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WS v KL [2020] EWHC 2548 (Fam)

Mrs Justice Knowles granted the father’s appeal against an order allowing a mother to remove two young girls to relocate permanently to Hong Kong, finding that the judge had failed to conduct a welfare analysis of the available options or a proportionality assessment.

The parents were both born in Hong Kong but had spent large amounts of their early lives elsewhere before returning to Hong Kong in their twenties. They relocated to the UK in 2016 with their daughters, born in 2012 and 2015 respectively. As the marriage ran into difficulties, the father was concerned that the mother might take the children back to Hong Kong. His application for a prohibited steps order was swiftly followed by the mother leaving the marital home with the children and applying for permission to relocate to Hong Kong. There were disagreements about the amount of time the children should spend with the father. At the final hearing the father sought a shared care regime.

First instance decision
The judge granted the mother's application, which was supported by the Cafcass officer. Having done so, he expressed the view that the mother's proposals for the father to have 28 days' contact per annum was not enough for the children. He indicated that if he had not granted the application he would have continued the current contact regime rather than ordering shared care.

The appeal
The relevant authorities are considered at §14-22 and the judgment under appeal summarised at §30-39. The analysis follows from §40-53.

While it was not for the appeal judge, without compelling reason, to go behind the factual findings, she was concerned about the application of those findings to the matters the judge was required to consider and concluded that the decision was wrong.

The judge had failed to undertake an analysis of the welfare factors relating to each of the available options. There was no reference to or analysis of the option of the children remaining in the UK with both parents resident here and only a glancing reference, following the decision to allow relocation, to the father's application for shared care. The only other mention of a different outcome was the finding that the mother would be devastated if she had to remain in the UK.

While the judge identified various factors in the welfare checklist he had failed to analyse why the mother's proposal was better for the children than the father's and it was difficult to discern why he preferred it. Without undertaking an explicit evaluation of his findings made in relation to the welfare checklist against the available options the reasoning was "profoundly flawed".

Further the judge had placed considerable weight on his finding that the mother had not wanted to come here in 2016, which cannot be a proper reason to decide that the children should return in 2020.

He had also failed to analyse the effect on the children of having a severely attenuated relationship with their father and his finding that the father's role would continue, albeit in a different fashion, after their relocation was an inadequate treatment of the relationship from the children's perspective and also the perspective of the father's Article 8 rights. While an evaluation of the merits of each parent's proposals should include consideration of how the relationship with the left behind parent is to be promoted, the judge had only addressed the mother's contact proposals after the decision on relocation had been taken.

There was no explicit proportionality assessment. Given the lack of evaluation of the realistic options, it was impossible to "read into" the judge's analysis of the welfare checklist the sort of proportionality assessment identified by Ryder LJ at §32 of Re F (A Child) (International Relocation Case) [2015] EWCA Civ 882, [2017] 1 FLR 979.

A rehearing will take place before a Deputy High Court Judge.

Summary by Gill Honeyman, barrister Coram Chambers

Read the full judgment of  WS v KL [2020] EWHC 2548 (Fam) on BAILII