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J v P (Leave to Remove to France) [2015] EWFC 29

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Mother's application for leave to take the child to live with her permanently in France. Application granted.

  • This judgment was delivered in private. 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.

    Case No: ME14P01798

    Neutral Citation Number: [2015] EWFC 29

    IN THE FAMILY COURT

    SITTING AT MEDWAY

    Royal Courts of Justice

    Strand, London, WC2A 2LL

    Date: 01/04/2015

    Before:

    MRS JUSTICE THEIS

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    Between:

    J (MOTHER) (Applicant)

    - and -

    P (FATHER) (Respondent)

    - - - - - - - - - - - - - - - - - - - - -

    - - - - - - - - - - - - - - - - - - - - -

    Mr Christos Mitropoulos (instructed by Warner Solicitors) for the Applicant

    Mr David Williams QC (instructed by Wedlake Bell Solicitors) for the Respondent

    Hearing dates: 17th & 18th March 2015

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    Judgment Mrs Justice Theis DBE:

    Introduction

    1. This matter concerns a young girl, C, who is just 3 years old. Her parents are J (mother) and P (father), who I shall refer to in this judgment as the mother and father.

    2. The mother has made an application for leave to take C to live with her permanently in France. She plans to live in Montpellier. She was born in France and most of her family live there, her parents and sister live within about 2 hours from Montpellier. Her main reasons for doing so are to be closer to her family, to improve her employment prospects and to provide a better life for C. Her proposal outlined at the start of the hearing is if she is granted leave she would not move until August to ensure all the practical arrangements are in place

    3. The mother's revised contact proposals, in the event she is granted leave, were outlined at the start of the hearing. They can be summarised as follows: Alternate weekends on a rolling cycle of two taking place in France with the father travelling to Montpellier and then every third occasion taking place in England for an extended period with the mother bringing C to England; Half the school holidays either to be spent in France, England or Italy. During the hearing there was some information about the French school holidays and it looked like the pattern would work that the third longer occasion would fit in with half terms, save for the summer term when there is no half term, but the school summer holidays start earlier. In the event of the court granting the mother's application the parties will need to discuss the finer detail of this.

    4. Her application is opposed by the father. He was born in Italy, moved and settled in England about 6 years ago. Although his family remain in Italy he wishes to remain living and working here. He fears if the mother and C move there will be a significant reduction in the contact he has with C which is contrary to her welfare. He considers the mother can find employment here and the plans that underpin her application do not stand up to close scrutiny.

    5. This type of application is inherently difficult as it involves a decision for which there is no half way house, either permission is granted and the child moves to another jurisdiction which will invariably change the relationship with the left behind parent, or if refused may result in the parents who made the application feeling resentful that their move has been stopped in its tracks. There are powerful arguments on both sides in this case. I agree with the assessment of Mr Rautenbach, the Cafcass officer, that this is a finely balanced decision.

    6. As well as considering the trial bundle I heard the oral evidence from the parties and Mr Rautenbach, the Cafcass officer.

    Legal costs

    7. One sad feature of this case is the level of legal costs. There was no Form H filed by either party at the start of the case and I directed they should be filed with the closing submissions. The mother's costs are £14,280 (of which £9,909 have been paid). The father's costs are said to be £106,718 (of which £106,718 have been paid).

    8. The father's costs are over 7 times the mothers; his costs equate to the sum of over £17,500 per month since the proceedings started.

    9. The wholly staggering difference in the level of costs between the parties is inexplicable.

    10. At the time the mother made her application in September 2014 she was an unrepresented party and did not get solicitors again until she filed her statement in November, although there is a reference to her having seen solicitors in June 2014. She filed one statement. The father has filed two statements and been represented at two directions hearings prior to the two day hearing before me. The father said his legal costs have been funded by his grandfather.

    11. Whatever the courts decision it is frankly incomprehensible that this level of legal costs have been incurred in a case that, although finely balanced was not complex. The great sadness is this money could have been used for the benefit of the family as a whole.

    Legal Framework

    12. There is broad agreement between the parties regarding the legal framework. The primary task of the court is the assessment of C's welfare interests which are paramount, paying due regard to the welfare checklist in s 1 (3) Children Act 1989. I have been referred to Re F (Relocation) [2012] EWCA Civ 1364 (paragraphs 27 – 45) and K v K (Relocation: Shared Care Arrangement Children) [2012] 2 FLR 880.

    13. Attempting to define cases and the approach to be taken by reference to whether they are primary carer or shared care cases is probably not helpful. Cases should not get bogged down in preliminary skirmishes over whether this is a 'Payne' (primary carer) or 'Re Y' (shared care) case. The guidance at paragraph 40 of Payne v Payne [2001] 1 FLR 1052 remains of value in identifying important factors to be taken into account and the weight to be attached to them but it does not dictate the outcome of a case.

