Re B (Child) (Relocation: Sweden) (Rev 1)

In a child-relocation appeal, the Court of Appeal will not revisit a trial judge’s welfare evaluation merely because another assessment is possible. Where the judge applied the established best-interests principles, heard the witnesses and reached conclusions open on the evidence, the appellate court must respect the trial advantage. A judge may differ from professional recommendations if the reasons are clear and valid. Evidence from a treating psychologist is not automatically excluded or deprived of weight because of the therapeutic relationship or the absence of oral evidence. The inevitable reduction in a parent’s day-to-day contact is important, but is not necessarily decisive where welfare, protection and enforceable contact arrangements have been evaluated.

Following the breakdown of the parents’ relationship and earlier proceedings concerning the child’s retention in Sweden, the mother applied for permission to relocate permanently with their five-year-old daughter. Mostyn J made an order on 21 November 2014 permitting the relocation. The father appealed, challenging the judge’s treatment of professional evidence, his findings about each parent and the maternal family, the assessment of protective risks, and the impact on contact. The central issue was whether the judge’s welfare evaluation and decision to permit relocation were flawed or outside the range of conclusions open to him.

The appeal was dismissed. The court treated it as an attack on the judge’s evaluation of the evidence and the child’s welfare, rather than on the governing legal principles. Those principles were regarded as clear and stable in light of K v K [2011] EWCA Civ 793 and Re F (Relocation) [2012] EWCA Civ 1364.

1. Appellate restraint. The judge had heard a week of oral evidence and had a substantial advantage in assessing the parents and other witnesses. The Court of Appeal had heard no evidence. Applying the approach explained in Piglowska v Piglowski [1999] 2 FLR 763, it would not interfere unless the judge had adopted a wrong approach or reached conclusions unavailable on the evidence. No such error was demonstrated.
2. Professional evidence. The judge was entitled to give limited weight to the social worker’s view and to differ from the CAFCASS officer’s recommendation. Professional advice required careful consideration, but the judge’s reasons for departing from it were clear and valid. He had also heard evidence about the maternal family that was unavailable to the CAFCASS officer.
3. Treating psychologist. There was no general rule that evidence from a treating psychologist had little or no value because of the therapeutic relationship. Nor was the evidence deprived of weight because the psychologist did not give oral evidence. Its reliability and weight were matters for the judge, who compared it with his own observations.
4. Welfare and contact. The judge was entitled to find that relocation would provide the mother and child with greater stability and security, while recognising that distance would impair the father’s day-to-day participation. He considered the father’s protective role, the proposed contact arrangements and their enforceability in Sweden. His overall conclusion that relocation better served the child’s interests was open to him.

The appeal was accordingly dismissed.

• Court of Appeal (Civil Division) dismissed the father’s appeal against the relocation order on 26 March 2015: [2015] EWCA Civ 286.
• High Court of Justice, Family Division Mostyn J ordered on 21 November 2014 that the mother could remove the child permanently to Sweden.