Mrs Justice Theis
DBE:
- This matter
concerns
two boys A (13 years) and B (8 years). Their parents are
C
and
D,
who I shall hereafter refer to in this judgment as the mother and father. The
court
is
concerned
with the mother's application for leave to remove the
children
from the jurisdiction to live permanently with her in south USA. The application is opposed by the father.
- These
cases
are
very
difficult,
particularly when they are finely balanced, as this
case
undoubtedly is. There are powerful arguments advocated by the parties on paper and in oral evidence in support of their respective positions. The
court
has been greatly assisted by the parties having legal representation of the highest standard. There is no middle ground and inevitably one party is going to find the
court's
decision
very
difficult.
Background
- There is no significant
dispute
about the background..
- The parents met in the USA in 1996, their relationship
developed.
A was born in New York in 1998. That same year the family moved to live in London where B was born in 2003.
- Both the parents run and operate successful businesses. The mother's business requires her to work in Europe and in America. The father is in finance and has international offices in Europe, America and Asia. He said he spends about 40% of his time attending meetings within his organisation and the balance is meeting with managers,
clients,
accountants and auditors. He
doesn't
work remotely
via
a
computer;
most of it is face to face.
- The family lived together in London until the breakdown of the parents' relationship in 2005. On separation they agreed a shared
care
arrangement whereby each
child
spent an equal amount of time with each parent;
during
term time this was
done
by the
children
moving between their parents' homes each week and the school holidays were shared equally. There were times when they were flexible in the arrangements to accommodate the other parent's
commitments.
- The father formed a relationship with X in 2007. She has two
children
who are a similar age to A and B. She is separated from her husband and lives in north-east USA. In 2008 the father and X got engaged, no
date
was set for a wedding. The father would spend time with X, mainly in north-east USA which he
combined
with working there too.
- In late 2008 the father applied to
vary
the term time arrangements to provide for the boys to spend alternating 2-week periods in term time with each parent, with the holiday periods remaining the same (
divided
equally). The mother's response was to propose that term time be
divided
as to 20
days
with the mother and 10 with the father ('20/10'). The father agreed to try this from September 2009, subject to it being reviewed at some stage. In practice the father's parenting time
during
the school term runs from Friday after school until the Monday the following week, so the father has two weekends and the intervening week. The father said he only ever intended this to be a temporary arrangement, which he agreed to avoid a
contested
hearing and that he wanted it reviewed. In November 2009
Cafcass
provided a short wishes and feelings report. This indicated that A wanted to
continue
to trial the 20/10 term time split for the time being, although he was keen to ensure there would still be flexibility. B was reported to say that he preferred to move to an equal
division
of time. A was then aged 11 years and B 6 years. The father agreed the 20/10 regime should
continue,
albeit not without some reservations.
- In early 2009 the mother formed a relationship with Y. He has business interests in the USA, the
Caribbean
and South America. He is based in south USA. They see each other when they
can
either in the USA, the
Caribbean,
England or Europe. Y is
divorced
from his wife. He has three
children,
two are around the same age as A and B and a third
child
who is between them. They live with their mother in
central
USA.
During
term time Y sees his
children
every other week for five nights, from Thursday to Tuesday. He pilots his own jet and travels to see them in
central
USA.
- On the 28th June 2010 the mother informed the father about her wish to move to live with Y in south USA and take the
children
with her. She set out the
details
in an email and said that she had not spoken to the boys about this. The father responded on the 2nd July setting out that he
did
not
consider
the move to south USA would be in the best interests of the
children
and suggested getting specialist advice to help them work out what the best way forward was. At the end of that email he said "
Can
I ask that you
do
not
discuss
this at all with the boys until we have worked out and agreed what is best for them." The
children
were
due
to go to the father after school on 5th July. The mother responded to the father's email on 5th July at 14.49, she
did
not agree to the suggestion of specialist help but suggested
dates
for a meeting between the parents. She
did
not respond to the father's request about not speaking to the boys. The father sent an email in response 16 minutes later at 15.05, just before the boys pick up time from school, asking her to
confirm
that the boys were not aware of any plans and that she had not
discussed
her plans with them. The mother sent an email at 15.09
chasing
the father to
confirm
what time he was free for a meeting but made no reference to whether she had
discussed
her plans with the boys. The father sent a further email at 15.21 asking the mother to respond regarding what had been said to the boys, he said "it is imperative I know before seeing the boys". At 15.40 the father sent an email saying as he had not heard he assumed she had spoken to the boys and asked for a response as he
commented
"I need to know what they know". The father set out in an email on 6th July why he thought he needed to know what had been said to the boys, the mother responded on 7th July in an email which included the following "Finally, you seemed
distressed
that I had spoken to the boys about this before you…As you often
don't
choose
to answer my emails and I was not sure you would respond given my past experiences and there was a small window of time
due
to a short parenting week, and a long
delay
in your response to me, I
chose
to gently introduce the idea to the boys to hear their
views
before I submitted the relevant paperwork by July 10th. Your
choice
to
discuss
this with the boys immediately upon handover on Monday without meeting with me first to hear what I had said to them, was entirely your
decision".
Complaint
had been made of the father that he raised this issue with the boys at the earliest opportunity after
collecting
them; the father
denies
raising it straight away but accepts he
did
speak to them about it.
- I have set this email exchange out in some
detail
as it is a shining example of the mother and father simply not
communicating
effectively or acting in a way that promotes the best interests of these
children.
The father should have responded earlier than 2nd July; the mother should have responded to his request for information as to what the boys had been told; neither parent should have
discussed
this issue with the boys until they had had a
chance
to speak with each other. There
can
have been no
doubt
that what the mother was proposing was going to be a
contentious
issue. It was
clearly
a matter of some importance to the
children
as well as the parties. The mother accepted in her oral evidence it would have been better for the father to know what had been said to the
children
prior to picking them up so, from the
children's
perspective, there
could
have been an agreed message to the
children
from the parents about this issue. This was even more important as, if I have understood the sequence
correctly,
this was the start of the father's parenting time which led onto (either immediately or
very
soon thereafter) his extended summer holiday period.
- The mother issued her application for leave to remove the
children
to live with her and Y in south USA on 15th July 2010.
