LORD JUSTICE THORPE: This appeal has caused me considerable anxiety and concern. The parties to the appeal married in 1995 and had two children - Kirstin, who was born in July of that year, and Leon, who was born in September of the following year. Both of them had substantial connections with Dubai. The mother had lived there in childhood, the father was working there, the children were born there. However they moved to Norfolk in March 2000 and in August 2001 to Middlesborough, to the house next door to the father's brother. The marriage broke down in July 2002 in circumstances that left the mother and children living in the home in Middlesborough and the father returning to Dubai. The mother petitioned for divorce only in March 2004 and the decree nisi later pronounced has not been made absolute.

We have this morning been shown some correspondence between solicitors. On 3 November the mother's solicitors wrote, saying:

Accordingly, the specific issue order application which the mother's solicitors had filed on 23 November came before the district judge on the narrow footing that the only issue for the court's decision was whether the mother should or should not be granted permission to relocate. The resulting directions were that the parties were to file statements by 31 January and that the statements should be confined to the issue of removal from the jurisdiction. Likewise, the CAFCASS officer was invited to prepare a report with regard to the very same issue. The case was then set down for a final hearing on 23 March with a time estimate of only two and a half hours, no doubt proportionate to what the district judge then perceived to be the only issue.

However, the father's statement, dated 22 January and filed pursuant to the district judge's direction, made it plain that he was, in effect, mounting a cross-application for the removal of the children to Dubai. Although the arrangement for the children to be in the primary care of the mother had not previously been the subject of any court order, the mother's specific issue order application of 23 November also sought a residence order, and effectively the father's statement of 22 January posted a cross-application for a residence order, although no application was filed with the court. I note that in paragraph 4 of that statement he said:

The matrimonial home is apparently a jointly owned property, and although there have been some financial negotiations between the parties since the filing of the divorce petition there has been no application lodged for ancillary relief, let alone any order made.

Clearly by the time the CAFCASS officer, Mrs de Graff, came to make her investigations and assessments, she perceived that the issue had expanded considerably since the directions order of 22 December. Accordingly, she did not consider only the limited issue specified in the order, but looked at the case in the round, the case that had developed in consequence of the filing of the father's statement.

The statement of 22 January, although seeking permission to relocate, did not deal with any of the practicalities. Accordingly a second statement was filed by the father on 26 February. The CAFCASS officer filed her report on 18 March and on the morning of the hearing, 23 March, the mother introduced what was intended to be a statement in reply to the father's two statements. It was very much a home-made document and not in the form that lawyers would have prepared, but it is significant to look to see how in that reply she dealt with the two paragraphs of the father's statement of 22 January that I have cited. In relation to paragraph 4 of his statement, she only said that he had been attempting to coerce her ever since the separation to move with the children to Dubai and only the realisation that she would not do so had made him submit his cross-application. In relation to paragraph 12, she only said:

Each of the parents has entered into a fresh relationship, although neither has remarried. The father's new relationship has double the duration of the mother's and has been tested by cohabitation. So to that extent, as the judge was to find, the security of the new relationship was better demonstrated on his side.

Towards the close of this reply statement the mother said:

The report of the CAFCASS officer was, as the judge described, essentially an exercise in sitting on the fence. She certainly did not make a recommendation, but only that the matter be heard and a decision made on the oral evidence of the parties. However, she had recorded what seems to have been a frank assessment from the father's brother and sister-in-law that it had always been the mother who had cared for the children or arranged for their care while their father had been working or socialising. The report continued:

That led the welfare officer in the course of her recommendation paragraph to record "[Mother] has been the principal carer for over two years", and to conclude with the sentence "Mother has the status quo and it is for Father to convince that he can better meet the children's needs." We have a transcript of her oral evidence, but the transcript is marred by frequent passages that are unrecorded because they were inaudible. In answering questions from Miss Gamble for the mother, she is recorded as saying:

The judge, at the end of what proved to be almost a full day in court, delivered a relatively brief extempore judgment. He stressed that the case was particularly finely balanced, and that both parents had demonstrated the capability to look after the children. That, I think, was a recognition of the fact that for a period of approximately 12 months, whilst the mother was undertaking a study for qualification, the father had been a house husband. The judge said, perfectly correctly, that it was for him to have a look at what was on offer on each side. He noted that the children did not speak Dutch. He investigated the new relationships that each of the parents had formed. He looked to the wishes and feelings of the children, the welfare officer having recorded that Kirstin had expressed a wish to go and live with her father in Dubai, whereas Leon had expressed a wish to stay with his mother. He noted that the father had a demanding job, but rejected the suggestion that he would not be there much for the children: he said he would be with them for a couple of hours a day. He regarded the risk factor on the mother's presentation to be her relatively new and untried relationship with her partner. He said that it was something that might last, but might not - there was no way of telling - and that if it did not, the mother would effectively be left homeless in Holland. He accordingly expressed the conclusion that the best interests of the children would be served by granting the father's residence order application, coupled with permission to remove to Dubai. He said that as far as contact was concerned there was no need to be prescriptive. He was confident that arrangements would be agreed. There might be problems were disputes to arise, given the unavailability of the court in Dubai which would become the court of the children's habitual residence. But he said that there had been no expert evidence about that and he was satisfied that it would not necessarily be appropriate for proceedings to take place in that country. He said:

The application for permission to appeal was filed on 6 April, and I made an order, having read the papers on 8 April, for an oral hearing with appeal to follow if permission granted. The aspect of the case that most troubled me was that it seems to have been presented to the judge on the basis of two options only: either the children would find a new home with their mother in the Netherlands or they would find a new home with their father in Dubai.

