C (A Child)

When a court reviews a child’s living arrangements after a parent has moved within the jurisdiction, it must assess the child’s welfare overall. The issue is not confined to whether the move should exceptionally have been prevented. Relevant considerations include the workability of existing shared-residence arrangements, the child’s relationship with each parent, each parent’s ability to promote the other relationship, and the effect of any change. A court may give little weight to a CAFCASS recommendation where it is materially affected by an inadequate assessment of parental motivation and lacks comparative observation. Permission to appeal should not be granted merely because a first-instance judge dealt briefly with a factor, where the judgment shows that the relevant evidence and welfare considerations were understood.

The mother sought permission to appeal against HHJ Vincent’s decision of 30 August 2012 concerning the living arrangements of her five-year-old daughter. A shared residence order had previously placed the child in the care of both parents, with defined periods spent with each. The mother then moved with the child to a geographically distant location within Cornwall without consulting the father. The judge altered the arrangement so that the child was predominantly based with the father and attended school near him.

The proposed appeal alleged errors of law concerning changes to a child’s primary carer and internal relocation, and errors in the assessment of the child’s views, the CAFCASS evidence and the effect of the move. The central issue was whether there was a real prospect that the judge had misdirected himself or failed properly to assess the child’s welfare.

1. Disposition. Lady Justice Black refused permission to appeal. The proposed grounds, whether directed to law, fact or discretion, had no real prospect of success.
2. Overall welfare assessment. The August decision was not simply a decision whether the mother should be prevented from relocating within the jurisdiction. It concerned whether the existing shared-residence arrangements remained workable after the move and what arrangement best served the child’s welfare overall. The judge was therefore not confined by an exceptional-circumstances approach to internal relocation. The preamble to the earlier order showed that the shared arrangement depended on a workable division of time. The fact that the mother had remained within Cornwall was irrelevant to the spirit and practical purpose of that provision.
3. CAFCASS evidence. The judge was entitled to place little reliance on the CAFCASS officer’s recommendation for sole residence with the mother. The recommendation could not readily be separated from the officer’s failure to take account of the finding that the mother’s motivation was to remove the child from the father’s society. The officer had also visited the mother but not the father, and therefore lacked comparative evidence of the child’s security in each parent’s care.
4. Reasons and welfare factors. The judge had not ignored the evidence about the effect of changing the child’s living arrangements. He recognised that the change would be an upheaval and took account of the child’s development while spending substantial time with the father. His finding that he could not rely on the mother to promote the child’s relationship with the father was central to the welfare evaluation and was one he was entitled to make.

Order: Application refused.

1. Truro County Court: On 30 August 2012, HHJ Vincent altered the shared-residence arrangements so that the child was predominantly based with her father and attended school near him.
2. Court of Appeal (Civil Division): On 15 January 2013, Lady Justice Black refused permission to appeal.