Family Law Hub

A (A Child: permission to permanently relocate) [2016] EWHC 2691 (Fam)

Application by the mother, which was opposed by the child's birth father, for permission to permanently locate with the child to the USA. The application was granted.

  • Neutral Citation Number: [2016] EWHC 2691 (Fam)

    Case No. FD16P00076

    IN THE HIGH COURT OF JUSTICE

    FAMILY DIVISION

    Royal Courts of Justice

    Friday, 23rd September 2016

    Before:

    HIS HONOUR JUDGE GARETH JONES

    (Sitting as a Deputy Judge of the High Court)

    (In Private)

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

    B E T W E E N :

    F (Applicant)

    - and -

    M (Respondent)

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

    Transcribed by BEVERLEY F. NUNNERY & CO.

    (a trading name of Opus 2 International Limited)

    Official Court Reporters and Audio Transcribers

    25 Southampton Buildings, London WC2A 1AL

    Tel: 020 7831 5627 Fax: 020 7831 7737

    info@beverleynunnery.com

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

    MR. A. POWELL (instructed by Brethertons LLP) appeared on behalf of the Applicant

    MR. A. BAGCHI QC (instructed by Dawson Cornwell) appeared on behalf of the Respondent.

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

    J U D G M E N T

    (As Approved by the Judge) JUDGE GARETH JONES:

    1 I have before me an application by the mother for permission to permanently locate with the subject child, whom I shall identify as "A", who is five years of age, to the United States of America. This application being opposed by the child's birth father. An application by the birth father for a change in the child's residential status was not pursued at the outset of this hearing.

    2 This application arises in the context of the mother's wrongful removal of the child from the jurisdiction of England and Wales last year, following a refusal of her first application to relocate by a district judge of the Watford Family Court. The mother subsequently returned to this jurisdiction in February of this year, following contested Hague Convention proceedings in the United States of America.

    3 This application impinges not only upon the parents and the child, but also upon the child's two half-siblings, upon the mother's husband (who I shall identify as the stepfather, a United States national to whom the mother was married last year) and the wider extended paternal and maternal families within this jurisdiction.

    4 The father is represented by Mr. Powell. The mother is represented by Mr. Bagchi QC. I have read the relevant statements of evidence filed by the parties and the reports of the CAFCASS officer, Ms. Demery, who recommended that the relocation order should be granted. I have also considered the other relevant documents, including the extensive exhibits filed in this case. I also heard oral evidence from Ms. Demery, the CAFCASS officer, from the mother, from the father and from the stepfather by video-link from the United States.

    5 The hearing commenced on Wednesday of this week, 21st September. It continued until today, Friday, 23rd September 2016.

    The Background

    6 The parents are both in their 30s. They met in 2007 and began to live together from 2009 in the Hemel Hempstead area. Their respective families continue to live in the area, including the paternal grandparents and the maternal grandmother. There are also maternal/paternal aunts, uncles and cousins on both sides.

    7 The mother has two children from an earlier relationship: X, who is 14 years of age, and Y, who is 10 years of age. They are the children of NM, the mother's previous, unmarried partner. The mother's relationship with NM was volatile and sometimes acrimonious. The details are set out at para.6 of the CAFCASS officer's report in the first relocation proceedings at F13-15 of the current trial bundle. The mother and NM were 15 and 19 years of age respectively when they met. When they finally parted in 2007, X was five or six and Y was only a year old (F16, para.10).

    8 The father in the current proceedings assumed the role of father figure for X and Y during his relationship with the mother. Indeed, Y believed that the father within these proceedings was her birth father until the identity of her actual birth father, NM, was disclosed to her in the course of the first relocation proceedings in 2015.

    9 A was born in 2011 and the mother and the father's unmarried relationship continued until 2013, when they separated. The father did not acquire parental responsibility by birth registration, but he now shares parental responsibility for A by a parental responsibility order which was made on 10th July 2014 by the Watford Family Court (C6). A is the father's only child.

    10 Following the separation of the mother and father, A continued to live with her mother and X and Y, her half-siblings. The father had regular contact with the three children. The father works as a transport manager and he is reasonably remunerated. He has a one-bedroom flat in Hemel Hempstead and he has no other dependants.

