Unsuccessful appeal by father to the Court of Appeal against first instance decision giving permission to his former wife to relocate to Moscow with the couple's two daughters: the case re-emphasises the paramountcy of the welfare principle in relocation cases and the difficulty of overturning a first instance decision on appeal.
On 1 November 2016 the Court of Appeal (Lady Justice King and Lord Justice Underhill) dismissed a father's appeal against the decision of His Honour Judge Wallwork, in the High Court of Justice Family Division, granting his former wife permission to relocate to Moscow with their two children and their stepfather.
The father was a wealthy British man, in his 60s, who had enjoyed a very successful international business career with various multinational companies working in the UK, USA and the Middle East. He had met the mother, a Ukrainian-born Russian woman with joint Russian and British nationality, while he was living in Moscow, in 2002. The couple lived together there until they moved to Paris, in 2005.
The couple had married in September 2005 (the father's third marriage and the mother's first) and the family moved to London (where they remained) in July 2006. Their eldest daughter (now nearly 12) had been born in Moscow and their younger daughter (now 10) was born in Paris. At the time of the hearing the father spent approximately one third of his time in Moscow. The children had British passports and as they both had Russian nationality, they were also entitled to have Russian passports. Both girls were bilingual in English and Russian.
The parents separated in February 2011, were subsequently divorced and the mother (who had been the girls' primary carer throughout) remarried, in 2014. After their separation the parents had been involved in what Lady Justice King described as "virtually unremitting litigation in relation to the (children's) living arrangements". Relations between the parents had been very acrimonious and both parents had made unpleasant allegations against the other.
In January 2015 a child arrangements order was made formalising an earlier agreement between the parents whereby the father had staying contact every other weekend and extensive staying contact during the school holidays which arrangements had continued, despite the ongoing litigation between the parents.
The girls had been attending a well-known feepaying school in central London but that became impractical after their mother moved to live near Leatherhead with the girls and her second husband so, in July 2015, she made an application to change their school to one nearer her new home.
In November 2015 the mother was offered a position working for a company in Moscow and applied for leave to remove the children permanently from the jurisdiction to Russia. The father issued a cross application seeking an order that the children should live with him, continue to attend their London School or, alternatively, that they should attend a weekly boarding school in southern England.
At the beginning of the final hearing in March 2016 the mother's position had been that if the judge refused her application to relocate, she would move to Russia in any event and the children would live with their father in London giving as her reason that she was extremely distressed and worn out by the litigation. She changed her position during the course of the trial after hearing evidence from a friend and former sexual partner of the father. Her position then was that if permission to relocate was refused she would stay in the UK with the children, whilst her husband would still move to run their business in Russia.
First instance decision:
The Final Hearing went part heard and did not conclude until July 2015 when the judge, being aware that the children needed a decision to be made before the start of the new school year, gave his decision the day after the parties' closing submissions.
The mother's case was that given the frequency with which the father visited Moscow, there was no reason why contact could not continue on the same basis, ie that the alternate weekend staying contact would take place in Moscow rather than UK and all the school holiday contact in the UK. It was not disputed that the father was in a financial position to facilitate such contact and could, if he chose, purchase a flat in Moscow.
The father rejected the mother's contact proposals, saying he did not wish to buy real estate in Moscow and did not want to be away from London at the weekend. He proposed that if permission was granted he should have longer periods of time with the girls in the school holidays, plus contact with them in Moscow, when he was there on business.
A jointly instructed independent social worker (ISW) prepared a report in which she concluded that the mother's application to relocate should be refused because of what she perceived to be the uncertainty of the mother's plans and the children's need for stability. In her evidence she said she did not believe that the mother had tried to influence the girls (both of whom stated that they wished to move to Moscow) adversely against their father.
The judge granted the mother's application for leave to remove the children permanently to Moscow and ordered her to execute a £600,000 charge over her property in Leatherhead, as security to ensure the mother's compliance with the extensive continuing contact between the children and their father, having concluded that the mother would continue to comply with those arrangements.
The father appealed on two main grounds:
- that the judge had attached too much weight to outdated case law, especially the authorities prior to Payne v Payne , which had led the judge into error by wrongly attributing too great an importance to the new family (the mother's relationship with her husband/the children's stepfather), at the expense of focusing upon the children's relationship with their father and other welfare issues; and
- the judge had failed to to analyse the evidence in the case sufficiently and in particular evidence directed to establishing the mother's true motivation in seeking permission to relocate to Russia and whether the mother's stated reasons were bona fide.
Court of Appeal decision:
The Court dismissed the father's appeal. Lady Justice King (with whom Lord Justice Underhill agreed) delivered the judgement of the Court. Once again, the Court of Appeal restated that: "There is only one principle in relocation cases and that is that welfare of the child is paramount; there are no presumptions and any guidance is exactly that, guidance, and, as such, designed to be of assistance (or not) depending on the circumstances of the case."
After a period of uncertainty as to how the "Payne guidance" should be applied, any such confusion had been laid to rest by the judgement in K v. K (Relocation) (Shared Care Arrangement) in 2011, which had clarified that the only principle to be applied in relocation cases is the welfare principle, an approach further confirmed by the President of the Family Division (Lord Justice Munby, as he then was) in Re F (Relocation) in 2012 where he said: "…. There can be no presumptions in a case governed by section 1 of the Children Act 1989. From beginning to end the child's welfare is paramount, and the evaluation of where the child's best interests truly lie is to be determined having regard to the 'welfare checklist' in section 1(3)."
It followed therefore that the impact on the new family, if permission was refused, was just one of the matters which the judge could and should take into account in conducting his welfare evaluation, just as it had been of concern to the ISW. In relation to the first ground of appeal, the Court found that the judge had not allowed himself to be constrained by the Payne guidance, nor had he approached the case on the basis that because the stepfather intended to move to Moscow, whatever the outcome of the case, that led to any presumption in favour of allowing the mother's application to relocate. The judge had referred to earlier case law but this did not mean his judgement was tainted by the previous confusion that had existed. He had specifically referred to the fact that the only determining factor in his decision was the children's welfare and had properly analysed factors relating to the children's welfare.
In relation to the second ground of appeal, the Court of Appeal found that the judge's approach had also been beyond reproach. The judge had concluded that whilst there was no immediate financial necessity for the mother and stepfather to relocate to Russia, the mother's job offer was genuine and was the catalyst for the other plans in respect of the UK business. He had found, correctly, that there was no requirement that the mother needed to demonstrate that it was economically necessary for her to relocate, in order to succeed in her application. "To do so would be to put exactly the sort of impermissible gloss on the welfare principle that K v. K has so carefully dismantled."
The judge had accepted that there was no immediate need for the removal of the UK business to Moscow but also the potential difficulties the business faced and the genuine and reasonable business reasons for moving to Moscow. The judge had been entitled to conclude that, however impulsive the mother was capable of being, her motivation for relocating was reasonable and genuine and her application was not made with a view to damaging the children's relationship with their father.
Re M (Children) [2016 ] EWCA Civ 1059
Maeve O'Higgins Family Law Partner, Moon Beever
Email: firstname.lastname@example.org, Tel: 020 7539 4133
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