AY v AS

Relocation applications are governed by the child’s best interests and the checklist in section 1(3) of the 1989 Act. There is no presumption in favour of the proposed relocator. The guidance in Payne v Payne [2001] 1 FLR 1052 is no more than guidance and may be used according to the circumstances of the individual case. An external relocation application may be premature where a realistic internal relocation has not been genuinely attempted. A court may refuse a stay where the application is premature but the exceptional threshold for declining jurisdiction is not met.

The mother applied for permission to relocate her young daughter permanently from England to Kazakhstan. The father opposed the application, principally because the proposed move would substantially reduce direct contact between him and the child. The Children’s Guardian considered that the proposed arrangements created an appreciable risk of damage to the father-child relationship.

During the hearing, an alternative internal relocation became available. The court also considered holiday travel to Kazakhstan, the parties’ proposed agreement under Kazakhstan law, and whether the proceedings had properly been transferred from the Family Court to the High Court.

1. The mother’s application for permanent relocation to Kazakhstan was dismissed. The court applied the paramountcy of the child’s best interests and the checklist in section 1(3) of the 1989 Act. No presumption favoured either parent. The approach in Payne v Payne [2001] 1 FLR 1052 was treated as guidance only.

2. The proposed contact arrangements in Kazakhstan were a pallid substitute for direct contact in England. The court accepted the Guardian’s assessment that there was an appreciable risk that the essential nature and quality of the father’s relationship with the child would be lost or diminished. Until an internal relocation had been offered and authentically and in good faith tried and failed, the external relocation application was premature and the proposed arrangements were contrary to the child’s best interests.

3. The court declined to stay the application. Although FPR rule 4.1(3)(g) permits a procedural stay, the proposed stay was substantive. The court accepted that an inherent common-law power to stay existed, but held that premature presentation of the application did not satisfy the high threshold of exceptionality required to decline jurisdiction.

4. The mother was permitted to relocate with the child within England and Wales if suitable employment was found. She was also permitted, subject to execution of a written agreement under article 73.3 of the Kazakhstan Family Code, to take the child to Kazakhstan for specified holidays. The court rejected generalised evidence that corruption in Kazakhstan justified assuming non-compliance with the 1980 Hague Convention.

5. The transfer to the High Court was held to have been inappropriate. The case did not involve exceptional immigration or asylum issues and was not legally or factually complex. It was transferred back to the Family Court, although future applications were reserved to the judge if available.

The judgment records that the application was initially before Judge Robertshaw in the Family Court on 7 May 2018 and was thereafter treated as transferred to the High Court. The present court dismissed the relocation application and ordered that the case be transferred back to the Family Court.