M v F

In an international relocation application, the child’s welfare remains the paramount consideration. The court must conduct an overall, comprehensive assessment of welfare, applying the welfare checklist and weighing all relevant advantages and disadvantages. The Payne v Payne factors are a checklist of potentially relevant considerations, not principles or presumptions. The court must also balance the Article 8 rights of the children and both parents and assess proportionality. The quality and consistency of existing parental contact may materially affect the weight given to the benefits of relocation. A welfare professional’s recommendation is influential but does not determine the outcome where the court’s findings on the evidence differ.

The mother applied for permission to relocate two young children from England to Utah, where she wished to live with her husband. The father, who acted in person, opposed the application. The children had been primarily cared for by the mother, while the father’s contact had been irregular and sporadic. The CAFCASS officer recommended refusal, considering that the children needed continuing relationships with both parents and that the mother was not promoting contact. The central issue was whether relocation, with arrangements for continuing contact, would best serve the children’s welfare.

The application for permission to relocate the children to the United States was allowed.

1. Applicable approach. The court applied the modern approach identified in K v K, [2012] 2 FLR 880, Re F, [2015] EWCA Civ 882, and Re C, [2015] EWCA Civ 1305. Welfare was paramount and the welfare checklist in section 1(3) of the Children Act 1989 had to be applied through an overall assessment.
2. The court had to weigh all relevant advantages and disadvantages of relocation, including the children’s needs, the effect of the move, the loss or erosion of direct contact, and the benefits of the mother living with her husband. The Article 8 rights of the children and both parents had to be balanced, and any interference had to be proportionate and necessary.
3. The factors in Payne v Payne, [2001] 1 FLR 1052, were treated as a checklist of considerations which might require evaluation. They did not create principles or presumptions favouring or opposing relocation.
4. The father’s contact had been inconsistent and sporadic. The court found that this was principally because he had not shown sufficient commitment or proactivity, rather than because of obstruction by the mother. This reduced the weight of the expectation that relocation would destroy a stable and valuable pattern of contact. The prospect of future contact remaining regular and reliable was regarded as idealised.
5. The court was entitled to depart from the CAFCASS recommendation because it had heard and assessed the parties’ evidence and had reached different findings on the disputed factual issues. On the evidence, the mother’s relocation proposal was realistic and viable. Although relocation would substantially reduce the ease and amount of contact with the father, it was proportionate and in the children’s interests.