    Relevant Background

    14. The mother is 27 and the father 29. They were born, respectively, in France and Italy.

    15. The father's parents' relationship broke down when he was about 11 years old, his sister was much younger. His father disappeared from their lives. This had a huge impact on the father; he did not see his father until some 16 years later. He subsequently discovered he had in fact been living in the same city, unbeknown to the father. His sister had no relationship with her father, as she was too young to have any memory of him when the parents' separated. This experience has undoubtedly influenced the father. He came to England in late 2008 to pursue work in the film business, having trained as a film editor in Italy fulfilling his long term ambition to work in the film industry.

    16. The mother came to England a year later in late 2009. In her statement she said her sister was living here at the time and she wanted to spend some time living abroad. She said 'It was not then and never became my intention to settle in England permanently'.

    17. The parties met in mid 2010 and moved in together. The discussed possibly living in other countries, but now each dispute the extent of those discussions.

    18. They discussed having a baby and made a conscious decision to do so. The mother became pregnant in the spring of 2011. C was born in February 2012 whilst they were living in a flat in North London. In August 2012 they moved to Sevenoaks, Kent both considering it was a better environment to bring C up in.

    19. The relationship came to an end in about June 2013; the parties give differing accounts for the reasons. The mother says the father was working long hours and she felt he did not prioritise his time to be with her and C. The father states he had to work long hours and had a long commute each way. Due to the nature of the industry he was then self employed and needed to respond to the demands of his work in the hope of securing a more permanent position. He alleges the mother had an affair, which she denies.

    20. Following the breakdown of their relationship the parties moved to a three bedroom property to see whether they could share a home together amicably for the sake of C. That did not work; the mother and C moved out in January 2014 and secured their own flat. Shortly afterwards the father moved to a flat. There remains a dispute between the parties about the refund of the deposit of the property they shared. The mother says it was funded by her father and should be returned to her, the father disputes that saying the mother had not contributed to the rent and he was therefore entitled to retain some of that money.

    21. According to the mother, prior to June 2014 the father's contact with C was dependant on his work commitments and his other interests such as football. The father accepts that he worked long hours but states there were times other than the weekend when he was available to see C and he spent all the free time he could with her. He denies he played football in preference to spending time with C.

    22. It is broadly agreed from 6 June 2014 the regime of the father's contact with C has been each weekend, alternately starting on a Thursday or Friday evening and alternately returning C on Monday or Tuesday morning. The father contends this change came about due to him being offered a permanent contract on 1 May whereby he had fixed hours (40 hours per week). The mother contends this was after the father had received some legal advice, was aware of her wish to return to live in France and so was, wholly or partly, a tactical move by him to increase the amount of time he spent with C to thwart her plans.

    23. One matter that is agreed is that in her relatively short life C is a well travelled child. During the first 32 months of her life she went abroad no less than 18 times. Whilst a few of these trips were for long weekends, the vast majority were for trips of between 10 – 21 days approximately equally split between France and Italy. The trips to Italy were to visit the paternal family, whilst the parties were together these trips were undertaken jointly. Since the separation they have been with the father taking C to visit his family. The trips to France have been by the mother and C mainly to visit the mother's family, although over the last nine months they have also been to visit Montpellier where they have stayed with her boyfriend Z. According to the mother this relationship started in about March 2014, he is the son of a friend of her mothers and the families have known each other for many years. The mother has not sought to hide this relationship from the father and arranged for them to be introduced at a relatively early stage. The father fears that the mother's real plan is to move in with Z and that he will become the father figure for C in place of the father.

    24. According to the mother she never planned to settle in England. After her trip to France in August 2013 to attend her sister's wedding she also spent some time in Montpellier with a friend she had known in London. That friend is a French national who had returned to France to live in Montpellier about 3 years ago. The mother states, when she returned from this trip she informed the father that she wished to return to live in France. The father accepts she may have mentioned it but he says he did not take her seriously.

    25. The mother said she tried to put this to the back of her mind for the next eight months, but increasingly realised that is what she wanted to do. In the meantime she had formed a relationship with Z in March 2014. There is limited information known about him other than he has two children of his own, one of whom he has a shared care arrangement with. According to the mother their respective families have known each other for many years, their mothers are close friends. The mother has introduced him to the father.

    26. On the 8 June the mother sent the father an email setting out her wish to live in France with C. The father responded and the parties exchanged further emails. They attended mediation in August which did not result in the parties being able to reach an agreement. The last mediation session was on 18 August.

