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Cite as: [2014] EWCC B52 (Fam)

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This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the child[ren] and members of their [or his/her] family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

Neutral Citation Number: [2014] EWCC B52 (Fam)
Case No:FD 12 P02 603

IN THE MILTON KEYNES DISTRICT REGISTRY OF THE FAMILY DIVISION

IN THE MATTER OF [THE CHILDREN ACT 1989]
AND IN THE MATTER OF A (A Child) (No 2)

6 February 2014

B e f o r e :

HIS HONOUR JUDGE ANTONY HUGHES
(sitting as a s.9. Deputy High Court Judge)

____________________

Between:
B
Applicant
- and -

C

Respondent

____________________

Mr Leslie Samuels Q.C. (instructed by Devonshires Solicitors) for the Applicant Mother)
Mr Christopher Wood (instructed by Heald Solicitors) for the Respondent Father

Hearing dates 22- 25 January 2014

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    Introduction

  1. The court is once again concerned with A, who is a little more than 5 years and 10 months old and who was born on 19th March 2008. He is the son of B and his former wife, C.
  2. The father, who is represented by Christopher Wood of Counsel, applies for a sole residence order in his favour.
  3. The mother, who is represented by Leslie Samuels QC, makes application for permission to remove A to live with her and her family permanently in D.
  4. In determining these applications it is A's welfare that is the court's paramount consideration. A is represented through his guardian, by Celia Graves of Counsel.
  5. This is effectively the final welfare hearing in relation to A the court having already carried out a lengthy fact finding hearing which culminated in a judgment of 30th July 2013. In that judgment the court determined that the allegations made against the father that he had sexually abused A were not true but the mother had honestly believed the abuse allegations to be true. The nature of that "evolving belief" involved her questioning of A which effectively contributed to his continuing but erroneous disclosures.
  6. The court gave the mother an opportunity to come to terms with the judgment given her honest but mistaken belief in relation to A's abuse and highlighted the risk to A if the mother was not able to deal with the findings of the court and promote contact with the father in a proper way.
  7. In any event the court found that A had been significantly harmed in the form of emotional abuse as a consequence of the high levels of conflict between the parents. Additionally the court made some observations of the father in relation to his litigation conduct and it is against the background of that judgment, and those findings of fact that this welfare hearing is determined.
  8. The court expressed concerns regarding the mother's presentation in the witness box and her emotional and psychological fragility. That issue coupled with the need to identify as to whether the mother had been able to come to terms with the judgment led to the instruction of Dr Wear, consultant psychiatrist, whose evidence I shall come to presently.
  9. The court also made extensive orders in relation to contact and A has been enjoying generous and extensive contact with his father for the past six months or so.
  10. Dr Alan Wear is a consultant psychiatrist and medical director at Southampton Priory Hospital where he has been for the last sixteen years. He is a jointly appointed expert in this case and has extensive experience in preparing court reports as well as an active clinical practice.
  11. He was asked to deal with the mother's psychological and psychiatric presentation by reference to a series of agreed questions following the court's fact finding judgment in July of 2013.
  12. I shall deal with those questions in turn and his replies.
  13. He was asked whether, in view of the mother's belief that A has been sexually abused by his father as to whether, and if so to what extent, the mother now accepts the court's findings that father has not sexually abused A.
  14. He has recorded that mother appears to accept the findings of the court and explained in oral evidence as to how mother has rationalised the events by on the one hand saying that she could not "unhear" what she has heard (in terms of A's disclosures) but has recognised pragmatically that her insistence that he had been abused in the teeth of a full forensic analysis of all the evidence, would have an adverse emotional impact on A. He explained that the mother's pragmatic acceptance was part of a process and she had moved on by the time he saw her in October 2013. He was alive to the fact that internally the mother may have different thoughts about her allegation but her acceptance had a face of validity even though there may not have been explicit acceptance that A had not been abused by his father. The fact that her perception that A has been "more relaxed" since the court case may have assisted her in the continuum of her position and he acknowledged that the decision of the court had removed responsibility from her.
  15. He was able to acknowledge that the reported problems by school in relation to A may not of course indicate that A himself is more relaxed but it is her perception of him that is important in terms of assessing her thought processes in relation to whether she still holds the belief that he has been sexually abused.
  16. It is of course self evident that the mother may still maintain that belief but his assessment of her was that she was prepared to go along with the decision of the court.
  17. He was taken to that section of his report when he recorded that mother had said in terms of the "allegations" that "they are behind me" and further, "if I did not accept the findings then it opens Pandora's Box." She has said in terms of the court process "I think my child has now been heard" and this may be evidence of some internal dilemma but the process of internal questioning was normal in relation to many facets of life and there was a distinction between belief and pragmatic acceptance.
  18. He has suggested in terms of the mother's previous conviction of the veracity of her five year old's allegations concerning his father that mother was "suggestible" and that should be viewed in the context of a dysfunctional relationship with the father and she "followed her heart." This is explained by virtue of the fact that an individual is more receptive to ideas that may fit in with her own view of the world. The mother's opinions have not "turned on a sixpence" but so far as he is concerned he perceived that mother felt that she had done her duty.
  19. He accepted the proposition that if she was not able to accept the judgment then she had evidentially thought about the potential of emotional abuse to A. There may be an element of pragmatism in that she risked losing A if she maintained the truth of the allegations but accepted the proposition that it was more the mother's recognition of damaging the child that she clearly loves as well of course her recognition that maintenance of the truth of the allegation could damage herself.
  20. A significant feature emerged from his evidence that this was all part of a progression and he would expect to see her acceptance develop over time and by October he described the mother as being "more light on her feet." He emphasised the importance of the mother's faith as part of her rehabilitation to deal with aspects beyond her control.
  21. Accordingly in answer to the question as to whether the mother maintained the view that A had been sexually abused by his father and what impact that would have on her parenting, he recorded that it was his assessment that mother does not maintain that view for all the reasons that I have stated above but if she did, it would undoubtedly have a detrimental effect on the relationship between A and his father.
  22. Crucially in relation to this case he was also asked (and this was question 3) to provide an opinion on the mother with regard to contact hereafter between A and his father and her ability to promote this relationship and facilitate contact.
  23. He recorded that mother appeared quite positive about A's relationship with B but and, in my judgment, herein lies a potential for conflict, she remains quite negative about B and her relationship with him believing as she does that there is no prospect for a healthy interaction between herself and B because, on the mother's view, the relationship becomes manipulative and produces conflict. He noted that when the mother was talking about the father she felt very dejected. Her view is that she had made a mistake in reigniting the relationship with the father and regretted it. She had taken a pragmatic stance but discussion with the father leads to arguments. I am bound to say that this does not bode well for A with whomsoever he should live and it has been a significant feature of this case that even the most basic childcare arrangements involving, for example, handovers at contact, have had to be micromanaged by the court.
  24. The relationship with the father was never going to be good and there was a risk, according to this expert, that small misunderstandings would be interpreted as a device to cause upset. He indicated, and the court wholeheartedly agrees, that this must improve for the benefit of A and certainly A's recorded behaviour at school should be a call for joint concern and collaboration by the parents as there must be a substantial risk that A is an emotionally conflicted child. In recording that she is able to ignore A if he says something about his father so that it does not detract from the relationship that A has with his father is a positive rather than a negative indicator and perhaps some insight that she has shown not to add credence to the type of bizarre disclosures that A was making historically.
  25. In terms of the mother's mental health, he was asked to comment on her emotional and psychological presentation and fragility in the context of her belief that her child is being sexually abused by his father and the impact of the court findings.
  26. He has recorded that the mother has had emotional and psychological difficulties in the past but even after reviewing the general practitioner notes which records her eating disorder, that there was nothing to suggest that the mother had mental difficulties or a personality disorder. In fact he has described her as being "emotionally quite robust" in that she seems to have moved on from her position of certainty in relation to sexual abuse to one of looking forwards to the future and ignoring the events of the past.
  27. His view is that the mother remains psychologically vulnerable but was supported by her family and her membership of the Church of Latter Day Saints.
  28. He said in oral evidence that if she persisted in her view that the allegations were true this may well have attracted a psychiatric diagnosis.
  29. In the context of the mother's proposed application to relocate to D, his views are best expressed in his very recent letter of 13th January 2014 which in many ways is an echo of what he was saying in his report and I quote: "The contact that [C] wishes to promote between [A] and [B] was, at the time of my interview, positive and that she was not undermining the relationship between [B] and [A]. Her request to travel back to [D] with [A] must be seen in the context of what has gone before. A decision to return to [D] (the opposite side of the world) would have some impact on the contact arrangements between [A] and his father. Although this is a longstanding plan the end point of it would be inevitably to distance [A] from his father and interfere with contact between the two of them. Whether conscious or unconscious it has to be seen as a wish to push her own needs (to live back in [D]) above those of [A's] relationship with his father." In oral evidence he described this as a "self evident truth" as any move is bound to have an impact on contact.
  30. Father's evidence

