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W (Children) [2011] EWCA Civ 345

Appeal by mother against refusal of permission to relocate out of the jurisdiction. Appeal successful.

The parties were never married and did not live together as a couple. They had two children, aged 12 and 8 at the time of the hearing. The mother, who had cared for the children solely for the majority of their lives, had applied for permission to relocate to Australia where her family lived. The father, who had lived near to the children, had not however had regular contact and had never applied for such or for parental responsibility. The judge hearing the case, despite (i) hearing from a CAFCASS officer who recommended that relocation was in line with the children's wishes and should be permitted, (ii) considering that the mother's plans were well thought-out and well-intentioned, and (iii) finding that a decision against relocation would be devastating for the mother, did not permit relocation. He stated that the children's relationship with their father, which had developed through the course of the proceedings by way of interim orders specifically designed to build a relationship which might be able to withstand the children's move to Australia, needed to continue to grow and develop.

The President, hearing the appeal, considered at length the provisions concerning appeals in G v G, and the provisions of Payne v Payne. He stated that two points flowed from G v G – the first being that the court was conducting a balancing exercise, and that he could only interfere with first instance judgment if he was satisfied that the judge had committed a sufficient error in the balancing exercise to vitiate his exercise of discretion; the second being that how he or any other member of the court would have decided the case is immaterial.

He concluded that the judge had erred such that his conclusion was plainly wrong. The judge, he said, had failed to give enough weight to the mother's welfare in his consideration of what was in the children's welfare, failed to make reference to statements from the mother's health visitor and GP, failed to consider the loss to the children of their relationship with the mother's side of the family, and failed to consider that the court could make orders about indirect contact.

The trial judge was also criticised for having failed to make findings on essential disputed facts (a criticism not made by the other two judges), and for failing to specifically consider all of the criteria listed by Dame Butler-Sloss in Payne v Payne.

The President also made clear his view that undue prominence had been accorded to his own words in the case of Re D, in which he had appeared to support criticism of Payne v Payne. He resiled from this and confirmed that Payne v Payne should continue to be followed.

Lloyd LJ agreed that the trial judge had underestimated the adverse effect of a refusal on the mother, and underestimated the importance of the wellbeing of the primary carer. Elias LJ noted that there is much debate within family law circles as to whether the judgment in Payne v Payne gives appropriate weight to the value of contact with the non-resident parent when assessing a child's best interests, but also confirmed that, until Parliament or the Supreme Court dictates otherwise, it was binding. The appeal was allowed and permission given to the mother to relocate.

Summary by Gillon Cameron, Barrister, 14 Gray's Inn Square


Case No: B4/2010/2586
Neutral Citation Number: [2011] EWCA Civ 345
ON APPEAL FROM Exeter County Court
His Honour Judge Tyzack QC

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 30/03/2011

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RE W (Children) 

(Transcript of the Handed Down Judgment of
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Helen Matuk (instructed by Eastleys) for the Appellant
The Respondent appeared in person
Hearing date: 23 February 2011
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As Approved by the Court

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Sir Nicholas Wall P
1. This is a "relocation" case in which the judge hearing it (HH Judge Tyzack QC sitting in the Exeter County Court) has refused an application by the mother of a girl of 12 and a boy of 8 for permission to relocate to Australia with the two children.  The judge's order is dated 18 October 2010.  In addition to refusing the mother permission to relocate, the order adjourned the father's application for contact with the children, directed a further report from the CAFCASS officer in the case, and refused the mother  permission to appeal.

2. As will be apparent from the foregoing, this is, in my judgment, a case in which reporting restrictions should be imposed, and this judgment is being written anonymously,  I shall refer to the parents  throughout as  "the mother" and "the father" respectively; to the children as "the girl" and  "the boy"; and to the "CAFCASS Officer". Whilst I appreciate that this reads somewhat artificially, it is done in the interests of anonymity, and  nothing must be published which identifies the children or the case beyond the material disclosed in this judgment.

3. The mother was  represented before us by Miss Helen Matuk of counsel. The father appeared in person. His submission to us was all the more powerful in coming from the heart, and I do not feel that he had been in any way disadvantaged on this appeal by the face that he acted in person.

4. On 13 December 2010, Thorpe LJ had directed an oral listing of the mother's application before the full court on notice to the father, with the appeal to follow if permission was granted. We invited Miss Matuk to open her application as if for a full appeal, and, speaking for myself, I am in no doubt that we should grant permission to appeal, whatever the outcome of the ensuing appeal. At the conclusion of the argument, we reserved judgment.  

5. Like all "relocation" cases, this application  is highly fact specific and very difficult. All three member of this court have enormous sympathy for  the dilemma facing both the adults and the children in this case. Added to which, of course, the case goes to the very heart of the current debate about Payne v Payne [2001] Fam 475. The father's resistance to the mother's application is based very substantially if not exclusively, as it seems to me, on the potential damage likely to be caused to the children if their relatively newly acquired relationship with their father and the paternal  side of their family is, at worst, destroyed and, at best, attenuated  by enforced separation. On the other side, as it seems to me, the strongest argument open to the mother is that in his application of the principles set out in Payne v Payne the judge  has so erred in  is conduct of the "balancing exercise" that he is "plainly wrong".

6. Given the outcome in the court below, I propose to spend a little time examining the proper approach both to appeals of this nature and to relocation applications. It also occurs to me, however, that if we are to do justice to  the case, we need to examine with care both the evidence heard and read by the judge and the way in which he went about his task. The result, I fear, will be a judgment longer than is strictly necessary to explain why I have reached the clear conclusion which I have. 

G . v. G  [1985] 1 WLR 647
7. We are plainly in the area of judicial discretion, and there is abundant authority for the proposition that this court does not lightly interfere with the exercise of discretion by a first instance judge. Indeed, I have recently issued Guidance in relation to case-management appeals ([2011] Fam. Law 189) to the effect that this court – and appellate courts generally – should respect brave discretionary decisions made at first instance. In addition, the recent decision of the Supreme Court in Re B (A Child) [2009] UKSC 5, [2010] 1 FLR 551 is a timely reminder that the court must be on secure ground if  it is to reverse the exercise of discretion by a court of first instance.

8. However, the decision of the House of Lords in G v G makes it clear that it is open to this court to interfere with the discretion of a first instance judge in a child case, and I propose to begin this judgment with an examination of G v G and the basis upon which the court can – in certain circumstances - overset the exercise of discretion by a trial judge in such a case.

9. Giving the leading speech in G v G, Lord Fraser of Tullybelton, cited extensively (and with approval) from the judgment of Sir John Arnold P in the same case in this court. I propose to do the same. Sir John Arnold, discussing the outcome of what were then custody cases between parents involving children,  had said ([1985] 1 WLR 647 at  650B-D):

"Those cases exhibit some degree of homogeneity, of course; but they also seem, at first sight, to exhibit a degree of semantic dichotomy. It is a discernible thread running through, I think, every one of those cases and the cases cited in them, that it is not decisive of an appeal in this court from the decision of the court below, exercising the particular discretionary jurisdiction of deciding the custody of children (but also, I think, any discretionary jurisdiction), that the result of the exercise of discretion would, or might, have been different if the members of the Court of Appeal had themselves been exercising the discretion. There has to be more than that before the discretionary decision can be overturned. The question, if there be one, is: How much more?"

10. Sir John Arnold had then stated his conclusion in the following passage (ibid at p 650D-G)::

"I believe that there is a way of reconciling these cases. I believe that if the court comes to the conclusion, when examining the decision at first instance, that there is so blatant an error in the conclusion that it could only have been reached if the judge below had erred in his method of decision – sometimes called the balancing exercise – then the court is at liberty to interfere; but that, if the observation of the appellate court extends no further than that the decision in terms of the result of the balancing exercise was one with which they might, or do, disagree as a matter of result, then that by itself is not enough, and that falls short of the conclusion, which is essential, that the judge has erred in his method. I cannot think of any case in which this particular issue had to be faced, in which that method of determination is not intellectually satisfactory, logically supportable or consistent with the result of any of the cases in the appellate courts; and I shall approach this case on the footing that what this court should seek to do is to answer the question whether the court discerns a wrongness in the result of so striking a character as to make it a legitimate conclusion that there must have been an error of method – apart, of course, from a disclosed inclusion of irrelevant or exclusion of relevant matters."

11. Lord Fraser expressed his own agreement with these passages in a part of his speech which includes references to the well-known statement as to the breadth of judicial discretion, and to the case of Re F (A Minor) (Wardship: Appeal) [1976] FAM 238. Once again, the citation is a long one, but, in my judgment, important (ibid) at pp 651F to 653G: -

"……. The reason for the limited role of the Court of Appeal in custody cases is not that appeals in such cases are subject to any special rules, but that there are often two or more possible decisions, any one of which might reasonably be thought to be the best, and any one of which therefore a judge may make without being held to be wrong. In such cases, therefore, the judge has a discretion and they are cases to which the observations of Asquith LJ, as he then was, in Bellenden (Formerly Satterthwaite) v Satterthwaite [1948] 1 All ER 343 apply. My attention was called to that case by my noble and learned friend Lord Bridge of Harwich, after the hearing in this appeal. That was an appeal against an order for maintenance payable to a divorced wife. Asquith LJ said, at p. 345:

It is, of course, not enough for the wife to establish that this court might, or would, have made a different order. We are here concerned with a judicial discretion, and it is of the essence of such a discretion that on the same evidence two different minds might reach widely different decisions without either being appealable. It is only where the decision exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong, that an appellate body is entitled to interfere.' "

I would only add that, in cases dealing with the custody of children, the desirability of putting an end to litigation, which applies to all classes of case, is particularly strong because the longer legal proceedings last, the more are the children, whose welfare is at stake, likely to be disturbed by the uncertainty.

Nevertheless, there will be some cases in which the Court of Appeal decides that the judge of first instance has come to the wrong conclusion. In such cases it is the duty of the Court of Appeal to substitute its own decision for that of the judge. The circumstances in which the Court of Appeal should substitute its own decision have been described in a number of reported cases to some of which our attention was drawn. We were told by counsel that practitioners are finding difficulty in ascertaining the correct principles to apply because of the various ways in which judges have expressed themselves in these cases. I do not think it would be useful for me to go through the cases and to analyse the various expressions used by different judges and attempt to reconcile them exactly. Certainly it would not be useful to inquire whether different shades of meaning are intended to be conveyed by words such as 'blatant error' used by the President in the present case, and words such as 'clearly wrong', 'plainly wrong', or simply 'wrong' used by other judges in other cases. All these various expressions were used in order to emphasize the point that the appellate court should only interfere when they consider that the judge of first instance has not merely preferred an imperfect solution which is different from an alternative imperfect solution which the Court of Appeal might or would have adopted, but has exceeded the generous ambit within which a reasonable disagreement is possible. The principle was stated in this House by my noble and learned friend Lord Scarman in B v W (Wardship: Appeal) [1979] 1 WLR 1041, where, after mentioning the course open to the Court of Appeal if it was minded to reverse or vary a custody order, he said at p. 1055F:

But at the end of the day the court may not intervene unless it is satisfied either that the judge exercised his discretion upon a wrong principle or that, the judge's decision being so plainly wrong, he must have exercised his discretion wrongly.'

The same principle was expressed in other words, and at slightly greater length, in the Court of Appeal (Stamp, Browne and Bridge LJJ) in Re F (A Minor) (Wardship: Appeal) [1976] Fam. 238, where the majority (Browne and Bridge LJJ) held that the court had jurisdiction to reverse or vary a decision concerning a child made by a judge in the exercise of his discretion, if they considered that he had given insufficient weight or too much weight to certain factors. Browne LJ said at p. 257E:

Apart from the effect of seeing and hearing witnesses, I cannot see why the general principle applicable to the exercise of the discretion in respect of infants should be any different from the general principle applicable to any other form of discretion.'

Bridge LJ, as my noble and learned friend then was, agreed with Browne LJ and I quote a passage from his speech where, after stating that his view was different from that of the judge, he went on to say at p. 266:

Can this conclusion prevail or is there some rule of law which bars it? The judge was exercising a discretion. He saw and heard the witnesses. It is impossible to say that he considered any irrelevant matter, left out of account any relevant matter, erred in law, or applied any wrong principle. On the view I take, his error was in the balancing exercise. He either gave too little weight to the factors favourable, or too much weight to the factors adverse to the father's claim that he should retain care and control of the child. The general principle is clear. If this were discretion not depending on the judge having seen and heard the witnesses, an error in the balancing exercise, if I may adopt that phrase for short, would entitle the appellate court to reverse his decision [authorities cited]. The reason for a practical limitation on the scope of that principle where the discretion exercised depends on seeing and hearing witnesses is obvious. The appellate court cannot interfere if it lacks the essential material on which the balancing exercise depended. But the importance of seeing and hearing witnesses may vary very greatly according to the circumstances of individual cases. If in any discretion case concerning children the appellate court can clearly detect that a conclusion, which is neither dependent on nor justified by the trial judge's advantage in seeing and hearing witnesses, is vitiated by an error in the balancing exercise, I should be very reluctant to hold that it is powerless to interfere.'

