Re J (children: relocation)
| Jurisdiction | England & Wales |
| Judge | Mc FARLANE,PETER JACKSON LJJ |
| Judgment Date | 08 May 2018 |
| Court | Court of Appeal (Civil Division) |
Children arrangements – Leave to remove – Relocation to mother’s home country – Mother’s new partner in home country, currently with their new baby – Legal test – Impact of refusal to leave on mother – Inferences drawn from new partner’s refusal to give evidence – Whether change more in children’s interests than no change.
The mother held Ukrainian and British passports; the father held Russian and British passports. They had two children, now five and two. The couple had met in 2010, married in Ukraine in 2012 and thereafter made their home together in London. The marriage ended because of a unilateral decision by the father in 2015, but the couple remained living together in the family home until the mother and children moved out in early 2016, into a £9 million property very close by, purchased by the mother, with funds provided by the maternal grandmother. The couple divorced in 2016; their financial affairs were dealt with in accordance with their pre-nuptial agreement.
Under a Ukrainian parenting agreement, the children were to live with the mother permanently in the UK, spending substantial time with the father. The agreement provided that the mother could move abroad with the children with the father’s written consent, which was not to be unreasonably withheld. Both parents were in new relationships. The father had remarried and now lived with his new wife and their child in the former family home in London; he also had three children in their teens from a previous marriage.
In January 2017, the mother informed the father that, because of her new relationship, she would like to move permanently to California. After considering the proposal, the father opposed the relocation. Shortly afterwards the mother proposed relocation to Ukraine. The father responded to this by applying for a child arrangements order and a prohibited steps order. Meanwhile, the mother became pregnant with her new partner’s child.
At the preliminary hearings cross-undertakings were given that the children would not be removed from the jurisdiction without seven days’ notice to the other parent of any foreign trip, and 48 hours’ notice to the other parent of any planned non-attendance at school. Also, the mother agreed to produce her new partner’s passport (showing where he was based). In November 2017, after the independent social work report recommended that the children remain in London, the mother travelled with the children to Kiev, in breach of the undertakings, on a trip that was intended to take them out of school for two days, without informing the father, the school or anyone else. In fact, the mother did not return as had apparently been planned, instead going to hospital with what she claimed were complications relating to her pregnancy. During this time, she married her new partner.
An English judge concluded that the mother had genuine health problems which were detaining her in the Ukraine and permitted her and the children to remain there pending the English court’s final relocation decision. The mother was required to return the children by 9 April at the latest. A second social work report was obtained; this concluded that permission to relocate to Kiev would be risky and should only be granted if the mother was able to satisfy the court that she could be trusted to prioritise the needs of the children above those of her new husband and to facilitate frequent contact with the father and the wider paternal family.
At the hearing, the mother’s new husband did not give evidence; he had remained in Kiev with the new baby. He had refused to give up his passport for inspection. Both parents gave evidence, as did the nanny and the independent social worker. The judge dismissed the mother’s relocation application and ordered that the children resume their life living with the mother in London, with frequent contact to the father. The judge concluded that the mother’s trip to Ukraine had been cynically contrived and that she had shown an ‘arrogant disregard’ for court orders, which raised very serious concerns about the likelihood of her compliance with future court orders. He was particularly critical of the position of the mother’s new husband, describing his approach as evasive. The judge agreed with the social worker that the relocation plan was almost entirely about the new husband and was not in reality inspired by homesickness for Ukraine. The judge expressed the view that the court should treat with circumspection the disappointment that might be experienced by an applicant for leave to remove and also suggested that, while there was no legal burden of proof on the applicant, where one parent sought changes to a well-functioning status quo, she had to make the running in terms of the evidence and argument, to show that change would be more in the children’s interests than no change.
After the judgment was handed down, the mother revealed for the first time that the baby’s visa to enter the UK had been refused and applied for a temporary reinstatement of the earlier order permitting the children to be in Ukraine. After a very short hearing, the judge gave the mother leave to take the children back to Ukraine for four weeks.
The father was given permission to appeal against the mother’s leave to remove the children temporarily to Ukraine. The mother sought permission to appeal against the judge’s refusal of permission to relocate permanently to Ukraine.
Held – (1) Against the background of his own findings, the judge’s decision to grant immediate permission for the children to return to Ukraine had been inconsistent. He had been bound to weigh up the arguments in reaching a conclusion about the degree of risk that might exist. The fact that the application had been made without notice (or without effective notice) in the middle of a busy list meant that this weighing up had not happened. While it was true that Ukraine was a Hague Convention country, the process of enforcement of return could be protracted. While it was true that the earlier order had allowed the mother, and indeed the father, to travel in future, it had required 14 days’ notice, which would allow opposition to the travel in question to be properly voiced and safeguards to be put in place, for example, an order in Ukraine to be put in place to prevent default or the consequences of default. While it was true that the mother had complied with previous orders for the return of the children, her incentives for compliance were now quite different. While it was true that the situation with the newborn baby was very difficult for the mother, that situation arose from the unexplained difficulties concerning the baby’s visa and the consequences of the short-term separation of the two children from their mother and from the baby were, on the face of it, far less concerning than the possible consequences of the separation of the two children from their father in the medium to long-term. If the judge had had the opportunity to address these matters fully, it was more than likely that permission for temporary removal would not have been granted, in conformity with the judge’s overall view of the case (see [31], below).
(2) The judge, having seen the parties and read all the evidence, had not accepted that the mother’s motivation for this move was a genuine one and he had had no confidence in her trustworthiness. There had been a gaping hole in the presentation of the case left by the absence of the mother’s new husband, who had been considered by the judge to be a prime mover in there being a move at all. An application for relocation could scarcely expect to succeed if the applicant and the members of her close family were unwilling to put their cards on the table (see [38], [44], below).
(3) Further, the court did not accept that the judge had applied a burden of proof wrongly. In the welfare checklist, one of the matters that the court was obliged to take account of was the effect of any change in the children’s circumstances. Whether or not the judge had been right to reformulate matters...
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Re J (children)
...44. Family Procedure Rules 2010 (SI 2010/2955), r 28(1), r 28.3(11). Cases referred to J (children: relocation), Re[2018] EWCA Civ 1372, [2019] 3 FCR 217. RJ v Tigipko[2019] EWHC 105 (Fam), [2019] 3 FCR S (a child),Re[2015] UKSC 20, [2015] 1 FCR 549, [2015] 1 WLR 1631, [2015] 2 All ER 778, ......