    27. The mother was travelling to France with C for 3 weeks the following day. This trip was agreed between the parties. On the train back from mediation on 18 August the mother informed the father that she had registered C to attend a nursery in Montpelier for a week to try it out and to ensure that if her application was successful C would have a place secured in that nursery. Although the fact of a nursery placement had been flagged up in the emails from the mother in June there had been no prior discussion between the parties about the detail and the mother accepts the father was shocked when he heard this on the 18 August. She acknowledges she should have spoken to the father about this before. She says she asked the father to accompany her to France to see what the facilities are in Montpellier. The father refused due to lack of finances and time off from work.

    28. Whilst the mother was in France she received a letter from the father's solicitors demanding the return of C to England by the end of August.

    29. The father flew to France to collect C and then subsequently took her to Italy for 10 days. The mother stayed on in France and returned on her pre-booked return flight in early September.

    30. The mother issued her application for leave to remove C from the jurisdiction to live in France on 15 September. The father issued a cross application on 20 October 2014 seeking a shared care arrangement confirming the existing arrangements between the parties.

    31. The matter was listed before DJ Collins. The father was represented by leading counsel, David Williams Q.C., the mother was unrepresented. The order provided for C to stay with the father from Friday 7pm until Monday 9.30am on alternate weekends and on the other weekends from Friday 12 noon until Monday 12 noon. The mother sought more contact at the weekends but that was refused. Directions were given leading up to the hearing before me which commenced on 17 March.

    32. At the hearing on 6 February 2015 HHJ Hammerton made further directions in preparation for the March hearing.

    33. Both parties have filed detailed written statements. The Cafcass officer filed his report on 30 January 2015. The father filed a detailed statement in response to the Cafcass officers report.

    The Parent's evidence

    34. The mother's command of English is reasonable, she did not require an interpreter although on occasions she struggled to find the right word to accurately express what she wanted to say.

    35. She was pressed in cross examination by Mr Williams Q.C. in relation to certain aspects of her evidence. In particular the uncertainty of her plan, the changing nature of her plan, the reality of her proposals for contact and the impact of her proposals on C.

    36. The suggestion that her plans were uncertain and subject to change was based on what was said by the father to be her history during their relationship of acting impulsively and being more spontaneous than the father. It was suggested to her that any discussions the parties had about moving to live in another country were no more than that, no further practical steps were taken to put those plans in action. She said there were discussions between the father and his friend, who had moved to Australia, but agreed once she became pregnant (which she did quite quickly) any discussions about moving abroad stopped, save for possibly a general discussion about Malta. She did not accept that they agreed any child they had should be brought up in England.

    37. She agreed the move to Sevenoaks was in part driven by her, they were in unsatisfactory accommodation in North London. They liked the Sevenoaks area, as it reminded her of France, and knew some people who lived there. She agreed it was a place that she may have been able to fulfil her wish to open a café but it turned out to be 'difficult to realise'. She said she tried her best but realised it was not going to be financially viable with the cost of accommodation, child care and associated costs. It was suggested to her that her application is a repetition of a theme that if something is not perfect she can't accept the reality and has to move on; hence her focus now on moving to Montpellier as it was with the move to Sevenoaks previously. She denied this.

    38. Although reliance is placed on a letter from her GP (stating how she has found the proceedings stressful, misses the support of her wider family and that staying in England may be detrimental to her mental health) it was suggested to her that her application form makes no mention of feeling depressed and isolated, and the reference to this in the letter from her GP in November has been driven by the litigation rather than the reality. The mother responded that she had felt depressed since the separation although she perhaps did not realise it at the time. She said she had been prescribed anti depressants in early 2014 related to a medical issue. She said she began to feel more depressed after the application was issued as she was feeling more isolated. She told the doctor she did not want anti-depressants or counselling as to use her words 'I didn't want to be this kind of mother on benefits and anti-depressants'. She was asked why she didn't seek advice and support from others. She said she felt able to confide in the doctor as someone who would not judge her.

    39. The mother was closely questioned about the reasons for her application being support from her family, employment prospects and a better life.

    40. It was suggested to her that the statement provided from her mother does not specifically refer to support she will provide. The mother said that her mother has provided support (for example coming to England to care for C for extended periods to enable the mother to do her bakery course and whilst this hearing was going on), she said that was likely to continue and would be much easier in France. The mother emphasised the ease of this support if she was in France, her father is in Toulouse, her sister in Carcassonne and her mother in Sorèze. All these places are within one and a half and two and half hours away from Montpellier. She is particularly close to her sister in Carcassonne as her daughter is close to C's age and is the only other maternal female cousin.

