I (A Child) (Relocation: Australia), Re

Within private family law litigation there are few more complex decisions to resolve than the question of whether a child should permanently relocate to another jurisdiction. However, what commences as a difficult decision is made harder where (a) the relationship with each parent is acknowledged as being valuable to the child in question; (b) the proposed relocation is distant from this jurisdiction leading to an inevitably high impact on regular contact with the left behind parent, and; (c) where the family are international in character and the applicant has a strong and understandable desire to return to their country of origin. It is in that setting that I am asked to either permit or refuse a relocation application.

The applicant mother (“P”) seeks to relocate to Australia. The respondent father (“R”) opposes this plan. I have to decide this issue and consider the contact arrangements whether or not permission is granted. In reaching my conclusions I have regard to the documents contained within the hearing bundle together with the limited number of additional documents copied to me during and after the hearing; the opening notes and submissions of counsel for each party, and; the live evidence of the reporting CAFCASS Officer, Ms Taylor, and the parents. I will not refer to all of that evidence within this judgment but I will continue to keep it in mind. The hearing was conducted on an attended basis over three days with only Ms Taylor giving evidence remotely. Submissions finished after 4pm on the third day and so I have reserved judgment. Within this judgment footnote references are to page and paragraph numbers with ‘SB’ being a reference to the supplementary bundle. In this judgment I refer to the parties as R and P, and to the child as I. No discourtesy is intended by using their first names.

I’s welfare is my central concern and is paramount from start to finish. I approach this via the welfare checklist found within s1(3) of the Children Act 1989. It is not helpful for me to get mired in arguments as to who is the primary carer for I as a condition precedent to my decision making. However, I should give proper regard to the arrangements which are appropriate for I as a prelude to determining the relocation issue. It is only by doing this that I can conduct a proper comparative analysis of the impact on I of relocation or refusal of the same. I should not give either outcome priority over the other. To do so would be to slip into a linear analysis. The options must be weighed and balanced against other in a holistic manner by considering the positives and negatives of each. My decision will have an obvious and significant impact on familial relationships. Family members are entitled to respect for their private family life. The Children Act 1989 presumes it will in the welfare interest of a child to maintain a relationship with both parents so long as the same is safe. Decision making which has the potential to seriously impact on this relationship must therefore be subject to a heightened level of scrutiny and a move of this nature should be subjected to a proportionality evaluation.

I will provide an abbreviated background at this point returning to specific background features on which there was focus within the hearing before me.

P is aged 48 and moved to Australia when aged 13. Her close family remain living in that country. R is aged 47 and was born in Mauritius and his family remain living in that country. R moved to Australia in 1997 and the parties met in 2002; moved to London in 2004; married in 2008, with I being born in 2014. P returned to Australia for his birth and remained there for 6 months. I has Australian citizenship and leave to remain indefinitely in this jurisdiction. In 2014 R pursued a permanent Australian visa on the premise the family would relocate to Australia but R did not pursue this visa and the move did not occur.

I will address issues of domestic abuse within the relationship. At this point I note R was cautioned for an act of ABH against P in 2009. In 2018 he received a harassment warning notice from the police. There are other allegations and counter allegations made between the parties which remain in dispute and will not be resolved within this judgment.

The marriage broke down in 2017. In 2018 P and I travelled and remained in Australia for several months, with P arguing this was pursuant to an agreement that she and I would return to live there permanently whereas R disagreed and characterises this removal as an abduction. In any event P voluntarily returned to this jurisdiction in March 2018. On separation the parties considered contact and between 2018 and 2020 R was having contact every day after school and for both days at the weekend. Initial discussions reached agreement as to overnight contact but I was reluctant to stay overnight. The midweek contact took place in P’s home (without P present) and the weekend contact in R’s home unsupervised.

In September 2020 there was an incident between the parents and police were called. P raised concern as to R’s mental health. At that time, I was seeing a child psychologist (Dr Slater) and P was advised to stop unsupervised contact. From this point contact continued on a daily basis but supervised by P. In 2021 R instructed solicitors who sought unsupervised contact. P agreed the same once R engaged with assistance to manage his mental health/anger issues. In June 2022, P issued this application. Within these proceedings contact has developed by consent and R currently has alternate weekend contact on a continuing basis together with holiday contact.

Since separation, P has sought to travel to Australia and her country of origin. In 2018 she brought an application to obtain the Court’s approval for her proposed trip. P complains R has been obstructive as to travel. I has travelled to Mauritius (twice in 2018). R wanted to travel to Mauritius in 2021. P wanted to travel to Australia. P claims R obstructed her proposals. P claims travel to Mauritius was not possible at the proposed time due to her not having had vaccinations. She says she proposed a later trip that year but R did not agree. In 2023 the parties agreed for I to spend two weeks in Mauritius followed by an onward trip to Australia. On his return to this jurisdiction, he stopped over in Mauritius.

The parents work in regulatory compliance. R is a consultant and is currently working out of Paris. He envisages continuing to do so (or within the European Bloc given his contracts have connection with the ECB). P is employed and heads a regulatory team in London. She has been offered a job in Australia close to her family. Both are well paid.

I is said to be neurodivergent with both autism and dyspraxia diagnosis. I report this being claimed at this stage as there has been some evidence on the point to which I will return however, it is not clear whether this is really controversial. I is schooled within the private sector. I have considered various school and education reports relating to I and the impact that neurodivergence may have on his educational progress. However, on any account he is an intelligent child who will continue to be schooled within the mainstream (albeit private) sector.

