B & Anor (children), Re

On 15 July there were listed more by chance than design two cases in which it is submitted that the trial judge, in refusing a mother’s application to relocate, under-weighed the dominant feature, namely the mother’s recent and committed relationship to a man rooted in another jurisdiction. In both cases the trial judge directed himself by applying the discipline suggested in Payne v Payne [2001] EWCA Civ 166, [2001] 1 FCR 425 at paragraphs (40)–(41) alternatively (85). Of course the focus of the appeal in Payne v Payne was upon a mother seeking to return to her homeland after the failure of her marriage. It may therefore be that the guidance offered in those paragraphs did not lay sufficient emphasis upon the importance that the court must attach to the needs of the new family where, as in the present appeals, the relocation application is founded in large part upon the demands of the work life or immigration status of the step-father figure.

Although the cases were heard consecutively rather than together we gave some intimation of the possibility of a joint judgment.

Accordingly I propose first to summarise briefly the essential facts in each appeal, then to consider the principles that are to be applied to what I will loosely describe as step-father relocation cases and finally to apply those principles in the determination of each appeal.

The parents commenced cohabitation in 1986 when the father was 27 and the mother 23. They did not in fact marry until 14 September 1990 and their two children J and H were born respectively on 8 July 1993 and 29 September 1996. The parents have both worked throughout the marriage, although the mother’s career was of course interrupted by the births of the children. There were difficulties in the marriage in and after 1999 but its collapse can be traced to the mother’s chance meeting with Mr K at a professional conference in February 2002. Mr K is a few years younger than the mother, married but without children. He is a successful and affluent South African businessman. The mother and Mr K met again in March 2002 and at their third meeting in April 2002 their sexual relationship commenced. Shortly thereafter each ended their respective marriages and committed themselves to each other. Considerable turmoil resulted and a year on it remains unresolved. A decree absolute will be pronounced in the B divorce next month but the ancillary relief proceedings do not reach the Financial Dispute Resolution appointment until 9 September. For Mr K financial separation is complex. We were told that in South Africa divorce does not precede the financial resolution and that it is not possible to predict when he will be free to marry.

During this unsettled period the mother and the children have visited South Africa whenever opportunity has presented and Mr K has made an unsuccessful attempt to run his business interests from a rented property which he has provided for the mother and the children since they moved out of the matrimonial home on 14 September 2002. The mother’s application for a residence order and leave to remove was heard before His Honour Judge O’Brien in the Cambridge County Court on 24 and 25 April 2003. His reserved judgment was handed down on 20 May 2003 granting the mother’s residence order application but refusing her application for leave to relocate to South Africa. Whilst this appeal has been pending Judge O’Brien has made a further order defining the father’s contact as two weekends out of three during term time plus one third of the main school holidays.

The mother is 32 and the father 38. They married on 18 August 1991 and their only child, J was born on 12 May 1997. He is therefore six years of age. His parents separated on 24 October 1999 and a decree absolute of divorce was pronounced on 10 April 2002. Both parents work and accordingly the mother who has cared for J all his life has had some help from childminders.

In April 2001 the mother met Mr EA, a citizen of the Philippines with a right of residence in Western Australia. There he works as a specialised facial surgeon’s clinical assistant with a good salary. He is divorced and has a five year old son with whom he has generous contact two or three times a week. The marriage between the mother and Mr A is imminent and it is their natural intention to set up home together in Perth. The mother’s application for permission to relocate with J came before His Honour Judge Hamilton sitting in the Luton Court on 7 March 2003. He described the case as ‘anxious, difficult and finely balanced’ on the first page of his extempore judgment. At its conclusion he said:

“Not without extreme anxiety and in a very finely balanced case, as I have said on a number of occasions, I do not feel that this is a matter in which I should grant the mother leave to take the child out of the jurisdiction and her application therefore to do so is rejected.”

