Family Law Hub

R v C [2013] EWHC 1295 (Fam)

  • Case No: FD12P00758

    Neutral Citation Number: [2013] EWHC 1295 (Fam)

    IN THE HIGH COURT OF JUSTICE

    FAMILY DIVISION

    17th May 2013

    Before :

    THE HONOURABLE MR JUSTICE PETER JACKSON

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    Between :

    R (mother)

    Applicant

    -And-

    C (father)

    -And-

    S (through his Children's Guardian)

    1st Respondent

    2nd Respondent

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    Roshi Amiraftabi (instructed by Goodman Ray Solicitors) for the mother

    Sarah Lucy Cooper (instructed on a direct access basis) for the father

    Sandra Fisher (instructed by Aitken Associates) for the Children's Guardian

    Hearing dates: 14th - 17th May 2013

    Judgment date 17th May 2013

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    JUDGMENT

    Mr Justice Peter Jackson:

    1. These proceedings concern Sam, who was born on 8 June 2007 and is now nearly 6 years old. His mother applies for permission to relocate with him to her native country, Columbia. His biological father is a stranger to him and, subject to what appears below, plays no part in the matter. His psychological father is his mother's estranged husband, Mr C, who is registered as his father on his Colombian birth certificate and consequently holds parental responsibility for him in that jurisdiction. Mr C, to whom I will refer as 'the father' in this judgment, opposes the mother's application to relocate and seeks a residence order or a shared residence order in his favour. Sam is represented by a Children's Guardian, who supports the mother's application.

    2. Since the parents separated in July 2012, Sam has been living with his mother and currently sees the father once a week for three hours.

    3. This hearing has taken place over the course of four days, during which evidence was given by the mother and on her behalf by one of her sisters, by the father and on his behalf by the paternal grandmother and one of the mother's cousins, and by the Children's Guardian.

    4. The case has certain unusual features. In the first place, the proceedings have been on foot since March 2012. A fact-finding hearing was directed but was repeatedly adjourned. Schedules of allegations and counter-allegations were created. In the end, while there are certain credibility issues to be determined, it is accepted by the parties that the outcome does not depend on a fact-finding exercise but upon a broader assessment of Sam's best interests.

    5. In the minority of cases where a separate fact-finding hearing is required, it is essential that it takes place quickly. In this case, there may have been some value in a swift early resolution of some of the factual issues, but with the passage of time the direction for a fact-finding hearing has simply kept a number of old and not particularly significant grievances warm long after they should have been allowed to fade in the memory.

    6. Secondly, it is a feature of the case that Sam was born in Colombia and that for the first 31/2 years of his life, with the agreement of both the mother and the father, he lived in the very house to which the mother now wishes to return: the father's objections to the local conditions must be viewed in that light.

    7. Thirdly, it is an unusual aspect of the matter that the father has not, as I shall explain, had parental responsibility for Sam under English law, although he does possess it under Colombian law.

    The history

    8. The father, who is English, is aged 46. He is a journalist with a special interest in Latin America. He was permanently based in Latin America for two years during the 1990s. In 1992, he married a Colombian woman with whom he has two children approaching adulthood; all three live in England and speak well of him. By the time the father met the mother, this marriage had come to an end.

    9. The mother is 31 years old. She comes from Monteria, a city in northern Colombia. She was educated there and later in Bogota. In Monteria she has a fairly large family, significant among them her sister Paola, who lives in the district of Cantaclara, and her grandparents, who live about 20 km away.

    10. In 2006, the mother and father met while the mother was studying in Bogota and the father visiting from the UK,. They began a relationship and Sam was born in June 2007. The father went from England to Bogota for two weeks to be present at Sam's birth and returned later in the year to be registered as his father.

    11. Although there has never been any scientific testing, both the mother and father agree that the father is not Sam's biological parent. Sam was conceived in September 2006, while the sexual relationship between the mother and father did not begin until the following month.

    12. The mother's evidence, which the father had no basis to challenge, is that Sam's father is a man named Mr P, who had been her boyfriend in her teens and with whom she slept for a night shortly before she began her sexual relationship with the father. In the course of these proceedings, a direction was given for Mr P to be contacted. He apparently received a letter from the Guardian earlier this year, but did not reply. An e-mail was then sent to him shortly before this hearing. Mr P replied, asking to be part of the legal process and asserting his parental rights and responsibilities.

