D (Children), Re

Permission to appeal in a relocation case may be granted only if the proposed appeal has a real prospect of success or there is another compelling reason for it to be heard. A first-instance judge must apply binding Court of Appeal guidance on relocation, including Payne v Payne [2001] EWCA Civ 166, unless that guidance has been changed by legislation or overruled by the Supreme Court. A respectable argument for reconsidering established guidance may amount to a compelling reason in an appropriate case. Permission may nevertheless be refused where the judge applied the guidance conscientiously, the facts strongly supported relocation, and a further hearing would not serve the children’s interests.

The applicant sought permission to appeal from an order made by Her Honour Judge Corbett, sitting in the Luton County Court on 13 October 2009. The order permitted the respondent, the applicant’s former wife, to remove their two sons permanently from England and Wales to Slovakia, while making shared residence arrangements.

The applicant challenged the judge’s assessment of the evidence, including her refusal to obtain a psychological assessment, alleged omissions from her reasoning, compliance with article 6, and the continuing validity of the relocation guidance in Payne v Payne. The central questions were whether the proposed appeal had a real prospect of success under CPR 52.3(6)(a), or whether there was another compelling reason under CPR 52.3(6)(b) for the appeal to be heard.

1. Permission refused. The proposed appeal had no real prospect of success. Judge Corbett had heard evidence and submissions over four days, directed herself correctly on the children’s welfare under section 1 of the Children Act 1989, and applied Payne v Payne [2001] EWCA Civ 166 and Re G (Leave to remove) [2007] EWCA Civ 1497.
2. The judge’s assessment of the respondent’s motivation, the children’s wishes and feelings, the proposed arrangements in Slovakia, and the effect on continuing contact was careful and plainly open to her. The refusal to obtain a psychological assessment was a carefully reasoned discretionary decision and was not plainly wrong. The applicant’s lack of representation did not make the hearing unfair or infringe article 6.
3. A Circuit Judge must follow applicable decisions and guidelines of superior courts. In relocation cases, the guidance in Payne v Payne remained binding. It could be altered by Parliament or overruled by the Supreme Court. The judge’s statement that Re A (Leave to Remove: Cultural and Religious Consideration) [2006] EWHC 421 (Fam) was merely highly persuasive was technically incorrect, because a Circuit Judge is bound by a High Court decision where the case is on all fours. The error was immaterial.
4. The argument that Payne v Payne placed excessive weight on the relocating parent’s wishes and insufficient weight on harm to the children from disruption of their relationship with the left-behind parent was respectable. In an appropriate case it could constitute a compelling reason for an appeal to be heard. This was not such a case: the respondent had a powerful factual case for relocation, the judge had fully considered the argument, and a further hearing would be contrary to the children’s interests.
5. The application for permission to appeal was refused under CPR 52.3(6).

1. Court of Appeal (Civil Division): Permission to appeal was refused from the order of Her Honour Judge Corbett sitting in the Luton County Court on 13 October 2009.
2. Luton County Court: The court permitted permanent relocation of the two children to Slovakia and made shared residence arrangements.