    11 In 2014, the mother formed a relationship with her current husband and indicated that she wished to move to live with him in the United States, together with A, X and Y. The background which led to this relationship is dealt with in the transcribed judgment of District Judge Sethi at paras.22 to 26 of the judgment.

    12 The mother and the stepfather met on the internet. The stepfather is 17 years the mother's senior and he has three children of his own from a former marriage: two daughters and a son, of whom two are adults and one is 17 (C295). District Judge Sethi expressed concern about the likely durability of the mother's new relationship with her American partner (para.26, F8).

    13 The father and NM both opposed the mother's application to relocate to the United States with A, X and Y. That application was refused by District Judge Sethi on 31st March 2015, the order being at F1. The child arrangements contact order, which had previously been made in the father's favour, was continued by para.9 of that order.

    14 In July 2015, barely four months after this refusal, the mother unilaterally removed A, X and Y from the jurisdiction of England and Wales and took them to the United States of America. The mother acknowledged in her oral evidence that this removal was without the consent of NM and without the written consent of the father. The mother continued to assert that she had the father's oral consent. This, however, was denied by him.

    15 This removal led to the applications pursued under the Hague Convention for the children's return to this jurisdiction. On 10th September 2015, the mother married her present husband in the United States of America (C33, para.23). She was engaged to be married to him prior to her departure to the United States of America and a fiancé visa was the basis of her entry to the United States of America, applied for during the proceedings before District Judge Sethi.

    16 The mother attempted to pursue an appeal from District Judge Sethi's order. That, however, has been withdrawn. She also contested the proceedings in the District Court in Georgia for a summary return. At C180-196, there is a transcript of the order and the judgment of a United States District Judge May in the District Court in Georgia in January 2016, ordering A's return to this jurisdiction. By February 2016, the mother, A, X and Y had returned to this jurisdiction.

    17 I should indicate that X and Y's relationship with their father, NM, always tenuous and fragile, has seemingly broken down. They have no contact with him currently. Both children are loyal to their mother and share her desire to move to the United States to make a fresh start there. Both children reacted badly to the frustration of this plan by NM and A's father. In Y's case, the disclosure about her true paternity did little to establish a relationship between her and her true birth father, NM.

    18 NM has faded from the lives of his daughters, this being recognised by the order of Mostyn J dated 24th February 2016, giving permission for X and Y to relocate to the United States to live with the mother's husband, their stepfather, (B56, para.17). NM has not applied to vary or discharge this order.

    19 However, despite this permission, X and Y initially remained with their mother and A, their half-sibling, in this jurisdiction until the summer. Over the summer, all three children travelled to the United States for a holiday with their mother and stepfather. At its conclusion, A and her mother returned to this jurisdiction. A has spent a week staying with her father here, with the anticipated holiday with him in Spain not having taken place.

    20 X and Y, however, remain in the United States with their stepfather. They have started school there and their mother and stepfather may be about to start the process of obtaining lawful permanent residence status for them in the United States, as outlined in the procedure described by a United States attorney at C294 of the trial bundle. Alternatively, X and Y may return to this country to live with their mother once more if permission to relocate is refused.

    21 X and Y's relationship with A's father has been fractured, probably because of his opposition to A's relocation. X applied for separate party status within these proceedings, an application which was refused by an order dated 21st June 2016 (B95-96).

    22 Following A's return to this jurisdiction, by the order of 24th February 2016 Mostyn J ordered that A should, in the interim, live primarily with her mother (E54). Provision was made for the father's direct contact with A by para.11 of the same order. The mother's application for permanent relocation was timetabled for a final hearing.

    23 The father's contact with his daughter has indeed resumed. She now stays with him. There was an initial two week stay and then a pattern of alternate weekend contact was established. Very recently A has stayed with her father for one week, as I have noted already.

    24 As a complicating feature, following the mother's return to this jurisdiction she was arrested and charged with three counts of child abduction in relation to each child. She is due to appear before the Crown Court at St. Albans in November 2016. If convicted, her plans for relocation might face disruption with regard to her immigration clearance, as described at C294 in the United States attorney's letter. If the mother was sentenced to a term of immediate imprisonment, she would be physically prevented from travelling to the United States.

