M-K (A Child)

In child relocation cases, the court must evaluate the relocating parent’s proposals, the likely effect on the child’s relationship with the left-behind parent, and the effect of refusal on the relocating parent and child.

An appellate court may intervene in a discretionary welfare decision where the judge’s reasoning is substantially flawed, including through unfair credibility findings, material misunderstandings of evidence, or failure to consider relevant benefits to the child. Relocation may be granted in principle while consequential contact arrangements are supported by further evidence and protective orders.

The mother, a Brazilian national, applied to relocate with her young daughter to Brazil, where she would receive family support and pursue legal work. The father opposed relocation and sought parental responsibility, residence and contact orders.

Following a hearing before Hogg J in the Family Division, the application to relocate was refused and a shared residence order was made, with most of the child’s time spent with the mother. The mother appealed, challenging the judge’s assessment of her credibility, the practical evidence supporting her proposals, the evidence of the CAFCASS officer, and the likely impact of refusal. The central issue was whether the judge’s discretionary decision was substantially flawed and whether relocation should be granted in principle.

1. Appeal allowed. The application for permission to appeal succeeded. Relocation to Brazil was granted in principle, subject to further evidence and the making of strong consequential contact orders.
2. Lady Justice Arden agreed with Lord Justice Thorpe that the appellate court should not interfere merely because it might have reached a different welfare decision. Intervention was justified because the judge’s exercise of discretion was substantially flawed and fell outside the generous ambit within which reasonable disagreement was possible.
3. The judge was not entitled to make highly damaging findings about the mother’s honesty and credibility without putting the alleged inaccuracies to her and giving her a fair opportunity to explain them. That was particularly important because she was giving evidence in a second language and the issue had not formed part of the father’s case. The resulting credibility finding improperly affected the assessment of other evidence.
4. The judge had also misunderstood or overlooked material evidence. She attributed reservations to the CAFCASS officer which were not supported by the report or oral evidence, and failed properly to account for evidence that the mother’s Brazilian employment proposals had been clarified. The judge further failed to consider the loss of the mother’s professional prospects and the consequent benefits to the child.
5. Lord Justice Wilson identified, by reference to Payne v Payne [2001] 1 FLR 1052, three matters requiring particular consideration in an appropriate relocation case: the reasonableness and practicality of the proposals; the likely continuation or loss of the child’s relationship with the father; and the effect on the mother of refusal. The errors in each area undermined the refusal.
6. A full retrial was unattractive and unnecessary. The parties were to have an opportunity to file evidence about the proposed arrangements. Strong orders in England and Wales and Brazil were required to protect the father’s relationship with the child and the child’s relationship with her English heritage.

• Court of Appeal (Civil Division) — Permission granted and appeal allowed. The relocation application was granted in principle, subject to further evidence and consequential contact arrangements.
• Family Division, Principal Registry — Hogg J refused the mother’s relocation application and made a shared residence order, with most of the child’s time spent with the mother.