P (Children), Re

In an international child-relocation case, the welfare analysis must be based on relevant evidence and the statutory welfare principles. A parent’s alleged motivation to restrict the other parent’s involvement must not become decisive without supporting particulars and evidence. A wish to regulate contact under agreed orders is distinct from an intention to undermine the other parent’s relationship with the children. Appellate intervention remains limited, but is justified where the evaluation falls outside the broad spectrum of reasonable judgment and involves a misdirection on a key issue.

The mother applied to relocate permanently with the two children from England to Germany. The parents were German nationals, both had parental responsibility, and the children lived with the mother following the breakdown of the relationship. Manchester County Court, on 2 December 2013, refused the application, finding that the mother’s primary objective was to limit the father’s involvement in the children’s lives. The mother sought permission to appeal, arguing that the finding about her motivation was unsupported and had been treated as decisive. The central issue was whether the judge was entitled to reach and rely on that finding within the welfare evaluation.

Lord Justice Ryder gave the judgment of the court. Sir Stanley Burnton and Lord Justice Kitchin agreed.

1. Disposition. Permission to appeal was granted. The appeal was allowed, the order refusing relocation was set aside, and the matter was remitted for rehearing by a different judge.
2. Applicable framework. The application was governed by section 1 of the Children Act 1989 and required a welfare analysis. The agreed summary of the relocation authorities traced the development of the law through Payne v Payne [2001] 1 FLR 1052, MK v CK [2011] 3 FCR 111 and Re F (a child) [2012] EWCA Civ 1364. Re Y [2004] 2 FLR 330 was treated as a fact-specific decision that established no competing principle. The relevance of Brussels II Revised should have received greater emphasis, but that omission alone would not have justified allowing the appeal.
3. Finding about motivation. The judge’s conclusion that the mother’s primary objective was to restrict the father’s involvement was central to the decision, not collateral or peripheral. The evidence supported, at most, a wish to limit contact to agreed court orders. That was materially different from an intention to interfere with the father’s relationship with the children by relocating. The judgment contained no relevant particulars, and no adequate evidential basis beyond inferences drawn from the relationship breakdown, for the more serious finding. The mother had not refused contact or breached the agreed orders.
4. Appellate review and rehearing. The court respected the special position of a first-instance judge who had heard the witnesses. Nevertheless, intervention was justified because the conclusion fell outside the broad spectrum of judgment available and involved a misdirection on a key issue. On rehearing, accommodation, financial needs and obligations, employment prospects, the nature and extent of each parent’s relationship with the children, and the other welfare factors had to be reconsidered without the unsupported motivation finding becoming decisive.

1. Court of Appeal (Civil Division) [2014] EWCA Civ 852: permission granted and appeal allowed; the order below was set aside and the matter remitted for rehearing by a different judge.
2. Manchester County Court: Her Honour Judge Roddy refused the mother’s application for permanent relocation on 2 December 2013.