The decision in Re F (A Minor) (Wardship: Appeal) [1976] Fam 238 is also important because the majority rejected, rightly in my view, the dissenting opinion of Stamp LJ at p. 254, who would have limited the right of the Court of Appeal to interfere with the judge's decision in custody cases to cases 'where it concludes that the course followed by the judge is one that no reasonable judge having taken into account all the relevant circumstances could have adopted'. That is the test which the court applies in deciding whether it is entitled to exercise judicial control over the decision of an administrative body, see the well-known case of Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. It is not the appropriate test for deciding whether the Court of Appeal is entitled to interfere with the decision made by a judge in the exercise of his discretion."

Finally, I think it important to recall the wise words of Cumming Bruce LJ in Clarke-Hunt v Newcombe (1983) 4 FLR 482, (also cited, with approval, by Lord Fraser in G v. G (at p 651)) where the Lord Justice said, at p. 486:

"There was not really a right solution; there were two alternative wrong solutions. The problem of the judge was to appreciate the factors pointing in each direction and to decide which of the two bad solutions was the least dangerous, having regard to the long-term interests of the children, and so he decided the matter. Whether I would have decided it the same way if I had been in the position of the trial judge I do not know. I might have taken the same course as the judge and I might not, but I was never in that situation. I am sitting in the Court of Appeal deciding a quite different question: has it been shown that the judge to whom Parliament has confided the exercise of discretion, plainly got the wrong answer? I emphasize the word "Plainly". In spite of the efforts of [counsel] the answer to that question clearly must be that the judge has not been shown plainly to have got it wrong."

12. Two points flow in my judgment, from G v G. The first is that this is a discretion / balancing exercise case, and that we can only interfere with Judge Tyzack's judgment if we are satisfied  that he committed a sufficient error in the balancing exercise to vitiate his exercise of discretion. The second is that  how I or any other member of this court would have decided the case is immaterial.

Payne v Payne
13. Before turning to the facts of the instant case, it is, in my judgment, necessary to look carefully at Payne v Payne, which is, of course, not only the latest leading case on "relocation" in the English jurisprudence, but also a reserved decision of this court and  binding on us.

14. There are, of course, two substantive judgments in Payne v Payne, both from distinguished family lawyers,  Thorpe LJ and Dame Elizabeth Butler-Sloss P. The third judge, Robert Walker LJ (as he then was) agreed with both.  I propose to examine each of the two substantive judgments, not because I believe there is any conflict between them,  but as an aid to the approach this court should adopt to Judge Tyzack's exercise of discretion. Before doing so, however, I need to set out the facts and summarise the argument which was addressed to this Court.

15. The facts are neatly summarised in the headnote: -

"The parties were married in 1996 and the mother gave birth to a daughter in 1997. In early 1998 the mother took the daughter to her home country, New Zealand, to live. The father, who was working elsewhere, joined them later. The parties separated almost immediately, and in custody proceedings in New Zealand the judge ordered that the daughter be returned to the United Kingdom. In proceedings in the UK by consent a residence order in favour of the mother was made, with contact to the father, and the mother was prohibited from removing the daughter from the jurisdiction. The mother wished to return to New Zealand but, before she applied under section 13(1)(b) of the Children Act 1989 for leave to remove the child permanently from the jurisdiction, the father applied for a residence order. The judge, hearing both applications together, refused the father's application and granted the mother's."

16. The father's appeal to this court was dismissed. The arguments advanced on his behalf by Mr. Philip Cayford of counsel will have a familiar ring to those engaged in the current controversy in relation to the case: -

"In the light of article 8 of the Convention and the increasing awareness of the importance of the child's contact with both parents, the current test for determining applications to remove a child from the jurisdiction, as laid down in Poel v Poel [1970] 1 WLR 1469 [and other cited cases]……. requires reformulation….. The net effect of these decisions is that a custodial parent with a genuine and subjectively reasonable desire to leave the jurisdiction starts with a presumption in his favour that leave to remove should be given. The presumption does not operate in other jurisdictions: see Stadniczenko v Stadniczenko [1995] NZFLR 493; B v B [1997] 21 Fam LR 676 and Gordon v Goertz (1996) 134 DLR (4th) 321. That test in any event does not sit well with the fundamental principles of the Children Act itself.

A better test would be that all the relevant factors, including all rights conferred by the Human Rights Act 1998, should be balanced by the court with the interests of the child being paramount……"

17. For the mother, it was argued that the principles in Poel v Poel were consistent with the non-custodial parent's rights under article 8 of the Convention and required no reformulation. Conflict between the article 8 rights of parents and children was inevitable when parents separated,  but the starting point should be that the child's interests are paramount. Both the Children Act 1989 and article 3(1) of the United Nations Convention on the Rights of the Child 1989 (Treaty Series No 44 (1992) (Cm 1976)) provided that in all questions involving the upbringing of children the child's welfare and best interests shall be the primary and paramount consideration.

The judgment of Thorpe LJ in Payne v Payne
18. Thorpe LJ gave the first judgment in Payne v Payne. Having set out the facts, he  began his examination of the authorities, which is extensive, with Poel v Poel before concluding, at paragraph 26, with these words: -

"In summary a review of the decisions of this court over the course of the last 30 years demonstrates that relocation cases have been consistently decided upon the application of the following two propositions: (a) the welfare of the child is the paramount consideration; and (b) refusing the primary carer's reasonable proposals for the relocation of her family life is likely to impact detrimentally on the welfare of her dependent children. Therefore her application to relocate will be granted unless the court concludes that it is incompatible with the welfare of the children. (Emphasis supplied)"

19. Having so expressed himself, Thorpe LJ commented: "Few guidelines for the determination of individual cases, the facts of which are never replicated, have stood so long in our family law".  Then, at paragraph 29, he added: -

"A review of the Court of Appeal authorities over the last 30 years demonstrates that, although not the originator of the guidance, Ormrod LJ was its principal exponent. He rationalises it and its strongest statement comes in his judgment in Moodey v Field 13 February 1981, as well perhaps in the judgment of Purchas LJ in Belton v Belton [1987] 2 FLR 343. Since the direction has stood for 30 years and since its amplification by Ormrod LJ, first in A v A (Child: Removal from Jurisdiction) 1 FLR 380 over 20 years ago, it is perhaps necessary to question whether changing perceptions of child development and welfare in the interim undermine or erode his exposition. That exposition, as he himself said, was very much based on common sense. But even generally accepted perceptions can shift within a generation. The shift upon which Mr Cayford relies is in the sphere of contact. He asserts that over the last 30 years the comparative importance of contact between the child and the absent parent has greatly increased. No authority for the proposition is demonstrated. Without some proof of the proposition I would be doubtful of accepting it. Throughout my professional life in this specialist field, contact between child and absent parent has always been seen as an important ingredient in any welfare appraisal. The language may have shifted but the proposition seems to have remained constant. I believe that conviction is demonstrated by the review of the contact cases over much the same period to be found in my judgment in re L (A Child) (Contact: Domestic Violence) [2001] Fam 260, 290-295, cited above. Furthermore practicalities are all against this submission. International travel is comparatively cheaper and more competitive than ever before. Equally communication is cheaper and the options more varied."

30. Quite apart from Mr Cayford's submission, I do not believe that the evaluation of welfare within the mental health professions over this period calls into any question the rationalisation advanced by Ormrod LJ in his judgments. In a broad sense the health and wellbeing of a child depends upon emotional and psychological stability and security. Both security and stability come from the child's emotional and psychological dependency upon the primary carer. The extent of that dependency will depend upon many factors including its duration and the extent to which it is tempered by or shared with other dependencies. For instance is the absent parent an important figure in the child's life? What is the child's relationship with siblings and/or grandparents and/or a step-parent? In most relocation cases the judge will need to make some evaluation of these factors."

20. Having discussed the Human Rights Act and the attitude of the ECtHR to the paramountcy principle in section 1 of the Children Act 1989, Thorpe LJ rejected the proposition that acceptance of the reasonable proposals of the relocating parent should be elevated to the status of a presumption, and put forward  his own discipline for approaching cases of his nature: -

"40. However, there is a danger that if the regard which the court pays to the reasonable proposals of the primary carer were elevated into a legal presumption, then there would be an obvious risk of the breach of the respondent's rights not only under article 8 but also his rights under article 6 to a fair trial. To guard against the risk of too perfunctory an investigation resulting from too ready an assumption that the mother's proposals are necessarily compatible with the child's welfare I would suggest the following discipline as a prelude to conclusion:

(a)     Pose the question: is the mother's application genuine in the sense that it is not motivated by some selfish desire to exclude the father from the child's life? Then ask, is the mother's application realistic, by which I mean founded on practical proposals both well researched and investigated? If the application fails either of these tests, refusal will inevitably follow.  

(b)     If, however, the application passes these tests then there must be a careful appraisal of the father's opposition: is it motivated by genuine concern for the future of the child's welfare or is it driven by some ulterior motive? What would be the extent of the detriment to him and his future relationship with the child were the application granted? To what extent would that be offset by extension of the child's relationships with the maternal family and homeland?

(c)     What would be the impact on the mother, either as the single parent or as a new wife, of a refusal of her realistic proposal?

(d)     The outcome of the second and third appraisals must then be brought into an overriding review of the child's welfare as the paramount consideration, directed by the statutory checklist in so far as appropriate.

41. In suggesting such a discipline I would not wish to be thought to have diminished the importance that this court has consistently attached to the emotional and psychological wellbeing of the primary carer. In any evaluation of the welfare of the child as the paramount consideration great weight must be given to this factor."

The judgment of Dame Elizabeth Butler-Sloss P
21. Dame Elizabeth Butler-Sloss P conducted a similar exercise to Thorpe LJ with particular reference to ECHR and inter-relationship between the Children Act 1989 and the European jurisprudence. It is,  I think, worthwhile citing  that part of her judgment in which she said: -

"82 All those immediately affected by the proceedings, that is to say the mother, the father and the child, have rights under article 8(1). Those rights, inevitably in a case such as the present appeal, are in conflict and, under article 8(2), have to be balanced against the rights of the others. In addition and of the greatest significance is the welfare of the child which, according to European jurisprudence, is of crucial importance and, where in conflict with a parent, is overriding: see Johansen v Norway (1996) 23 EHRR 33, 67, 72. Article 8(2) recognises that a public authority, in this case the court, may interfere with the right to family life where it does so in accordance with the law, and where it is necessary in a democratic society for, inter alia, the protection of the rights and freedoms of others and the decision is proportionate to the need demonstrated. That position appears to me to be similar to that which arises in all child-based family disputes and the European case law on children is in line with the principles set out in the Children Act 1989. I do not, for my part, consider that the Convention has affected the principles the courts should apply in dealing with these difficult issues. Its implementation into English law does however give us the opportunity to take another look at the way the principles have been expressed in the past and whether there should now be a reformulation of those principles. I think it would be helpful to do so, since they may have been expressed from time to time in too rigid terms. The judgment of Thorpe J in M H v G P (Child: Emigration) [1995] 2 FLR 106 was the first time to my knowledge that the word "presumption" had been used in the reported cases, and I would respectfully suggest that it overemphasised one element of the approach in the earlier cases. I can understand why the word was used, since in Tyler v Tyler [1989] 2 FLR 158 the reformulation by Purchas LJ of the principles in Poel v Poel and Chamberlain v de la Mare may itself have been expressed unduly firmly.

83. Section 13(1) (b) of the Children Act 1989 does not create any presumption and the criteria in section 1 clearly govern the application. The underlying principles in Poel v Poel, as explained in Chamberlain v de la Mare, have stood the test of time and give valuable guidance as to the approach the court should adopt in these most difficult cases. It is, in my view, helpful to go back to look again at the reasons given in both those decisions. They were based upon the welfare of the child which was the first and paramount consideration by virtue of section 1 of the Guardianship of Minors Act 1971. The view of both courts was well summarised by Griffiths LJ in Chamberlain v de la Mare 4 FLR 434, 445, that the welfare of young children was best met by bringing them up in a happy, secure family atmosphere. Their happiness and security, after the creation of a new family unit, will depend on becoming members of the new family. Reasonable arrangements made by the mother or stepfather to relocate should not in principle be frustrated, since it would be likely to have an adverse effect upon the new family. It might reflect upon the stability of the new relationship. The stress upon the second family would inevitably have a serious adverse effect upon the children whose welfare is paramount. Even if there is not a new relationship, the effect upon the parent with the residence order of the frustration of plans for the future might have an equally bad effect upon the children. If the arrangements are sensible and the proposals are genuinely important to the applicant parent and the effect of refusal of the application would be seriously adverse to the new family, e g mother and child, or the mother, stepfather and child, then this would be, as Griffiths LJ said, a factor that had to be given great weight when weighing up the various factors in the balancing exercise."

22. Dame Elizabeth Butler-Sloss then proposed her own approach to relocation cases. This is what she said: -

"85. In summary I would suggest that the following considerations should be in the forefront of the mind of a judge trying one of these difficult cases. They are not and could not be exclusive of the other important matters which arise in the individual case to be decided. All the relevant factors need to be considered, including the points I make below, so far as they are relevant, and weighed in the balance. The points I make are obvious but in view of the arguments presented to us in this case, it may be worthwhile to repeat them.

