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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> M (A Child)  EWCA Civ 2356 (13 December 2017)
Cite as:  EWCA Civ 2356
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Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE PETER JACKSON
|Re M (A Child)
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 Claire Heppenstall (instructed by Direct Access Scheme) appeared on behalf of the Respondent
Crown Copyright ©
Lord Justice Peter Jackson:
"In my 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:
"It may 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 distance relationships 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 the mother 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."
"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 changing moment 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."
"This is probably one of the most 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 and myself 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 remarkable 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 in respect 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?
In referring 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 out my 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 very regular 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 that most 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 not mean 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 therefore really 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 the mother 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 the mother'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 and recommendations 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 be met 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 the mother'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 is more 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 a child'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.
"I also bear in mind 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."
"If at any time a judge who is conducting proceedings considers they should be reallocated 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: