N (Children)

In a child-relocation case, the residence decision must be kept distinct from the permission-to-remove decision. A pragmatic conclusion on relocation is unsustainable where it is unsupported by the judge’s findings and reasoning. The court must address the practical consequences of relocation, including its effect on sibling and parental relationships, the child’s wishes and feelings, and the proposed care arrangements. Where the appellate court cannot fairly complete the welfare assessment, particularly because the case has materially changed, it should set aside the relocation and consequential contact orders and remit the matter for rehearing.

The parents had two children. Following the mother’s return from Canada with the children, the family proceedings included applications for residence and permission to relocate C to Canada. HHJ Mayer had granted residence to the mother, but later made an interim order placing C with the father. At the subsequent trial, HHJ Pearlman granted residence of C to the father and permitted a trial relocation to Canada, while S remained with the mother.

The mother appealed. The central issues were whether the judge’s reasoning adequately supported relocation and whether this court could substitute its own welfare orders after the father withdrew a concession that he would remain in England if relocation were refused.

1. Appeal allowed. Permission to appeal was granted. The order permitting C’s relocation to Canada and the ancillary contact orders were set aside.
2. Per Lord Justice Thorpe, with Lady Justice Arden and Lord Justice Wilson agreeing, the judge had treated the practical difficulty of returning C to his mother as decisive when determining residence. That consideration did not answer the separate relocation question, because the father had accepted that he would remain in England and provide C’s primary home if relocation were refused.
3. The relocation decision required a properly reasoned evaluation of the relevant welfare considerations. These included the proposed Canadian home and care arrangements, C’s wishes and feelings, the true relationships between C, his father and his mother, and the effect of separating C from S. The judge had found that separation would emotionally harm both children, yet her conclusion granting relocation was only sparsely rationalised and was not supported by her findings and reasoning.
4. The appellate court was not in a position to complete the forensic process by substituting residence and contact orders. The father’s withdrawal of his earlier concession created circumstances which had not confronted the trial judge. The matter therefore required further trial, although HHJ Pearlman’s existing findings were to stand.
5. The remitted hearing was to be expedited. The court directed separate representation for C, provisionally considered a CAFCASS guardian appropriate for S, and directed an urgent expert appraisal of the family dynamics and C’s wishes and feelings.

1. Court of Appeal (Civil Division) — [2006] EWCA Civ 872: permission to appeal granted and appeal allowed. The relocation and ancillary contact orders were set aside, with the welfare issues remitted for further trial.
2. Family Division, Principal Registry — HHJ Pearlman granted residence of C to the father and tentative trial permission for relocation to Canada, with review and contact arrangements.