M (Children), Re

In an application for permission to appeal a child-relocation and contact decision, the Court of Appeal held that a proposed move abroad is not necessarily impermissible merely because it would remove the other parent from the children’s lives. Where the applicant and children are genuinely fearful and reasonably seek escape from that parent’s influence, that motivation is distinct from a selfish desire to exclude him. Appellate intervention in welfare decisions remains limited to cases outside the judge’s discretionary bounds. Procedural concerns, including a short hearing, late assessment of a parent by CAFCASS and the absence of expert psychological evidence, did not establish a realistic prospect of success. Permission was refused.

The mother applied for leave to remove the two children permanently to France. The father applied for contact and opposed the relocation. The county court permitted the move, allowed the mother to withhold her French address and ordered only indirect contact.

The father filed his appeal late, after the children had moved to France. He sought permission to appeal and an extension of time, arguing that the hearing and assessment were inadequate, disputed domestic-abuse allegations had not been determined, and the children’s loss of contact with him and his wider family had not been properly addressed. The central issue was whether those matters gave the proposed appeal a reasonable prospect of success.

The application for permission to appeal, including the necessary extension of time, was refused. The proposed appeal had no reasonable prospect of establishing that the county court judge had acted outside the permissible boundaries of his discretion.

1. Relocation and motivation. The judge had directed himself in accordance with the leading authority, Payne v Payne [2001] Fam 473. A proposed relocation is not necessarily fatal merely because part of the applicant’s motivation is to place the new family unit beyond the other parent’s influence. Where the applicant and children are in real fear of that parent and reasonably seek escape from his sphere of influence, that is not the selfish desire to exclude the parent which may justify refusal.
2. Domestic-abuse allegations. There is generally no escape from adjudicating disputed domestic-violence issues where children refuse contact by reference to their experience of, or exposure to, such violence. Here, however, counsel had agreed that the judge need not determine those issues. The father therefore faced substantial difficulty in complaining on appeal that they had not been adjudicated. The agreement left the explanation for the children’s rapid change in attitude thin, but did not demonstrate an appealable error.
3. Evidence and procedure. The short hearing, the fact that the CAFCASS officer had not interviewed the father before preparing her reports, the absence of an expert psychological assessment and the failure to address fully the children’s wider paternal family were matters of concern. The court nevertheless could not say that expert assessment was essential or that those matters took the decision outside the judge’s discretion. The judge was entitled to rely on the children’s genuine and entrenched opposition to contact and the officer’s assessment of it.
4. The mother’s relocation proposals were realistic, and the children had already moved to France. In those circumstances, the court refused permission for the appeal to proceed. The formal order was: application refused.

• Court of Appeal (Civil Division): On 19 October 2007, Lord Justice Wilson refused permission to appeal and the necessary extension of time.
• Taunton County Court: On 8 March 2007, His Honour Judge Bromilow granted the mother leave to remove the children permanently to France and ordered indirect contact only.