    25 A, like her half-siblings, has experienced life to some degree in the United States for the seven to eight months between July 2015 and February 2016. There have also been holiday visits there, including over this last summer. However, apart from these periods A has lived within this jurisdiction and this is her country of origin.

    The plans/proposals of the parents

    26 The mother, until recently, lived in temporary accommodation in Devon. She lived there with A, X and Y and her husband remained based in the United States. She has lived at six different locations with A since arriving in the United Kingdom, as she indicated in her statement at C282, para.37.

    27 The mother is not in paid employment and she has not been for the last four years or so. She is financially supported by her husband and she receives child benefits. She has academic qualifications, as described by her in her statement.

    28 The mother decided not to return to her home area of Hemel Hempstead following her re-entry to the United Kingdom. Instead, she moved to Devon where some of her cousins live. She has explained that this decision was prompted by financial considerations, the cost of accommodation in the South East and by her apprehensions about NM, who continues to reside in the Hemel Hempstead area, his relationship with X and Y being currently fractured.

    29 The father maintains that the mother has selected a remote location to frustrate the effective and regular provision of his contact with A, to minimise A's reintegration within this jurisdiction with her wider family and area of origin, and to present a picture of instability, insecurity and impecuniosity within this jurisdiction when contrasted with a more settled position in the United States.

    30 Since returning with A from their summer holiday in the United States, the mother and A have lived with the mother's former foster carer in the Hemel Hempstead area, with whom the mother is close. The mother's former foster carer is a supportive presence for the mother, who spent much of her childhood as a child in care. This location is better placed in relation to A's father and A's wider extended family, but appeared from the mother's evidence to be a temporary base only. If permission to relocate were refused, the mother indicated she would probably return to the Devon area, but her precise contingency plan is far from settled. It is certainly the case that the mother's circumstances in this jurisdiction appear to be in marked contrast to her potential circumstances in the United States, to which I shall turn.

    31 The mother and her husband have a comfortable home available to them and the children in Georgia. The exhibited photographs confirm this impression. The mother's husband is a regional sales manager with a good salary and access to health insurance for his family (including A) potentially available through his employment.

    32 There is reasonable school provision for A, X and Y. The mother would, in due course, look for work in the United States, structured around the children's schooling activities.

    33 Inevitably, because of the distance involved, the father's contact with A (if A moved to the United States) would be provided indirectly by Skype on at least a twice weekly basis, and perhaps more often. Direct contact would be confined to the long school holiday period, which in the United States appears to be the summer (from the end of May to the beginning of August annually), the spring, Christmas and Thanksgiving. The details appear at C277.

    34 The father indicated that he has a limited holiday entitlement of four or five weeks, although he could take unpaid leave. The costs of travel to the United States would probably restrict his contact, in practice, to two visits per annum. A would need to be accompanied by an adult for the transatlantic flight from Atlanta to London Heathrow if she travelled here for contact. In due course, arrangements can be made by the airline carrier concerned when A is older.

    35 If the mother's application to relocate were refused, she would probably, although not definitely, live in Devon with A. It is unclear whether X and Y would return from or stay in the United States with their stepfather. The mother, however, would not move to the United States without A.

    36 On this basis, A's father would broadly exercise the alternate weekend contact currently arranged, probably supplemented during school holidays. This involves a five hour round trip to collect A and return her if the mother was in Devon (C157, para.37).

    37 The father has one-bedroomed accommodation suitable at present for staying contact. This domestic contact would be arranged around his full-time employment. The wider family identified by the father at C167-8 would also be afforded opportunities for contact in the Hemel Hempstead area whilst A stayed with her father, whether A stays in this jurisdiction or returns to the United States.

    The legal provisions to be applied

    38 Applications under s.8 and s.13 of the Children Act 1989 are supplemented by the relevant case law. The effect of the well-known triad of cases (Payne v Payne [2001] 2 WLR 1826; K v K [2012] 2 WLR 941; Re F [2013] 1 FLR 645) is summarised in the decision of Mostyn J in Re TC v JC [2013] 2 FLR 484. I adopt his summary at para.11:

    "(i) The only authentic principle to be applied when determining an application to relocate a child permanently overseas is that the welfare of the child is paramount and overbears all other considerations, however powerful and reasonable they might be.

