This was an appeal by the Father against an order made in April 2020 which allowed the Mother to relocate to Hong Kong with the parties’ two children.
As a short background, parties moved to the UK in 2016. In July 2019, following an argument between the parties, the Father made an application for a PSO to prevent the Mother removing the Children to Hong Kong without Father’s consent. On 9 August 2019, Mother made an application for relocation to Hong Kong. Children Act proceedings therefore continued throughout 2019 and there were also a number of issues regarding interim contact. When the matter came for final hearing in April 2020, there were a number of applications before the Court:
- Father’s application for a PSO
- Mother’s application for relocation to Hong Kong
- Father’s application for a shared care arrangement
- Father’s application to vary the interim contact arrangements ordered in August 2019.
The Court at first instance granted Mother’s application for relocation to Hong Kong. This was supported by the Section 7 report. In doing so, the Court made a number of findings. However, following the granting of permission to relocate, the Court went on to find that Mother’s proposals for contact of 28 days per year was insufficient. It also stated towards the end of the judgment that even if permission to relocate was refused, shared care would also not have been ordered.
The Father appealed initially on 4 grounds, one of which was later withdrawn (that being in relation to a remote hearing). Mrs Justice Knowles allowed Father’s appeal, focussing on Ground (b); that ‘the judge’s decision to permit the permanent removal of the children to Hong Kong was wrong and contrary to the best interests of the children’ [Paragraph 4].
Mrs Justice Knowles gave thorough consideration and discussion to the wide range of authorities surrounding the area of relocation and in particular, focussed on the case of Re F (A Child) (International Relocation Case) [2015] EWCA Civ 882. In her analysis, she found that the Court at first instance had not made ‘reference to or analysis of the other realistic option available to the Court, namely the children remaining in the UK with both parents resident here’ [Paragraph 44]. Whilst the Court at first instance had considered the welfare checklist, it had failed to analyse why Mother’s proposal of relocation was better for the Children than Father’s proposal and therefore it was difficult to establish why the Court preferred Mother’s option.
Mrs Justice Knowles also criticised the Court for considering contact between the Father and Children after the decision for relocation had been made and for failing to analyse the relationship between the Children and Father from the perspective of their Article 8 rights. Mrs Justice Knowles made clear that how the relationship is promoted with the non-resident parent should form part of the comparative evaluation of the merits of each parties’ case [Paragraph 48].
What Mrs Justice Knowles did not criticise however, was the judge’s consideration of the additional factors to analyse in relocation cases which are set out in the case of Payne v Payne. For example, Mother’s motive to move. This was because the Court at first instance made clear that those were not the only factors which were being considered.
Whilst Mrs Justice Knowles did not go behind the factual findings of the judge, the concern was the application of those findings to the matters that were required to be considered when looking at relocation [Paragraph 42]. The appeal was allowed, and the case was therefore remitted for a rehearing.
This case serves as a reminder that when considering relocation cases, it is necessary to evaluate all of the realistic options side-by-side rather than by adopting a linear approach. A holistic and proportionate evaluation needs to be undertaken, as well as considering parties Article 8 rights.
