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Shared care arrangements in relocation cases

Date:12 APR 2018
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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.

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).
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What was the background?

In this judgment, Williams J grappled with the competing options of whether J (an eight-year-old boy) should live in this country under a shared care arrangement as sought by the father, or whether, the mother ought to be permitted to take J to live permanently in Hong Kong with her. The context of the case was one where the mother had previously abducted the child to Hong Kong having made allegations of emotional and physical abuse against the father, but had been ordered to return J to this jurisdiction.

What did the court decide?

In its holistic evaluation of the competing proposals by reference to the ‘F, K, C Payne Composite’, the court assessed:
  • the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);
  • the child’s physical, emotional and educational needs;
  • the likely effect on the child of any changes in his circumstances;
  • the child’s age, sex, background and any characteristics of his which the court considered relevant;
  • any harm which the child has suffered or is at risk of suffering; and
  • how capable each of his parents – and any other person in relation to whom the court considered the question to be relevant – is of meeting his needs
The judge found the mother would be unable to promote a relationship between J and the father and, balancing the competing factors, made an order that he should make his life in England in the shared care of both parents.

Interviewed by Susan Ghaiwal.

This analysis was originally published on LexisPSL Family (subscription required). Click here to request a free 1-week trial