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Cite as: [2017] EWFC B2

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Case No: OX16P00224

IN THE FAMILY COURT
SITTING AT OXFORD

19th January 2017

B e f o r e :

HER HONOUR JUDGE OWENS
____________________

Between:

SNM

- and -


TNM

____________________


Ms Campbell, Counsel for the Applicant
SNM Ms Renton, Counsel for the Respondent TNM

Hearing dates: 16th to 18th January 2017

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    Her Honour Judge Owens:

    Introduction

  1. I am dealing with proceedings under the Children Act 1989 concerning two children, S aged 7 years old and N aged 10 years old. The applicant is their mother, SNM, and the respondent is their father TNM. The applicant seeks permission to permanently remove the children from this jurisdiction to Canada. The respondent opposes the application and wants the children to remain in Oxford.
  2. I have read the Bundle prepared for this hearing, as well as hearing from the parties and the Family Court Adviser and author of the section 7 reports in this matter, Charley Hampshire. Both parties have filed detailed statements contained in section C of the bundle. I also have a considerable quantity of documentary exhibits from each, contained in a supplemental bundle which actually exceeds the number of pages in the main bundle. In passing I would note that nowhere can I see that either party sought leave to exceed the normal maximum number of pages In accordance with Practice Direction 27A or the number of pages in the supplemental bundle itself exceeds this maximum of 350 pages. I have pointed this out to both advocates who believed that the fact that there was supplemental bundle avoided the need for there to be such a direction. To my mind this is not what PD 27A envisages which talks about a bundle as a single entity. Whether it is in a supplemental bundle or not I have still had to read a considerable quantity of documents in preparation for this case. The better practice would be for advocates to address their minds to the overall quantity of documentation in any given case and consider whether they need to apply to the Court for permission to have a bundle in excess of the norm in advance. That in turn would enable adequate reading time to be allowed in preparation for the hearing. Suffice it to say, I have carefully read all of the documentation despite these issues.
  3. Background

  4. The parents and their children are not UK citizens. TNM is 42 and was born in Germany. He is an academic and works at Oxford University. SNM is 41 and was born in Canada. She works as a consultant for chemical industries. The parents met in France in 1995 whilst travelling and they married in 1999 in Canada. After their marriage the parties lived in Germany, then USA and Switzerland. Both children were bom in the USA and have American, German and Canadian citizenship. They moved to Oxford in 2013 when TNM was appointed to a job at Oxford University. This job is permanent but has a five year probationary period from September 2013. Around December 2013 and January 2014 the parties separated with TNM leaving the family home in May 2014. TNM moved to a 1 bedroom flat but is due to move to a 2 bedroom flat this month.
  5. SNM made this application on 10th May 2016 and this has been the final hearing. Ms Hampshire attended the first day of the final hearing and gave evidence which confirmed her recommendations in her reports, namely that the application should be granted.
  6. Relevant legal considerations

  7. In addition to section 1 of the Children Act and the welfare checklist contained therein, I have also had regard to the case law regarding these sorts of applications. Counsel for both parties very helpfully provided case summaries in their position statements in addition. Both parties accept the law as it currently generally stands in relation to these sorts of cases, albeit neither had referred to the most recent case of Re C which I detail below. I have also considered the provisions of Practice Direction 16A in terms of the duties of a Cafcass Children and Family Report and specifically paragraph 9.2. The case of Re S (A Child) 2016 EWCA Civ 495 is also one that I have taken into account in relation to this aspect of Ms Renton's submissions about the Cafcass report in this case.
  8. The line of authorities in fact started with Poel v. Poel [1970] 1 WLR 1469 and moved on to Payne v. Payne [2001] 1 FLR 1052, establishing a test to be applied in relocation cases. This test has been clarified and refined in subsequent cases, including K v K [2011] EWCA Civ 793 and Re F (International Relocation Cases) [2015] EWCA Civ 882. The most recent authority is Re C (Internal Relocation) [2015] EWCA Civ 1305 which sets out the principles to be applied to all relocation cases, whether internal or external.
  9. The governing principles to be applied to these sorts of applications are:
  10. 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) A Judge is likely to find helpful some or all of the considerations referred to in Payne v Payne; but not as a prescriptive blueprint; rather and merely as a checklist of the sort of factors which will or may be need to be weighed in the balance when determining which decision would better serve the welfare of the child.

    iii) As a result, there are some considerations which may be helpful when considering relocation cases as follows:

    Findings

  11. I have been provided with a detailed chronology of the various family moves from which it is apparent that this family have moved frequently and over considerable distances around the world. N has lived in three countries and seven different houses. S has lived in two countries and four different houses. It is also apparent from the evidence before me that the children have extended family in Europe and Canada and have travelled internationally on a regular basis, both to visit family and also for family holidays. It is equally apparent that both parents in this case love the children deeply and that the children love their parents.
  12. I have approached my findings by considering them in relation to the welfare checklist as follows:
  13. (a) the ascertainable wishes and feelings of the child concerned (considered in the light of their age and understanding); N and S conveyed their wishes and feelings primarily through the section 7 reports written by Ms Hampshire. I have also had some limited evidence from each of the parents about what the children have said to them but I am mindful of the fact that there are a variety of factors which may lead to these comments being less reliable than those made to a Cafcass officer, including a desire not to upset a parent or get drawn into any dispute.

    N and S met Ms Hampshire officer at the Cafcass offices in Oxford in July last year. In passing, I have noted that Ms Hampshire told me that both parents brought the children to these appointments, something which is very positive in terms of the parents' ability to work together in the best interests of the children.

