J (children) , Re

In a relocation dispute arising within competing residence applications, the court must decide welfare on the realities of the family’s circumstances. The structured scrutiny of relocation plans described in Payne v Payne may have limited application where the central issue is which parent should provide primary care and relocation is the practical consequence of that choice. Practical and financial consequences may be given great weight. The effect of refusing relocation must be assessed whether the applicant is the father or the mother. A judge may reject further investigation or delay where the evidence permits a robust welfare decision and delay may worsen the children’s position or prospects of contact. An appellate court should not interfere with a permissible discretionary conclusion absent an error of law.

The parents had long-running cross-applications for residence concerning A and D. The father applied for permission to remove them to Bulgaria, where he had an employment opportunity and proposed family arrangements. The mother accepted that A should live with the father but opposed D’s removal. The youngest child, Au, was to remain with the mother.

Coleridge J granted the father permission to remove D on 23 November 2006. He rejected recommendations from the guardian and an expert that the issue should be postponed for further investigation. The mother appealed, arguing that the father’s plans were inadequately evidenced, that further investigation was essential, and that contact with her had not been sufficiently addressed. The central issue was whether the judge’s welfare-based conclusion was open to him on the evidence.

1. Appeal dismissed. Permission to appeal was granted. The judge’s order permitting D’s removal to Bulgaria was upheld.
2. The case was an unusual contest between competing residence applications. The relocation issue was not merely an application by a primary carer seeking to move abroad. The court had to choose between residence with the mother in England and residence with the father in Bulgaria. In those circumstances, the structured discipline described in paragraphs 40 and 41 of Payne v Payne had limited application.
3. The judge was entitled to give great weight to the practical consequences of refusing the application. The father’s financial crisis, the loss of family support, housing and schooling, and the employment opportunity in Bulgaria were relevant to the welfare assessment. The principle that the impact of refusal on the applicant must be assessed applied equally where the applicant was the father rather than the mother.
4. The judge had adequately explained why he rejected the guardian’s and Dr Gay’s recommendation for a period of further investigation. Delay would not necessarily clarify the evidence and might worsen the children’s welfare and future relationship with their mother. The proposed moratorium was also impracticable in light of the family’s financial circumstances and D’s strong wish to move with his father.
5. The appellate court would not interfere with an experienced judge’s evaluation of credibility and welfare choices where the conclusion was rational, robust and within the permissible ambit of discretion. Post-judgment questions concerning compliance with conditions or possible contempt belonged to the trial judge and were irrelevant to whether the conclusion was permissible when judgment was given.

1. High Court of Justice, Family Division: Coleridge J made an order on 23 November 2006 permitting the father to remove D to Bulgaria and determining the residence arrangements.
2. Court of Appeal (Civil Division): Permission to appeal was granted and the appeal was dismissed. [2006] EWCA Civ 1897