TC and JC (Children: Relocation)

In an application to relocate children overseas, the child’s welfare is paramount. There is no legal or evidential presumption in favour of relocation by a primary carer, or against it. The Court of Appeal’s guidance remains valuable, but it must not be applied rigidly or treated as a fixed legal test. The court must evaluate all relevant circumstances and make a value judgment about the children’s best interests. The welfare checklist in Children Act 1989 remains central. The impact of refusal on the applicant parent may be decisive where it materially affects that parent’s capacity to meet the children’s needs, even where the proposed relocation would preserve substantial contact with both parents.

The mother had removed the two children from England to Australia in 2011 without the father’s consent. Following Hague Convention proceedings and an appeal in Australia, the children returned to England in August 2012. The mother then applied for permission to relocate them to Australia.

The parents agreed that, whichever country was selected, the children would enjoy shared care and that the unsuccessful parent would move there. The central issue was therefore which location, England or Australia, best served the children’s welfare, having regard in particular to the parents’ immigration, financial and practical circumstances.

1. The mother’s application to relocate the children to Australia was granted, taking effect during the forthcoming school summer holidays. The children were to live with both parents in Australia, sharing their time equally on an alternate-week basis during term and equally during holidays.
2. The court began with a blank sheet. Under Children Act 1989, s 1(3), the welfare of the children was paramount and the statutory factors had to be considered. There was no presumption in favour of the mother, no presumption against relocation, and no legal principle favouring a primary carer. The assessment involved factual evaluation and a value judgment, rather than the exercise of an unfettered discretion.
3. The guidance derived from Payne v Payne remained useful. It directed attention to the genuineness and practical foundation of the proposal, the impact on each parent, the reasons for opposition, and the effect on the children’s relationships. It was not confined to classic primary-carer cases, but it could not be applied rigidly or as a set of presumptive rules.
4. The factors identified in the guidance were aids to the ultimate question, namely what was in the best interests of the children. Their answers were neither determinative nor necessarily decisive in themselves. The court had to avoid taxonomical disputes about the category of relocation case.
5. The children’s needs were broadly capable of being met in either country. However, refusing relocation would leave the mother facing serious immigration, financial and employment difficulties in England. Those difficulties would diminish her capacity to meet the children’s needs and risked separating her from them. The father, by contrast, could make suitable arrangements in Australia. This comparative impact was the decisive factor.
6. The mother’s previous abduction was deplorable, but the court had to decide the application by reference to the children’s welfare and could not punish her for past conduct. The parents were directed to share the children’s care equally. Any future disputes about living arrangements were left to the Family Court of Australia.

The judgment describes Hague Convention proceedings in Australia, including an initial dismissal and a successful appeal, but those decisions concerned the children’s return and were not appellate stages of the present application. This court determined the relocation application at first instance.