W (Children)

In a child-relocation case, the child’s welfare remains paramount and Children Act 1989 section 13(1)(b) creates no presumption in favour of the applicant. The court must apply the guidance in Payne v Payne [2001] Fam 475: test whether the proposal is genuine and realistic, assess both parents’ positions, weigh the effect of refusal on the primary carer, and conduct an overall welfare assessment. The primary carer’s emotional and psychological wellbeing may carry very great weight. An appellate court may intervene in a discretionary decision for error of principle or method, or where the result is plainly outside reasonable disagreement. The refusal here was plainly wrong and relocation was permitted, subject to arrangements for continuing contact.

The mother, the primary carer of a girl aged 12 and a boy aged 8, sought permission to move from England to Australia. The father opposed the move because of the importance of the children’s developing relationship with him and their paternal family. At Exeter County Court, His Honour Judge Tyzack QC refused permission by an order dated 18 October 2010, adjourned the father’s contact application and refused permission to appeal. The mother obtained permission to appeal to the Court of Appeal. The central issues were whether the judge had erred in the discretionary balancing exercise and whether, applying the welfare principle and the relocation guidance, the children’s best interests required permission to move.

1. Disposition. The court granted permission to appeal and allowed the appeal. The refusal of permission to relocate was set aside. The matter was remitted to the county court for arrangements concerning annual visits and electronic contact to be agreed or determined.
2. Appellate intervention. Applying G v G [1985] 1 WLR 647, the court could not interfere merely because it might have reached a different result. Intervention was justified where the judge had applied a wrong principle or method, or had reached a decision so plainly wrong that it fell outside the generous ambit of reasonable disagreement. The judge’s errors crossed that threshold.
3. Relocation principles. The child’s welfare was paramount. Section 13(1)(b) of the Children Act 1989 created no presumption in favour of the relocating parent. Payne v Payne [2001] Fam 475 remained binding guidance. The court had to examine whether the application was genuine and realistic, scrutinise the opposing parent’s motivation and likely detriment, assess the effect of refusal on the primary carer and children, and then conduct an overriding welfare review.
4. The judge accepted that the mother’s motivation and proposals were genuine and realistic, and that refusal would be devastating for her. He nevertheless underweighted her emotional and psychological wellbeing as primary carer, the benefits of the maternal family and homeland, and the evidence from the health visitor and general practitioner. He gave excessive weight to the possibility of further development of the children’s recently improved paternal contact, without a proper evidential foundation or a defined period for that development.
5. The judge was entitled to disagree with the CAFCASS officer, but had to weigh the officer’s opinion and explain why he rejected the critical reasoning supporting relocation. He also had to make essential findings on disputed facts and consider all relevant evidence, rather than relying on a selective six-factor summary.
6. The President and Lord Justice Lloyd regarded the judge as wrong to treat future courts as effectively powerless to preserve contact. Lord Justice Elias accepted that enforcement in Australia could be more difficult, but agreed that this did not justify refusal on the facts. The mother’s application should therefore succeed.

1. Court of Appeal (Civil Division): permission to appeal granted and appeal allowed. The refusal of permission to relocate was set aside, with arrangements for future contact remitted to the county court.
2. Exeter County Court: His Honour Judge Tyzack QC refused the mother’s application for permission to relocate to Australia by order dated 18 October 2010, adjourned the father’s contact application and refused permission to appeal.