Re B (Child)(Relocation: Sweden)
| Jurisdiction | England & Wales |
| Judge | Black LJ,Briggs LJ,President of the Family Division |
| Judgment Date | 26 March 2015 |
| Neutral Citation | [2015] EWCA Civ 286 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B4/2014/4069 |
| Date | 26 March 2015 |
[2015] EWCA Civ 286
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE FAMILY DIVISION
MR JUSTICE MOSTYN
FD12P01226
Royal Courts of Justice
Strand, London, WC2A 2LL
PRESIDENT OF THE FAMILY DIVISION
Lady Justice Black
and
Lord Justice Briggs
Case No: B4/2014/4069
Mr Henry Setright QC & Ms Roshi Amiraftabi (instructed by Dawson Cornwell) for the Appellant
Mr John Vater QC & Mr Andrew Leong (instructed by Broadway Solicitors) for the Respondent
Hearing date: 17 th March 2015
On 21 November 2014, Mostyn J made an order permitting the mother of a five year old girl, N, to remove her permanently from this country to live in Sweden. N's father appealed against that order. At the conclusion of the appeal hearing, we dismissed his appeal and said that we would give our reasons in due course. My reasons are set out in this judgment.
The ambit of the appeal
The appeal revolved entirely around the particular facts of this case, focussing on the judge's evaluation of them and the decision that he made in the light of them. There is no criticism of his summary of the legal principles which he had to apply and which he considered to be clear and stable in the light of K v K [2011] EWCA Civ 793 [2012] Fam 134 and Re F (Relocation) [2012] EWCA Civ 1364 [2013] 1 FLR 645. He set himself the task of deciding what was in N's best interests.
There is no need, in the circumstances, for me to rehearse the law but I will need to go into the facts in a little more detail than I might otherwise choose to do.
The factual background
The mother is in her early thirties. She was born in Sweden of Finnish parents. Her family have lived in Sweden since before 1980. She moved to England in 2007 and began a relationship with the father who is a few years older than her. In 2008, she moved in to live with him in his parents' house in south-west London where he still lives. In January 2010, N was born.
The cracks in the relationship were apparent relatively soon thereafter. There was a row in July 2010, during a family visit to the mother's parents in Sweden, which resulted in the father returning to London alone. The mother and N stayed on for about a month before coming back to England and living again with the father.
However, by July 2011, the situation was very unhappy. The mother wrongfully retained N in Sweden following a holiday there. The father brought a 1980 Hague application which resulted in the mother and N returning here in January 2012.
The judge described the unstable situation following the return from Sweden. As he put it:
"22. …almost from the moment of return, these parents have engaged in an attritional war about N. Each has accused the other of negligence and worse. The father told me that he has made no fewer than six complaints to the police about the mother's care of N. Some of those complaints have been, up to a point, justified. Some were plain over-reactions and some were, in my view, inventions. ….
23. For her part, the mother breached the agreed contact regime almost as soon as she stepped off the aeroplane. She herself has insinuated that the father has been guilty of neglecting N."
On 23 May 2012, the mother applied for permission to relocate to Sweden. The proceedings were protracted because there were repeated adjournments as the court and the authorities responded to matters arising in relation to N. Between late 2012 and late 2013, N suffered a number of minor injuries, principally bruises. In September 2013, the nursery reported that she had behaved in a sexualised way. In February 2014, it was reported that the mother had attended the nursery smelling of alcohol. Tests then carried out showed that she had been using alcohol chronically and excessively between August 2013 and February 2014.
The Local Authority became involved from November 2013 in the context of a child protection plan. On 3 July 2014, a child protection conference was held at which the family situation was reviewed and it was decided that N no longer needed to be subject to child protection, although she remained a child in need. I looked in vain in the record of the conference for the conventional list of those attending. It seems that both parents and the social worker, Ms Khalifah, were there. There were available for the conference a chronology of significant events and various assessments and reports. I will return to these later.