    (ii) The guidance given by the Court of Appeal as to the factors to be weighed in search of the welfare paramountcy, and which directs the exercise of the welfare discretion, is valuable. Such guidance helps the judge to identify which factors are likely to be the most important and the weight which should generally be attached to them, and, incidentally, promotes consistency in decision-making.

    (iii) The guidance is not confined to classic primary carer applications and may be utilised in other kinds of relocation cases if the judge thinks it helpful and appropriate to do so.

    (iv) The guidance suggests that the following questions be asked and answered (assuming that the applicant is the mother):

    (a) Is the mother's application genuine in the sense that it is not motivated by some selfish desire to exclude the father from the child's life?

    (b) Is the mother's application realistically founded on practical proposals both well researched and investigated?

    (c) What would be the impact on the mother, either as the single parent or as a new wife, of a refusal of her realistic proposal?

    (d) Is the father's opposition motivated by genuine concern for the future of the child's welfare or is it driven by some ulterior motive?

    (e) What would be the extent of the detriment to him and his future relationship with the child were the application granted?

    (f) To what extent would that detriment be offset by extension of the child's relationships with the maternal family and homeland?

    (v) Since the circumstances in which such decisions have to be made vary infinitely and the judge in each case has to be free to decide whatever is in the best interests of the child, such guidance should not be applied rigidly as if it contains principles from which no departure is permitted.

    (vi) There is no legal principle, let alone some legal or evidential presumption, in favour of an application to relocate by a primary carer. The old statements which seem to favour applications to relocate made by primary carers are no more than a reflection of the reality of the human condition and the parent-child relationship.

    (vii) The hearing must not get mired in taxonomical arguments or preliminary skirmishes as to what label should be applied to the case by virtue of either the time spent with each of the parents or other aspects of the care arrangements."

    39 My attention has also been drawn to Re F [2015] EWCA Civ 882. In that decision, the paramountcy of welfare, the application of the checklist and, in relation to s.8 applications, the presumption in favour of parental involvement in a child's life is reaffirmed. These factors are referred to at para.12 of Mr. Powell's position statement.

    40 In this instance, two welfare outcomes for A are proposed: relocation to the United States with her mother, or residence in this jurisdiction with her mother with very different contact provisions for the father depending upon the location of A's home base.

    41 Whilst a balance sheet approach might be of assistance, this is not an arithmetical exercise. As emphasised by Macfarlane LJ at para.52 of Re F, the court should attribute weight to any relevant factor and, therefore, it is perfectly possible for one factor to have greater weight than two or three other factors.

    The oral evidence

    42 I turn now to the salient features of the oral evidence provided. Ms. Demery's evidence proceeded on the basis that whilst this was a finely balanced case, ultimately she was persuaded that the scales were tipped in the mother's favour. That remained her clear recommendation to me. The father's plan or proposal would, she accepted, promote a greater degree of paternal contact and separation "would be significant" for A. It would also promote a greater degree of wider family contact and it would allow A to be brought up in her country of origin familiar to her.

    43 In Ms. Demery's view, the mother's proposal would have the following advantages. Firstly, greater security and stability of accommodation and financial and emotional support for A. In this jurisdiction currently the mother has no employment. She has no accommodation of her own and her circumstances appear to be precarious.

    44 In addition, Ms. Demery said it would offer a more contented and emotionally available and capable primary care giver i.e. the mother. If the mother were to be prevented from leaving the jurisdiction, her unhappiness and frustration might impact upon her care of A and perhaps the other children as well. Her overdose/attempted suicide of December 2015, when the mother was depressed about the impending return to the United Kingdom, was an indicator of potential difficulty. However resilient the mother might be, she might have a breaking point.

    45 Ms. Demery also said the likely enforced separation of the mother from her husband, which might ensue from the refusal of permission, would deprive the mother of her greatest support and disrupt their matrimonial relationship. The mother appeared to be estranged from her own family.