- The parties met in September and October to
discuss
the application and explore ways to resolve the issues between them. Those
discussions
were not successful. A
considerable
amount of oral evidence was given about the
context
and
content
of these meetings. It was suggested on behalf of the mother that the father had, in effect, agreed to the move to south USA in principle providing arrangements
could
be made regarding his time with the
children.
The father's
case
was that he
did
not
consent
to the move but was exploring what the options were. The meetings were not successful in finding
common
ground; further emails were exchanged between the parties. In one
dated
11th October the mother stated "I
don't
believe any further face to face meetings is helpful or necessary". A meeting with the respective legal teams was requested by the father's legal team on 15th October; it was set up for 20th October. On the 19th October the father's solicitors rang to
cancel
the meeting as the father
could
not attend, no further meeting was arranged. A letter was sent by the mother's solicitor on 10th
December
suggesting mediation, which had apparently been
canvassed
at the hearing before Mr Justice Mostyn on 2nd
December.
That letter was responded to on 22nd
December
but for
various
reasons it was not pursued. The reality is these parties have never
come
to terms on this issue. I accept the analysis of this aspect of the evidence set out in paragraph 53 of the
closing
submissions on behalf of the father.
- Standard
directions
were made setting the matter
down
for this hearing. A
directions
hearing was fixed in
December.
The matter
came
before Mr Justice Mostyn on 2nd
December
2010. He
determined
a
disagreement
that had arisen as to the
date
when A should take his SSAT tests, which were required to enable A to be
considered
for the American schools proposed by the mother. The
details
of that
dispute
are no longer relevant.
- By agreement between the parties an independent social worker was instructed to prepare a report as to the
children's
welfare and their wishes and feelings. Her report is
dated
9th February
2011.
Both parties have filed extensive statements setting out their positions and the mother has filed a statement from Y.
- The
court
was informed at the start of this hearing that the father's relationship with X had broken
down
in late January. There was a reference to this in the father's meeting with the independent social worker, according to the independent social worker he said that the relationship was "on hold".
- Over the four
day
hearing I heard oral evidence from both of the parties, Y (by
video
link from south USA) and the independent social worker. I have had the benefit of a transcript of the oral evidence. I reserved judgment which enabled me to
consider
the papers again. I have given this
case
anxious
consideration
as I am
very
much aware of how much this
case
means to each of the parents.
The Law
- The
children's
welfare is the
court's
paramount
consideration.
The burden is on the mother to establish that the
children's
removal from the jurisdiction would be better for them than making no order (
CA
1989 s1 (5)).
- Most relocation
cases
have been
considered
in the
context
of a situation where there is a
clear
primary
carer.
This is not the
case
here. Where there is a shared
care
arrangement a modified approach is required. This was acknowledged in Payne and expanded on in later authorities.
- In Payne
v
Payne [2001] 1 FLR 1052 Butler-Sloss P referred to the possibility of there not being one obvious and established primary
carer:
[85] All the above observations have been made on the premise that the question of residence is not a live issue. If, however, there is a real
dispute
as to which parent should be granted a residence order and the
decision
as to which parent is the more suitable is finely balanced, the future plans of each parent for the
child
are
clearly
relevant. If one parent intends to set up home in another
country
and remove the
child
from school, surroundings, and the other parent in his family, it may in some
cases
be an important factor to weigh in the balance. But in a
case
where the
decision
as to residence is
clear,
as the judge in this
case
clearly
thought it was, the plans for removal from the jurisdiction would not be likely to be significant in the
decision
over residence.'
- The ratio of Payne was expressed by Thorpe LJ as follows:
[26] In summary a review of the
decisions
of this
court
over the
course
of the last 30 years
demonstrates
that relocation
cases
have been
consistently
decided
upon the application of the following two propositions:
(a) the welfare of the
child
is the paramount
consideration;
and
(b) refusing the primary
carer's
reasonable proposals for the relocation of her family life is likely to impact
detrimentally
on the welfare of her
dependent
children.
Therefore her application to relocate will be granted unless the
court
concludes
that it is incompatible with the welfare of the
children.'
[emphasis added]
- The seminal judgment in relation to what should happen in a shared
care
case
was given by Hedley J in Re Y [2004] 2 FLR 330. In that
case,
the facts were similar to this
case
in that the
child
was spending 4 nights with the mother and 3 nights with the father and was thriving in the parents' shared
care
(although this arrangement had operated for nowhere near as long as in this
case.)
- At paragraph 14 Hedley J said:
[14] Now, the
court
clearly
contemplates
two
different
states of affairs. The one, the more
common
and in some ways the more obvious, is where the
child
is
clearly
living with one parent, and it is that parent that wishes to leave the jurisdiction, for whatever reason. The other, and much less
common
state of affairs, is where that
does
not exist and either there is a real issue about where the
child
should live, or there is in place an arrangement which
demonstrates
that the
child's
home is equally with both parents. In those
circumstances,
which are the ones that apply in this
case,
many of the factors to which the
court
drew
attention in Payne
v
Payne [2001] EWCA
Civ
166, [2001] Fam 473, [2001] 1 FLR 1052 whilst relevant may
carry
less weight than otherwise they
commonly
do.
- Hedley J said that of the welfare
checklist
factors:
[16] …the ones that are important in this
case
are the educational and emotional needs of Y, the likely effect on him of any
change
in his
circumstances,
and his age and background so far as his life is presently
concerned.
It seems to me that I need to remind myself that the welfare of this
child
is the lodestar by which the
court
at the end of the
day
is guided.
- Hedley J went on to say that:
[24] In reaching a
decision
in this
case
I have tried to focus on Y's welfare and to postpone the interests of both the parents, however fair and reasonable, to that one
consideration.
It truly is a
case
in which the paramountcy of the
child's
welfare has led to one parent being
dealt
a
crushing
disappointment.
- I was referred by Miss Eaton QC and Miss Reardon to the relevant passages in a recent article by Thorpe LJ which picks up this theme and which I agree supports the rationale of Hedley J's
decision
in Re Y.[1]
- I have also been referred to MB
v
JB, a
Cayman
Islands
decision
of the Honorable Justice Quin on 22.6.10, as being illustrative of the analysis set out above, and indicates why the home life with both parents is such an important factor in a shared
care
case.
- Mr
Cobb
QC and Miss Fox have rightly reminded me what has been said about the impact of the refusal in the
cases
where a parent wishes to locate to be with a new partner. However, that must be
considered
in the
context
of the
child's
overall welfare.
