H (A Child), Re

Where parents make competing residence applications, each proposing primary care in a different country or continent, the court applies the ordinary welfare principles governing a competition for primary care. The approach in Payne v Payne [2001] EWCA Civ 166 concerns the paradigm relocation case and does not directly govern that different contest.

An ex tempore judgment may be concise. The judge need not recite the welfare checklist paragraph by paragraph if the essential considerations and reasoning are sufficiently explained. Appointment of a Rule 9.5 guardian remains exceptional. An appellate court should not interfere with a discretionary welfare decision absent legal misdirection or inadequate reasoning.

The parents had one child, aged nine. The mother, the primary carer, applied for leave to relocate to Australia. The father renewed a residence application proposing that the child remain in England. The lower court heard evidence from the parents, a Cafcass officer and the mother’s partner, granted the mother’s application subject to assurances and undertakings, and refused a stay or permission to appeal.

The father challenged the brevity of the ex tempore judgment, the assessment of the mother’s proposed contact arrangements, and the absence of a Rule 9.5 guardian. The central issues were whether the approach in Payne v Payne [2001] EWCA Civ 166 applied, whether the judge gave adequate reasons, and whether the child required separate representation.

Lord Justice Thorpe gave the judgment. Lord Justice Etherton and Mr Justice Morgan agreed.

1. Disposition. Permission to appeal was granted, but the appeal was dismissed.
2. Applicable approach. The approach in Payne v Payne [2001] EWCA Civ 166 was directed to the paradigm relocation application. That involves choosing between permitting the primary carer to relocate, with adverse consequences for the other parent’s contact, and refusing permission so that the primary carer remains in the jurisdiction. The present case involved competing residence applications, with each parent proposing primary care on a different continent. The judge therefore had to apply the ordinary principles governing a competition between parents for primary care. The unusual geographical circumstances did not change the essential character of the dispute.
3. Adequacy of reasons. A concise ex tempore judgment was permissible, particularly because the judge had extensive knowledge of the family and had delivered earlier judgments addressing its history. There was no obligation to work through the welfare checklist under the Children Act 1989 paragraph by paragraph. The judgment contained the essential ingredients of reasoning and fairness, including consideration of the evidence, the child’s wishes, the Cafcass recommendation and the proposed contact arrangements.
4. Separate representation. Appointment of a Rule 9.5 guardian remained an exceptional course. No application had been made during the interlocutory stages, and the Cafcass service continued to discharge an advisory function. The child’s clearly expressed views did not make separate representation necessary on these facts.
5. Appellate restraint. The decision was a discretionary welfare choice. The judge had not misdirected himself in law and had explained his conclusion sufficiently, although briefly. The conclusion was therefore not open to revision on appeal.

• Court of Appeal (Civil Division): granted permission to appeal but dismissed the appeal on 20 May 2010.
• Scarborough County Court: HHJ Cliffe granted the mother’s application for leave to relocate to Australia, subject to assurances and undertakings, and refused a stay or permission to appeal.