E (Children)

In an application to remove children permanently from the jurisdiction, a trial judge is not bound by a Cafcass recommendation. The judge may reject it where it is materially incomplete or one-sided, but must give cogent reasons. A welfare report should assess the competing consequences of relocation, including both the effect on the children’s relationship with the parent left behind and the effect of refusal on the applicant parent and any new family. A bare recommendation that fails to analyse a significant factor may properly be rejected. The weight given to individual welfare factors is primarily for the trial judge, and an appellate court should not re-weigh them. The relocation approach gives particular importance to reasonable proposals and to the effect of refusal on the applicant parent.

The mother, the primary carer of two children, applied for permission to remove them permanently to the United States to live with her intended husband. The father opposed the application because relocation would disrupt the established pattern of alternate-weekend contact. A Cafcass Officer recommended refusal, concentrating on the effect of relocation on the children’s relationship with their father and the practical achievability of future contact, but failing to assess the effect of refusal on the mother.

HHJ Harington granted permission, subject to a mirror order from the relevant United States court containing his contact regime. The father appealed, arguing that the judge had not given cogent reasons for departing from the recommendation and had wrongly assessed the welfare factors. The central issue was whether the judge’s departure from the recommendation was permissible.

1. Appeal dismissed. The order granting the mother permission to remove the children permanently from the jurisdiction, subject to a mirror order securing the judge’s contact regime, was upheld.
2. A judge is not bound to accept a Cafcass Officer’s recommendation. However, cogent reasons are required for rejecting it. The judge’s reasoning could not properly be read as treating the mother’s practical proposals as the sole explanation for granting permission.
3. The judge had directed himself to the relevant factors identified in Payne v Payne [2001] EWCA Civ 166. His reference to the great weight ordinarily given to the reasonable proposals of the parent with a residence order wishing to live abroad was followed by an express consideration of the effect of refusal on the applicant parent and the new family. The judge therefore rejected the recommendation because it lacked the necessary breadth and was not balanced.
4. That conclusion was open to him. The Cafcass report assessed the impact of relocation on the children’s relationship with their father and questioned whether the proposed contact would be achievable. It did not notice, investigate or evaluate the effect of refusal on the mother. Its recommendation was a bare one, without analysis identifying the significant factors. It was consequently incomplete and one-sided. The approach formed part of the established line of authority beginning with Poel v Poel [1970] 1 WLR 1469 and extending to Payne.
5. The remaining complaints concerned the weight assigned to individual welfare factors. Such assessment is primarily for the trial judge, and an appellate court will not readily interfere merely because a different weight might have been given. The appeal therefore failed.

• Court of Appeal (Civil Division): In [2012] EWCA Civ 1893, the father’s appeal was dismissed.
• Gloucester County Court: HHJ Harington granted the mother permission to remove the children permanently from the jurisdiction, subject to a mirror order from the relevant United States court.