B (Children)

In a child-relocation appeal, the appellate court must respect the trial judge’s discretionary welfare evaluation. It must not substitute its own view merely because it might have reached a different conclusion. Intervention requires an identifiable error or an unprincipled exercise of discretion. A finely balanced case may properly produce different views from different judges. The trial judge must evaluate the evidence personally, including the children’s wishes and feelings, likely adjustment, education, contact with the other parent, and the consequences of refusal for the primary carer. Where those matters have been conscientiously balanced and the reasons are sound, personal disquiet about the result cannot justify appellate interference.

The mother applied for permission to remove her two sons from England to France, where her husband proposed to establish a farm. The father opposed the application and sought a residence order if the mother left. A CAFCASS officer initially expressed a finely balanced view but later supported removal, while maintaining concerns about contact. After hearing the evidence, Milton Keynes County Court, His Honour Judge Horowitz QC, refused the mother’s application in a judgment dated 31 May 2006. The mother appealed, alleging that the judge had undervalued the consequences of refusal and overvalued the existing contact arrangements. The central issue was whether the judge’s discretionary welfare assessment disclosed an appealable error.

Disposition. Lord Justice Thorpe gave the leading judgment, with Lord Justices Latham and Wall agreeing. Permission to appeal was granted because the consequences for both families were fundamental, but the appeal was dismissed.

1. The appellate court’s power to interfere with a trial judge’s exercise of discretion is limited. It must not substitute its own discretion merely because it might have reached a different conclusion. Intervention requires an identifiable error or an unprincipled exercise of discretion. The warning against unprincipled interference in Piglowska v Piglowski [1999] 1 WLR 1360 was applied.
2. The trial judge had conducted the necessary balancing exercise. He considered the elder child’s wishes and feelings, the change from an urban to an isolated rural environment, adjustment to a different educational system, the quantity and quality of contact with the father, and the likely effect of refusal on the mother and the children.
3. The CAFCASS officer’s changed recommendation was an important evidential consideration, but the ultimate evaluation was for the judge. The judgment showed that he understood the officer’s concerns and assessed them against the risks of the proposed move, including isolation, adjustment difficulties and the children’s possible failure to settle.
4. A minor possible error concerning alternative farming arrangements was immaterial. The Court of Appeal’s own concern about the outcome, and the possibility that another judge might have decided differently, did not establish an appealable error. The judge’s reasoning was careful and principled.

The parties were encouraged to re-evaluate their arrangements in light of the outcome and to consider mediation if necessary. Order: appeal dismissed.

1. Court of Appeal (Civil Division) — On appeal under [2006] EWCA Civ 1245, permission was granted and the appeal was dismissed.
2. Milton Keynes County Court — His Honour Judge Horowitz QC refused the mother’s application for permission to remove the children to France in a judgment dated 31 May 2006.