- Thorpe LJ said in Payne at para.31 a refusal of an application for leave in these
circumstances
(where the Applicant wishes to relocate to be with a new partner):
"is likely to
destabilise
the new family emotionally as well as to penalise it financially."
- In Re B; Re S (Removal from the jurisdiction) [2003] 2 FLR 1043 the
Court
of Appeal returned to para.40(
c)
of Payne. Thorpe LJ (at para.11) said that:
"I would in the light of recent experience of applications and appeals in relocation
cases,
offer the following extension to subparagraph (
c)
of para [40]. Where the mother
cares
for the
child
or proposes to
care
for the
child
within a new family the impact of refusal on the new family and the stepfather or prospective stepfather must also be
carefully
evaluated."
He added:
"That
consideration
applies with greater force in the
case
where the
child's
stepfather is a foreign national. There, as well as work, all his history, his family ties and his loyalties pull in the same
direction.
If the
Court
frustrates that natural emigration it jeopardises the prospects of the new family's survival or blights its potential for fulfilment and happiness. That is manifestly
contrary
to the welfare of any
child
of that family" (at para.12)
- Thorpe LJ
commented
in Re B; Re S about
changes
in the
contact
arrangements with the 'left behind' parent:
"Often there will be a price to be paid in welfare terms by the
diminution
of the
children's
contact
with their father and his extended family. But the
court's
powers to ensure the
children's
continuing
contact
with both parents after separation or
divorce
is necessarily
circumscribed.
The
court
has the power to support the father who seeks to maintain or extend his relationship with his
children
through
contact.
However, if in the aftermath of separation the father takes employment abroad or marries a woman whose employment takes her abroad or who marries a woman whose every
connection
is with another jurisdiction, the father will accompany her there and the
consequential
loss or
diminution
in his
contact
with the
children
of the prior relationship
cannot
be surveyed or
controlled
by the
court.
These are the tides of
chance
and life and in the exercise of its paternalistic jurisdiction it is important that the
court
should recognise the force of these movements and not frustrate them unless they are shown to be
contrary
to the welfare of the
child."
(para.12)
- My attention was also
drawn
to what has been said about the effect upon the applicant mother of a refusal. This was
discussed
in some respects in Payne
v
Payne wherein Thorpe LJ said:
"as a matter of experience the
child
cannot
draw
emotional and psychological security and stability from the
dependency
unless the primary
carer
herself is emotionally and psychologically stable and secure. The parent
cannot
give what she herself lacks." [para.31]
"…in most relocation
cases,
the most
crucial
assessment and finding for the judge is likely to be the effect of the refusal of the application on the mother's future psychological and emotional stability." [para.32]
He re-stated this point at para.40(
c)
of the judgment and added (at para.41) that "great weight must be given to this factor". If this mother is unhappy here, it will materially affect her ability to
care
for the
children.
- A more recent review of the jurisprudence and international perspective in this area was provided by Mostyn J. in Re AR (A
Child:
Relocation) [2010]
EWHC
1346 (Fam) [2010] 2 FLR 1577. He acknowledges the binary nature of these
cases
at para 4:
"If the
decision
is that the
child
goes, then the left-behind parent inevitably suffers a
disruption
to his relationship with the
child,
at the
very
least in terms of quantum and periodicity of
contact.
If the
decision
is that the
child
stays then the primary
carer,
if not invariably, then frequently will suffer
distress
and
disappointment
in having what will normally be well-reasoned and bona fide plans for the future frustrated. So the
decision,
whichever way, is bound to
cause
considerable
trauma."
- Mr
Cobb
QC and Miss Fox
drew
my attention to what Mostyn J said in Re AR at para 12 that "the factor of the impact on the thwarted primary
carer
deserves
its own berth and as such
deserves
its
due
weight". They submit to
do
otherwise would be to trump welfare
considerations
in the broader
view.
I agree although note that
case
concerned
an application by a primary
carer.
The Parents
- Both parents spoke
very
movingly about each of the
children.
There is no
doubt
they both have an extremely
close
relationship with each of the
children
and are immensely proud of them.
- In her oral evidence the mother said there were three factors behind her application. As she put it in her oral evidence "I think that the
catalyst
is my relationship with Y, for sure, but it is in tandem with the fact that, you know, I really want to grow and need to grow the business in America as well. And
combined
with that I feel that the lifestyle and the education and the environment will be really great for the boys. So it is a sort of a three-pronged holistic aspect. It is not just only one thing."
-
Dealing
first with her relationship with Y she said that he was the "love of her life" and she wanted to spend the rest of her life with him. She had been seeing him since early 2009 and this was the first relationship she had had since the breakdown of her relationship with the father in 2005. It was the first time she had introduced another man to the
children.
She was asked in oral evidence whether they were planning to get married, she replied "In a perfect world, yes, but, you know, I think that it's step by step and you need to be really practical about this. You know, there is an integration period between -- if we were to be granted leave we have to integrate his family, my family, our lifestyles. I'
d
like to be with him for the rest of my life. Now, whether that means that we're married or not I
don't
know, but that's my feeling about it." She said it was going to be
difficult
for them to move to the next stage of their relationship if they were still living "inter-
continentally"
she said "...I think we have
done
very
well over the last
couple
of years going back and forth. It hasn't been easy but we'
ve
been
committed
to it, and
committed
to each other, and
committed
to the relationship, and
committed
to the
children,
and we'
ve
done
it the best way we
can.
But, you know, we need to be realistic. The relationship won't
continue
over at least an integrated relationship, there would be no purpose. Why would we
continue
to fly back and forth? It
doesn't
make sense any more. I
don't
want to go on about this, but I feel it has gone on for a long time."
- At the moment she said she spends much of her non-parenting time with Y in south USA
during
term time and at
various
locations
during
the school holidays. As she
commented
in her oral evidence the person who looks after both her and the father at the airport remarked that as the father flies in she flies out. When Miss Eaton QC suggested to her the
various
scenarios of
dividing
the
children's
time here between the father and the mother so that she
could
maximise her time with Y in south USA she said "This is not about how many evenings I spend with Y, and therefore this is not relevant to me because it is not about how many nights I spend with him. It's about integrating families in a way that is based on love, in a family situation, it is not how much I
can
see my boyfriend in the evening." It was put to her that if the boys remained in England and the
division
of the school term time was adjusted to 50/50 (two weeks on two weeks off) she would have more time available to see Y, she said she
did
not
consider
such a
change
was in the interests of the
children.
