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M (A Child) [2017] EWCA Civ 2356

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Case No: B4/2017/2510
Neutral Citation Number: [2017] EWCA Civ 2356


Royal Courts of Justice
Strand, London, WC2A 2LL

Date:  Wednesday, 13 December 2017



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Re M (A Child)
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Ms Catherine Wood QC (instructed by Harrowels Solicitors) appeared on behalf of the Applicant
Ms Claire Heppenstall
(instructed by Direct Access Scheme) appeared on behalf of the Respondent
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Judgment (Approved)
Lord Justice Peter Jackson:

1. This is an appeal from a decision of order Ms Elizabeth Isaacs QC sitting as a Deputy High Court Judge on 4 August 2017.  The issue before her was whether a three-year-old boy should be allowed to relocate with his mother to her native Columbia or whether he should remain in England, dividing his time between his parents care broadly as at present.  The decision she made was that the boy, who I shall call L, should live with his mother and that she should have permission to remove him to Columbia at the end of the following October.  A detailed schedule of the time that L would thereafter spend with his father was directed.  It was to be, in broad terms, annually in Columbia for two weeks at Easter, in this country for half the summer holidays and in this country or Columbia, alternating, at Christmas for four weeks, plus Skype contact and any other visits to Columbia that the father might make.

2. The father applied for permission to appeal from that decision and I granted permission on 11 October on the ground that, firstly, it was arguable that the judge had given priority consideration to the mother's proposal rather than balancing it against the father's and, secondly, that she had underestimated the benefit to a child of L's age of living in the same country as both his parents.  In granting permission to appeal I also granted a stay.


3. The background can be shortly stated.  The mother is in her early forties.  She moved from Columbia and settled in London in 1999, remaining there until 2003, when she returned to Columbia quite briefly.  The father is in his early thirties.  In 2004 he moved to live in London from the North of England, where his parents, the paternal grandparents, live.  In 2005, the mother returned to live in London and she has remained there since.  In 2012, she acquired British citizenship and also in that year, significantly, she suffered a stroke, which fortunately has not had lasting physical effects but which understandably causes her considerable anxiety.  In the same year, 2012, the parents began a relationship, which lasted for about a year, but during that time they did not live together.  Up to the time of the hearing before the judge, both parents were working in good jobs.  We have been told that since then the mother has lost her employment, something that was mentioned as a real possibility at the hearing. 

4. The parents' relationship ended in 2013 and after that, in [a date in] 2014, L was born.  He has seen his father very regularly throughout his life, and also his paternal grandparents, who have played an important role, and his maternal grandparents, who have visited, particularly for a period of three months or so at the time of his birth.  The nature of the relationship between the two families can be somewhat seen from the fact that between July and November 2014, the mother and L were living with the paternal grandparents in the north of England.  At Christmas that year, the mother took L to spend some weeks in Columbia with her family.  In March 2015, L started nursery and during that year the father began to have overnight contact once a week to add to the considerable amount of daily contact that he had been having.  Christmas 2015 was spent by all family members that I have mentioned together in the paternal grandparents' home.

5. The mother's situation in London as a single parent with a demanding job was obviously not easy but it was alleviated to some extent by the support that she was receiving from both wings of the family as I have described.  But in 2016, difficulties arose.  In the spring of that year, there was a dispute between the parents about their holidays.  The mother wanted to go to Columbia again at Christmas 2016 and the father ultimately was prepared to agree to that provided he was allowed some short holiday periods with his parents in England.  That disagreement led to the father issuing proceedings in August 2016 and the mother responding in September 2016 with her application for permission to go to Columbia for three weeks at Christmas but, more significantly, for her to be allowed to go permanently with L to live in Columbia immediately after that.