    41. Turning to job opportunities the mother has been consistent in her wish to open a café. She has undertaken a gluten free baking course and considers that gives her an opportunity in France due to the lack of people with such expertise. Although she said in her application she had a job it transpired this was no more than a prospect of a job. The letter in the papers refers to a café opening in Montpellier although the mother accepted no premises had been identified yet. The person behind this enterprise is a friend of the mothers that she knew in London who had returned to France. According to the mother this friend has established herself organising events with the local council in Montpellier. The organisation had opened a café in Paris and intends to replicate that in Montpellier. In relation to the job the mother said 'perhaps I didn't explain myself properly' She denied this was no more than a pipe dream, and was inconsistent with her description in her statement of this being a 'well researched plan'. She said things came bit by bit. In relation to the other job details she had (a secretarial position in an international logistics company) she agreed this was not what she wanted to do long term, but it was a firm offer which she had since discussed with the author of the letter to put back the start date until September 2015. Whilst she accepted the person who offered the job had worked with Z previously, she denied any suggestion that this job was arranged through Z. She said the job came about in part as she speaks English and French.

    42. She was pressed about the statements she had made about not wanting to live on benefits yet on the material available to the court that is what she was likely to be doing if she moved to France. She responded that due to the lower costs, in particular of child care, she was less likely to be on benefits. It was suggested that she was effectively making up her case as she went along, trying to plug the gaps as her case did not add up financially. She said she had to be realistic, her job offer is 20 hours and she will need to be on benefits but she will not be on benefits 'all her life'. Some of her calculations factored in a continuing contribution from the father of EUR300 pm. It was suggested that the father would be unable to afford that, particularly if he had to find flight costs to France twice per month. This together with her suggestion that the father could save money by staying in her accommodation when he came to see C illustrated that her plans were nothing more than a pipedream.

    43. When asked about the circumstances surrounding her decision to put C into the nursery school in France at the end of August she accepted she should have given the father more notice than the day before leaving to go to France. She said her intention had been to give C the experience of attending the nursery to see what is was like and to secure a place there in the event that she was given permission to move. She said she had explained her position to the nursery school. She denied that using Z's address for the nursery supported the reality that moving in with him was part of her plan. She said she had no other address she could use. She said she would prefer to send C to the bilingual school, but was unable to afford it. She said she chose the nursery where she registered C on the recommendations of friends although she accepted that Z 's children go there as well

    44. The mother was clear she had no secret plan to move in with Z and for him to become C's father figure in place of the father. She accepted she had said different things about the status of her relationship with Z, including to the Cafcass officer in December that the relationship was on hold and in her oral evidence that they had recently got engaged. She said it had been very difficult to deal with the build up to the hearing and denied specifically the suggestion that she had corrected C to call the father by his first name rather than 'pappa', as he was known as.

    45. The mother was asked about the list of friends in the father's statement who he said can provide the mother with support here. The mother did not regard any of them as good friends, some were acquaintances and others were friends from before C was born and were only seen rarely. Whilst she acknowledged the father spent time caring for C she did not consider him a great support, she said he called on her when there were difficulties with C. She viewed the father as caring for C 'only when he was not working'. She graphically described her attempts to attend mother and baby groups 'I wasn't English, I didn't feel very comfortable, they had money, husbands and 4x4 cars. I felt a difference both financial and that I wasn't English.' As for work here she agreed she had worked in the café in Sevenoaks since May 2013, more recently two days per week since C was at nursery. She said whilst she sometimes worked weekends, on a swapped shift, other work was not available there at the weekends.

    46. She was pressed about the impact on C's relationship with her father if there was a move to France. She acknowledged the differences in time and location but felt it should be seen in the context of prior to June 2014 she had been the main carer of C whilst the father was able to establish himself in his career. As a result, whilst she recognised the importance of the father, she considered her relationship with C was closer as she had been with her more. She agreed the father was committed but stated 'he is committed when he can'.

    47. It was suggested to her that they live in close proximity in Sevenoaks and C has the benefit of being able to move easily between the two homes and as a result she could make a good life in Sevenoaks, her response was 'So you mean I am stuck in Sevenoaks all my life.'

    48. Following questions from the court her estimated financial position if she moved to France was expected to be as follows:

    Monthly income EUR
    600
    job
     93child benefit
     690
    benefit (RSA)
     380 
    housing benefit equivalent
     1,763
     
       
    Monthly expenses
    680
    rent
     100 
    household bills
     30
    telephone/internet
     43
    school 
     100 
    clothes
     300
    travel
     1,253
     

    In her evidence she said she had worked out she could manage without any payments from the father but had also considered the position if he paid at a lower amount than he currently pays, and had worked on the basis of EUR 300 pm.

    49. The father's evidence was precise and considered. He came across as someone who was probably more cautious in his outlook than the mother and this is reflected in what he has achieved in his employment. He came over here with the intention of being able to secure work as a film editor and through his determination and commitment has been able to do that. It was obvious from his oral evidence he is very talented in this field.

