RC (A Child)

In an international relocation case, the court must undertake a holistic, non-linear and comparative evaluation of the competing welfare proposals. The Payne guidance may assist in identifying relevant issues but does not prescribe the outcome or give priority to either parent’s proposal. Where circumstances may require a child to live with one parent abroad following the other parent’s removal or departure, that contingency requires its own welfare evaluation. The court must assess the competing arrangements side by side, including the child’s relationship with each parent, the practicality and reliability of contact, and the likely impact of separation. A default child-arrangements order should not be made without sufficient evidence and submissions to support that evaluation.

The mother appealed against orders made by His Honour Judge Sharpe on 25 September 2018. The orders refused permission for her to permanently remove the child, who was born in 2017, from England and Wales to Africa and provided for shared care while she remained in the jurisdiction. They also made default arrangements if her immigration position required her to leave, including that the child would live with the father and spend defined periods with the mother.

Permission to appeal was granted on grounds concerning the effect of the mother remaining in the United Kingdom, the consequences of separation, the reliability of international contact, and the making of the default arrangements. The central issues were whether the judge had undertaken the required holistic welfare evaluation and whether the default arrangements had been determined on an adequate evidential basis.

1. Appeal concerning permanent relocation. The appeal was dismissed on ground 5. The judge below had identified the correct legal approach, including the welfare checklist, the heightened scrutiny required where a proposal interfered with the child’s relationship with a parent, and a holistic comparison of the competing plans. The appellate court had to read the judgment as a whole and avoid substituting its own evaluation or engaging in narrow textual analysis.
2. The Payne guidance was not a prescriptive test. It could assist in identifying potentially relevant issues, but the court had to conduct a fact-specific welfare evaluation. In complex international relocation cases that evaluation might require considerable sophistication, but it did not require a complete rehearsal of every item of evidence or submission.
3. The judge below was entitled to give substantial weight to the child’s young age, the need to develop a relationship with both parents, and the finding that the mother was unlikely to promote the child’s relationship with the father if permitted to relocate. The judgment, read in its totality, had adequately considered the relevant factors. Its comparatively brief treatment of the mother’s difficulties did not make the evaluation unsafe.
4. Default arrangements following possible removal or departure. Grounds 6, 7 and 8 were allowed. The default order involved a separate and important welfare decision. It required a fresh side-by-side comparison between the child remaining in Wales with the father and having contact with the mother, and the child moving to Africa with the mother and having contact with the father.
5. The judge had not undertaken that separate evaluation. He had not adequately analysed the effect on the child of separation from the mother, the viability and cost of contact, the immigration and travel difficulties, or the risk that the father might undermine the mother-child relationship. He had impermissibly carried forward the conclusion reached on the permanent relocation application into a materially different contingency.
6. The default provisions were therefore discharged. The appellate court declined to substitute its own decision because the evidence and submissions were insufficient to determine the child’s paramount welfare in that contingency. If the mother were later required to leave for immigration reasons, either party was to restore the matter for further consideration.

• High Court (Family Division): The appeal against the order of His Honour Judge Sharpe dated 25 September 2018 was dismissed in relation to the permanent relocation decision and allowed in relation to the default child-arrangements provisions. The provisions concerning the mother being unable to remain in England and Wales were discharged.