The proceedings
6. There were two interim hearings.  The first was in December 2016, when the circuit judge refused the mother's application for a holiday in Colombia and the second in March 2017, when the same judge crystallised the time that L was spending with his father so that it amounts in broad terms to ten nights every four weeks with some other adjoining days.  During the proceedings, both parents filed a number of statements but their key statements were filed, in the mother's case, in March and in the father's in May.  The mother explained how she found it incredibly challenging to continue living in London.  The father explained how L was thriving and should not be moved. 

7. On 14 June 2017, a report was filed by the Cafcass officer, Gemma Bond.  It recommended the refusal of the mother's application, with the father's time with L to continue at the current level.  She also suggested that the parties should return to mediation, which they had previously attempted. 

8. The Cafcass report is, in my view, of a particularly high quality and I shall read some extracts from it.  Having set out the background and made some observations of L as Ms Bond saw him, she said this:

"In my view part of the desire to relocate is to return to a type of family home the mother wishes to give L as she has not been able to recreate it herself with her own family in the UK.  Despite the fact that she has friends close by, a supportive paternal family for L and frequent support from the father, I do sympathise with the anxiety and loneliness that mother feels being the only adult day in and day out who manages the care of L.  This is not a shared responsibility as it would be if she had a partner or another adult in the home, especially in the first two years of child's life when there are illnesses, separations as the child starts nursery and the logistical demands of being a working parent.  The emotional and practical demands on the primary carer are substantial.  The father, with all the good will in the world, could not appreciate how demanding this was for the mother as he did not live with her and he has not had this daily (and nightly) responsibility for him, which is constant.  The mother's feelings of loneliness and isolation, in my view, are real and should be acknowledged.  It should be acknowledged that she has not been afforded the comfort of having her own family close by during those first two demanding years of L's life.  Nevertheless, these feelings speak rather for the demands the mother has experienced of parenting alone as opposed to L being a child who is suffering, isolated and being negatively impacted socially, emotionally by being in a single parent household - from the accounts of both parties, this case has not been made, in my view."

The Cafcass officer then expressed optimism that with a decision in this case the relationships between the parties would recover.  She continues:

"It may well be the case that the mother would be happier and more settled herself in Columbia and L would no doubt have a happy and fulfilling life there too.  However, it would deny L the established and frequent relationship he currently enjoys with his father and the family life available to L by live-in/close by extended family members in Columbia is not at an adequate substitute for a meaningful relationship with a relative as significant as a father.  There is not sufficient evidence that separating L from the active frequent relationship he has with his father is justified.  He is neither unsafe nor unhappy in the UK and were he to relocate he would lose more than he would gain as his relationship with one of the two most important people in his life - his father - would be reduced to that of say an uncle living abroad as opposed to an involved father."

Ms Bond then referred to the importance of the grandparents and perhaps particularly  the paternal grandparents in L's life and she then commented upon the value to L of indirect contact as follows:

"Technology is superb and hugely beneficial to long distance relationships but it is not a substitute for the intimate bond a child can enjoy uniquely in a parental relationship."

Finally, Ms Bond summed up:

"This is an enormously difficult decision and I have huge sympathy with the mother as it is quite different to live far from one's family before having children than it is after.  However, she has chosen to have a child with someone who is a UK resident and this child has an established relationship with his father in the UK.  The issue in hand gives a significant restriction to the relationship L would have with his father were he to live as far away as Columbia and be able to spend only a few weeks a year with his father face-to-face.  The father's role in L's life would not be one of being able to attend his school events regularly, take him to a weekend sports match or an activity club.  L would not have the benefit of a second parent's parenting style, strengths and interests in relation to learning day-to-day about how to interact with others, behaviour, different activities, knowledge and skills that different parents bring to a child's development.  This would be a loss for L and not one that could be compensated for at such a distance.  It is for this reason that I am unable to support the mother's application to remove L from the jurisdiction."

