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B (Children) [2005] EWCA Civ 643

Decision concerning residence order, and permission for father to remove children to Dubai, upheld.

Re B (Children) [2005] EWCA Civ 643

Court of Appeal: Thorpe, Scott Baker and Wall LJJ (21 April 2005)

Decision concerning residence order, and permission for father to remove children to Dubai, upheld.

This appeal concerned events following the breakdown of the marriage between a mother and father, both of whom had substantial connections with Dubai: the mother had lived there in childhood, the father was working there, and their two children were born there. The family returned to England in 2000 and, when the marriage broke down in 2002, the mother and children stayed in the matrimonial home in England, and the father returned to Dubai.

In November 2004, the mother, who was a Dutch national, applied for a residence order – since the living arrangements for the children had not previously been the subject of any court order – and for permission to relocate to the Netherlands; in response, the father filed a statement by which he effectively mounted a cross-application for the removal of the children to Dubai.

The trial judge considered all the submissions, including the wishes of the children (one wished to go and live with the father, the other wished to stay with the mother) and the report of the CAFCASS officer, who made no substantive recommendation other than that 'the matter be heard and a decision be made on the oral evidence of the parties'. Having stressed that the case was particularly finely balanced, and that both parents appeared equally capable of looking after the children, the judge concluded that the best interests of the children would be served by granting the father's residence order application, coupled with permission to remove to Dubai.

The mother appealed on three grounds: (1) the judge refused to have regard to the Court of Appeal's decision in Payne v Payne [2001] 1 FLR 1502; (2) the judge did not sufficiently explain his departure from the CAFCASS officer's recommendation; and (3) the judge insufficiently reflected the length and strength of the children's attachment to the mother.

Held, dismissing the appeal, that: (1) the judge was entitled to disregard the decision in Payne because he had a very different type of case before him, namely one in which he was invited by two parents with strong connections to other jurisdictions to choose which of the two jurisdictions would be better for the welfare of the children; (2) the CAFCASS officer's essential position was that it was for the judge to decide, and therefore placed no duty on the judge to explain his decision as one that differed from the expert's conclusion; and (3) it was impossible to say that there had been any misdirection or any misconduct of the essential balancing exercise that preceded the discretionary conclusion.

The court also expressed concern that a third possible outcome had not been advanced before the judge of trial: namely, that the mother and children might remain in the former matrimonial home and the children at their current schools, with the mother making that sacrifice on their behalf. However, it emerged that the mother had already given instructions that this option should not be advocated as a fall-back position; accordingly, it would be unprincipled to consider any application to admit fresh evidence or to allow the mother to develop a case which had not previously been advanced.

Comment by Tacey Cronin, Albion Chambers

This is one of those cases where the application opens a can of worms that the applicant regrets: Mother sought permission under s14 of the Children Act to take the children aged 8 and 9 to her home in Holland, Father living in Dubai: Father effectively cross-applied for residence, Mother having given up most of her case on continuity and stability in making the application: the children had different wishes (and were both young enough to be on the borders of how much weight should be attached to their views): the CAFCASS officer sat on the fence. The Judge decided that the children should live with their father in Dubai.

Significantly, Father's application for residence changed the decision making parameters and although the legal argument centred on Payne v Payne [2001] 1 FLR 1502, the relevant factors were welfare issues. The lesson for advocates is to remember that there are actually three options in relocation cases – go, stay or move to the other parent – and if staying (with the children) is better for them than going, be wary that the Court does not choose to move them to the other parent.

Read the full text of the judgment here