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Re F (A Child) (International Relocation Cases) [2015] EWCA Civ 882, CA, McFarlane, Ryder, Clarke LJJ, 6.8.15 (hearing on 31.3.15)
M applied for permission to relocate with the parents’ 12 yo child to Germany. The application was granted at first instance. Appeal by F allowed & case remitted for rehearing. M was a German national. F was British. M came to the UK in the mid 80’s to work for F’s sister as an au pair and began a relationship with F 10 years later and married him. The parents divorced in 2012.
The CA held that K v K (Children: Permanent Removal from the Jurisdiction) [2011] EWCA Civ 793 should be the starting point ie that the child’s welfare is paramount. The Payne questions (is the application genuine? Is the F’s opposition genuine? What would be the impact on M of refusing the application?) were only part of the application of this paramount consideration and welfare analysis. Payne provides a helpful discipline by identifying a number of factors which will or may be relevant in a relocation case but it does not dictate the outcome of a case. Hedley’s decision in Re Y did not represent a different line of authority from Payne, applicable where the child’s care is shared between the parents as opposed to undertaken by one primary carer. It exemplifies how the weight attached to the relevant factors alters depending on the facts of the case. Cases should not be considered as K v K type cases or Re Y type cases, indeed many cases could not easily be so neatly categorized. The court should adopt a holistic evaluation of what would promote the child’s welfare. As Munby P said in Re B-S (Children) [2013] EWCA Civ 1146 at para 46:
“We emphasise the words ‘global’ holistic evaluation’. This point is crucial. The judicial task is to evaluate all the options, undertaking a global, holistic and .. multi-faceted evaluation of the child’s welfare which takes into account all the negatives and the positives, all the pros and cons, of each option.”
“That approach is no more than a reiteration of good practice. Where there is more than one proposal before the court, a welfare analysis of each proposal will be necessary. That is neither a new approach nor is it an option. A welfare analysis is a requirement in any decision about a child’s upbringing. The sophistication of that analysis will depend on the facts of the case. Each realistic option for the welfare of a child should be validly considered on its own internal merits (ie an analysis of the welfare factors relating to each option should be undertaken). That prevents one option (often in a relocation case the proposals from the absent or ‘left behind’ parent) from being side lined in a linear analysis. Not only is it necessary to consider both parents’ proposals on their own merits and by reference to what the child has to say but it is also necessary to consider the options side by side in a comparative evaluation. A proposal that may have some but no particular merit on its own may still be better than the only other alternative which is worse.
Finally, a step as significant as the relocation of a child to a foreign jurisdiction where the possibility of a fundamental interference with the relationship between one parent and a child is envisaged requires that the parents’ plans be scrutinized and evaluated by reference to the proportionality of the same. There was no question of that before this court, nor could there have been. It is a proposition that has already been decided that international relocation cases engage articles 6 and 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950. Whatever earlier obiter observations and doubts about the applicability of the Convention to these cases that there had been were settled by the Strasbourg’s court’s decision in Glaser v United Kingdom (Case NO. 32346/96), [2001] 1 FLR 153.
Mcfarlane LJ added that the use of the term ‘global, holistic evaluation’ was not intended to introduce any new approach. It was simply a shorthand way of referring to the necessary balancing exercise to be carried out in considering the welfare of a child.
The Judge at first instance had overly focused on the key elements identified in Payne and had not carried out a holistic evaluation or considered other aspects of the welfare analysis. The case was remitted for rehearing.
