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17 October 2016
Court of Appeal decision in international child relocation case: Court of Appeal dismisses father's appeal against order permitting his former partner to relocate with their 10-year-old daughter to Ireland.

Re K (a child) (International relocation: appeal against judge's finding of fact) [2016] EWCA Civ 931

On 24 August 2016 the Court of Appeal (Lady Justice Black and Lord Justice Tomlinson) dismissed an appeal by a father against an order made by her Honour Judge Tucker on 3 December 2015, permitting the mother to take their 10-year-old daughter to live permanently in Ireland. The written judgement of the Court, setting out the Court's reasons, was given on 5 October 2016. Facts:

The child's parents were an unmarried couple. The father was English and the mother Irish. The mother had lived in Ireland until 2005, when she moved to England to be with the father, although she returned to Ireland on a regular basis to keep in touch with her family and friends. The parents' relationship was unhappy and both parents had issues over alcohol. Their relationship ended in mid-2014. Matters came to a head for the mother when she was apprehended driving under the influence of alcohol. After this incident, she took steps to address her excessive alcohol consumption. The father also had been drinking too much and tests carried out in September 2014 suggested chronic excess consumption. The first instance judge found that although he had refrained from drinking to excess for some time at the time of the hearing, unlike the mother, the father had not acknowledged that he had an alcohol problem.

After her parents separated, the child lived with her mother in England, apart from a short period in Ireland immediately after the separation. There were previous court proceedings concerning the child, which had been dealt with by the same judge as the relocation application. Unfortunately contact arrangements did not progress entirely smoothly. The mother made various allegations about the father's behaviour during his contact visits, alleging that he had acted in an angry, violent, or otherwise inappropriate way towards the daughter. The father denied the allegations, claiming that the mother had either fabricated or encouraged the child to make the allegations, which the judge held had not been the case.

By the time of the final hearing, the child was having regular contact with her father, including overnight stays.

First instance decision:

HH Judge Tucker was unable to decide whether two of the three allegations made against father had taken place but was also unable to say conclusively that they had not occurred. In relation to the third allegation, she held that something untoward had occurred. The judge identified the child's welfare as her paramount consideration. She considered the "Welfare Checklist" and found that the daughter wished to move to Ireland, and also to continue spending time with her father and his family. She found the mother was better able to promote a positive relationship between the child and her father and if prevented from moving to Ireland, would be unhappy and this would inevitably affect the child. She expressed concern that the father was seeking to some extent to control the mother by preventing her from relocating and if that continued, it would cause considerable distress and harm to both parents and the child.

Therefore the judge granted the mother leave to remove the child permanently from the jurisdiction. In relation to contact, she directed that the child should spend half her school holidays, including half terms, with her father as well as indirect contact, by Skype and phone, in between visits. The mother and child relocated to Ireland in late December 2015, so they had been living there about eight months by the time of the Court of Appeal hearing.

The father appealed to the Court of Appeal, submitting that:

i) the judge had failed to make clear and definite conclusions in relation to the mother's allegations that the father had acted inappropriately towards the child, leaving insufficient facts on which to base her decision, and had not given proper consideration to his claim that the mother was likely to make further such allegations in the future, which would impede his future relationship with the child;

ii) the judge's failure to refer to "the seminal authorities"(Payne v Payne 2001, K v K 2012, Re-F 2013, Re-F 2015 and Re C (internal relocation) 2015) added to the impression of a judge who, although aware of the relevant principles, had not put them into practice and carried out the welfare analysis correctly; in particular she had not undertaken the "sophisticated, comparative, holistic analysis" required in cases of international relocation;

iii) the judge had failed to consider the father's proposal in its own right, and had focused on the mother's proposal to move to Ireland;

iv) the judge had failed to give appropriate weight to the quality of the child's relationship with her father, the impact of the move on that relationship and to other disadvantages of the proposed move;

Court of Appeal decision:

Lady Justice Black gave the judgement of the Court, dismissing the father's appeal for the following reasons:

i) there was nothing in the judge's approach to the allegations about the father that constituted a material error, or that she wrongly held the allegations against him in terms of his parental ability, or relationship with the child. Having found that the mother had not fabricated the incidents or encouraged the child to make them, it was not surprising the judge had declined to find the mother was likely to make similar allegations in future.

ii) when considering whether the judge had taken an inappropriately linear approach, a judgement was necessarily linear and that had to be taken into account in considering whether she had fallen into error. The judge's approach was welfare based. She had looked at the Payne factors, as she was entitled to do, but not to the exclusion of other relevant factors; nor did she give them determinative or undue weight. As the judge had said herself: "she started with welfare and ended with welfare, that being the paramount consideration" (Lady Justice Black).

iii) it was inevitable that the judge would spend more time scrutinising the mother's proposals, because they were new, but this did not mean she had ignored the father's proposals. She knew the father was proposing that the child remain in England and his main objection to the relocation was it would interfere with his relationship with her. She had considered the contact as it would be after the move, which she recognised would be different, but had concluded that it would be effective and meaningful. It could not therefore be said that she had failed to give consideration to the father's proposals.

iv) The judge had valued the quality of the child's relationship with her father and recognised its fundamental importance for the child, although she also recognised that the relationship had its problems.

v) the need for consideration of proportionality does not mean separate consideration of the proportionality of the order proposed, rather that consideration of the best interests of the child necessarily involves careful examination of the parents' wishes and interests, their Article 8 rights to family life, given the potential for the impact of the decision on the parents to affect the child as well.

Maeve O'Higgins Family Law Partner, Burlingtons Legal | Email: maeve.ohiggins@burlingtonslegal.com, Tel: +44 (0) 207 529 5420

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