On 31 July 2014, directions were given for the disclosure of police records in preparation for the final hearing. The information made available as a result led the judge to make findings adverse to both parents.
The father had made serious allegations to the police about the care of N on three occasions. In November 2013, he complained to the police that he had seen bruises on N's neck. When the police examined her, a tiny bruise was observed and the father was told she was safe and well. Notwithstanding this, in January 2014 he complained to the police that he believed she may have been strangled by the mother because of bruises on her neck. The judge found that this was "an example of the father jumping on the bandwagon and exaggerating and presenting in the worst possible light the mother and her care of N" (§34). This was similar to the father's reports to the CAFCASS officer, Ms Odze, to whom he had made allegations about the mother's family which were untrue, and allegations about the mother which were "highly exaggerated" (§35).
As for the mother, the judge said that the police information revealed "much new information" (§36). This revolved around Mr L, with whom the mother had started a relationship during 2013 and against whom she made allegations of sexual misconduct on two occasions. On neither occasion had the mother reported matters to the police immediately.
The first incident was in June or July 2013 and involved Mr L injuring her by raping her anally. She did not make a complaint to the police about this until 20 August 2013, withdrawing it a week later and thereafter carrying on seeing Mr L.
The second incident took place on 29 March 2014 at the mother's home but was not reported to the police until 5 June 2014. The police statement that the mother made that day described how Mr L appeared in the property with his friend. The mother had not let him in and believed that the front door must have been unlocked by N. Mr L and his friend were drinking alcohol. The mother said she went into the shower room with Mr L where, against her will, he took down his trousers and pants, pressed up against her and touched her over her clothes.
There was a third incident involving Mr L which the judge described in §39 of the judgment. Following the mother commencing a relationship with another man, Mr L attended at her property in May or June 2014 and made threats to kill the other man.
The judge said that none of these events had been reported by the mother to the Local Authority, to the father or to other professionals and that they only came to light because, on 10 June 2014, the police notified the Local Authority of the complaint made by the mother on 5 June 2014. The mother told the judge that she had not made any report because she feared that it might imperil her application to relocate or might even lead to the removal of N from her care.
§43 of the judgment is important. In it, Mostyn J set out his summary of the troubled period in the mother's life from about April 2013 to the middle of 2014 and his conclusion that things were rather better in the latter half of 2014. He said:
"43. It is plain that from about April 2013 to the middle part of this year, 2014, the mother's life has been very disturbed and disordered indeed. The excessive drinking, which has been confirmed by the test results, and the formation of at least one highly inappropriate and unsuitable relationship imperilled her and also imperilled N. However, it is fair to say that in the second part of this year stability seems to have taken hold. Indeed, the mother has allowed the father far more contact than the operative provisions of the order stipulate. She has done so up to a point through motives of self-interest, in order to pursue her relationship with [a new boyfriend] but it is also perhaps a sign that this mother has started to turn her anarchic and dysfunctional life around."
The mother's case for relocation and the judge's approach to it
The mother's case for a return to Sweden had two limbs. First, she believed that she could offer N a much better way of life in Sweden. Secondly, she was totally isolated here which would not be the case in Sweden.
She exhibited to her statement a letter dated 11 October 2013 from Dr Draper, a psychologist who had been treating her. He said she was suffering from symptoms as a result of the strain she was under. He said that it was clear to him that she had not settled in London and was genuinely unable to foresee a happy future for herself and N here and that he considered that being compelled to live in London would precipitate a substantial decline in her emotional well-being and, as a consequence, long term counselling might be necessary. Even if such treatment were provided, the outcome would remain uncertain and "it was possible that chronic low mood may impact on the quality of parenting" she was able to provide to N. His view appeared still to be similar in June 2014 when he communicated with the social worker, Ms Khalifah.
The judge treated Dr Draper's view as highly relevant and said it was confirmed by his own observation of the...
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