IH v FA

In an appeal concerning relocation of children abroad, the appellate court must decide whether the first-instance decision was wrong, rather than exercise its own welfare discretion afresh. Intervention is justified only if the judge considered an irrelevant matter, failed to consider a relevant matter, went wrong in law, or reached a plainly wrong conclusion.

A first-instance judge must give proper weight to the likely disruption of the children’s relationship with the parent left behind. An inadequate emphasis on that issue will not necessarily invalidate the decision where the judge considered it, evaluated it with the other welfare factors, and reached a conclusion properly open on the evidence.

The father appealed against an order made by HHJ Loveridge on 22 March 2024 granting the mother permission to relocate with their three children from Newcastle to Alberta, Canada.

The first-instance proceedings followed fact-finding findings that the father had physically chastised the children and had behaved abusively and coercively towards the mother. The relocation hearing considered the children’s welfare, the mother’s isolation and support in Canada, the children’s relationship with the father, and arrangements for future contact. Permission to appeal was granted by Cusworth J on the issue of the impact of losing or diminishing contact with the father.

The central issue was whether the first-instance judge’s treatment of that impact made the relocation decision wrong or plainly wrong.

1. Appeal dismissed. The court’s task was not to exercise its own discretion afresh. It had to determine whether the first-instance decision was wrong because the judge considered an irrelevant matter, failed to consider a relevant matter, went wrong in law, or reached a plainly wrong conclusion.
2. The appellate court had not heard the witnesses and had to respect the first-instance judge’s advantages in assessing the parents and professional witnesses, including evidence heard during the earlier fact-finding hearing.
3. The judge should have given greater weight and consideration to the disruption of the children’s relationship with the father. Relocation would reduce frequent supported contact to approximately 15 days a year and would inevitably affect that relationship. The first-instance judge’s statement that the continuing need for supervision reduced the force of the father’s opposition was not accepted.
4. That error of emphasis did not fatally undermine the decision. The judge had not ignored contact. He had considered it at several points and reached his conclusion after weighing a range of factors, including the mother’s profound isolation, her mental-health difficulties, her exemplary care of the children, the support available from her extended family in Canada, and the proposed contact arrangements.
5. The relocation decision was properly within the first-instance judge’s discretion. Remittal would provide no benefit because the judge would reach the same conclusion, and there was no justification for the appellate court to substitute a different decision.
6. As a condition of the appeal failing, the mother agreed that the requirement for supervised contact would be removed by 1 July 2026, subject to the father completing a parenting course and the 2025 contact taking place in England.

• Newcastle upon Tyne Family Court: HHJ Loveridge made findings after a fact-finding hearing handed down on 5 August 2023, and on 22 March 2024 granted the mother permission to relocate to Alberta, Canada, with the children.
• High Court (Family Division): Cusworth J granted permission to appeal. Sir Jonathan Cohen dismissed the appeal.