Case No. ZC21P00327

(Internal Relocation) [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 'F, K, C, Payne' composite. This is no more than an integrated approach to the welfare checklist and the 'Payne' guidance/discipline incorporating within the welfare checklist relevant Payne56.The difficult question as to how, if at all, an Art 8 proportionality evaluation is to be undertaken was considered further by Knowles J in WS v KL [2020] EWHC 2548 (Fam) at [21] to [22] where, having cited the concluding part of paragraph [15] of judgment of Williams J in Re C (A Child) [2019] EWHC 131 (Fam) (set out above) she held:“[21]. It seems to me that, in accordance with the analysis of Ryder LJ in paragraph 32 of Re F, what is required by a proportionality assessment is "a welfare analysis of each of the realistic options" and that such an assessment "may amount to no more than an acknowledgement that one option is better than the other and that the preferred option represents a proportionate interference in the Art 8 European Convention rights of those involved" . If, having carefully examined the parents' wishes and their interests within the welfare analysis, a proportionality assessment is undertaken having regard to the best interests of the child concerned, that approach avoids the danger identified by Black LJ in Re C of inconsistency between the welfare analysis and the proportionality assessment (see paragraph 61).[22]. The careful examination of parental wishes and interests which Black LJ considered important in Re C is not easily accommodated within the confines of the welfare checklist. Neither the likely effect on the child of any change in circumstances nor the capability of the parents really captures what is required in that particular regard. McFarlane LJ recognised this implicitly when he stated in paragraph 50 of Re F that the court's task was to weigh up all the relevant factors, look at the case as a whole, and determine the course that best met the need to afford paramount consideration to the child's welfare. One of the relevant factors would be the wishes and interests of each parent. That global holistic evaluation – undertaken within the ambit of all the relevant provisions of s 1 of the Children Act 1989 – has, in my view, proper regard for the Convention rights of both parents and child.”57.I have adopted the approach outlined by Knowles J above in this judgment.58.Ultimately, the guiding principle that I must apply is that the welfare of the children is the court’s paramount consideration. Section 1 CA 1989 requires that I must have regard to the following matters in relation to each of the children:(1) Any delay in determining the questions raised by these proceedings is likely to prejudice their welfare;(2) I should assume (unless the contrary is shown) that the involvement of both their parents in their life will further their welfare;(3) Their ascertainable wishes and feelings (considered in the light of their respective ages and understanding);(4) Their physical, emotional and educational needs;(5) The likely effect on them of any change in their circumstances;(6) Their age, sex, background and any characteristics of either of them which I consider relevant;(7) Any harm which they have suffered or is at risk of suffering;(8) How capable each of their parents (and any other person in relation to whom I consider the question to be relevant) is capable of meeting their needs;(9) The range of powers available to me within these proceedings.