K (A Child), Re

In cross-applications for child arrangements involving international relocation, the court must determine the child’s paramount welfare by a holistic and non-linear comparative evaluation of the competing care arrangements. Neither a relocation application nor the other parent’s application has priority. The welfare checklist applies, and the court must consider the child’s relationship with both parents, the practical realism of each proposal, and relevant Article 8 rights within the welfare evaluation. Guidance such as the Payne criteria may assist in identifying relevant issues but must not become a prescriptive or linear test. Proportionality is ordinarily integrated into the welfare assessment rather than conducted as a separate exercise.

The proceedings concerned cross-applications by the mother and father for child arrangements orders concerning their four-year-old son, who had autism spectrum disorder and significant developmental and educational needs. The mother sought for the child to live with her in England, with contact with the father. The father sought for the child to live with him in India, or alternatively for contact in both countries.

The child had previously been stranded in India, returned to England following earlier orders, and was living with the mother and maternal grandmother. The central issue was which parent’s proposal would best promote the child’s welfare, including the effect of relocation, the feasibility of transition, and the preservation of the child’s relationships with both parents.

1. Outcome. The court ordered that the child live with the mother. The child was to spend time with the father in England and, in due course, in India under a phased plan. Travel to India was prohibited until all Indian litigation concerning the child had ceased and a mirror order was in place. The matter was listed for review in four months.
2. In relocation cases there is no priority for the application to relocate. The court must comparatively evaluate the competing options for the child’s residence and parental care. A balance sheet may assist, but the court must avoid a mechanical exercise which obscures the contours and weight of the evidence.
3. The governing principle is the child’s paramount welfare. The welfare checklist applies to child arrangements applications under sections 8 and 13 of the Children Act. Section 1(2A) requires heightened scrutiny where a proposal may interfere with the child’s relationship with a parent. The court must conduct a holistic, non-linear evaluation of the welfare factors.
4. The court must take account of the child’s relationship with both parents and the child’s right to maintain personal relations and direct contact with both parents regularly, consistently with Article 9 of the UN Convention on the Rights of the Child. The parents’ Article 8 rights must also be considered, although the child’s rights ordinarily carry greater weight.
5. The Payne guidance may help identify relevant issues but does not impose a separate or prescriptive test. The court described an integrated welfare approach, incorporating the welfare checklist, the Payne criteria, and other case-specific features. Proportionality is ordinarily part of that joined-up welfare evaluation and should not be conducted separately in a way that disrupts the decision-making process.
6. Applying that approach, the mother’s proposal offered continuity of care, schooling and therapeutic support. The father’s proposal was potentially viable in the medium or long term but lacked a realistic short-term route to transferring the child into his full-time care. The proposed move also created significant risks to the child’s relationship with the mother and to his stability, particularly while litigation in India remained unresolved.

The judgment records earlier decisions concerning the child, including a judgment by Deputy High Court Judge Gupta QC and earlier orders of Mr Justice Williams. It also records that the Court of Appeal refused permission to appeal on 27 March 2019. This judgment determined the final cross-applications for child arrangements orders.