In a long line of Court of Appeal authority from Poel v Poel [1970] 1 WLR 1469 to Payne v Payne this court has stressed both the importance of a due recognition of the realities and also the dangers of obstructing the reasonable proposals of the primary carer. The direction set by this court in Poel v Poel has not materially shifted. So much is clear from the court’s restatement in Payne v Payne. The President in her judgment summarised the relevant criteria at paragraph 85. In my judgment I had suggested in paragraphs (40) and (41) a discipline that judges might adopt in deciding future cases. In offering that guidance my principal focus was upon the cases in the Payne v Payne category, that is to say, cases in which a parent isolated by divorce seeks to return to her country of origin in search of family and friends and all that is familiar. Our judgments did not ignore the other principal category of case in which the primary carer has forged a new family unit by marriage or relationship that brings a step-father figure into the lives of the children of the failed relationship. However there is only a brief pointer to this category in sub-paragraph (c) of paragraph (40) and sub-paragraph (e) of paragraph (85). Of course a full and careful reading of the judgments in Payne v Payne alerts the reader to the important bearing that the natural gravitation of the new family has on outcome. The mother’s attachment and commitment to a man whose employment requires him to live in another jurisdiction may be a decisive factor in the determination of a relocation application. That does not entail putting the needs and interests of an adult before the welfare of the children. Rather the welfare of the children cannot be achieved unless the new family has the ordinary opportunity to pursue its goals and to make its choices without unreasonable restriction. This principle was clearly recognised in the judgments of Winn LJ and Sachs LJ in Poel v Poel.

It is also most clearly stated in the judgments in the case of Chamberlain v De la Mare [1982] 4 FLR 434. First Lord Justice Ormrod at 443 said:

“(The affidavit) emphasises the urgency of the step-father’s appointment to the New York office. It is obviously a matter of great importance. I do not think that it is for the court to try to assess just how important it is. Interference with reasonable decisions, particularly of step-parents, is something the court should undertake with considerable hesitation if the children are to continue to live with that step-parent. That seems simple commonsense.”

Then the principle is succinctly and powerfully stated in the judgment of Lord Justice Griffiths at page 445 when he said:

“The welfare of young children is best served by bringing them up in a happy, secure family atmosphere. When, after divorce, the parent who has custody of the children remarries, those children then join and become members of a new family and it is the happiness and security of that family on which their welfare will depend. However painful it may be for the other parent that parent has got to grasp and appreciate that fact. If a step-father, for the purposes of his career, is required to live elsewhere the natural thing would be that he will wish to take his family, which now includes his step-children, with him, and if the court refuses to allow him to take the step-children with him he is faced with the alternative of going and leaving the family behind which is a very disruptive state of affairs and likely to be very damaging to those step-children, or alternatively he may have to throw up his career prospects and remain in this country. If he has to do that he would be less than human if he did not feel a sense of frustration and, do what he may, that may well spill over into a sense of resentment against the step-children who have so interfered with his future career prospects. If that happens it must reflect upon the happiness and possibly even the stability of this second marriage. It is to that effect that the court was pointing in the decisions of Poel v Poel [1970] 1 WLR 1469 and Nash v Nash [1973] 2 All ER 704 and it was stressing that it was a factor that had to be given great weight when weighing up the various factors that arise when a judge has to decide whether or not to give leave to take children out of the jurisdiction.”

This passage was cited with approval by the President at paragraph (73) of her judgment in Payne v Payne. However it is understandable that judges under pressure in the courts of trial, as is invariably the case in our family justice system, will direct themselves by reference to the guidelines rather than finding their way through many pages of the surrounding text. Accordingly I would, in the light of recent experience of applications and appeals in relocation cases, offer the following extension to sub-paragraph (c) of paragraph (40) where the mother cares for the child or proposes to care for the child within a new family, the impact of refusal on the new family and the step-father or prospective step-father must also be carefully evaluated.

That consideration applies with greater force in the case where the child’s step-father is a foreign national. There as well as work all his history, his family ties and his loyalties pull in the same direction. If the court frustrates that natural emigration it jeopardises the prospects of the new family’s survival or blights its potential for fulfilment and happiness. That is manifestly contrary to the welfare of any child of that family. That is a reality which the court determining an application for relocation simply has to recognise. Often there will be a price to be paid in welfare terms by the diminution of the children’s contact with their father and his extended family. But the court’s powers to ensure for children continuing contact with both parents after separation or divorce is necessarily circumscribed. The court has power to support the father who seeks to maintain or extend his relationship with his children through contact. However if in the aftermath of separation the father takes employment abroad or marries a woman whose employment takes her abroad or who marries a woman whose every connection is with another jurisdiction, the father will accompany her there and the consequential loss or diminution in his contact with the children of the prior relationship cannot be surveyed or controlled by the court. These are the tides of chance and life and in the exercise of its paternalistic jurisdiction it is important that the court should recognise the force of these movements and not frustrate them unless they are shown to be contrary to the welfare of the child.

