: Re H (Children: Relocation)
| Jurisdiction | England & Wales |
| Judge | Moradifar |
| Judgment Date | 30 October 2019 |
| Neutral Citation | [2019] EWHC 2881 (Fam) |
| Court | Family Division |
| Docket Number | Case No: FD19P00271 |
| Date | 30 October 2019 |
[2019] EWHC 2881 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
HHJ Moradifar
(SITTING AS A DEPUTY HIGH COURT JUDGE)
Case No: FD19P00271
Indira Ramsahoye (instructed by Nockolds Solicitors) for the Mother
Dorothea Gartland (instructed by International Family Law Group) for the Father
Hearing dates: 17 and 18 October 2019
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
HHJ Moradifar (SITTING AS A DEPUTY HIGH COURT JUDGE)
This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
Introduction
At the centre of this case, there are two children. I will identify them as A and B. They are four and three years old respectively. Since March 2018 the children have lived with their mother in England. They have had regular and extended contact with their father. The mother seeks court orders to secure the continuation of these current arrangements. The father applies for permission to relocate the children to the Netherlands where he now lives. The parents agree that wherever the children live, it would be ideal that the other parents should relocate to live close to the children where they can be “co-parented”. In the absence of such arrangement, the parents agree that the children regularly and extensively see the parent who lives in another territory.
Ms Jennings who is the CAFCASS officer appointed to this case, found the parents to be exceptional parents and has no material concerns about either parent's ability to parent the children to the highest standards. As such, she finds herself unable to make a positive recommendation about the children's living arrangements. She suggests that the children should spend a significant portion of their school holidays with the parent with whom they do not live during the school term.
The law
Each parent must prove his/her case on a balance of probabilities. S1 of the Children Act (1989) makes it clear that the children's respective welfare is my paramount consideration and that I must make my decision by reference to the ‘welfare checklist’ as set out in the s 1(3) of the said Act.
I have considered the following cases:
Payne v Payne [2001] 1 FLR 1052
Re (Children) [2011] EWCA Civ 793
K v K (Relocation: Shared care arrangements) [2012] 2 FLR 880
Re F (Relocation) [2013] 1 FLR 645
Re F (a Child) (International Relocation) [2015] EWCA Civ 882
Re C (a child) [2019] EWHC 131 fam in the course of which Williams J most helpfully summarised the most up to date approach to be taken by the court as follows;
“15. The most recent and authoritative appellate decision on the approach to permanent overseas relocation cases is Re F (A Child) (International Relocation Case) [2015] EWCA Civ 882 [2017] 1 FLR 979. The material paragraphs of the judgment are 3, 4, 30–35 (Ryder LJ) and 45–52 (McFarlane LJ). Re F together with the earlier authorities of ' Payne, Re F, K-v-K and Re C (Internal Relocation) makes clear that that whether the applications are configured under s.8 or s.13 Children Act 1989 the following framework applies.
(a) The only authentic principle is the paramount welfare of the child
(b) The implementation of section 1(2A) Children Act 1989 makes clear the heightened scrutiny required of proposals which interfere with the relationship between child and parent
(c) The welfare checklist is relevant whether the case is brought under s.8 or s.13 Children Act 1989
(d) The effect of previous guidance in cases such as ‘ Payne’ may be misleading unless viewed in its proper context which is no more than that it may assist the judge to identify potentially relevant issues.
(e) In assessing paramount welfare in international relocation cases the court must carry out a holistic and non-linear comparative evaluation of the plans proposed by each parent. In complex international relocation cases this may need to be of some sophistication and complexity.
(f) In addition to Article 8 rights – indeed probably as a component of the Art 8 ECHR rights and s.1(2A) one must factor in the rights of the child to maintain personal relations and direct contact with both parents on a regular basis (unless that is contrary to her interests) in accordance with Article 9 of the United Nations Convention on the Rights of the Child (“UNCRC”).
(g) Furthermore, the court must also take into account the Article 8 rights of the parents. In the usual case the child's Art 8 right will take priority over the parents but that should not cause the court to overlook the Art 8 rights of others affected and the court should balance the competing Article 8 rights.
(h) The effect of an international relocation is such that the Article 8 rights of a child are likely to be infringed and the court must consider the issue of proportionality of the interference. There remains some degree of uncertainty as to how the proportionality evaluation is to be applied in relocation cases. In Re F it was said one should be undertaken, In Re Y [2015] 1 FLR 1350 it was said in private law cases it doesn't need to be, The Court of Appeal in Re C (Internal Relocation) expressed doubts about how it was to be undertaken. I consider that in most cases in practice the proportionality issue will be subsumed within the overall holistic evaluation in particular when considering effect of change and risk of harm. In reality in the judicial consideration of the welfare checklist it simply is likely to mean the judge will be that much more alert to the importance and thus weight to be afforded to the child's right to maintain contact with the left behind parent and their rights to a stable and secure family life with their primary carer, if there is one.
16. Insofar as it may assist in identifying the relevant issues a court may (but is not obliged to) deploy what may be described as the ‘ F, K, C, Payne’ composite. This is no more than an integrated approach to the welfare checklist and the ‘ Payne’ guidance/discipline incorporating within the welfare checklist relevant Payne criteria and any other particular features of the individual case which appear relevant. Of course in some cases it may be that one or more particular aspects will emerge as carrying significantly more weight than others – a contour map with high peaks and low valleys; in others the factors may be much more evenly weighed and present a gently undulating landscape. In the former the balance may fall more obviously in one direction if it is dominated by peaks with no valleys in others the peaks may be balanced by the valleys creating a finer balance. In the latter the overall undulations may make the balance a very fine one. Ultimately every case is fact specific. This case is a paradigm example of that.”
Finally, each of the parties have a right to a fair trial pursuant to Article 6 and together with the children a right to private family life pursuant to Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950). These rights cannot be interfered with unless such interference is pursuant to a legitimate aim, necessary, proportionate and in accordance with the law.
Background
The mother is English and works as a journalist. The father is Dutch and works in a government department. Previously he worked for an NGO. The parties met in 2010 when they both lived and worked in west Africa. In 2013 they set up a home in the Ivory Coast. The children were born in 2015 and 2016. They were both born in England and spent a short time in England before visiting Netherlands and finally returning to their home in the Ivory Coast.
In 2016 the parents' relationship began to suffer. They were committed to resolving their difficulties. The sought help through relationship counselling that concluded in early 2017. Later in the same year their relationship came to an end, but they continued to live under the same roof.
There is a great deal of dispute between the parties about the circumstances in which the mother removed the children from their home. On the mother's case, she was faced with threats of court proceedings by the father that he intended to issue in the Ivory Coast. The mother was fearful about the prospect of such threats coming into fruition. The father denies making such threats and states that the mother made a unilateral decision to remove the children without discussing the same with him. It is beyond dispute that on 27 March 2018, the mother informed the father that she was taking the children to the beach. Instead she took the children to the airport and left for England where the children have continued to reside. In April 2018, the mother enrolled the children at nursery. B continues to attend the same nursery. A started school in September 2019.
On 11 April 2018 the mother applied for orders securing the children's living arrangements with her. The following day, on 12 April 2018 the father issued his application for the summary return of the children to the Ivory Coast. The court found that the mother had unilaterally removed the children from the Ivory Coast where they were habitually resident but the courts of England and Wales should continue to deal with this matter. The father's application was dismissed.
Thereafter...
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