    13. The question of whether the proceedings should be adjourned yet again to obtain further information and representations from Mr P was considered at the outset of this hearing. I did not think it appropriate to delay the progress of the case, bearing in mind that Mr P has never had anything to do with Sam at any stage in his life and that he had had an earlier opportunity to take part in the proceedings. It is nevertheless a feature of the case that a return to Colombia would place Sam at closer quarters to his biological father. If Sam lived in Colombia, he would be likely to meet him at some point.

    14. There is a disagreement about when the father became aware that he is not Sam's biological father. The mother says that she told him from the time of the birth, while the father says that the mother misled him into believing that Sam was his until June 2008, when the child was a year old, at which point she told him the truth.

    15. To his credit, the father's conduct towards the mother and Sam was not affected by the disclosure of Sam's paternity. In July 2008, when on any view he knew the truth, the mother came to England to be with him. Sam remained in Monteria in the care of the mother's sister Paola. The mother then went back to Colombia between January and July 2009, when she returned to England again. In December 2009, following the father's divorce, the parents married in England. Sam remained in Monteria throughout.

    16. In December 2010, the mother and father went to Colombia for 45 days, this being the last occasion that either of them has visited the country. In January 2011, they returned to England, bringing Sam with them. He was then 31/2 years old. The family obtained a one-bedroom flat and Sam in due course began at a local school. The mother obtained some cleaning and childminding work and the father continued with his employment. The mother currently has Indefinite Leave to Remain (ILR) in the United Kingdom. Had she remained with the father, she would have been eligible to apply for British citizenship as a spouse.

    17. The evidence establishes that the mother and Sam had little contact with the father's older children and limited contact with the father's parents, who live at some distance. The relationship between the mother and the paternal grandmother was friendly, but the grandparents were never able to visit Sam. Contact was limited to a handful of short visits to the grandparents' own home, including a visit after Christmas 2011. On that occasion, the grandmother saw the mother slapping Sam three times on the leg when he was being disobedient. The grandmother asked her not to do it. The mother denies the incident took place.

    18. Sometime around the end of 2011, the mother met a man called Mr L, an Australian with whom she began a sexual relationship in February 2012. She says that the father coerced her into doing this as part of a private fantasy. He denies this, but accepts that he provided her with condoms when she went out socialising without him.

    19. The mother says that her relationship with Mr L ended in the middle of 2012. Mr L, spoken to by the Guardian, confirms this. The father has produced Facebook entries from the end of 2012 in which the mother appears to be speaking of Mr L as a boyfriend. The significance of the issue is that the father believes that the mother will set up a new life with Mr L in England or Australia having deposited Sam in Colombia with her sister.

    20. At all events, the marriage was by March 2012 in terminal decline. The mother found it impossible to be in the small flat with the father, and the father, no doubt alarmed by the failure of the relationship, began to plan defensively for the future. At the end of that month, he issued proceedings for a residence order and an order preventing Sam's removal from the home. A series of hearings followed. In June 2012, the parties agreed that fact-finding was not necessary, the court declared the father to have parental responsibility (see below), and a shared residence order was made on the basis of an equal division of Sam's time. The mother agreed to leave the flat and in early July, she and Sam entered a refuge.

    21. Between March and June 2012, complaints were made to police on nine occasions, seven by the father and two by the mother. At various times, the police made uncomplimentary assessments of each parent, essentially concluding that it was "tit-for-tat". At one point, the officer in the case referred to the situation as "a complete mess - impossible to know who is telling the truth, if either". None of the underlying incidents is of any real significance and I make no findings about them, beyond saying that they demonstrate the acute difficulties in the home and the parents' inability to resolve them for themselves.

    22. The mother and Sam remained in the refuge between July 2012 and April 2013, when they moved to a two-bedroom rented flat. At the time of separation, there is no doubt that the mother was in need of advice and moral support, having left a relationship that she experienced as controlling. However, it has not been entirely in Sam's interests, because the rules of the refuge inevitably placed restrictions on the level of contact. This is not a case in which a parent was fleeing a serious physical threat, yet the most that the Guardian was able to negotiate by way of contact for Sam was three hours a week, with collection and return at a contact centre. Moreover, the refuge is about two hours' journey from Sam's school, which has been burdensome both for him and for the mother.

