R (A Child)

Procedural fairness requires a litigant, particularly a litigant in person, to have a fair opportunity to take advice and respond to an unexpected proposal to restrict future applications. In relocation cases, the court must conduct a genuine balancing exercise. It should address the competing plans for the child’s future directly and give reasons for rejecting a realistic alternative. An appeal against factual findings remains difficult because the trial judge has seen and heard the parties. The application was adjourned on notice, with a temporary stay pending the renewed permission hearing.

The father sought permission to appeal orders made by HHJ Peter Hughes QC on 20 April 2009. The orders permitted the mother to relocate with their six-year-old daughter from the North of England to Sussex for further study and restricted the father from making applications concerning the child without leave for three years.

The father challenged both the procedure leading to the restriction and the adequacy of the relocation analysis. Lord Justice Ward had to consider whether the application should proceed immediately and whether the order should be stayed pending an on-notice hearing.

Lord Justice Ward gave the only judgment. The application for permission to appeal was adjourned on notice to the respondent, with the appeal to follow if permission were granted.

1. The proposed restriction under section 91(14) raised an arguable procedural-fairness issue. The judge appeared to have introduced the restriction in a draft judgment shortly before the matter returned to court. The father, although intelligent, was a litigant in person and required a fair opportunity to take advice and answer an unexpected argument. Had this been the only issue, permission would have been granted on that narrow point.
2. The relocation challenge concerned the alleged failure to undertake an adequate balancing exercise. The judge should have directly addressed the father’s plans for the child to remain in the Carlisle area, compared them with the mother’s plans, and given reasons for rejecting them. Relevant matters included the father’s primary-care role, flexible working arrangements and family support, together with the practical demands of the mother’s course and the available childcare. The point was sufficiently arguable to justify renewal, although challenges to factual findings are difficult because the trial judge saw and heard the parties.
3. Although a stay would ordinarily not be ordered without giving the other side an opportunity to be heard, time was short. A stay of execution was therefore granted until the renewed hearing on 15 July or further order, with liberty to the respondent to apply to vary or discharge it.

• Court of Appeal (Civil Division): The father sought permission to appeal from orders made by HHJ Peter Hughes QC on 20 April 2009. The application was adjourned on notice, with the appeal to follow if permission was granted. A stay was imposed pending the renewed hearing.