    S's views are captured on pages D15-16 of the first Cafcass report. Ms Hampshire noted that S did not appear to be especially troubled by anything. She encouraged S to complete a "3 Islands" Cafcass wishes and feelings exercise. This elicited the information from S that she enjoys spending time with both parents, she liked spending time with her father each week and that she knew that her mother wanted to go home. S told Ms Hampshire that she did not want to leave Oxford "because she would miss all her friends and would need to have to fly on a plane to see Dad. She said if she did have to go and live in Canada she would be 'so angry and really sad'". Ms Hampshire also noted that she "seemed somewhat suspicious of SD, but did not express any further opinion".

    N's views are on pages D17-18. What is noteworthy about this is that N is recorded by Ms Hampshire to be "notably quieter and more reserved than his sister". Ms Hampshire states that she "was given the impression that N was significantly more aware of the conflict between his parents than his sister and appeared to be internalising his worries about this". Ms Hampshire's opinion was that N was very loyal to both of his parents and is afraid that he will have to choose between them. In light of this, I find that N's avoidance of discussing his home life, Canada or SD is entirely understandable and does not necessarily mean that he has concerns about the possible move. It is in keeping with a child who does not want to be placed in a position of seeming to indicate a view one way or the other. S, being slightly younger and apparently less affected by the issues between her parents, was therefore less guarded in expressing her views.

    Ms Hampshire noted that both children are doing very well at school. In her opinion the absence of any identified problems at school is a strong positive indicator that S in particular has not been significantly detrimentally affected by the conflict between her parents. I would agree with this assessment. In my experience, this absence does indicate that the impact upon the children has not been as great as I have seen in other cases and their wishes and feelings are in this context.

    SNM gave me evidence to the effect that the children had met SD several times over the past year and got on well with him and his children. Apart from what TNM has alleged about SD's conduct in relation to N, and for which there is no other evidence of concerns expressed by N including during the course of the MASH assessment, there is nothing credible before me to support TNM's concerns. Probably for these reasons, DJ Vincent (as she then was), refused to allow for there to be any element of fact-finding in relation to this. I agree with this approach as the allegation was vague and entirely unsubstantiated. The evidence from SNM about the children getting on well with SD is credible. I was also struck by TNM's own evidence about SD calling out to N about what topping he would like on his pizza during a phone call between N and his father. This small snapshot suggests a relaxed relationship between SD and the children which also fits with what SNM described as a good relationship. It is credible that as SNM told me the relationship is a positive one which has developed in the course of several meetings and holidays over the past twelve months. S's suspicion about SD which the Cafcass officer noted (albeit did not think that it was a significant concern) is therefore very likely to have been whilst her knowledge of SD was developing.

    Overall, I find that I must give less weight to the limited negativity expressed by S. This is in view of her age and more limited understanding of the wider issues involved. In terms of N, his wishes and feelings are less clearly recorded because of his marked and understandable reluctance to be drawn into seeming to choose one parent over another.

    (b) their physical, emotional and educational needs; there is no credible suggestion from either party that they cannot meet the children's physical needs. SNM did say that she was worried about TNM's ability to organise their bathing, food and clothes for school and, as she had put in her statement, said that she used to leave notes up everywhere to remind him as a result. However, there does not appear to have been an issue since TNM has had the care of the children for periods of contact under the terms of the order made on 30th September 2016. TNM accepted that SNM did used to leave notes for him to assist with basic tasks. It seems to me to have been rather more a case of SNM reassuring herself that TNM was reminded rather than this being a necessity to ensure that the children's basic physical needs were met. SNM herself is proposing that the children can have lengthy periods of staying contact with their father if her application is granted. It is therefore apparent to me that SNM doesn't really believe that TNM would be incapable of providing for their basic physical needs.

    In terms of educational needs the two options before me are either that they continue schooling in Oxford or are schooled in Canada. If they remain in Oxford neither party takes issue with the quality of the schooling that they are receiving and would receive. In relation to schooling in Canada, TNM also does not take issue with the quality of the schooling that is proposed. He takes issue with the schooling proposals in one particular area, however, which is the bilingual nature of Canadian education. Both parties accept that Canada is a bilingual country where the two languages in question are English and French. The school which is proposed by SNM for both children is one which is described by the school itself as an English school. SNM gave details about the particular school and the school board that it is part of in her statement at C15-16. At C187 I have a print-out of the school board website details. This confirms that the school is an English school. I also have details about the primary school she proposes at pages C150-185. At C149 SNM has produced a letter from the primary school confirming that the children have been registered. SNM produced the required certificates of eligibility to attend English school in Quebec at court.

    There are also French schools in the area, SNM told me, but she has selected an English school as this means that the majority of lessons will be in English with only some lessons in French. TNM's case is that the children do not currently speak or understand enough French to be comfortable being taught in French and that this in turn risks them falling behind with their schooling. He does agree that it will benefit the children to learn another language. He also accepts that the International Baccalaureate programme which the children would potentially follow if permitted to go to Canada "is not so dissimilar to the English system as at present the children are predominantly continuously assessed" (C312).

