K (Child)

In a child relocation appeal, welfare remains the paramount consideration. The judge must weigh all relevant factors and options, including the child’s relationships, needs, wishes and feelings, the likely effect of change, and the parents’ interests. A separate Article 8 proportionality exercise is unnecessary where those matters are integrated into the welfare analysis.

A judge may find that an alleged fact is not established without finding that it did not occur. An unestablished fact is treated in law as not having happened and should not be relied on adversely. Appellate courts should read an ex tempore judgment as a whole and avoid narrow textual analysis or demanding ritual citation of authorities.

The father appealed against an order made by Her Honour Judge Tucker on 3 December 2015 permitting the mother to take their daughter, A, to live permanently in the Republic of Ireland. A had already been taken to Ireland, no stay having been sought.

The appeal challenged the judge’s treatment of allegations that the father had behaved inappropriately towards A, her welfare analysis of the relocation proposals, the absence of a separate proportionality assessment, and her reliance on the CAFCASS officer’s recommendation. The central issues were whether the judge had made legally adequate findings and whether her judgment disclosed a lawful, sufficiently reasoned welfare evaluation.

Disposition. The appeal was dismissed.

1. A judge is entitled to hold that an alleged fact is not established on the evidence without finding, on the balance of probabilities, that it did not occur. The consequence in law is that the unestablished fact is treated as not having happened. The judge’s references to the absence of direct evidence from A did not demonstrate any different approach.
2. The judge had not relied adversely on the unproved allegations. She rejected the allegation of a karate chop and treated it as falling out of the evaluation. As to the alleged nudge, she found that the incident as described was not proved, while accepting that something relatively innocuous, such as a joke that went wrong, might have occurred. That did not amount to treating the allegation as established. The judge also found that the mother had not fabricated or encouraged the allegations, so there was no evidential foundation for predicting further allegations.
3. In relocation cases, the child’s welfare is paramount. The court must weigh all relevant factors and available options to determine which course best meets that welfare. The factors associated with Payne v Payne [2001] 1 FLR 1052 may be considered, but they do not replace the general welfare evaluation or receive automatic or determinative weight. Re C (Internal Relocation) [2015] EWCA Civ 1305 and Re F (International Relocation Cases) [2015] EWCA Civ 882 confirmed that proportionality is ordinarily integrated into the welfare analysis rather than conducted as a wholly separate exercise.
4. The judgment had to be read as a whole, in context and structure. Applying Re F (Children) [2016] EWCA Civ 546 and Piglowska v Piglowski [1999] 1 WLR 1360, the appellate court should avoid narrow textual analysis and should not require a ritual recitation of authorities, particularly in an ex tempore judgment.
5. Read substantively, the judge considered A’s wishes and needs, both parents’ proposals, the effect of relocation and refusal, the relationship between A and her father, alternative contact arrangements, and the risks of harm. She conducted her own welfare analysis, using the CAFCASS evidence principally concerning A’s wishes and feelings. The decision was open to her and disclosed no material error.

1. Court of Appeal (Civil Division) — dismissed the father’s appeal: [2016] EWCA Civ 931.
2. Birmingham Civil Justice Centre — Her Honour Judge Tucker’s order of 3 December 2015 permitted the mother to relocate permanently with A to the Republic of Ireland.