The hearing
9. The hearing before the recorder took place between 19 and 21 July with evidence being heard on two days from the Cafcass officer, the mother and the father and judgment being reserved.  The evidence that was given at the hearing did not, in my assessment, take the case in any different direction and I cite only three passages from it, one from each witness.  Firstly the Cafcass officer said this:

"Children of L's age when they are still creating these really key relationships and bonds with their significant care givers, in this case his two parents, it is important for that regular contact and experience of that relationship without such big gaps that it will affect that bonding process.  What I am trying to say is the bonding process and the significant caring relationship is still forming for L, which is not to say that he would forget his father or not have a relationship with his father from distance.  That is not what I mean.  But the quality of that significant carer relationship is still developing for L.  It is not embedded yet as it would perhaps be in an older child."

10. I next quote from the evidence of the mother.  Asked, "What is your motivation for your application to go to Columbia?" she said this:

"I had thought about going back to Columbia right after I had a stroke because it was as life changing moment in my life.  At that point L was not in the picture yet but that was the very first moment when I thought I have to stop and think about how my life is going.  I need support.  Because having a strong family I felt that is not normal and I don't have anyone to help me.  That was the first time.  I fell pregnant and L was born.  The plan had to stop because he was born and I never contemplated for a minute even if I didn't have a relationship with [the father], that L wouldn't be able to know who his father was and who his grandparents were.  My motivation after being three years here in this country with this very difficult situation is for L a better chance of a life within a family setting in Columbia and being supported growing up in a normal home would be better."

She continued:

"This is probably one of the most difficult decisions I will ever have to make in my life and I have thought about this position properly and carefully and considered all the possible options and it is not ideal.  In the ideal work a child lives in the same house with a father and a mother.  That is what the ideal is for me.  It is not going to be so what I think is the second best thing for L is to be surrounded by family constantly when I am supported.  I can look after my health and I can look after L as a result of that so there is a support network."

11. Finally, the father said this, referring to the mother:

"I think she has said she is unhappy and I accept that.  I accept there are elements of her being unhappy. I think one of those elements is that we do not have a traditional family setting that both she and myself enjoyed when we were growing up.  She lived in a happy home with her mother and father and we both had a brother and I think she is unhappy as I am for being unable to recreate that.  I think we are both agreed on this, that the best outcome for L would have been that type of situation but it is not quite possible where we are today because we are not in a relationship together and so we are very much in a modern family in that regard in that it's perhaps an untraditional arrangement.  But what I think is to her absolute credit, and I have worked very hard on this as well, we've then got the second best alternative which is to focus our energies on L and having him grow up in a great environment with two homes living in close proximity to each other and I appreciate that is not the ideal but I think that is the second best alternative that is available.  I think the third alternative by going away and living very far apart is nowhere near that second best alternative.  But what I am struggling to understand in my mind is that I think that this is one of the areas of unhappiness but I don't see that that would be any different for her.  I think [the mother] has another source of unhappiness as being what it is.  It is tough to be a single parent and hold down a demanding job that pays well therefore requires hard work and I've experienced that as well."

12. That was then, in short summary, the evidence before the judge.  I pause to comment that it will be apparent to anyone reading that evidence that both parents were approaching the decision that they had taken with great seriousness and with complete good faith as to what needed to be decided for their son.  But looked at objectively, it seems to me that the state of the evidence suggested the need for a good reason to be given before the arrangements for L were to be disturbed in the way that the mother proposed. 

The judgment

13. I come then to the judgment.  The first half of it, understandably, concerns the narrative and it is unnecessary to repeat that.  I first read from paragraph 4:

"The remarkable feature of this case is that somehow, notwithstanding protracted and acrimonious proceedings, and the father's robust opposition to the mother's proposal to remove L to Colombia, the parents have managed to build a functional happy and cooperative family life for their child.  In many respects they exemplify a model of how a separated extended family can operate functionally, effectively and in a child's best interests.  There is no doubt that the mother and the father have produced a beautiful, kind, well-adjusted little boy and there is absolutely no doubt that he is dearly loved and cherished by all of his family."

The judge then went on in the following paragraph to emphasise the importance of the grandparents on both sides of the family. 

