Family Law

Family analysis: Richard Jones, barrister at 1 Garden Court Chambers, discusses the practical implications of the judgment in JAL v LSW [2017] EWHC 3699 (Fam), which concerns how the courts should approach relocation cases where care of the child has been shared.

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What are the practical implications of this case?

The judgment is a reminder that the essential task of a court is not to approach relocation cases in a ‘linear’ fashion where priority is given, for example, to the application to relocate – it must be to weigh up the competing options as to the country in which the child should reside and the parental framework in which the child should live. To do this the court must engage in a comparative evaluation of the options available.

The case is of significance for its illustration of what Williams J termed ‘the tension which may creep into relocation cases where the party applying to remove a child has previously made allegations that the other parent has behaved abusively’.

The mother had made very serious allegations of emotional and physical abuse against the father which appeared to fall potentially within the ambit of FPR 2010, PD 12J. The context was important given the parents had agreed an order only three months previously for a shared live with order when the court had not been invited to give any directions as to a fact-finding.

Williams J considered the three-day time estimate he had for the case insufficient to explore the allegations in detail together with the issue of the relocation. Accordingly, he decided to continue to hear the case on the basis that he would keep under review whether a fuller fact-finding was required to ensure J’s welfare was protected.

The judge went on to consider the context of the case which included the fact that the mother had left J in the care of the father for prolonged periods of time and determined that the father had not physically or emotionally abused J, and so a deeper enquiry would not be required. It was only after making this determination did he then go on to address the holistic evaluation of the competing proposals by reference to what he termed the ‘F, K, C Payne Composite’ that he characterised as ‘no more than an integrated approach to the welfare checklist and the Payne guidance/discipline incorporating the Payne criteria and any other particular features of the individual case which appear relevant.’ (Payne v Payne [2001] EWCA CIV 166, [2001] 1 FLR 1052).