  31. B is A's father and the author of a lengthy statement of 13th December 2013 in support of his application for a residence order in relation to A and in the event of that being unsuccessful, his clear opposition to the mother removing A from the jurisdiction to live permanently in D.
  32. It was evident not only from his written evidence but also his oral evidence that he had enjoyed good quality unsupervised contact to A since August 2013 and his relationship with A, although always good, has clearly gone from strength to strength. It was evident that the previous history in this case of his contact being frustrated coupled with the false allegations had caused him a great deal of apprehension in relation to the prospect of the mother moving with A to D and the erosion of his hard fought relationship with A, particularly due to the fact that he has felt that there was a lot of catching up to do.
  33. He spoke with passion and conviction, and no little sensitivity, when describing the range of activities he now enjoys with A and the structure that he has provided for A during periods of contact. It is substantially to his credit, and indeed the credit of the mother, that all went well when he cared for A during mother's trip to L in October.
  34. In the event of A not moving with his mother to D and in the event that A either resides with him or resides with his mother, there is a clear agreement in relation to contact to the "non resident parent" based on broadly sensible arrangements of A spending alternate weekends with the non resident parent from Friday to Monday, additional time perhaps in the school holidays for the non resident parent, over and above an equal division of half of holidays.
  35. I draw a number of features from his written evidence. He draws the court's attention to the evidence of Dr Berelowitz in relation to A's primary need to be in a close relationship with both his parents and to be free of discord. He correctly identified that what in A's best interests is closely linked to the relationship between the mother and himself and in doing so acknowledges the court's criticisms of his own behaviour and previous shortcomings.
  36. Rooted in his position is his view that the mother's attitude to him has not fundamentally changed since the court handed down its judgment and he is considerably concerned in relation to what he perceives as the mother's negative attitude to him and what he considers to be unsatisfactory communication in that the mother continues to appear to be unwilling to communicate directly with him. Handovers continue to take place at neutral venues and he received his first text message from the mother after one and a half years, a short time before this hearing.
  37. It does however seem to be common ground between himself and the mother that all has gone well so far as contact is concerned. He is unhappy in relation to what the guardian has reported in relation to her investigations at school and which are set out in her report which, he says, goes to his concern that A needs stability and consistency and he is the person best placed to provide it.
  38. It transpired that he has recorded some of A's words in a diary that he keeps contemporaneously. He is clearly preoccupied, and I do not criticise him for this in view of the history, with some of the things that A has said although perhaps he should pay greater attention to Dr Berelowitz's remarks that whatever A says should be treated with a great deal of caution.
  39. He has carefully set out in his statement A's various remarks on D, religion, family and, on one occasion, skin colour. A seems to be under the impression that he was born in D although that is not the case and when the father has disagreed with him he has become upset. He told his father that he was going to D for a year and he would always see his father on Fridays. When he explained to him that it was too far A said that he would always see his father on Saturdays as it took only a day to get there.
  40. He also speaks about religion and there was an occasion in October when he was driving A past the temple of the Church of the Latter Days Saints when B told A that he did not go to the temple and A became angry and threw a toy at him. Incidentally it seems that B dealt with the matter most appropriately by distracting A and by talking about something else. A has told his father and the father's mother that she is not his grandmother and that his grandmother is in D. He has also said to have told his paternal grandmother that she had "ruined our life."
  41. Although in his statement B indicates that he is wary of drawing any firm conclusions from what A has said or done it is clear that in reality he has been considerably concerned about what A has been saying and feels that A has become more sensitive to differences of nationality and religion, family and colour between the mother and himself and feels the need to emphasise those differences. The father may or may not be right about that but what he is right about is that A continues to feel pulled between his parents who he loves and when the father makes that observation in his statement I agree with him.
  42. He was asked by his Counsel that if he had to draw a circle to describe where he was in terms of A's view of him he said that he would not be in the inner circle of his mind. This was an interesting revelation and, in my judgment, an accurate one. Although I am sure that A loves his father he views him as someone who he interacts with but disapproves of his views on religion as his father is "a non member." The father acknowledged that A did not match his perception of how a person should be and this perhaps is not assisted by the lack of direct communication between himself and the mother particularly at handover. This resonates with other evidence in relation to how close A is to his mother and I was drawn increasingly to the view that A's emotional wellbeing is closely connected to that of his mother.
  43. I am bound to say that, in my judgment, the father has done all he can at handovers to reinforce the importance of A's mother to him. On one occasion he provided flowers for A to give to his mother and he is careful to make no adverse remarks about her in A's presence. I believe him when he says this but it is deeply significant in this case that the father did not even know A's address and he is right when he says that it would be better for A if he could take A to his house and the mother could return A to the father's house and A could see his parents interacting with one another and know that his parents talk about him then that would be better for him. I wholeheartedly agree and although the parties feel that they have made progress there is still more to do to prevent A developing into a further emotionally conflicted child.
  44. His main objection to the mother's move to D is that it would hinder the frequency of his contact; he feared A's relationship with him would be lost or damaged even on the mother's proposals. He said that he needed frequency to build on what Dr Berelowitz described as "a lovely relationship." Telephone and Skype were a poor substitute for a child that does not speak for long on the telephone. His written evidence indicates some considerable doubt in his mind that mother really has moved on from the judgment and the mother's continued negative view about him. He says at one stage in his statement " more importantly, [C's] attitude is inevitably picked up by [A] whether she expressly tells him what she thinks or not" and that this negative attitude towards him has not fundamentally changed. He highlights the significant risk that that attitude will prejudice A's relationship with him and future contact which will be exacerbated if the mother is allowed to take A permanently to D.
  45. It is against that background that the removal application clearly fills him with distress and apprehension and he draws upon Dr Berelowitz's evidence that "relationships with a non resident parent struggles to avoid discord. They also struggle to survive relocation. A combination of severe discord and the furthest possible geographical location is likely to deal a fatal blow to [A's] relationship with his father."
  46. His statement raises other practical difficulties regarding visiting D related to his business although I observe that at least on paper he is open to the appointment of a manager to run some of his business interests in his absence in the event of a move. At the root of his evidence is the fact that he has little confidence that his relationship with A will survive a permanent move to D. I have little doubt that he could afford the cost of travel.
  47. Cross examined by the mother's Counsel he was taken to the judgment and I am bound to say showed a good understanding of the criticisms made of him and the contribution that he has made to the toxic relationship between the parties. He was challenged that he was anxious to deploy any weapon in the litigation. However, in fairness to him, I acknowledge that he faced the most severe and serious of allegations namely sexually abusing his own son and faced the risk of imprisonment and losing his son forever. Perhaps even worse: his son would grow up in an erroneous belief that he had been sexually abused by his own father and the damaging effect of that on him.
  48. He rightly derived the message from the judgment that the conflict caused damage. He was worried and concerned about the future but clearly could not forget the damaging events of the past.
  49. He was criticised that his statement continued to show that he was adversarial. I do not agree. His statement is a measured approach in which he seeks to deploy what arguments he can against the emotionally devastating consequences of his child being located to the other side of the world. However I do accept that there was nothing positive about the mother in his statement although he was able to acknowledge in oral evidence that she was a loving parent but nevertheless maintained his application for a change of residence centering as he did on her lack of ability to promote him in a positive way and the need for A to have stability and consistency by not moving.
  50. Although acknowledging that A's politeness, good manners, kindness, ability to share and a good sense of humour must in some way be attributable to the parenting that he has received from the mother, he was concerned also that A was emotionally hurt and a little confused and a product of the discord.
  51. It was evident that he felt that it was the mother who had exposed him to emotional damage by taking him to a Refuge, involving the police in handovers, obstructing contact, changing schools and forming a negative view of him. Although he acknowledged that he had a part to play in all of this by alleging that the mother had a personality disorder (which he now regrets), it was clear that he was anxious that past events may predict future ones to his and A's disadvantage.
  52. He was taken again to his perception of A's view of him which he continued to describe as 'not inclusive' and he thought that he would be in a better position as the residential parent to promote the mother's relationship with A. He did not think that there would be much by way of substantial reaction from A in relation to a change of residence something that I found very difficult to reconcile with the evidence that he gave in relation to A's view of him and where he stood "outside the circle".
  53. He acknowledged that A's love for him was there but said "it is not in his mind. I am not included" and he clearly bases this on the things that A has said particularly as he does not see A accepting or celebrating the differences between his parents and described A as intolerant of him. He may well be right. It was Dr Berelowitz who reported in his assessment of A that A was positive about his mother in 'deed and word' and that emotional closeness and connection between A and his primary carer was identified by the guardian who reports "[A] loves his mother very much and cannot envisage living without her." She goes on to say "however [A] is building a close bond with [B] and says he "likes going to daddy and daddy does fun stuff." It is unsurprising that the guardian recommends no change of residence given what she perceives to be A's relationship with his mother which, if anything, is supported by B's view of A's attitude to him and where he stands "outside the circle".
  54. B presented in a more nuanced and child centred way when he gave his evidence than he had done in July of last year. He is understandably devastated at the prospect of A moving to D and its potential for damaging his hard fought relationship with his son who he dearly loves. Many of his observations were child centred and his anxiety understandable in this complex and finely balanced case. I acknowledge that A would be the loser without an enduring relationship with such a devoted father and I therefore examined the mother's evidence with care to assess her capability to maintain that positive relationship at distance.
  55. Mother's evidence

