L v F

In a child-relocation dispute, the court must identify all realistic welfare options and evaluate them both on their own merits and comparatively. It must not decide, as a preliminary and separate stage, which parent is the child’s main carer before considering relocation.

Allegations of domestic abuse require a proportionate evaluation of their character, evidence and relevance to welfare. Findings of fact are not required where the allegations do not justify them. Difficulty in parental communication does not itself bar shared care. A judge may depart from professional advice if clear reasons are given. An appellate court must review the trial judge’s decision and must not allow an appeal on an unargued point.

The mother applied for permission to relocate the parties’ five-year-old son from England to Italy. If relocation were refused, she proposed that he should live mainly with her. The father opposed relocation and sought shared care.

HHJ Owens refused relocation and made a week-on/week-off child arrangements order. Russell J allowed the mother’s appeal, set aside that order, directed a rehearing, and made the child a party. The father brought a second appeal to the Court of Appeal.

The central issues were whether the High Court had correctly applied the appellate function, whether the trial judge was required to determine care arrangements before relocation, and whether further findings about alleged domestic abuse, shared care, professional advice, Brexit and separate representation were required.

1. Appeal allowed. The court restored HHJ Owens’s order. Her welfare decision was neither wrong nor unjust. Russell J’s decision was wrong and unjust because it relied principally on an unargued and incorrect legal premise, to the disadvantage of an unrepresented party.

2. A relocation application requires a holistic welfare assessment. Each realistic option must be assessed on its own merits and then compared with the alternatives. There is no separate legal stage requiring the court first to determine a child’s main carer or the division of time before considering relocation. HHJ Owens had considered all three realistic options and had merely expressed her conclusions in an orderly sequence.

3. Family Procedure Rules 2010, Practice Direction 12J, requires the court to assess the nature, evidence and likely welfare relevance of alleged domestic abuse. It does not require detailed fact-finding in every case containing complaints between parents. The trial judge had considered the material at each stage, obtained enhanced police checks, and was entitled to conclude that a forensic investigation was unnecessary and disproportionate.

4. There is no rule that ineffective parental communication prevents shared care. The statutory presumption of parental involvement under the Children Act 1989 does not prescribe an equal division of time. HHJ Owens selected equal shared care for child-specific reasons and did not adopt it as an artificial even-handed solution. Russell J impermissibly substituted her own assessment for that of the trial judge.

5. A judge may differ from a Cafcass recommendation, particularly in a finely balanced case, provided that clear reasons are given. HHJ Owens had explained why she disagreed with the recommendations on both relocation and care arrangements.

6. The uncertain future consequences of the United Kingdom’s withdrawal from the European Union could not properly be treated as a welfare factor without an evidential basis. Nor did the circumstances justify making the child a party: the relevant criteria for separate representation were not met.

• Court of Appeal (Civil Division): Allowed the father’s second appeal and restored the order of HHJ Owens.

• High Court (Family Division): Russell J allowed the mother’s appeal, set aside the Family Court order, remitted the case for rehearing and directed that the child be separately represented: [2017] EWHC Fam 1377.

• Family Court at Oxford: HHJ Owens refused the mother permission to relocate the child to Italy and made a week-on/week-off shared-care order.