H (A Child), Re

In a child-relocation application, welfare remains the paramount consideration. The guidance in Payne v Payne [2001] EWCA Civ 166 does not displace that inquiry. Criticism of aspects of that guidance did not permit the Court of Appeal to substitute the non-binding Washington Declaration.

An appellate court will not interfere where the trial judge was entitled to reach the overall welfare balance after considering the child’s relationships, practical arrangements abroad, family support, and the effect of refusal upon the applicant’s care of the child. The result here was justified independently of the disputed guidance.

The mother applied for permission permanently to remove her seven-year-old daughter from England and Wales to the Czech Republic. Following an earlier unlawful removal and prompt return, the child had lived mainly with the mother under a shared-residence arrangement. The father had substantial regular contact.

His Honour Judge Tyzack QC, sitting as a judge of the High Court, granted the mother permission to relocate on 26 February 2010. He later made a consequential contact order. The father appealed the relocation order and sought permission to appeal the contact order, but withdrew the latter application.

The central issue was whether the judge’s welfare evaluation, including the effect of relocation on the father-child relationship, was a proper exercise of discretion and whether the guidance in Payne required reconsideration.

1. The appeal was dismissed. The father withdrew his application for permission to appeal the consequential contact order. The Court held that the judge’s permission for the mother to relocate the child was plainly open to him on the welfare evidence.

2. Welfare was paramount under the Children Act 1989. Payne v Payne [2001] EWCA Civ 166 correctly stressed that principle, although the court recognised continuing controversy about aspects of its subsidiary guidance, particularly the weight given to the effect on the relocating primary carer of refusing permission. The appeal did not require resolution of that controversy because the welfare result was clear independently of that guidance.

3. The Washington Declaration was of interest and might inform future international or domestic reform. It had no present effect in domestic law and could not replace the existing guidance.

4. The judge was entitled to give substantial weight to the mother’s Czech nationality, her extensive family support in the Czech Republic, the child’s prior residence there and fluency in Czech, the sound accommodation and schooling proposals, and the likely adverse effect on the mother’s care of the child if relocation were refused. These matters outweighed the serious and painful truncation of the child’s direct contact with the father.

5. The contact arrangements, including possible additional visits in the Czech Republic, were relevant to the welfare balance. They were enforceable there under Article 41 of Council Regulation (EC) No. 2201/2003 (Brussels II Revised). The father’s ability to fund further visits remained uncertain, but that uncertainty did not make the judge’s balancing exercise wrong.

6. A determination concerning a seven-year-old should normally refer to the child’s wishes and feelings. The omission caused no error here because the child’s reported views did not favour either relocation or remaining in England.

• Court of Appeal (Civil Division): dismissed the father’s appeal against permission for the mother permanently to remove the child to the Czech Republic.
• High Court, Family Division, Exeter District Registry: His Honour Judge Tyzack QC granted relocation permission on 26 February 2010 and made a consequential contact order on 5 May 2010.