(a)     The welfare of the child is always paramount.
(b)     There is no presumption created by section 13(1) (b) of the Children Act 1989 in favour of the applicant parent.
(c)     The reasonable proposals of the parent with a residence order wishing to live abroad carry great weight.
(d)     Consequently the proposals have to be scrutinised with care and the court needs to be satisfied that there is a genuine motivation for the move and not the intention to bring contact between the child and the other parent to an end.
(e)     The effect upon the applicant parent and the new family of the child of a refusal of leave is very important.
(f)     The effect upon the child of the denial of contact with the other parent and in some cases his family is very important.
(g)     The opportunity for continuing contact between the child and the parent left behind may be very significant.

86 All the above observations have been made on the premise that the question of residence is not a live issue. If, however, there is a real dispute as to which parent should be granted a residence order, and the decision as to which parent is the more suitable is finely balanced, the future plans of each parent for the child are clearly relevant. If one parent intends to set up home in another country and remove the child from school, surroundings and the other parent and his family, it may in some cases be an important factor to weigh in the balance. But in a case where the decision as to residence is clear, as the judge in this case clearly thought it was, the plans for removal from the jurisdiction would not be likely to be significant in the decision over residence. The mother in this case already had a residence order and the judge's decision on residence was not an issue before this court."

23. I do not propose to embark upon my own assessment of the criteria to be taken into account when deciding a relocation application. All that I am prepared to state at this stage is that the decision falls to be taken on what the court perceives to be in the best interests of the children concerned. Their welfare is our paramount consideration. The court must also apply the criteria and guidance set out in Payne v Payne.

The instant case: background and procedure
24. After this lengthy and doubtless somewhat laboured introduction, I turn to the instant case. The mother is Australian. Both children bear her surname, which is different from that of the father. She and the father never married, nor did  they ever  live together as a couple. Although  their respective dates of birth were not given, there is clearly a substantial age difference between them, and the father is older then the mother.

25. The mother issued her application as long ago as 2 September 2009, although the prospect of a move had been in her mind for a substantial period prior to that date. At that point, that is to say September 2009, the father, according to the mother, had had very little contact with the children. He did not have parental responsibility.

26. In her Form C100, the mother stated her belief that  the children had suffered harm from being exposed to the effects of the father's alcoholism and possible recreational drug use, as well as his lifestyle. The father was living, she said "in his vehicle". She sought a separate waiting area from the father and opposed the grant of parental responsibility on the grounds that this would provide the father "with more control" over her.

27. In her form C1A the mother alleged psychological and emotional abuse on a regular basis, witnessed by the children. She referred to him constantly telephoning and texting her, and on occasions sleeping in his van outside her house. 

28. Attached to the mother's Form C100 are a large number of testimonials from friends and professionals. Such evidence (which the father replicates) is  plainly admissible under the Children (Admissibility of Hearsay Evidence) Order 1993 (the Order). The reason it is usually unhelpful is, of course, the fact that often the author will only know one party and, however well qualified, will only have a very partial view of events.   Where, however, the author of the document has a specific professional relationship with the party in question, what the author says is sometimes highly informative.  

29. So it is, in my judgment,  in the instant case.  There are three documents which, in my judgment, are not only admissible, but highly relevant. None is mentioned by the judge.  The first is  a letter dated 21 October 2008 from the mother's health visitor. This reveals that the mother had no less than 33 recorded visits prior to the girl going to school, 16 recorded visits before the boy went to school and 26 visits "in the last nine years for support for herself on top of those for issues with the children". The letter also refers; (a)  to the father's lack of emotional and financial support; (b) to the mother, after the birth of the  girl "living in a ramshackle converted bus with no facilities on the edge of a field with all the accompanying issues around having a small baby and day to day living";  and (c) to applications having to be made to "Charitable Organisations for funding for essential items for her home".  The father does not answer these allegations, (although, as I have stated, he produces his own testimonials)   and the judge made no findings about them. This is a matter to which I shall return in due course.

30. Also in the documents attached to the mother's C100 is an NHS referral form, which makes it clear that in the Spring of 2009 the children were positive about the proposed move to Australia,  but which alleges they were displaying symptoms of anxiety which were worsening.

31. Thirdly there is  in the papers, a supportive letter from the mother's general practitioner dated 27 October 2009, the material part of which reads: -

"She has been seen over the last 10 years intermittently with depression, the first time was in November 1999 when she was very low postnatally. At that time, she was referred for counselling and a year later she was still seeing a counsellor. She then had another unplanned pregnancy 2 years later and has been a single parent since then. She also had post natal depression after the second baby as well. She was regularly seen by the health visitor and ourselves and on most consultations we were aware that (she) was feeling quite low and isolated. She is very involved with her local church and has been having regular counselling there.

I do feel that (she) herself would benefit greatly if she was in her own country with her own family nearby and that without her family she is going to continue to feel isolated and struggle which will obviously also have a knock on effect on her children. I hope all this can be taken into consideration."

32. It is plain that all this material was before the judge, and the father in his oral evidence made reference to the "testimonials" as to his character which he had produced. A substantial volume of hearsay evidence was, accordingly, admitted on both sides.  The weight to be accorded to this material was for the judge. Equally, the evidence was not only admissible under the Order, but was there for the judge's assistance: - see the judgments of Butler-Sloss LJ in Re M and R (Child Abuse) Evidence) [1996]2 FLR 195 at 205H-206A: -

"In cases involving children, expert medical and psychiatric evidence from paediatricians and allied disciplines is often quite indispensable to the court. As Parker LCJ said in Director of Public Prosecutions v A and BC Chewing Gum Ltd [1968] 1 QB 159, 165A, when dealing with children, the court  needs 'all the help it can get'. But that dependence in no way compromises the fact that the final decision in the case is the judge's and his alone……"

And at 222B-C

"…. The modern view is to regulate such matters by way of weight, rather than admissibility…."

See also the broad discretion afforded to a judge hearing an application under the Children Act 1989 identified by Butler-Sloss LJ (inter alia in Re B (Minors) (Contact) [1994] 2 FLR 1 at 5F-G.
33. On 7 October 2009, the district judge gave directions for the filing of evidence  with a view to a final hearing on the first open date after 5 February 2010. Unfortunately, CAFCASS did not file its report on time with the consequence that  on 6 January 2010, the district judge extended the time for the filing of the report to 12 February 2010. On 8 January 2010 the case was listed for directions on 15 March 2010 (time estimate 40 minutes) and on the same day the full hearing was listed for 1 June 2010 with a time estimate of one day.

34. On 15 March 2010, Judge Tyzack adjourned the hearing for directions to 18 March, as the father was unwell.. On 18 March the judge confirmed the final hearing for 1 June and listed the matter for further directions on 24 March, the questions to be debated on that occasion to include  the father's contact and whether or not the CAFCASS officer should be appointed the children's FPR rule 9.5 guardian. The order also states: at paragraph 4(e) that one of the issues to be decided was whether another CAFCASS  Officer  should be appointed "due to the views of the Respondent"  (Emphasis supplied). I will deal with the Respondent's views of the CAFCASS Officer in paragraphs 73 et seq. below.

35. On 24 March 2010, the judge confirmed the CAFCASS officer as the officer in the case, and ordered him to attend the final hearing. He did not, however, as I read the order, appoint him the children's rule 9.5 guardian, but ordered "an addendum report" designed to "update the court on the applications, see both of the children again and ascertain whether the children wish for more contact".  The hearing date for 1 June 2010 was confirmed.

36. Apart from the judgment delivered by the judge on that date, we have a complete transcript of the hearing before the judge on 1 June 2010, which I propose to examine in some detail.  The outcome, however,  was that the matter was adjourned part heard. A residence order was made in favour of the mother, and the father was granted parental responsibility. The CAFCASS officer was directed to file an updating report and the mother was to make the children available for both  visiting and staying contact – the latter, given the father's lack of a residential address, to be approved by the CAFCASS Officer. Both parties were to file position statements by 20 August.

37. On 10 September 2010 the judge gave further directions. He ordered the parties and the CAFCASS Officer to attend the final hearing, which he listed for two hours. He directed service of the transcript of the hearing on 1 June 2010 on the father and gave permission to each party to file an updated position statement by 1 October.

38. In the event, no oral evidence was given at the final hearing, which took place on 15 October 2010, and it is from the order made on that date which the mother appeals, although the order itself seems to have been drawn a few days later.

39. At this point, I say simply that in my view the time-table I have outlined is unsatisfactory. Whilst the decision by the judge to adjourn part heard in June 2010 was manifestly an exercise of discretion (and was, as the following analysis demonstrates effectively consented to by the mother) no private law family case should take a year or more from the institution of proceedings to final hearing, and the mother's complaint that the lives of the children were effectively "on hold" or in limbo throughout that period is justified.

The views of the CAFCASS Officer
40. The CAFCASS Officer filed in total three reports and gave evidence to the judge on 1 June 2010. His view throughout remained that the mother should be given permission to relocate. As his  oral evidence makes clear, the question for him  – at least in the latter stages -  was when, not whether the relocation should take place.

The CAFCASS Officer's first report
41. The first report was completed on 16 February 2010. It was based on meetings with the parents and the children.  Both children told the CAFCASS Officer that they "really" wanted to go to Australia, and attached to the report is a letter from the girl to the judge  which begins "please! Please! Please! Let us move to Australia". The letter refers to the girl missing her guinea pig more than she missed her father, and to her mother saying that she would see her father once a year if they went to live in Australia. The letter ends with the same words as those with which it began, except that the word "please!" is repeated five times. The boy told the officer that he wanted to go to Australia. When the officer  told him that the father had said he was continually asking to see his father, the boy replied: "I do want to see Dad - but I really want to go to Australia".

42. The officer comments that it was "obvious that the children will be devastated if they do not now go". The officer also describes the girl's statement to him "Mum feels lonely here and cried a lot and can't deal with it anymore" as "poignant words from a perceptive 10 year old".

43. The CAFCASS officer also reports that both children had witnessed the arguments between their parents and told him "how they dealt with  the shouting and angry outbursts between them" although he does not pass on what the children said. He referred to the mother's attendance at the local United Free Church, and stated: "There is clearly a difference of approach in parenting between the mother and the father with the children very much influenced by their mother and her attitude and beliefs".

44. The father  expressed sympathy for the mother feeling trapped in England,  but opposed the application on the basis that the children needed both parents.  The officer dealt with his opposition in the following, concluding  paragraphs of his report: -

"The effect on contact with the left behind parent
"Clearly this will mean huge changes - the children would need to communicate via the computer and a Skype telephone connection whereby it is free and they can talk and see each other. Cards and letters and a yearly visit during the summer holidays )which may coincide with Christmas here?) The mother is proposing to spend some weeks here in [town] with her friends who will accommodate the family (bearing in mind [the girl's] request that she should not want to sleep in her father's van). It will mean an enormous change for (the father) who has always lived in a mobile home and this will make contact via internet or Skype  very difficult unless he uses an internet centre or a friend's computer. He does use his mobile phone  but again international calls are expensive. Therefore I acknowledge that any contact to the children in Australia will be immensely difficult for the father to maintain regularly. (the mother) plans to work whilst in Australia and will fund her travel via her earnings and from parental support.

7. I recommend that (the mother) be granted permission to remove the children from the jurisdiction because I believe that it will be in their best interests. I also recommend that the father is granted a parental responsibility order.

8. Contact needs to be clarified and agreed. "

45.  At this point, the CAFCASS officer's view is unequivocal.

The CAFCASS Officer's second report dated 25 May 2010 and his evidence to the judge on 1 June 2010 
46. The second report incorporates much of the material contained in the first report. However, by this stage the CAFCASS officer had had a second interview with the children on 24 May at their school. The officer reports that meeting in these terms: -

"The first thing they wanted me to know was that they will be seeing (the father's two adult children) on (the boy's) birthday and they are really looking forward to this. We then talked about what I would say in my report and I said that it was my opinion that they should be allowed to go to Australia (because they had told me that this is what they both wanted – they re-confirmed this to me). However I also said that I thought their dad wanted to see more of them and I had seen how much they enjoy being with him and (the father's two adult children). Therefore, I wanted dad to obtain an address to which they could go to say in before they left for Australia so that they could get used to it. It was clear to me that (the girl) has reservations about staying with her father saying that she would miss her friends: the church etc. And I replied that I would expect dad to take heed to these events – then she said she would miss mum and I explained when she was in Australia she would see mum every day and for the one month a year when was with dad she would still see mum for a couple of hours each week and telephone her when she wanted to. (The girl) became less resistant to the idea and (the boy) told me that he wanted to return earlier than 6 pm because he gets very tired and would need to rest before school on Mondays. I asked what time they went to bed and they told me it was 8 or 9 pm – so I said you will have plenty of time to rest!"

47. The CAFCASS Officer expresses his conclusions in this report in a series of bullet points: -

• "I recommend that (the mother) be granted permission to remove the children form the jurisdiction because I believe that will be in their best interests when their mother receives the support of her family in bringing them up.
• I recommend that the father is granted a Parental Responsibility Order.
• I also recommend a Contact Order to (the father) to have staying contact from Friday after school until Sundays at 6 pm fortnightly for 6 months commencing on the production of his permanent address at which he will conduct contact. When this has worked well for 6 months then the children could move to Australia to commence their new school term in January 2011. Contact would then revert to a one month stay per annum with (the father) when they stay in his home and he would have access to Skype and letters etc. to be arranged between the parties."

