Case No. ZC21P00327

[2015] EWCA Civ 1305 and Re F (A Child) (International Relocation Case) [2015] EWCA Civ 882.54.Additionally, the mother, through her counsel, has referred me to the earlier decision of the Court of Appeal in Payne v Payne [2001] EWCA Civ 166, and in particular the well-known passage of the judgment of Thorpe LJ at [40] to [41] identifying certain factors which may be helpful for consideration in a relocation case. In that regard I have carefully borne in mind the warning expressed by Ryder LJ in Re F (A Child) (International Relocation Case) [2015] EWCA Civ 882 at [27] namely that: “[27] Selective or partial legal citation from Payne without any wider legal analysis is likely to be regarded as an error of law. In particular, a judgment that not only focuses solely on Payne, but also compounds that error by only referring to the four point ‘discipline’ set out by Thorpe LJ at paragraph [40] of his judgment in Payne is likely to be wholly wrong. There are no quick fixes to be had in these important and complicated cases; the paragraph [40] ‘discipline’ in Payne may, or may not, be of assistance to a judge on the facts of any particular case (whether there is a ‘primary carer’ or not) in marshalling his or her analysis of the evidence prior to the all important analysis of the child's welfare.”55.I have also found useful the summary of these cases and the legal framework that applies to international relocation set out by Williams J in Re C (A Child) [2019] EWHC 131 (Fam); [2019] 2FLR 137 at paras [15] and [16].“[15] The most recent and authoritative appellate decision on the approach to permanent overseas relocation cases is Re F (A Child) (International Relocation Case) [2015] EWCA Civ 882 [2017] 1 FLR 979 . The material paragraphs of the judgment are 3, 4, 30-35 (Ryder LJ) and 45-52 (McFarlane LJ). Re F together with the earlier authorities of Payne, Re F, K-v-K and Re C (Internal Relocation) makes clear that whether the applications are configured under s.8 or s.13 Children Act 1989 the following framework applies. (a) The only authentic principle is the paramount welfare of the child(b) The implementation of section 1(2A) Children Act 1989 makes clear the heightened scrutiny required of proposals which interfere with the relationship between child and parent(c) The welfare checklist is relevant whether the case is brought under s.8 or s.13 Children Act 1989(d) The effect of previous guidance in cases such as 'Payne' may be misleading unless viewed in its proper context which is no more than that it may assist the judge to identify potentially relevant issues.(e) In assessing paramount welfare in international relocation cases the court must carry out a holistic and non-linear comparative evaluation of the plans proposed by each parent. In complex international relocation cases this may need to be of some sophistication and complexity.(f) In addition to Article 8 rights – indeed probably as a component of the Art 8 ECHR rights and s.1(2A) one must factor in the rights of the child to maintain personal relations and direct contact with both parents on a regular basis (unless that is contrary to her interests) in accordance with Article 9 of the United Nations Convention on the Rights of the Child ("UNCRC").(g) Furthermore, the court must also take into account the Article 8 rights of the parents. In the usual case the child's Art 8 right will take priority over the parents but that should not cause the court to overlook the Art 8 rights of others affected and the court should balance the competing Article 8 rights.(h) The effect of an international relocation is such that the Article 8 rights of a child are likely to be infringed and the court must consider the issue of proportionality of the interference. There remains some degree of uncertainty as to how the proportionality evaluation is to be applied in relocation cases. In Re F it was said one should be undertaken, In Re Y [2015] 1 FLR 1350 it was said in private law cases it doesn't need to be, The Court of Appeal in Re C (Internal Relocation) expressed doubts about how it was to be undertaken. I consider that in most cases in practice the proportionality issue will be subsumed within the overall holistic evaluation in particular when considering effect of change and risk of harm. In reality in the judicial consideration of the welfare checklist it simply is likely to mean the judge will be that much more alert to the importance and thus weight to be afforded to the child's right to maintain contact with the left behind parent and their rights to a stable and secure family life with their primary carer, if there is one.[16] Insofar as it may assist in identifying the relevant issues a court may (but is not obliged to) deploy what may be described as the '