14. Moving on, at paragraph 22, she introduced the shorthand of plan A, being the plan to relocate to Columbia and plan B, the plan to remain in the UK.  She then says this:

"The parties are therefore agreed that the two key issues I have to decide can be identified as follows.  Firstly in respect of plan A, should the mother's application for leave to permanently remove L from the jurisdiction to live with her in Columbia be granted?  Secondly in respect of plan B, in the event that L remains in the UK, should there be a child arrangements order providing that he lives with both parents or in the alternative lives with the mother and spend time with the father and also if not, should L spend an additional overnight stay and contact with the father during the week?

In referring to the key issues as plan A and plan B, I make it plain now as I did throughout the hearing that these descriptions have been used only for simplicity and ease of reference.  I do not regard the plans in any way hierarchically or in a linear fashion.  On the contrary, I have considered both options for L holistically, taking account of the fact within the welfare checklist, including but not limited to, those matters suggested within the various relocation authorities to which I have been referred but at all times maintaining L's welfare as my paramount consideration."

15. The judge then went on to give herself a direction on the law.  I return to make short comment on that later.  She correctly directed herself in relation to the significance of the Cafcass officer's opinion as follows:

"Finally it is agreed by both parties that I am not bound to accept the Cafcass officer's opinion and that I am entitled to carry out my own balancing exercise in relation to what is ultimately in L's best interest.  Where I may differ from the Cafcass officer, I am, of course, obliged to give reasons but ultimately the question of determining what is in L's best interest falls to me."

16. Then she embarked upon a consideration of the factors mentioned in the welfare checklist.  I take this paragraph from her treatment of  L's needs:

"The obvious effect of plan A would therefore be to curtail this very regular contact and replace it with less frequent but longer periods of holiday contact with the father, both in Columbia and the UK.  It is this loss of very regular contact that particularly concerned the Cafcass officer.  She was clear in her report and in her evidence this was a factor that when factored into her own balancing exercise, tipped her in favour of recommending that L should remain living in the UK, namely plan B.  However, the Cafcass officer also described L as an emotionally resilient little boy for whom she does not anticipate there being any developmental difficulties in the future."

Under 'a change in circumstances' the judge acknowledged that this would be, "A change in his entire physical and psychological environment."  She went on:

"As I have said, it is the potential loss of L's contact with the father that most concerns the Cafcass officer.  She said in evidence that it is the regular intimacy of such contact that cannot be reproduced on a day-to-day basis if the mother moves to Columbia with L.  The Cafcass officer's concern about this issue was, as I have said, the number of changes this would evoke for L.  However, she also described the positives of such a move, the emotional benefit to L of living with the mother who would be living with her own extremely supportive parents with whom L also has an undeniably close and a warm relationship that cannot be overstated.

It is plain on the evidence that L would flourish in Columbia just as he is flourishing in the UK.  There is no evidence to suggest otherwise, nor any concern about L's welfare in the even of either plan A or plan B forming part of either parent's case.  They are key concerns as I have already identified focused, and I do not mean this in any way pejoratively, on the impact on each of them in relation to the plans.  The Cafcass officer could not point to any other factor other than the loss of the very regular contact with the father that really underpinned her opposition to plan A."

17. The judge then came a little later to what she described as the key issue: 

"48.  The key issue in this case therefore really relates to balancing the possible detrimental effect the loss of the every day contact with the father arising from plan A against the possible detrimental effect on L of remaining in the UK with an unhappy, resentful mother who feels trapped arising from plan B.  Just as I have had to consider the impact on L of loss of very regular contact with the father and the ways of ameliorating that loss, so I have also had to consider the impact on L of remaining in the UK with a mother whose application to move has been refused and how that impact might be ameliorated.