The obvious third alternative, if the mother's specific issue order application was refused, was that the mother and children might remain precisely where they were in the former matrimonial home and in their current schools, the mother making that sacrifice on their behalf. That is clearly an option that was not put to the judge, and accordingly it is hardly surprising that he did not consider it. When this concern was ventilated with Miss Gamble she sought to say on instructions that that third option should be considered by this court or by the court below on retrial, and that she had instructions to apply to admit fresh evidence. Questioning of Miss Gamble revealed that she had had no prior instructions to make that application and that it was purely reactive to the inquiry that I had made. My immediate concern was that the fundamental change for the children from mother, who had effectively cared for them from birth (save for the period when she was in study) was an outcome that had arisen almost inadvertently, as a result of the manner in which the proceedings had been expanded between directions order and final hearing. Further questions to Miss Gamble, however, revealed that Miss Gamble had quite rightly perceived that the third alternative, namely the continuation of the established arrangements in Middlesborough, was something that had to be considered by her client in advance of the trial. She informed us that she had discussed with her client whether that third alternative should be advocated as a fall-back position, and she had been specifically instructed not to advocate that outcome. Once that is recorded, it seems to me quite unprincipled to consider the application to admit fresh evidence or to allow the mother to develop a case which was never put below, which was expressly not put below, and which only emerged, if not fortuitously then opportunistically, this morning.

Miss Gamble is thus left to advance the three criticisms which are to be found in her grounds and in her skeleton. The first criticism is that the judge refused to have regard to the decision of this court in Payne v Payne [2001] 1 FLR 1502. The response from Miss Parkin is that the judge was only directed to the case in Miss Gamble's opening and when he expressed the view that it was of no application to the issue before him it was not then pursued. Furthermore, when Miss Gamble was asked to identify any point of law or principle when she later advanced an application for permission to appeal, she only suggested to the judge that there was some point of law, given that Dubai is a Sharia law state. She did not at that time suggest that the judge had fallen into error in rejecting the relevance of Payne.

The simple answer to this ground is that the judge was perfectly entitled to reject the decision of the court in Payne since he had a very different type of case before him. He did not have a case in which the mother urged relocation in order to safeguard her own emotional and psychological wellbeing. He simply had a case in which two parents with strong connections to other jurisdictions invited the judge to choose which of the two jurisdictions would better advantage the welfare of the children.

Nor do I think that there is any greater force in her suggestion that the judge did not sufficiently explain his departure from the CAFCASS officer's recommendation. As I have already recorded, the recommendation at its height amounts to no more than the single answer in oral evidence that was only partially transcribed. Her essential position was that it was for the judge to decide and in those circumstances it was not incumbent on the judge to explain the decision that he had taken as one that differed from the conclusion reached by the expert.

The only point that remains is the argument that the judge insufficiently reflected in his discretionary determination the length and strength of the children's attachment to the mother resulting from so many years of more or less unbroken care. The judge says very little about the length and strength of the mother's past care, but, as Miss Parkin has emphasised, it was a case in which he made the finding that both parents are fully capable of satisfying the physical, emotional and educational needs of the children. It is clear that he did have regard to the change, when having regard to the statutory checklist, as one of many changes which he had to weigh in the balance, whichever of the two options he selected.

In the end, given that this is an extempore judgment, that it acknowledges the fine balance, that it carefully records the competing contentions on each side, it is quite impossible, in my judgment, to say that there has been any misdirection or any misconduct of the essential balancing exercise that precedes the discretionary conclusion. My concerns about this case, having reached the conclusion that the appeal must be dismissed, do remain. The system has perhaps not been sufficiently reactive to the huge change in the nature of the issue brought about by the father's statement of 22 January. It is unfortunate that the directions order was made on an entirely different basis; it is unfortunate the time estimate was made on an entirely different basis; it is unfortunate that briefs were returned on both sides on the eve of the trial. I have an unquelled anxiety as to whether the eventual outcome is one that more careful preparation and presentation would have shifted. I am to some extent reassured by the knowledge that the children are well used to Dubai; that the father has reaffirmed in this court that the children will be in Europe for at least three weeks at Easter, at least six weeks in the summer and three weeks every other Christmas and that he will bear the bulk of the travelling expenses. I am also reassured by his acknowledgment that if there are any difficulties over contact he will consent to the adjudication of the courts of the Netherlands, and I am reassured to know that the case that the judge determined was precisely the case that the mother elected for determination. Perhaps she thought that by eliminating the middle way she strengthened her prospects of achieving her heart's desire. If that be the case she played for high stakes and lost. Had I the perception that that presentation was the product of misunderstanding, then my unease would have been much magnified. But although, as I have said more than once, I found this a difficult appeal, I am in no doubt at all in the end that the attack upon the judgment below fails. There is no substantial criticism that can be advanced against the judge and I would grant permission but dismiss the appeal.