    I am satisfied from SNM's evidence that the majority of any schooling that the children would receive at their proposed school in Canada would be in English. She was clear that only some lessons would be in French, mentioning PE as an example, and this would be on an occasional basis so that one week they may have a PE lesson in English and the next week it may be in French. I asked her about what discussions she had had with the school about the support that may be available for N and S to help them with lessons in French and generally learning French. She told me that there would be individual support available for them in the lesson, they would have extra classes and she would arrange a French tutor for them. She also speaks French and would benefit from an opportunity to sit with the tutor, she told me, but once she is back in Canada she said that it all comes back. In addition, SD and his children and her wider family and friends speak French as well as English.

    Whilst it seems to me that there will be an adjustment period for these children in relation to being taught occasionally in French, they are very bright children who already speak English and German. They have already started French lessons at school here in Oxford. They will, I find, have ample support to enable them to rapidly understand enough to follow their lessons in French. Canada is a bilingual country where English will be spoken as well as French so this is not a case where the children would be moving to a country where only French will be spoken. I do not find that there is a risk that they will fall behind with their schooling as a result of making this adjustment given all of the factors listed above including the support that will very clearly be in place.

    The children's emotional needs is a very significant part of this case in respect of both parties' cases. In a nutshell, SNM argues that she is isolated, anxious and stressed living in Oxford without her friends and family to support her. She says that this will worsen if her application to go to Canada is refused and this carries a very real risk of her being unable to meet the needs of the children as a result. TNM says that he has a very close and loving bond with the children (and they with him) and they would suffer emotionally if they were not able to see him every week as they do now. He also said in evidence to me that the impact upon him of his not being able to see them as frequently as he does now also needed to be considered.

    In relation to SNM, it is not disputed that she has suffered from mental health issues in the past and does so up to date. She produced evidence from her GP to confirm that she has sought help for anxiety and depression in November last year and is currently prescribed an anti-depressant which she is taking. She has also sought counselling and has had two sessions of that counselling so far. From what she told me and the documentation she has produced in relation to this private counselling, it also seems to contain an element of cognitive behavioural therapy. TNM does not deny any of this. His case is that this is normal for SNM and not particularly related to where she lives and her living circumstances, and is also probably due to the stress of lack of finality in the proceedings.

    SNM's statement and evidence to me presents a picture of someone who was not happy in her marriage for some considerable time. At the very least her perception seems to have been that her partner worked a lot and that left a lot of the routine day to day caring tasks for the children to her. She was also working at least part-time at various points in their marriage. And, of course, the couple moved country four times and house six times during their marriage. All of this no doubt imposed strain on both parties. After separation it seems clear to me that SNM's anxieties and depression did not dramatically improve. On TNM's own evidence, she had at least one very distressing episode when it appears that SNM felt low enough to talk about suicide and he has acknowledged that he has been concerned about her mental health at other times. SNM described herself as regularly becoming emotional about the situation that she found herself in at C8 in her statement, and at this point she also says that she sought help from her GP and was prescribed medication. It seems that she continued to take the medication until March 2016 when she stopped. She says that she is no longer depressed but I did find it significant that the GP's letter confirming her seeking advice in November 2016 referred to her presenting with symptoms of depression as well as anxiety. That same letter also confirmed what SNM told me about having to take medication again since November and which she is still taking. SNM came across to me as a person who has thought very hard about her issues with stress and anxiety and is genuinely trying to get help in resolving them. As she said to me, she does not want to be the sort of mother who is low and quiet around her children and who has to try to cry in secret.

    I was also struck by what Ms Hampshire said about her view of SNM in relation to mental health. Ms Hampshire (who is an experienced Cafcass officer and Guardian) was sufficiently concerned about this aspect to use the Cafcass Adult wellbeing toolkit in her interview with SNM. As Ms Hampshire told me and is in her report at D13, she is not medically qualified and this is not in any way a means to a diagnosis. However, as Ms Hampshire said it is a recognised tool for medical and non-medical professionals (including NHS staff) to use to quickly assess whether or not there may be an issue in relation to an adult's mental health. The conclusion which Ms Hampshire reached in July last year was that SNM's scores indicated that "she may still be experiencing problematic difficulties with anxiety and depression, which would suggest that her mental health remains very fragile" (D13). The letter from the GP and the evidence from SNM of her needing ongoing counselling and medication support this conclusion, I find.

    TNM was also very vocal in his evidence about his concern that he did not think that Ms Hampshire had conducted a fair assessment in this case because she did not take the impact upon him if the children were to relocate into account. Nowhere in his statement or in his evidence has he raised the same sort of ongoing mental health issues that SNM has raised. I have absolutely no doubt that he would be devastated emotionally if he were no longer to be able to see N and S as frequently. The question is whether that is something which would in turn potentially have a lasting and damaging impact upon the children as a result of his emotional devastation. I have no such evidence before me in this case.

    SNM, in contrast, has a very real fragility around her mental health. I am satisfied on the evidence before me that it is not simply the case that SNM has had historic mental health difficulties unrelated to the issue of whether or not she lives in Canada. In terms of the chronology of when she has experienced difficulties in the past before moving to Oxford, it does seem to coincide with difficulties in their relationship or with her having moved to a new area such as the move to Princeton and then the move to Zurich.