- Y's written and oral evidence
confirmed
the
details
of the
development
of his relationship with the mother. In his oral evidence he was able to give more
details
about the amount of time he had seen A and B, in England, Europe, the
Caribbean
and the USA and the amount of time they had spent at his home in south USA. He
confirmed
during
term time he always travelled to
central
USA to see his
children,
holiday time was spent in
various
locations. He agreed he needed to travel for his work, and estimated about 6 – 7
days
per month. He agreed, subject to his time
constraints,
he
could
travel to England with relative ease as he had his own plane. Resources are not an issue.
- If there were no other
considerations
I accept the next stage in their relationship would be for one of them to move to base themselves with the other. However, it is of note that
due
to the
domestic
and
commercial
logistics of their lives, in particular the amount of travelling they
do,
wherever they are based, individually or together, there will be
considerable
periods of time when they will not be together
due
to other
commitments.
So whilst I take into account what the mother says about it not being about the time they spend together it is about integrating the families, the fact is that each month there are likely to be significant periods when they are apart and their
children
are only likely to be together
during
holiday periods, as they are now.
During
school term time Y is likely to be away for over half of each month. In addition, on the mother's
case,
the
children
will be with their father for 10
days
of the month, which may or may not overlap with the time Y is away. Mixed into that would be the mother's absences
due
to her
commercial
and business
commitments.
This aspect of the mother's
case
needs to be
considered
in this important
context.
- The independent social worker said in her evidence that one of the points made by the mother that resonated with her was the fact that at the moment the temptation for the boys would be to think that as soon as they hand the pair over to the other parent they are off on a plane, and so she was seeing one advantage of them relocating to south USA would be that actually they would see one parent with a far more settled life, not always handing the
children
over and then leaving the
country.
However, again this must be looked at in the
context
of the evidence in this
case.
This is a
very
international family who undertake a lot of travel. As B observed to the independent social worker, in one of his more
dramatic
moments, he said he had spent half his life on a plane, this was not said as any
complaint
but as a fact of life. Travelling is
very
much a feature of all their lives, both for the
children,
their parents and Y.
- Turning to the mother's business interests it was
conceded
by her solicitor in a letter
dated
20th August 2010 that the proposed move was not based on business but the best interests of the boys and in the letter
dated
23rd November 2010 that their
client's
application to relocate was not primarily based on business interests. She accepted in evidence that she had significant financial resources available now but said she needed to retain and build on them for her financial security. Her
case
that she needed to be based in the US to pursue her future business interests and opportunities was somewhat
vague.
She was not suggesting that if she was based in London she would be prevented from pursuing these opportunities, she said she needed to be based in America but gave little
detail
other than expanding her business in America which
did
not seem to be
dependent
on her living there. Some of the projects she is involved in now are based in London and some are based abroad. She produced three letters, two of which suggested being based in the US would make it easier to pursue her business interests. Having
considered
the evidence on this aspect it has to be looked at in the
context
that if the mother's application is refused she is still likely to, and will be able to, spend significant periods of time abroad, whether for work or pleasure, or a
combination
of the two. She will be in a position to exploit the US market, whether she lives there full time or not.
- There were a number of references in the mother's statements to the father not paying
child
support. However, she accepted in oral evidence that the parties had agreed financial arrangements regarding the support of the
children
when they separated and at no stage since had she asked that that arrangement should be
changed.
I
do
not regard these assertions as having any relevance to the issue I have to
determine.
- The final part of the mother's reasoning was the lifestyle, education and environment in south USA would be "great for the boys". There is no
doubt
Y's home is
very
pleasant, there are good schools and the weather may well be
considerably
sunnier than it is in London. However, the evidence also
demonstrates
that the
children
have
very
good homes in London and holiday homes in the
Caribbean,
they are
very
well established in the English education system where they have been all their educational lives and have flourished under that regime. There is no identified opportunity that is offered in south USA that is not available in London. London is a known quantity in all aspects of the
children's
lives. Part of the mother's
case
emphasises the importance for the
children
of seeing their parent's being happy and settled and the mother's happiness would be significantly enhanced if she was able to settle in her relationship with Y in south USA. That needs to be balanced with other relevant
considerations,
in particular the impact of the move on the
children's
relationship with their father.
- The mother made
clear
in her evidence that if she was able to go to south USA with the
children
there would be
continuity
of her key staff who are well known to the
children,
in particular, the
children's
assistant, the mother's PA and the housekeeper. This would obviously give
continuity
for the
children.
- The mother's position regarding the time the father should have with the
children
after the move to south USA is that the regime here should be replicated, namely a 20/10 split in the school term times and an equal share of the school holidays. Her evidence is that she still regarded that regime as being best for the boys. She said in her oral evidence "….I have always wanted
D
to be included in the boys' lives, not just holiday time but also the term time, and I would hope that in south USA we
could
still maintain a 20
day,
10
day
contact
schedule, and I believed that it
could
be true because I think he is brilliant and
creative
and totally
capable
…..I truly believe that he
could
make this happen if he wanted to." The mother maintained her position that she felt the
current
regime worked best for the
children
and that the father should be involved
during
term time as well as the school holidays.
- The father's opposition to the mother's application
centres
on the impact the move will have on his relationship with the
children.
He
described
in some
detail
the implications of running his business. It is heavily reliant on his personal involvement. Much of his work involves face to face meetings, either with
clients
(private or institutional) or account managers. It is mainly based in London, mainland Europe, north America and Asia. With the
children
being based in London he is more easily able to
combine
running his business and spending time with the
children
during
the school term time.
- Like the mother he has staff who are familiar and known to the
children
and who he is able to effectively
delegate
to when necessary. Much has been made in the oral evidence of the fact that the father
does
not sign the homework book for the
children
or
do
much homework with them. When they are with the father much of it is
done
with the nanny employed by the father who the
children
have known for a number of years. Although this is less so with A who, he says,
does
a lot of his homework unsupervised. It may well be that the nanny helps with or supervises much of the homework when the
children
are with the father but that
did
not
diminish
the importance of the
children
being able to spend significant periods of time with the father
during
the school term time with him in his home. He gave evidence of the routine
during
the time the
children
were with him which is something the
children
have known
virtually
all their school lives. When they are with him he spends most evenings with the
children
when he gets back from work in the early evening, talks about the
day
with them,
discusses
what they have
done,
plays with them, baths B and reads to them. There have been times when he has work
commitments
in the evening, when he has not been able to attend school events but that has not
diminished
the significance for the
children
of them being able to spend time in their father's home
during
term time. It is of note that the independent social worker
commented
on the "seamless" way the
children
regarded the arrangements and, unusually in her experience, there was no hint of things or equipment being left in one home or the other. The
children
regarded each home and each parent as equal.
