Re AR (A Child: Relocation)
| Jurisdiction | England & Wales |
| Judgment Date | 2010 |
| Neutral Citation | [2010] EWHC 1346 (Fam) |
| Date | 2010 |
| Court | Family Division |
Removal outside jurisdiction – Application for permission to relocate – Best interests of child – Unmarried English father and French mother separating after birth of child – Mother successfully seeking leave to remove child permanently to live with her in France – Mother returning to UK with child – Father seeking shared residence order – Mother making second application for leave to remove child to France – Whether relocation in best interests of child.
Residence – Shared residence – Application – Unmarried English father and French mother separating after birth of child – Mother successfully seeking leave to remove child permanently to live with her in France – Mother returning to UK with child – Father seeking shared residence order – Mother making second application for leave to remove child to France – Whether shared residence order appropriate.
The father was English and the mother was French. The child in issue, A, was born in February 2005 and had only French nationality. The parents never married but the father had parental responsibility by virtue of being named on the birth certificate. The parents’ relationship ended shortly after A was born. Following the separation, the mother applied for permission to relocate with A to France. Unknown to the district judge hearing her application, the parents maintained a sporadic sexual relationship that resulted in the mother being pregnant at the time when her application came on for hearing. She had written to the father indicating that she wished to remain in the United Kingdom so that he would be able to form a relationship with the new child, but then had a miscarriage. On the incomplete evidence before him, the judge allowed her application for leave to relocate. After living in France for a brief period, the mother returned to the UK and the father applied, inter alia, for orders setting aside the grant of leave to remove and prohibiting the mother from removing A from the jurisdiction. Temporary orders were made preventing the mother from leaving the jurisdiction with A, and she again applied for leave to remove him to France. She also sought a residence order in her favour, opposing a shared residence order which was sought by the father. Section 1(3) of the Children Act 1989 provided that, where the court was considering whether to make, vary or discharge a s 8 order such as one relating to residence, it was to have regard in particular to (a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding); (b) his physical, emotional and educational needs; (c) the
likely effect on him of any change in his circumstances; (d) his age, sex, background and any characteristics of his which the court considered relevant; (e) any harm which he had suffered or was at risk of suffering; (f) how capable each of his parents, and any other person in relation to whom the court considered the question to be relevant, was of meeting his needs; and (g) the range of powers available to the court under the 1989 Act in the proceedings in question. Whilst acknowledging that the Declaration on International Family Relocation had no current effect in England and Wales, the judge determining the applications considered its terms.
Held – (1) Joint or shared residence orders had become the rule rather than the exception, even where the quantum of care undertaken by each parent was decidedly unequal. There was very good reason why such orders should be normative; they avoided the psychological baggage of right, power and control that attended a sole residence order, and were not inapt even if leave to relocate was granted. In the circumstances of the instant case, a joint or shared residence order would be made (see [52], below); Re G (leave to remove)[2007] EWCA Civ 1497 applied.
(2) It was settled that relocation cases were to be decided upon the application of two propositions: (a) the welfare of the child was the paramount consideration; and (b) refusing the primary carer’s reasonable proposals for the relocation of his or her family life was likely to impact detrimentally on the welfare of his or her dependent children. To guard against the risk of too perfunctory an investigation resulting from too ready an assumption that the primary carer’s proposals were necessarily compatible with the child’s welfare, Payne v Payne[2001] 1 FCR 425 had established the following discipline as a prelude to conclusion. First, the court had to ask whether the primary carer’s application was genuine (in the sense that it was not motivated by some selfish desire to exclude the remaining parent from the child’s life), and whether it was realistic, being founded on well researched and investigated practical proposals. Secondly, if the application passed those tests, there had to be a careful appraisal of whether the remaining parent’s opposition was motivated by genuine concern for the future of the child’s welfare or driven by some ulterior motive. The court had to consider the extent of the detriment to the remaining parent and his or her future relationship with the child were the application to be granted, and the extent to which that would be offset by extension of the child’s relationships with the primary carer’s family and homeland. Thirdly, the impact on the primary carer of a refusal of his or her realistic proposal had to be considered. The outcome of the second and third appraisals then had to be brought into an overriding review of the child’s welfare as the paramount consideration, directed by the checklist in s 1(3) of the 1989 Act insofar as appropriate (see [5]–[6], [14], below); Payne v Payne[2001] 1 FCR 425 considered.
(3) In the instant case, the mother’s application was neither selfish nor malevolent. However, there was a lack of precision in her relocation plans,
both in terms of her work and the arrangements made for A’s day to day care and education. Moreover, her failure to sever her connections with the UK and her swift return signified an attachment to the UK and its way of life that she had underplayed in her case before the court. On the evidence, the father’s opposition had been motivated by a genuine concern for A’s future welfare, and the relationship between them would be badly affected by A’s removal to France. The importance of that relationship could not be compared in any meaningful way with the relationship that A would have with his maternal family in France. Furthermore, the mother would accept an adverse decision responsibly and would work with the father in co-parenting A in a meaningful way. In the round, relocating A to France, with the consequential effect on his relationship with the father, would be damaging to him. His best interests would be best served by his continuing to live in the UK. The mother’s application to relocate would therefore be refused (see [54]–[55], [57]–[58], below); Payne v Payne[2001] 1 FCR 425 applied.
Per curiam. The authorities place heavy, arguably decisive, emphasis on the impact on the primary carer of a refusal of leave. They are tendentious in the true sense of that word, ie supplying a tendency, and that tendancy is the almost invariable success of the application, save in those cases where it was demonstrably irrational, absurd or malevolent. There is a strong view that the heavy emphasis on the emotional reaction of the thwarted primary carer represents an illegitimate gloss on the purity of the paramountcy principle. Moreover, paradoxically, it appears to penalise selflessness and virtue, while rewarding selfishness and uncontrolled emotions. The Declaration on International Family Relocation supplies a more balanced and neutral approach to a relocation application, as is the norm in many other jurisdictions. It specifically ordains a non-presumptive approach and requires the court, in a real rather than synthetic way, to take into account the impact of the disruption of the periodicity and quantum of the prevailing contact arrangement on both the child and the left behind parent; the psychological impact on the thwarted primary carer is relegated to a seemingly minor position. A review of the established ideology by the Supreme Court is urgently needed, where the emerging body of significant research in various jurisdictions would be brought into account (see [7]–[8], [11]–[12], [15], below).
Per curiam. If one were to draw up a hierarchy of human rights protected by the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, the right of a child, while he or she is growing up, to have a meaningful participation by both of his parents in his upbringing, would presumably be very near to the top. Although this is (strangely) not explicitly spelt out in the text, it must be implicit in the notion of the right to a family life. Recognition of the existence of this very obvious and critically important right is sometimes lost in the relocation cases (see [53], below).
Cases referred to in judgmentBD v AID[2010] EWCA Civ 50.
C (a child) (residence and contact), Re[2005] EWHC 2205 (Fam), [2006] 2 FLR 277.
D (children) (shared residence orders), Re[2001] 1 FCR 147, [2001] 1 FLR 495, CA.
G (leave to remove), Re[2007] EWCA Civ 1497, [2008] 1 FLR 1587.
H (a child), Re[2010] EWCA Civ 915.
P (LM) (otherwise E) v P (GE) [1970] 3 All ER 659, sub nom Poel v Poel [1970] 1 WLR 1469, CA.
Payne v Payne[2001] EWCA Civ 166, [2001] 1 FCR 425, [2001] Fam 473, [2001] 2 WLR 1826, [2001] 1 FLR 1052.
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