    46 Moreover, unless X and Y resumed their lives within this jurisdiction, the strong inter-sibling bonds might also be detrimentally affected. This is a summary of the CAFCASS officer's evidence.

    47 Other important oral evidence emerged during the hearing. A has a loving relationship with both of her parents, but since February 2016 the relationship with her father has been enhanced by regular staying contact, offering a good platform for future contact and a relationship. Ms. Demery rejected any suggestion made by the mother that the father had no interest in A. That was, to quote the word she used, "inaccurate".

    48 For my part, the father's 'no show' for contact in the United States with A, as alleged by the mother, has to be viewed within the context of contested return proceedings. I would not infer any disinterest from this absence of direct contact in the United States.

    49 The mother's wrongful removal of the children disrupted the relationship between A and her father over seven to eight months and was potentially emotionally damaging for A. Ms. Demery accepted that. The mother's past conduct undoubtedly raised question marks over the mother's good faith and whether she could be trusted to honour future contact orders or other court ordered provisions.

    50 However, Ms. Demery was "cautiously optimistic" for the following reasons. Firstly, there had been regular contact provision both before the removal to the United States and since A's return. Secondly, the mother would be more likely to comply with court ordered contact provisions supplemented by mirror orders where she had succeeded in her relocation application.

    51 The disruption and cessation of the father's contact over seven to eight months arose in the context of a wrongful removal by the mother and as a consequence of it. A court-authorised relocation, whereby the mother was operating within rather than outside the law would be more likely to result in the mother's co-operation. Moreover, the mother appeared to recognise the importance of A's relationship with her father in Ms. Demery's interview with the mother.

    52 The concerns expressed by District Judge Sethi and the CAFCASS officer in the first relocation proceedings in the Watford County Court about the durability of the mother's relationship with the stepfather had been tested and had survived the upheaval of recent months. It appeared to be, in Ms. Demery's opinion, "a stable relationship, however inauspiciously it began". Ms. Demery expressed her concern about A's welfare if the mother received a custodial sentence within this jurisdiction.

    53 In this regard, the mother's evidence about contingency plans for A, should the eventuality of a custodial sentence arise, is of importance. At C36, para.41, the mother appears to indicate that if she were sentenced to imprisonment, A, X and Y should be cared for by their stepfather in the United States.

    54 In that regard, the mother has changed her mind. The mother confirmed in her oral evidence that potentially she could return to the United States with A next Thursday, 29th September, either as an intending immigrant (as described at C294) or under a tourist visa. The mother would return to this jurisdiction for her criminal trial at St. Alban's Crown Court in November, she having pleaded not guilty to the three counts on the indictment. However, she would return with A and, if sent to prison, A would be cared for in the interim by her father. This represented a change of heart by her.

    55 The father indicated to me in his oral evidence that if that contingency arose he would care for A on a temporary basis. He would exercise contact with A if she returned with her mother in November as indicated. He would be willing to childmind A whilst the mother was in court in St. Albans, if that were required.

    56 The mother was plainly torn when she made this concession, because she has always been preoccupied with keeping the siblings together. However, in this scenario, and despite their intersibling bonds, the circumstances of each child is very different. X and Y do not have an alternative birth parent available to care for them (absent their mother) and they are older than A and thus better able to rationalise the mother's absence, were that contingency to arise.

    57 There is an attendant complication, because the totality of the mother's plans depend upon immigration clearance being obtained by her to enter the United States. The process described at C293-4 could be complicated for "several months" if the mother were to be convicted of child abduction at her forthcoming trial. Any permission given by this court can only be implemented if the mother and A are lawfully able to enter and settle in the United States. If that were not to be the case, presumably the mother and A would stay in this jurisdiction (their country of origin) and any court permission would become redundant and inoperable.

    58 If the mother and A remain in this jurisdiction for any length of time, it is essential that arrangements are made for A's schooling in this country. She is five years of age and at compulsory school attendance age. The mother has properly addressed this obligation in the United States, but this is currently unaddressed within the United Kingdom.

    59 I turn now to the mother's evidence. On the positive side, the mother and the father can communicate directly; they have done so in order to make contact arrangements within this jurisdiction. That is a hopeful sign. The mother appeared to acknowledge the importance of the father in A's life: "He is good with her. He should have a full relationship with her". The father, when he explained his decision to withdraw his application for a child arrangements order, conceded the strength of A's bond with her mother.