  56. C is A's mother and she has filed statements of 18th November 2013 and 7th January 2014 respectively in support of her applications to retain residence of A and to take him to live permanently in D.
  57. So far as the practical arrangements related to such a move are concerned, they have been advanced in so far as they possibly can be to await any formal consideration by the court. The plan would be for her to live with her parents in M which is an area in which a large number of members of the maternal family live. I understand for example that A has no less than twenty-nine first cousins who visit the maternal grandparents regularly. A local state school has been identified and the mother has been impressed with their programme which has a good reputation locally and also has a programme that deals with integrating children with emotional concerns adopting a holistic approach. She liked the extra curricula activities offered including music and the school is located in the centre of M. Having said that she is open to any suggestion of father's in relation to private education but clearly her own funds do not permit this particularly as what resources she has had seem to have been depleted by the lengthy and acrimonious litigation between the parties.
  58. She sets out her contact proposals in her second statement making it clear as she did in her oral evidence that they are only proposals and that she would be alive to more extensive contact. In short form what is offered on paper in any event is that the father should have contact during periods of school holiday in D and she would be happy for A to travel to England for contact with the father during his long school holidays in December/January. She made it plain in oral evidence that that was merely by way of proposal and as a starting point and would welcome additional contact if the father was able to travel to D so that he could be involved in staying locally and taking A to and from school.
  59. Central to the issue of mother's application to remove A from the jurisdiction has been the extent to which she has been able to accept the judgment of the court.
  60. In her November statement she says "in July 2013 I was in a highly emotional and exhausted state. In the preceding twelve months I had felt lost, alone and overwhelmed by my fear that [A] had been sexually abused. I had moved house, lived in a Refuge for victims of domestic violence and felt engulfed by the legal process." She went on to say that by the conclusion of the fact finding hearing she was prepared for the possibility that the court may find that the father had not sexually abused A and explained how she needed time to process that long judgment. I have of course the benefit of Dr Wear's evidence and the mother has explained in her oral evidence that she was prepared to accept the findings explaining that it was part of a process to understand the findings and to understand the implications for A of not accepting it. She has come to realise that the judgment has involved a better result "anyway" for A. She explained the process by which she came to be "at peace" and understand that he was safe and sound in his father's care and things had not occurred.
  61. It is a significant feature in the chronology of this case that she was comfortable when she left A in father's care for two weeks in October when she went to L. She said more than once in her evidence that she would not have been able to do that had she believed that the judgment was wrong. I accept her evidence in that respect and I note the process and the time that she needed to arrive at that particular stage. I accept that if the mother had thought that A was in anyway at risk she would not have gone.
  62. It seems that the trip to L, which I understand involved involvement with her church, was a refreshing one and she was able to draw a line under what had happened and go through a process involving both her mind and heart which she described as "an evolving process" to the extent that she was able to tell me in the witness box that she did not believe that A was abused by his father or that he would be unsafe with him.
  63. She has learnt to handle some of the "odd things" that A says in terms of attaching weight to them.
  64. She acknowledged in her evidence that A needs to have a meaningful relationship with the father and showed some understanding of the father's fears particularly in light of the appalling history in this case. She told the court that she valued the father's relationship with A and wished to encourage and facilitate it and indicated a desire to be flexible over and above what she had indicated in her written proposals so far as contact was concerned in the event of her being given permission to remove A from the jurisdiction.
  65. Although she recognised, after helpful questions from the guardian, the limitations in relation to Skype she was optimistic that it could still be creative.
  66. She has been considerably reassured and heartened by A's good relationship with his father and the way that he has been excited to see his father and apparently chatted quite comfortably about the things that they have done together. She said in terms "father does a good job" and has been pleased to see father's involvement in A's homework by way of example.
  67. It is the guardian who, in her report, catalogues various concerns from the school. In so far as A has spoken positively to the school about "fun times" with his father she said that she was pleased to see this. There are however a number of concerning observations made by school related to A's "poor concentration" and being in "a bubble of his own," not knowing whether he was coming or going, his occasional aggression particularly his aggression towards his mother and, if I may say so, suggestions that A may have been late for school and brought by mother or deposited when unwell. I should say I attribute less weight to these later suggestions having heard the mother's explanation but what I was drawn to was the teacher's reported observation "[A] cannot continue as things are due to the impact on him emotionally."
  68. In broad terms, C has accepted the concerns in relation to A and agreed that he had been aggressive to her saying that he didn't love her and he was angry with her and there is little doubt that A has been displaying behavioural difficulties and was not making progress because of his emotional needs as reported by the school. The only matter that I can draw from this is the judgment that I had already given in relation to this case and the finding that A will inevitably have been damaged by the acrimonious relationship between his parents and I suggest that that will be acted out for some considerable time and I am bound to say that the lack of direct communication between the parents must be a contributing factor in relation to that however many small positive steps may have been made. The father in this case has reported various rather upsetting and strange things that A has said although at the same time in his statement acknowledging that there may be some difficulty in attaching a great deal of weight to them particularly given the history of this matter.
  69. He has remarked to his father about the difference in skin colour and the mother recalls a similar conversation with A saying that the top of his arm was like his father's and the underside of his arm was like his mother and it is plain that mother did not draw anything particularly sinister from that and did not think that A was unduly concerned.
  70. He has of course lost time in attending the local church and a network of his friends there and that may or may not be an explanation in relation to his apparent hostility to his father about being a member of the same church. I am bound to say that C did not appear to be dogmatic about her chosen faith accepting that A would form his own views as indeed have members of her family. He goes to a Catholic school and teaches his mother the way they say prayers at that school and she was open to the notion that A will inevitably have different ideas and different experiences.
  71. From her own standpoint her religion has helped her to accept the judgment and help her to "move forward and bounce back with a positive attitude."
  72. She was criticised for having in effect led an internationally itinerant lifestyle since she was 17 and left D. She said with some force that no matter where she has been in the world she has always returned periodically to D and that is where she regards her home to be. She accepted that she had travelled a lot before she was a mother and she wants to go home to build something solid and it is clear that she identifies with D and with her family and with being from D and she wants A to have that experience. She felt "hopeful" about going home.
  73. At being compelled to remain here in the jurisdiction of this court she became upset. She said she felt "not so hopeful" making it plain as she did to the guardian that she would not leave A.
  74. While having been in this country she felt like a round peg in a square hole and her time in England has been based on someone that she is not. Her marriage did not work. She was here because of a marriage that she is no longer a part of.
  75. She has longed to be part of her very large family and would like A to experience that.
  76. In making her application she expressed the wish for an amicable relationship with the father. She would agree to mirror orders in a court in D to give some security to contact if it was required. After all that has happened she identified a need in A for him to have a happy childhood as indeed she had done. She was clear that too much had been lost emotionally as well as financially in this case.