49.  The impact on the mother of the refusal of her application is a relevant factor to be weighed in the balance just as the impact on the father of the granting of the application is also important.  Plainly the impact of remaining in the UK would be ameliorated by continuing very regular contact with his father.  However, when I weigh that against the impact caused by the mother's likely continued distress, I do consider that in all the circumstances the balance tips in favour of a move to Columbia.  It was submitted on the mother's behalf that effectively a refusal of her application would require her to remain in the UK for a further 15 years, almost certainly in rented accommodation.  It was submitted that she would only be surviving in the UK whereas the father would be flourishing.  I agree."

18. So it was that the judge announced her decision.  I add only these concluding paragraphs from the judgment.  Firstly under the heading of "Any harm which the child has suffered or is at risk of suffering:

"As I have already identified, each of these plans presents an attendant risk of emotional harm to L.  However, when I balance the ways in which the ways each type of harm could be ameliorated, I do consider that there is a greater risk of emotional harm arising from the mother's unhappiness, distress and likely strained circumstances in the event that her application is refused, which outweighs any ameliorating effect of continued very regular contact with the father.  It is that balance that ultimately leads to my decision in all the circumstances that it is in L's best interest for the mother's application to be granted.

I have considered the Cafcass officer's evidence and recommendations very carefully but ultimately I do consider that she was wrong in placing undue weight on elevating the benefits of L continuing to have very regular contact with the father in the UK over a balanced evaluation of all the attendant risks of L not moving to Columbia.  In that regard I depart from her recommendation, although of course her evidence about L's needs and the various important characteristics of both parents have played an important part in my overall consideration of what is ultimately in his best interests."

Finally, under the question of parental capacity:

"There is no question that L's physical and emotional needs will be met by living with either parent. I am entirely satisfied that both options mean that at present financially and practically both the mother and L would be well supported.  However, as I have already indicated, the evidence points to the mother's circumstances being much more likely to change if she remains in the UK than the father's.  Although she is currently employed, there is evidence that her job is at real risk of ending soon and her earning potential at present does not appear to begin to match that of the father, who is doing extremely well.  I also bear in mind that the mother is plainly unhappy living in England and wants to return to her country of origin and I do not underestimate the likely detrimental impact on L of living with an unhappy mother in England as opposed to living with a happier mother in Columbia.
I therefore grant the mother's application for permission to permanently remove L from the jurisdiction.  It follows that I do not need to proceed to consider plan B but I will consider what, if any, other orders are necessary.  I make no order for costs and that concludes this judgment."

The grounds of appeal
19. I come now to the grounds of appeal, which Ms Catherine Wood QC, on behalf of the father, was able to boil down to three core submissions. 

20. The first is that the judge did not give proper overall consideration to the competing proposals but instead gave priority consideration to the mother's proposal.  Ms Wood drew attention, in this context, to the leading case of Re F (A Child) (International Relocation Cases) [2015] EWCA Civ 882.  In that decision, which was cited to the learned judge but not referred to in her judgment, Ryder LJ said this at paragraph 30:

"Where there is more than one proposal before the court a welfare analysis of each proposal will be necessary.  This is neither a new approach, nor is it an option.  A welfare analysis is a requirement in any decision about a child's upbringing.  The sophistication of that analysis will depend on the facts of the case.  Each realistic option for the welfare of a child should be validly considered on its own internal merits (i.e. an analysis of the welfare factors relating to each option should be undertaken).  That presents one option (often in a relocation case the proposals from the absent or "left behind" parent) from being side-lined in a linear analysis.  Not only is it necessary to consider both parents' proposals on their own merits and by reference to what the child has to say, but it is also necessary to consider the options side by side in a comparative evaluation.  A proposal that may have some but no particular merit on its own may still be better than the only other alternative, which is worse."

