F (A Child) (International Relocation Cases)

In an international child-relocation case, the child’s welfare is paramount. The court must undertake a comprehensive welfare evaluation of each realistic proposal and then compare the proposals. It must not allow one parent’s plan to be sidelined by a linear analysis.

The guidance in Payne v Payne [2001] 1 FLR 1052 remains useful, but creates neither a presumption nor a rigid test. It must be read within the welfare approach confirmed by K v K [2011] EWCA Civ 793 and Re F [2012] EWCA Civ 1364. Where international relocation may fundamentally interfere with a parent-child relationship, the welfare evaluation also requires a proportionality cross-check under article 8.

The father appealed from orders of Her Honour Judge Waddicor in the Family Court at Brighton. The orders permitted the mother permanently to remove their 12-year-old daughter from England and Wales to Germany, and provided for a minimum of six weeks’ annual time with the father.

The father had also sought a child arrangements order. An earlier judge had ordered increased direct and staying contact, but the relocation application was heard separately. The appeal concerned whether the judge had conducted the required welfare analysis of the competing parental proposals, and whether a proportionality evaluation was required because relocation might substantially impair the father-daughter relationship.

1. Appeal allowed. The relocation and child arrangements orders were set aside and the applications were remitted for rehearing before a different judge. The earlier interim child arrangements orders remained in force.
2. The only legal principle governing permanent international relocation is that the child’s welfare is paramount under Children Act 1989, section 1. The guidance in Payne v Payne [2001] 1 FLR 1052, including the familiar questions about the genuineness and practicality of a proposal and the effects of granting or refusing it, is not a set of presumptions or a determinative test. It is guidance to assist the welfare evaluation and may or may not assist on the facts.
3. Following K v K [2011] EWCA Civ 793 and Re F [2012] EWCA Civ 1364, the court must assess each realistic option on its own welfare merits. It must then compare the options side by side, including the child’s wishes and feelings and the likely effects on each parental relationship. A proposal which appears weak in isolation may nevertheless be preferable to the available alternative.
4. International relocation may involve a fundamental interference with family life. In a case where the relationship between a child and a parent may be severed or seriously eroded, the court must scrutinise the proposals proportionately under article 8 of the Convention. Ordinarily this will be a cross-check on the welfare comparison, but it cannot be omitted where the gravity of the interference requires it.
5. The judge had treated the Payne factors as the required approach. That displaced the necessary overall welfare analysis. She had not clearly evaluated the potential harm from loss or erosion of the father-daughter relationship, the earlier strategy to promote that relationship, or the competing long-term welfare consequences. The error was substantive, not merely formal.

McFarlane LJ added that a “global, holistic evaluation” is not a new legal test. It is shorthand for the conventional welfare balancing exercise. A balance sheet may assist, but must not replace a reasoned judgment which attributes appropriate weight to the relevant considerations.

• Court of Appeal (Civil Division): allowed the father’s appeal in [2015] EWCA Civ 882, set aside the relocation and child arrangements orders, and directed a rehearing before a different judge.
• Family Court at Brighton: Her Honour Judge Waddicor granted the mother permission to remove the child permanently to Germany and made associated child arrangements orders.