  77. Perhaps unsurprisingly given the history of this tragic case she was challenged comprehensively on her plans by the father's Counsel. If her application is to succeed it will have an inevitable effect on the father's hard fought gains in relation to his relationship with A and she showed some understanding of the father's fear and the real fear that she identified as him not having his son in his life.
  78. She was challenged that she still really had a negative attitude in relation to the father and that there were pragmatic and expedient reasons for her to say that she accepted the judgment. She showed some understanding how the father may still be upset about the allegations that had been made.
  79. In her latest statement she said that she felt that the relationship between her and the father was at risk of deteriorating as the result of the adversarial nature of the court process saying "it is hard not to have felt almost constantly under attack". She explained in oral evidence that every time she came to court her differences in the past were highlighted and explained the destructive nature of having to keep going to court.
  80. She was open to the suggestion that the father was entitled to disagree with her and challenge her reasons for moving but I am bound to say the litigation has been relentless and gone on for a very long time.
  81. It was suggested that she has always had a negative view of the father and that was demonstrated from observations that she made in the hospital shortly after A's birth and the obstacles that have been placed in the way of contact. She was resistant to the notion that she would deploy any argument to frustrate or stop contact. It seems that her early concerns were related to the fact that A was a very young baby and later of course her situation in relation to contact was totally subsumed by the allegations of sexual abuse.
  82. There may well be some force in the case that in the past she has frustrated contact and taken steps to distance herself from the father, evidenced by her reluctance to use a communication book at contact, disclose her address until she did so in court and, of course, she had been prepared to accept unconditionally the allegations of sexual abuse.
  83. There is little doubt as I found in my judgment of July that the mother has had in the past a poor opinion of the father and an underlying negative attitude but I accept her evidence that she does not now have a negative view. Her views have evolved and been shaped by events since July. I accept her evidence that she understands the real need for A to have a relationship with his father.
  84. As part of the process of "distancing herself from the father" it was suggested that her move to D was in real terms more of the same and part of her fortress mentality. I am however fully persuaded that she viewed "going home" as a positive for A and herself and not as a means of distancing herself from the father particularly now, as matters are so much improved.
  85. I should however record that although both parties report small steps in communication the position is still lamentable with contact handovers taking place at neutral venues sometimes in the presence of third parties. That of course speaks volumes to this intelligent and emotionally vulnerable little boy and it seems that there has only been limited exchanges by text in relation to practical arrangements by contact and those in the course of the last few weeks.
  86. It was being clearly suggested that this tiny progress in relation to better communication was extremely fragile against the background of her proposed application to live on the other side of the world and it is a sorry indictment of this case that matters are still organised between lawyers although I note the more recent positives.
  87. There is an echo of that perhaps in what she said to Dr Wear when she was discussing the relationship with the father she indicated that it was easier if there was no direct contact between them because it only induces conflict and as a consequence it was Dr Wear who reported subsequently that the mother was quite negative about B and his relationship with him believing as she did at that time that there was no prospect for healthy interaction between herself and the father because the relationship "becomes manipulative and produces conflict". This of course does not bode well for A wheresoever he should live.
  88. However I was impressed by the mother's open determination to improve matters and although acknowledging that they were not going to escape discord, there was scope for the relationship to improve; it needs to.
  89. It was suggested in cross examination that until she went into the witness box her acceptance that the allegations are unfounded seems to have been qualified. Dr Wear reports that the mother "appears" to have accepted the findings and there is a suggestion that she has "parked the allegations" as it would "open Pandora's Box."
  90. Even to the guardian she said that she was not wrong for speaking up for A and accepts "if she got it wrong." There is an element of qualification in relation to what she said. It was suggested that as she was keen at the time to establish the truth it may well be that her acceptance was borne out of pragmatism or expediency in the context of wanting her application to succeed.
  91. However the mother made it clear in terms that she did get it wrong and I am fully persuaded that this continuation of the process has resulted in the view that she expressed in the witness box, which I accept.
  92. As to moving to D, she once again reiterated that her attempt to build a life in England had not been a success for some time. I agree it has not been.
  93. She was challenged that she had described A getting "more relaxed" in the context of what has been reported by the school in relation to his behaviour and she clarified that by saying that she meant that A was more relaxed about going to see his father and was keen to spend time with him.
  94. She accepted that A would have a positive view about going to D which she had discussed with him before the July judgment. She has been careful not to do since then because she didn't want to build him up in case the application failed. I accept her evidence. In relation to A's hostile attitude to his father at not being a member of the same church, she could offer no explanation as to why A was upset with his father nor indeed why he should have picked up that the father should not have been his father or that the paternal grandmother was not a member of his family. She clearly found it encouraging that A does talk positively about his father and I accept that she derives satisfaction from it.
  95. She was challenged in relation to going to D that it was part of her case in the ancillary relief proceedings that she was going to stay in this country, go to university and her housing needs were identified as such. She had said in those proceedings that she required sufficient provision to visit D once a year and that was in May 2011.
  96. Her feeling subsequently is that she has never felt more isolated and although the church was a support it was no substitute for her family. I believe her when she says that.
  97. She was asked what she would do if her application to go to D failed. She was without doubt filled with sadness at the prospect as indeed was the father at the prospect of A going to D and said "I will have to find something to grasp onto". She would experience feelings of isolation and sadness, knowing that A could be part of many things in D. I am mindful that she told the guardian that she did not know how she could build her life here. In my judgment there is little doubt that the destructive effect of continual proceedings has taken its toll and her describing the court proceedings as "going on and on". She told the court that things "hadn't worked out" notwithstanding the fact that her family have scrimped and saved to come to this country to support her in these proceedings. It was suggested to her that her decision to move to N was on the basis that there she would feel safe and secure. She agreed that that was her motivation but that she misses home and she said that many things had changed.
  98. She was challenged that there was no need for the move to take place now and she reiterated that she wanted to achieve a happier existence for all and A would gain if his parents were happy.
  99. In view of Dr Berelowitz's observation about the need for A to have a close relationship with both of his parents, she observed that A is not going to be a six year old boy for ever and there were more possibilities in the future and showed some understanding of the pressure on the relationship with the father over the prospect of a lengthy geographical separation. She promised the court that she would foster the relationship and denied any suggestion that she was running away from a relationship with the father.
  100. She was challenged that her application lacked detail but said, quite rightly, there would be more detail if she got permission. It was not difficult to rent a home. It was not difficult to put A in school and the plan initially was to stay with her parents. I accept that her stance is the correct one.
  101. She reiterated more than once in her evidence that she would do all that she could to promote A's contact with his father.
  102. At the conclusion of her evidence I was left with the impression that she had an overwhelming emotional need to return to her homeland and saw clear benefits for her son in many respects if she was able to do so. I have little doubt in agreeing with Dr Wear that the mother remains psychologically vulnerable and, in my judgment, a refusal would have devastating consequences for her if she was compelled to remain here indefinitely as I am fully persuaded she would never leave A. She would be devoid of hope and this would impact adversely on A for reasons that I amplify later in this judgment.
  103. Guardian's evidence

