S (Children), Re

In child-relocation cases, the principles governing an application to move children abroad do not cease to apply merely because the proposed move is described as a lifestyle choice rather than as compelled by hardship. The court must assess the application in the light of the child’s welfare, the relocating parent’s genuine and practicable plans, the likely effect of refusal, and the arrangements for maintaining the children’s relationship with the other parent. A trial judge must avoid allowing the anticipated reduction in contact to obscure or contradict findings that support relocation. Where the decision below contains a material misdirection and is plainly wrong, the appellate court may allow the appeal. Permission to relocate may properly be made conditional upon contact arrangements being settled by agreement or further order.

The mother appealed from an order made by Mr Recorder Dobbin in the Huddersfield County Court on 7 October 2004 refusing permission to relocate with the parties’ two young children from Yorkshire to the Alicante area of Spain. The recorder accepted that her plan was genuine, practical and made in good faith, but refused permission principally because contact with the father would diminish and become expensive. The father supported the refusal and sought a retrial if the appeal succeeded. The central issues were whether the recorder had misdirected himself by treating the proposed move as a lifestyle choice and how the appellate court should deal with the future contact arrangements.

1. Appeal allowed. The recorder’s findings that the mother was an impressive and credible witness, that her proposal was genuine and practicable, and that refusal would have a significant emotional impact were difficult to reconcile with his conclusion that the likely reduction in contact required refusal.
2. The recorder materially misdirected himself by treating the proposed move as a voluntary lifestyle choice. The principles identified in Payne v Payne [2001] EWCA Civ 166 applied. Even if the application had been a pure lifestyle choice, that description would not remove those principles from consideration.
3. The court also considered the history and quality of the father’s contact, his work arrangements and the evidence concerning travel costs. The question was not simply whether contact would become more difficult, but how the future relationship between father and children could be maximised on an objective and workable basis.
4. On the facts as found, the recorder’s approach was wrong in law and his conclusion was plainly wrong. A full retrial was not inevitable. The issue of principle was decided in the mother’s favour, but the children’s departure was deferred until contact arrangements in Spain had been clearly defined and settled, either by agreement or by further order.
5. Permission to relocate was granted, but it was not to be implemented until the contact order had been entered by consent or otherwise. The court added that such cases should, where practicable, be reserved to a designated judge in the care centre. There was no order as to costs.

• Court of Appeal (Civil Division): Appeal from the Huddersfield County Court order of 7 October 2004. Permission to relocate was granted, but implementation was deferred until contact arrangements had been settled by consent or further order.
• Huddersfield County Court: Mr Recorder Dobbin refused the mother’s application to relocate with the children to Spain.