    The fact that TNM seems to have had less understanding than her of how unhappy she was at these times is not necessarily a criticism of him and may be more to do with the gradual disintegration of their relationship, I suspect. That being said, I was surprised by his vehemence in evidence to me that, although accepting SNM would be "crushed" by a refusal of her application, she would "get over it" and that it was not fair because the impact upon him should be taken into account. I came to the conclusion that he simply cannot understand how isolated and unhappy SNM feels herself to be in Oxford. He genuinely seemed perplexed at the suggestion that SNM lacked adequate support in Oxford, saying that she had friends through parents of children at school, access to professional support and support from him. I think it is a stark illustration of the difference between their individual perceptions. His perception of her reality is, of course, not necessarily the same as hers and both may be very genuine in what they say to me about their perceptions as a result. However, looking at the actual evidence before me it does seem clear to me that SNM does not have a large support network here in Oxford and probably would not count TNM as a support for her, even though he may be able to help with the children. Similarly, her support from friends does appear to be limited to help with the children rather than people in whom she can confide about her personal difficulties.

    In contrast, in Canada she has her cousin M and five other cousins and family friends, as well as her fiance SD. M lives in the same neighbourhood as SD and therefore in the vicinity of where SNM proposes living. M also has young children whom N and S have met and with whom they get on well. SNM has other cousins who live in Montreal and so in the wider area in which she proposes living. TNM made much of the fact that SNM had provided no names for these other cousins but doesn't dispute that she does have such cousins. It therefore matters little whether or not I have their names, I find. TNM also sought to rely on the fact that SNM said that she lost touch with her Canadian family after the unexpected death of her father in 2009. I am not sure that this makes much difference to the case as things stand currently since SNM has given credible evidence to the effect that she reconnected with her family after TNM moved out in May 2014 (C3). She is now in regular communication with them and this is not in dispute (C4). SNM has also provided evidence about various family friends and friends of hers from her childhood who live in Canada and with whom she is still in touch (Cl5). I find that she would have a good support network for her and the children in Canada and lacks this in Oxford.

    It is also argued by TNM that SIMM's desire to relocate to Canada is something that has arisen quickly and is primarily driven by her relationship with SD. I can see how he may think this if she has not discussed it fully with him before, but looking at the evidence before me it does seem to me that her desire to relocate to Canada is one that pre-dates her relationship with SD. She said in her statement at C6 para 28 and CIO para 46 that she began to think about this after their separation in 2014 and more seriously in September 2015. She does not appear to have discussed this with TNM in any detail on her own evidence. I find this may explain his apparent shock at her plans and his belief that this proposal is not as a result of a long-standing desire. In any event, TNM does seem to have been aware at the end of 2014 that SNM was deeply unhappy in Oxford and that she wished to relocate because he accepts that there were discussions about her possibly moving to Switzerland (a country where the family lived between December 2009 and August 2013).

    SNM also said in her statement and in evidence to me that her plans to relocate to Canada are not driven primarily by her relationship with SD. It is not disputed that SD is someone with whom she had a relationship for some years starting when she was 14 years old. It is also not disputed that SNM and SD remained in contact as friends for two years after the end of their relationship. It is also not disputed that TNM has met SD and on occasion been out with him in Montreal when TNM visited Canada in the 1990s. TNM does dispute the precise number of years of the teenage relationship and the extent to which SNM and SD have been in contact with each other since they reconnected in January 2016. I am not sure how he would know one way or the other, frankly. He does accept that there have been visits between SD and SNM and the children, both in Oxford and in Canada. SNM accepted that she had had a short relationship with a man from South Africa at the end of 2015/beginning of 2016 as SNM told me. That does not, of course, preclude the possibility of SNM reconnecting with SD as she says she did in January 2016. On balance, I am persuaded that SNM does indeed view the relationship with SD as a permanent one (they are engaged to be married) and that this was something which post-dates her desire to move to Canada. As she herself told me, the relationship with SD is "the cherry on the cake". I also find that SNM's desire to relocate to Canada is not driven in any sense by an intention to frustrate contact between the children and their father.

    Ms Hampshire noted some concerns in her report about the long-term stability of the re-kindled relationship between SNM and SD. Of course, as Ms Hampshire herself told me in evidence, her reports were written in July and September and we are now in January. Ms Hampshire noted in her first report that despite these concerns SNM "would have the benefit of a readily- established network of friends and family in Quebec who would be able to provide support to her and the children, even if the relationship with SD does not work out as she would hope" (D20). I agree with this assessment and, whilst accepting that there is a risk that her relationship with SD may not work out, note that this is not a wholly new relationship as SNM has (in her words) "reconnected" with someone she knew for several years. The couple have also had around 12 months to consider their plans at this point. It is also difficult to see how much testing there could be of the relationship whilst they live in two countries separated by a considerable distance. As Ms Hampshire told me, there is always an element of risk in bringing together any blended family.

    She also pointed out that nothing in life was without risk and, whilst it may well be that SNM has a rose-tinted perspective of her future life with SD, she does also have a sound contingency plan if things do not work out. Ms Hampshire was therefore not worried about this so as to lead to her changing her recommendation.

    I find that SNM has carefully thought through her contingency plans should the relationship with SD not work out. SNM will have her own savings in the region of 70,000 as she told me that her legal costs for these proceedings will be met by her share of the monies held in a joint account. This was not challenged. From those savings she will clearly be able to fund her own accommodation if she is no longer able to live with SD as she plans and while she seeks employment.

    I have unchallenged evidence in the supplemental bundle and in her statement about the costs of living being lower in Canada and likely housing costs if she were to have to fund her own accommodation (Cl8-19). Whilst she does not plan to work immediately on her arrival in Canada as she wants to ensure that the children are properly settled first, she does have sufficient savings to afford this plan. She then plans to get work fairly quickly. TNM accepted in evidence to me that she has never had a problem finding employment given her qualifications and is unlikely to have a problem in Canada. I find that she has provided detailed evidence about her plans to support herself and the children both practically and financially both in the short and long term if her application were to be granted. TNM did point out that she does not have a job currently lined up. SNM herself told me that she was unable to do this without a clear timetable for her move. I accept this aspect of her evidence and, given that it is undisputed that she will find employment readily, I find that it would not be reasonable or necessary for her to have a job lined up at this point to support her application. In any event, she has also given evidence that she has made preliminary enquiries of prospective employers and agencies and has the potential to work for friends as well.

