V (Appeal: Relocation), Re

In an internal relocation case, the governing principle is the child’s welfare. The court must evaluate all realistic options holistically, including whether the proposed move can be made to work for the child and both parents. The Payne v Payne [2001] EWCA Civ 166 factors may assist as a checklist, but they are not a prescriptive blueprint.

An appellate court hearing a challenge to a welfare evaluation proceeds by review, not rehearing. It should not interfere with findings of fact, evaluative conclusions or discretionary decisions unless the decision was plainly wrong, irrationally unsupported or outside the generous ambit of reasonable disagreement. A judgment should be read as a whole and not subjected to narrow textual analysis.

The father appealed against an order permitting the mother to relocate with their young child from the South of England to a city in the North of England. The order preserved a joint lives-with arrangement by varying the child’s time with the father after relocation.

The appeal alleged procedural unfairness through curtailed cross-examination, failure to consider commuting as a realistic alternative, errors of fact, and an impermissible exercise of discretion. Permission to appeal had been granted because the first-instance judge arguably failed to consider a third option. The central questions were whether the hearing was fair and whether the relocation decision was wrong.

1. Appeal dismissed. The first-instance decision was neither procedurally irregular nor outside the generous ambit of discretion.
2. The fairness of a hearing involving judicial interventions is assessed objectively by considering the proceedings as a whole. Relevant questions include whether the judge remained open-minded, treated the parties even-handedly, descended into the arena, prevented a party from presenting its case, or demonstrated a predetermined view. The interruptions were unfortunate and not ideal, but they did not prevent a reasonable opportunity to present the father’s case or render the hearing unfair.
3. The reference to a binary decision did not demonstrate a closed mind. Properly understood, it meant that the court had to decide whether relocation was in the child’s best interests. The recorder’s judgment showed that she evaluated the options holistically, applied the welfare checklist, considered the parents’ wishes and motivations, and assessed the effect of relocation on the child’s relationship with each parent.
4. Although the third option of the mother commuting could have been addressed more specifically, it was considered and, on the evidence, was not realistically available because the mother would not accept the position if required to commute. The recorder also considered the inconvenience and discomfort caused to the child by travel and the father’s proposal to travel instead.
5. The alleged factual errors were not made out. The findings that the mother was likely to become unemployed for an unknown period if she rejected the position, and that a future permanent role might require a move, were open to her on the evidence.
6. The appellate court’s task was review, not fresh evaluation. Applying Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5, Volpi and another v Volpi [2022] EWCA Civ 464 and Piglowska v Piglowski [1999] UKHL 27, the decision could not be said to be wrong.
7. There was no order for costs between the parties.

• High Court (Family Division): appeal against the order of Recorder Southern dated 22 April 2024 dismissed.
• Family Court at Bournemouth and Poole: permission granted for the mother to relocate with the child and the child-arrangements order varied.