I also draw attention to this passage from paragraph 50 of the judgment of McFarlane LJ.  He referred to the need for:

"… the overall comprehensive analysis of a child's welfare seen as a whole having regard in particular to the circumstances set out in the relevant welfare checklist. ... Such an analysis is required by the Children Act 1989 section 1.1 and/or by the Adoption and Children Act 2002 section 1.2, when a court determines any question with regard to a child's upbringing.  In some cases, for example, where the issue is whether the location for a handover under a child arrangements order under the Children Act 1989 section 8 is to take place at McDonald's or Starbucks, the evaluation will be short and very straightforward.  In other cases, for example a case of international relocation, the factors that must be given due consideration and appropriate weight on either side of the scales for the welfare balance may be such as to require an analysis of some sophistication and complexity.  However, whatever the issue before the court, the task is the same.  The court must weigh up all the relevant factors, look at the case as a whole and determine the course that best meets the need to afford paramount consideration to the child's welfare."

So, what is required in this case as in others, is an analysis of each option with an appropriate degree of sophistication and complexity.  Ms Wood submits that that was lacking in this case.

21. Secondly, she says that the judge underestimated the value to L of living in the same country as both parents.  It was possibly the most powerful factor in the case, she says, but it was virtually ignored in the judgment.  She submits that the judge misunderstood the main thrust of the Cafcass recommendation, treating the father's time with L as contact rather than the crucial establishment of a relationship at the particular age and stage that L had reached.  Further to that, as a subsidiary point, the judge did not give any adequate reason for her departure from the recommendation of the Cafcass officer.

22. The third argument from Ms Wood is that the judge gave undue consideration to the impact of the decision on L's mother and having done so, placed more weight on that issue than the evidence allowed.  She says that the approach was akin to the approach that perhaps used to be taken in relation to these cases following the decision of Payne v Payne [2001] EWCA Civ 166, [2001] 1 FLR 1052.  Ms Wood submits that the judge did not identify or evaluate the true nature of the mother's unhappiness at any point in the judgment.

23. On behalf of the mother, Ms Claire Heppenstall, who has said everything could possibly have been said, rightly submits that the task of an appeal court is to look at the substance of the judgment as a whole and not engage in a narrow textual analysis.  She reminds the court that the judge found L to have a strong and happy relationship with his father and she submits that the Cafcass officer had focused unduly on the loss of contact with the father.  As to the mother's distress, she points out that that will have been apparent to the judge at two points during her evidence.  Her employment was now at risk and there would be change in any event if she remained in England.  Ms Heppenstall drew attention to passages in the judge's narrative to show that she had understood the essence of the evidence.  She accepted that the ultimate evaluation was not fully set out but argued that the judge had done enough in a finely balanced case.


24. In proceedings of this kind, a great deal is at stake for a child and his parents.  The impact on the child's future is substantial and the decision is always a tough one for the disappointed party.  The task for the judge is to select the outcome that best meets the child's welfare needs and to give adequate reasons for the choice.  In this kind of case, a valid judicial decision requires, as was said in Re F, an analysis of some sophistication and complexity.  That analysis is the engine that drives a decision that takes the parties from a state of disagreement to one of clarity.  Without it, the essential judicial task has not been performed. 

25. I the present case, it seems to me that the recorder summarised the evidence sufficiently and directed herself adequately as to the law.  She also identified in broad terms the critical factors bearing upon her decision; that is, the effect on L of the loss of everyday contact with his father balanced against the possible detrimental effect upon him of remaining within the UK with an unhappy mother.  On one side of the scales the judge therefore had to put the weighty evidence showing that thanks to the good sense of all family members, the arrangements in this country have worked well for L.  He has frequent contact with each parent, both of whom are now British citizens and important contact with his paternal grandparents while remaining in touch with his maternal grandparents.  These considerations rightly weighted heavily with the Cafcass officer.  Into the other side of the scale, the judge had to put the evidence relating to the mother's unhappiness.  That evidence needed to be carefully assessed in order to reach a conclusion about how difficult life actually was for her and how that might impact in the future on this child.  In this case, that was the crucial evaluation.

