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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> M (A Child) [2017] EWCA Civ 2356 (13 December 2017) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2017/2356.html Cite as: [2017] EWCA Civ 2356 |
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CIVIL
DIVISION)
Strand, London, WC2A 2LL |
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B e f o r e :
MOYLAN
LORD JUSTICE PETER JACKSON
____________________
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____________________
8th Floor, 165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 704 1424
Web: www.DTIGlobal.com Email: TTP@dtiglobal.eu
(Official Shorthand Writers to the Court)
Ms
Catherine Wood QC (instructed by Harrowels Solicitors) appeared on behalf of the Applicant
Ms
Claire Heppenstall (instructed by Direct Access Scheme) appeared on behalf of the
Respondent
____________________
Crown Copyright ©
Lord Justice Peter Jackson:
Introduction
Background
The proceedings
"Inmy
view part of the desire to
relocate
is to
return
to a type of family home the
mother
wishes to give L as she has not been able to
recreate
it herself with her own family in the UK. Despite the fact that she has friends close by, a supportive paternal family for L and frequent support from the father, I do sympathise with the anxiety and loneliness that
mother
feels being the only adult day in and day out who
manages
the care of L. This is not a shared
responsibility
as it would be if she had a partner or another adult in the home, especially in the first two years of
child's
life when there are illnesses, separations as the
child
starts nursery and the logistical demands of being a working parent. The emotional and practical demands on the primary carer are substantial. The father, with all the good will in the world, could not appreciate how demanding this was for the
mother
as he did not live with her and he has not had this daily (and nightly)
responsibility
for him, which is constant. The
mother's
feelings of loneliness and isolation, in
my
view, are
real
and should be acknowledged. It should be acknowledged that she has not been afforded the comfort of having her own family close by during those first two demanding years of L's life. Nevertheless, these feelings speak rather for the demands the
mother
has experienced of parenting alone as opposed to L being a
child
who is suffering, isolated and being negatively impacted socially, emotionally by being in a single parent household - from the accounts of both parties, this case has not been
made,
in
my
view."
The Cafcass officer then expressed optimism that with a decision in this case the relationships
between the parties would
recover.
She continues:
"Itmay
well be the case that the
mother
would be happier and
more
settled herself in Columbia and L would no doubt have a happy and fulfilling life there too. However, it would deny L the established and frequent
relationship
he currently enjoys with his father and the family life available to L by live-in/close by extended family
members
in Columbia is not at an adequate substitute for a
meaningful
![]()
relationship
with a
relative
as significant as a father. There is not sufficient evidence that separating L from the active frequent
relationship
he has with his father is justified. He is neither unsafe nor unhappy in the UK and were he to
relocate
he would lose
more
than he would gain as his
relationship
with one of the two
most
important people in his life - his father - would be
reduced
to that of say an uncle living abroad as opposed to an involved father."
Ms
Bond then
referred
to the importance of the grandparents and perhaps particularly the paternal grandparents in L's life and she then commented upon the value to L of indirect contact as follows:
"Technology is superb and hugely beneficial to long distancerelationships
but it is not a substitute for the intimate bond a
child
can enjoy uniquely in a parental
relationship."
Finally, Ms
Bond summed up:
"This is an enormously difficult decision and I have huge sympathy with themother
as it is quite different to live far from one's family before having
children
than it is after. However, she has chosen to have a
child
with someone who is a UK
resident
and this
child
has an established
relationship
with his father in the UK. The issue in hand gives a significant
restriction
to the
relationship
L would have with his father were he to live as far away as Columbia and be able to spend only a few weeks a year with his father face-to-face. The father's role in L's life would not be one of being able to attend his school events
regularly,
take him to a weekend sports
match
or an activity club. L would not have the benefit of a second parent's parenting style, strengths and interests in
relation
to learning day-to-day about how to interact with others, behaviour, different activities, knowledge and skills that different parents bring to a
child's
development. This would be a loss for L and not one that could be compensated for at such a distance. It is for this
reason
that I am unable to support the
mother's
application to
remove
L from the jurisdiction."