48. That the third bullet point in particular represented the  CAFCASS officer's position seems to me clear from his evidence to the judge generally and in particular from the first answers that he gave to Miss Matuk in cross-examination in his evidence on 1 June 2010: -

"Q.` …… let me try and understand then, you are saying that the court should grant permission to this mother to relocate to Australia?
A I am saying that at the end of the day my submission would be that the court should grant relocation, but before doing so, ant to see this contact cemented and happening…..for six months, in my suggestion to make sure the children have that connection, they understand what they are going to be coming to, they understand what all that means."

49. Later there is an exchange to similar effect in the context of term dates in Australia and the timing of the children's visits to England: -

"That was my understanding of your recommendation for a delay of six months.
A Yes. But you are opposing that, so therefore I am now thinking  actually, she not delay for a year. What is there to stop that happening actually, so that the whole thing becomes clarified and the children are clear about what they are going to and coming back to. There is no immediate rush for this to happen, in order words, I put to you, apart from the mother's head (sic)

Q The mother's application before the court, but you are saying, despite the application, there is merit in adjourning the application to relocate?
A Certainly for six months so that I can see contact working for these children, at least, and if it is going to cause upset because, it could also help us work out , for instance, when Christmas is in Australia and is that a good time to be coming back to the UK, just an off thought , you know. All these things have not been thought through fully have they, I would suggest to you and they could be in delaying this a little longer.

Q I am sorry, what has not been looked at?
A When they come back to have contact."

50. Later still, the officer said in terms: "They (the children) need "to get used to staying with the father before they go to Australia, because it is a  completely new experience for them". At this point, the judge intervenes to say -

"If the children went to Australia without having any recent experience of staying, then there is a very real prospect, it seems to me, of them not wanting to come."

51. The officer agrees and adds, later:

"I believe it important for them (the children) to have this contact grounded and that has not been demonstrated by the mother thus far, in my opinion, and it needs to be so. Yes, it is changing, and I am happy to compliment her on the change, but it needs to be clarified and sorted."

52. Shortly afterward the judge intervenes with the view that the mother's application is "premature", and after a short adjournment Miss Matuk reluctantly agrees to an adjournment with staying contact, to be approved by the CAFCASS Officer, to take place.

The CAFCASS Officer's third report
53. The CAFCASS Officer's third report was completed on 7 September 2010. That report attached letters from the  children stating their with to go to Australia. The boy, for example, writes

"I think it would be good if we stayed with dad for two months instead of one because I like staying with him. I want to go to Australia because there is more to do."

54. In her "letter to the judge". the girl says:

"I still want to go to Australia because most [the word "all" is crossed out] most of my family live over there

It is [the word "was" is crossed out] fun staying with dad. Although the van would be a bit small in the winter but apart from that  I am happy to stay with him. I am happy to see my big brother and sister more often when they come to our house."

55. The CAFCASS Officer comments that the children still wish to go to Australia and adds that they "will now look forward to returning to see their father and wider family here. Hence I believe that these months have been well spent in building up this contact which I hope will now last into the children's developing years". The CAFCASS Officer's conclusion is thus:

"My last report outlined the issues of the Removal from Jurisdiction issues and this is still the major issue for this court. I am clear that the children still wish to go to see their wider family there and be with their mother. I put to them that they would now miss their dad and (the boy) said he would BUT when his dad asks him about it he cannot tell him that he wants to go to Australia because he will be sad to hear it, so he shrugs his shoulders. (The girl) replied in the same fashion. I am still of the opinion that they should be granted leave to go to Australia but I am now more sure that contact in this country will work well (emphasis supplied)"

56. In my judgment, the CAFCASS Officer's report of the respective parental responses to the contact is significant:

"(The father) tells me that he is grateful for the contact that has occurred and that he has greatly enjoyed it. However, he will persist to oppose their removal from the country on the grounds that they do not know how much change it will mean to them. He says that if they are granted leave to do then he will probably not be able to remain in because it will be too painful for him to do so…….

(The mother) tells me that contact has gone well in the main and that things have settled down a great deal. She is relieved that things have needed to be said have been done so and that they re now on a much friendlier footing."

The hearing before the judge on 1 June 2010
57. This was the main hearing and the only occasion on which oral evidence was given. Apart from the judgment which the judge gave at the  end of it, we have a complete transcript The opening is unremarkable, save for a curious remark by the judge who, when told that the mother wished to remove the children in October (contrary to the CAFCASS Officer's views on timing), says "It is relatively unusual for a parent to give permission to relocate if staying contact is not working well" Even assuming "to give permission" should read "to be given permission" the remark is an odd one to my mind. and may give an indication of the way in which the judge was thinking

58. I do not think that anything turns on the mother's evidence save that I agree with Miss Matuk when she criticises the judge for making adverse findings about the mother's attitude to contact without a proper evidential basis for so doing. Unless the judge positively disbelieved the mother's evidence (and he nowhere suggests that he does) the mother's evidence on contact was positive, and the judge's anxieties related (as it seems me) to what  might happen as a consequence of distance and the passage of time,

59. What is instructive about the 1 June 2010 transcript is. (a)  the evidence of the father; and (b) that of the CAFCASS Officer.  I have already set out  the essence of the latter's evidence. He saw contact as a prelude to relocation.  The father was, of course, cross-examined by Miss Matuk, and also asked a large number of questions by the judge. I propose to cite a number of extracts from his evidence.

The father's evidence to the judge on 1 June 2010
60. Firstly, the father confirms that the mother has always been the primary carer ands that he has no criticisms of her as a mother (transcript p 26E to F). He does not oppose her application for a residence order (ibid p 27A). He is asked why he opposes the mother's application to relocate and he answers: -

"I oppose that strongly because I strongly believe that children need both their parents their mother and their father and I have attempted for a long time to have far more real contact with my children. We have a deep and loving relationship. We care for each other a great deal. I care for them, they have a very strong relationship with their older brother and sister, half brother and sister. I have lived all their lives 10 minutes from them. I live in (place named), not just because I work there, but fundamentally because my four children live there."

61. The judge then asks him about his living accommodation. He says he is unable to sleep in his van due to the absence of  planning permission.  He says he moves the van around and insists that he has a permanent lifestyle. The judge then asks him extensively why he had not made a previous application for contact. This is the exchange:-

"Q. I am not understanding you because, if you say, as you tell me, that not only do you love your children very deeply but also it was in their best interests for them to have an ongoing relationship with you and you say she was simply thwarting that and stopping it, then surely in your best interest you would want to do what was the very best for them, and if she will not agree to contact, the next best thing to do is to go to the court and ask for a judge to make an order.
A. Yes, I agree with you. I agree with you, your Honour.

Q. I am not understanding why you did not do that.
A. Because I didn't believe it was going to get anywhere.

Q. Why not try? Why just take the advice of your friends?
A. It wasn't only the advice of my friends your Honour, I also, you know, I also read articles. You know, there was a Radio 4 programme only 18 months ago and it was the first time they allowed the media into the family courts, and being in this situation, I was always listening for that. You do, and I listened for the whole programme and it was so depressing, the attitude was so depressing. Basically it said, there were cases there of somebody trying to get access to their child and they had been to court twelve times and still had not seen their child in six years, and this was a report –

Q. Why not put it to the test?
A. Ironically, it may be a bit late in the day, but this is it."

62. The father then makes it clear that he has no practical or other criticisms of the proposed Australian "arrangements", and he deals with the cost of travel to Australia. He then describes contact. The judge then asks: -

"Q. Do you want to tell me anything about alcohol and drugs?
A  Yes, I'll tell you. What would you like to know? I am a social drinker. I am a social drinker you Honour. I cannot say that I don't get drunk, but it's such a rare occurrence because I do not like being drunk. It is something that is not in my make-up. I don't know if you have, your Honour, the letters from my first statement, from my friends, and they are all very professional people. That is the truth. When (the mother) said to me in the past, "All your friends are drug addicts and alcoholics", and you see who my friends are, what professional people they are and what circle I actually do move in, it is like the character assassination that is yet in the next statement, this hollow statement, is not me. That is not"

63. The father then admits occasionally smoking "dope", before the judge once again returns to the question of parental responsibility and the question of the father's lack of any previous application to the court: -

"Q. So the situation was this then, was it, even though you knew that the children should be having good contact to you, because you knew yourself and you say, "I know the children should be having good contact to me. I know she is not very happy about it and opposed to it, I am not going to go to the court because that seems a waste of time", so your attitude was just to wait until something happened?
A. No, my attitude was to be extremely hurt and then actually lose it a little bit, kind of, being so hurt by it, being so cut off for it, it was literally cutting off, literally cutting off from my children, learning to cut off.

Q. I understand that, but do you not understand that part of the business of being a parent –
A. Yes, your Honour.

Q. – and having parental responsibility, that (the CAFCASS Officer) recommends you have, part of the business of being a parent is to work with your own feelings of hurt and disappointment and so on, but nevertheless to do things which are best for your children? You have to put on one side selfish feelings of hurt and pride and all that sort of things –
A. It is not even pride.

Q. And do what is best for the children.
A. I wouldn't say it is pride.

Q. Why did you not do that? That is no doubt what is going to be asked?
A. Because I felt intimidated by the whole situation. I thought that the court would not actually help me out. That is what I thought, from the histories of what I have seen and what I have looked at, it didn't look a good place to go to, your Honour. As far as I am concerned, your Honour, and no disrespect to this court or the situation here, but reading Payne v Payne and going through that whole situation and knowing that (the mother) has a very extremely good case to go to Australia, I could actually say I am wasting my time even standing here.

Q. And if the court were to grant permission to the mother to locate with the children and yourself. That is right, yes?
A. That is correct."

64. In cross-examination by Miss Matuk, the father confirms that his anxiety is about contact were relocation to take place. He accepts he has no permanent address. He is also asked about contact in the winter: -

"Q. So you would be able to pay that money towards the campsite, if there were to be staying contact between now and when the mother would leave for Australia. And you would ensure and reassure the mother and this court that that could and would happen?
A. Yes

Q. You would agree with me that that is all well and good during the warmer times, the summer times?
A. Yes I can understand that.

Q. But not appropriate, is it, during the winter months?
A. No.

Q. And if the mother were given permission to relocate to Australia, you would agree with me that the school holidays, the main school holidays in Australia fall in the winter in this country?
A. I realise that, and I also realise that I may for that not to be the considered time only, that they be allowed actually, if the case be, that they come here when it is a summer period and take time out of school there, so not necessarily always falling within the winter here."

65. The judge then intervenes to ask about the father's contact with the children's school.

"Q. What involvement have you with the school? When was the last time you went to the school?
A. The last time I went to the school was, it is difficult to say. (the mother) might be able to tell you, but the time I went to the school is – as long as a year ago because it was so in my mind to do it. I made the mistake, I believed I was picking the kids – no, I didn't make a mistake. I went to pick the children up from the school, as was arranged, and I got there and (the mother) told me in no uncertain terms that I wasn't picking the kids up and I shouldn't be there and caused a fuss so I walked away. I was so uptight I stood outside the gates, the other side of the road, thinking this was arranged through the mediation we had. This was the mediation through the church and then suddenly I am not seeing them and she just gives me no explanation, and I stood outside. I remember exactly what happened. She then said to other mothers, I could see what was going on, "he's out there", and she went out through the side area as though I was being a violent person. The school situation is, I have asked (the mother) for the last four/five years every time, every time the school, the kids get reports – sorry, I have visited the school recently, I apologise. I went recently – sorry I forgot this, it is bad of me – but I went to see (the girl's), sorry (the boy's) exhibition just recently. I forgot completely about that sorry. But actually in contact with the school, not a great deal because I feel that I am being denied being there. I have never, ever got any reports from (the mother). I have asked all for the school reports and she has not just given me a school report."

66. The father is then asked about an incident in 2005 after which the judge again intervenes to ask again why the father has not applied before to the court: -

"Q: But if you felt that that was so wrong and unfair and wrong for the children, if that is what you felt, because that is clearly what you are saying to me you did feel, why tolerate it? Why not bring the matter to the court?
A. What was I supposed to do, your Honour?

Q. Come to the court.
A. Every time I said something to her, she said, "I am going to call the police on you." Every time I tried to discuss things at times … (the  mother) …

Q. Why did you not challenge it? If she was doing things which were so wrong, and at the moment I don't know who is telling the truth. She says whenever you called at her door she was met with arguments and rows and disputes because you wanted your own way. That is her case?
A. I am just – your Honour – I am just – a really strong example of this agreed contact, and then for her, without anything else, changing it."