  104. A's guardian has filed three reports in the proceedings as a whole and it is her last report of 15th January of this year that deals with the applications that the court is currently grappling with namely change of residence and an application to remove from the jurisdiction. I record that the guardian listened to most of the evidence and when she came to give her live evidence her position remained the same as it was when she wrote her report namely that there was no justification for a change of residence to the father but she could make no recommendation either way in relation to the application to remove.
  105. Dealing with the residence issue, she told the court in oral evidence that it was not in A's interests for residence to be changed to his father. She has had regard to the fact that mother has always been A's main carer. The relationship is good and he is close to his mother to the extent that when she returned from L in October A asked his mother "don't you love me." In fact, in my judgment, it is that very closeness of the relationship between A and his mother, the fact that she is inside the circle and B is outside the circle that is a striking feature of this case and chimes with Dr Berelowitz's observation that "A has an overwhelmingly positive attitude to his mother in deed and in word."
  106. Regarding the remaining application for permission to remove from the jurisdiction, although she remained undecided she was able to accept a number of matters raised by both the mother and the father's Counsel. She agreed that historically obstacles have been put in the way of A's relationship with the father and lack of communication still played a part. There was still a question mark in her mind as to whether or not the mother accepted the judgment and she remained sceptical. She was concerned that the distance to D and the problems in the parties' communication may have an effect on the green shoots of progress in relation to contact and clearly thought it significant that court orders have played a role in achieving progress.
  107. On the other hand she said that at least there had been an opportunity for the parties to listen to each other in court and this was a positive.
  108. She agreed that mother had no doubt as to the truth of her allegations prior to the July hearing and by way of comparison on 9th January 2014 when she saw the mother she had no doubt as to the merits of her application to move to D. She agreed that mother's history of a negative attitude to the father, her suggestibility and her strong protective instinct coupled with her black and white views could reoccur. She agreed that the combination of discord between the parties and distance may cause difficulties in the father's relationship with A but would not agree that it was impossible for it to be maintained.
  109. On the other hand central to her concerns in relation to a refusal decision is how the mother will cope. The mother reported to her that she didn't know how she would build a life here.
  110. She was prepared to acknowledge that things had improved and she had not presented any obstacles to contact since July and there was evidence of her letting go by virtue of her trip to L in October and leaving A with his father.
  111. Conflict had by no means disappeared with the mother only giving her address in the witness box and the father presenting as very emotional in the witness box in relation to what he had been through and the fact that he was wary and anxious. I am satisfied that this guardian has correctly identified the main competing features in relation to this complex case but what emerges from her report is the very close bond and emotional connection that A has with his mother. She reports "[A] loves his mother very much and cannot envisage living without her." Against that background I do have to of course consider the consequences of refusal on the mother and the knock-on effect on A.
  112. The guardian agreed with the observation by A's school that things could not continue as they were and there was a prospect of the process of litigation continuing for the next eight to twelve years if the mother was compelled to remain with both parents in a state of uncertainty. The guardian reposed some concern that A would be caught up in the middle. I took heart from that part of her evidence notwithstanding the balanced nature of her concern which indicated that the mother had demonstrated greater acceptance of A having a relationship with the father. Having seen her in the witness box I would have said that it goes further than that and that she fully realises its importance and its potential damage to A if it is not maintained.
  113. She agreed with the court that mirror orders in D would be important. On the mother's proposals A would have the opportunity of seeing his father face to face every three months or so but she quite rightly pointed out that it would need positive reinforcement between those visits and was clearly alive to the risk of contact not being maintained and the long term emotional effect that could have on A.
  114. She saw little point in putting off the decision.
  115. The Legal Framework