The hearing
"Children
of L's age when they are still creating these
really
key
relationships
and bonds with their significant care givers, in this case his two parents, it is important for that
regular
contact and experience of that
relationship
without such big gaps that it will affect that bonding process. What I am trying to say is the bonding process and the significant caring
relationship
is still forming for L, which is not to say that he would forget his father or not have a
relationship
with his father from distance. That is not what I
mean.
But the quality of that significant carer
relationship
is still developing for L. It is not embedded yet as it would perhaps be in an older
child."
"I had thought about going back to Columbia right after I had a stroke because it was as life changingmoment
in
my
life. At that point L was not in the picture yet but that was the very first
moment
when I thought I have to stop and think about how
my
life is going. I need support. Because having a strong family I felt that is not normal and I don't have anyone to help
me.
That was the first time. I fell pregnant and L was born. The plan had to stop because he was born and I never contemplated for a
minute
even if I didn't have a
relationship
with [the father], that L wouldn't be able to know who his father was and who his grandparents were.
My
![]()
motivation
after being three years here in this country with this very difficult situation is for L a better chance of a life within a family setting in Columbia and being supported growing up in a normal home would be better."
She continued:
"This is probably one of themost
difficult decisions I will ever have to
make
in
my
life and I have thought about this position properly and carefully and considered all the possible options and it is not ideal. In the ideal work a
child
lives in the same house with a father and a
mother.
That is what the ideal is for
me.
It is not going to be so what I think is the second best thing for L is to be surrounded by family constantly when I am supported. I can look after
my
health and I can look after L as a
result
of that so there is a support network."
"I think she has said she is unhappy and I accept that. I accept there are elements of her being unhappy. I think one of those elements is that we do not have a traditional family setting that both she andmyself
enjoyed when we were growing up. She lived in a happy home with her
mother
and father and we both had a brother and I think she is unhappy as I am for being unable to
recreate
that. I think we are both agreed on this, that the best outcome for L would have been that type of situation but it is not quite possible where we are today because we are not in a
relationship
together and so we are very
much
in a
modern
family in that
regard
in that it's perhaps an untraditional arrangement. But what I think is to her absolute credit, and I have worked very hard on this as well, we've then got the second best alternative which is to focus our energies on L and having him grow up in a great environment with two homes living in close proximity to each other and I appreciate that is not the ideal but I think that is the second best alternative that is available. I think the third alternative by going away and living very far apart is nowhere near that second best alternative. But what I am struggling to understand in
my
![]()
mind
is that I think that this is one of the areas of unhappiness but I don't see that that would be any different for her. I think [the
mother]
has another source of unhappiness as being what it is. It is tough to be a single parent and hold down a demanding job that pays well therefore
requires
hard work and I've experienced that as well."
The judgment
"Theremarkable
feature of this case is that somehow, notwithstanding protracted and acrimonious proceedings, and the father's robust opposition to the
mother's
proposal to
remove
L to Colombia, the parents have
managed
to build a functional happy and cooperative family life for their
child.
In
many
![]()
respects
they exemplify a
model
of how a separated extended family can operate functionally, effectively and in a
child's
best interests. There is no doubt that the
mother
and the father have produced a beautiful, kind, well-adjusted little boy and there is absolutely no doubt that he is dearly loved and cherished by all of his family."
The judge then went on in the following paragraph to emphasise the importance of the grandparents on both sides of the family.
"The parties are therefore agreed that the two key issues I have to decide can be identified as follows. Firstly inrespect
of plan A, should the
mother's
application for leave to permanently
remove
L from the jurisdiction to live with her in Columbia be granted? Secondly in
respect
of plan B, in the event that L
remains
in the UK, should there be a
child
arrangements order providing that he lives with both parents or in the alternative lives with the
mother
and spend time with the father and also if not, should L spend an additional overnight stay and contact with the father during the week?
Inreferring
to the key issues as plan A and plan B, I
make
it plain now as I did throughout the hearing that these descriptions have been used only for simplicity and ease of
reference.