- In his oral evidence the father explained that it was not going to be logistically possible for him to have 10
days
every 30
days
during
the school term time in south USA. It is agreed he has no business interests there and it was not pressed that he
could
effectively operate his business 'remotely'
during
that time. His
case
is that he
can't
run his business that way, it is
very
dependent
on face to face
contact
and he
can't
be out of the running for such long periods at a time. It is possible in London as that is one of the
centres
of his business. Europe, where he also has offices, is not that far away. What was suggested to him by Mr
Cobb
QC was that now his relationship with X was over, and he accepted that about one third of the four months he spent in north-east USA each year was attributable to his relationship with X, he
could
simply move that time (estimated to be 35
days)
to be in south USA with the
children.
The suggestion being that the 35
days
would equate to the weekday time within the 10/20 regime
during
the school term time (there are about 7 or 8 of these over a year) and the weekends
could
be spent at his property in the
Caribbean.
That way he would not exceed the maximum number of
days
in the US for tax reasons. In my judgment this suggestion fails to recognise (a) the proximity of the father's work in north-east USA. He said he went into his office each
day
when he was in north-east USA with X. That would not apply in south USA. The extra time attributable to X was not identified as being specific time periods or suggested as being
compatible
with the school term
dates;
(b) the mother in her own oral evidence accepted that travelling to the
Caribbean
each weekend, either end of the father's 10
day
parenting time, was not in the
children's
interests. She even retreated from it being a good idea for one of those weekends. I accept the father's evidence that if the move to south USA
did
take place his parenting time
during
the school term would probably be once a month for the weekend or possibly twice every five weeks.
- I am satisfied on the evidence I have heard that the father would not be able to replicate the
current
term time parenting time he has with the
children,
either in quantity or quality, in south USA. The position in terms of quantity is outlined in the previous paragraph. The
commitments
to his business and the logistics of the location of south USA, however "brilliant and
creative
and totally
capable"
the mother may regard him to be, means that he will not be able to spend the 10
day
time periods in south USA
during
the school term. The position in relation to the quality of the time is also, in my judgment highly relevant. It is of significance that the
current
term time parenting is in his main home with known structures in place that have enabled the
children,
in the words of the independent social worker, to move in a seamless way between each home. The
children
have not only been able to experience time with their father but it has been in a place that is his home. That would not be the
case
in south USA. It would either be in a hotel or other accommodation that would be of a
different
quality, it would not be his home and he would either have to
create
a temporary structure out there or transport the relevant people who work with him in London to south USA for the time he is there. This was perhaps most
vividly
brought into focus when the father was asked about
various
scenarios by Mr
Cobb
QC. It was put to him that he
could
continue
to operate his business in north-east USA if he was in south USA, as he
could
fly up for the
day
for appointments. It was suggested that if he
did
not have the structures in place in south USA the
children
could
return to be with their mother and/or be looked after by those employed by her to
do
this in the mother's household. Under the
current
regime that would be absorbed by those in the father's home in London.
- There are
changes
on the horizon in the father's
circumstances.
The breakdown in his relationship with X will mean that the
children
will see much less of her
children
who they are
clearly
close
to. The nanny who works for the father who is well known to the
children
has moved back to Australia and is going to get married. At the moment she still returns to London to be with the
children
during
the school term time when they are with their father. It is unclear how long she will
continue
to be able to
do
that. The father plans for another member of his household, who has been working for him for three years and has been away with them on a number of occasions, to step into the nanny's role
- There
can
be little
doubt
that both parents will be
distraught
if the outcome is against them.
- The mother made it
clear
in her evidence and to the independent social worker that she would be
devastated
if her application failed because of the impact on her relationship and wellbeing. She said in her oral evidence she would appeal. However, this has to be
viewed
in the
context
of the reality in terms of the integration that there
could
be on the ground between the two families in the widest sense. The mother was
clear
that she saw this as the next stage in her relationship with Y and there are obviously benefits to A and B in seeing their mother more settled. However, in fact A and B and Y's
children
would be unlikely to see any more of each other than they
do
now. A and B would see more of Y but probably less of their father.
- The father made it
clear
in his evidence and to the independent social worker his
devastation
if the application was granted. He said in oral evidence he would be "absolutely
distressed;
absolutely
crushed;
destroyed.
Everything I have tried to build for them, their home life, their family life, friends and infrastructure, everything I have tried to
create
for them around us would be gone, and it would just be
completely
different..."
I accept his evidence that he would not be able to replicate the
current
regime in south USA, the
children
will spend less time with their father,
certainly
during
the school term time and such time as he
does
spend with them will be in
very
different
circumstances
than he
does
now. That has to be taken into account.
- In
considering
the position of each of these parents following the
court's
decision
I am
clear
from the evidence I have read and heard that
despite
the
decision
being a
crushing
disappointment
for one of them they will
continue
to
do
what is best for the
children.
The mother to her
credit
said that she would
continue
to
do
her best for the boys as she has always
done,
she would support the boys in the English education system and in their routine whatever it is the
court
decides.
She has
continued
to
do
that
during
the
currency
of her application. The same applies to the father. He will
continue
to
do
his best in any
circumstances
for the boys.
The
Children
-
Despite
the extent of the
dispute
between the parties regarding this application, and the uncertainty it has no
doubt
caused
for the
children,
the evidence is
very
clear
that the
children
are in a situation that works. They are flourishing and thriving in all aspects of their lives, including
developmentally,
socially and educationally. All their needs and interests are being met by their parents to such an extent that there is no
discernable
difference
between the two households. This is borne out by the schools and the independent social worker. As the independent social worker
described
the
current
arrangement "It just seems
very
seamless" and she agreed that the
children
had no sense of one parent or one household being more important than the other.
- For the majority of their lives the
children
have been
cared
for within a shared
care
arrangement. It has been in existence for nearly 6 years. From the boys' perspective
during
that time they have had two homes and two primary
carers.
