R (A Child)

In a child-relocation application, the court must evaluate the child’s welfare in the light of the proposed move and the consequences of refusal. The effect of refusal on the applying parent may be relevant, but it should usually be assessed by inference from the surrounding circumstances rather than by accepting untested assertions. A Cafcass report is not automatically required. Its necessity depends on the child’s age, the issues genuinely in dispute and the material already available. An English court granting permission to relocate should address contact proposals fully, but it need not ordinarily make an English contact order or require a foreign mirror order. Those safeguards are more appropriate where there is doubt about the applicant’s bona fides.

The mother applied to the Reading County Court for leave to remove her five-year-old son permanently from England to Perth, Australia. The father opposed the move and argued that the hearing should have been adjourned for a Cafcass report, that the relationships between the child and his father and half-brothers had been undervalued, and that the judge had insufficient evidence about the effect on the mother of refusing permission.

His Honour Judge D Hamilton granted the application on 11 August 2010. The father sought permission to appeal. The central issues were whether the judge had erred in proceeding without a Cafcass report and whether the relocation should have been conditional on an enforceable contact order or a mirror order in Australia.

1. Application refused. The father had no real prospect of showing that the judge had made an appealable error.
2. A Cafcass report was not required as a matter of course. The child was too young to express wishes of significant weight, although his feelings were relevant under section 1(3)(a) of the Children Act 1989. Any assessment of those feelings was unlikely materially to affect the decision. The mother accepted that the child had a valuable relationship with his father, and the judge had sufficient evidence to reject the allegations that she sought to eliminate that relationship. The father had not pursued an appeal against the district judge’s refusal of a report or sought an adjournment before the trial judge.
3. The judge was entitled to treat the relationship with the child’s half-brothers as not of primary importance, having regard to their likely adulthood and independence within a few years. The father’s late and weakly pursued allegations about the mother’s mental health did not make an adjournment necessary.
4. A contact order attached to permission to remove would be contrary to principle. Once relocation is permitted, the English court is, for practical reasons, surrendering control over the child to the foreign court. The judge was required to address the proposed arrangements for contact, and had effectively approved them. An automatic mirror order is also unnecessary. It may be appropriate where there is doubt about the applicant’s bona fides, but was not required here.
5. The court remained bound by Payne v Payne [2001] EWCA Civ 166, [2001] 1 FLR 1052. The effect of refusal on the applying parent could be inferred from the surrounding circumstances. Here the evidence indicated that continued life in England was no longer reasonably viable for the mother and child, because of the mother’s financial position and the father’s failure to provide reliable support. The challenge to the judge’s conclusion therefore had no real prospect of success.
6. Leave was granted to both parents to place the trial judge’s judgment and the judgments of the Court of Appeal before any court in Perth.

• Court of Appeal (Civil Division): Application for permission to appeal from the Reading County Court was refused. The court endorsed the trial judge’s decision to grant the mother leave to remove the child permanently to Australia.
• Reading County Court: His Honour Judge D Hamilton granted the mother’s application for leave to remove on 11 August 2010.