The basis of Judge O’Brien’s refusal is to be found in paragraphs (70)–(72) of his judgment when he said:

“70.

There remains a serious query, to my way of thinking. It is undoubtedly the case that mother in character is mercurial. The way she has described her relationship with Mr K, although she is a lady approaching the age of 40, has struck me as being that of the first fine careless rapture of a teenager. That is how it feels. But this it seems to me, despite the passage of a year, is largely an untried, untested relationship. The pattern is that the parties have been together for short periods and then apart. It is right that there was a period of four months or so from September to Christmas last year, but probably they have been together I suppose for about six months out of the last 13, and I ask myself, from the point of view of the children, what would happen if it breaks down? Neither party is yet divorced, although there are divorce proceedings in hand in each case. Both parties spoke of having a child or children, but neither of them has said anything about marriage. What is the security of mother and the children if they go to South Africa and things do not work out? As I say, the longest period they have all been together as a family in South Africa was for a fortnight, when it was all I suppose a very big adventure.

71.

Mother has no friends and no family of her own in the Republic of South Africa. I know it is a Roman-Dutch system, but I have to assume that the law is the same there. If they separate before or without being married, she would be in a precarious position. The only answer provided to that, of course, is that when her own ancillary relief proceedings are settled she should have about half of the family assets, possibly about £70,000 – I have taken a slightly gloomier view than her counsel – and it may be that some legal fees will have to come out of that. It is said that that would be her security, but I have no evidence as to what her proposals are for dealing with that, and it may be that she has not thought it through herself.

72.

So at this stage, with neither party divorced, no proposals to remarry, very unclear as to what might happen, and an untried and untested relationship, in my judgment, despite the enthusiasm of both the parties for it, I am concerned that from the point of view of the children these proposals are not realistic at present. I am concerned about that to the extent that I conclude that although the practical matters have been sorted out, the application as a whole is not realistic for that reason.”

However in paragraph (74) he went on to say:

“74.

Turning to C,

“What would be the impact on the mother, either as a single parent or as a new wife, of a refusal of her realistic proposal?”

plainly it would be disappointment, as with Mr K. But the evidence is that she would cope, put it this way, that it would place a strain on the relationship but it will continue. Her evidence has been that if disappointed on this occasion, she will make another application, that maybe a time will come when the criticisms of the application's practicality which I have found compelling will no longer exist. It is of the nature of things that the mother and Mr K will be together some of the time, as much as half of the time or more, for example. This is not seeking to pre-guess contact arrangements, but it could be that the children would be in the course of one year with mother in the Republic of South Africa for, say, nine weeks, school holidays in this year being about 12 weeks, that mother might be there without them for another 10 weeks, say, while the children are with father, and that in another seven weeks Mr K may be in the United Kingdom, where he has business interests and no doubt he could also spend some of his holiday. That would be a total of 26 weeks. It is not perhaps ideal in a marriage, but it is the sort of period that for example an offshore oil-rig worker would be spending at home with his wife and family. A disappointment, certainly, but it seems to me eminently manageable and far from an overwhelming disappointment. The question of disappointment to the boys, it seems to me, would be more than offset by a combination of longish visits to the Republic of South Africa, for which any contact schedule should make provision, and the more frequent contact with their father.”

Now in my judgment this approach is plainly erroneous. If the judge was of the opinion that the relationship between the mother and Mr K would survive the intense stress of the life that would result from his refusal, what basis could there be for him to speculate that the relationship was untried, fragile or transient given its natural opportunity to develop with all the support of an ample home, good schooling for the children and the affluent lifestyle likely to flow from Mr K’s management of his business without displacement? Once the judge had recognised the mother as plainly the primary carer he had no option but to recognise the reality that her future lay with Mr K and that necessarily meant a South African future. That is nothing to do with the assessment of practicalities to which I referred in sub-paragraph (a) of paragraph (40). By practicalities I meant just that; homes, schools, medical services and services to meet whatever other needs the children might have for their maintenance and education. Of course in the overall assessment of the welfare of the child a judge may clearly refuse a relocation application impelled by a mother’s selfish desire to pursue a relationship potentially injurious to the children, but there was not a scrap of evidence to suggest anything of that nature in the present case.

