WS v KL
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Knowles |
| Judgment Date | 25 September 2020 |
| Neutral Citation | [2020] EWHC 2548 (Fam) |
| Court | Family Division |
| Date | 25 September 2020 |
[2020] EWHC 2548 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Knowles
Mr Christopher Hames QC (instructed by Cambridge Family Law Practice) for the Appellant
Mr Paul Hepher (instructed by BDB Pitmans) for the Respondent
Hearing date: 5 August 2020
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
This judgment was delivered in public. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
Introduction
This is an appeal by the appellant father against an order made by HHJ Yelton on 6 April 2020 (as approved by the judge following further submissions on 28 April 2020) by which he granted permission to the respondent mother to remove the children, X and Y, permanently from the jurisdiction of England and Wales to live in the Hong Kong Special Administrative Region of the People's Republic of China (Hong Kong).
The appellant father [“the father”] was represented at first instance by Christopher Hames QC who has represented him in the appeal. The respondent mother [“the mother”] was represented by Paul Hepher at first instance and he also represented her in this appeal.
The order followed on from an ex tempore judgment delivered by the judge in the afternoon of 6 April 2020. During a hearing conducted remotely, the judge heard evidence from the parents and from the Cafcass officer on 30 and 31 March and heard oral submissions from counsel on the morning of 6 April 2020. Following delivery of judgment, the judge granted the mother permission to remove but doubted whether it would happen any time soon and made it a pre-condition that she should register a mirror order in the Hong Kong family court. He proceeded to announce some decisions in respect of child arrangements but left it to the parties to agree the form of draft order. He also refused the father's application for permission to appeal but granted an extension of time to apply to this court. In the event, the parties were unable to agree the terms of the draft so, with the agreement of the judge, rival draft orders and written submissions were emailed to the judge on 28 April 2020. The judge provided an approved order and a note setting out his decisions and brief reasons for them on 29 April 2020. This was after the judge's retirement from the Bench.
By a Notice of Appeal dated 3 May 2020, the father sought permission to appeal against the judge's order on the following grounds:
a) That the judge failed to adjourn the final hearing and ordered that it should proceed by remote video hearing;
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 in that:
i) He failed to undertake any or any proper holistic and non-linear comparative evaluation of the available options facing the children;
ii) He failed properly to assess the disadvantages to the children of moving to Hong Kong and to assess the advantage to the children remaining in England and Wales;
iii) He failed to make proper findings and/or to assess the risks to the children of the mother causing then emotional harm by failing adequately to preserve or promote their relationship with their father and to spend time with him pursuant to s.1(2A) of the Children Act 1989;
iv) He failed to conduct any assessment of the interference with the Article 8 rights of the children (and the father) or to consider the proportionality of the interference whether as a separate exercise or as part of the holistic evaluation;
v) Having found that the mother's proposals for the children's time with the father were not generous, he should have analysed and concluded that a relocation was not in the children's best interests;
vi) He placed improper weight on his finding that the mother had not wanted to move to England in 2016;
vii) He placed under weight on his own perception that parents of Chinese origin with school age children often moved to [location where the family lived] on the mistaken assumption that they would as a consequence be more likely to secure places at the University of [X];
viii) He placed improper and unreasonable weight on the mother's “devastation” if her wish to move with the children to Hong Kong was denied;
ix) He placed undue weight on the mother's concerns about the lack of a support network which, on investigation, amounted to her dismay that she had few visitors when ill in hospital in February 2019. The judge failed to find that the father was available at all relevant times to care for the children if the mother was unable to have them during the times allotted to her;
x) The judge failed to undertake any analysis of the unstable political situation in Hong Kong which was a major factor in the family's decision to leave Hong Kong in 2016 but which had deteriorated considerably while the family had been in England.
c) The judge failed to provide for a mid-week overnight visit with the father in term times as recommended by the Cafcass officer and provided no reasons for failing to rule on this issue as he was invited to do in the written submissions he received on 28 April 2020;
d) In the alternative, if grounds A and B were dismissed, the judge was wrong not to order the mother to ensure that the children had contact with the father when he was able to travel to Hong Kong during the school term time and in other school holidays apart from Easter, summer and Christmas.