Whilst since September 2009 the term time
division
has not been precisely equal (it has been nearer two thirds one third) that has not undermined the fact that there has been shared
care
of these boys by the parents. That is how it was
described
by the independent social worker and I agree.
- Both parents ensure the
children's
needs are met. They are interested in all aspects of their lives and
development.
They are both "hands on" when they
can
be. The mother has attended more school events than the father and had signed their homework
diary.
Criticism
was sought to be made of the father that this
demonstrated
a lack of interest on his part or an inability to suitably prioritise his
children's
needs in a way that undermined the genuineness of his opposition to the mother's proposed move and his real
commitment
to the
children.
I
did
not regard this to be the
case,
when
considered
in the
context
of all the evidence regarding the father's
very
strong relationship and time with the
children.
He gave
compelling
evidence of his
day
to
day
involvement with the
children
when they were with him
during
the school term time as set out above. I
do
not
doubt
the mother is a better attender at school events than the father. If the
children
remain living here it is an aspect the father may be wise to pay more attention to but that
did
not, in my judgment, undermine his significant
contribution
to the
children's
welfare
during
the school term time when they are with him.
- The mother's
case
is that the
current
London arrangement regarding
division
of the time the boys spend with their parents works best for the boys (the mother
described
the boys as "thriving" on it; that it is "important for the boys that they have his [the father's] input into their life, their school life and their social life") and it
can
be replicated in south USA. As the independent social worker said in her evidence the mother was "
very
clear
that in her mind the
current
arrangements best suit the needs of A and B". However, when pressed about how that
could
work given the father's position she repeated that "he is brilliant and
creative"
and she truly believed he
could
make this happen if he wanted to. On the evidence I agree with the observations in the
closing
submissions on behalf of the father this is a rather starry eyed and blinkered
view.
- On the evidence the reality is there are real
difficulties
in this being
done
for the following reasons:
(1) The father has a business life which requires him to travel extensively to meet
clients
and managers, much of which needs to be face to face. Apart from London his business is mainly
centred
in Europe, north America and Asia where the
clients
and managers need to see him. According to the father he uses the telephone to some extent, but not the
computer
and
does
not
conduct
his work remotely. It is accepted that the father has no business
connections
with south USA. Whilst the mother's
closing
submissions have
drawn
attention to the father's business
connections
with north-east USA, it is not going to be possible or realistic for him to effectively block out 10
day
periods (probably more if the travel time and time
difference
is factored in) two or three times a school term and be present in south USA, in the same way that he
currently
does
in London.
(2) The mother suggested that any
difficulties
the father has with the number of
days
he is able to spend in the USA for tax reasons
could
be resolved by him taking the
children
to the
Caribbean
on both of the weekends in the 10
day
block he would have with the
children.
The father has always said this is not practical and the mother in her oral evidence accepted that this was not good for the
children
"I would hope that they would not [fly out each weekend] because I
do
not think it is great for the kids to be flying out each weekend....I
do
not think it is optimal for the kids."
(3) The
children's
home life with the father is a significant part of the shared
care
arrangement. The quantity and quality of the father's time with the
children
is important. In London they spend time with the father in his home where he has structures in place to
care
for the
children.
That simply
cannot
be replicated in south USA or anything like it. In all likelihood the father would be in accommodation or a hotel where he
does
not spend any time other than when he had the
children.
His home life would not be there, neither would his work or social network. The time the
children
spent with their father would be
very
different
than it has been to
date,
they would not be sharing his home life in the way that they
do
now. As the independent social worker said you would not be
comparing
like with like it [time in south USA] would be of a "
very
different
quality and nature because of
course
the father would only be going to south USA for the purpose of seeing A and B. In London as well as obviously the important time with the boys he has his own friends here, his own network, his business." She observed "the whole
concept
would be
different."
(4) The parent's relationship with each other
concerning
the
children
is at a fragile stage. They both accepted in evidence their
communication
needs to improve. Both gave the attitude or actions of the other as the reason why this is so. They have both said things in the
context
of this
difficult
litigation that have not helped. The mother in her statements and in her
discussions
with the independent social worker has been
very
critical
of the father (for example where she has suggested he
does
not prioritise the
children).
The father's behaviour to the mother on 7th January
2011
was totally unacceptable. There is, in my judgment, a real risk that with increased physical
distance
and the
consequent
logistical
difficulties
in making the arrangements for the
division
of time the
children
spend with each parent if they move to live in south USA the fragility of the parents'
communication
would result in them spending less time with their father.
- The reality, in my judgment, is that if they move to south USA it is
very
likely the father would spend significantly less time with the
children,
possibly only one or two weekends a month. That would significantly reduce the time he spends with the
children,
it would severely limit the opportunity he has to be involved with the
day
to
day
life of the
children,
in particular their school life in the widest sense. Such a reduction in quantity and quality of his time with the
children
would be a significant
change
from the
current
shared
care
arrangement and would not, in my judgment, be in the
children's
best interests. Although the independent social worker
did
comment
on the
current
strength of the
children's
relationship with their parents
despite
the periods they spent apart from them (half the school holidays or
during
the 20/10 split in term time) the time spent with their father, if the
children
did
go to south USA, would be of a
different
quality than it is
currently.
It would be likely in time to
distance
the
children
from their father, have an adverse impact on the strength of their relationship with their father and, as a result,
cause
them
distress
which would not be in their interests.
- The mother
did
suggest in her oral evidence that if the father was unable to replicate the 20/10 split there
could
be increased time in the holiday periods to
compensate.
The
difficulty
with that is that whilst it may be possible to replace the time on a numerical basis it would, from the
children's
perspective, be
very
different
from the time they have with their father now, not only in frequency but also the fact that it would be out of school term time. That would further
distance
the father from the involvement he has had in their lives (particularly their
day
to
day
lives) under the
current
shared
care
arrangement.
- The
children's
wishes and feelings are
clearly
important. A has just
celebrated
his 13th birthday and B is nearly 8 years old. In
considering
the
children's
wishes the
court
needs to
consider
their age and understanding. Their
views
need to be
considered
separately, taking into account the following matters:
(1) An important
consideration
is that the boys are keenly aware of their parents'
differing
views.
I have no
doubt
both parents have spoken to the
children
about this issue and have made their
views
(both explicitly and implicitly)
clear.