    50. He considers, having listened to the mother give evidence, her plans are what he described as a 'clone' of her plans for living in Sevenoaks. He fears the plans she now has are driven by the idea of living in a dream place after the problems in their relationship. He considers Z's position is more significant than the mother admits and if that relationship founders she will move elsewhere. He described the mother's evidence as being 'passionate, really strong belief she can achieve what she wants' He considers her relationships here with her friends are stronger than she suggests and 'given time and the right mindset to stay here' he doesn't consider the mother will be adversely affected if her application is refused.

    51. He agreed to adjust the current division of time they have with C so that the mother would have one weekend in four with her with the father having extra time during the week. He said he had tried to discuss this with her but with no success.

    52. Whilst he was very positive about the mother's care for C he considered she has become over protective. He considers the mother under estimates his role as C's father, her statement was mainly critical of him and as a result he fears that if the mother and C move he doubts his relationship with C will remain the same. The strong bond he considers he currently has with C will weaken. In his statement he gives a detailed account of how he spends his time with C. He said he had structured his life around the mother and C, if it was taken away he would take a long time to accept it. He said he couldn't really imagine a weekend without his daughter.

    53. In considering the mother's proposals about contact he regarded them as impossible and painted a bleak picture in his evidence. The environment in which he would be having contact would be very different; he did not feel he could take up the offer of using the mother's flat as it would make him feel so uncomfortable. He also dealt with the practical and financial impact. He considered if the mother went to France with C there was little keeping him in Sevenoaks, he would more likely move to London and the accommodation he could get may be uncertain. Whilst he accepted he would take up the contact offered he feared in reality whether they would be able to be maintained because of the distances involved and other practical issues such as illness and delays. He said if the mother is not given permission to re-locate he does not see himself moving from Sevenoaks 'I like to establish myself in a place, I like Sevenoaks, give opportunities for good schools [if she stays] I don't see myself moving from Sevenoaks anytime soon'.

    54. In cross examination he accepted due to his background with his father he was hyper vigilant about not being an absent father and that his role was not marginalised. He accepted that the mother would not want to marginalise him but was concerned 'it may happen'. He was concerned about decisions she had already taken without consulting him (such as putting C's name down for the nursery in France).

    55. He accepted the mother first started talking about moving back to France after her sisters wedding in August 2013 but he 'never gave it much weight'. He accepted, to an extent, that he had found it more difficult to move after their separation he said 'I had a terrible time accepting C was not going to have a sibling and my family did not have a future'.

    56. He considers the mother has isolated herself as she hasn't 'knuckled down' to try and make it work, she could put C in nursery for 5 days per week and ask the father for more support. He said all he sees is closure by the mother.

    57. When asked about his future with his employers he said he has been with them for five years, the last year as a permanent employee. He hopes to move into a management role, possibly as head of one of the departments.

    58. When asked about contact during school holidays he accepted if the mother and C went to France he would probably move to live closer to his work and would spend some of the holidays with the wider paternal family in Italy. He said he gets 22 days a year and thinks there is the option of having some extra unpaid leave.

    The Cafcass Officer

    59. Mr Rautenbach provided a detailed and considered report. His recommendation is the mother should be given permission to take C to France. He was critical of the contact proposals put forward by the mother; she has now revised her proposals to take his recommendations into account.

    60. He did not see C but had detailed meetings with each of the parents. In his oral evidence he said he had decided not to see C due to her age. Mr Williams suggested that was a gap in his report, as he would have been able to assess the relationship between the parents and C. He did not consider that was necessary as it was accepted that C had a close relationship with both parents.

    61. Mr Williams took him carefully through different aspects of his report and suggested that he had not been balanced in his consideration of the parent's position; being too ready to accept the mother's account and not challenge what she said and, conversely, too readily challenged the father's account. As a consequence, it was suggested, as some of his factual assumptions underpinning his recommendation may be wrong this, in turn, undermined his recommendation. Whilst he accepted some assumptions he had relied upon may be different he maintained his assessment that he considered the mother's plans to return to her country of origin were genuine, not primarily motivated by her relationship with her boyfriend, and she understood and valued the importance of C's relationship with her father. He had balanced into his consideration the impact on C and her relationship with her father if the mother moved to France.

    62. Mr Williams suggested the mother's plans were inchoate, the mother had not been consistent about her plans regarding Z and any support from her family was limited due to the distance between them and the lack of any direct evidence from the wider maternal family of the actual support they would provide. Mr Rautenbach said he did not consider the mother's relationship with Z was the sole motivating factor, he acknowledged the mother's plans had changed and evolved but in his view that did not undermine her position and it was his assessment that the mother would derive considerable support from being closer to her wider family. He considered the reality of the support the mother would receive from her family if she moved to France was more than that outlined in the short statement from the maternal grandmother.

