C (N, W & H), Re

A relocation application must be decided by evaluating the children’s welfare as a whole. The relationship with the parent left behind is central, but it has no automatic priority over the relocating parent’s emotional wellbeing and ability to care. In a finely balanced case, an appellate court will not substitute its view where the first-instance judge has weighed the competing viable options and given adequate reasons. Reasons may be assessed from the judgment as a whole. If parents cannot communicate, the court should determine the practical conditions of relocation and contact rather than leave them to agreement.

The father appealed from an order of HHJ O’Brien in the Cambridge County Court granting the mother permission permanently to relocate their three children from England to Brazil. The father challenged the weight given to the children’s strong relationship with him and the evaluation of arrangements for direct and indirect contact after relocation.

He also sought to raise a further point, relying on Re W (Leave to Remove), concerning the joint case management of financial and children issues. The central question was whether the judge had adequately evaluated the competing welfare consequences of relocation.

Lord Justice McFarlane delivered the judgment, with Lady Justice Arden and Lord Justice Sullivan agreeing. The father’s appeal was dismissed.

1. The appeal principally concerned the children’s relationship with their father and the practical prospects of maintaining contact after relocation. The judge’s judgment, read as a whole, showed that this relationship had been given careful and central consideration.
2. In a relocation case, the relationship with the parent left behind must be weighed against the other welfare considerations. It has no automatic priority. Here, the judge was entitled to balance the detriment caused by reduced face-to-face contact against the mother’s emotional wellbeing, her need to return to Brazil, and the likely effect of improved wellbeing on her ability to parent. The case was properly treated as finely balanced.
3. The judge recognised that Skype contact was an inadequate substitute for face-to-face contact. He was nevertheless entitled, on the evidence, to assume that the father would make substantial visits to Brazil and that the mother would facilitate regular indirect contact. The conclusion that relocation better served the children’s welfare was open to him.
4. The adequacy of reasons was to be assessed by reading the judgment as a whole. Although the judge’s concluding paragraphs were shortly expressed, his reasoning and evaluation could be adequately discerned from the full judgment.
5. The additional argument based on Re W (Leave to Remove) was dismissed from consideration. There was no indication that the father had sought the proposed case-management arrangement below, and the point had not been properly raised in the appeal.
6. Because the parents were unable to communicate, it was inappropriate to leave the conditions and practical details of relocation and contact for them to agree. Those matters were to be settled at a further hearing before HHJ O’Brien, and the stay on relocation was to remain until satisfactory terms had been fixed.

• Court of Appeal (Civil Division) — In [2014] EWCA Civ 705, the father’s appeal was dismissed. The conditions and practical details of relocation were directed to be settled at a further hearing.
• Cambridge County Court — On 20 December 2013, HHJ O’Brien granted the mother permission permanently to relocate the children from England to Brazil.