    60 The mother suggested that the reason for her departure to the United States last year was, firstly, to avoid the aggravation emanating from NM in relation to X and Y, his agent for this purpose being one JT; JT being the subject of a restraining order made on 23rd June 2015 for harassment. However, probably more importantly, the motivation was because of her close relationship with the stepfather and her desire to make a fresh start and build a new life for herself and her children in the United States. I believe the mother's childhood experiences probably played a part in this regard. The mother did not wish to exclude the father from A's life; this was not her motivation. Before and after the United States interlude, she had always managed the father's contact with A.

    61 The mother's departure to the United States was not, I believe, motivated by a desire to exclude the father. The damaging impact upon the father's contact/relationship with A over seven to eight months was a by-product of the mother's impulsive and ill-considered removal of the children to the United States. The mother was careless about the consequences. She did not think things through so far as the impact upon A and others was concerned, but there was no malice towards the father.

    62 The mother was less impressive in her evidence about a suggested disinterest in A by her father, belied, I conclude, by the father's perseverance in obtaining a return order after many months of litigation.

    63 Additionally, the mother's assertion of oral consent by the father for A's departure, albeit without any written authorisation, is also unsatisfactory. Any prudent parent in the mother's circumstances in 2015, following an unsuccessful relocation application, would have obtained written authorisation from A's father in accordance with a court order, before departing from this jurisdiction. That is particularly so where NM had not provided consent for the two other children and the departure followed so soon after a court refusal of her first application.

    64 The mother believed that her husband would continue to support her, A, X and Y if permission were to be refused. However, the situation would be "difficult". The mother was appropriately tearful when she contemplated this prospect and the prospect of custody or immigration entry refusal. She wanted her children to "have the home life which I didn't have growing up".

    65 The mother would, however, do her best to make it work if permission were refused, but she appeared to be daunted by the prospect. Her overdose of Tylenol in December 2015, which is the subject of a medical report at C289, was accompanied by a suicide note. The only obvious support for the mother in this jurisdiction was offered by her former foster carer; that was the mother's evidence to me.

    66 The mother indicated that she and the stepfather had liabilities of approximately $150,000 arising from the litigation here and in the United States, mainly accumulated on credit cards. Whilst the stepfather's salary is significant ($200,000 per annum was mentioned by the mother and $150,000 gross annual salary was confirmed by the stepfather himself) there are liquidity problems which can only be overcome if the stepfather can concentrate once more on his work and on his livelihood. In the current circumstances, financial support for the father's contact would be limited. I was told that the stepfather is currently financing two households in the United States and in this jurisdiction.

    67 The father in his evidence confirmed to me his greatest apprehension, namely that if A moved to the United States with her mother the infrequency of his contact would detrimentally affect the quality of their relationship: "In this country I can be a full-time father with consistent contact". He accepted there had been a discussion with the mother after the first relocation proceedings last year about the mother moving to the United States with A temporarily for four months. However, he did not agree or give his consent to any permanent move by the mother, there was a court order which prevented removal from this jurisdiction and he did not provide any informal verbal consent.

    68 For the first three weeks after the mother's departure to the United States, the father had no idea of A's whereabouts, nor the mother's. He was informed by the mother's brother, by a friend of hers and by her former foster carer that the mother was on holiday in Devon. Whether there was any collusion by these individuals or whether they were equally ignorant of the mother's precise whereabouts, I simply cannot say.

    69 When asked to consider possible contact arrangements if A moved to the United States, the father indicated a preference for regular direct contact throughout the year, rather than one single long summer block of contact as outlined by Ms. Demery.

    70 The father accepted that he had a surplus of income over expenditure, despite loans of £24,000 to the family for the costs of these proceedings. A fund of diverted notional maintenance payments could be accumulated to assist with the costs of air travel and accommodation in the United States. He indicated that two visits for two weeks duration each was a possibility and he would take a holiday in the United States with A. If the mother brought A over with her on an annual visit to the United Kingdom, he would wish to have contact with A for seven to 14 days also on those occasions.