On 9 June 2020 I made an order granting permission to appeal and limited the grounds of appeal to grounds A, B and D. With respect to ground C (contract prior to removal), the judge had subsequently retired and, given the limited significance of that ground, I considered that a direction he should provide reasons was disproportionate. Contact prior to removal was a matter which would fall to be considered either at the conclusion of the appeal or at any rehearing of the mother's application if the court so ordered. Finally, I stayed the judge's order permitting relocation pending the outcome of the appeal.
I listed this matter originally for 4 and 5 August 2020 to allow time for reading, submissions, and judgment. Unfortunately, work pressures meant that it appeared unlikely that I could hear the appeal on those dates. Via my clerk, I canvassed an alternative listing in the weeks commencing either 24 or 31 August 2020 only to be informed that the mother had arranged for the children to start school in Hong Kong on 27 August 2020. To accommodate these arrangements, I agreed to hear submissions on 5 August and, in advance of the hearing, to read the material in my own personal time. I did so and gave a decision without a judgment on 5 August 2020. This is my reserved judgment.
At the start of the hearing Mr Hames QC applied for permission to withdraw ground A in relation to the judge's decision to hold a remote hearing. I granted permission as the matters advanced in the skeleton had by then been superseded by authoritative guidance from the Court of Appeal on remote hearings. That guidance amply justified the decision to hold a remote hearing.
Mr Hames QC also made an application to adduce fresh evidence which was not before the judge. That evidence addressed the political situation in Hong Kong, it being a part of the father's case that unrest and political instability rendered Hong Kong an unsuitable place for the children's relocation. The evidence he sought to adduce was (i) a report deposited in Parliament on 11 June 2020 which analysed a number of incidents in Hong Kong, all of which had been reported in the press at the time they took place; (ii) a statement to Parliament made by the Secretary of State for Foreign and Commonwealth Affairs on 20 July 2020 which concerned the attitude of the United Kingdom Government to recent events in Hong Kong; and (iii) an article by the Prime Minister published in the Times on 3 June 2020 concerning the United Kingdom's ties of friendship and history with Hong Kong. Additionally, extracts from the United Kingdom Government's website as to travel to Hong Kong during the Covid-19 pandemic and an extract from the website of the Government of the Hong Kong Special Administrative Region concerning travel into Hong Kong were also provided. The father submitted that the travel guidance was unclear as to whether the mother and the children would be required to quarantine in a hotel on entry to Hong Kong or if his ability to travel to Hong Kong to see the children might be impaired by reason of quarantine restrictions.
The mother opposed the application to adduce fresh evidence as the father had made clear to the judge in his written and oral evidence his reliance on an uncertain political situation in Hong Kong. She provided evidence in rebuttal showing that, as Chinese citizens born in Hong Kong, she and the father would be allowed entry to Hong Kong as would the children irrespective of Covid-19 restrictions for other nationalities.
I had no difficulty in refusing the father's application. The travel guidance was largely irrelevant given the material produced by the mother. The father's evidence to the judge had dealt in detail with the political situation in Hong Kong, specifically addressing his fear that Hong Kong would become just...
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Pk v Skb
...the only authentic principle when determining relocation applications is the paramount welfare of the child. 45. Recently, in WS v KL[2020] EWHC 2548 (Fam) a 2020 decision of the High Court of Justice (England and Wales) (Family division), Mrs Justice Knowles, at paragraph 14, reiterated th......
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Pk v Skb
...that the only authentic principle when determining relocation applications is the paramount welfare of the child. 45 Recently, in WS v KL [2020] EWHC 2548 (Fam) a 2020 decision of the High Court of Justice (England and Wales) (Family division)), Mrs. Justice Knowles, at paragraph 14, reite......