C (A Child), Re

In an international relocation case, the Court of Appeal’s role is one of handicapped review. It will not interfere with a welfare decision entrusted to the first-instance judge merely because it might exercise the discretion differently.

A Cafcass recommendation does not determine the outcome. The judge may depart from it if the reasons are explained and rational. Nor will an allegation that relevant factors were given inadequate weight ordinarily justify appellate intervention where the judge addressed them and performed the required evaluative task.

The binding guidance in Payne v Payne [2001] 1 FLR 1052 had to be applied. A finding that relocation would probably destroy the child’s meaningful relationship with a parent could justify refusal despite satisfactory arrangements abroad and a genuine wish to live with a spouse.

The mother sought permission to remove her seven-year-old daughter from England to Australia, where the mother’s new husband had long lived and worked. The father opposed the move and feared losing a meaningful relationship with the child. The mother proposed limited holiday and electronic contact.

After a three-day hearing, Her Honour Judge Staite refused permission in the Chelmsford County Court on 1 November 2010. She found that the mother’s hostility towards the father, combined with limited direct contact after relocation, would probably make the child’s relationship with him of little value and would not serve the child’s welfare.

The mother sought permission to appeal, alleging misapplication of Payne v Payne [2001] 1 FLR 1052, breach of Article 8, inadequate consideration of relevant factors, unjustified departure from the Cafcass recommendation, and relying on fresh evidence. The central issue was whether any arguable appellate error justified permission.

1. The application for permission to appeal was refused. Wilson LJ gave the principal reasons and Toulson LJ agreed. The Court of Appeal’s function in reviewing a welfare discretion is one of handicapped review. The discretion is primarily vested in the first-instance judge, so the appellate court cannot interfere merely because it might exercise the discretion differently. The approach was supported by G v G (Minors: Custody Appeal) [1985] 1 WLR 647.
2. The judge’s decisive findings were open to her on the evidence. Although the mother was a good mother, her motive was primarily to live with her new husband and the proposed arrangements in Australia were satisfactory, her hostility towards the father and the limited direct contact after relocation would probably cause the child’s relationship with him to become of little value. The likely loss of a significant parental relationship was contrary to the child’s present and future interests.
3. The judge had quoted and applied the sequence of approach in Payne v Payne [2001] 1 FLR 1052. That decision was binding and had to be applied. The Court of Appeal considered that the judge’s treatment of the circumstances complied with its principles. The Article 8 argument also failed. Yousef v The Netherlands [2003] 1 FLR 210 established, for an issue of this kind, that the Article 8 rights of the three adults had to give way to the rights of the child; Article 8 added nothing to the domestic analysis.
4. Departure from a Cafcass recommendation was not itself a ground of appeal. Only an unreasoned or irrational departure could justify intervention. The judge had explained that the officer had not appreciated the probable effective loss of one of the child’s parents.
5. The proposed fresh evidence consisted of statements reflecting the mother’s and Mr D’s emotional reaction to the decision. It did not challenge the central finding about the mother’s attitude towards the father and could not pass the test for admission on appeal. The complaints that relevant matters had not been considered failed because the judge had expressly addressed them; any complaint about the weight given to them did not establish an appellate error.

• Court of Appeal (Civil Division) — On 14 January 2011, refused the mother’s application for permission to appeal in [2011] EWCA Civ 72.
• Chelmsford County Court — On 1 November 2010, Her Honour Judge Staite refused the mother’s application for permission to remove the child to Australia.