W (A Child), Re

A decision on a child’s permanent relocation is a balanced discretionary welfare assessment. The applicant’s burden is proportionate to the strength of the factors opposing the move. The court must assess the actual relationship between the child and the non-resident parent. A prolonged interruption caused by illness may reduce the weight of the anticipated loss from relocation. The assessment need not depend on direct evidence of emotional distress in the resident parent, and refusal does not automatically establish emotional harm to the child. An appellate court should allow latitude for imperfections in an extempore judgment where the judge sufficiently explains the decision and applies the proper authorities. A headnote cannot impose a test that the reported judgments did not state.

The father became the child’s primary carer after the mother’s mental health deteriorated. Direct contact between mother and child ended in 2002, although indirect contact continued under an order made in February 2003.

The father applied for permission to remove the child permanently to Australia. The mother applied for renewed direct contact. After hearing evidence from the parents, the father’s intended wife, a social worker and considering a psychiatric report, the Stoke-on-Trent County Court granted the removal application and dismissed the mother’s application.

The mother appealed, alleging legal misdirection concerning relocation principles and insufficient evidence of the emotional impact of refusal on the father. The central issue was whether the judge’s welfare-based discretionary decision was legally flawed.

1. The appeal was dismissed. The judge had carefully assessed the evidence, the parties and the child’s welfare. The social worker’s concerns about the mother’s past contact, mental health and compliance with treatment supported the conclusion that renewed direct contact would be inappropriate and potentially harmful.

2. The judge had not adopted an impermissibly high test by referring to the formulation in the headnote to Poel v Poel [1970] 1 WLR 1469 that interference should occur only if absolutely essential. That expression did not appear in the judgments themselves. More importantly, the judge’s following paragraph made clear that he was primarily applying the more recent authority of Payne v Payne [2001] 1 FLR 1052. The direction was therefore not materially flawed.

3. The absence of direct evidence from the father about the emotional effect of refusing permission did not invalidate the decision. The court could evaluate the proposed relocation in its factual context. The father had longstanding and well-developed plans to emigrate, and the possibility of renewed direct contact was effectively the only impediment. The burden on the applicant was proportionate to the extent of the contrary factors.

4. The likely disadvantage to the child had to be assessed against the real history of the relationship. The mother’s illness and prolonged absence had already interrupted the natural relationship to such an extent that the judge was entitled to attach limited weight to the further disbenefit of relocation. Reintroducing contact shortly before the move could itself cause confusion and emotional harm.

5. The decision was a balanced discretionary judgment about the proposal best advancing the child’s welfare. The Court of Appeal would allow latitude for imperfections in an extempore judgment where the judge had explained the decision sufficiently and persuasively. The appeal was dismissed with costs against the Legal Services Commission under section 11, subject to detailed assessment of the appellant’s publicly funded costs.

1. Court of Appeal (Civil Division): Dismissed the mother’s appeal and ordered costs against the Legal Services Commission under section 11, with detailed assessment of the appellant’s publicly funded costs.
2. Stoke-on-Trent County Court: His Honour Judge Glenn granted the father permission to remove the child permanently to Australia and dismissed the mother’s application for direct contact.