Mother granted leave to relocate her two children (aged 6 and 3) to Utah USA, in the face of opposition from the children’s father and the recommendation of the Children’s Guardian.
This was a decision by a very experienced High Court Judge, Mr Justice Bodey, who also sits in the Court of Appeal. His decision is a classic exposition of the “modern” law on relocation (welfare plus proportionality) as set out in recent cases, which also includes reference to the Payne guidance.
The case concerned a young couple, both aged 25 at the time of the final hearing, who had not been married. They began a relationship in 2007, when they were both 16 years old, and started to live together in 2008. The mother (“M”) gave birth to a son in 2009, a second son in August 2010 and a daughter in February 2013.
Tragically the couple’s eldest son died in July 2011 and shortly after this there was a brief separation, following a violent argument between the couple (which the judge attributed mainly to grief over the death of their eldest child), when they had both been drinking, in the course of which the father (“F”) assaulted M. F subsequently pleaded guilty to ABH, and was sentenced to a period of community service. Thereafter the couple were reconciled and lived together for a further three years, during which time M gave birth to a girl, in February 2013.
The parents’ relationship broke down finally in September 2014, when F moved out of the former family home. Shortly after this, F moved to live with his present partner, who had four children, ranging from 2 to 6 years. That couple went on to have a baby son, born very prematurely, in September 2015. Their baby had severe health issues including a hole in the heart and as F explained, “he took up a lot of their time and energy.”
In May 2015, M met Mr Y (now aged 21) an American citizen and construction worker who lived and worked in Utah, USA, whom she married on 6 August 2016, when he was visiting the UK. Both M and Mr Y were members of the Mormon church. M issued her application for permission to relocate the two children to live in Utah in April 2016. At the time of the final hearing in October 2016, M was 12 weeks’ pregnant by her husband and wished to move with her two children to join her husband in the US.
Following their parents’ final separation, the children had remained living with M, who had been their primary carer throughout, and F’s contact with the children was sporadic and infrequent. There was a factual dispute between the parents as to the reasons for the low level of contact. F claimed that M had been obstructive. F was supported in his view by the Cafcass Officer/Children’s Guardian in her Report to the court, in which she stated that M had not been promoting contact between the children and F, and was prioritising her own needs over the needs of the children. However, she changed her position somewhat when giving her evidence, conceding that if the court disagreed with her assessment, her recommendation regarding relocation might will be different. In her Report, she recommended that permission to relocate the children should be refused.
Mr Justice Bodey carefully analysed the parents’ evidence, which included their oral evidence and contemporaneous social media and text messages between the parents and F’s mother, who had acted as intermediary between the parents. The judge disagreed with the views of the Cafcass officer in her Report and, preferring the evidence of M to F, found that there was no evidence that M had been obstructive and also that F’s explanations of why he had failed to attend contact regularly were not satisfactory.
Dealing with the applicable law, he referred to “the modern approach” which emerges from K v. K in 2012, Re F in 2015 and Re C in 2015. He said this: “It is abundantly clear that the welfare of each child respectively is the court’s paramount consideration when deciding about relocation. Also that the welfare checklist in section 1(3) of the Children Act 1989 is to be applied.” He also referred to Lord Justice McFarlane’s reference in Re F to the need for “an overall comprehensive analysis of the child’s welfare seen as a whole, having regard in particular to the circumstances ..set out in the.. welfare checklist” and said that “the Court must weigh up all of the relevant factors; all of the pros and cons of the children’s being relocated”. He also referred to the leading judgement delivered by Lady Justice Black, as well as the judgement of Vos LJ, in Re C, where he referred to the need for a consideration of the proportionality of any proposed interference with any of the Article 8 rights engaged. Finally, he referred to the Guidance in “the now old case of Payne” in 2001, “as being merely a checklist of the sort of factors which will or may need to be weighed in the balance when determining which outcome would better serve the welfare of the child in question.”
Applying the factors listed in the Welfare Checklist, the judge held that the children were too young for their wishes and feelings to be ascertained, but that it was likely they would wish to be cared for primarily by M and would want to see as much as possible of F. With regard to the children’s physical and emotional and educational needs, they would have a home whether in the UK or Utah and there was no reason why schools in Utah could not meet their educational needs. Whilst their need to have a relationship with their father would not be so well met by the relocation, their needs could be met through regular Skype contact and visits. As to the likely effect on the children of any change in their circumstances if they relocated, their relationship with F would be eroded but their primary carer mother would be much happier, which would benefit them. As to any harm which the children had suffered or were at risk of suffering, the judge held that they might have suffered harm as result of the difficult relationship between their parents but he did not think that the inconsistency of the father’s contact had been sufficiently serious to be harmful to them. As to the capability of each parent to meet the children’s needs, the judge found that M was more than able to meet all their needs but, in contrast, there was no real expectation that F (with his partner and five children) could care for the children.
He then went on to look at the factors mentioned in Payne “not as being principles or presumptions but as being part of evaluating the welfare of the children.” He found that M’s motivation for her application was genuine, in that she wished to join her husband in the US and to bring up her family there, rather than to diminish the father’s role in the children’s lives. He was less sure of the genuineness of F’s motivation but accepted that F loved his children (although he had not succeeded in translating that love into real commitment to them), and it was not the case that F was just being wilfully obstructive, in order to cause difficulties for M. He found that M’s application was realistic i.e. founded on practical proposals, well researched and financially viable. As to proportionality, after examining the Article 8 rights of both parents and the two children, on balance the judge was satisfied that whilst granting permission would be an interference in F’s Article 8 rights, it would be proportionate and necessary and in the interests of giving effect to the Article 8 rights of children. For these reasons, the judge found that the pros in relation to the proposed relocation outweighed the cons and M’s application to relocate the two children to the USA was therefore allowed.
M v F  EWHC 3194 (Fam)
Maeve O’Higgins (firstname.lastname@example.org) Tel: 020 7539 4133
Family Law partner, Moon Beever
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