Court of Appeal (President, Lloyd & Elias LJJ)
The application by an Australian mother to relocate to Australia with two children (a girl of 12 & a boy of 8) was refused at first instance.
The court held:
99. The judge himself found that the mother would be "devastated" were her application to be refused. That, in my judgment, is a critical finding. There is also the statement from her health visitor and from her general practitioner, to which the judge makes no reference, No criticism can be made or was made of her relocation plans. It follows that not only was her motivation unimpeachable, but that the plans themselves were plainly in the best interests of the children. Thus all the factors on her side of the scales weigh heavily – and most heavily weighs the effect on the children, through her, of a refusal of permission to relocate.In addition to the specific issue raised in the appeal the President also reminds practitioners of the fact specific nature of relocation cases and the policy approach of the court to appeals in family cases.
100. Apart from the documents to which I have referred. the judge does not put into the scales either the loss to the children of their relationship with the mother's side of the family if the children do not go to Australia, or the benefit to them of contact with that since of the family if they do. In my judgment, these are serious omissions.
101. On the other side of the scale falls to be weighed the father's objection – and I do not minimise it – namely what he sees as the loss of the newly gained relationship with himself and other members of his family, including, of course, his two adult children by a different relationship.
102. My conclusion is that even when this factor is weighed in the scales the balance still comes down heavily in favour of relocation. I reach this conclusion for a number of reasons.
103. The first is, of course, that when one is looking at the best interests of children, the best interests of their primary carer is a very important consideration and, I have to say, on the facts of this case, clearly outweighs the newly acquired relationship with the left behind parent.
104. Secondly, there was no evidence that the father's relationship with the children would be terminated. The mother's evidence was that the children would visit England and spend a month a year with the father. He would also have the benefit of Skype, telephone and writing, both by Email and letter. These, moreover, are all within the province of the court to order – a fact which the judge nowhere considers.
105. Thirdly the judge was in my judgment wrong to assume the impotence of the court either here or in Australia. If either court refused to make a contact order – or rescinded an order already made, it could only do so on the basis that the new order – or lack of it – was in the best interests of the children. As to that, the common evidence was that the continuation and expansion of the relationship was in the best interests of the children, and speaking for myself, I would expect both courts so to order.
106. Equally, in these days of instant communication and internationally established liaison judges, I have more confidence than the judge (he expressed none) that neither court would sit idly by and allow the relationship to wither. In my judgment, the father should not be permitted to allow the fact that he is a litigant in person to lead the court to believe that as a consequence he is so disadvantaged that nothing will happen, or that his difficulties are insuperable.
107. It is in this context that I find that judge's bland acceptance of the father's failure of apply to the court for contact unacceptable. The proof of that particular pudding is surely in the eating. The father did not apply. When the mother applied to relocate, what happens? He gets court ordered contact. Even if – as to which there is no finding – the mother was obstructive, she did not obstruct the court ordered contact – rather the reverse
108. There is, moreover, a further reason for criticising the judge under this heading. Professor Marilyn Freeman of the Centre for Family Law and Practice in London, to whose work the father refers, conducted a one year qualitative research project into the question of relocation commencing in June 2008. As well as organising a conference in London in the summer of 2010, Professor Freeman published an article in International Family Law, which is based on the paper she gave to an earlier conference in South Africa. She asks the direct question: "Is Relocation in Children's Best Interests?" And the short answer which she gives is : "we don't know". She concludes her article with these words:
"So we have much work to do. We need to know, firstly, what impact relocation has on the relocated child and, in particular, about children's resiliency in these circumstances. From here, we will need to have the basis for international law to do what it says on the tin: to work in the best interests of the children the law seeks to serve."
Nobody, I think, could disagree with that. I certainly do not.
109. In my judgment, it follows that the balancing exercise has to be carried out on the facts of the particular case. For the English Judge at first instance the facts may show a case in which the importance of the continuing relationship with a left behind parent tips the scale against relocation. Such cases do, of course, exist: see, for example, the decision of Mostyn J in Re AR (a child: relocation)  EWHC 1346, to which the father refers. It is also, I think, worth noting that where the motivation of the relocating parent is found by the court to be inimical to welfare, the court has the power to prevent even a modest internal relocation: - see Re L (Shared Residence Order  1 FLR 1157.
Like all "relocation" cases, this application is highly fact specific and very difficult.