W (Children)

In a relocation application, the welfare evaluation must rest on a realistic and evidenced assessment of the consequences for the children and their primary carer. Financial consequences cannot be treated as acceptable without evidential foundation. Adequacy is relative to the accommodation enjoyed by the family and the realistic alternative. Mature children’s wishes and feelings require greater weight, particularly where the decision determines the course of their remaining minority. An appellate court may intervene where a material factual finding is unsupported or contradicted by the evidence, even though it will ordinarily respect the trial judge’s evaluation of a relevant factor. Relocation outcomes remain fact-dependent.

The mother and father, Swedish nationals living in London, had three children educated at independent schools. Following the marital breakdown, the mother applied under Section 13 of the Children Act 1989 for permission to relocate the children permanently to Sweden. Her case relied substantially on financial security, housing and reduced educational costs. The father opposed relocation, relying on continuity of home, schooling and contact.

The financial-relief proceedings and relocation application were not heard together. His Honour Judge Richards refused the relocation application in a judgment dated 25 January 2008, identifying completion of the children’s education and improvement of their relationship with their father as particularly important. The mother appealed, challenging the treatment of her emotional response, the children’s wishes and feelings, the financial consequences of refusal, and the proposed contact arrangements.

1. Disposition. The Court of Appeal unanimously allowed the appeal and granted the permission sought under Section 13 of the Children Act 1989. Written submissions were invited on implementation and costs.
2. Financial consequences. Thorpe LJ held that the welfare balance had to be based on evidence of the realistic consequences of refusal. The judge’s conclusion that approximately £610,000 would purchase acceptable or satisfactory London accommodation had no evidential foundation. The available material showed that the mother and children would have to move to a substantially inferior property, whereas comparable accommodation could be obtained in Sweden for approximately £400,000. This error was central to the welfare conclusion.
3. Appellate review. An appellate court may uphold a discretionary decision that merely underweights a relevant factor. A material factual finding unsupported or contradicted by the evidence will generally justify intervention, particularly where it materially underpins the outcome.
4. Children’s wishes and feelings. The children’s views were clear. A expressed an unconditional preference for Sweden, while J and C preferred relocation unless their home, schooling and standard of living could be secured. The judge failed to address an important part of their stated position and gave their wishes insufficient weight. Thorpe LJ also emphasised that CAFCASS officers dealing with relocation should address the factors identified in Payne v Payne, including the effect of refusal on the applicant. The challenge concerning the mother’s emotional response nevertheless failed because the judge’s assessment was open to him on the evidence. The contact assessment was likewise open to him.
5. Judicial meetings with children. Thorpe LJ regarded it as regrettable that the judge had not met the children. Wilson LJ and Charles J agreed that their views had been insufficiently weighted but qualified that observation. They emphasised that any judicial meeting requires careful consideration of its purpose, format, participation, disclosure, testing of assertions and explanations to the child. Those qualifications did not affect the result.

1. Court of Appeal (Civil Division): Appeal allowed. Permission to relocate the children to Sweden was granted, with implementation and costs to be addressed by further submissions.
2. Principal Registry of the Family Division: His Honour Judge Richards refused the mother’s application under Section 13 of the Children Act 1989 and refused permission to appeal.