B (Children)

In a child-relocation case, the court must evaluate the children’s welfare in the circumstances existing at the hearing. It must weigh the likely consequences of permitting or refusing relocation, including effects on the relocating parent, the children, and their relationship with the other parent. The existence of enforceable contact orders does not remove the need to assess the practical risk of emotional harm or parental alienation. Where the trial judge has made clear findings based on the parties’ evidence and has chosen between two harmful alternatives, an appellate court should not interfere merely because another decision might have been possible. A party who considers an expert’s live evidence to exceed the proper scope of the instructions must raise the objection at the hearing.

The mother applied for permission to relocate with the parties’ three children to Germany. The father opposed relocation and applied for a residence order. An earlier relocation application had been dismissed by HHJ Hamilton on 8 December 2006.

By the renewed hearing before HHJ Hallon, contact had become more extensive. The judge nevertheless found that relocation risked the children becoming alienated from their father and refused the application. The mother challenged the welfare evaluation and the judge’s reliance on expert oral evidence. The issue was whether that decision disclosed an appealable error.

1. Disposition. Permission to appeal was granted, but the appeal was dismissed. Lord Justice Thorpe gave the leading judgment; Lord Justice Rix and Lord Justice Longmore agreed.
2. The judge was entitled to choose between two harmful alternatives, weighing the mother’s likely deterioration if relocation was refused against the probable damage to the children’s relationship with their father if it was permitted.
3. English contact orders, even if certified and enforceable in Germany, did not resolve the practical welfare risk of alienation.
4. The criticism of the expert evidence failed. Any objection that the expert was addressing matters outside her instructions or without essential information should have been made during the hearing. The judge was entitled to rely on evidence which had not then been challenged.
5. The judge’s recommendation that both parents obtain specialist assistance and work together for the children’s welfare was endorsed as apt.

• Court of Appeal (Civil Division): Permission granted; appeal dismissed.
• Bromley County Court: HHJ Hallon refused the renewed relocation application and dealt with the father’s residence application.
• Earlier proceedings: HHJ Hamilton dismissed an earlier relocation application on 8 December 2006.