    71 A's stepfather provided brief evidence by video-link from the United States. I particularly noted the mother's reaction when she saw him on the screen. Her face lit up with joy, which appeared to be entirely spontaneous and genuine. It appeared to me extremely unlikely that A's stepfather would relocate to this jurisdiction. His reasons centred on his employment and his own family commitments. The stepfather, however, confirmed A's love for her birth father, which appeared to be fully reciprocated, and he recognised the importance of contact for the birth father and assured me in terms that he would do his upmost to facilitate and secure this contact for A's birth father.

    The outcomes advanced

    72 The father opposes the mother's application because of its impact upon his contact with his daughter and their long-term relationship. Additionally, the mother's conduct by her contravention of court orders and removal to the United States calls into question her future compliance with court ordered or agreed provisions for A, in particular relating to contact. A will be far more settled if she remained in this jurisdiction, her country of origin, with access to both parents and her wider family.

    73 The issues advanced in this case had been raised previously by the mother last year and rejected. The mother was being afforded a rehearing because of her own misconduct, where the circumstances were unchanged.

    74 It is not, in my view, accurate to say that these circumstances are unchanged. There is the fact of the mother's marriage, that permission has been given for X and Y's relocation, that the mother's current application is opposed by one father and not two, and Y's paternity is no longer in issue.

    75 The mother urged me to accept the CAFCASS officer's recommendation and not to depart from it. A's welfare, when weighed in the balance, led to the proposed relocation. In the United States, A could experience a family life with her half-siblings in more settled circumstances and with a mother emotionally fulfilled and contented in her married relationship with the stepfather, which was now her focus.

    76 In this jurisdiction, the mother's circumstances would be much less secure, the intersibling relationship might be jeopardised and the mother's parental capacity might be affected by her extreme unhappiness and distress at being stranded in this country without the presence of her husband at her side. The incident in December 2015 was a sobering indicator of what might occur.

    77 If the mother and child relationship were to be detrimentally impacted by the mother's despair or depression, that would not be in A's best interests, since it was acknowledged by the father himself that A's relationship with her mother was pivotal, hence his withdrawal of the child arrangements order application.

    Conclusion

    78 Relocation decisions are always difficult for the court, because a child cannot be divided into two and the Judgment of Solomon is not possible. One parent or other inevitably is distressed at the outcome, where both parents love their child very much and both want to share the experience of seeing their child grow into adulthood; that is perfectly natural.

    79 Usually the plans of the relocating parent are well-reasoned and researched. If not, those applications are usually rejected. The opposition to the move is also usually genuine and honest, because the opposing parent's contact, in terms of quantum and frequency, is usually affected. Sometimes a trip to Disneyland by a parent and child is just not the same as spending a quiet night at home watching a DVD at the weekend. Inevitably, therefore, the decision will cause upset and severe disappointment either way.

    80 I have referred already to the paramountcy of welfare and to s.1(2A) of the Children Act 1989. I now turn to the factors in s.1(3) of the Children Act.

    81 A, as a girl of five years of age, is far too young for her wishes and feelings to prevail. Although both parents have made reference to alleged remarks by A indicating her preference either to stay here or to go to the United States, in reality A cannot herself appreciate the ramifications and the potential consequences of this big decision for her.

    82 A's educational needs can be met both in the United States, as proposed by the mother, and in this jurisdiction within the state maintained sector if A were to be enrolled at any local school here.

    83 A's basic physical needs would be met in the United Kingdom or the United States whilst in her mother's care. However, A's standard of living would be materially enhanced in the United States; that appears to be the inescapable conclusion from the documentary information provided.

    84 A's emotional needs are met by her mother as her primary care provider, which is acknowledged by the father. A has an important emotional need to retain contact with the father as the non-residential parent and this is the main casualty of the proposed move. A has important intersibling bonds with her half-sisters. The sibling relationship is usually the longest lasting. There are extended family links as well within the United Kingdom. All have their place as part of A's overall emotional needs.

    85 The domestic jurisdiction is familiar to A. However, A would be able to adapt to life in the United States with her mother, half-siblings and stepfather, which she has experienced already.