26. It seems to me that at no point in the judgment does the judge carry out that very necessary assessment.  There is no attempt to evaluate how difficult life actually is for the mother in England or why her experience is likely to impact on L in the future.  In effect, the most that is said is that the mother would only be surviving in the UK whereas the father would be flourishing.  Further, the judge said:

"I also bear in mind the mother is plainly unhappy living in England and wants to return to her country of origin but I do not underestimate that likely detrimental impact on L of living with an unhappy mother in England as opposed to living with a happier mother in Columbia."

27. It is, of course, obvious that the mother would be happier if her application was granted but this does not in itself take one further.  Given that the mother has been in this country for many years both before and after the birth of L, it was the judge's task to evaluate her actual situation and explain why she attached such decisive weight to it.  Even assuming the mother's case at its highest, the judgment contains no attempt to balance that evidence against the other incontrovertible evidence in the case.  Instead, the judge simply jumped to stating her conclusion without any underpinning reasoning.  In effect, she did not put anything into the opposite scale that was capable of outweighing the very considerable competing arguments.  Nor in a case in which she had a particularly coherent analysis from Cafcass did the judge adequately explain why she was departing from it.  She devoted one sentence to it.  To my mind that sentence undersells the evidence of the Cafcass officer, who cogently explained the importance to a child of this age being allowed to develop such an important relationship.  To describe that as 'wrongly elevating' those benefits is a shortcoming in the judge's balancing exercise.  Nor does she explain what is meant by 'all the attendant risks of L not moving to Columbia' or critically justify her assertion that he would flourish if he lived there.

28. I also consider that there is substance in Ms Wood's complaint about the judge's concluding paragraph, which focused exclusively on the advantages and disadvantages of the relocation plan without giving equivalent consideration to the status quo.  The impression of an insufficient evaluation of all the relevant factors is reinforced in exactly the way that was warned against in Re F.  

29. Looking at the situation overall, I come to the clear view that Ms Wood's submissions succeed.  In a decision of this importance, the judge did not really reason her decision at all, nor faced with a sophisticated Cafcass evaluation did she give any adequate explanation for disagreeing with it.

30. I would therefore allow the appeal.  The result is that if the parties cannot agree on future arrangements for L, the mother's application will unfortunately have to be reheard with all the unfortunate consequent personal and financial costs to this family.  I should stress that if a rehearing does take place, nothing that I have said in this judgment is intended to indicate the least view about what the appropriate outcome of the rehearing might be. 

Postscript: Allocation

31. I would only add a word about an unusual aspect of the procedural history.  The case was issued in the East London Family Court with the two interim decisions being taken by the circuit judge and the final hearing listed before the judge who heard it.  It was the parties' assumption that the case had continued at circuit judge level and it was only after giving her decision that the judge revealed that she considered that she had been sitting as a Deputy High Court Judge.  This was said to be as a result of a decision taken by the circuit judge who had had previous dealings with the matter, that judge not being the Designated Family Judge for East London. 

32. Since October 2016, the question of whether a judge is sitting as a Deputy High Court Judge has important consequences of route of appeal.  Appeals from decisions taken at circuit judge level are now heard in the High Court, while appeals from judges sitting at High Court level come to this court.  This case, rightly in my view, was allocated at the gatekeeping stage to circuit judge level.  There was no order reallocating it to be heard at High Court level.  That could only happen as a result of compliance with the guidance given by the president in December 2016:  "Allocation of Work to Section 9 Judges".  Paragraph 6 of that guidance reads as follows:

"If at any time a judge who is conducting proceedings considers they should be reallocated to High Court level for hearing by a High Court judge or a section 9 judge, the judge shall, before reallocating the case, discuss the matter with the DFJ, who shall, if necessary, consult the FDLJ."

That guidance was not followed in this case and in any event there was in my view no need for reallocation.  This was a conventional relocation case involving a Hague Convention State and was suitable for trial by a circuit judge.  Now, however, I would propose that the case be allocated by the Family Division Liaison Judge for London, either to a circuit judge or as she may otherwise decide.

Lord Justice Moylan:
33. I agree.