  116. There is no dispute as to the law and I have drawn on the careful summary prepared by the mother's legal team which sets out the relevant principles.
  117. Both applications are governed, primarily, by the paramountcy principle and the welfare checklist set out at s.1 Children Act 1989.
  118. There has been intense debate as to the principles to be applied in relocation cases and whether those principles are different depending upon the factual circumstances in the UK. Guidance is now to be found in the case of Re F (Relocation) [2012] EWCA Civ 1364 [2013] 1 FLR 645 where the Court of Appeal (including Munby LJ as he then was) held:
  119. (1) There could be no presumptions in a case governed by s 1 of the Children Act 1989. From beginning to end the child's welfare was paramount and the evaluation of where the child's best interests truly lay was to be determined having regard to the 'welfare checklist' in s 1(3).
    (2) Cases should not become 'bogged down' with arguments about whether this was 'a Payne case' or a 'Re Y case'. The last thing that this difficult area of family law requires is satellite jurisprudence generating an ever-more detailed classification of supposedly different types of relocation case. Any move in that direction is to be firmly resisted as is the temptation to try to force the facts of a particular case within some forensic straightjacket.
    (3) Even where the case is not one made by a primary carer, the judge is entitled to have regard to Thorpe LJ's 'discipline' as set out at paragraph 40 of Payne.

