Re J (Children: Relocation)

In relocation proceedings, the court must determine whether the proposed change serves the children’s welfare, taking account of the statutory welfare checklist and the effect of changing their circumstances. The applicant is not subject to a legal burden of proof merely because she seeks to alter an established arrangement, although she must present the evidence and argument needed to show that the change is in the children’s interests. A temporary removal decision must address the risk of non-return, the practical enforceability of return, and the competing consequences for the children. A short-notice application made without effective notice may prevent that assessment. An applicant’s lack of candour, or the failure of close family members to provide relevant evidence, may materially undermine the application.

The parents of two children appealed and sought permission to appeal from orders made by Mostyn J in the Family Division. The judge refused the mother’s application to relocate the children permanently from England and Wales to Ukraine, but temporarily permitted her to return there with them while an infant half-sibling’s visa position was resolved.

The father appealed against the temporary permission. The mother sought permission to appeal against the refusal of permanent relocation, alleging errors concerning burden of proof, welfare analysis, factual findings and the treatment of evidence. The central issues were whether the temporary removal order was consistent with the judge’s findings and whether the mother had shown a real prospect of successfully challenging the refusal of relocation.

1. The father’s appeal was allowed, and paragraphs 3 and 6 of the order permitting the children’s temporary removal to Ukraine were set aside. The mother’s application for permission to appeal against the refusal of permanent relocation was refused.
2. The temporary permission was inconsistent with the judge’s immediately preceding findings about the mother’s conduct, trustworthiness and the influence of S. The judge was required to assess the degree of risk that the children would not be returned and the consequences if that occurred. The analysis urged by reference to Re R [2013] EWCA 1115 was required in substance.
3. Ukraine’s status as a Hague Convention country did not remove the need for a risk assessment. Return proceedings might be protracted. Previous compliance with return or contact arrangements did not establish equivalent future compliance because the mother’s incentives had changed after the adverse relocation decision. The short-term difficulty of separating the children from their mother and infant half-sibling had to be weighed against the possible medium- to long-term separation of the children from their father.
4. The mother’s proposed appeal had no real prospect of success. The judge had found that her motivation was not genuine, had no confidence in her trustworthiness, and had been given an incomplete presentation because S had not provided evidence. Those findings were central. The Court of Appeal found no improper burden of proof: the observation that a parent seeking to change a functioning status quo must make the running in evidence and argument did not impose a legal burden when the judgment was read as a whole.
5. The judge had considered the effect of refusal on the mother and had not adopted a linear welfare analysis. The welfare checklist in section 1(3) of the Children Act 1989 was taken into account. The Court of Appeal regarded additional concepts concerning parental stoicism, drawn from AR (Relocation) [2010] EWHC 1346, as potentially unhelpful, but the judge’s overall reasoning remained lawful. Consequential drafting, notice requirements, a possible penal notice and a mirror order were left for consideration.

• Court of Appeal (Civil Division): The father’s appeal against the temporary removal order was allowed and paragraphs 3 and 6 were set aside. The mother’s application for permission to appeal against the refusal of permanent relocation was refused.
• High Court of Justice, Family Division: Mostyn J refused permanent relocation of the children to Ukraine but granted temporary permission for the mother to return there with them.