    23. Following the separation, the court suspended the shared residence order and approved the contact arrangements. The Guardian was appointed at the end of July 2012. Fact-finding hearings listed for August and October 2012 and January 2013 were adjourned, and at that point the matter was transferred by the District Judge to the High Court.

    24. One reason for the adjournment of the October 2012 hearing was a statement made by the mother that her grandfather had "passed away". The mother says that this was a misunderstanding in translation and that her grandfather had only been seriously ill. The father relies upon this as further evidence of the mother's mendacity.

    The mother's case

    25. In December 2012, the mother issued her application for permission to remove Sam to live in Colombia. She proposes that they should move in the course of the summer to live with her sister Paola in the home where Sam grew up. He would attend a local school, where she herself spent several years as a child. She would obtain a job to support herself and Sam.

    26. Giving evidence in Spanish through an interpreter, the mother described Sam as a happy, determined boy and says that nothing is difficult for him. She says that Sam and his father now have a good relationship, but that due to his work the father was less involved in Sam's early care than he now claims. However, she said that she did not want to "put him away from Sam". The marriage relationship has been damaged but that does not mean he cannot have contact. She said that the father had participated from the beginning - "he said he wasn't the father but he changed the first nappies". She would support visits England and Colombia (for about two weeks at a time on two occasions a year) but does not think that Sam would benefit from staying contact at this stage.

    27. She said that her income is from benefits, which have recently been significantly reduced as she is not job-hunting. She explained her difficulty in finding good quality work that will pay her enough, while allowing her to look after Sam. If she remains in England, she would need to move again or for Sam to go to school somewhere closer to her new flat.

    28. Asked why she wanted to move to Colombia, the mother said that her family is there, that she has a very strong relationship with her grandparents, and that she had never wanted to come here for her own sake, but only because of the father. They used to love each other and got married. They wanted a nice family, but things did not work out. The father's older children mean little to Sam. He has a good relationship with his paternal grandmother, but has not seen much of her. In England, she says that she cannot find a decent job, while in Colombia she is a university graduate with good prospects. Living there, she was able to be independent, while in England she has none of these possibilities. She feels imprisoned here and she does not want to be here. Asked how she would respond to a refusal of permission, she said that she would never go back without Sam and that she had no idea what she would do. Asked if she would cope, she said that she does not know. She would have to manage it somehow, but the pressure from the father would have to stop - "I can't continue like this".

    29. Asked whether she would not in fact leave Sam in Colombia and return to England herself in order to avoid losing her ILR status, she denied this. She says that if she had wanted to secure her position in England, she could easily have applied for a spousal visa while living with the father in early 2012, but instead she chose to leave him.

    30. The mother said that she has no intention of involving Sam's biological father Mr P in his life. He is married and has a child and lives in Bogota.

    31. The mother accepts that her mother, who died in 2002, had been accused but not convicted of a notorious murder, and that her mother was herself was killed, as was one of her brothers. She did not, however, accept that Monteria was a dangerous place for Sam or for his father, who is an experienced traveller in Latin America.

    The father's case

    32. The father proposes that Sam should remain in England, dividing his time equally between his parents under a shared residence order and continuing to attend his current school. He accepts that it would take some time before this arrangement could come into full effect and that there are issues about the distance between the mother's home and the school. The father says that these arrangements would reflect his level of involvement before the separation and the shared care arrangements that were agreed in the early stages of the proceedings, but never put into practice.

    33. Describing the breakdown of the marriage, the father considered that there were real problems by late 2011. By 2012, things were very difficult at home and arguments were impacting on Sam, who sensed that something was going on and was at times tearful at school. Feeling that the authorities were not taking his concerns about the mother seriously, at the end of June the father took to leaving a tape recorder running while he was out. He admitted to doing this over a period of four days and creating some nine hours of recording. At one point, in a passage lasting a couple of minutes, the mother is heard to be shouting at Sam. The father took this recording into school and played it.