As the independent social worker observed "both boys are
very
aware obviously of this application, especially A. He has understanding and anxiety about what happens, the impact on his parents." A poignantly said words to the effect to the independent social worker "When I am with Mum I think it is a great idea and when I am with
Dad
not so". Both parents have involved the
children
in a way that has not been helpful. For example, the mother should not have sent the
children
to their father on the 5th July without him knowing what had been said to them, the father should not have
discussed
the issues so openly with the
children
seeking their
views.
As a result any evidence of the
children's
views
as reported by the parents has little, if any, weight as the
children,
particularly A, would have been
very
alert to what that particular parent would have wanted them to say. The action taken by the parents has made the task of evaluating the
children's
wishes and feelings all the more
difficult
for the
court.
(2) The
views
of the
children
expressed at any one time need to be
considered
in
context,
for example the independent social worker
commented
that when she saw A he had just taken the SSAT exam and was focussed on the US school system, B had been
doing
assessment
days
for London schools and was focussed on those.
(3) Both
children
have no real understanding of the likely impact on their time with the father that a move to south USA would entail. A thought in his emails he sent to the independent social worker he would go to south USA and see his father "a bit more than he
does
now" and B thought his father would
come
maybe every weekend, maybe 3 weekends a month. The independent social worker accepted that she had not addressed the issue of the
children's
views
if relocation meant they would see less of their father, as she said "With the benefit of hindsight I wish I had explored that more explicitly with them." The mother acknowledged in her evidence "nobody
could
imagine that
D
would only see the kids a weekend a month...the
children
could
not imagine it and I
certainly
could
no..I
do
not think they would understand..it is not what they would want." I reject the suggestion in the
closing
submissions on behalf of the mother that
due
to the
comments
that have been made to the
children
by the father (that if they went to south USA he would spend less time with them) they are therefore fully aware of the implications regarding the reduction in time they would spend with him if they moved. This is perhaps best illustrated by A's email to the independent social worker when he says he would like to spend more time with his father than he
does
now.
(4) A was obviously hesitant about expressing his
views
in the light of his previous experience with
Cafcass
and the reaction of his father.
(5) As the
views
expressed by A have been expressed by email the independent social worker accepted that it was
difficult
for her to assess (even though she thought they were expressed in A's language) what message was being
conveyed,
for example by him stating "no one has influenced me" as to whether it was literally
correct
or not. Also, the significance of him stating that he wants to move to school in south USA and see more of his father than he
does
now. That is asking the impossible but there was not an opportunity to explore that.
(6) I have
considered
carefully
the evidence and what has been submitted about the father's temper and over emotional language with the boys and its impact. Having had the opportunity to observe the father giving oral evidence over two
days
he
did,
on occasion, appear unable to provide suitable boundaries to protect the
children
from his own sometimes over emotional responses to situations. According to A when the father is sad he [the father] "shuts himself off", the father sulks and A tries not to make him angry when he is like that. A's headmaster, thought that A was a little frightened of his father at times as the father
could
express his
views
forcibly. The father agreed that it was possible that A
could
be a little frightened of him when he expressed himself forcibly. Having
considered
all the evidence I
do
not regard this feature of the evidence as providing a foundation for the
court
to give more or less weight to the
children's
wishes. This was not a feature that the independent social worker was asked about and she
did
not regard it as being of significance to
comment
on in her report.
(7) The
children
have not spent significant periods of time with Y or with his
children.
It is of note that they were not mentioned by the
children
to the independent social worker as significant people in their lives.
(8) The
court
is left with the position that was summarised by the independent social worker in her oral evidence that "they [the
children]
are slightly pulling in overall
different
directions,
that A is more leaning towards wanting to go, and B less so."
(9) Turning to the father's position (if the
court
does
refuse the mother's application) that the
division
of time between the parents
during
the school term time should
change
from the 20/10 arrangement to an equal
division;
this was not specifically
discussed
with the
children
by the independent social worker.
Welfare
Checklist
- Turning now to
consider
the relevant parts of the welfare
checklist:
(a) ascertainable wishes and feelings of the
children
in the light of their age and understanding:
A is 13 years old. He has been acutely aware of the
dispute
between the parents and what each parent wants. Since July 2010 he has had to navigate a
difficult
path, endeavouring to keep both parents happy. He was unable to express
clear
views
to the independent social worker when he met her but was able to send her emails setting out his
views.
I regard it as notable that when looked at together the emails ask for something that he
can't
have namely, go to school in America and see his father more. They reveal, in my judgment, a young man who is still
desperately
trying to keep both parents happy. Neither of them were able to see that it was not in his interests for him to be put in such an impossible position. I
do
take into account the fact that he sent these emails
very
soon after he had taken his entrance exams for the American schools.
B is 8 years old. Because of his age and level of understanding his
views
are
very
much
dealing
with the here and now. He has remained relatively
consistent
in wanting to stay in this jurisdiction, it is all he has known.
(b) Physical, emotional and educational needs:
The evidence is
very
clear
that the
current
regime works and the boys are thriving under the existing arrangement which meets both their physical and emotional needs. For the reasons outlined above, I
do
not regard the evidence that the father (or the mother for that matter) has limited time away when the
children
are with them as being significant. The significance is not about quantity, but quality and quantity. The father has relied on the nanny employed by him but it has been in the
context
of the
children
being in the father's home and no
criticism
has been made of what the nanny has
done.
I agree the father has no real plan for replacing the nanny, although he
did
suggest that another member of his household who is known to the
children
and has been away with them on a number of occasions would take over her role. It was not suggested to the father that he would take steps to replace the nanny in a way that was other than in the
children's
interests.
The educational needs of the
children
are being met if they remain in this jurisdiction. Both parents speak highly of the schools. The father accepts A's
current
wishes that he
doesn't
want to board. The plan if he remains here is for him to attend a London
day
school. Since the hearing
concluded
the
court
has been informed that A has been offered a place at one of the London
day
schools
chosen
by the parents. If he moved to south USA he would attend one of two possible schools. Since the hearing
concluded
the
court
has been informed that both
children
are likely to be offered a place at one of the schools in south USA. In relation to B he will either attend a London prep school if he remains here and one of the schools in south USA if he moves.
It is right that both
children
are moving schools this summer so it would provide a natural break. However, even though the
children
are
described
as being
very
adaptable and sociable the move of home and school may be more
difficult
than just a move of school with all other structures and arrangements being in place.