    63. Mr Williams put to Mr Rautenbach that he had not properly considered the effect on C of the change if she went to France with her mother, in particular compared to the current arrangement where C can benefit from having seamless shared experiences with both her parents, for example both of them being able to pick her up from school, attend events at short notice. He said he had factored that in and it would depend on whether the parents remain committed to the child, which he assessed they would. He acknowledged if C moved with her mother it would have an impact on her but did not consider it would cause her harm. He did not rule out the opportunity of the father still being able to share those experiences if she went to France. He acknowledged due to C's young age, where the parental relationship and shared experiences may not be so embedded, there is an increased need to take steps to maintain the strong relationship.

    64. As regards the events in late August, he agreed the mother should have given the father more notice that she had registered C in the nursery and he was going to attend for a week but he considered the father had overreacted. He observed if the mother was devious she would not have told the father what she was doing.

    Discussion and Decision

    65. The court's task in this application is to evaluate the evidence as it considers the Welfare Checklist.

    66. Both parents came across as being deeply committed to C's welfare; they both have strong a relationship with her. It is inevitable, but regrettable, that often as a consequence of having become embroiled in contested litigation parties focus on the negative rather than the positive aspects of their relationship with the other party.

    67. Both Mr Mitropoulos and Mr Williams submit their respective client's evidence is more reliable than the other. In my judgment it is not as simple as that.

    68. I consider both parents have done their best to give accurate accounts in the difficult circumstances of contested litigation where they seek diametrically opposed outcomes. I consider the mother has at times overstated her position, although I suspect that may in part be due to the language difficulties. However I do not consider her to be an inherently untruthful witness. There were some aspects of the mother's evidence where she had been inconsistent. For example, in relation to her plans with Z but that has to be viewed in the context where she has not sought to hide the relationship. Her reference to not wanting to live off benefits was in the context of her wishing to live free from benefits which she considered in the long term more likely in France than England. The father has done the same; there were aspects of the father's evidence where he perhaps overstated his position. For example, the time he spent with C prior to June 2014; it is clear the demands of his work then were such that during that period the mother shouldered much of C's day to day care. I consider it more likely than not he did play football to the extent described by the mother. He has often become focussed on the minute detail of the case without stopping and looking at the wider picture and the reality of the mother's position. I suspect this may be in large part due to his own experience with his father.

    69. The mother's wish to return back to live in France is genuine and not, in my judgment, primarily driven by any other factors such as her relationship with Z or seeking to distance the father from C. Her position is different from that of the father; she came here for a short period with no real intention to settle. All her family, save for possibly one sister, remain living in France. Importantly her parents and the sister she is particularly close to will live near to her if she goes to France. The father made a conscious decision to come here; he was driven by his passion for his work and his ambition to make that a successful career, which to his very great credit he has done. He plans to remain living in England. All his family remain living in Italy.

    70. The father's background, and his fractured relationship with his own father, has had a profound impact on him. He is determined the same will not happen to him and C with the consequence that any change in the current regime brings those strong emotions to the surface and, perhaps, impact on his ability to rationally judge the situation. Whilst he would undoubtedly be affected by C's move to France and the consequent reduction of time he would be able to spend with her, he like the mother is intelligent and resourceful and would, in my judgment, ensure his relationship with C is maintained.

    71. It is right the detail of the mother's plans have changed and the description given to them in her statement as being 'well researched' may have put the position too high. However, they have to be looked at in the context that the mother is returning to her country of origin, where her family are well established and live relatively close by. Her family have provided significant support in the past, with her mother making regular visits here and she is clearly close to her sister who has a daughter the same age as C. I have no doubt that support will continue. The somewhat sterile debate about the time it takes to get from where the maternal family live to Montpellier was unhelpful. The immediate wider family are all within a 2 ? hour journey. The fact that her plans have evolved reflect, in part, the time taken for the application to be heard, her developing relationship with Z and her own re- evaluation of what she proposes. I do not consider these changes, in the circumstances of the case, signify her plans being inchoate. Her current position, if she is given leave to go, is she would not move until August, to enable her to get her own accommodation in Montpellier secured and the other practical arrangements in place. This seems a child centred position for her to take, as it will ensure the move takes place with settled arrangements being in place to minimise the disruption for C. It will also have the benefit of giving time to make the necessary practical arrangements for the father's contact.