    In light of my findings above I therefore find that SNM actually has a greater likelihood of being able to meet the needs of the children if this application were to be granted than if it were to be refused.

    (c) the likely effect on them of any change in their circumstances; In relation to this heading, there are several potential and some inevitable changes that these children will experience. Inevitably their parents separating has led to a change in the way they spend time with their parents. Whatever order I make in this case, their parents no longer live together as a couple and hence it is not going to be practicable for the children to see each parent every day.

    SNM has given me evidence to the effect that the house she is currently renting is to be sold and therefore she cannot live in it beyond the end of this month. She said that she can move in with a friend after that but otherwise would have to find other accommodation if she were to stay in Oxford. Therefore whether she remains in Oxford or moves to Canada the children will be moving to a new home. TNM did say that there was no proof that the house was sold but this point was not actually put to SNM in cross- examination and in any event the general fact that she will have to move at some point doesn't seem to be in dispute. SNM has produced an email from her landlord dated 6th June 2016 indicating their intent to give her notice and sell the property and also saying that they require the property for their own use as soon as possible (C46). TNM is also due to move soon, telling me that he will be moving to a two bedroom flat in the city centre. N has lived in 7 previous homes and both of his parents moving therefore means that he will have at least 9 changes of residence in his comparatively short life.

    Potentially, if I allow the application, the children will also move to Canada, live in a new home with SNM's fiance (and sometimes his children who have a shared care arrangement with SD's ex-partner), start school in Canada and begin to learn French as bilingual Canadian citizens. They will also potentially see their father face to face much, much less than they do now.

    The key issue here is the likely impact of these changes upon the children. Moving house as they must regardless of the outcome of this application is not something that a Court order could address.

    N's evidence to Cafcass is very telling that his perception is that he now sees more of his father, I find. This does support a conclusion that their perception was one of not seeing their father as the person who dealt with the majority of day to day tasks and that these were mainly covered by SNM. However, the actual amount of time that each parent spends or spent with the children is not terribly significant, I find. I do agree with TNM that the notion of a primary carer is perhaps simplistic and not a reflection of the way in which modem couples parent their children. The only significant issue for me in a case such as this is what the children experience and need by way of time with their parents.

    For these particular children, the evidence from Ms Hampshire and from the parties leads me to conclude that the children have a view of their mother as the one who has dealt with their day to day basic care tasks. Their father has been there for adventure and fun activities. Despite this or perhaps because of it, they value their relationships with both parents and clearly want to spend time with both of them. They clearly experience quality time with each parent regardless of the actual amount of time that is involved.

    Ms Hampshire does not recommend a shared care arrangement if the application to relocate is refused. She told me that she did not recommend shared care in the majority of cases as children normally require stability and certainty. Ms Renton submitted that there is no evidence to support this stance. However, Ms Hampshire did tell me that research supports the conclusion that shared care arrangements are often not in the best interests of children. I have taken her evidence in the context of the fact that, as a Cafcass officer, she will only have become involved in the relatively small proportion of children whose separated parents have to come to court and where there is a welfare issue requiring Cafcass input. In addition, I am mindful of my own experience that shared care arrangements do require parents and the children concerned to be able to work together and communicate effectively. Viewed from this perspective it is perhaps less surprising that she rarely recommends shared care arrangements. What is no longer in dispute in any case in the Family Court is that children need stability since lack of stability can create profound uncertainty for them. In any event, I have looked at the needs of these particular children in light of the evidence of this case. Sadly, it is clear to me that their parents cannot effectively communicate with each other. There are numerous examples in the evidence from both of them to support this conclusion. In addition, the children's own perception is that of living with their mother and spending time with their father. If the application to re-locate is refused, I find that it would not be in the children's best interests for there to be a change to either an equal split of time spent with each parent or some other form of shared care arrangement. Consequently I find that they need an arrangement whereby they live with their mother but spend time with their father regardless of where they are living.

    The key question for me under this welfare checklist heading is whether their close and loving bond with their father would be adversely affected by their relocation to Canada. I find that it would not be. They are children who already have an established and close bond with him. They are also well-used to seeing him for less time overall than they spend with their mother and this has not caused that bond to weaken. They are extremely adept at using alternative methods of indirect contact such as skype and WhatsApp, I find. This was noted by Ms Hampshire both in her report at D19 and also in her oral evidence to me. One other aspect of this is that TNM must therefore also be similarly adept at using such methods of communication in order for this to work so well for N and S. Many parents that I deal with struggle to master such things so it is greatly to his credit that he is able to communicate with them in a way that many of N and S's generation take entirely for granted. I have looked in more detail at what is proposed by way of contact should the application be granted under the welfare checklist heading risk of harm below.

    (d) age, sex, background and any characteristics of the children which the court considers relevant; N and S are aged 10 and 7 years old respectively. They have German, Canadian and American citizenship. They speak English and German. Their paternal and maternal heritage includes Greek and Norwegian ancestry. By all accounts they are extremely bright and delightful children.

