NJ v OV
| Jurisdiction | England & Wales |
| Judge | Mr. Justice Mostyn |
| Judgment Date | 21 November 2014 |
| Neutral Citation | [2014] EWHC 4130 (Fam) |
| Docket Number | No. FD12P01226 |
| Court | Family Division |
| Date | 21 November 2014 |
[2014] EWHC 4130 (Fam)
Mr. Justice Mostyn
(In Private)
No. FD12P01226
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Mr. A. Leong (instructed by Broadway Solicitors) appeared on behalf of the Applicant.
Miss R. Amiraftabi (instructed by Dawson Cornwell) appeared on behalf of the Respondent.
In this case I am concerned with the future of a little girl called B, who was born on 28 th January 2010 and who is now therefore aged nearly 5.
Her mother is NJ, who is aged 31. She was born in Sweden of Finnish parents. B's father is OV, aged 36, who was born in London to English parents.
It is the mother's application for permission permanently to relocate B to Sweden and for consequential adjustments to be made to the contact arrangements in the father's favour. This is strenuously opposed by the father. He cross-applies for an order adjusting the present contact arrangements so that B's time is equally shared between the parents.
It is my opinion that outside the sphere of State intervention for the purposes of child protection, the hardest decision that a judge ever has to make in the field of family law, or, for that matter, in any field, is a relocation decision. The choices are starkly binary. One or other parent will lose and will be bitterly disappointed. There is no scope for finding some comfortable middle ground.
In my recent decision of Re TC & JC (Children: Relocation) [2013] EWHC 290 Fam., given on 21 st February 2013, I analysed the highly acute decision of the New Zealand Supreme Court in Kacim v Bashir [2010] NZSC 112, which explained correctly, in my view, that a decision of this nature is not really discretionary at all, at least not in the sense of a judge making a decision from a range of legitimate solutions none of which can be said to be wrong. Rather the court makes an assessment and a decision based on an evaluation of the evidence. It is a factual evaluation followed by a value judgment.
In my earlier decision I attempted to summarise the relevant legal principles applicable to this type of case. I referred, in para.10, to the four leading decisions of the Court of Appeal, namely Poel v Poel [1970] 1 WLR 1469; Payne v Payne [2001] Fam 473; K v K [2012] Fam 134, and Re F [2012] EWCA Civ. 1364. In para.11, having considered the principles to be derived from those four principal cases, I attempted to set out the law in the following terms:
"I have considered these four cases most carefully and, doing the best I can, I set out shortly what seem to me to be the presently governing principles derived from them for a relocation application:
i) The only authentic principle to be applied when determining an application to relocate a child permanently overseas is that the welfare of the child is paramount and overbears all other considerations, however powerful and reasonable they might be.
ii) The guidance given by the Court of Appeal as to the factors to be weighed in search of the welfare paramountcy, and which directs the exercise of the welfare discretion, is valuable. Such guidance helps the judge to identify which factors are likely to be the most important and the weight which should generally be attached to them, and, incidentally, promotes consistency in decision-making.
iii) The guidance is not confined to classic primary carer applications and may be utilised in other kinds of relocation cases if the judge thinks it helpful and appropriate to do so.
iv) The guidance suggests that the following questions be asked and answered (assuming that the applicant is the mother):
a) 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?
b) Is the mother's application realistically founded on practical proposals both well researched and investigated?
c) What would be the impact on the mother, either as the single parent or as a new wife, of a refusal of her realistic proposal?
d) Is the father's opposition motivated by genuine concern for the future of the child's welfare or is it driven by some ulterior motive?
e) What would be the extent of the detriment to him and his future relationship with the child were the application granted?
f) To what extent would that detriment be offset by extension of the child's relationships with the maternal family and homeland?
v) Since the circumstances in which such decisions have to be made vary infinitely and the judge in each case has to be free to decide whatever is in the best interests of the child, such guidance should not be applied rigidly as if it contains principles from which no departure is permitted.
vi) There is no legal principle, let alone some legal or evidential presumption, in favour of an application to relocate by a primary carer. The old statements which seem to favour applications to relocate made by primary carers are no more than a reflection of the reality of the human condition and the parent-child relationship.
vii) The hearing must not get mired in taxonomical arguments or preliminary skirmishes as to what label should be applied to the case by virtue of either the time spent with each of the parents or other aspects of the care arrangements."
By a coincidence, in this very month's Family Law at [2014] Fam Law 1586, a learned article appears written by Mr. Edward Devereux and Rob George, both barristers of Harcourt Chambers. In their conclusion they stated this:
"The experience of lawyers and judges up and down the country leads to a conclusion that now really is the time for a re-think. We have tried living with Payne and we have tried re-interpreting Payne. It is time finally to admit that this case has run its course and for the Supreme Court, with a critical eye, to take the next available opportunity to look at this important area of the law".
I do not agree with that view. In my opinion, the law, since the more recent cases of K v K and Re F, is now clear and stable and I believe that I have correctly summarised the relevant principles in para.11 of my earlier decision and, even more laconically, in para.18 where I stated:
"… presumptions have no place in a relocation application. I therefore start with a blank sheet. There is no presumption in favour of the applicant mother. My determination will involve a factual evaluation and a value judgment. I will ask myself and answer as best I can the questions in paragraph 11(iv) above but their answers will not be determinative or even necessarily tendentious (in the true sense of that word). They will merely be aids to my determination of the ultimate single question, which is, of course: what is in the best interests of these children?"
I make two preliminary observations of a general nature. Mr. Justice Hedley has made some characteristically penetrating observations about the problems thrown up by a transnational or cross-border relationship. Where, as here, an Englishman has formed a relationship with a foreign woman, both must have done so, or be taken to have done so, with their eyes open as to possible future pitfalls should the relationship founder: a fortiori, if they decide to have a child. If the relationship founders it will probably come as no great surprise to the Englishman if his own estranged partner wishes to return to her homeland. That would not come out of a clear blue sky. The counter-argument, which is the other side of the same coin, is that the foreign mother must surely be taken to have tacitly accepted and agreed that should the relationship founder she would sacrifice her own wishes and desires to return to her homeland in favour of the maintenance of a regular and meaningful relationship between the child and her father. These are deep waters indeed.
My second preliminary observation is the paradox referred to at para.12 of my earlier decision. In para.12 I said this:
"Factor (c) of the guidance always looms large and is particularly problematic, both in principle and in practice. It is a significant feature in this case, as will be seen. Discussing this factor in Re AR (A Child: Relocation) [2010] EWHC 1346 (Fam), [2010] 2 FLR 1577 (at para 12) I stated
'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. This is the reverse of the Judgment of Solomon, where of course selflessness and sacrifice received their due reward.'
I do not resile from these views but the paradox does not make the problem any easier to solve. The impact on the mother if her realistic proposal is rejected is a fact which has to be recognised whatever its psychological origin. I have to take the parents as I find them and if one finds himself as a result of my judgment to be a victim of his virtues then that is a cross which he will have to bear in the interests of his children."
As will be seen, that paradox looms large here and it has made my task in this case exceedingly difficult.
Counsel have, at my prompting, helpfully prepared a comprehensive chronology from which I will extract most of the key dates. But before I do so, I...
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