I do not
regard
the plans in any way hierarchically or in a linear fashion. On the contrary, I have considered both options for L holistically, taking account of the fact within the welfare checklist, including but not limited to, those
matters
suggested within the various
relocation
authorities to which I have been
referred
but at all times
maintaining
L's welfare as
my
paramount consideration."
"Finally it is agreed by both parties that I am not bound to accept the Cafcass officer's opinion and that I am entitled to carry outmy
own balancing exercise in
relation
to what is ultimately in L's best interest. Where I
may
differ from the Cafcass officer, I am, of course, obliged to give
reasons
but ultimately the question of determining what is in L's best interest falls to
me."
"The obvious effect of plan A would therefore be to curtail this veryregular
contact and
replace
it with less frequent but longer periods of holiday contact with the father, both in Columbia and the UK. It is this loss of very
regular
contact that particularly concerned the Cafcass officer. She was clear in her
report
and in her evidence this was a factor that when factored into her own balancing exercise, tipped her in favour of
recommending
that L should
remain
living in the UK, namely plan B. However, the Cafcass officer also described L as an emotionally
resilient
little boy for whom she does not anticipate there being any developmental difficulties in the future."
Under 'a change in circumstances' the judge acknowledged that this would be, "A change in his entire physical and psychological environment." She went on:
"As I have said, it is the potential loss of L's contact with the father thatmost
concerns the Cafcass officer. She said in evidence that it is the
regular
intimacy of such contact that cannot be
reproduced
on a day-to-day basis if the
mother
![]()
moves
to Columbia with L. The Cafcass officer's concern about this issue was, as I have said, the number of changes this would evoke for L. However, she also described the positives of such a
move,
the emotional benefit to L of living with the
mother
who would be living with her own extremely supportive parents with whom L also has an undeniably close and a warm
relationship
that cannot be overstated.
It is plain on the evidence that L would flourish in Columbia just as he is flourishing in the UK. There is no evidence to suggest otherwise, nor any concern about L's welfare in the even of either plan A or plan B forming part of either parent's case. They are key concerns as I have already identified focused, and I do notmean
this in any way pejoratively, on the impact on each of them in
relation
to the plans. The Cafcass officer could not point to any other factor other than the loss of the very
regular
contact with the father that
really
underpinned her opposition to plan A."
"48. The key issue in this case thereforereally
![]()
relates
to balancing the possible detrimental effect the loss of the every day contact with the father arising from plan A against the possible detrimental effect on L of
remaining
in the UK with an unhappy,
resentful
![]()
mother
who feels trapped arising from plan B. Just as I have had to consider the impact on L of loss of very
regular
contact with the father and the ways of ameliorating that loss, so I have also had to consider the impact on L of
remaining
in the UK with a
mother
whose application to
move
has been
refused
and how that impact
might
be ameliorated.
49. The impact on themother
of the
refusal
of her application is a
relevant
factor to be weighed in the balance just as the impact on the father of the granting of the application is also important. Plainly the impact of
remaining
in the UK would be ameliorated by continuing very
regular
contact with his father. However, when I weigh that against the impact caused by the
mother's
likely continued distress, I do consider that in all the circumstances the balance tips in favour of a
move
to Columbia. It was submitted on the
mother's
behalf that effectively a
refusal
of her application would
require
her to
remain
in the UK for a further 15 years, almost certainly in
rented
accommodation. It was submitted that she would only be surviving in the UK whereas the father would be flourishing. I agree."
"As I have already identified, each of these plans presents an attendant risk of emotional harm to L. However, when I balance the ways in which the ways each type of harm could be ameliorated, I do consider that there is a greater risk of emotional harm arising from themother's
unhappiness, distress and likely strained circumstances in the event that her application is
refused,
which outweighs any ameliorating effect of continued very
regular
contact with the father. It is that balance that ultimately leads to
my
decision in all the circumstances that it is in L's best interest for the
mother's
application to be granted.
