D (A Child), Re

In a permanent-removal case, the court must decide on full and fairly tested evidence. An incomplete CAFCASS report is not automatically fatal because the judge remains the decision-maker and delay may prejudice the child and both parents. However, proceeding without an ordered, up-to-date report may be unfair where it limits a party’s opportunity to challenge evidence and the judgment fails to address the resulting disadvantage. The appropriate course is to obtain a full report, allow cross-examination where required, and direct swift reconsideration. The approach in Payne v Payne [2001] EWCA Civ 166 remains binding unless displaced by legislation or Supreme Court authority.

The father sought permission to appeal against an order made by Recorder O’Farrell QC in the Barnet County Court on 10 March 2010. The order permitted the child’s mother to remove him permanently from England and Wales to Australia and provided for contact with his father.

The father challenged the application of the approach in Payne v Payne and argued that the hearing was unfair because an ordered, up-to-date CAFCASS report was incomplete. He had been unrepresented below and had not fully cross-examined the CAFCASS officer because he expected a further report. The central issue was whether the relocation decision could safely stand without that report and without adequate consideration of the resulting evidential disadvantage.

Lord Justice Wall, with whom Lord Justice Aikens agreed, granted permission and allowed the appeal on the fairness and evidential grounds.

1. The challenge to the relocation approach did not succeed. Until displaced by legislation or a decision of the Supreme Court, the courts remained bound by Payne v Payne [2001] EWCA Civ 166. The Recorder had worked through that approach and had reached a conclusion open to her on that issue.
2. The incomplete CAFCASS report raised a serious fairness concern. The father had been unrepresented below and was not responsible for the missing report. He had not cross-examined the CAFCASS officer fully because he understood that a complete report would follow. The Recorder’s judgment did not adequately address the absence of a full recommendation or the disadvantage caused by proceeding without it.
3. CAFCASS advises and recommends, but the judge decides. The court had to balance the prejudice caused by further delay against the risk of deciding without relevant evidence and without a fair opportunity to test it. In this case, the latter concern required appellate intervention.
4. The Recorder’s order was set aside. The CAFCASS officer was directed to report within 21 days. The Recorder was then to hold a further hearing, with the officer available for cross-examination if required, and to reconsider the relocation decision swiftly in light of the report.
5. If the Recorder reached the same conclusion, she was invited to reconsider whether the proposed contact arrangements, including two two-week periods in England each year, were sufficient. That was guidance for the reconsideration rather than a basis for the appeal’s disposal.

The reasoned judgments therefore state that permission should be granted and the appeal allowed. The supplied transcript nevertheless ends with an inconsistent entry recording that the application was refused.

• Barnet County Court: Recorder O’Farrell QC made an order on 10 March 2010 permitting permanent removal of the child to Australia and specifying contact with the father.
• Court of Appeal (Civil Division): Wall LJ, with whom Aikens LJ agreed, granted permission, allowed the appeal, set aside the order and directed a report and reconsideration. The judgment is reported under [2010] EWCA Civ 593.