    34. The father is aggrieved, in my view with some justification, about the very limited amount of contact that he has been allowed over the course of the past year and the restrictions upon contact with his parents. He argues that this is in effect a shared care case for the purpose of considering the issue of relocation.

    35. The father explained that he has financial difficulties, with a burden of debt and obligations to his first wife and older children. He has not been maintaining Sam on the basis that the mother cannot be trusted to spend money appropriately, and he challenged her application to the CSA on the basis that she had wrongly claimed that he is the biological father. He was unable to propose any financial support for Sam in the mother's care, saying that if there was an equal shared care arrangement the matter would not arise.

    36. Even so, the father had offered to fund alternative accommodation for the mother in the short term after the separation. He has never been willing to move out of their joint property in her favour.

    37. The father strongly opposes the mother's plan to relocate. He is concerned about her integrity and her moral standards. Although he appears to accept that she misses her family, he considers that the physical conditions in Monteria are substandard and dangerous for Sam and for himself, even for visits. He believes that the mother will not be the main carer and that he will not obtain contact in Colombia or England. He is concerned about the emergence of Mr P and the influence of Mr L. He points out that a move will deprive Sam of his very good current schooling, his use of English and his relationship with his half-siblings and grandparents, and of regular paternal contact.

    38. In evidence, the father described his career as a journalist. In the roughest terms, he will have visited Colombia about 40 times in the past 25 years for trips of variable length, totalling perhaps 18 months in all. Since meeting the mother in 2006, he will have spent a total of two or three months in Colombia, divided between about eight visits.

    39. The father explained in detail how he became aware in June 2008 that he was not Sam's father, and how it had been a complete shock. He and the mother had then agreed that they would bring him up together in England. He was somewhat reluctantly prepared to accept that there had been a time when he and the mother had loved each other. He also accepted, again somewhat reluctantly, that Sam had seemed "OK" in Colombia up to the age of 31/2.

    40. The father has made a number of sweeping criticisms of the mother. He says that he is the victim of "an elaborate scam since 2006" and that he was "tricked into a marriage of convenience". He argues that she "is sufficiently mendacious, manipulative and sexually exploitive in her daily functioning that it is more likely than not that she will emotionally damage Sam if he remains in her long-term care". The father goes so far as to allege that the mother has "a past linked to prostitution and criminal activity". In his evidence, he said that he had investigated the past in order to get "a full account of her double life" and said that she is "a pathological liar". For good measure, he told me that: "She's made it perfectly clear that all she wants is to have a good time. I think the responsibility of being a mother and a father comes before that".

    41. The father also complains about the approach of professionals. A complaint against a student social worker who was first involved in the case was partially upheld. He is also unimpressed at the Guardian's involvement, and in particular that she did not advocate for more contact for Sam. On a specific issue, he alleges that on 30 April 2013 her grasp of the case was such that she referred to Mr L as Sam's biological father and had to be told by the father that it was Mr P.

    The other witnesses

    42. The father called evidence from the mother's cousin Liliana, who lives in Spain. He did this because she is highly critical of the mother as being, in her view, a manipulative liar. She said, through an interpreter, that the mother had always described the father as "a saint" and that her subsequent behaviour has been unjust to him. Sam had been brought to London for a better future than he could have in Monteria. Liliana produced copies of private Facebook chats that she had had with the mother and passed on to the father.

    43. I was unimpressed with the evidence of this witness. She has not met the mother for five years. She has never met Sam. She has allied herself with the father, who visited her in Spain last December though they had never met before, and who has accommodated her in his home twice this year. She has made no attempt to understand the mother's point of view, or even to ask for it: instead, she has attempted to gather evidence for the father's benefit in a meddling fashion, producing nothing of any real value. The way in which the father has chosen to involve a member of the mother's family in the proceedings, without any consideration of the effect on the mother, reflects poorly upon him.

