The Court of Appeal has set aside a High Court decision refusing a mother permission to relocate her three children from EU member state X to EU member state Y and ordered a rehearing. It did not decide whether the children should move.
In a judgment delivered on 28 October 2022, the appeal court said the High Court had failed to assess the available options properly. The mother, P.I.K., had told the High Court she intended to move to Y whether or not the children could go with her. The appeal court said the judge had not addressed the alternative of the children remaining in X in their father’s day-to-day care while their mother lived in Y.
The High Court had refused the relocation application in July 2021 after a five-day hearing. The parents, who are married but separated, had shared care of their three children by agreement. The children had lived and attended school in X since 2013, apart from a period in Y in 2019. During that period, the father, D.K., brought proceedings under the Hague Convention. Courts in Y ruled that the children’s removal was wrongful and ordered their return to X.
A court-appointed clinical psychologist, Dr Fiona Moane, prepared a welfare report and gave evidence. She recommended that the parents live in the same country if possible. If they could not agree to do so, she considered the mother better placed to meet the needs of the two younger children, while recommending that the siblings remain together. The High Court rejected that assessment but, the Court of Appeal said, did not give adequate reasons and mischaracterised the psychologist’s position as favouring relocation as the ideal solution.
The appeal court also ruled that the High Court judge had erred by relying on what the children said in private meetings with her as evidence in deciding the application. The parties had not received the meeting transcripts or an opportunity to respond before the decision. The appeal court said the meetings could not properly be treated as evidence and that the judge’s assessment had to be based on evidence given in the proceedings.
The appeal court said an up-to-date welfare report was needed because circumstances and the children’s views might have changed since the earlier report. It remitted the relocation application to the High Court for rehearing as soon as practicable and said a further welfare report would be required. It also set aside the High Court’s costs order in favour of the father. The appeal court reserved the question of costs on the appeal and directed that the parties be heard on it at a later date.