W (Children)

In an international relocation application, the children’s welfare remains paramount. The trial judge must identify and weigh all relevant factors. No presumption favours the parent seeking relocation, although reasonable proposals may carry great weight. On appeal, the Court of Appeal should not substitute its own evaluation where the judge heard the oral evidence, assessed the witnesses, made findings open on that evidence and applied the relevant criteria. Intervention requires a clear demonstration that the conclusions were impermissible or unavailable on the evidence. A different conclusion that another judge might have reached is insufficient.

The mother of two children applied in Norwich County Court for permission to relocate with them to New Zealand, where her new partner had obtained employment. The father opposed the application, relying principally on the effect relocation would have on his relationship and contact with the children.

On 21 October 2008, His Honour Judge Darroch refused permission. The mother appealed, arguing that the judge had misunderstood the history of contact, failed properly to assess the effect of refusal on her and the children, and gave insufficient weight to the children’s wishes and the welfare checklist. The central issue was whether the judge’s evaluative conclusions were open to him on the evidence.

Permission to appeal was granted, but the appeal was dismissed. Lord Justice Wall gave the leading judgment. Lord Justices Aikens and Thorpe agreed.

1. The county court judge approached the application by reference to the relevant relocation authorities, including Payne v Payne [2001] EWCA Civ 166; [2001] 1 FLR 1052, as subsequently discussed by Charles J in Re C (Permission to Remove from Jurisdiction) [2003] EWHC 596; [2003] 1 FLR 1066. The factors identified in that framework were proper matters to weigh in the welfare balance and were not an exclusive checklist or blueprint.
2. The judge was entitled to consider the genuineness of the proposed move, the absence of clear economic advantage, the mother’s limited ties with New Zealand, the lack of medical evidence of serious emotional damage, the parties’ hostility, the likelihood that contact would not be actively encouraged, the realism of the proposed contact arrangements, the loss of wider family relationships, the children’s views, and the new partner’s commitment to family life.
3. The judge had heard the oral evidence and seen the parties. He was therefore uniquely placed to assess their impressions, credibility and attitudes. His conclusions about the history of contact, the mother’s likely reaction to refusal, and the qualifications attaching to the older child’s wishes were findings and evaluations open to him on the evidence.
4. The Court of Appeal was reviewing the decision at one remove and had no transcript of the evidence. The appeal could not succeed without a clear demonstration that the judge’s conclusions were impermissible or unavailable on the evidence. The fact that another judge might have reached a different conclusion was insufficient.

Lord Justice Thorpe added that the refusal did not prevent a further application in later years if circumstances supported or required renewed litigation.

• Court of Appeal (Civil Division) — On 28 January 2009, permission to appeal was granted, but the appeal was dismissed. The county court judge’s refusal of permission to relocate was upheld.
• Norwich County Court — On 21 October 2008, His Honour Judge Darroch refused the mother’s application to relocate with the children to New Zealand.