    44. The mother called evidence from her sister Paola. She gave evidence through an interpreter via Skype by means of the court's video link facilities. She described her home and her willingness to share it with the mother and Sam. She explained her relationship with her common-law husband, who was present when the video link began. She said that they would always support the mother and Sam, who had lived with them for several years "for as long as it takes". She rejected the suggestion that she had any intention of adopting Sam, or that the mother would abandon him. She gave an account of the wider family in Monteria, including grandparents, aunts and uncles and cousins. She said that she learned that the father was not Sam's biological father about seven months after the birth.

    45. Making allowances for the limitations of technology and language, the impression created by the mother's sister was one of genuineness and warmth, and I accept her evidence.

    46. The maternal grandmother gave evidence about the incident at Christmas 2011. She spoke of her sadness at the failure of the parents' marriage, and of how she feels "very, very hurt" and rejected from Sam's life. She agreed with the mother that their past relationship has been good, but she said that the mother had upset her and would have to make the first move. Following that, she would offer support.

    47. While not doubting the grandparents' distress, I cannot find that they represent a source of support for the mother in this country. Their relationship with her was not particularly close and the evidence of the grandmother did not encourage the view that it is likely to recover or improve.

    48. The Guardian, Ms Reid, supports the making of a parental responsibility order, despite some reservations about the father's behaviour. She advises that Sam will need to be told about his biological father gently and sensitively in time. She recommends that if Sam remains in England there should be a residence order in favour of the mother and an order for substantial contact to the father: this would build to alternate weekends, midweek visits and half the holidays. She is not in favour of a shared residence order because she considers the mother to be vulnerable in a relationship with a power imbalance and considerable acrimony.

    49. The Guardian is critical of the father's overall approach. She considers that he lacks understanding of the mother's position and that he must stop undermining her and support Sam. His approach is controlling, erodes her parenting and is not in Sam's interests. He must learn to accept the evidence that shows that Sam is doing well in his mother's care. His denigration of the mother's country is unhelpful. Mediation, the Guardian says, might help to get the parents talking.

    50. The Guardian supports a move to Colombia after the end of Sam's summer term, with significant contact both before and after the move - she made suggestions. She considers that the mother has become increasingly sad and she is concerned that, despite what she says, the mother will not cope if she is forced to remain here and that this will affect her care of Sam. The Guardian expresses some confidence that the mother will honour the contact arrangements but makes her recommendation about relocation in the knowledge that enforcement of future contact if Sam moves to Colombia cannot be guaranteed.

    The law

    51. In all of these matters, Sam's welfare is my paramount consideration, having regard to the matters in the welfare checklist and decided authority. I treat the family relationships that exist with the seriousness required by Article 8 ECHR. I approach this as a case in which Sam has a meaningful relationship with both parents, even though the amount of time he has spent with his father has been attenuated in recent months.

    52. I am assisted by the decisions of the Court of Appeal in Payne v Payne [2001] EWCA Civ 166 at [40] and [85] and in K v K [2011] EWCA Civ 793 at [141-144]. I take account of all factors that are relevant to welfare, applying no presumptions.

    Specific findings

    53. In relation to the revelation of paternity, I prefer the evidence of the father. It fits with email correspondence at the time, in which the mother refers to having lied and asks for his forgiveness. It is also more consistent with the evidence of the mother's sister on this point.

    54. In relation to the father's allegation that he has throughout been used by the mother, I reject this revisionist account of their relationship. There is no doubt in my mind that between 2006 and 2011 this was a relationship of mutual affection, even if it also had its difficulties.

    55. The father has no good evidence for his allegations that the mother has been involved in prostitution and criminality. Likewise, all the independent evidence from the school, from the refuge and from other professionals is that she is making a good job of caring for Sam. It is a significant feature of the situation that the father is so bleak in his assessment of her.

    56. I accept the grandmother's account of the incident at Christmas 2011. The incident itself was not particularly serious; the grandmother did not think it necessary to report it even to her own husband or son, and it only came to light in the context of the litigation. Moreover, the grandmother (though not greatly impressed by the mother's parenting) says that the incident was not typical of her. It is nevertheless another indication of the stresses that existed and of the fact that the mother cannot always be relied upon to be truthful.

    57. While there seem to have been some unusual aspects of the mother and father's private life, the mother is an independent adult and I do not accept that the father bears the main responsibility for her affair with Mr L. It is more likely that she had by the end of 2011 become unhappy in her marriage and that she turned elsewhere for affection and support. However, I find on balance having considered the evidence, that while the mother and Mr L remain friendly, they are no longer in an intimate relationship and that they have no joint plans for the future.