  120. At paragraph 26 of Payne v Payne [2001] EWCA Civ 166, [2001] Fam 473 Thorpe LJ made the common sense point that "(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." At paragraph 32 he said "Thus 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."
  121. At paragraph 40 Thorpe LJ said:
  122. "However there is a danger that if the regard which the court pays to the reasonable proposals of the primary carer were elevated into a legal presumption then there would be an obvious risk of the breach of the respondent's rights not only under Art 8 but also his rights under Art 6 to a fair trial. To guard against the risk of too perfunctory an investigation resulting from too ready an assumption that the mother's proposals are necessarily compatible with the child's welfare I would suggest the following discipline as a prelude to conclusion:
    (a) Pose the question: is the mother's application genuine in the sense that it is not motivated by some selfish desire to exclude the father from the child's life? Then ask is the mother's application realistic, by which I mean founded on practical proposals both well researched and investigated? If the application fails either of these tests refusal will inevitably follow.
    (b) If however the application passes these tests then there must be a careful appraisal of the father's opposition: is it motivated by genuine concern for the future of the child's welfare or is it driven by some ulterior motive? What would be the extent o the detriment to him and his future relationship with the child were the application granted? To what extent would that be offset by extension of the child's relationships with the maternal family and homeland?
    (c) What would be the impact on the mother, either as a single parent or as a new wife, of a refusal of her realistic proposal?
    (d) The outcome of the second and third appraisals must then be brought into an overriding review of the child's welfare as the paramount consideration, directed by the statutory checklist insofar as appropriate."

