Re F [A] Child International Relocation Cases

To consider
The law to be applied in an international child relocation case was set out in K v K (Children: Permanent Removal from Jurisdiction) [2011] EWCA Civ 793

A father's appeal against an order giving the mother leave to remove their 12-year-old daughter to Germany was allowed in a very important Court of Appeal decision, in August 2015.

The appeal in Re F (A Child) (International Relocation Cases) [2015] EWCA Civ 882 concerned the 12-year-old daughter (L) of divorced parents. L's mother was a German national, who had come to England to learn English and work as an au pair. The couple began a relationship about 10 years later, started living together and then got married. The marriage broke down soon afterwards and the couple had lived under the same roof and then divorced. The father was English.

After financial remedy proceedings were concluded between the parents, the mother made an application for leave to relocate permanently with the daughter to Germany. The trial judge granted her application for leave to remove.

The issue on appeal was whether the judge had allowed herself to be deflected from a proper welfare analysis in order to do justice between the parents and had allowed herself instead to be constrained by the narrower guidance given by the court in Payne. The Court of Appeal in deciding to set aside the relocation order decided that she had. In particular, the judge had failed to consider “the erosion in the quality of the relationship between father and daughter” if she moved to Germany, and had failed to carry out “an evaluation of the harm” to the child of permission being refused as against “the harm that would result from separation from her father should she move”.

In giving judgement, the Court of Appeal distanced itself from out of date “gender based assumptions” about parental roles in relation to the care and upbringing of children and the absence of the child's participation in the decision-making process. The Court allowed the appeal, set aside the relocation and child arrangements orders made by the judge and directed a rehearing of the application before a different judge.

The law to be applied in an international child relocation case was set out in K v K (Children: Permanent Removal from Jurisdiction) [2011] EWCA Civ 793, [2012] Fam. 134 and F (A Child) (Permission to Relocate), Re [2012] EWCA Civ 1364, [2013] 1 F.L.R. 645, K v K and Re F followed. Payne was to be read in the context of those authorities and not in substitution for, or in priority over, them, Payne considered. Selective or partial citation from Payne without any wider legal analysis was likely to be regarded as an error of law. In particular, a judgment that not only focused solely on Payne, but also compounded that error by referring to the four-point "discipline" set out in Payne, was likely to be wholly wrong. The appropriate approach was an holistic evaluative analysis, which was neither a new approach, nor an option, 

W (A Child) (Care Proceedings: Welfare Evaluation: Functions of Local Authority), Re [2013] EWCA Civ 1227, [2014] 1 W.L.R. 1611 and B-S (Children) (Adoption: Leave to Oppose), Re [2013] EWCA Civ 1146, [2014] 1 W.L.R. 563 applied. The child's welfare was the paramount consideration.

Where there was more than one proposal before the court, a welfare analysis of each proposal would be necessary. The sophistication of that analysis would depend on the facts. Each realistic option for the child's welfare should be validly considered on its own individual merits. Not only was it necessary to consider both parents' proposals on their own merits and by reference to the child's views, but it was also necessary to consider the options side-by-side in a comparative evaluation. A proposal that might have some but no particular merit on its own might still be better than the only other alternative. International child relocation applications under s.13 might require a proportionality evaluation because of the likelihood of severing the relationship between the child and one of her parents. That evaluation would focus on the welfare analysis of each of the realistic options and might amount to no more than an acknowledgement that one option was better than another and that the preferred option represented a proportionate interference with the ECHR art.8 rights of those involved (see paras 20, 27-32 of judgment). (2) The judge had attached too great an importance to the four-point discipline in Payne, and there was no clear identification of any overall welfare analysis. She had taken no account of the erosion in the quality of the daughter's relationship with the father if she was to move to Germany. High on the list of important questions should have been an evaluation of the harm to the daughter of leave being refused, as against the harm that would result from separation from her father. There had been no proportionality cross-check. A rehearing was ordered before a different judge (paras 37-38, 42).