(
c)
The likely effect of any
change
in
circumstances
If they remain here there will be a number of
changes
for both
children:
(i) A
change
of school, albeit in an educational system they are familiar with which has a proven track record of meeting their needs.
(ii) A
change
with the
departure
of the father's nanny, although it was not suggested to the father that he would replace the nanny in other than an appropriate way.
(iii) A
change
in going to the father's English holiday home
during
the autumn season, although the father is investigating renting a replacement property.
If they go to south USA there will be a number of
changes
for both
children:
(i) A
change
of
country,
to one that they are familiar with but have not lived in.
(ii) A
change
of home, to a home they are familiar with but have not spent significant periods of time in.
(iii) Living full time with Y which they have not
done
before although their mother and familiar personnel (the
children's
and the mother's assistants and the housekeeper) will be with them.
(iv) A
change
of school.
(
v)
A
change
in the quantum and
circumstances
in which they would see their father.
When
considered
as a whole the more significant
changes
will take place if they move to south USA and with those
changes
there are increased risks of some aspects not working. Whilst both boys have been
described
as adaptable and sociable taken together the move to south USA will amount to a significant
change
in their lives. Although the parents will
do
their best to protect the
children
from any adverse
consequences
caused
by those
changes
the risks remain higher,
due
to the larger number of
changes
in the move to south USA in particular the
change
in the time and
circumstances
when they will see their father.
(
d)
Age, sex, background and any
characteristics
the
court
considers
relevant
Both
children
will be
changing
schools this summer. Both
children
have an international heritage and have been
described
as international
children
who are
very
used to travelling.
(e) Any harm which he has suffered or is at risk of suffering.
I have already observed above the
concerns
I expressed about the
communication
difficulties
between the parties and the effect of the uncertainty on the
children
as a result of the application. As I raised with each of the parents in their oral evidence it is
vital
that they both sensitively manage the
communication
to the
children
of the
courts'
decision
and any further action either party may take. There should not be a repeat of what happened in July. Further both parties agreed that they needed to take active steps (possibly with the involvement and assistance of a third party) to improve their
communication
with each other to relieve the burden and uncertainty on the
children.
(f) How
capable
each of his parents and any other person in relation to whom the
court
considers
the question to be relevant is of meeting his needs.
Both parents have at times been unable to shield the
children
from the
disputes
that have arisen between them. The father has the more
volatile
temperament of the two but they are both strong
characters.
However,
despite
their
differences
they have both been able to make a significant
contribution
to the welfare of the
children
since they separated to the extent that the evidence
clearly
establishes that what the
children
have now is attributable to the significant role that has been played by both parents in the shared
care
regime they have
devised
here. It is in the
children's
interests that as far as possible both parents retain a significant role in the
children's
lives.
The
court
had the opportunity of observing Y. He was impressive, laid back and understood the issues involved in the
case.
However, from the
children's
point of
view
he is not a significant person in their lives, even though they have spent some time with him in
various
locations.
From the point of
view
of the
children's
welfare both parents being actively involved in the shared
care
of them is what best meets their needs.
(g) The range of powers available to the
court:
Whilst the
court
could,
in the event of the father not being able to replicate the 20/10 term time regime,
compensate
the father's loss of time with increased time
during
the holiday periods this would need to be balanced with the
court's
overall
view
as to whether this is in the best interests of the
child
in weighing up the relevant
considerations
for and against the move to south USA.
Decision
- Having
carefully
considered
all the evidence and the welfare
checklist
I have
come
to the
clear
conclusion
that the welfare of each of these
children
is met by the mother's application being refused. I recognise that this will be
devastating
for the mother but I have
come
to this
conclusion
primarily based on the evidence that the
children
are thriving under the regime the parents have
devised
in this jurisdiction and the adverse impact on their time and relationship with their father if they
did
move to south USA. For the reasons set out above I
do
not believe it
can
be effectively replicated if the
children
move to south USA and that any
different
regime will not meet the
children's
needs. With the welfare of these
children
as the lodestar by which I am guided I am satisfied that the move to south USA would not meet the welfare needs of these
children,
however
disappointing
that
decision
will be for the mother.
- In the event that the application is refused the father seeks an adjustment of the
division
of time between the parents in term time from the 20/10 regime to an equal
division
(two weeks alternating). The father says (a) he entered into the
current
regime as a temporary measure that would be reviewed (b) the setting up of schedules of time with each parent is more
complicated
under the 20/10 regime than under an equal
division
of time (
c)
the
children
will benefit from spending equal time with each parent (
d)
it is what the
children
want although the father accepts (as
does
the independent social worker) they were not specifically asked about this. The mother objects, she says the
current
regime works and is in the best interests of the
children.
- I have
considered
the welfare
checklist
in reaching my
decision.
In my judgment the
children's
interests are best met by the
current
regime remaining in place for the following reasons: (a) It has been shown to work, the
children
have been
described
as thriving under it; (b) In the
circumstances
of this
case
the
court
is unlikely to get any further relevant information from seeking more information as to the
children's
wishes and feelings. As set out above these
children
have already been over exposed to the
dispute
between these parents and further
delay
to seek their
views
will risk them becoming further involved with no obvious benefit. Both
children
are
very
close
and loyal to each of their parents. (
c)
An equal
division
of time would have the advantage of simplicity in terms of the
division
of time and thereby reduce the
conflict,
but that is only one of the
considerations.
(
d)
The
children
will be acutely aware of the impact on the mother of her application being refused. To increase the amount of time the
children
spend with their father at the same time may send a
confused
message to the
children
and
cause
further uncertainty and
conflict
which would not be in their interests. The father's application is therefore refused.
- As I have already set out above I am greatly
concerned
that these
children
should not have mixed messages about the outcome of this
case.
One of the striking and
very
positive features of this
case
is the wealth of evidence that rightly pays tribute to each of the parents' ability to
contribute
to the
care
of the
children.
- It is therefore incumbent on these parents to work together to ensure that the
children
are given the same message by each parent. There are no winners and losers in this situation, all the
court
has endeavoured to
do
is reach
conclusions
on the evidence that are in the best interests of the
children.
Both these parents have to take responsibility to protect the
children
from their ongoing
communication
difficulties
and take steps to improve their method of
communicating
with each other, which
can
only benefit the
children.