The judge was not referred to the case of Poel v Poel nor to Chamberlain v De la Mare. He directed himself by reference to paragraph (40) of my judgment in Payne v Payne and I acknowledge that, taken without a reading of the report in full the paragraph does not sufficiently alert the trial judge to the weight to be given to the relationship between the mother and Mr K and its natural consequences. On the evidence before the judge the authorities entitled the mother to the permission which she sought. I would accordingly allow the appeal and grant her relocation application subject to orders reflecting the liberal contact arrangement which she proposed with the support of Mr K.

In this case there can be no doubt that the mother’s case was not well presented in the two statements filed in support. First every authority has stressed the importance of evaluating the impact of a refusal upon the mother’s emotional and psychological well-being. In neither statement did she set out what would be her reactions to a refusal or what would be her capacity to cope with a refusal either emotionally or psychologically. There was not a word in her statements recording her history of reactive depression, post-natal in 1997 with recurrences in autumn 1998, February 2000 and February 2002. Furthermore the CAFCASS reporter who interviewed both parents and Mr A nowhere considered the emotional and psychological impact of refusal.

Second at the conclusion of the mother’s second statement there appeared the following:

“36.

Every decision I have made is with J’s best interests at heart. If J were not permitted to leave the UK, E would join us here although this may severely hamper E’s career prospects. E’s job is highly specialised and it is unlikely that he would be able to secure a similar post in the UK. Even if E were successful in securing a post in the UK, it would be at a considerably reduced salary and there is a strong likelihood we would have to relocate outside of the Luton area. The decrease in E’s earning ability would also severely affect the financial support he would be able to offer our family.”

That paragraph has all the hallmarks of the lawyer’s craft in playing a card which he or she conceives to strengthen the client’s prospects of winning the game.

At the trial it seems to have had the reverse effect. Mr Brooks, who clearly conducted the case below as skilfully as he has conducted the father’s case in this court, made considerable forensic capital of this one paragraph. As well as submitting that Mr A’s relocation to this jurisdiction was both feasible and the obvious solution, in the sense that it gained for J the best of both worlds, he attacked the mother for not having thoroughly investigated and researched this contingency. Although the judge rejected the latter criticism he nonetheless accepted the premise that Mr A’s relocation to this jurisdiction was feasible.

The oral evidence of the CAFCASS officer did not deal with the mother’s emotional/psychological state as it was or as it would be in the event of the refusal of her application.

However in the mother’s oral evidence this important factor was expressly addressed. In his examination in chief Mr Sabido asked the following:

“Can I just ask you this straight question: what effect would it have on you if you were not able to go to Australia with J?”

This was the significant answer:

“Regardless of the support that I would have from my family, who, yes, I am close to, I personally feel that it would have a devastating impact on my well-being and my happiness, and therefore I feel, as J and I are so close, I feel that he will be – that will have an impact on J.”

This statement was not challenged in her cross-examination but the mother did then twice refer to her emotional well-being. The first exchange is in these terms:

“Q - So while everything here is quite settled at the moment, it is fair to say that to a large extent Australia is an unknown quantity isn’t it?

A - I would say that, yes, but I’m not settled and I’m not happy, therefore I feel that has an impact on J at the moment.”

The second exchange is as follows:

“Q - Anyway you also have your family round here, he has the friends he has met in school and also the beavers. It would be a chance for E to come over here and J to remain in a stable position wouldn’t it?

A - J will have more stability, security with a family that, if we are in Australia, because that’s where I will be happy, that’s where my future well-being will be. I feel I will be happy there. He will have JA around him, who he misses immensely and talks about all the time. That’s where I feel that his happiness will be.”

Of course that aspect of the mother’s case should have been recorded in her written statements. However in family proceedings commonly the real case emerges when the litigant has the chance to speak for herself rather than through the pen of her lawyer.

How did the judge deal with this evidence? At page 6 he said:

“The mother has not said in her statement or in her evidence to me that she would be greatly distressed rather than obviously disappointed if leave were refused. To her great credit she has thought out a fall-back position, which is something to which she seems to be able to confront with some equanimity.”