    TNM has raised a concern about their emotional or psychological vulnerability. It is not disputed that N was referred to PCAMHS and S presented with soiling and wetting at the time of the parties' separation. This was noted by Ms Hampshire who commented in her first report "From the parents' accounts, signs of N becoming upset and unsettled and S presenting with wetting and soiling would appear to have been directly linked to the children's experience of their parents' separation, which would indicate that however much their father worked away, the children's sense of their world at the time involved viewing their parents together as a unit, which is why they would have been likely to have found the separation destabilising"(D12).

    Ms Hampshire did not identify any ongoing concern about the children's emotional welfare and there is very positive evidence from the school that neither child is showing any concerning presentation there. She did note that she had "no doubt that the children will be upset and disappointed if they were to leave there current school and friends behind, but they are young, sociable and resilient enough to quickly settle in a new area, even where there may be differences in culture and language.. .just as they did when they relocated from Zurich three years previously." (D19). In light of her assessment and the absence of ongoing issues, I find that there is no continuing emotional vulnerability which would suggest that allowing the move would adversely affect their wellbeing to such an extent as to cause them long-term harm.

    (e) any harm which they have suffered or are at risk of suffering; In light of my findings above, the issue of the impact upon SNM of refusal and the consequent risks that this may pose to the children is one that I find I do have to give careful consideration. I am satisfied on SNM's evidence, that of Cafcass, and from TNM in particular about SNM's suicidal outburst and previous emotional outburst about moving to live in Canada, that SNM has long-standing mental health issues which are significantly exacerbated by her being isolated and lonely in Oxford. The evidence which SNM has produced about the reasons for losing her employment in May 2016 is also something which adds weight to her case. At C43 she has provided the letter she received from her former employer which sets out that she was dismissed due to concerns about the quality of her work. She said in her statement at C17 that the quality of her work suffered due to feeling very isolated since coming to Oxford and the strain of communicating and working with TNM since their separation. TNM does not accept that this was the case in his statement at C315. Given that there is a letter from her former employer setting out that she was dismissed due to poor performance and his own acceptance that she is normally someone who has no problem finding work and maintaining it to an acceptable standard, I find this stance somewhat surprising.

    I find that to refuse her application risks SNM's mental health deteriorating to a point where the children are adversely affected by it. Put bluntly, if she continues to experience the stress and anxiety which I find that living in

    Oxford without an adequate support network is causing, I find there is a real risk that she will be emotionally unavailable for her children and potentially physically also unavailable for them if she is trying to keep her distress from them. This is not something that she would simply "get over" I find.

    The impact on TNM is something that is relevant to my considerations if I find that it is likely to have a consequential impact upon the children, and even then only if that in turn would be an adverse impact for the children. I have no doubt that if the children were to move to Canada this does mean that TNM will have less face to face contact with the children than now. That is an accepted fact in this case. I equally have no doubt that this will be incredibly upsetting for TNM. In terms of whether seeing their father less frequently face to face will adversely affect the children, I am sure that this will be less than ideal for them and that they will initially be upset as Ms Hampshire noted in her report at D19. However, these are incredibly bright, sociable and very resilient children as Ms Hampshire's evidence shows. Her evidence was that the very good quality indirect contact that they will have with their father via skype etc will ameliorate the loss of direct contact with him for them. I agree with this conclusion in light of the extremely good quality indirect contact that the children already enjoy with their father.

    SNM has suggested that they can have unlimited indirect contact with their father and has also said that he can have direct contact with them if he is able to travel to Canada outside of the suggested periods in her proposals. SNM's proposals altered slightly in the course of the hearing but in summary she was suggesting that the children spend the majority of the summer holidays with their father (either in Canada or Europe) and that this would amount to 6-7 weeks. She was also suggesting direct contact between the children and their father at either Easter or Christmas with an alternating pattern each year so that one year the children spent Christmas with one parent followed by Easter with the other and then the other way round for the following Christmas and Easter. Canadian school children also apparently receive week's holiday in March and she suggested that this could also be when the children spent time with their father, provided she herself had no plans for that break. She said that any of these periods of contact could be either in Canada or Europe and also suggested that the children could go skiing with their father in Canada.

    In terms of the affordability and practicality of SNM's proposals with regard to direct contact, I have considerable and very detailed evidence from both parties about this. SNM suggested that the money which is currently paid to her by way of a form of maintenance (in reality the difference in housing costs at present) could be paid into an account specifically for TNM's and the children's travelling expenses. She has agreed to fund her own flights to accompany the children to and from Europe. She has produced details of likely flight costings to and from Canada.

    TNM's evidence was that he is only entitled to five weeks leave per year and that he is expected to take this during university vacations. He said that this, coupled with the financial constraints of funding contact if his children reside in Canada, would in practice mean that he could only see the children once at least and twice at most per year. In terms of his leave, five weeks is a fairly generous entitlement compared to many parents who come before these courts.

    It is also paid leave so he would not lose income. In addition, on his own evidence he is entitled to apply for additional time by way of an 8 week sabbatical to pursue research every two years. Whilst it is not guaranteed that this will be granted, it does seem likely that he may be able to use some of this time to plan a period of time either in Europe or Canada or the US where he could combine a research project with spending time with the children. His evidence to me was that there was some degree of flexibility around how he organises his work time both here and when abroad on work related trips. In addition, he has produced a letter from Columbia University in the USA (C379) which confirms that he holds an adjunct research scientist post at that university. The letter confirms that this post is unpaid but that he has visited there about one per year for the past three or so years. As SNM suggested in her evidence about contact proposals, this may also enable him to arrange to travel to see the children in Canada with days tagged onto such a trip. He accepted when I asked him that this might be the case, albeit it would probably only be a day or so achieved by combining the work trip with a weekend.