67. Finally when the father comments that  he "can't deal with her (the mother's) psychological paranoia about what she believes I get up to ….." the judge intervenes to say: -

"  I am struggling really to get to the bottom of the problem here, and why things went wrong. At the moment, you see, it seems to me that your attitude to what you were saying was an unreasonable response, what you did was effectively to accept what she laid down. She laid down the law, you accepted it.
A. Yes

Q. I struggling with that, because if you are saying that that was totally unjustified and completely wrong and not in the best interests of the children, then a reasonable, responsible, intelligent father would say, "This is isn't right. If you are going to go down this road, I am going to go down a different one and go to the court.
A. As I said to you earlier on your Honour, I did actually try to go down alternative paths and I thought and hoped, and I did spend an awful long time on one path which was an absolute waste of time. I spent nearly a year with a mutual friend from her church potentially discussing more, and it was put off, it was put off, it was put off, OK. Then we went to mediation. I have been asking for mediation for a long time. Personally I don't want to be here. I don't want to be here. I never wanted this. I wanted to do it though mediation and so on. I attempted mediation before we came to court and because I am not on the dole, it was going to cost me £300 per hour and a half to have mediation with (the mother). So, you know …"

68. The judge then intervenes to ask about the father's health - (This seems to me relevant in the light of the absence of any finding by the judge as to the mother's health). The Judge then asks a number of questions about earlier events, and the evidence given by the mother about them: -

"Q What I see her saying in this statement is that here is a very isolated person, bringing up two children by the time (the boy) is born and she is looking for other people for emotional support.
A I understand that.

Q: She gets none of that from you, their father. She turns to other people. She goes to her church. She gets support from her church. That is what she is saying and you were not there for her. But you just turn up whenever you like for contact.
A. No, I never did that, your Honour. I never did just turn up, ever."

69.  Later, in the same exchange, the judge says: -

"Q.  I just do not follow it, I am sorry.
A. I have said to you before, I said to you before I attempted through other ways of doing so, even up to a little while ago, and I did not want to come into court and I did not believe in the court system as far as supporting my situation. I have seen and read too much about -as I was trying to say to you before lunch, your Honour, I have listened to last year's – I think it was last year – a Radio 4 report when they first allowed the first media into the Family courts for the first time, and the end of the programme was so depressing, it was unbelievable for me. It just gave me no hope and it just gave me a thought, "I go to court, I go to court, I go to court, I go to court", and where would that get us.

Q Go on further in this statement, page 17, paragraph 12, it is talking about a little time ago, admittedly, but it is 2004.
A.  Where are you?

Q Paragraph 12, page B17. There was an incident, she says, when you went to her home and would not leave, resulting in her having to call the police. I have seen the police log that refers to this incident. Do you deny this?
A. I don't deny it. I will tell you the incident. I will tell you both incidences of the police, if you would like to know, your Honour. I will tell you the first one.

Q  I want you to tell me this one. I am talking about this one.
A. This one, I was on the phone to (the mother). It was about 9. Probably if you look at your log, I think you will probably see it was obviously dark, because it was September, I know it was dark, I was in the square and I was talking to (the mother) and we were having what I would call a heart to heart, kind of semi-argument about my access to the children and what was going on, yet again. She put the phone down and I rang her back and carried on. She put the phone down again. I felt heated, passionate and I went round to her house and I knocked at her door, and she came to the door and she said. "Go away. Go away. You are disturbing the children". I thought, "Hang on, you are disturbing the children because you are shouting through the door and I have just knocked on the door". Then she opened the door, or she didn't open the door she said, "I am going to call the police" and that was it. I went. Yes, I went. That was one incident. The other incident was I had had the kids for the day and we came back to the house, and this is the last time I have ever been in the house, in (the mother's) house. (the mother) was distracted, or she was uptight about everything gotten late, and the shopping and so on, so I said, "I'll do the cooking". I am at the cooker, I even remember the meal, I was cooking minced meat and mashed potato and peas or something for the kids and ourselves, and I was standing there and there was a little altercation with her and B in the hallway. I thought I heard what was a smack. Now, I have never smacked my children and I do not believe in it, and it wasn't said, maybe (the mother) would say it was different, I didn't realise (the mother) was so uptight at the time, obviously. But basically what happened is I said to (the mother), "Did you just smack B?", and I have never seen somebody ever – I have never seen anybody so angry in all my life. It was shocking. It was sad, terribly sad. (the mother) was frothing at the mouth. She had a saucepan in her hand and she was asking me to leave now, there and then. The kids were around crying.

Q   Is that the 2007 incident, paragraph 19?
A. I am not sure. I only know two incidences of the police.

Q  Just answer the question. Paragraph 19. She asked you to leave and you said you wanted to give the children money, you threw it on the floor in front of them."
A. That's at school. That's at school. That was at the school."

The judgment given by the judge on 1 June 2010
70. Although the transcript of the 1 June 2010 hearing reads on p 80 "(Judgment given – see separate transcript)" it would seem that the judgment given on that day was not in fact transcribed. We are, accordingly, dependent upon a note taken by the mother's solicitor. The substance reads: -

"I have heard evidence of all parties but during the course of (the CAFCASS Officer's) evidence that mother's application which is opposed is premature.  It is clear that father has not been having good quality contact.  If mother was granted permission, if staying contact is not working well there is a real danger of losing contact with their father.  (The CAFCASS Officer) suggests there is a final report.  A build up of contact so in six months the children should be having quality contact to their father and then mother can be given permission to re-locate.

It is impossible for mother to satisfy the court the criteria is satisfied in Payne v Payne. (sic)  I am not expressing a view today about re-location.  There will be no guarantee it will be granted.  There are clear observations regarding contact arrangements.  The children need somewhere to go with all the necessary and modern facilities such as sleeping, washing, catering etc.  Children need to approve, like and enjoy their contact with their father and their father needs to be given time.  It remains to be seen whether three months will be sufficient.

I therefore order that the matter is adjourned for three months until the first open date after the 1st September 2010, with a time estimate of 30 minutes.  Contact needs to be proven before any decision on re-location.  It needs to provide arrangements.  I appreciate the difficulties for mother who is hoping to re-locate at the beginning of the year but contact needs to be right first.  Mum needs to hide the disappointment from the children so they are protected.  Upon the court hearing evidence from mother, father and (the CAFCASS Officer) and deciding the application is premature in relation to the fact that there are no adequate contact arrangements.  Matter is adjourned part heard."

The way the father put his case
71. The father, who has throughout acted in person, filed several position statements. The first in our papers is not dated,  Although it begins with the words "I care for (the mother) and have empathy for her wishes to return to Australia", the document   is in fact  an attack on the mother who, the father alleges, has eroded his contact. He expresses the belief that he would lose all contact with the children if they were to go to Australia. Because of the mother's "attempt at character assassination", he attaches a number of testimonials.

72. In his second position statement, which is again undated, the father accuses the CAFCASS Officer of bias,. He says: -

"I have waited for months for the CAFCASS report believing that it would shed some light on my situation and give some support – it has not, in fact it is so biased as to be damaging to me…….I find myself so upset by the non-neutrality of the CAFCASS report by (the CAFCASS Officer) that I am in the process of going through their complaints procedure…."

73.  For the final hearing the mother exhibits to her position statement what is in my judgment an accurate, detailed and on the whole positive log of the contact which the children had enjoyed with their father since the hearing on 1 June 2010.. By contrast, the father's response strikes me as negative – certainly as far as the mother is concerned.  He refers to the mother's "insecurity" showing through her diary of contact, which he sees as "negative". He accuses the mother of "brainwashing" the children, although he says he does not like the word.

74. In addition, the father appears to be under the impression that the Officer was ordered by the judge to re-write the first report because it was so biased He says: -

"Last Saturday, 9 October 2010, I received a telephone call from CAFCASS regarding feedback about how I felt ……the CAFCASS officer in this case, dealt with case regarding my point of view and this was my reply: I said I felt (the CAFCASS Officer to be contradictory; I will explain this later. I felt he was bias in favour of the mother, particularly in the first report hence the report being redone as ordered by Judge Tyzack……I also said that I found |(the CAFCASS Officer) showing a possible if not blatant conflict of interest…."

75. I have already set out the orders made by the judge and the district judge, and the father's attack on the CAFCASS officer is, in my judgment, significant. It is, I think, sufficient to say that there is no evidence at all of bias by the CAFCASS Officer and no basis in the evidence for the suggestion either that the father's complaints about the CAFCASS Officer were justified or that the latter's second report, (which, of course, reached the same conclusions as his first) was "re-written" at the judge's request.

76. The father's view of the CAFCASS Officer's "contradictions" appears to be his view (plainly not shared by the father) that the mother lacked support. In one sentence he says: it reads 'this poor mum with no support' and the next sentence reads. 'having loads of support". The father uses inverted commas, but I have searched the CAFCASS Officer's reports in vain  for these quotations. Plainly, in the father's view, the mother  has "a huge amount of support" and the father, in terms, maintains his claim that the CAFCASS Officer is biased. His views is that "(the mother) is only being nice throughout the process to keep the court sweet, in order to enable her wishes to be met" and it is  plain – indeed, he says so in terms - that he does not trust the mother.  

77. As I have already indicated the father accuses the mother of reneging on contact arrangements, and the father expresses the fear that if the children are allowed to go to Australia, he would lose all contact with them. 

78. In the position statement which he prepared for this court, the father maintains his allegation of bias against the CAFCASS officer, and refers in detail to an article written by a member of the English bar on Payne v Payne. That article in turn refers to papers given by Professor Patrick Parkinson and Dr. Marilyn Freemen. The father also refers to a number of cases, including dicta of my own in a  permission application called Re D [2010] EWCA Civ 50, reported as  Re D (Leave to remove: appeal) [2010] 1 FLR 1605 (Re D) to which I refer  at the end of this judgment.

The judgment given by the judge on 15 October 2010
79. This is clearly the crucial document in the appeal. The judge begins by  quoting the mother's application dated 1 September 2009. He then identifies the children and the CAFCASS offer and set outs the history. The mother was Australian and had come to England to teach English as a foreign language. Here she met the father but she  and the father, he says "have never been together". In any conventional sense. He then goes on: -

"4……..Mother says it began by the father providing her with a bus to live in near to the caravan where he lived on a farm. Having heard the evidence from both parents, it is clear to me, and I so find, that at the beginning of their relationship together, both enjoyed what might be described as a somewhat unconventional lifestyle. But when the relationship broke down after the children were born, the mother's lifestyle changed. I find that she developed a more conventional circle of friends and joined a church, which gave her help and support. The father, on the other hand, has always pursued the same kind of way of living. He is a self-employed carpenter and builder, with a workshop in (place named), but until recently he lived in a kind of converted van. He now has a caravan on a permanent site where he lives, but retains, as I understand it, the workshop."

80. The judge makes no findings of fact about the period prior to the institution of the present proceedings. Instead, he goes on:-

"5. After the relationship between the parents broke down, the children remained with the mother. Indeed, she has always been their primary carer. Father, in his evidence before me has not sought to make any criticism of her as a mother. There is, however, a big issue before them as to what happens over contact. The mother's case is that the father was casual about contact and was not regular or committed and indeed undermined her role as a parent and a mother and undermined her care and made life difficult. She felt under emotional pressure from him. Father's case is that the mother was obstructive and difficult, refusing to let him have anything like reasonable contact, so his contact became less and less. The mother acknowledges that the contact did lessen, but she says this is the father's fault and the fact that he did not have any conventional accommodation. She also objected to his lifestyle and, for example, the sort of friends he kept and the sort of films that he would let the children watch. Thus, when this case started before me at the final hearing in June, that father was having very limited visiting contact only. That was common ground. It is common ground that there had been attempts made to resolve the issue of contact by mediation but these attempts were unsuccessful. (The CAFCASS Officer) refers to this in his final report. He says:

I simply observe that despite previous attempts at trying to resolve contact issues between the parents this has not been successful. I therefore suspect that unless contact is clarified in any order allowing them to leave the UK there would be problems with (the father's) ability to maintain contact to the children, which they want to continue. I also believe that he has maintained contact over the past years – though his physical support has been limited – and his commitment has been clear. Therefore I cannot see any argument for not allowing him Parental Responsibility.

Indeed, earlier in these proceedings, the mother agreed to the father having parental responsibility and such an order was made."

81. The judge goes on to find that the father was indeed committed to contact, and contrary to the view which he had expressed in the June hearing  goes out of his way to excuse the lack of any earlier application on the father's part: -

"7. I suspect that it is easy for lawyers and judges as well to criticise parents who are not getting contact they feel the children should have to say "Why not make an application to the Court?" But lawyers and judges are, of course, familiar with the whole court process. We know what is involved. It does not present any difficulties for us in understanding the process. Having heard the father give evidence, I am quite prepared to accept that he, as a litigant in person, may have found the process rather daunting and intimidation, perhaps rather complicated and probably expensive. Nevertheless, it is a fact that he never made any application to the court."

82. The judge then finds that the children were not having good contact with the father, although they wanted it. The judge expresses his suspicion that the reality was the parents "had essentially grown a long way apart", their lifestyles were different and the mother "was not in sympathy or attuned to the father and his unconventional lifestyle".

83. The judge then turns to the mother's application. This is how he introduces it:

"9. Factually, the mother's application for permission to relocate to Australia and her reasons for going are clearly set out in her very comprehensive first statement. This is a very thorough document with many helpful exhibits. I do not need to go into it all because it is common ground that many members of her family live in Australia, father, mother, brothers and sisters all live in or around Perth. I was told at the first hearing that her father, maybe with other members of her family, run a garden machinery business, and she would intend, is she went to Australia to live with the children, to get a job teaching English. She says in her statement there is a high demand for English teachers. I have read all that she sets out in that first statement, including all that she says about schools, the location, health and so on. I have absolutely no doubt that, if the mother was given permission to relocate to Perth in Australia entirely satisfactory arrangements both for herself and the children would be made. Indeed, father does not seek to challenge that.

