a temporary removal, and by undervaluing the career consequences and practical contact arrangements.

The Court of Appeal unanimously allowed the appeal and granted the mother permission to take the child to South Africa. Further arrangements for contact were to be agreed, and there was no order as to costs.

1. Error of approach. The judge had applied the principles in Payne v Payne [2001] EWCA Civ 166, although she recognised that the proposed removal was temporary and that care was shared. The permanent-relocation authorities address the particular disruption, loss of familiarity and reduction in contact caused by permanent removal. They are not automatically applicable to temporary removal. The more temporary the removal, the less regard should be paid to them. This was an error of law which invalidated the exercise of discretion.
2. Welfare evaluation. The court could exercise the discretion afresh. The mother’s proposed absence was a concrete academic opportunity, not a speculative ambition. Its refusal would jeopardise her employment, PhD and future career. Her career development and fulfilment were relevant to the child’s welfare because the child could benefit from the mother’s future security and position. The discrimination argument based on Re B and Re S [2003] EWCA Civ 1149 was unnecessary; the point could be addressed through the welfare evaluation.
3. Contact. The court had to concentrate on practical methods of mitigating the temporary reduction in contact. These included visits in the United Kingdom and South Africa and indirect communication by telephone, email, text messages, DVD and digital photography. The finite nature of the absence and the prospect of resuming the father’s full relationship with the child were material.

Wall LJ added that parental cooperation and mutual respect were essential, and that a joint residence order could formally recognise the continuing parental responsibility of both parents. Those observations were supplementary because the appeal against the joint residence order was not pursued.

• Court of Appeal (Civil Division): [2004] EWCA Civ 1587. Appeal allowed, the refusal of permission set aside, and permission granted for the temporary removal to South Africa.
• Quayside Law Courts: Her Honour Judge Moir refused permission for the mother to take the child to South Africa and made a joint residence order.