M v A (Removal of Children from Jurisdiction)
| Jurisdiction | England & Wales |
| Judgment Date | 1994 |
| Date | 1994 |
| Year | 1994 |
| Court | Family Division |
Bracewell, J
Children – application to remove from jurisdiction – mother applying to remove children permanently to Canada – whether removal in best interests of children – relevance of children's wishes – whether mother's plans reasonable.
Residence order – court's power to make order of its own motion – circumstances in which it was appropriate to make order where no application made by parties.
The parents commenced a relationship in 1976. They had two children, boys, now aged 12 and 9. The mother was born in French Canada and the two children were fluent in both French and English. The parents' relationship broke down in 1990. The children were made wards of court. Their care and control was given to the mother with access to the father. The mother and the children went to live in a flat in the same block containing the flat which was the former matrimonial home. By an agreement between the parents in 1991 the care of the children was divided between them. In 1992 the mother applied for leave to remove the children permanently to Canada.
Held – refusing the mother's application: (1) The children enjoyed high quality parenting from both parents. They loved both parents and needed both for their welfare. As the parents lived in the same block of flats, the children had been able to come and go between both homes. The mother's plans to move to Canada with the children were ill thought out and little researched. She was alarmingly optimistic as to the acquisition of accommodation and the obtaining of work. On the facts of this case, if the mother and children returned to Canada, frequent contact between the father and the children would be impracticable and such lack of frequent contact would be detrimental to the welfare of the children. Further, the mother had lived in England for many years and had an established life here. The court had to consider the effect of a refusal of leave in frustrating the mother's plans which might reflect adversely on the children: see Poel v Poel [1970] 1 WLR 1469. The test today remained the same as was laid down in Poel but the implementation of the Children Act 1989 had emphasized, in s 1, the matters to be taken into account when considering the welfare of the child. In the present case the mother's application for leave would be refused because: (i) it was not in the best interests of the children; (ii) the children's wishes against the move were important facts to be balanced in the equation; (iii) the mother's plans were not reasonable nor properly thought out; and (iv) the mother
would be able to accept the decision and act appropriately.
(2) As the arrangement agreed between the parents worked so well, this was a case where it was appropriate for the court of its own motion to make residence orders in favour of each parent and to discharge the wardship.
Statutory provisions referred to:Children Act 1989, ss 1 and 8.
Cases referred to in judgment:F (A Ward), Re [1988] 2 FLR 116.
K v K (Removal of Child from Jurisdiction) [1992] FCR 161.
Lonslow v Hennig [1986] 2 FLR 378.
M (Minors) (Removal from Jurisdiction), Re[1992] 1 FCR 422.
M v M (Removal from Jurisdiction)[1993] 1 FCR 5.
Jonathan Cohen for the father.
Deborah Sawney for the mother.
Judgment Mrs Justice Bracewell.In this case I have to determine two applications in respect of the two wards of this court, a boy who was born on 18 November 1980, and a boy who was born on 8 June 1984. The mother applies for leave to remove the children permanently out of the jurisdiction to Canada and the father applies for care and control within the wardship proceedings. Both applications are contested and independent of each other.
The background is that the father is now aged 46 years. He was born in England and he designs and supplies fold-away beds and furniture from a business based in London.
The mother is almost 50 years old. She was born in French Canada. Her language of origin is French, but she is bilingual and fluent in English. She works as a secretary for the commercial section of the French Embassy.
The parties met and commenced a relationship in this country in the summer of 1976. Thereafter the mother returned to Canada for a period but came back to this country the following year, when the relationship resumed. The parties have never married. There was a break in the relationship in 1978, whereupon the mother did not return to her country of origin but remained in this country living in a flat on her own in Bayswater. The relationship was resumed in 1979. The mother became pregnant and the parties commenced living together in London. The elder boy was born in 1980 and the younger boy in 1984. Those two children, therefore, are now 12½ and nearly 9. They are bilingual, speaking fluent French.
The relationship broke down in 1990 and perhaps that is not surprising, having regard to the incompatible temperament of the parties. The mother moved, with the children, upstairs to another apartment in the same block, the father staying in the apartment which had been the family home. The father issued an originating summons making the children wards of court in July 1990.
The matter came back before the court in December 1990 when there were some
detailed orders about care and control to the mother and access, including staying access, to the father. It was in...
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