JAL v LSW

In an international relocation case, the court must make a holistic, non-linear comparative evaluation of the competing proposals, applying the child’s paramount welfare as the governing principle. Neither the relocation application nor the child arrangements application has priority. The welfare checklist remains relevant, and previous relocation guidance may assist only in identifying issues rather than operating as a prescriptive test. The court must give heightened scrutiny to any proposal that interferes with the child’s relationship with a parent and must evaluate the likely impact on the child’s Article 8 rights and regular direct contact with both parents. Relocation may be refused where the risk of losing a valuable relationship with the left-behind parent outweighs the benefits of relocation.

The father sought child arrangements and prohibited steps orders after the mother removed the parties’ eight-year-old son to Hong Kong following allegations of abuse. The child was returned to England after proceedings under the 1980 Hague Convention. The mother then sought permission to relocate permanently to Hong Kong, proposing holiday contact with the father. The father proposed continued shared care in England.

The court considered the allegations, the child’s wishes and feelings, the parents’ capacity to meet his needs, the practical arrangements in each country, and the risk that relocation would destroy the father-son relationship.

1. The court rejected a linear approach which treated relocation as the lead application. The correct task was a comparative evaluation of the competing options for the country in which the child should live and the parental care framework in which he should live.
2. The governing principle was the child’s paramount welfare. The court applied the welfare checklist, the heightened scrutiny required by section 1(2A) of the Children Act 1989, and a proportionality assessment arising from the likely interference with the child’s Article 8 rights. The child’s right to maintain personal relations and direct contact with both parents under Article 9 of the UNCRC was also relevant.
3. The approach in Re F (A Child) (International Relocation Case) [2015] EWCA Civ 882 was applied. The guidance in Payne was not a prescriptive test. It could assist in identifying potentially relevant issues. The court described an integrated “F, K, C Payne” composite, comprising the welfare checklist, relocation guidance and the individual features of the case.
4. The court found that the father had been strict and had at times used excessive physical force, but had not physically or emotionally abused the child. The mother’s allegations of coercive control and serious abuse were not established. The child’s fear of the father had been substantially magnified by the mother’s and maternal family’s conduct.
5. Relocation would give the mother greater support and would probably improve her welfare. However, there was a very high risk that she would be unable to promote the father-son relationship in Hong Kong. The likely consequence was the effective termination of a valuable relationship which could continue and improve in England.
6. The relocation application was refused. The child was to remain in England under a shared-care, week-on-week-off arrangement. Holidays were to be shared equally. The mother could visit Hong Kong with the child the following summer, subject to compliance with the orders, and the father’s financial offer was to be implemented.

Not an appeal. The judgment records earlier proceedings in Hong Kong under the 1980 Hague Convention, in which the child was ordered to return to the United Kingdom, but the present decision was at first instance.