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The importance of considering all the options in relocation cases

Date:27 FEB 2018
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Family analysis: Catherine Wood QC, of 4 Paper Buildings, reviews the decision in Re M (International Relocation: Welfare Analysis) [2017] EWCA Civ 2356 in which the Court of Appeal held that the judge had failed to carry out the sophisticated and complex analysis required in a relocation case.

What are the practical implications of the case?

Re M reinforces the requirement for a judge hearing a relocation case to properly consider the options for the child(ren) advanced by the parties, and to carry out a comprehensive analysis of each with an appropriate degree of sophistication and complexity, and followed the decision in Re F (A Child) (International Relocation Case) [2015] EWCA Civ 882, [2017] 1 FLR 979.

Practitioners should ensure that the information the judge will need in order to properly evaluate the competing proposals is clearly set out in the written evidence and supplemented (as necessary) in oral evidence.

Practitioners should also note the observations of Jackson LJ as to the ‘high quality’ of the Cafcass report and the ‘coherent analysis’ provided by the Cafcass officer who ‘cogently explained the importance to a child of this age being allowed to develop such an important relationship’ (in this case the significance of the child’s relationship with his father and the potential damage to that relationship was what particularly concerned the Cafcass officer). Faced with a ‘sophisticated Cafcass evaluation’, the judge at the first instance had not given any adequate explanation for disagreeing with it.

The child (L) was three years and four months old at the time of the hearing. Practitioners may find that this is a useful case when seeking directions at the outset of a relocation application, as it demonstrates the importance of a court having the assistance of a welfare report when determining these difficult applications, particularly where a child is too young for its wishes and feelings to be directly assessed.

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What was the background?

The mother is a Colombian national who had acquired British citizenship in 2012, having settled in London in 1999. The parties began a relationship in 2012 which ended in 2013.

In March 2014 L was born, and at around that time the maternal grandparents travelled from Colombia to London to support the mother. Between July and November 2014 the mother and L lived with the paternal grandparents. At Christmas 2014, the mother travelled with L to Colombia and the father joined them for part of the time.

By March 2015 L had started nursery in London; both parents were working and living in London. L began to have overnight stays with his father in addition to other times that he spent with him. The parents and L also spent ‘family time’ together. Christmas 2015 was spent at the paternal grandparents’ home and with the maternal grandparents staying there too.

Difficulties arose in 2016 when the father sought short holiday periods with L in England, to which the mother would not agree. There was also a disagreement about the dates of a trip to Colombia that the mother wished to make over Christmas 2016. The father issued proceedings and the mother responded with an application to relocate to Colombia. The father opposed the mother’s application and sought a ‘live with’ child arrangements order reflecting the existing arrangements but with an additional overnight stay each week.

What did the court decide?

The judge at first instance gave permission to the mother to relocate L to Colombia.

The Court of Appeal allowed the appeal on the following basis:

  • the judge did not give proper overall consideration to the parents’ competing proposals but instead gave priority consideration to the mother’s proposals;

  • the judge underestimated the value to L of living in the same country as both parents, and failed to give any adequate reason for her departure from the Cafcass officer’s recommendation;

  • the judge gave undue consideration to the impact of the decision on L’s mother and, having done so, placed more weight on that than the evidence allowed.

The matter was remitted for a re-hearing, with the case to be allocated by the Family Division Liaison Judge for London to a circuit judge or as otherwise decided.

This analysis was originally published on LexisPSL Family (subscription required). Click here to request a free 1-week trial

Catherine Wood QC  MCIArb is a leading private law specialist. She has particular expertise in high conflict disputes concerning children. She is frequently instructed in relocation cases. Catherine is a contributing editor to the Butterworths Family Law Service. She is a member of the International Academy of Family Lawyers, the Family Law Bar Association and the Bar Pro Bono Unit. She is also a recorder (private and public family law) and an arbitrator. In Re M Catherine was instructed by Lucy Phipps of Harrowells for the applicant.

Interviewed by Kate  Beaumont.