M (A Child)

In an international relocation case, the court must analyse each realistic option on its own merits and compare the options by reference to the child’s welfare. The analysis must have the sophistication required by the importance and complexity of the decision.

A judge must evaluate the evidence supporting each side of the welfare balance and give adequate reasons for the selected outcome. Where a coherent Cafcass assessment is rejected, the reasons must engage with its essential analysis. A conclusion that a parent would be happier after relocation cannot carry decisive weight without an assessment of the parent’s actual circumstances and the likely effect on the child.

A three-year-old boy lived in England and had frequent care from both parents, together with an important relationship with his paternal grandparents. His mother applied for permission to relocate with him permanently to Colombia, where her family lived. The father opposed relocation.

A Cafcass officer recommended refusal because relocation would substantially diminish the developing relationship between the child and his father. A Deputy High Court Judge nevertheless granted permission, placing decisive weight on the mother’s unhappiness in England and the benefit to the child of living with a happier mother.

The father appealed. The central issues were whether the judge had undertaken a proper comparative welfare evaluation, adequately assessed the value of the child’s relationship with his father, and sufficiently explained both the weight given to the mother’s circumstances and the departure from Cafcass’s recommendation.

Appeal allowed. Peter Jackson LJ delivered the judgment, with which Moylan LJ agreed.

1. A valid decision in an international relocation case requires an appropriately sophisticated and complex welfare analysis. Each realistic option must be considered on its own merits and then compared with the alternatives. The court must select the outcome that best meets the child’s welfare needs and give adequate reasons for doing so, applying the approach in Re F (A Child) (International Relocation Cases) [2015] EWCA Civ 882.

2. The judge had adequately summarised the evidence, directed herself on the law and identified the broad competing considerations. Those considerations were the substantial benefit of the child’s existing arrangements with both parents and the possible effect on him of remaining with an unhappy mother. The decisive task, however, was to evaluate the mother’s actual circumstances, the degree of her unhappiness and the way in which her position was likely to affect the child.

3. The required evaluation was absent. The judge treated the mother’s likely greater happiness in Colombia as decisive without explaining why her established circumstances in England would harm the child. She did not balance that evidence against the established success of the child’s relationships with both parents and his paternal family.

4. The judge also failed adequately to explain her departure from the coherent Cafcass assessment. That assessment concerned the continuing formation of a significant parental relationship, rather than merely the frequency of contact. Characterising the officer as having placed undue weight on that relationship did not address the substance of her evidence.

5. The concluding analysis focused on relocation without giving equivalent consideration to the status quo. The absence of the required reasoning meant that the essential judicial task had not been performed. The relocation order was therefore set aside. Unless the parents agreed future arrangements, the mother’s application was to be reheard, with no indication from the Court of Appeal as to the appropriate result.

By way of a procedural postscript, a case allocated at circuit judge level could not be reallocated for hearing at High Court level without compliance with the applicable presidential guidance. The present conventional relocation case had not required such reallocation.

• Court of Appeal (Civil Division): Allowed the father’s appeal, set aside the permission for permanent relocation and directed that, absent agreement, the mother’s application should be reheard.
• Deputy High Court Judge: Granted the mother permission to remove the child permanently to Colombia and made arrangements for the child’s future time with his father.
• Family Court: At interim hearings, refused a proposed holiday in Colombia and regulated the time the child spent with his father.