I have considered the Cafcass officer's evidence andrecommendations
very carefully but ultimately I do consider that she was wrong in placing undue weight on elevating the benefits of L continuing to have very
regular
contact with the father in the UK over a balanced evaluation of all the attendant risks of L not
moving
to Columbia. In that
regard
I depart from her
recommendation,
although of course her evidence about L's needs and the various important characteristics of both parents have played an important part in
my
overall consideration of what is ultimately in his best interests."
Finally, under the question of parental capacity:
"There is no question that L's physical and emotional needs will bemet
by living with either parent. I am entirely satisfied that both options
mean
that at present financially and practically both the
mother
and L would be well supported. However, as I have already indicated, the evidence points to the
mother's
circumstances being
much
![]()
more
likely to change if she
remains
in the UK than the father's. Although she is currently employed, there is evidence that her job is at
real
risk of ending soon and her earning potential at present does not appear to begin to
match
that of the father, who is doing extremely well. I also bear in
mind
that the
mother
is plainly unhappy living in England and wants to
return
to her country of origin and I do not underestimate the likely detrimental impact on L of living with an unhappy
mother
in England as opposed to living with a happier
mother
in Columbia.
I therefore grant themother's
application for permission to permanently
remove
L from the jurisdiction. It follows that I do not need to proceed to consider plan B but I will consider what, if any, other orders are necessary. I
make
no order for costs and that concludes this judgment."
The grounds of appeal
"Where there ismore
than one proposal before the court a welfare analysis of each proposal will be necessary. This is neither a new approach, nor is it an option. A welfare analysis is a
requirement
in any decision about a
child's
upbringing. The sophistication of that analysis will depend on the facts of the case. Each
realistic
option for the welfare of a
child
should be validly considered on its own internal
merits
(i.e. an analysis of the welfare factors
relating
to each option should be undertaken). That presents one option (often in a
relocation
case the proposals from the absent or "left behind" parent) from being side-lined in a linear analysis. Not only is it necessary to consider both parents' proposals on their own
merits
and by
reference
to what the
child
has to say, but it is also necessary to consider the options side by side in a comparative evaluation. A proposal that
may
have some but no particular
merit
on its own
may
still be better than the only other alternative, which is worse."
I also draw attention to this passage from paragraph 50 of the judgment of McFarlane
LJ. He
referred
to the need for:
"… the overall comprehensive analysis of achild's
welfare seen as a whole having
regard
in particular to the circumstances set out in the
relevant
welfare checklist. ... Such an analysis is
required
by the
Children
Act 1989 section 1.1 and/or by the Adoption and
Children
Act 2002 section 1.2, when a court determines any question with
regard
to a
child's
upbringing. In some cases, for example, where the issue is whether the location for a handover under a
child
arrangements order under the
Children
Act 1989 section 8 is to take place at
McDonald's
or Starbucks, the evaluation will be short and very straightforward. In other cases, for example a case of international
relocation,
the factors that
must
be given due consideration and appropriate weight on either side of the scales for the welfare balance
may
be such as to
require
an analysis of some sophistication and complexity. However, whatever the issue before the court, the task is the same. The court
must
weigh up all the
relevant
factors, look at the case as a whole and determine the course that best
meets
the need to afford paramount consideration to the
child's
welfare."
So, what is required
in this case as in others, is an analysis of each option with an appropriate degree of sophistication and complexity.
Ms
Wood submits that that was lacking in this case.
Conclusion
"I also bear inmind
the
mother
is plainly unhappy living in England and wants to
return
to her country of origin but I do not underestimate that likely detrimental impact on L of living with an unhappy
mother
in England as opposed to living with a happier
mother
in Columbia."
Postscript: Allocation
"If at any time a judge who is conducting proceedings considers they should bereallocated
to High Court level for hearing by a High Court judge or a section 9 judge, the judge shall, before
reallocating
the case, discuss the
matter
with the DFJ, who shall, if necessary, consult the FDLJ."
That guidance was not followed in this case and in any event there was in my
view no need for
reallocation.
This was a conventional
relocation
case involving a Hague Convention State and was suitable for trial by a circuit judge. Now, however, I would propose that the case be allocated by the Family Division Liaison Judge for London, either to a circuit judge or as she
may
otherwise decide.
Lord Justice Moylan: