N-A (Children), Re

In child relocation proceedings, a child’s wishes and feelings are an important factor but do not determine the outcome, even where the child is older. Their weight depends on matters including age, understanding, possible influence and the welfare consequences of the proposed move. A judge may conclude that children who have enjoyed holidays abroad do not understand the practical consequences of permanent relocation. A judge meeting children should generally listen as a passive recipient of their views. Departure from guidance does not itself invalidate the decision. The appellate question is whether the departure caused material unfairness or affected the outcome. Where impressions formed from a private meeting evolve during the hearing, disclosure is prudent, but non-disclosure is not necessarily fatal where the decision rests on other evidence and factors.

The father applied for permission to relocate his two sons permanently from England to Iran. The boys, aged 15 and nearly 13 at the first-instance hearing, expressed a wish to move. Mrs Justice Hogg refused permission on 5 February 2016, finding that relocation was not in their best interests, having regard to education, language, contact with their mother, the father’s circumstances and the boys’ understanding of permanent relocation.

On appeal, the father argued that insufficient weight had been given to the boys’ wishes and feelings. He also argued that the judge’s meeting with the boys breached the 2010 Guidelines and that she relied on impressions formed during the meeting without giving the parties an opportunity to address them.

1. The appeal was dismissed. The first-instance decision was not materially flawed.
2. A judge meeting children during family proceedings should generally act as a passive recipient of their point of view, as explained in Re KP [2014] EWCA Civ 554. Questions had been asked during the meeting, but there was no evidence of the probing questioning criticised in that authority. In any event, the father knew immediately that questions had been asked and could have challenged the process, questioned the CAFCASS officer or addressed the issue in submissions.
3. The fact that the judge’s impressions of the meeting developed during the hearing did not itself require disclosure of provisional conclusions. Judges routinely form impressions of parties and witnesses. However, where the impressions derive from material unavailable to the parties, it is prudent to tell them of a material change in impression so that they can address it. The judge’s failure to disclose her concern that L might feel relief if relocation did not occur did not invalidate the decision because the outcome was driven by other evidence and welfare considerations.
4. The boys’ wishes and feelings were only one factor in the best-interests assessment. The judge was entitled to find that the boys had been influenced by their father and did not fully understand what permanent relocation would entail. Their experience was principally of holidays, and the proposed arrangements differed from L’s expectations, including the change from private schooling to a construction apprenticeship.
5. The judge was also entitled to treat the likely damage to the boys’ relationship with their mother as a substantial factor against relocation. Other relevant considerations included language difficulties, disruption to B’s education, uncertainty about the father’s future ability to work, and the practical reliability of future contact. The judge had considered the positive features of relocation as well as its risks.
6. The CAFCASS officer was entitled, and required, to advise on the best interests of the boys at their ages when the report was prepared. The possibility that relocation might become appropriate after B’s GCSEs did not make the recommendation objectionable. The judge had properly evaluated the evidence and reached a conclusion open to her.

• Court of Appeal (Civil Division): On 5 April 2017, the father’s appeal was dismissed. [2017] EWCA Civ 230.
• High Court of Justice, Family Division: Mrs Justice Hogg refused the father’s application on 5 February 2016 for permission to relocate the children permanently to Iran.