Strand, London, WC2A 2LL
B e f o r e :
|- and -
Jacqueline Renton (instructed by Keystone Law) for the Respondent
Hearing dates: 10th – 12th May 2021
Crown Copyright ©
The Hon Mrs Justice Judd DBE :
11. On 15th July 2020 the mother emailed the father in these terms; "About two years ago I shared with you my plans to relocate to Africa. I can now confirm that I will be relocating with N to Country A at the end of August, ahead of the start of the academic year on September 1., for professional and personal reasons….I have discussed relocation plans with N in the past and told him that I would provide further details when ready. He has no particular concerns about our move to Country A as he has been there before. I am sure you are aware that N does not want to be put in a position where he would be forced to make a decision as for him it would mean choosing between his parents. He has asked that you and I find an arrangement to make this work'.
The mother's case
The father's case
The Cafcass Officer
(a) The only authentic principle is the welfare of the child as set out in K v K  EWCA Civ 793
(b) The implementation of s2A CA 1989 makes clear the heightened scrutiny required of proposals which interfere with the relationship between child and parent;
(c) The welfare checklist is relevant;
(d) The effect of previous guidance in such cases as Payne v Payne  EWCA Civ 166 may be misleading unless viewed in its proper context which is that it may help the judge identify potentially relevant issues;
(e) A welfare analysis of each proposal will be necessary; the court must carry out a holistic and non-linear comparative evaluation of the plans proposed by each parent; in complex international cases this may need to be of some sophistication and complexity. As Ryder LJ stated at paragraph 30:
'Where there is more than one proposal before the court, a welfare analysis of each proposal will be necessary. This 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 the 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".
(f) In addition to Article 8 rights 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 his interests);
(g) Furthermore the court must also take into account the Article 8 rights of the parents; the child's Article 8 rights will take priority in the usual case but those of others should not be overlooked and need to be balanced;
(h) The court must consider the proportionality of the interference with the Article 8 rights of the child and parents.
The situation for N if the application were to be granted
46. The mother's emails to the father are often couched in terse language, which suggests a certain lack of respect for his abilities and position as a father. Despite the fact that she knew the father really did not want N to go and live in Country A, her email to him dated 16th July 2020 read as follows; 'About two years ago I shared with you my plans to relocate to Africa. I can now confirm that I will be relocating with N to [Country A] at the end of August… for professional and personal reasons'. To be fair to her, the email carries on to give him details of the proposals, including a statement that N had no concerns about the plan as he had been there before. She suggested having discussions through a third party.
The position if N was to remain living here.
Discussion and conclusions