Mr E v Mrs E

Where a proposed parental move would substantially affect children’s residence and their relationship with the other parent, the court must decide the welfare consequences itself. It must rigorously examine the proposal and balance its benefits, and the effect of refusal on the relocating parent, against the disruption to the children’s relationship with the other parent. The absence of a need for formal leave to move does not remove that duty.

Financial relief must follow, and be tailored to implement, the residence decision. A financial order must comply with the principles of non-discrimination and equality, and any substantial departure from equality requires an explained justification.

The parties had four children and were subject to a shared residence order made in 2004. Their time was initially divided on a near-equal basis. The mother later sought to move from Bognor Regis to Bexhill with a new partner and their expected child. She also sought sale of the former matrimonial home.

On 7 December 2005, the Chichester County Court retained shared residence but provided that, after the academic year, the children would live with the mother during term time and with the father for two thirds of school holidays. It also ordered sale of the home and made ancillary financial provision. Both parties appealed. The central issues were whether the residence arrangements properly addressed the proposed move and whether the financial order was sustainable.

1. Both appeals were allowed. The shared residence order was left standing, but the provisions governing the division of the children’s time and the ancillary-relief order were set aside. The parties’ applications were remitted for rehearing before a High Court judge of the Family Division.

2. The county court judge had wrongly left the mother to decide when to implement her move to Bexhill. This abdicated the court’s responsibility to decide what welfare outcome served the children’s best interests. By analogy with the relocation principles stated in Payne v Payne, [2001] Fam 473, the judge had to scrutinise the proposal and balance its benefits, and the consequences for the mother if it were refused, against disruption to the children’s relationship with their father. The fact that the mother did not require formal leave to move within England was immaterial.

3. The judge had not undertaken that balancing exercise. He had not analysed the benefits and detriments of the move, its effect on the father’s relationship with the children, or whether its advantages outweighed that effect. He also failed to investigate allegations which could bear materially on the relationship between the father and one child, despite treating that relationship as especially important.

4. The reduction from near-equal shared residence to term-time residence with the mother and holiday residence with the father was unexplained. It radically reduced the children’s time with their father and provided no intermediate term-time contact. It was therefore unsustainable.

5. The financial order was internally inconsistent. It both made no order as to costs and required the mother to pay the father a sum equal to his costs. Its practical effect gave the father about 64.8% of the parties’ realisable assets. Applying White v White, [2001] 1 AC 596, the order discriminated against the mother and departed radically from equality without explanation. Financial provision had to be determined after, and tailored to implement, the residence decision.

6. There was no order as to the costs of the appeals, save for detailed assessment of each party’s publicly funded costs.

• Court of Appeal (Civil Division): By [2006] EWCA Civ 843, both appeals were allowed. The residence-time and financial orders were set aside and the applications remitted for rehearing before a High Court judge of the Family Division.
• Chichester County Court: On 7 December 2005, HH Judge Barratt QC retained shared residence, varied the practical division of the children’s time, and made an ancillary-relief order requiring sale of the former matrimonial home.
• Chichester County Court: In July 2004, HH Judge Barratt QC made the original shared residence order. A district judge made a consent order on 7 October 2004 regulating the division of the children’s time.