To much the same effect is the following passage at page 11:

“As to the likely effect on the mother, as I said earlier in this judgment, whilst she will no doubt be keenly disappointed if leave were refused, I do not get the impression at all that she would be in anyway extremely distressed in a sense that would impinge on J’s welfare for the future, she having, as I have already said, to her immense credit made significant and well thought out back-up plans.”

There are considerable difficulties with these passages. First the mother’s essential case that she would be unable to parent J to the best of her ability if refused was clearly stated in her evidence. It was her most significant answer when examined by Mr Sabido and it may be that, because it was not directly challenged, its impact on the judge was lost. Mr Brooks, in his able submissions to us, argued that the value of the mother’s oral evidence was for the judge to assess and the judge’s assessment was to be found in the phrase, ‘I do not get the impression at all …’. I cannot accept that argument. First the phrase appears in the second evaluation which is expressly only a restatement of the first. More fundamentally if the judge meant to reject the plain words on the grounds that they were inconsistent with his judgment founded on her demeanour and presentation that would demand a clear and strong statement.

Second the judge has elevated paragraph 36 of the mother’s statement into ‘a fall-back position’ which she was able to contemplate with equanimity. That was certainly not her case either in her statement or in her oral evidence. It was little more than an applicant’s usual assurance to the court that if the child could not go, the child would not be abandoned. The hope that her sacrifice would be alleviated by Mr A’s ability and willingness to make a similar sacrifice was perhaps a forensically unguarded addition. It allowed Mr Brooks considerable scope at the trial. But Mr A’s willingness to make the sacrifice was not canvassed by the CAFCASS officer and Mr A was not able to attend the trial. As my lord, Sedley LJ, has pointed out, no one seems to have questioned his ability to make the sacrifice. Settled residence for him in this jurisdiction would be subject to rigorous immigration checks and procedures and his employment qualification might not be transferable.

Accordingly in these important passages of the judgment I conclude that the judge both fell into error and misdirected himself. Has this court sufficient evidence upon which to exercise its own discretion? In my opinion it has. I so conclude because I do not think it necessary to investigate Mr A’s willingness or his ability to immigrate to this jurisdiction. Still less is it necessary to bring the mother’s fresh evidence into the arena. On the evidence of the parties and giving due weight both to the evidence of the mother’s impending marriage to Mr A and also to the evidence of the impact upon her and upon Mr A of refusal, in my judgment this court should grant the permission which Judge Hamilton refused. Neither parent is affluent or publicly funded. The family has already borne the costs of a trial and an appeal. To order a retrial would involve considerable delay, expense and continuing stress. I am relieved to conclude that justice to the father does not compel that outcome. In this case also the mother proposed as liberal contact after relocation as circumstances would permit. In particular she proposed up to five weeks over Christmas and the New Year. Those arrangements must be included in the order of this court granting permission to relocate.

I agree.

I also agree.

The helpful and relevant remarks of Griffiths LJ in Chamberlain v De la Mare [1983] FLR 434 are now two decades old. It may be that today less emphasis would be placed on the step-father’s career as a determinant; but the policy of the Children Act 1989 has placed if anything more emphasis on the importance to the children’s welfare of a stable and viable family unit in which to grow up.

In each of the present cases, accordingly, we have to take into account three facts: first, that the father is not in a position to be the boys’ primary carer; secondly, that the mother is going to be in limbo if she has to bring them up in England and substantially on her own, with potentially damaging effects on their well-being; thirdly, that the best present prospect of a stable family unit – though it is not assured - lies abroad, provided proper arrangements are secured for worthwhile contact with the fathers.

Once these choices are set out it becomes apparent in each case that only the third, in spite of its inevitable uncertainties, is consonant with the boys’ best interests.

The two fathers, whose decency and concern for their sons is not in doubt, might want to reflect on two particular things. One is that brief intermittent contact is not an ideal way of preserving bonds: it can sometimes be upsetting and disruptive, whereas substantial periods of residence, such as are to be provided for here, make it possible for deeper bonds to be created and maintained. The other is that children grow up fast. It will not be many years before these boys are able to make their own choices about where they want to be. This is not to suggest a bidding contest between the respective parents: it is to suggest that a good father can have confidence, provided worthwhile contact is maintained in the interim as it will be here, that he will not be losing his children simply because they are living away from him.