M (Children), Re

In an application to relocate children abroad, the child’s welfare is paramount. No presumption favours or opposes relocation, including where the applicant is the primary carer. The Payne guidance remains useful, but it is flexible guidance and does not dictate the result. A parent need not prove that relocation is economically necessary. The effect on a newly constituted family and the relocating parent’s legitimate career plans may be relevant, provided they are assessed through the children’s welfare. The children’s relationship with the other parent and practical contact arrangements remain important. On appeal, the judgment must be read as a whole and in context. It need not address every fact, submission or welfare-checklist heading separately if it explains the result and permits meaningful appellate review.

The father appealed against an order made by HHJ Wallwork in the High Court (Family Division) on 22 July 2016, permitting the mother to relocate to Moscow with the parties’ two children. The father argued that the judge had given excessive weight to the mother’s relationship with the step-father and had failed adequately to analyse the evidence, particularly the mother’s financial affairs and motivation. The mother maintained that the judge had conducted a proper welfare evaluation. The appeal required consideration of the proper use of relocation guidance, the relevance of the newly constituted family and career plans, the adequacy of the judge’s reasoning, and safeguards for continuing contact with the father.

Appeal dismissed. Lord Justice Underhill agreed with the judgment of Lady Justice King.

1. Relocation applications are governed by the paramountcy of the children’s welfare under the Children Act 1989. There are no presumptions. The guidance in Payne v Payne [2001] EWCA Civ 166, as explained in K v K (Relocation) (Shared Care Arrangement) [2011] EWCA Civ 793 and Re F (Relocation) [2012] EWCA Civ 1364, must not be treated as a rigid rule or as dictating the outcome.
2. The impact of refusal on a newly constituted family may properly form part of the welfare assessment. A primary carer may pursue legitimate career and professional objectives where doing so is consistent with the children’s welfare. The parent need not establish economic necessity. The children’s relationship with the left-behind parent and the continuation of meaningful contact remain central considerations.
3. The adequacy of the first-instance judgment had to be assessed by reading it as a whole and in context. The judgment had to explain why the parties had won or lost and provide sufficient detail and analysis to enable appellate review. It did not have to address every disputed fact, submission or welfare-checklist heading separately. The appellate court should focus on substance rather than narrow textual criticism.
4. The judge was entitled to find that the mother’s job offer and business plans were genuine and sufficiently choate, notwithstanding the absence of immediate economic necessity and the independent social worker’s reservations. He was also entitled to find that the mother’s motivation was genuine and that relocation need not damage the father’s relationship with the children. The proposed contact arrangements, the parties’ resources and the financial charge of £600,000 were relevant safeguards. The possibility of breach or imperfect enforcement in Russia did not make relocation impermissible. The welfare evaluation disclosed no appealable error.

• Court of Appeal (Civil Division): In [2016] EWCA Civ 1059, the father’s appeal was dismissed.
• High Court (Family Division): HHJ Wallwork made an order on 22 July 2016 permitting the mother to relocate to Moscow with the children.