Relocation in the EU: Don’t mention the B word!
Date posted: 7 February 2018
Sarah Colley, a Children Panellist in the family team, considers this recent Court of Appeal decision where a lower court had suggested that the impact of Brexit was a factor to consider in making its’ decision: L v F  EWCA Civ 2121
This case concerned a five year old boy, D, with Italian parents who resided in the UK. Upon the parents’ separation, a shared care arrangement was in place with D spending time with both parents.
The Mother then sought to relocate to Italy with D. If this was not agreed to, she stated she would remain in the UK with D in her primary care. The move was opposed by the Father.
The case was first heard before HHJ Owens for a final hearing in the Family Court at Oxford. Despite a CAFCASS report stating that the mother should be permitted to relocate with D, HHJ Owens concluded, on a fine balance, that D should remain in the UK. HHJ Owens stated, ‘In light of my findings, the lack of detail in her plans, coupled with the impact upon D of losing regular and frequent direct contact with his father, when balanced against the impact on D of his mother remaining in England, leads me to conclude that the balance tips against her application.’ HHJ Owens handed down a detailed judgment comprising of some 22 pages.
The Mother sought to appeal and permission was granted. The appeal was heard before Russell J sitting in the High Court. Russell J allowed the appeal stating that (i) HHJ Owens judgment was fundamentally flawed; (ii) HHJ Owens conflated the issues of child arrangements with the relocation application and considered the application to relocate before considering the arrangements for the child; (iii) HHJ Owens failed to give adequate reasons for departing from the CAFCASS officer’s recommendation; and (iv) HHJ Owens had not considered or made any findings in respect of complaints of controlling and coercive behaviour on the part of the father alleged by the mother. Russell J also stated that ‘Brexit’ should have been considered.
The Father sought to appeal the decision of Russell J and permission was granted. The appeal was heard in the Court of Appeal and was the first instance that they had considered a second appeal from the High Court since new routes of appeal for private law family cases were introduced in October 2016.
The Court of Appeal allowed the Father’s appeal in full. Lord Justice Peter Jackson gave the lead judgment and stated that (i) HHJ Owens was correct in looking at relocation and child arrangements together and carefully considered all realistic options available; (ii) HHJ Owens provided a detailed judgment of some 22 pages and went ‘way beyond the necessary minimum’ when explaining her departure from the CAFCASS officer’s recommendations; and (iii) HHJ Owens set out very clearly that she did not think that the mother’s allegations were relevant to the issues of where and with whom D should live and therefore decided she did not need to make findings of fact.
In terms of ‘Brexit’, the Court of Appeal stated that Russell J was ‘unhelpful’ in referring to the same as it was not mentioned by either party. The consequences of ‘Brexit’ are unclear and unknown currently and Judges simply cannot consider hypothetical situations that could arise in the future.
If you have a child care issue you need assistance with, contact Mavis on 020 8885 7986, who will be able to arrange for you to see a family solicitor.