DF v N B-F

Hearing date: 31 March 2015

This appeal concerns the 12 year old daughter of parents who are parties to proceedings in the Family Court sitting at Brighton. I shall refer to her as 'L'. The appellant is L's father and the respondent is her mother. L's father appeals against the order of Her Honour Judge Waddicor who on 15 August 2014 gave the mother permission to permanently remove L from the jurisdiction of England and Wales to Germany. The order also provides for a minimum period of six weeks in every year that L is to spend with her father. The order was made on the cross applications of the parties: that of L's mother for leave to remove her from the jurisdiction in accordance with section 13 (1) of the Children Act 1989 [CA 1989] and that of L's father for contact (now a child arrangements order) in accordance with section 8 CA 1989.

Section 13(1) CA 1989 provides that:

"(1) Where a child arrangements order to which subsection (4) applies is in force with respect to a child, no person may—

(a) […]

(b) remove him from the United Kingdom;

without either the written consent of every person who has parental responsibility for the child or the leave of the court.

[…]

(4) This subsection applies to a child arrangements order if the arrangements regulated by the order consist of or include arrangements which relate to either or both of the following—

(c) with whom the child concerned is to live, and

(d) when the child is to live with any person."

Section 13 is governed by the welfare principle in section 1(1)(a) CA 1989: "…the child's welfare shall be the court's paramount consideration". By reason of section 1(4) CA 1989, the 'welfare checklist' in section 1(3), i.e. the non exclusive list of factors which are to be considered by the court in respect of welfare, is not a necessary part of the court's analysis on a section 13 application. While the welfare checklist is not a required consideration for the analysis of welfare in section 13 cases, it is without doubt a helpful aide memoir and this court has commended its use on many occasions (see, for example in Re F (A Child) (Relocation)[2012] EWCA Civ 1364, [2013] 1 FLR 645 at [37] where there is an overt assumption that the welfare checklist will be used in this way). In any event, on the section 8 cross application for a child arrangements order that was made by L's father in this case, the considerations in section 1(3) were directly applicable to the decision to be made.

In granting a stay of the order and permission to appeal I identified three bases upon which permission was granted (see In the matter of F (A Child)[2014] EWCA Civ 1510): a) should the court carry out a welfare analysis of the options and plans of each of the parents; b) should the court carry out a comparative evaluation of the options and plans; and c) if article 8ECHR is engaged by reference to the gravity of the consequence (here that direct contact may cease) should the court also carry out a proportionality evaluation. That was characterised by leading counsel for the mother, Miss Isaacs QC, as the court postulating 'an holistic evaluative analysis'. Miss Isaacs agrees with Mr Setright QC, who appears on behalf of the father, that the general question before this court is whether 'an holistic evaluative analysis [is] the appropriate approach to be taken in section 13 relocation cases'.

For reasons which I shall explain, Miss Isaacs accepts that this is the appropriate approach for the court to take. She submits that on the facts of this case the question on the appeal becomes: 'did the [court] engage with the long term welfare decisions and address them in an holistic way when coming to [its] decision in this case…'. Although it is arguable that the agreed position of the parties as to the law has the potential to re-craft yet again the well known jurisprudence of this court in relocation cases, I am firmly of the view that it does not. Accordingly, I shall take a little time in due course to explain how the approach described underpins and explains our existing jurisprudence rather than alters it. The court is very grateful to both Mr Setright and Miss Isaacs for the quality of their helpful submissions.

L's mother is a German national who came to England in the mid 1980s to learn English. She worked for the father's sister as an au pair. Approximately ten years later L's mother and father began a relationship which eventually led to L's mother coming to live with L's father at his home in Lewes. The parties married on 22 August 2002 and L was conceived through IVF prior to the marriage. Sadly, the parties separated but continued to live in the same accommodation until October 2012. L's mother petitioned for divorce on 2 April 2012 with the consequence that L's father left the matrimonial home and moved into rented accommodation in Hove where he remains. Decree nisi was pronounced on 6 June 2012.

L's father is Jewish. He identifies himself as being outside the orthodox tradition and says that he is keen to explore and enable constructive and beneficial relations between those who are adherents to the Jewish faith and those who are adherents to the Christian faith. L's mother was born Roman Catholic, but claims she was forced to convert to and adopt the Jewish faith well before the parties' marriage but no longer wishes to have any association with the family's Jewish cultural or religious heritage and chose to return to her own faith after separation. There was a clear issue on the papers before the Family Court as to what were L's wishes and feelings in this regard. To that end, there having been a request from L to have a meeting with the judge, a meeting took place on 23 July 2014. A note of that meeting was provided to this court.

The context and chronology of the applications in this case are important. The background as reported by L's father is that L's mother was very possessive of and over protective of L, not wanting others, including him, to share in her care. He says that these concerns have persisted to the present day. By the time L was in school, L's mother would insist on taking her to Germany to see her family during each and every school holiday and usually for the whole of that holiday.

The procedural chronology is that following upon her petition, L's mother made her first application which was for financial relief on 4 March 2013. There was a contested hearing leading to a final order which provided that the former matrimonial home should be transferred to L's mother, with a charge back of 50% of the equity not to be enforced until L reached 18 or ceased full time education, whichever was the later. It is submitted on behalf of the father, that mother's position in those proceedings might be thought to reflect a plan on her part to use that accommodation or any proceeds of sale to provide accommodation for herself and L in this jurisdiction given that no other intention was evidenced. It is a reasonable submission to make that if she intended to relocate with L, then that was relevant to the section 25 factors in the Matrimonial Causes Act 1973, in particular the circumstances of the case that related to the welfare of a child in accordance with section 25(1). Furthermore, there is an obligation of full and frank disclosure in financial remedy proceedings. There is a dispute about when L's mother disclosed her intention and that may be relevant to the context.

L's father says that he tried without success to reach agreement with L's mother about the nature and extent of the time L should spend in his care. L's mother would not enter into mediation. Eventually on 15 March 2013 he issued an application for contact in the following terms:

"There is ongoing contact between me and my daughter including telephone contact. There is no regular pattern of contact and the activities I can take part in with my daughter are controlled by the mother. I want a defined contact order for my daughter to be able to stay overnight with me and to take part in activities of our choice (mine and my daughter's). The mother says that the contact taking place is what [L] wants and that [L] does not want further or other contact"

The district judge hearing the application granted extensive interim visiting contact to the father on three weekday evenings and each Sunday. When the father's application was finally considered by the court on the merits on 7 May 2014, Her Honour Judge Probyn ordered visiting contact twice on weekdays for two and a half hours on each occasion and staying contact once every three weeks from Saturday into Sunday with a visiting Sunday contact in the second of each three week cycle. In essence, therefore, the court's strategy was to accept the father's plan and at least in part reject the mother's plan for the nature and extent of the relationship that L should have with her father. It is of note that Judge Probyn reasoned against the Cafcass advice which reflected L's stated wishes and feelings and which had been not to advise...