10. Essentially the mother's case for relocation, as she says in her statement and in her oral evidence and as Miss Matuk ably submitted on her behalf, is that she would achieve a better life for herself and her children in Australia. She will have better support there from her family, there would be good schools for the children to attend and a better lifestyle. The children have visited Australia for at least one holiday and they enjoyed it. It is common ground that the children have said that they want to go. Mother says that she would be happier living with the children with her family around her in Australia and more content. That obviously would affect her relationship with the children and her ability to care for them.

11. She says that she does not want to deprive the children of their relationship with their father. There could still be contact, she says, once a year for a month and there will be other mothers of contact (sic) electronically that she would cooperate with he Skype, email and so on..

12. During the June hearing, I heard a lot of evidence from (the CAFCASS Officer) as to whether, and if so, contact between father and the children could be improved. I expressed my concern that if the mother was given permission to go and the contact being at that stage still so limited, there was a risk that it would lessen still more if the quantity was lessened by the mother living in Australia. The transcript of that hearing really discloses the debate that was held in court with the evidence that I was hearing from the Guardian. In the end I decided to adjourn the case to see if the parents could work together to enable the children to have better contact with their father. For his part, (the CAFCASS Officer) clearly wanted the father to bring some greater stability to his life in terms of his accommodation situation before there could be any real prospect of staying contact occurring. The father, for his part, also wanted the children to have a relationship with other members of his family, his mother, for example, and but not less….. (his) older son and daughter."

84. There was, undoubtedly, an improvement in the father's contact between June and October 2010 and this was, in the judge's words "very much to the credit of the parents". The father had acquired  a caravan on a permanent site, where the children had stayed. They had enjoyed the contact, and wanted it to continue.  The judge quotes extensively from  the mother's position statement in which she expresses the hope that the accommodation provided by the father "will be adequate enough in the warmer months of the year". The judge also quotes from the father's position statement in which he describes the contact in positive terms. "When we are together it is magic", he says, and in the same paragraph concludes that; contact has only been seen to happen, as far as he could comprehend

"As contact between parent and children being established as part of the Payne v Payne requirement before acceptance of a possible removal from the jurisdiction……"

85. Attached to the father's position statement was a letter from the father's adult daughter, which also emphasises the success of contact, and from which the judge cites.

86. The judge then turns to the final report of the CAFCASS officer, and quote a paragraph in which the officer expresses the general view that the children have enjoyed their contact with the father. He then continues: -

"18. His recommendation, as has his (sic) recommendation has been throughout is that the mother should be given permission to relocate to Australia. He attaches to this report some observations from the children themselves, first of all (the boy)….. It is a page which says, "What I want to say" and "What do you think?", "My letter to the judge" and this looks as it has been written by (the boy) himself. "I think it would be good if stayed with dad for two months instead of one, because I like staying with him. I want to go to Australia because there's more to do." (the boy's) second page, "My plan. Here is what a good plan for me would look like", then he has written the words "Dad, (the father's two adult children) Mum, (the girl) and all relatives. Australia, swimming pool, friends, UK, four dogs, church in  Perth, Nana and Popa, big house, lovely school", and a number of other possibilities, which he does not take up at the bottom of (the page). Then (the boy), "How I feel about my future." There are a number of possibilities that he can indicate and he has chosen to ring around the word "happy". As far as (the girl) is concerned, what I want to say and what you think, "My letter to the judge", this is what she writes:

'I still want to go to Australia because most of my family live over there. It is fun staying with dad, although the van would be a bit small in the winter. But apart from that, I am happy to stay with him. I am happy that I got to see my big brother and sister more often when they come to our house. I love going to (her grandmother's) a few weeks ago. I never really got to see her. Dad is good at looking after us.'

19. How I feel about my future, and she too has ringed the word "happy" and she has also ringed the word "excited."

87. The judge then goes on to make the following important findings: -

"21. I, too, find that the mother has no ill-motive for wishing to relocate. I certainly do not think that she wants to relocate to get away from the father or his family. I accept the mother's evidence that she has a genuine reason fore wanting to go and she is genuinely motivated to seeking to achieve what she thinks would be a better life for her and her children in Australia. But I am concerned, as I have indicated during submissions, as to whether (which I shall come to in a moment) even though the mother is not motivated to exclude the father, whether as a matter of fact that might happen if the children were in Australia."

88. The judge then examines the father's position:

"22. The second fact that (the CAFCASS Officer) looks at is the motivation of the parent opposing the move. Mr O says, "Mr W is opposing this application because he feels that both children need both parents." He has said to me that Miss W feels trapped in this country and that her family are there in Australia and that they can offer her a type of support that he cannot, and he accepts this is important. He has also felt very angry at the way the mother has prevented him from seeing his children in the past, and is extremely worried that, if they are removed from this country, he may never see them again. He has tried his hardest to maintain contact against difficult circumstances and loves the children deeply. However, he does understand that the mother would like to be with her family, but pleads with her and the court not to cut his children out of his life.

23. Like (the CAFCASS Officer), I too, do not detect in the father's case any motive in opposing the mother's application, to deprive her of her desire to move to be with her family. Indeed, he expressly says that he, the father, has sympathy with the mother's decision and wish to move."

89. The judge then makes what is perhaps the most important finding in the case: -

"24. Thirdly, (the CAFCASS Officer) looks at the effect of refusal for the carer and the children. He says this would simply be devastating, as (the mother) would feel completely trapped in another country, unable to access support from her family and not trusting that (the father) would support her parenting or her as a person. This has led in the past to a near breakdown and I would suggest that the severity of separation could easily impact badly on her, and in turn on the care of the children. I, too, find that the decision against relocation would be devastating for the mother.(emphasis supplied) She would be very saddened, I am quite satisfied, if the decision was against her and the implication of it would mean that she would have to remain in this country, because she has no intention, of course, of leaving the jurisdiction without the children. But she does have support, which some mothers in these cases do not, from her church in particular, and it may be, of course, that with the father now having greater contact to the children, that he can responsibility provide much more support to the mother than he has in the past, which is clearly a balancing factor for the court to consider."

90. The judge then considers the potential situation in Australia, which is entirely satisfactory. As to the wishes of the children, the judge again accepts the evidence of the CAFCASS Officer-

"I believe they do enjoy seeing their father as he is one of the few social contacts in familial terms that they have in this country. They get taken to (place named) or the beach and they can "boss him around and get away with it" However, their overriding feeling is one of anticipation of going to Australia. I put it to them that they would miss their father and they knew they would but added that they would have much more family there than in England."

91. The judge then looks at the effect on the father, and once again cites the view of the CAFCASS officer: -

"Clearly this will mean huge changes – the children would need to communicate via computer and a Skype telephone connection whereby it is free they can talk and see other. Cards and letters and a yearly visit during the Summer Holidays (which may coincide with Christmas here?) The mother is proposing to spend one month in this country each year when the children will be cared for by the father. It will mean an enormous change for (the father) who has always lived in a mobile home obtaining a permanent address in the …..area will be extraordinarily difficult – but this is very necessary for the children. I do acknowledge that any contact with the children in Australia will be immensely difficult for the father to maintain regularly. (The mother) plans to work whilst in Australia and will fund her travel via her earnings and from parental support."

92. The judge then refers to the recent case of Re H (Leave to Remove) [2010] EWCA Civ 915. [2010] 2 FLR 1675, in which he had been the trial judge, and in particular to the  judgment of Wilson LJ in that case. This is a point to which I shall return.. He sets out paragraph 26 of Wilson LJ's judgment (which I will not repeat) before concluding in paragraph 30 of his judgment: -

"30. Thus, I plainly have to be guided by the leading case of Payne v. Payne and I find that the analysis that (the CAFCASS Officer has set out in his report is a helpful analysis of the Payne v Payne considerations:"

93. The judge then expresses his conclusions. These I propose to cite in full: - 

"30. Wilson LJ in Re H clearly recognised the acute tension that there is in a case like this and, as I recognised myself in Re H. Re H concerned a mother who wanted to relocate to the Czech Republic and Australia is, of course, far further away than the  Czech Republic. I am all too well aware in this case that whichever decision I make, one parent is going to be devastated. I have to confess that I have not found this an easy case to decide. Clearly there are many powerful reasons for granting the mother's application which are well articulated in (the CAFCASS Officer)'s report. But there are two main factors which concern me. First, during the last three months, it is absolutely clear to me that contact has been improving, and this is, as I say, to the credit of both parents, and (the CAFCASS Officer) acknowledged that as well. What troubles me, and this is a matter that I do not consider (the CAFCASS Officer) has adequately weighed in his final report, is that I do not feel that there is room for even greater improvements to come so far as the children are concerned and their relationship with their father and, so far as the relationship with the children are concerned and their relationship with his children R and D. What concerns me is that, if the children now go to Australia, all that may never happen. This I find could be an important loss for these children.

31. Contact once a year for a month is unlikely, in my judgment, to enable the success of the past few weeks to be solidly built upon. It is important, in my judgment, that the children o into their adult years with a good relationship with both parents. It does not matter, in my judgment, who was to blame for the failures in the past so far as contact was concerned. The fact is that good contact did not happen and the children's relationship with the father and also with (his two adult children) I find suffered accordingly. But it is now being re[paired, as the father says in his statement. It is rather like a honeymoon period at the moment. I used the word during submissions that it was "embryonic". In my judgment, there is more to come and (the CAFCASS Officer) acknowledged that in his closing remarks to me. So I feel it would be a grave loss to these children to deprive them of the possibility of his contact further developing and growing even more.

32. My second concern that I have, and this is another factor that I do not feel (the CAFCASS Officer) has given sufficient weight to in his report, is that whilst I give credit to the mother, as I have said, for her cooperation over the contact arrangements, the success of this has all come about in the context of this litigation and with (the CAFCASS Officer)'s help. I am concerned that, if the mother is given permission to go to Australia, she will then be free from the pressures and persuasive influence of this litigation, and there may not be the same constructive and harmonious cooperation in the future over contact. The father raises this in his final position statement at pages 8 to 9. I will not read all that out, but it is quite clear to me in reading those passages from his statement, that it does highlight, even in the context of these improvements that he has this concern.

33. Of course I accept what Miss Matuk submits that Australia is a member of the Hague Convention and there could of course be mirror orders made in  Australia, but the context of this case is that neither or these parents are blessed with significant resources and the father could find it very difficult indeed, in my judgment, to attempt to enforce contact in Australia.

34. Weighing all these factors clearly in my mind, as I have, I have decided that the welfare of these children drives me to the conclusion on the evidence I have heard and read, that the mother's applications for permission to remove the children should be dismissed, I know this will be a very bitter blow to the mother, but she needs to understand that the children's relationship with their father is very important. In my judgment, the children should remain in this jurisdiction so that their relationship with him can continue to grow and develop. I am satisfied that he has a normal, good relationship with his older children…….. (The girl and the boy) must, in my judgment have the opportunity to develop their own, good quality relationship with him, their father. For his part, he must, in my judgment play a greater and increasingly more responsible role in constructive support of the mother. He is now playing a greater part in the lives of   (the girl and the boy). It is absolutely vital that he remains completely committed to the greater role that he is enjoying.

35. For all these reasons, I dismiss the mother's application."

The grounds of appeal
94. Miss Matuk advances eleven ground of appeal, including, at ground 11, "the catchall" submission that "in all the circumstances, the decision of the learned judge was plainly wrong". She does not distinguish between appeals against findings of fact and appeals on points of law. Most of her grounds are, in effect, complaints about the weight, or lack of it, which the judge gave to individual features of this case. As I have already indicated there is, in my judgment, one principal ground of appeal, namely that  that judge has got the "balancing exercise" wrong. That said, it seems to me that there are several other objections to the judge's approach, which I will now address.

95. I have set out the evidence and the judge's judgment at some length for a number of reasons. Principal amongst them, however, is my clear conclusion that this one of those  rare cases in which the judge, in the exercise of his discretion,  has plainly reached the wrong conclusion, and that it is not only open to this court to interfere, but that in the best interests of the children it has a duty to do so.

96. Having reflected carefully on this case, I have reached the clear conclusion that the best interests of the children require the mother's application to relocate with them to Australia to succeed. I am also of the view that  the judge has made a number of serious errors in his performance of the balancing exercise, and that the conclusion which he has reached is "plainly wrong".

97. I do not, however, found my conclusion simply and solely on the judge's performance of the "balancing exercise". In my judgment his conclusion is open to attack on several other grounds, to which I shall refer in due course.
The balancing exercise
98. I have cited extensively, and I hope fairly.  from the oral and written evidence before the judge because  I am the first to recognise the difficulty and sensitivity of the judge's task but also as a means of demonstrating where, in my judgment, he want wrong.

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.

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) [2010] 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  [2009] 1 FLR 1157.

110. In my judgment, however,  this is not one of those cases. In my judgment, performance of the balancing exercise in this points overwhelmingly to relocation being in the best interests of these children, 

The application of Payne v Payne
111. I test that conclusion by a straightforward application of the Payne v. Payne exercise. I first apply the broad approach advocated by Thorpe LJ and based, as it is, on authority – see  paragraph 20 above. That approach demonstrates that consistently over the years the courts have made relocation orders on facts similar to those presented here. The mother's proposals self-evidently are not contrary to the interests of the children, and thus the overwhelming weight of authority is in favour of relocation on the facts as found here.