    86 The primary effect of her change of circumstances caused by a move to the United States would be her reduction in contact with her birth father.

    87 There is no evidence that A has suffered "harm" as defined by s.31(9) of the Children Act 1989. She was potentially at risk of harm if her removal to the United States had not been brought to a conclusion within seven to eight months, because an uncertain life 'on the run' from the authorities without any contact with her birth father had the potential for longer term emotional damage for A.

    88 The mother and father are perfectly capable of meeting A's needs. The concerns about the mother relate to her reaction (whether immediate or medium or longer term) to being kept in this jurisdiction contrary to her wishes and without her husband being with her, and perhaps without her older children being with her as well. If she is detrimentally affected then A is likely to be detrimentally affected also.

    89 I turn to the other guidance referred to in the case law. I do so in no particular order. The mother's application to relocate is realistically funded on practical proposals researched and investigated. Accommodation, schooling and healthcare are all properly identified.

    90 The mother's application before me is genuinely motivated by her perfectly natural desire to be in the United States with her American husband and two of her children who are currently there, to be joined by the youngest child. The application is not motivated by a desire currently to exclude the father. Indeed, historically, when she wrongfully moved A last year, this was not the mother's guiding motivation, but rather a consequence of that decision.

    91 The father's opposition is properly motivated by a genuine concern for A's welfare and, in particular, his contact with her. It is not driven by any desire to control the mother or to damage her new relationship with her husband.

    92 The impact upon the mother of a refusal might be very significant. She would be extremely unhappy and X and Y's reaction would probably compound her distress. The mother might regain her equilibrium and come through, but equally she might not. Her whole family life would be disrupted. The years ahead in this country could well be very difficult and, in this way, A might suffer also.

    93 The loss of regular contact with the father could well impact upon the quality of his future relationship with his daughter. That regular contact, when compared with less frequent block contact, is of course very different. I do not wish to minimise this loss for the father and I understand he might well be aggrieved after the events of last year, following the first decision by District Judge Sethi.

    94 A's relationship with her mother, stepfather and half-siblings in the United States would be enhanced by A's move there and the important intersibling and maternal links are likely to be enhanced.

    95 On balance, A's welfare leads me to conclude that the mother's application should be granted. A's circumstances in the United States are more likely to provide a secure and stable upbringing in the domestic environment proposed there by her mother, when compared to the alternative for the mother in this jurisdiction. Accordingly, in these circumstances, the best option is also the most proportionate outcome.

    96 I intend to make provision for the birth father's direct and indirect contact. I do not pretend that this will be a substitute for the current arrangements, but they do provide for his continued involvement in A's future life. I accept the mother and the stepfather's solemn assurances given in this court that they will facilitate the birth father's contact, recognising its importance. I conclude that the mother and the stepfather, operating within the parameters of the law, have no justification for withholding the father's contact as they did when they operated outside the parameters of the law last year.

    97 If A has a stable and secure upbringing, she is likely to be grounded as an individual as she develops into adolescence and adulthood. As she grows in maturity, so will her understanding of her circumstances increase and her contact provision with her father will require modification.

    98 Despite the past difficulties, both of these parents have an endearing side and both were motivated by their daughter's wellbeing. They plainly love her very much. They were able to communicate with each other in arranging contact and there are grounds for future optimism, as the events of recent months hopefully fade into the background.


Judgment, published: 02/12/2016

Topics


Published: 02/12/2016

Copyright 

Copyright in the original legal material published on the Family Law Hub is vested in Mills & Reeve LLP (as per date of publication shown on screen) unless indicated otherwise.

Disclaimer

The Family Law Hub website relates to the legal position in England Wales and all of the material within it has been prepared with the aim of providing key information only and does not constitute legal advice in relation to any particular situation. While Mills & Reeve LLP aims to ensure that the information is correct at the date on which it is added to the website, the legal position can change frequently, and content will not always be updated following any relevant changes. You therefore acknowledge and agree that Mills & Reeve LLP and its members and employees accept no liability whatsoever in contract, tort or otherwise for any loss or damage caused by or arising directly or indirectly in connection with any use or reliance on the contents of our website except to the extent that such liability cannot be excluded by law.

Bookmark this item