    58. I reject the father's case that the mother would leave Colombia once Sam had been taken there. The mother is no less devoted to Sam than the father.

    59. As to whether the mother meant to mislead when she said that her grandfather had died, or whether she was misunderstood, I am not able to say, and it does not make any difference to my overall assessment either way.

    60. Having considered the evidence of the father and the Guardian about their conversation on 30 April, I prefer the evidence of the Guardian, who has produced her note. I am sure that the father believes that the Guardian said that Mr L is Sam's biological father but I find it improbable that she in fact said or believed this when she had actually met Mr L only eight days earlier. Overall, I prefer to leave this issue on the basis of a misunderstanding by the father.

    Parental responsibility

    61. Expert advice, jointly obtained, shows that the legal relationship under Colombian law is determined by the birth certificate and that the father accordingly has parental responsibility, even though he is not the biological father. This status can be displaced by an order of a competent court in Colombia.

    62. During the course of these proceedings, an order was made by the District Judge with the consent of the parties, which states that "For the avoidance of doubt, [the father] has parental responsibility for the child, namely [Sam]". This order as it stands is problematic and I will set it aside. The father does not acquire parental responsibility under English law by virtue of his appearance on the Colombian birth certificate, since this does not satisfy the requirements of s.4(1)(a) Children Act 1989 which requires the registration to have taken place under s.10 or 10A of the Births and Deaths Registration Act 1953. The only freestanding route by which the father could have parental responsibility is under s.4A Children Act 1989, which allows the other party to agree or the court to order that he should have parental responsibility as a step-parent, namely a person married to the mother. (By freestanding, I mean other than by means of a residence order or some other similar order.)

    63. In the present case, with the agreement of the parties, I will make an order under section 4A granting parental responsibility to the father. This is appropriate in the light of his commitment and attachment to Sam. It reflects his status in Colombia. While in normal circumstances the beneficiary of such an order will be a person who might be described as an incoming step-parent who wishes to bring up a child together with the parent with parental responsibility, the power to confer parental responsibility is a flexible one and what is important is what is in the child's best interests for the future: see Re R (Parental Responsibility) [2011] EWHC 1535 (Fam), [2011] 2 FLR 1132 at paragraphs 36-38.

    Residence

    64. I am in no doubt that it is in Sam's best interests to live with his mother. Aside from the fact that she has had almost exclusive care for the past year, I find that she is the parent that is more capable of meeting his essential emotional needs as he grows up. While she is by no means without fault, she struck me as having a more balanced understanding of Sam and a more charitable attitude to the father that he has of her. I am afraid that the father's anxieties have often got the better of him so that he has become blaming and pedantic, losing sight of the qualities that he once liked in the mother as a parent and a person. I am concerned that he has, so far, little insight into the effect of this.

    65. I unhesitatingly reject the suggestion that it would be in Sam's interests to share his time equally between the parents, or anything like it. It would be a recipe for conflict and inconsistency. The father's attitude to the mother would be likely to lead him to try to take overall control when he had Sam and to police the mother when he did not. The mother should have the ability to bring Sam up without being the object of continuous suspicion. This is not a case for a shared residence order, if ever it was.

    Relocation

    66. My central finding in this regard is that the mother is unlikely to be able to meet Sam's needs if she is required to remain in England. She is under great stress and without real support. I cannot confidently foresee the father as providing support of the kind that is needed in the future. It is likely that there will be a state of attrition that would progressively demoralise the mother. I accept her self-assessment and the assessment of the Guardian on this important issue.

    67. The mother's ability to meet Sam's needs would, in my view, be markedly greater in her own country, surrounded by family and friends. Despite my conclusion that she has not always been truthful, I found her evidence about her feelings and her reasons for wanting to return to Colombia genuine and compelling.

