F v L

Where the future care of a child is disputed, the court should determine the child arrangements and identify the principal carer before deciding an application to remove the child from the jurisdiction. A relocation decision should be based on a properly informed welfare assessment, including any relevant allegations of domestic abuse and their potential effect on the child. An equal division of time is not automatically consistent with welfare where the parents’ homes are antagonistic. In appropriate cases, the child should be separately represented, particularly where long-term welfare, location and heritage require arguments to be advanced on the child’s behalf.

The mother appealed against a Family Court decision refusing permission to relocate with her five-year-old son to Italy and making shared-care arrangements sought by the father. The parents had cross-applications concerning the child’s principal care and residence. The mother alleged controlling and coercive behaviour by the father. The first-instance judge considered relocation before resolving the future care arrangements and made no findings on the allegations.

The appeal concerned whether that approach involved serious procedural irregularity and whether the child should be separately represented on the rehearing.

1. Appeal allowed. The first-instance judge had committed a serious procedural irregularity within FPR 2010 r30.12(3)(b). Where future care is disputed, the court must determine the child arrangements and who is best placed to provide care before considering relocation. The approach in Payne v Payne [2001] 1FLR 1052 established that sequence.
2. The judge had considered the child’s welfare and care arrangements only after deciding relocation. Her analysis gave insufficient attention to the welfare checklist and the issues directly connected with care. Although there may be urgent cases in which care and relocation are considered together, this was not such a case: see Re J (Leave to Remove: Urgent Case) [2007] 1 FLR 2033.
3. The judge had also erred by making no findings on the mother’s allegations of controlling and coercive behaviour. The court should consider the effect of domestic abuse on the child, the parent alleged to have suffered it, the parties’ ability to co-operate and the suitability of any shared-care arrangement. Equal division of time between hostile households is not necessarily in a child’s best interests.
4. The judge’s treatment of the Cafcass recommendations was superficial. Even if the reasons for departing from those recommendations might otherwise have been sufficient, the reasoning was materially affected by the flawed structure of the decision: see Re J (Children) (Residence: Expert Evidence) [2001] 2 FCR 44.
5. The matter was remitted to a different circuit judge for a rehearing of the child arrangements and thereafter any renewed relocation application. The child was to be separately represented and joined under FPR 2010 r16.2(1). His Italian heritage and extended family connections were relevant considerations, although not determinative. There was no order as to costs.

• High Court (Family Division): appeal from the Family Court at Oxford allowed. The decision of Her Honour Judge Owens dated 13 January 2017 was set aside and the issues were remitted for rehearing.