B (Children)

In a child-relocation dispute, the approach associated with Payne v Payne [2001] 1 FLR 1502 is directed to a contest between relocation and retention within the jurisdiction. It does not control where both proposed outcomes involve relocation abroad and the parent seeking relocation has not advanced continuation of the existing arrangements. The issue must then be determined under section 1 of the Children Act, with welfare first and paramount and all relevant circumstances weighed. A primary carer’s history is important but not decisive. It must be assessed against the proposed environment, including language, relationships and contingencies if plans fail. An appellate court should not substitute its own welfare assessment for the trial judge’s absent an error of law or principle. A fallback case expressly rejected below should not be introduced opportunistically on appeal.

The parents had two children and lived apart following the breakdown of their marriage. The mother sought permission to relocate with the children from England to the Netherlands. The father opposed that application and, through his evidence, advanced residence of the children with him in Dubai, together with permission to remove them there. The county court granted the father a residence order and permission to remove. The mother appealed, relying on Payne v Payne, the children’s established care by her, and the alleged inadequacy of the judge’s reasoning. She also sought to raise continued residence in England as a third option. The central issues were whether the judge had applied the wrong relocation approach, failed properly to assess welfare, or should have considered the new alternative on appeal.

Disposition

Permission to appeal was granted, but the appeal was dismissed unanimously. The orders granting the father residence and permission to remove the children to Dubai stood.

1. Thorpe LJ held that the proposed third option, namely continuation of the established arrangements in England, had not been put before the county court. The mother had expressly instructed counsel not to advance it. It was therefore unprincipled to admit fresh evidence or permit that case to be developed for the first time on appeal, particularly where it emerged only in response to the court’s questioning.
2. The judge was entitled to treat Payne v Payne [2001] 1 FLR 1502 as inapplicable. That authority concerned a dispute in which the caring parent sought to relocate and the other parent sought to keep the children within the jurisdiction. Here, both alternatives involved relocation abroad. The case therefore fell to be decided under section 1 of the Children Act by a careful application of the welfare checklist.
3. The welfare assessment required all relevant considerations to be weighed, with the children’s welfare first and paramount. The mother’s role as primary carer was important but was only one aspect of the status quo. It had to be assessed in the context of the proposed environment, including the parents’ relationships, the children’s lack of Dutch, the comparative uncertainties, and what might occur if the proposed arrangements failed. The judge was not required to explain a departure from the CAFCASS officer’s position because she had made no substantive recommendation.
4. Scott Baker LJ and Wall LJ emphasised that an appellate court must not substitute its own discretion for that of the trial judge. Intervention requires an error of law, misdirection, or failure to take account of a relevant consideration. No such error was established. Wall LJ added that continuing parental cooperation and the maximum practicable contact with the mother were important to ameliorating the difficulties of relocation.

• Court of Appeal (Civil Division): Granted permission to appeal and dismissed the appeal.
• Middlesbrough County Court (His Honour Judge Bryant): Granted the father a residence order and permission to remove the children to Dubai.