Relocation – stating the resident parent will be ‘unhappy’ is simply not enough to justify relocation.

Private Law (Child Arrangements Programme (CAP))

10 July 2018

re M (A Child) [2017] EWCA Civ 2356


In a lead judgment from Jackson LJ the Court of Appeal have reiterated the guidance in Re F (A Child) (International Relocation Cases) [2015] EWCA Civ 882 that “an analysis of some sophistication and complexity” is required before granting an application for relocation. This case makes it clear that such analysis must go far beyond stating the fact that the resident parent, which in Re (M) was the Mother, would be unhappy living in England away from her family if she is not granted her application to relocate.

Facts of Re M

In this case the parents were only in a relationship for a very short time and had one child. Both parents were living in England before and after their relationship and both parents had been supported by their extended families. The first instance Judge said that, notwithstanding the separation and the Mother’s wish to return to Columbia, “the parents have managed to build a functional happy and cooperative family life for their child. In many respects they exemplify a model of how a separated extended family can operate functionally, effectively and in a child’s best interests.”

The Mother had applied to relocate to Columbia and this was opposed by the Father.

A Cafcass report had been produced and saw the situation as finely balanced but recommended that the application should be refused as the loss to the child of his attentive Father and loss of having two parents bringing him up could not be compensated by a move to Columbia.

The Judge at first instance disagreed and granted the mother’s application to relocate.


The Father then successfully appealed on the basis that 1) there had not been adequate analysis of each option before the court 2) there was insufficient reasoning from departing from the Cafcass recommendation and 3) the Judge gave undue consideration to the impact of the decision on the Mother and having done so, placed more weight on that issue than the evidence allowed. Further, and importantly: “The judge did not identify or evaluate the true nature of the Mother’s unhappiness at any point in the judgment”,

The Court of Appeal agreed with the above arguments and focussed particularly on the analysis of the Mother’s position should she remain in England. Jackson LJ says at paragraph 24:

In this kind of case, a valid judicial decision requires, as was said in Re F, an analysis of some sophistication and complexity. That analysis is the engine that drives a decision that takes the parties from a state of disagreement to one of clarity. Without it, the essential judicial task has not been performed.

He goes on at paragraph 27:

It is, of course, obvious that the Mother would be happier if her application was granted but this does not in itself take one further … it was the judge’s task to evaluate her actual situation and explain why she attached such decisive weight to it. Even assuming the mother’s case at its highest, the judgment contains no attempt to balance that evidence against the other incontrovertible evidence in the case. Instead, the judge simply jumped to stating her conclusion without any underpinning reasoning. In effect, she did not put anything into the opposite scale that was capable of outweighing the very considerable competing arguments. Nor in a case in which she had a particularly coherent analysis from Cafcass did the judge adequately explain why she was departing from it. She devoted one sentence to it … Nor does she explain what is meant by ‘all the attendant risks of L not moving to Columbia’ or critically justify her assertion that he would flourish if he lived there.”

The Court of Appeal consequentially sent the case back down for a rehearing.


Court of Appeal has here made it extremely clear that they require any decision about relocation to analyse in some depth the situation of the resident parent if relocation is refused. They need the courts to pick apart any ‘unhappiness’ and the consequent effect of that unhappiness for the child. Further they must critically examine the idea that if the Mother is happier that will lead to the child being happier or in this case ‘flourishing’. This more careful and sophisticated analysis is still so often missing in relocation cases and so this judgment will be a useful support to those opposing relocation!


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