H (Children), Re

In a child-relocation application, the welfare of the children is the only overriding consideration under the Children Act 1989, section 1(1). The effect of refusal on the applicant parent is an important factor, particularly where it may impair the primary carer’s parenting, but it does not automatically prevail. The court must balance it against the effect of relocation on the children’s relationship with the other parent. Depending on the evidence, either consideration may determine the outcome. An appellate court will not reweigh finely balanced factors or disturb properly reasoned findings based on evidence heard at trial.

The mother applied to relocate with the two children, aged ten and nine, to Canada, where her family lived. The Oxford County Court, before His Honour Judge Corrie, granted the application.

The father sought permission to appeal. He challenged the factual basis for the judge’s assessment of the likely effect of refusal on the mother and children, the judge’s departure from the CAFCASS Officer’s view, and the application of Payne v Payne. He argued that the judge had treated the impact of refusal on the applicant parent as an overriding factor and questioned whether Payne remained good law.

Lord Justice Hughes gave the leading judgment. Lady Justice Black and Lord Justice Mummery agreed. The application for permission to appeal was refused.

1. The complaint that the judge had given excessive weight to some factors and insufficient weight to others disclosed no arguable error. Weighing finely balanced welfare considerations is the first-instance judge’s function. Appellate interference requires a proper basis, such as an omission, reliance on an impermissible matter, or material misdirection.
2. The judge was entitled to find, after hearing the mother’s evidence, that requiring her to remain in England would eventually affect her ability to parent and thereby harm the children. Earlier statements expressing hope that she could cope did not prevent that finding.
3. The CAFCASS Officer’s view was not determinative. The decision was for the judge, who gave clear and rational reasons for differing from the pre-trial report, including the evidence given at the hearing.
4. Payne v Payne [2001] 1 FLR 1052 was correctly understood. The welfare of the children is the only overriding consideration. The impact of refusal on the applicant parent is one factor, albeit often an important one because of the primary carer’s role. The court must also assess the effect of relocation on the children’s relationship with the other parent. Neither consideration automatically prevails. In some cases one will tip the balance; in others the children’s interests may require both parents to remain within the jurisdiction. Bona fides, practicality, the children’s qualified wishes and the benefits of extended family were also relevant considerations.
5. The judge had not ignored the father’s relationship with the children or misapplied Payne. He had carried out the required balancing exercise. The Court of Appeal was not entitled to substitute its own assessment of the weight of the competing factors.
6. Whether Payne should be revisited was not a question open to this court. In any event, even an alternative formulation giving all factors potentially equal weight would not have given this father a realistic prospect of reversing the carefully balanced decision.

• Court of Appeal (Civil Division): On 17 March 2011, refused the father’s application for permission to appeal.
• Oxford County Court: His Honour Judge Corrie granted the mother’s application to relocate with the children to Canada.