    TNM produced a five page document overnight on 17th January 2017 setting out his alternative costings. Ms Campbell for SNM put it to him that she found the document very confusing and I have to say that it is not the easiest document to follow. He has included in his costings figures in relation to a skiing trip to Calgary with the children in March 2017. His argument is that it is too cold and the skiing too inadequate to enable him and the children to ski on the East coast of Canada. SNM was very clear that there is locally available skiing near St Bruno and resorts such as Vermont and Lake Placid are also nearby and I found this more credible than TNM's assertion that there was nothing suitable there. On the basis of the children and their mother utilising overnight flights to Europe and therefore sleeping on the plane (as SNM told me she intended and they had already done), it also seems possible that the children could continue to ski in Europe with their father during their March break as well. I find that there is no necessity for TNM to have to travel to Calgary or similar to enjoy a skiing trip with N and S. He may have to compromise somewhat as to the quality of the skiing in St Bruno but the benefit of that compromise is shorter travel times and lower cost therefore increasing the quality time with his children.

    TNM also accepted, when cross-examined by Ms Campbell, that he had also included within his costings sums for items which would be expenses whether or not the children lived in Oxford. These were sums for food and entertainment and childcare costs if the children were with him when he was working. In addition, he had included the air fares for an adult travelling with the children. This cost would in fact be borne by SNM who has accepted that she will accompany the children on trips to and from Europe and bear her own flights costs for this. The likely additional costs for TNM in having contact with the children if they move to Canada are not therefore anywhere near as great as he tried to argue.

    The main issue for me is whether the likely additional costs associated with contact taking place as a result of the children living in Canada would be unaffordable by either or both parties. As Ms Hampshire pointed out, both parties are well-educated and are usually in well-paid professional jobs. In addition, I find that it is reasonable to expect that both parties will try to make their arrangements for contact sufficiently far in advance so as to enable reduced fares etc to be taken advantage of. TNM did say to me that his teaching schedule was not normally finalised until quite late. However, I consider that this aspect will not be an issue in relation to the summer and Christmas or Easter holiday contact which will fall during the university vacations. This really only leaves the March break which it is not disputed actually takes place in late February/early March (C16 and SNM in evidence to me). Since TNM has clearly on his own evidence been able to arrange a skiing trip with the children in February most years and whilst working at the university, it also seems reasonable that he will be able to continue to do the same in late February or early March.

    TNM also said that he was concerned about the children not being able to see their paternal grandparents as frequently. He told me that his parents were unable to travel across the Atlantic on long-haul flights due to their age and health issues. They are, however, able to travel to the UK so the children could see them whilst staying with their father in the UK. The children could also travel to Germany to see their grandparents there, as SNM proposes. Again, whilst granting the application may mean that N and S do see their grandparents slightly less frequently, it does seem to me that they will still see them and that quality contact with them can still be maintained on the proposals put forward by SNM.

    It is also argued by TNM that SNM will not actively promote the children's relationship with him if the children live with her in Canada and that, whilst she is offering fairly generous direct and indirect contact, she will not in fact facilitate such contact taking place. He seemed to be basing his argument on what has or hasn't been said at court about contact around previous hearings, as well as some frankly rather strange allegations he makes about SD monitoring communications between TNM and the children. Dealing with that last point first, TNM alleged that SD had interrupted a telephone call he was having with N, that SD had been recording him on an iPhone and iPad left in the kitchen and that SD had hacked into his phone calls with the children. The first allegation is something I have referred to above as it is when SD apparently asked N what topping he would like on his pizza. The call appears to have been spontaneous from N to TNM and it is therefore quite likely that it could have clashed with dinner preparations. It is hardly something of any great significance and says rather more about TNM and his determination to think the worst of SD, I find. This conclusion is supported by the second allegation about the iPad. TNM told me that he was concerned at the way in which one phone and two iPad were lined up on the kitchen worktop when he picked up the children. He himself said he had no evidence apart from this about this concern. The allegation that SD hacked into the children's phone calls with him seems to be related to the fact that SD is an IT security consultant and TNM thinks he has used these skills or would use these skills to monitor phone calls. Again, he has no actual evidence of this taking place and I find that it says volumes about his apparent willingness to believe the worst of SD rather than anything else.

    (f) how capable each of their parents is of meeting their needs; both parents accept that the other is capable of meeting the children's needs and Cafcass are also of this opinion. There is nothing else that I need to add to this.