    72. The father's fear if the mother moves is the negative impact on his relationship with C, with the reduction of time he would have with her and the lack of shared experiences. His written statement and his oral evidence gave a detailed account of his feelings for C, their relationship and how they spend their time together. In addition, he fears that the mother marginalises his relationship with C and Z will either become a replacement father figure or if that relationship founders with Z she will move on elsewhere, with further disruption to C. Whilst it is right he will spend less time with C if they move and the logistics of contact may take time to settle down I agree with the analysis of Mr Rautenbach that both parents are committed to the relationship being maintained and will do all they can to ensure that is done. In relation to the mother this view is supported by the fact that she agreed to an increase in time that C spends with her father in June, at a time when she had reached the decision to make an application to move to France. Whilst she did seek a reduction at the hearing in October this needs to be seen in the context of C being with her father every weekend, which in my experience is unusual where the mother had limited unencumbered free time with C. It was inevitable this timetable was dictated in large part by the father's work commitments. Prior to June 2014 whilst the father did see C regularly this was also to a large extent dictated by his work commitments, which were extensive.

    73. On behalf of the father it is said that if the application is refused the mother will be disappointed but she will manage. Mr Williams submits the letter from the mother's GP is litigation driven and does not accurately reflect the resilience of the mother. The mother set out her feelings in her statement at paragraphs 43 to 45, which I accept. In her oral evidence the mother was revealing about her feelings. She had sought some medical help before (for an unrelated medical matter), had been resistant to having any medication or counselling and said she had not confided in her family as she was 'more confident that the doctor would not judge me'. She said the doctor gave her numbers of organisations she could speak to if she felt down and alone. She was clear in her oral evidence about the lack of support she had here, how she felt isolated and her description of feeling an outsider when she attended mother and baby groups was both compelling and revealing. In my judgment if this application is refused the mother will find it very difficult to settle and remain living in Sevenoaks. There is very little to keep her there. She has mentioned moving to other areas and although she has made no specific plans I strongly suspect that is what would happen. The father does not suggest there is much to anchor him in Sevenoaks if the mother and C were no longer living there. His commute to work is long and expensive and it is likely he would move back to London.

    74. When considering the Welfare Checklist the following matters are of relevance.

    75. Whilst C is of an age when she cannot express her wishes and feelings she is likely to want the current regime to continue and for both her parents to continue to be involved in her life.

    76. In relation to physical, emotional and educational needs there has been much debate about the mother's plans, Mr Williams describes them as built on foundations of sand. Whilst it is correct there has been some fluidity about them but that has to be viewed in the context of the mother returning to her country of origin where she has a good established family network. Her plan to delay any move until August is sensible, rational and child focussed. It will enable her to make all the necessary practical arrangements. She has said her plan is not to move in with Z straight away, which I accept. He has commitments to his own children. She has her friend who lives in Montpellier and has established herself there. It is clear there are flats available, she would be entitled to state benefits and the administration job offer she has remains open in September. Whilst she over stated the position in her application form and statement about the work she had in a cafe, that is something that may be available in the future where she can use her bi-lingual and baking skills. In her oral evidence she accepted the educational opportunities in either country are the same.

    77. Turning to the effect on C of any change in her circumstances, inevitably a move to France will mean that the current shared care regime will not be able to continue. That needs to be carefully evaluated with the proposals the mother has made for contact together with the other welfare considerations. Whilst the frequency of contact will be reduced as will the ability for the father to share some of C's day to day experiences (such as school) the mother's proposals will mean the father sees C every two weeks and on every third occasion that is likely to be for an extended period. The current regime in Sevenoaks is unlikely to be sustainable long term if the mother's application is refused as other factors will intervene such as the possibility the mother will move to another area where she will feel more settled, C starting school and any changes in the father's work. Whilst the cost and logistics of contact taking place in France can't be ignored nor can the practicalities of obtaining accommodation for contact to take place in, there are regular flights which can be booked in advance and there are clearly family resources the father can draw on if required. The father is resourceful and determined, as is the mother, if they both put their minds to it they will ensure the contact between C and her father will work. A benefit of the move to France is that C will be closer to the wider maternal family, whilst this can't be considered as a substitute for the presence of the father it is a factor that needs to be weighed in the balance. Having observed the mother in oral evidence I consider the impact on her, and consequently her care of C if the application is refused would be considerable. She feels isolated in Sevenoaks. I consider it unlikely she would remain living in the area, she would probably move to an area more attuned to her which will involve further disruption and not have the benefit of maternal family support in the area.

    78. C is 3 years old and has a close bond with both parents. They are equally committed to her and understand and value the relationship the other has with C. C has the benefit of being exposed to three languages, English, French and Italian. If she goes to France there is a risk she may lose her English and if she sees her father less her knowledge of Italian may also be less. The mother speaks English, she wishes for C to attend, if possible, a bilingual school. She is alive to this issue and will take steps to ensure the language that is common to the parents and C will be maintained. There is also the wider benefit to C of maintaining her knowledge of three languages.