LORD JUSTICE SCOTT BAKER: I agree that this appeal should be dismissed. The issue before the judge was an unusual one: should the children live with their mother in Holland or their father in Dubai? There was no question of the existing state of affairs continuing, namely the children living with their mother in Middlesborough and having liberal contact with the father in Dubai.

The mother gave express instructions to her counsel that the case was not to be advanced on the basis that there was a third option of her remaining with the children in England. The options were either Holland or Dubai. Both the mother and the father are well able to care for the children in every respect. This was recognised by the judge and is also apparent from the fact that, whatever the result of the case, it was agreed that the children would spend liberal periods of time staying with the parent with whom they did not live.

The children have moved freely between the mother and the father in the past, and there is not the slightest reason to suppose that they will not continue to do so in the future. Difficult cases of the present kind call for the exercise of the judge's discretion in weighing up all relevant considerations with the children's welfare being first and paramount.

It is well settled that an appellate court will not interfere with the trial judge's decision unless there has been some error. The judge had the inestimable advantage of seeing and hearing the parties. I am not persuaded that the judge either took into account in reaching his decision anything he should not have taken into account or left out of account anything that he should have considered.

Much reliance has been placed on the fact that the mother has been the children's primary carer for most of their lives. This is clearly an important consideration, but it is only one aspect of the status quo that Miss Gamble submits should not be disturbed. On any view, there is to be a major change in the children's lives because their care will henceforth be in a different country.

In my judgment, the fact that the mother has been the primary carer must be considered in the context that henceforth if she continues to be the primary carer it will be in an entirely different environment. Inevitably, in cases of this kind, the judge has to take a close look at what the position will be if matters do not work out as anticipated. In this regard the mother's new partner has had little opportunity to get to know the children and vice versa. He has little experience of children. The mother's relationship with him is largely untested. There were uncertainties about the future in Holland that were not matched by the situation in Dubai. Also, the children are not Dutch speakers and it would take them some time to learn the language and make new friends. The judge had to do his best on the evidence that was before him in the light of the two options put to him. I cannot find fault in any way with the manner in which he exercised his discretion. Indeed, had I been the trial judge, I think it more probable than not that I would have reached the same conclusion.

I would therefore dismiss the appeal.

LORD JUSTICE WALL: Like my Lords, I would grant permission in this case, but dismiss the appeal.

In my view the judge was right to take the view that the decision of this court in Payne v Payne did not apply on the facts of the case before him. As the historical analysis undertaken by Thorpe LJ in Payne itself demonstrates, a critical factor in the welfare equation in all the cases since Pole v Pole has been the effect on the welfare of the children concerned of a refusal by the court to allow the parent caring for the children to relocate. But the context has always been a contest between the parent who wishes to relocate with the children out of the jurisdiction and the parent who wishes the children to remain within the jurisdiction. That critical element is wholly absent in this case. The father is not seeking to compel the mother to remain in England against her will, and the mother did not instruct her counsel to argue that if permission to relocate was refused she would remain in England. Indeed, her case - strongly expressed throughout the paperwork - was that she would go. The choice before the judge, therefore, was between two distinct alternatives, both of which involved the children relocating out of England and Wales. In my judgment, that takes the case away from Payne v Payne and makes it a case to be decided under section 1 of the Children Act by a careful application of the welfare checklist to its facts. That essential exercise the judge performed. No doubt it was an extempore judgment given under pressure of time and no doubt it was robustly expressed. But it was, as the judge recognised, a particularly finely balanced case and, like my Lords, I can detect no error of law in it. In such a finely balanced case it is not, as Scott Baker LJ has pointed out, for this court to substitute its discretion for that of the judge.

The judge pointed out that there were a number of positive features about the case, notably the capacity of both parents to care for the children, the fact that the children were doing well and the fact that there had been cooperation between the parents in relation to contact, notwithstanding the fact that the parents have been separated by large distances. I hope very much that those positive aspects will continue. In my judgment, it is up to the father in particular, now that this court has endorsed the view of the judge, to ensure that the children have as much contact with their mother in the Netherlands as is humanly possible, and that she should see them whenever she is able to come to Dubai. It is only if there is this remaining cooperation between the parents that the difficulties the children will undoubtedly face in relocation will be ameliorated to some extent.

I therefore agree with the order proposed by my Lords.