112. Secondly, I apply  the specified test proposed by Thorpe LJ: - see paragraph 22 above.  The mother's application is self-evidently genuine. The father accepts that. It is not motivated by some selfish desire  to exclude the father from the children's lives,  although there is an anxiety that this may be its consequence.  The application is again self-evidently realistic - that is, founded on  practical proposals both well researched and investigated.  So the application passes Thorpe LJ's first two tests.

113. The father's opposition must be carefully appraised: - see paragraph (b) of Thorpe LJ's analysis. It is plainly genuine. I have rehearsed the evidence of detriment.  As I have already pointed out, however, nowhere, however, does the judge consider how the loss of contact with the father would be "offset by the  extension of the children's relationships with the maternal family and homeland", although, as the evidence shows, this is plainly an element in the children's thinking. The mother has many family members in Australia including a brother with children of compatible ages with those of the boy and the girl.

114. What would be the impact on the mother? The judge has found in terms that she would be "devastated" – see paragraph 91 above.

115. The "outcome of the second and third appraisals must then be brought into an overriding review of the children's welfare as the paramount consideration". In my judgment, this discipline point overwhelmingly in favour of relocation.

116. I turn, thirdly, to Dame Elizabeth Butler-Sloss P's summary at paragraph 85 of Payne v Payne.  The mother's reasonable proposals plainly carry great weight (c); they  need to be carefully scrutinised  for the court to be satisfied that her motivation for the move is genuine (d);  the effect on her of a refusal would be  "devastating" (e); the effect on the children of the denial of contact with the father  - very important (f); the opportunity for continuing contact with the left behind parent (may be very significant)(f).

117. It is not, of course, a numerical question. Each case turns on its own facts, and the weight to be given to various factors will change from case to case. But on the facts of this case, the balance on Dame Elizabeth's test seems to me to come down powerfully in favour of relocation.

118. I repeat: - the mother has a good case for going. Her proposals are sensible and well thought out. She would be "devastated" if she and the children cannot go. She is Australian and going back to her family. The children want to go. She is isolated, "trapped" and depressed in England. Against this has to be balanced the children's relationship with their father and the undoubted diminution in contact which will occur. Once again, whatever test is applied, the answer, in my judgment, is clear.

My remaining criticisms of the judge's approach
119. The foregoing, if it is right, is sufficient to dispose of the appeal. There are, however, in my judgment, a number of other criticisms of the judge's judgment which can be made and which, at the risk of expanding what is already an overlong judgment, I propose to articulate.

120. The first is that the judge has failed, in my judgment, to make essential findings of fact. He had ample material upon which to do so. The mother's statements were full and detailed. Both parties gave evidence. The judge asked the father a number of specific  questions. Yet in this judgment, there is a recital of each party's case, and no findings on critical issues: indeed, the judge says in terms that it does not matter  who was to blame for the failures in the past.

121. In my judgment,  this approach is wrong. Of course a balance has to be struck. Nobody seeks a long, pervasive and expensive  enquiry into past facts,  but since these cases are fact specific, essential findings must be made. In my judgment, in the instant case, the judge's failure to make essential findings led him seriously to under estimate the mother's case, and to downplay her sense of isolation and devastation.

122. Secondly, I think the judge was wrong not to address the CAFCASS Officer's view that the children needed to establish contact with their father as a basis and for the purposes of their relocation. Of course, it almost goes without saying that the judge was entitled to disagree with the CAFCASS Officer's recommendation. Judges decide these cases, not CAFCASS officers. These propositions are self-evident. The judge's task was to weigh the CAFCASS officer's opinion and explain why he disagreed with it. He does not deal with what, on any view, was a critical part of the CAFCASS Officer's thinking.

123. This leads to my next area of dissatisfaction with the judge's approach, namely that he sought  to address the Payne v Payne criteria through the prism of the CAFCASS Officer's recommendations. In my judgment, there is no substitute to going to the authority itself, not another's view of it, especially when that other is a person with whom the judge was to disagree.

124. The factors identified by the CAFCASS officer (and repeated by the judge) were (1) the reason and motivation for the emigration; (2) the motivation for the parent opposing the move; (3) the effect of refusal for the carer and the children; (4) the circumstances of the proposed home; (5) the wishes of the children;  and (6) the effect on contact of the left behind parent.

125. These, with respect, do not fully coincide with Dame Elizabeth Butler-Sloss's list of considerations in Payne v Payne: They leave out of account, in particular; (1) the fact that the mother has a residence order; (2) the effect on "the new family" of the children of a refusal of leave; Furthermore, by concentrating on the CAFCASS officer's assessment, the judge takes no account of the letters from the Health Visitor and the General Practitioner. It was for the judge to reach his conclusion on all the evidence, not the selections from it made by the CAFCASS Officer.

126. In my judgment, these factors weaken the judge's analysis.   Having been through the six factors, the points which appear to sway the judge are (1) the possibility that that the father could responsibly  provide much more support to the mother than he had in the past (paragraph 24 of the judgment); (2) the fact that contact from Australia was unlikely to enable the success of the past few months to be solidly built upon" (paragraph 32);  and (3) that, from Australia, so far as the mother was concerned: "there may not be the same constructive and harmonious cooperation in the future over contact". The children should thus remain in this jurisdiction so that their relationship with their father can continue to grow and develop". (paragraph 35).

127. In my judgment, these propositions, if they are to carry the weight which the judge gives to them,  all need to be soundly bedded  in judicial findings  In my judgment, they are not.  True it is that the father's relationship with the children has improved (for which the judge gives proper credit to both parents). But that apart, there is no finding of fact by the judge which, in my judgment, could properly enable him to give such factors the weight hew attributes to them. As I stated earlier, the judge, in my judgment, has seriously underestimated the strength of the mother's case.

128. I fear that too much weight may have been given to some words of mine spoken in a judgment which I gave in an application to this court for permission to appeal in a relocation case.  Whilst I do not resile from most of what I have said, I am of the clear view that undue prominence has been accorded to Re D, in which I refused a litigant in person permission to appeal against a relocation order, and  in which I went out of my way to explain in detail to him why, in my judgment, his application had to be refused.. During the course of my judgment, I said: -

"2. There has been considerable criticism of Payne v Payne in certain quarters, and there is a perfectly respectable argument for the proposition that it places too great an emphasis on the wishes and feelings of the relocating parent, and ignores or relegates the harm done of children by a permanent breach of the relationship which children have with the left behind parent."

129. Wilson LJ in Re H (A Child) [2010] EWCA Civ 915 rightly criticises my use of the word "ignores", which I retract. It further occurs to me that unless and until we have the research identified by Professor Freeman, and unless and until Parliament imposes a different test to that set out in section 1(1) of the Children Act 1989 (paramountcy of welfare), relocation cases will remain fact specific, the subject of discretionary decisions, and governed by Payne v Payne. The judge in the instant case rightly recognised that he had to follow Payne v. Payne. In my judgement, however, he failed to do so.

Lord Justice Lloyd:
130. As the President says, the necessary decision in this case is really hard.  Whether the mother's application succeeds or fails, the result will be extremely difficult, and even harsh, for one parent or the other.  The judge has concluded that the best interests of the children require that they should remain in this jurisdiction, so that their relationship with their father can grow and develop and be further improved.  The question is whether, in coming to that conclusion, he has misdirected himself, either expressly, or by inference from his having come to a conclusion which is altogether wrong, outside the ambit of decisions which a judge, properly directing himself, could reach in the proper exercise of his discretion and judgment.

131. The President has set out all the relevant circumstances and material, so I can go straight to the point.  I agree with him that the appeal should be allowed.  Because to allow an appeal in a case of this kind involves overturning the decision of the judge below in an area which is one of discretion, something which is not, and ought not to be, easily done, I set out my own reasoning separately.  I agree with the President that the father's oral submissions to us were powerful, evidently sincere, and cogent, and that his case could not have been put more eloquently or persuasively if he had been represented by a lawyer.

132. It is a relevant aspect of the previous history that the mother and father did not at any stage live together.  The mother has always been the primary carer, perhaps, in real terms, the only carer.  The father has had contact with the children, but has never had them living with him at any stage.  After the break-up of the relationship, the father's contact with his children became problematical, as between father and mother, and undoubtedly it lessened in extent.  Thus, both when the mother issued her application in September 2009 and even at the stage of the first hearing before the judge, on 1 June 2010, the father was having very limited contact, and only on a visiting basis. 

133. In the first report by the CAFCASS officer, in February 2010, he commented on the lack of success in resolving contact issues up to then between the parents.  He went on:

"I therefore suspect that unless contact is clarified in any order allowing them to leave the UK, there would be problems with [the father's] ability to maintain contact with the children, which they want to continue."

134. He went on from that statement to prepare for his conclusion by way of comments in relation to points drawn from the judgment of this court in Payne v Payne, as it were by way of a checklist, and came to the conclusion that the mother be granted permission to remove the children.

135. Then he made a further report dated 25 May 2010, following a series of further meetings, including one with the children at school and without the parents.  By that time, there had still been no staying contact, but the CAFCASS officer had begun to discuss it with the parents and the children.  The children had begun to get to know the father's two older children, their half-siblings, and they clearly enjoyed this contact.  The officer remained of the same view as to the mother's application, but he said this:

"However I am now certain that [the father] has suffered from a lack of contact to his children in the past and that this should have been rectified earlier."

136. He went over the Payne v Payne checklist factors again, with similar or identical comments as before.  He again recommended that the mother be allowed to take the children to Australia, but he also recommended granting to the father a parental responsibility order, and he recommended fortnightly staying access over a weekend over a period of six months, once the father had established a permanent address for the purposes of contact.  He said that, once this had worked well for 6 months, the children could move to Australia in time for the new school term in January 2011, with contact then being for one month a year staying contact in the UK, and in the meantime contact by Skype, post and otherwise, to be arranged.  He advised that contact should be agreed and reviewed by the court after 6 months, in order to explore orders which would enable the contact arrangements to be adhered to after the children's move.

137. That was the position at the stage of the first day's hearing before the judge.  As the President has said, we have a transcript of the proceedings but not of the judge's judgment given on 1 June 2010.  He heard each of the parties and the CAFCASS officer.  At the end of the hearing he adjourned the case part heard.  Some observations by the judge before he gave judgment, during the latter stages of cross-examination of the CAFCASS officer, give a clear indication of why the judge made the order he did, which is consistent with the short note that we have of what he said in his judgment.  It seems that he was impressed by the officer's opinion that before any removal, the children's contact with their father needed to be developed and made more solid and sustainable, so as to be able to withstand the dislocation inevitable upon a move to Australia.  Thus, he floated the idea of adjourning the application until a date in the autumn by which time he could see what the father had been able to arrange and how contact had gone in the meantime.  His order adjourned the case to a directions hearing in September.  At that hearing, the further substantive hearing was fixed, and it took place on 15 October.  It does not seem to me that, in the particular circumstances, the judge's decision to adjourn the hearing so that better contact arrangements could be tried out is one which can fairly be criticised.

138. In the meantime the CAFCASS officer had made a short further report dated 7 September 2010.  Clearly the contact arrangements had been successful.  He said he was still of the opinion that the mother and children should be allowed to go to Australia but he was more sure that contact in the UK would work out well.  He still recommended that the mother be given permission to remove the children, with the same arrangements for contact thereafter as he had previously suggested.  He concluded:

"I hope that this will sustain the family ties in England where the children have grown up and spent all their childhoods, which cannot be overlooked in their development as adults."

139. At the final hearing the judge saw the latest report, and the respective position statements of each party, but he did not hear further evidence.  The President has set out all the relevant parts of the judgment but some are so important that I make no apology for repetition of the most critical passages.  It was clear to the judge that the attempt to improve the contact between the children and their father had been a notable success.  He gave both parents credit for their parts in achieving that.  He referred to Payne v Payne, and to the summary of the points in the report of the CAFCASS officer.  He reviewed the successive points identified in the CAFCASS officer's report.  Essentially he accepted the comments of the CAFCASS officer in relation to each of the six points identified, but in relation to one, namely the effect of a refusal on the primary carer, he did have something to add.  I quote paragraph 24 of his judgment:

"Thirdly, [the CAFCASS officer] looks at the effect of refusal for the carer and the children.  He says this would simply be devastating, as [the mother] would feel completely trapped in another country, unable to access support from her family and not trusting that [the father] would support her parenting or her as a person.  This has led in the past to a near breakdown and I would suggest that the severity of separation could easily impact badly on her, and in turn on the care of the children.  I, too, find that the decision against relocation would be devastating for the mother.  She would be very saddened, I am quite satisfied, if the decision was against her and the implication of it would mean that she would have to remain in this country, because she has no intention, of course, of leaving the jurisdiction without the children.  But she does have support, which some mothers in these cases do not, from her church in particular, and it may be, of course, that with the father now having greater contact to the children, that he can responsibly provide much more support to the mother than he has in the past, which is clearly a balancing factor for the court to consider."

140. The last sentence of that paragraph is the judge's own comment, which is not reflected in anything that the CAFCASS officer had said.  Having gone through the six factors identified in the CAFCASS officer's report by reference to Payne v Payne, and having referred to Re H (a child) [2010] EWCA Civ 915 but directing himself that he had to follow Payne v Payne, he set out his reasoning leading to his conclusion adverse to the mother, in paragraphs 31 to 35.

