SG v CG

In a child-relocation application, the court must assess the effect of refusal on the primary carer’s emotional welfare and parenting, not merely whether refusal will cause psychiatric damage. A prediction that the carer will adapt, or will try not to transmit unhappiness, may express judicial hope rather than establish a fact. The welfare balance must assess relocation plans realistically, including existing capital and financial support, and must avoid overstating speculative detriments where children are bilingual and contact can continue. A wish to control or restrict contact is not equivalent to an intention to defeat contact. Where material errors exist but adverse findings are limited, the appellate court may determine relocation in principle and remit only the consequential arrangements.

CG, the mother, sought permission to move the twins permanently from the jurisdiction to Buenos Aires. SG, the father, opposed the move and sought to preserve contact. After a two-and-a-half-day hearing, the Harrogate County Court refused the application on 6 October 2004, finding concerns about the mother’s motivation, the realism of her plans, and the effects of refusal and relocation. The mother appealed, arguing that the judge had applied too high a threshold by looking for psychiatric damage, had assessed her financial plans too cautiously, and had overstated detriments concerning contact and language. The central issue was whether the errors required a retrial or whether the Court of Appeal could grant permission in principle and settle the consequential arrangements.

Lord Justice Thorpe held, with Lady Justice Smith agreeing, that the appeal should be allowed.

1. The finding that the mother wished to control and, if necessary, restrict contact did not amount to a finding that she intended to defeat or extinguish contact. The judge had proceeded on the basis that future contact proposals would be honoured, although distance would reduce its frequency. The motivation finding therefore had limited consequence in the overall welfare assessment.
2. The judge’s assessment of the mother’s practical and financial plans was unduly cautious. He had overlooked the ability to supplement the children’s periodical payments with the mother’s approximately £100,000 investment capital. The proposed income was therefore not unrealistic merely because future earnings from self-employment were uncertain.
3. The assessment of the impact of refusal was materially misdirected. The issue was not confined to proof of psychiatric damage. The court had to consider the mother’s emotional welfare, her capacity to provide day-to-day parenting, and the likely effect of her unhappiness on the children. The statements that she would adapt and would do her best to prevent the transfer of unhappiness were expressions of judicial hope rather than findings of fact. The balance of authority indicated that transfer of unhappiness from primary carer to child was almost inevitable.
4. The judge had also overstated the supposed threat to the children’s English. They had been brought up bilingually, would retain regular contact with their father, and could attend a bilingual school.
5. A retrial was unnecessary. The adverse findings were materially weaker than those in B (Children) [2004] EWCA Civ 956. Permission to relocate was granted in principle, but implementation was deferred. Detailed arrangements for contact, a possible mirror order in Buenos Aires, bilingual education and its funding, cessation of the mother’s periodical payments, and travel costs were remitted to the Harrogate County Court unless agreed. Departure could not occur until those matters had been established.

1. Court of Appeal (Civil Division): [2005] EWCA Civ 170 allowed the appeal, granted permission to relocate in principle, and remitted all consequential issues to the Harrogate County Court unless agreed.
2. Harrogate County Court: On 6 October 2004, His Honour Judge Ibbotson refused the mother’s application for permission to remove the children permanently from the jurisdiction and refused permission to appeal.