WS v KL

In an international relocation case, the court must undertake a child-focused, holistic welfare analysis of every realistic option. Each option must be assessed on its own merits and then compared side by side. The analysis must address the proposed arrangements for maintaining the child’s relationship with the left-behind parent. A proportionality assessment under Article 8 may be integrated into that welfare evaluation, but the court must identify why the preferred option is proportionate and better for the child. An appellate court should respect first-instance factual findings, but must intervene where the judge’s evaluation omits a realistic option or fails to analyse matters fundamental to the child’s welfare.

The father appealed against an order permitting the mother to remove their two children permanently from England and Wales to Hong Kong. The first-instance judge had considered the welfare checklist and granted permission subject to registration of a mirror order in Hong Kong. The father alleged, among other matters, that the judge had failed to compare the competing care arrangements, assess the effect of the children’s reduced contact with him, and conduct a proportionate Article 8 analysis.

The appeal concerned whether the judge’s welfare analysis was legally adequate and whether the decision to permit relocation was sustainable.

1. Appeal allowed. The first-instance judge’s factual findings were not set aside. The appeal turned on the application of those findings to the legal requirements governing relocation.
2. Following Re F (A Child) (International Relocation Case) [2015] EWCA Civ 882, the court held that every realistic option must be analysed on its own internal merits and then evaluated comparatively. The realistic alternative of the children remaining in England and Wales with both parents living there was not properly considered. The judgment did not explain why the mother’s proposal was better than the father’s proposal.
3. The analysis also failed to evaluate the profound reduction in the children’s relationship with their father. Contact arrangements after relocation should form part of the comparative welfare analysis, rather than being addressed only after permission to relocate has been granted. The practical ease of travel to Hong Kong did not answer the question required by section 1(3)(c) of the Children Act 1989: how the children would be affected by the change in their relationship with their father.
4. The court rejected the submission that a separate, free-standing proportionality exercise was always required. However, the welfare analysis had to examine the competing parental wishes and interests and the children’s and parents’ Article 8 rights. In the circumstances, the absence of a comparative welfare analysis meant that the proportionality assessment could not be read into the judgment.
5. The judge’s finding that the mother had never wanted to move to England was incapable, by itself, of justifying the conclusion that relocation in 2020 served the children’s best interests. The reasoning was therefore profoundly flawed, and the appellate court could not be confident that the same result would follow from a lawful evaluation.
6. The matter was remitted for rehearing before a Deputy High Court Judge. Pending rehearing, the mother and children were to remain in England and Wales and the existing contact arrangements were to continue.

• High Court (Family Division): appeal allowed against the order of HHJ Yelton dated 6 April 2020, as approved following further submissions on 28 April 2020. The relocation application was remitted for rehearing.