141. In paragraph 31 he said this:

"Clearly there are many powerful reasons for granting the mother's application which are all well articulated in [the CAFCASS officer]'s report.  But there are two main factors which concern me.  First, during the last three months, it is absolutely clear to me that contact has been improving, and this is, as I say, to the credit of both parents, and [the CAFCASS officer] acknowledged that as well.  What troubles me, and this is a matter that I do not consider [the CAFCASS officer] has adequately weighed in his final report, is that I do feel that there is room for even greater improvements to come so far as the children are concerned and their relationship with their father and, so far as the relationship with the children are concerned and their relationship with his children [their two half-siblings].  What concerns me is that, if the children now go to Australia, all that may never happen.  This I find could be an important loss for these children."

142. That is one factor which was evidently important to the judge in his eventual decision not to accept the recommendation of the CAFCASS officer.  He expanded on it in paragraph 32, at the end of which he said this:

"I used the word during submissions that it [i.e. the relationship between the children and their father] was "embryonic".  In my judgment, there is more to come and [the CAFCASS officer] acknowledged that in his closing remarks to me.  So I feel it would be a grave loss to these children to deprive them of the possibility of his contact further developing and growing even more."

143. Then at paragraph 33 he expressed concern that the success of the improved contact had come about in the context of the litigation and that, if the mother was allowed to take the children to Australia, she would be free from the pressures and persuasive influence of the litigation, and that "there may not be the same constructive and harmonious cooperation in the future over contact".  For all that both countries are parties to the Hague Convention, and that there could be mirror orders in Australia, it could be very difficult for the father to enforce obligations once the children had moved.

144. His eventual conclusion is set out, in the light of those factors, in paragraph 35, as follows:

"Weighing all these factors clearly in my mind, as I have, I have decided that the welfare of these children drives me to the conclusion on the evidence I have heard and read, that the mother's applications for permission to remove the children should be dismissed.  I know this will be a very bitter blow to the mother, but she needs to understand that the children's relationship with their father is very important.  In my judgment, the children should remain in this jurisdiction so that their relationship with him can continue to grow and develop.  I am satisfied that he has a normal, good relationship with his older children…….. [The girl and the boy] must, in my judgment have the opportunity to develop their own, good quality relationship with him, their father.  For his part, he must, in my judgment, play a greater and increasingly more responsible role in constructive support of the mother.  He is now playing a greater part in the lives of [the girl and the boy].  It is absolutely vital that he remains completely committed to the greater role that he is enjoying."

145. The six factors identified and addressed by the CAFCASS officer and the judge, in turn, are all correctly derived from the judgments of this court in Payne v Payne.  The President has set out paragraphs 40 and 41 of Thorpe LJ's judgment, in which he suggested a series of questions to be addressed, and also paragraph 85 of Dame Elizabeth Butler-Sloss' judgment in which she summarised some of the most important considerations which should guide any judge in the decision of an issue of this kind.  I note that both Robert Walker LJ and Dame Elizabeth agreed in terms with Thorpe LJ's reasons: see paragraphs 65 and 88.  In the present case it seems that the judge proceeded by reference to the six factors identified by the CAFCASS officer, all of which are of course relevant.  It is not clear to what extent he went back to the primary source, so to speak, by referring directly to the judgments in Payne v Payne.  I have no doubt that he also had well in mind the statutory checklist in section 1(3) of the Children Act 1989.  However, as the President says, it seems to me that he did not take from the judgments in Payne v Payne the full benefit that they can and ought to provide, and he therefore failed to follow that decision to the full. 

146. Taking, first, the process indicated by Thorpe LJ in his paragraph 40, the preliminary tests were plainly satisfied: the mother's application was both genuinely motivated and realistic.  The father's opposition was motivated by genuine concern for the future of the children's welfare, not by any ulterior motive.  There would be detriment to the father and to his relationship with the children if the application were granted; the extent of that detriment was for the judge to assess.  It would be less than it would have been if there had not been an improvement in the contact and the relationship during 2010, but it would suffer.  From the children's point of view there would be enhanced relationships with the maternal family and homeland in Australia.  The impact on the mother, as a single parent, of the refusal of her realistic proposal, was clearly relevant.  The judge accepted that it would be devastating, though he said that it would be alleviated by the support she has from the church community locally. 

147. Then, following the guidance given by Thorpe LJ, it is necessary to proceed from the appraisals of the effect on each parent and the children to a review, in the light of all these assessments, of the overriding and paramount factor, namely the welfare of the children.  In doing so, as Thorpe LJ said at paragraph 41, great weight must be given to the emotional and psychological wellbeing of the mother as primary carer.  That advice fits exactly with what Dame Elizabeth said towards the end of paragraph 83, also quoted by the President.

148. It is fair to say that the proposition which they both promulgate, that particular weight should be given to this factor, has been much criticised.  The argument on that is touched on in Mostyn J's interesting judgment in Re AR (a child: relocation) [2010] EWHC 1346 (Fam), a case (on facts very different indeed from the present) in which the mother's application failed.  However it is recognised in that judgment that the proposition is binding on this court and on first instance judges, as a result of Payne v Payne and other decisions at this level.

149. With great respect to the judge in the present case, who was evidently very much exercised by the dilemma facing him, it seems to me that he made at least two identifiable errors in his reasoning.  The first is that he underestimated the adverse effect of a refusal on the mother.  To an extent he accepted the assessment by the CAFCASS officer that it would be devastating to her.  However, he went on at paragraph 24, as quoted above, to say that this effect would be softened by the support she would get from the community locally.  I find it difficult to see on what he was able to come to the conclusion that this would be a significant palliating factor. Moreover, as the President has said, he does not show any sign of having taken into account the evidence from the mother's GP and the health visitor of the adverse effects which the mother had already been suffering as a result of her isolation.

150. Secondly, he did not give any special weight to the wellbeing of the mother as primary carer.  He did address the effect on the mother, in paragraph 24 which I have quoted, but not only did he, as it seems to me, underestimate the effect on her, he also underestimated the importance of this factor.  Moreover, he shows no sign of having weighed up in the balance the loss to the children of the advantages of going to Australia, including increased contact with the maternal family there.

151. His reason for refusing the application was his conclusion that the best interests of the children required, above all else, that their relationship with their father should be enhanced by further and better contact, apparently for an indefinite period during their childhood.  The judge did not say that the relationship should be allowed a further limited, or potentially limited, period to develop, after which, subject to progress, the mother's application might be allowed.  On the face of it, he placed the development of the children's relationship with their father during childhood above the reasonable and realistic desires of the mother and, for that matter, of the children themselves, and the benefits which he recognised that life in Australia could afford them.  It seems to me that this shows a misdirection as to the relevant factors and principles.

152. Of course the relationship between the father and the children is important.  It is valuable that this was able to be improved significantly during last year.  I accept that it will change, and may well suffer, as a result of the move, if it is allowed.  But it does not seem to me that to give the predominant importance to this factor that the judge did is consistent with the basis of the decision in Payne v Payne.

153. By themselves, I would not regard either the judge's relaxed attitude, expressed at paragraphs 6 and 7, to the fact that the father had not applied to the court to improve the contact arrangements, or his recognition that the father might have difficulty in enforcing the regime after removal if the mother became less compliant (see paragraphs 33 and 34), as misdirections.  On those points I agree with Elias LJ, as I also do on the relative insignificance of deciding issues which are now historical.

154. However on the main point, I agree with both the President and Elias LJ that the judge did misdirect himself, and that he came to a conclusion which is plainly wrong.  In my judgment, for the reasons that I have given and, subject to the minor qualifications above, also for those that the President and Elias LJ have given, it seems to me that the right order for the judge to have made, on the material before him and on his own findings, was that the mother's application should be allowed.  I would therefore grant permission to appeal and allow the mother's appeal.

155. It is necessary that the move should be properly prepared for, and that the contact arrangements after the move should be agreed or decided on, both as regards the annual visits by the children to this country and for contact by Skype and otherwise while they are in Australia.  The matter should be remitted to the county court for those and any other issues arising to be decided if they cannot be agreed.

Lord Justice Elias
156. I gratefully adopt the analysis of the law and the facts set out in the judgment of the President. I agree that the appeal should be upheld, essentially on the grounds that in my judgment a proper application of the principles in Payne v Payne, which the judge purported to follow, compels the conclusion that an order permitting relocation should have been made in the circumstances of this case.  The overriding principle is that the decision whether or not to relocate has to be made with the paramount consideration being the best interests of the children.  Payne v Payne does not, and could not, undermine that principle. But until there is cogent evidence demonstrating that the guiding principles there enunciated do not operate to ensure the best interests of the child, or until Parliament or the Supreme Court dictate otherwise, in my judgment the case is binding as to the approach which the courts should adopt when considering relocation cases.  I am conscious that there is much debate within family law circles as to whether that judgment gives appropriate weight to the value of contact with the non-resident parent when assessing a child's best interests, and that developments in the field of international family law may lead to a reconsideration of where the best interests of the child lie. But as Lord Justice Wilson pointed out in Re H [2010] EWCA 915, that is for the future. Payne is binding, to the extent at least that guiding principles can be said to bind a court.

157. The significant feature of the decision in Payne for the purposes of this appeal is the observation in the judgment of Thorpe LJ ,with whose judgement the then President, Dame Elizabeth Butler-Sloss  and Robert Walker LJ agreed, that where the primary carer genuinely and realistically wishes to relocate and is not doing so for reasons of spite or to frustrate the relationship between father and child, that factor must be given very significant weight in the discretionary exercise that has to be undertaken.  Moreover, the court must pay particular attention to the consequences of refusing the application. As Thorpe LJ said in terms (para 32):

"Thus in most relocation cases the most crucial assessment and finding for the judge is likely to be the effect of the refusal of the application on the mother's future psychological and emotional stability."

The reason why the mother's wishes are given such prominence when assessing the interests of the child is explained by Thorpe LJ as follows (para. 31): 

"Logically and as a matter of experience the child cannot draw emotional and psychological security and stability from the dependency unless the primary carer is herself emotionally and psychologically stable and secure.  The parent cannot give what she herself lacks."

Dame Elizabeth Butler-Sloss made observations to similar effect at para 83 (see para.22 above).

158. It is trite law that these cases are fact sensitive and, as the President has pointed out, we cannot differ from the judge below merely because we would have come to a different view, however much we may disagree with the judge's weighing of the evidence.  Something more is required: the judge must have gone wrong in principle or reached a decision which is plainly wrong.  In this case the judge did in my judgment go wrong in principle. He did not give sufficient weight to the mother's genuine and reasonable wish to return to her home country, nor to what he accepted – as it seems to me he was bound to do on the evidence - were the devastating consequences to the mother if she were to remain in this country. The evidence was that she felt lonely and trapped living in England. In the absence of very powerful countervailing considerations, the mother's interests in returning are in those circumstances likely to be in the best interests of the children too, particularly given the ages of the children.

159. Had the judge recognised the singular importance of this factor, he would in my view necessarily have granted the relocation order.  The only significant countervailing consideration was reduction in contact with the father which would result from relocation. Of course this was important and had to be weighed in the balance. The father gave a moving and powerful submission before the court as to the significance of this contact in his life, and the judge fully recognised that it is of great benefit to the children too. Furthermore, in my view the judge was right to assess the value of this contact not merely as it was in its fledgling state, but also for how it could develop in the future. But even bearing that in mind, I do not think that it was open to the judge to find that the children's best interests were served by compelling the mother to remain in England against her very strongly held desire to go.  That is particularly so in this case where the mother is proposing to go back to her own country to live with members of her family. The children will benefit from being part of that wider family, and indeed the evidence was that they were excited about that prospect and looking forward to their new life. The judge did not advert specifically to that factor and this suggests that he did not give sufficient weight to it (It is, however, right to point out that neither did the judge focus specifically on the detriment to the children resulting from the restricted contact with the father's other children which will inevitably occur if the children are relocated to Australia.)  As heartbreaking as it is for the father, since contact rights will inevitably be truncated and made far more difficult as a result of this relocation, I think that the only proper order in this case was that relocation should be permitted.

160. However, I respectfully do not share all the President's criticisms of the judge.  Even if the judge was unduly pessimistic about the ability of the law to secure adequate contact rights. I think that he was entitled to recognise that the enforcement of those rights would be much more difficult to sustain once the children were in Australia, given in particular the resources available to the father. Recourse to law can be daunting and the processes lengthy, and this in my view justified the judge's conclusion that notwithstanding that Australia is a party to the Hague Convention, it would be  difficult for him to enforce his rights in Australia.  The judge was also in my view justified in not wishing to dwell on the cause of difficulties between the parents in the past.  Some sort of peace treaty had been worked out, and satisfactory contact arrangements had now been achieved.  In my judgment the judge was entitled to focus on how they would be likely to develop in the future if the children were to remain in this country. The cause of the earlier poor relationship, and the fact that some criticism might be directed against the father for not in the past seeking to obtain contact rights through the courts, would in my judgment have little, if any, relevance to any assessment of the children's best interests now.

161. However, for the reasons I have given, which in essence merely confirm those of the President, I would allow the appeal