GT v RJ
| Jurisdiction | England & Wales |
| Judgment Date | 27 April 2018 |
| Neutral Citation | [2018] EWFC 26 |
| Date | 2018 |
| Court | Family Court |
Children arrangements – Leave to remove – Relocation to mother’s home country – Mother’s new partner in home country, currently with their new baby – Legal test – Impact of refusal to leave on mother – Impact of new relationship – Inferences drawn from new partner’s refusal to give evidence – Impact of disregard for court authority by parent requesting leave – Whether change more in children’s interests than no change.
The mother held Ukranian and British passports; the father had Russian and British passports. They had two children, now five and two. The couple married in Ukraine in 2012 and thereafter made their home together in London. The marriage ended because of a unilateral decision by the father in 2015, but the couple remained living together in the family home until the mother and children moved out in early 2016, into a £9 million property very close by, purchased by the mother with funds provided by the maternal grandmother.
Under a Ukranian parenting agreement dated 16 May 2016, the children were to live with the mother permanently in the UK, meaning at least 180 days a year. The agreement provided that the residence of the children could be changed with the father’s written consent, which was not to be unreasonably withheld. The children had regular contact with the father, although on an informal basis to fit around his work, which involved long hours and significant trips abroad. The evidence was that both parents were devoted, committed and loving to the children.
The father remarried and his new wife and her child moved to live with him in the former family home. At about the same time, in the early stages of the mother’s new relationship, she told the father that she would like to move permanently to California, explaining that this was where her new partner’s IT business was based. The father agreed in principle, on condition that a fair proposal for contact was in place. A series of lawyers’ letters followed, attempting to agree reasonable contact following such a move. When this proved difficult, the father withdrew his agreement in principle and said he would oppose the relocation. Shortly afterwards the mother changed her plan significantly; and issued an application for permission to relocate to Ukraine, not California. She explained to the father that, although her new partner had lived in the US for five years, he was now relocating to the Ukraine and would run his business from there. The father responded by applying for a child arrangements order and a prohibited steps order.
Both parents agreed various interim restrictions on foreign travel, including returning the children to the jurisdiction at the end of any holiday, giving seven days’ notice to the other parent, with flight details, accommodation and contact details and informing the other parent 48 hours before any relevant school day when they would otherwise take the children to school if unable to do so. In addition, the mother was required to produce her new partner’s current and old passports, or to obtain confirmation of his USA visa status (there were concerns about the information provided, as the evidence available suggested that he had never been resident in the USA).
However, in November 2017, by now pregnant, the mother breached various court orders by travelling with the children to Kiev, on a trip that was intended to take them out of school for two days, without informing the father, the school or indeed her own solicitors. In fact, the mother did not return as apparently planned, instead going to hospital with what she claimed were complications relating to her pregnancy that meant she was unable to fly back to England. During this stay in Ukraine, she married her new partner. The English court responded by requiring the mother to return by 9 April 2018 at the latest and provided for the children to have contact with the father both in person and via Skype or Facetime.
In the meantime, the report from the independent social worker had recommended that the children remain in London, despite a very positive assessment of the mother’s ability to meet the children’s physical and emotional needs to a very high standard, with the assistance of nannies. This was because the social worker considered that there were too many uncertainties attached to the mother’s new relationship and her relocation plan. The social worker had interviewed the mother’s new partner, who had shown her his passport (containing only visitor visas for the US) and indicated that he could be based on London if necessary. After the mother’s move to Ukraine, the social worker was asked to provide an addendum report. During her second interview with the mother’s new partner, he stated he was separate from the mother rather than move to London, and refused to answer questions about his business or to supply his passports. In her addendum report the officer set out fresh concerns about the new partner’s influence on the mother, who since the move had fallen out with the maternal grandmother and effectively dismissed a long-term nanny.
The mother returned with the children for the hearing; she told the court she was, and always had been, homesick in London, was ‘absolutely desperate to go home to Kiev’ and would be ‘devastated’ and ‘profoundly affected’ if her application was refused. The father opposed the move on the basis that the children would have a better life in London, that he did not believe contact would continue after the relocation and that he did not know enough about the mother’s new partner. In oral evidence the social worker explained that she believed the new partner was controlling the mother. The new partner did not provide any evidence, either written or oral, for the hearing; he had remained in Kiev with the new baby.
Held – (1) The legal test to be applied to relocation applications was now very straight-forward: it was the application of the principle of the paramountcy of the children’s best interests, as set out in the checklist in s 1(3) of the Children Act 1989. That principle was not to be glossed, augmented or steered by any presumption in favour of the putative relocator. Payne v Payne [2001] 1 FLR 1052 now provided no more than guidance, to be drawn on, or not, as the individual case demanded (see [2], below).
(2) In many of these cases the applicant placed very great weight on the disappointment that would be felt if the application was refused. This sort of argument should be treated very circumspectly. Quoting this court in Re AR (a child: relocation)[2010] EWHC 1346 (Fam), ‘The problem with the attribution of great weight to this particular factor is that, paradoxically, it appears to penalise selflessness and virtue, while rewarding selfishness and uncontrolled emotions. The core question of the putative relocator is always “how would you react if leave were refused?” The parent who stoically accepts that she would accept the decision, make the most of it, move on and work to promote contact with the other parent is far more likely to be refused leave than the parent who states that she will collapse emotionally and psychologically.’ In this case the court placed little weight on the mother’s potential disappointment for the following reasons: (i) there was no evidence that the mother was homesick when married to and living with the father; (ii) the purchase of a £9 million home in January 2016 in London was not a step that someone desperately homesick would be expected to take; (iii) the mother’s first proposal had been to relocate to California, not her native Ukraine (see [4], [51], below).
(3) The court’s function in a relocation case was one of evaluation rather than a pure exercise of discretion (see Kacem v Bashir [2010] NZSC 112). Once the facts were established there was no formal legal burden of proof on the applicant: applying Payne v Payne. However, common sense dictated that where one parent sought changes to a well-functioning status quo, she had to make the running in terms of the evidence and argument to show that change would be more in the children’s interests than no change. Notwithstanding the partly inquisitorial function of the court, the maxim affirmanti, non neganti, incumbit probatio (the burden of proof is upon him who affirms, not on him who denies) should loosely apply to the case for change. The court was not satisfied that the mother in this case had demonstrated that it would be more in the children’s interest for the change she proposed to be allowed than it would be for the familiar life of the girls in London to be resumed. The father’s consent to the move to Kiev had not been unreasonably withheld (see [5], [57], below).
(4) If someone formed a relationship with a woman who had children from a prior relationship, where the father of those children was enjoying a stable regime of contact, the new partner must surely be taken to enter the relationship, with all its incumbrances, with his eyes wide open. On the other hand, the father of those children must recognise the prospect of his former wife re-partnering and in that event a case for change being advanced. The weight to be attributed to these two general propositions would depend on the facts of the case in hand (see [6], below).
(5) An important reason for refusing the application was that the court was satisfied that it had been presented with a manipulative and contrived case, wanting in candour; and that there had been an arrogant and contemptuous disregard for the court’s authority. This had led the court to have very serious concerns as to the likelihood of the mother’s compliance with orders for contact in favour of the father in circumstances where she was within the sphere of influence of her new husband. The court had concluded on a strong balance of probability that the mother, by highly manipulative conduct, had set out to create an interim experimental period to demonstrate the solidity of her new...
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