    68. For Sam, a return to Colombia will be a considerable change, but it is a return to a familiar setting and a lifestyle that is essentially tried and tested. It may be that material conditions will not replicate what is available in England, but they were good enough for him for the first years of life and I had no reason to believe that this will change. The father has, over the past six months, worked tirelessly to identify dangers and difficulties relating to the mother's family and their locality. Even taking these at their highest, they do not persuade me that Cantaclaro is an unsafe or unsuitable place for Sam to return to. The father made no such complaint in the good times and I do not accept his account that he has only just found out about it all. He speaks Spanish and has visited Colombia often, and it is not credible that he would have failed to identify real danger and inadequacy if it truly existed. Moreover, Sam is a Colombian child and it is not appropriate to view his welfare through an exclusively English lens.

    69. Like the Guardian, I take account of a possibility that cannot be ignored of contact not taking place. If that is so, it is not in my view likely to be the result of deliberate policy on the part of the mother. She has not turned Sam against the father in the course of the past year and has complied with contact orders. I believe that if the father is willing to meet her halfway in re-establishing some mutual respect, there is every reason to believe that contact will take place in Colombia and England. The practical and financial difficulties cannot be denied, but they can be overcome with a measure of cooperation. However, if the father maintains his essentially contemptuous view of the mother, difficulties with contact can be easily predicted. I take this into account in reaching my ultimate decision.

    70. In this context, when considering the possibility that the relationship between Sam and the father will not be sustained, and the real losses that this would entail, it has some relevance that the father is not a biological parent. He is an important figure in Sam's life but his active role has been an intense one for the period of about 18 months of cohabitation, while being of somewhat lesser significance both before and after that time.

    71. I shall therefore make a residence order in favour of the mother, with permission to remove Sam from the jurisdiction three months from the date of this judgment, i.e. 17 August 2013. This falls after the end of the current summer term and about three weeks before the beginning of the school term in Colombia. It will enable Sam to have a good degree of contact with the father in the meantime.

    72. I shall make it a condition of the permission to relocate that the mother fully cooperates in the signing of a notarised agreement reflecting the terms of this order so that it can be presented to the Colombian authorities, provided that the father produces a suitable document within six weeks. In the circumstances, there is no alternative to his being responsible for the associated cost.

    73. I approve the proposals for extending visiting contact on Sunday 19 May and on four Saturdays beginning on 25 May to six hours on each occasion (including on 8 June, which is Sam's birthday) and for the father to have staying contact on the following further occasions: overnight from Saturday to Sunday on the weekends of 22 June, 6 July and 20 July, and then for three nights from Friday 2 August to Monday 5 August. There should be one further single overnight stay between then and the mother and Sam's departure. The parties should agree these details, which will appear as part of the order.

    74. Following the move to Colombia, the father should have contact over a period of five days in October 2013. This should include two consecutive nights and no less than six hours contact every other day. The mother shall bring Sam to England in February 2014 (unless another date is agreed) for a period of 10 days, during which the father should have two periods of contact lasting for three nights and contact for six hours on every other day.

    75. Thereafter, the father shall have contact with Sam on any occasion that he can visit Colombia, with the arrangements to be agreed. He shall in any event be entitled to a minimum period of one week's holiday in Colombia during school holidays in the second half of each year from 2014 onwards, with the expectation that this may extend to 10 days or two weeks once Sam is older.

    76. The mother will allow Sam to speak to the father by Skype not less than once a week and the father will allow Sam to have reasonable telephone contact with the mother when he is with him.

    77. In circumstances where the father is not contributing to Sam's regular maintenance, he shall be responsible for the transport costs of the mother and Sam visiting England annually and, of course for his own transport costs. Each parent shall be responsible for all other costs associated with contact. In the event that the father begins to pay maintenance, I would expect the mother to become responsible for her own transport costs, with the father paying Sam's.

    78. The parents are always at liberty to agree different contact arrangements from time to time.

    79. I invite the parties to present a draft order reflecting this judgment.

    80. In conclusion, while this decision will be a severe disappointment to the father, I urge him and the mother to engage in mediation before Sam's departure. If Sam is to benefit from the contributions that both of them can make, they urgently need to look to the future in a different spirit. For his sake, they need to put aside their differences and attempt to establish some degree of real co-operation. They need to act with parental responsibility.


Judgment, published: 09/06/2013

Items referring to this


Published: 09/06/2013

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