B (Children), Re

The welfare of the children remains paramount in relocation cases. There is no separate category for a move based on lifestyle preference. One standard applies, although each case depends on its facts. The judge must assess the applicant’s explanation for the proposed relocation and include it in the welfare balance. The judge must also make a full and independent assessment of the likely emotional and psychological impact on the primary carer of refusing the application, giving that factor appropriate weight. A carer’s compliance with existing contact orders does not itself justify criticism for failing to offer additional contact. Where the trial judge’s reasoning is materially flawed but factual findings depend on oral evidence, the proper course may be a retrial rather than substitution of the appellate court’s own decision.

Following the parents’ separation and divorce, the mother sought permission to relocate her two daughters from England to Australia after her remarriage. The father opposed the application, particularly because relocation would substantially affect his regular and frequent contact with the children.

The Kingston-upon-Hull County Court refused the relocation application and permission to appeal. The Court of Appeal treated the hearing as the appeal itself. The central issues were whether the judge had properly assessed the consequences for the mother of refusal, whether the proposed future contact arrangements had been evaluated correctly, and whether a lifestyle-based relocation required a different legal approach.

1. Disposition. Lord Justice Thorpe gave the leading judgment. The appeal was allowed and the case was remitted for a retrial. Lord Justice May and Lord Justice Scott Baker agreed. There was no order for costs.
2. Contact. The trial judge had treated the mother’s failure to offer additional contact, beyond contact already ordered and complied with, as potentially adverse. That was an erroneous principle. A primary carer is not necessarily or automatically open to criticism for observing the court’s existing boundaries. The relevance of any additional offer depends on the facts and circumstances of the individual case.
3. Impact on the primary carer. The discipline identified in Payne v Payne [2001] 1 FLR 1052 required a full assessment of the impact on the mother, whether a single parent or a new wife, of refusing a realistic relocation proposal. The related guidance in paragraph 41, concerning the emotional and psychological well-being of the primary carer and the great weight to be given to it in the welfare evaluation, formed part of that discipline. The trial judge had noted the mother’s evidence but had not independently assessed its impact. His conclusion that devastation would become manageable disappointment was no more than a hope for the future. The court found the criticism inadequate in the light of Lonslow v Hennig [1986] 2 FLR 378.
4. No separate lifestyle category. The suggested distinction between ordinary relocation cases and lifestyle-choice cases was rejected. Lonslow v Hennig had applied principles developed in Poel v Poel [1970] 1 WLR 1469 and extended in Moody v Field and Chamberlain v de la Mare [1982] 4 FLR 434. Re C [2003] 1 FLR 1066 also deprecated the creation of sub-classes attracting different principles. One standard therefore applied to all such cases, with the applicant’s explanation for the fundamental relocation assessed as part of the welfare balance.
5. Other evidence and appellate disposal. The judge had also built extensive criticism on the mother’s response to a hypothetical question about the children failing to settle after relocation. Lay people may find such questions confusing, and the answer did not justify the inferences drawn. The Court of Appeal declined to substitute its own outcome because it had not heard the witnesses. Since the path to the decision was materially flawed, a retrial was the only principled disposal, preferably before a judge with specialist experience.

• Court of Appeal (Civil Division) [2004] EWCA Civ 956: appeal allowed and retrial ordered.
• Kingston-upon-Hull County Court: His Honour Judge Dowse refused the mother’s relocation application and permission to appeal in a judgment handed down on 28 January.