G (children), Re

On an application to relocate children abroad, their welfare is paramount and no presumption favours the applicant parent. The court must scrutinise the applicant’s motivation and proposals, while weighing the effects of refusal, reduced contact and the available arrangements for continuing contact.

The principles in Payne v Payne remain binding and applicable where the children spend substantial time with both parents or are subject to a joint residence order. An appellate court should not substitute its assessment where the trial judge applied the correct principles, evaluated the evidence fairly and reached a sustainable discretionary decision.

Following the breakdown of their marriage, the father sought a joint residence order for two children and the mother sought permission to relocate with them from London to Germany. His Honour Judge Collins CBE granted both applications and determined the arrangements for the father’s continuing contact. The father sought permission to appeal after the judge refused permission.

The father contended that the relocation principles in Payne v Payne were outdated or frequently misunderstood, particularly where care was substantially shared. He also challenged the judge’s treatment of the CAFCASS officer’s evidence and several factual findings. The central issues were whether the established relocation principles required restatement and whether the judge’s balancing exercise disclosed an arguable error.

1. Application for permission to appeal refused. The established relocation principles in Payne v Payne remained binding on the Court of Appeal. No self-evident social shift justified their reconsideration. The principles were well understood and continued to assist trial judges, including in cases where children spent substantial time with both parents.
2. The governing considerations were that the children’s welfare was paramount and that section 13(1)(b) of the Children Act 1989 created no presumption in favour of the applicant parent. Reasonable relocation proposals carried great weight but required careful scrutiny. The court had to examine motivation and weigh the effects of refusal, the loss of direct contact and the opportunities for continuing contact.
3. The earlier acceptance that joint residence orders were not exceptional was already established when Payne v Payne was decided. Joint residence formed part of the trial judge’s available range of orders. Its increased use therefore did not undermine the relocation principles.
4. The trial judge had applied the correct law and conducted the required welfare balancing exercise. He was entitled to find that the mother’s proposals were genuine, reasonable, sensible and realistic. He was also entitled to find that suitable contact arrangements would preserve the essential nature and quality of the children’s relationship with their father.
5. The judge’s treatment of the CAFCASS officer’s evidence disclosed no arguable error. The officer’s reservations had to be evaluated with all the evidence heard at trial, including evidence unavailable when she prepared her report. Credibility, motivation and factual findings were primarily matters for the trial judge.
6. The case involved a finely balanced exercise of judicial discretion. Since the judge applied well-established principles, assessed the witnesses and reached a sustainable conclusion, appellate intervention would impermissibly substitute the Court of Appeal’s judgment for his. Thorpe, Arden and Wall LJJ agreed that permission should be refused.

• Court of Appeal (Civil Division): In [2007] EWCA Civ 1497, unanimously refused the father’s application for permission to appeal.
• Principal Registry, Family Division: His Honour Judge Collins CBE granted the mother permission to relocate the children to Germany, made a joint residence order and determined continuing contact. The judge subsequently refused permission to appeal. No citation is stated.