  123. He added at [40]:
  124. "In suggesting such a discipline I would not wish to be thought to have diminished the importance that this court has consistently attached to the emotional and psychological well-being of the primary carer. In any evaluation of the welfare of the child as a paramount consideration great weight must be given to this factor."

  125. I have summarised above the submissions of law I have received from the mother's Counsel which of course are broadly helpful but less there be any doubt I am clear in relation to the distinction between legal principle and guidance. The dicta in Payne v Payne is of course guidance but it is the welfare decision by reference to the Welfare Checklist that is the central consideration however valuable the guidance of the kind provided in Payne v Payne.
  126. I am equally clear in terms of the two applications I have to consider that the other authorities to which I have been referred make it plain that it is the application for residence that I should consider first before considering the application for permission to remove accepting as I do that the evidence in relation to both applications overlap.
  127. Conclusion and findings

  128. This has been a complex and difficult case. That much is self evident from the reading of my earlier judgment on the issue of the unfounded allegations of sexual abuse against the father. The personalities in this case are complex and the history of litigation extensive and a decision either way on the mother's central application for permission to remove has potentially devastating consequences for both parents and A.
  129. I have listened to live evidence from both the mother and father and the guardian. I have read opening and closing notes from the parties' Counsel.
  130. I deal firstly with the application for residence. I do so with the considerations of the Welfare Checklist under s.1(3) of the Children Act firmly in mind. I accept the evidence of the guardian that there is no justification for a change of residence. The mother has provided consistently good care in relation to A and there is no cogent evidence that I am prepared to accept that this regime should be changed. A looks to his mother as his primary care giver and she meets all his physical, emotional and educational needs and a change in his circumstances would, in my judgment, have an adverse effect on him given his close connection with his mother.
  131. I have little doubt that the father has the capability to provide good enough care in relation to A who he loves very much but a central issue in relation to this case is how A regards his mother and there is little doubt that she is absolutely central to his emotional needs and emotional wellbeing. In the words of the guardian, "A loves his mother very much and cannot envisage living without her." She reports that A is building a close bond with B and although A likes going to daddy and doing "fun stuff" I am entirely persuaded that the mother is absolutely central to his emotional equilibrium. I refuse the application to change residence.
  132. I turn now to the central issue of the mother's application to go to D. The mother's application was lodged some considerable time ago and was before the court during the July hearing and the central concern of the court at the conclusion of that hearing was the mother's ability to accept the judgment that the father had not sexually abused A.
  133. It has been suggested at length by father's Counsel that mother's acceptance of the judgment has been for reasons for pragmatism and expediency only. It is suggested that she still holds negative attitudes towards the father which will sabotage the green shoots of A's growing relationship with his father in the event of a move as evidenced by the numerous obstacles that she has placed in the way of contact prior to the July decision. There is a real issue therefore in the mind of the father that the mother continues to harbour a negative attitude towards him and has not internally accepted the judgment of the court and in order to bolster her application for permission to leave has conveniently distanced herself from the findings.
  134. In relation to the mother's change of attitude since the judgment, I have had the benefit of the evidence of Dr Wear and I accept what he has had to say regarding the process of change. Even if there has been a pragmatic acceptance of the court's conclusions my assessment of the mother in the witness box was that she has gone beyond that in that she has recognised the risk of potential damage to A in the process of acceptance and the consequences for him of non-acceptance. She is prepared to accept that she "got it wrong" and this is evidenced by her having not produced any obstacles to contact albeit under a court orchestrated regime, and even to the extent of allowing the father to care for A during a period in October when she was out of the country for two weeks. In assessing the mother's evidence I am satisfied that she is being truthful when describing the process through which she has come and I could detect no guile or artifice in relation to what she says.
  135. A more difficult aspect has been her historical negative attitude to the father. There is little doubt that she has placed obstacles in the way of contact in the past and may indeed still not see him in an entirely positive light. However I was impressed by her commitment to future contact and her recognition of the importance of A's relationship with his father. This mother has been criticised in the past for acting with her heart instead of her head but I am persuaded that she spoke from the heart when offering a commitment to promote future contact in the event of a successful application to relocate.
  136. There is some criticism in relation to her plans that they have not been well thought through and fully considered so far as schooling and accommodation is concerned and her choice of future career. I am satisfied however that her plans are as developed as they can be pending permission of the court to relocate in July. Apparently there is little difficulty in enrolling in a state school in M. One has been identified of which she has received good reports. Her plan to stay initially with A's maternal grandparents is a sound one until she can establish herself in rented accommodation which I accept is freely available. As to her own career, then perhaps it is understandable that she may wish to see her son settled before finessing her own plans. She has made broad proposals for contact but these of course need consideration by the father in relation to any counter proposals and I fully accept that it was difficult for him to focus on that particular issue given that the outcome of the mother's application was still at large.
  137. I have to take into consideration a broad range of factual issues in relation to this case which taken individually are of course not determinative in such a finely balanced decision, but which taken together tip the balance in favour of removal.
  138. A core issue in the case would be the effect of refusal on the mother's psychological state and how this may impact on her care of A. I fully accept the submission that the impact need not be as high as causing mother some psychological or mental illness but there is little doubt that there would be a profound effect on her emotional state and I judge that by not only her statement but also by her presentation in the witness box and by the observation of the guardian who says "if removal from the jurisdiction was not granted this would inevitably cause [C] stress which could impact negatively on [A]" I do not accept the submission that the mother is a robust individual. Dr Wear described her as "vulnerable" and in my assessment of her throughout a number of days of evidence both in relation to the fact finding hearing and this latest hearing, I found her to be emotionally vulnerable and isolated. The prospect of her in effect not being able to return to her country of origin and the support of her family would be devastating. Her evidence indicates that she does not know what to do to start to build a life in this country but would of course remain for A's sake. The effect on A of his residential parent undergoing such distress cannot be underestimated. He is not a robust little boy as reports from school indicate. He is emotionally troubled. Furthermore he is "wired", if I can use that clumsy expression, and directly emotionally connected to his mother. Demoralisation, distress and sense of isolation, and hopelessness, would affect him of that I have no doubt.
  139. The other side of the balancing exercise I have firmly in mind is the effect of removal on his burgeoning relationship with his father and must consider whether it was capable of withstanding lengthy separation bearing in mind his very young age. I also appreciate the devastating consequences for B. I was impressed by his evidence. He is a thoughtful and reflective man and can bring an enormous number of benefits to A by virtue of his relationship with him, not least being his rich heritage. He is clearly sensitive to A's needs and has done extremely well to make up for lost time in recovering his relationship with his son. He is to be congratulated for his sensitivity and determination. However painful however it will be for him to read this judgment it remains a fact in this case that A is, for the reasons I have articulated, more closely emotionally connected to his mother. She is the residential parent. It is her ups and downs that will affect him most profoundly and there is a great risk that mother's loss of hope will have an adverse effect on her parenting of him. There are many benefits for A in relation to a move to D notwithstanding the potential for loss of some relationship with father.
  140. However B is a man of some means and no little determination. He at least has the financial opportunity to travel to D to keep in touch with his son. A will not be six years old for very long. As the years advance the opportunities for travel grow. I am entirely persuaded however that if the mother has misled me regarding her expressions of good intention in relation to the need to promote positive contact (and this will be necessary particularly between visits) that the relationship will wither on the vine. It is her responsibility to ensure that that does not happen and it is a grave responsibility. Should it happen she would have failed her son in a shameful and unacceptable way. It is her responsibility.
  141. I am driven, as I have said, by the Welfare Checklist. I deal with the considerations under s.1(3) in turn:
  142. In so far as A has any ascertainable wishes, he wishes to go to D although I fully understand that he has no real concept of what that means or the likely effect of the loss of relationship with his father. There is little doubt however that he wishes to be with his mother and have fun times with his father. He loves both his parents.
  143. In terms of his physical, emotional and educational needs, I am satisfied that either parent could meet his basic care needs and his educational needs would be met whether he is in D or in this country. However for reasons I have explained there is a close emotional connection to his mother.
  144. There will be an effect on him in relation to his change of circumstances. He will lose the regularity and close contact with his father. This will be a loss for him set against the benefits that will accrue if his mother returns to her homeland and achieves peace and stability and family support.
  145. A is a six year old British boy with an father from E and a mother from D. His dual heritage will become increasingly important to him.
  146. I have already identified that A has suffered significant harm as a consequence of being caught up in the toxic relationship between his parents. There is a risk that this will continue unless the parents improve communication and the mother continues to promote the father as a positive figure. There is however a substantial risk that he will suffer harm if his mother's application does not succeed because it will impact on her care of him if her life here becomes devoid of hope as I believe it will do if she is deprived of an opportunity to return to her homeland with her son.
  147. As I have said, each of his parents are capable of meeting his needs but it is his mother that is the most capable of providing his emotional needs as evidenced by the closeness of their relationship.
  148. In this case the guardian felt unable to make a recommendation. The issues are finely balanced but for the reasons that I have articulated, A's welfare requires that the balance falls in favour of removal as I accept the mother's evidence that she has effectively no reason to remain in this country. I do not believe that the mother's application is a cynical attempt to distance herself from the father. I believe that it is heartfelt and genuine and arises out of a genuine need of her own. The application is therefore granted.
  149. Having allowed the application to proceed there are issues that are yet to be resolved. A is not permitted to leave the jurisdiction unless until there are agreed mirror orders lodged in the family court in D. Much work needs to be done in relation to a contact regime which should be set out in an order. This order should include adequate provision for indirect contact. The order should contain a preamble setting out the mother's recognition of the need to promote a positive relationship between A and his father for the duration of his childhood.
  150. Above all, once the parties have come to terms with the impact of this judgment, which should be sooner rather than later, the lines of communication should now ease so that the parties can work cooperatively for their son's benefit. The proof of that I suggest is in relation to what I see as the final stage in these proceedings namely agreeing the terms of contact.
  151. This judgment I know will have a devastating impact on B. However if he is half the man I hope he is, he will rise to this new challenge in the thoughtful and determined way I have seen him demonstrate in the witness box. A deserves no less.


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