W (Children)

In a child-relocation appeal, the appellate court should respect the first-instance judge’s discretionary welfare evaluation. It should intervene only where the discretion was misperformed or the decision was plainly wrong. The judge must address the practical consequences of relocation, including whether realistic and effective contact with the left-behind parent can be maintained, particularly where resources make travel difficult. A detailed contact programme may be settled later if the judge has reached a sustainable conclusion in principle. Permission to appeal was refused because the judge had undertaken the necessary balancing exercise and was entitled to conclude that relocation with the mother would better meet the children’s needs.

The parents had two children and had separated while living in Cardiff. The mother sought permission to remove both children permanently to Kenmare in County Kerry, where her parents and two sisters lived. The father sought residence and opposed removal, principally because of the effect on his relationship with the children and the difficulty of funding travel between Wales and Eire.

On 15 May 2008, HHJ Philip Price QC granted permission for removal but stayed permanent removal pending arrangements for contact. A subsequent order permitted temporary travel and continued the stay while the contact programme was clarified. The father, appearing in person, applied to the Court of Appeal for permission to appeal. The central issue was whether the judge’s discretionary welfare assessment had been improperly conducted or was plainly wrong.

1. Outcome. The application for permission to appeal was refused. The father’s case was not arguable.
2. The proceedings arose from cross-applications under the Children Act 1989. The judge had to decide between the children living with the mother in Kenmare and remaining in Cardiff, with either residence or extensive staying contact involving the father.
3. The judge had properly confronted the principal difficulty in the mother’s application: the possible reduction in the frequency and ease of the father’s contact. He had considered the father’s limited benefits, the cost and difficulty of travel, the unsuitability of the father’s mother’s house in Kenmare for regular overnight stays, and the mother’s proposals to share travel costs and facilitate contact during school holidays.
4. The judge was entitled to rely on the independent assessments of the CAFCASS officer and his own findings that the mother genuinely wished to facilitate contact and that the father could manage substantial contact notwithstanding his financial difficulties. The precise programme could be settled at a later hearing without undermining the conclusion that realistic and effective contact was achievable in principle.
5. The welfare assessment addressed the mother’s role as the children’s primary emotional carer, her family support and proposed circumstances in Kenmare, the father’s ability to provide basic care, E’s expressed preference to remain in Cardiff, and the effect of relocation on contact. The Court of Appeal acknowledged that stronger positive observations about the father might have been possible, but that did not establish appellate error.
6. The decision was discretionary. The Court of Appeal would interfere only if the exercise had been misperformed or the conclusion was plainly wrong. That threshold was not met.

• Cardiff Civil Justice Centre: On 15 May 2008 HHJ Philip Price QC granted the mother permission to remove the children permanently to Eire, but stayed permanent removal pending further arrangements for the father’s contact.
• Court of Appeal (Civil Division): On 2 July 2008 Lord Justice Wilson refused the father’s application for permission to appeal: [2008] EWCA Civ 838.