O (A Child), Re

In a child-relocation appeal, the appellate court must assess whether fresh evidence could realistically have altered the welfare decision. If it would not, the order should not be quashed or remitted. Remission is a last resort, especially where it would create a third trial and further involve the child, and requires a fundamental necessity to secure due process or do justice. A welfare assessment may properly consider the primary carer’s financial and emotional security, practical availability to the child, contact arrangements, and the advantages and disadvantages of relocation. The child’s wishes and feelings must be considered, but their weight depends on age, understanding and circumstances.

The mother applied to relocate with the child from England to Ireland. His Honour Judge Cryan allowed the application after weighing the child’s welfare, the mother’s financial and domestic security, the proposed contact arrangements and the child’s wishes. Before the order was perfected, the father offered financial support, leading to a limited rehearing focused on financial matters. The judge maintained the relocation decision.

On appeal, the father challenged the refusal of updated Cafcass evidence and separate representation for the child, alleged excessive emphasis on financial matters, and relied on fresh evidence concerning the mother’s early retirement. The central issues were whether the process was unfair and whether the fresh evidence required the order to be set aside or the matter remitted.

The appeal was dismissed unanimously. Lord Justice Thorpe delivered the leading judgment, with Lord Justice Rimer and Lord Justice Patten agreeing.

1. The second hearing had been deliberately limited. It was not a re-investigation de novo, but a re-evaluation of the financial strand of the earlier welfare assessment. The applications for separate representation and an updated Cafcass report were raised too late. They should have been made when the judge was setting directions for the limited rehearing.
2. The judge had not placed improper emphasis on finance. In a relocation decision, it was proper to consider the practicalities and the primary carer’s financial and emotional security as part of the welfare assessment under the Children Act, alongside the effect on contact and the other advantages and disadvantages of the move.
3. The updated wishes-and-feelings evaluation added nothing material to the assessment already made. The child’s wishes had been taken into account, but they did not determine the outcome.
4. The court could not make findings about the mother’s alleged lack of candour on the basis only of counsel’s instructions. Even assuming that the father could establish such a lack of frankness, the decisive question was whether the information about early retirement could have led to a different result. It could not. The evidence would, if anything, have strengthened the conclusion that relocation was appropriate.
5. Remission was an order of last resort. A third trial, with further financial cost and renewed involvement of the child, was unjustified absent a fundamental necessity to secure due process or do justice. The order permitting relocation therefore stood.

1. Court of Appeal (Civil Division) On 5 December 2012, the court dismissed the father’s appeal: [2012] EWCA Civ 1955.
2. Principal Registry of the Family Division His Honour Judge Cryan permitted the mother to relocate with the child to Ireland, subject to substantial contact arrangements, and maintained that decision after a limited rehearing concerning financial matters. No citation for the lower court’s decisions was stated in the judgment.