W (Children): Performing the balancing exercise in relocation cases

W (Children) [2011] EWCA Civ 345 concerned a mother's appeal against the refusal of her application for permission to relocate to Australia with her children. Sir Nicholas Wall P gave the leading judgment.

The facts: The mother is Australian. She and the father never married, nor did they ever live together as a couple. There are two children of the relationship, a girl aged 12 and a boy aged 8.

The mother issued her application on the 2nd September 2009, at which time she said that the father had very little contact with the children. The father made a cross-application for contact.

The application was finally heard on the 15th October 2010, when the judge dismissed the mother's application, adjourned the father's application for contact and directed a further CAFCASS report.

The mother appealed, setting out eleven grounds, although Sir Nicholas Wall P stated that: "there is, in my judgment, one principal ground of appeal, namely that that judge has got the "balancing exercise" wrong".

Held: Sir Nicholas Wall found (at paragraph 95) that it was his "clear conclusion that this [is] 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". He went on (at paragraph 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"."

The President said (at paragraph 99) that the judge had found that the mother would be "devastated" were her application to be refused, and that this was "a critical finding". No criticism could be made or was made of her relocation plans and thus: "It follows that not only was her motivation unimpeachable, but that the plans themselves were plainly in the best interests of the children". He said (at paragraph 102) that even when the loss to the children of their newly gained relationship with their father and other members of his family was weighed in the scales, "the balance still comes down heavily in favour of relocation".

The President then found that conclusion supported by an application of the Payne v Payne exercise (paragraphs 111 to 118).

Accordingly, he allowed the appeal. Lord Justice Lloyd and Lord Justice Elias both gave concurring judgments.