    79. I have touched already on the impact on the mother of having to remain in England. I consider it would have a considerable impact on her. She feels isolated in Sevenoaks, she has limited support and her description of how she felt when attending mother and toddler groups was clear. That is unlikely to change, she can see little prospect of viably returning to work bearing in mind the cost of child care, accommodation and other associated costs. Whilst she is determined and robust she came across as being vulnerable too, her description of not being able to confide in others about how she was feeling supported what she said about lack of support. She puts on a brave face which is likely to mask the reality and I consider there is a real risk if her application is refused her ability to provide consistent care to C would be adversely affected. Balanced with this has to be the impact on C's relationship with her father if she moves to France and their relationship becoming more distant, both physically and emotionally. Whilst their relationship would undoubtedly change and the father would be greatly disappointed by the move I consider the parents' commitment to ensure the relationship is maintained is resolute and supported by visits to the paternal family. By seeing her father in France or England fortnightly I consider her relationship with her father will be maintained, albeit in a different context. Mr Williams has referred me to the research undertaken in this type of situation which suggests that contact arrangements are not maintained. I have considered that risk. The parents are aware of it and it is incumbent on them, with the support of the wider family on both sides, to ensure that does not happen so that C can continue to enjoy her close relationship with her father and the wider paternal family.

    80. It is not suggested the mother's application is motivated by her wish to marginalise the father, but more that she becomes overwhelmed by her own needs and what she considers is right for C without consideration of the father's position. Whilst there have been occasions when, on reflection, the mother accepted she should have done things differently, for example only informing the father of the nursery placement in France the day before they went, I consider she understands the importance of the father's relationship with C. This is illustrated by the contact plans she has put forward and the fact that she maintains a good relationship with the wider paternal family. The father is clearly capable of caring for C, although there have been times when he has sought the mother's advice. Prior to June 2014 he was not as available as the mother has been to care for C due to his commitment to his job. I accept the mother's evidence about the demands that placed on him prior to securing a permanent position.

    81. Having considered all these matters I have reached the conclusion that the mother should be given leave to take C to France. I consider this would meet C's best interests for the following reasons:

    1. The mother is returning to her country of origin and her plans are genuine and not motivated by any desire to marginalise the father. Whilst there may be some parts of her plan that are lacking in precise detail she is returning to a country she knows well, the structures are in place to support the move (such as a range of available accommodation, a job, nursery place, state benefits and friends and family support in the locality) and she does not plan to move until August. It was never her intention to settle in England.

    2. The move will have an impact on the father and his relationship with C, it will inevitably change. However, both parents are resourceful and intelligent and will be able to ensure C's relationship with her father remains strong, with the assistance of contact with the wider paternal family. The father's fears although understandable with the history of his fractured relationship with his own father are not justified as the context here is very different. Both parents wish the relationship between C and her father to continue, the mother will promote it and she has maintained a good relationship with the wider paternal family.

    3. The move will have benefits for C, she will be closer to her wider maternal family and her mother will feel more secure and less isolated. The impact of her application being refused is likely to have a profound impact on her. Her ability to work will be severely limited and her social isolation is likely to increase, there is little to keep her in Sevenoaks and the likelihood is she would seriously consider moving to another area. This is likely to have an impact on her ability to provide consistent care for C.

    4. The mother's relationship with Z is relatively new; she has not sought to hide it from the father. Whilst it is a factor in her decision to go to Montpellier the decision was initially driven by her friend being there and that remains an important factor. It was not until the oral evidence of both parties that the significance of this friend became clear.

    5. I accept the recommendation of Mr Rautenbach. It is a carefully balanced report with a reasoned recommendation. Whilst I have found some of his underlying assumptions to be different that has not undermined his recommendation. His oral evidence was thoughtful and reflective. He had clearly given this matter a great deal of consideration.

    82. There should be a child arrangements order specifying C lives with both the mother and father in France and England. The father suggests there should be an agreement from the mother not to cohabit with Z and maintain her own apartment for at least 2 years. That is something the mother may wish to consider, it will ensure there is clarity about the immediate future, it will help C make the adjustment and allow the father and C's relationship to more easily adjust to the change. There will obviously need to be a clearly defined framework for the time C spends with her father in France and England. When she is at nursery it looks like the pattern could be two weekends during term time in France and then a longer period in England during the half term and longer holidays. There is likely to be more flexibility in the shorter term as C has not started school. The father will meet the cost of the weekend contact in France, the mother will meet the cost of the half term contact and the parties will share the cost of C's travel for the longer school holiday periods of contact. Arrangements will need to be put in place to register the order in France.


Published: 22/06/2015

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