    Conclusions

  14. A point has been taken by Ms Renton on behalf of TNM as to whether or not Ms Hampshire's assessment is sufficiently detailed and holistic. Part of this relates to the fact that Ms Hampshire has not interviewed SD or seen the children with either SD or his children. Ms Renton referred me to PD 16A and the duties of a Cafcass officer in compiling a report. Those duties are set out in para 9.2 as follows:
  15. The officer must make such investigations as may be necessary to perform the officer's powers and duties and must, in particular -

    (a) contact or seek to interview such persons as appear appropriate or as the court directs; and
    (b) obtain such professional assistance as is available which the children and family reporter thinks appropriate or which the court directs be obtained.
  16. The Court has not been asked at any previous hearing to direct that there should be any contact or interview with SD by Ms Hampshire. On the last case management order dated 30th September 2016 (B35 onwards) SNM was given leave to file a statement from SD, but only if so advised. As I pointed out this meant that it was not evidence that the Court required in this case as it was entirely a matter for SNM and her legal advisers. An unsubstantiated allegation against SD was investigated through the MASH and their report has been considered by Ms Hampshire in preparing her addendum report. TNM took issue with the thoroughness of the MASH investigation but, having read the report myself (D28-50), the extremely limited and vague nature of the information which prompted the investigation itself clearly did not warrant more probing of N as TNM appeared to be suggesting. The conclusions reached in that investigation are entirely proper conclusions in the circumstances, I find. In light of this, it would be a matter for the individual Cafcass officer concerned as to what she felt was necessary in accordance with PD 16A. Ms Hampshire was very clear in her evidence to me that she did not feel it necessary for her to have spoken to SD given the absence of any safeguarding concerns even after international police checks had been conducted. I accept this and therefore conclude that it was not appropriate or necessary for her to need to contact or interview SD in order to conduct a proper assessment of what was in the welfare interests of N and S.
  17. In terms of whether her assessment overall was fair and balanced, which was another point raised by Ms Renton, I find that it was. It is true that her report does not set out each of the section 1 Children Act 1989 welfare checklist headings and then consider each in detail. That is quite simply not the way in which Cafcass reports are currently written. As Ms Hampshire pointed out, she has addressed the welfare checklist overall and I cannot see any deficiencies in her considerations of the various relevant headings in this case. Ms Renton also submitted that Ms Hampshire had placed undue reliance upon the case of Payne v Payne in formulating her recommendation. Ms Hampshire told me that she had used the up to date Cafcass legal guidance about relocation cases. Of course, she is not a lawyer, so to criticise her in respect of an interpretation of the law would not be fair or appropriate. It is true that the current case law does not exclude consideration of some of the suggested checklist from Payne v Payne. The key question is whether she has conducted the sort of global, holistic analysis which the current case-law requires. I find that she has and that TNM's objections are more to do with his being unduly focussed upon matters that related to him and which are not relevant to the overall question of the children's welfare. I was very struck by his insistence that Ms Hampshire should have taken into account the impact on him - as Ms Campbell submitted on behalf of SNM this made it sound as if it was about him and not the children.
  18. Having considered all relevant aspects of the welfare checklist, I am satisfied that it is in the best interests of these children for SNM's application to take them to Canada to be granted. These are, as Ms Hampshire noted, truly international children for whom the world is a markedly smaller place than for others their age. SNM has put forward carefully considered and detailed information to support her application and I do note that this is a plan for her to return to her country of origin rather than a plan to move to the wholly unknown. I am also satisfied that she will actively promote the children's relationship with their father and will allow the contact that I will order. TNM has, as he accepts at C330, already had direct contact in addition to the contact outlined in the previous court order pending this final hearing and indirect contact with the children as the children want. It is a factor, but not a very significant one to my mind, that TNM is also still subject to a period of probation in his appointment. That probationary period does not end until September 2018 and, as Ms Hampshire noted and TNM accepted, there is also the fact that with Britain leaving the EU nothing is certain about what will then happen to EU nationals working in the UK. I have noted that TNM told me that there are no concerns about his performance so far in his probationary period, although he has not produced any documentary evidence to confirm this but I accept his evidence about this as it would no doubt affect his finances were his job to be actively at risk. He also told me that reassuring noises were being made generally about the post-Brexit position for EU nationals working at the university. I think all I can conclude is that things are marginally less certain in this regard than they were when he accepted the job. What is far more significant to my decision is that he is clearly well-used to international travel to achieve his goals.
  19. Therefore organising travel so as to spend time with his children, even with the inevitable constraints of holiday time and finances, will not be difficult for him to achieve if he is truly committed to seeing them. I do find that it is necessary for the children to be able to see him during the March break every year as this will provide for them to see their father at least three times every year and thus further ameliorate the effects of the move upon them. I do appreciate that this will limit the "fun time" that the children will get to spend with SNM as she told me, but she also said to me and it is in her statement at C16 that there will be long weekends during the school year which the children can spend with her. There will also be the balance of the summer school holidays not spent with their father and either Easter or Christmas. The order that I will make in addition to granting the application to take the children out of the jurisdiction to live in Canada is therefore that SNM shall make the children available to spend time with TNM for the whole of the March break each year, 6-7 weeks of the summer break each year, and either Christmas or Easter each year. There may be unlimited indirect contact between the children and TNM. There may also be such additional contact between the children and TNM as the parties agree. Direct contact between the children and TNM may either be in Europe or Canada as the parties agree. SNM shall pay for her flights to accompany the children to and from Europe in the event that contact is taking place in Europe.
  20. The timing of the move is the next issue that remains to be determined. TNM has asked that the move be delayed until the start of the new school year in September 2017. SNM and the children would have to live in temporary accommodation for this period as her evidence clearly shows me given that she has to vacate her current property. However, the main issue that I can see with delaying the move until then is that as the children would be with their father for the majority of the school summer holidays, there is limited opportunity for them to use this period to acclimatise to their new home and country. It therefore seems to me that the interests of the children are better served by allowing the move to take place in time for the new Canadian school term on 6th February 2017.
  21. SNM is committed to obtaining mirror orders in Canada as soon as practicable and I will direct that she do so. My experience of similar cases leads me to conclude that she would encounter no significant obstacle or delay in doing so but that mirror orders are not necessary prior to the move.


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