I have listened to the evidence with care and identify the following matters as requiring specific consideration within this judgment. This does not mean they will each ultimately have purchase on the decision I have reached:

I make some general observations as to the quality of evidence received from each witness and my impression of each witness in turn. In setting out these views I am in part reflecting on the demeanour of each witness in giving evidence but I have found consideration of the consistency of their evidence (both judged internally and externally) far more helpful than the manner in which they gave the same evidence.

I found Ms Taylor a straightforward and genuine professional witness. She dealt with all questions in a head-on fashion and there was no evasion or obfuscation in her responses. I do not hesitate to accept her evidence as being an objective and fair analysis of the circumstances on her part. I have a reservation as to the limited opportunity available to her to meet with the parties and I; the fact that her report is dated from February 2023 (and thus was somewhat out-of-date at the point of final hearing), and; my sense that a significant aspect of her evidence and conclusions were generic rather than specific in character. I specifically addressed this with her at the end of her evidence. It seemed to me the points she was making as to impact of relocation on contact was a generic observation as to the difficulties that would arise in nearly every case from a relocation of this sort rather than a conclusion which was specifically shaped by the circumstances of this case. This is not a substantial criticism as I appreciate any analysis is by its very nature based on a speculative hypothesis given the move has not yet occurred and so conclusions will be drawn from expectations and experience drawn elsewhere.

I was impressed by P. I will explain this view when referencing the issues in the following paragraphs. However, in summary she impressed me as a straightforward individual who was doing her best in somewhat trying circumstances. I found her evidence to be consistent and logical and thus tending towards reliability.

I was somewhat less impressed by R as I found his evidence at times to be inconsistent and at times unlikely. There were aspects of his evidence which did not fit with the surrounding extraneous evidence. I found his approach to be somewhat strategic in character rather than straightforward. That is not to suggest I found his evidence unreliable or that I found him to be a dishonest witness. Rather I formed the view that (in contrast to P) he had allowed his account of events to be shaped by what he was seeking whether or not this fitted with what actually happened. Sadly, I formed the view that he has allowed the adult separation to negatively shape his attitude to post separation decision making. He has not moved on from that time and this casts a shadow on the approach he takes. This is unfortunate as he has a valuable contribution to make.

I found (indeed the parents agreed) both parents to be committed to I and to have a strong and genuine love for him. They are both well intentioned in this regard. A challenge has been separating their own interests from those of I.

I will summarise the evidence given by each party and my views and conclusions on the same. I will go on to apply this analysis when considering the welfare assessment later on within this judgment.

Has P obstructed the relationship between I and R?

The central dispute between the parents is whether P has been supportive concerning contact or whether she has been overbearing and acted in a manner which has limited contact.

I summarise the contact regime that has taken place since separation as follows. Between 2018 and 2020 there was daily contact with the week-day contact being at P’s home, albeit not supervised by her, and the weekend contact being on both days at R’s home unsupervised. The contact was visiting in form not overnight. Between 2020 and 2022 the contact continued on a similar basis albeit it took place at P’s home on a supervised basis on weekday eveings and at R’s home or in the community at weekends. Within proceedings the contact developed to overnight weekend contact (Friday to Monday) with extended time during holiday periods.

This took place in the context of a background of domestic abuse in which there had been a caution for an assault against P and a police harassment warning notice. I appreciate there are other allegations made between the parties and messaging evidence from R which is wholly inappropriate in its tone and language and in respect of which R has expressed remorse before me (Footnote: ¹). I consider it important to analyse decision making in this context.

In his position document P is described as a ‘powerful and determined character’ (Footnote: ²) and contact is said to be unilaterally determined on her terms and without regard to what is best for I. She is characterised as being unwilling to accept he is able to ‘manage matters’ (Footnote: ³) for I by reference to his own parental responsibility and is overbearing and controlling of the arrangements. He feels that if relocation is granted then he will not have a ‘secure relationship [with I]’ (Footnote: ⁴). In his statement evidence he contended if relocation were permitted then P would be assertive in changing or cancelling contact arrangements. He felt this was an inevitable consequence of her approach, an approach in which she has no respect for his input (Footnote: ⁵). P has ‘erected barriers to [R son] relationship by making unreasonable preconditions…to…contact’ (Footnote: ⁶). He concludes that: ‘it has taken more than 5 years since [2018]…to revive an ordinary relationship…’ (Footnote: ⁷). On the theme of P being controlling he refers to the contact routine being forced on him and dictated by P which he had to accept as dictated by her. It was of P making the rules and him feeling helpless (Footnote: ⁸). He comments on the stress of having to put up with P’s self-imposed presence all the time (Footnote: ⁹). In his live evidence he was asked as to his characterisation of P as a powerful physical presence. He said he felt bullied when he tried to talk to her. If he did not agree then she would have recourse to her solicitors and so he had to agree. He said she had not promoted the relationship with I since separation in 2018. He told me a number of allegations made against him were untrue and repeated an allegation he had made against P that she had physically abused I. He agreed there had been an incident when he had shown I a picture of the man with who P had an affair and told I that he was the reason R lived by himself. He suggested a ‘hit man’ had been hired to kill him by this man. He agreed there had been occasions when I had witnessed inappropriate incidents and had been upset and distressed but did not agree this would have led to I being reluctant to be in his care. That had been all to do with P failing to promote contact.

P rejected this characterisation of her role. She references a relationship which was difficult and punctuated by domestic abuse (Footnote: ¹⁰). As a result of this she considered there was a need for R to engage with anger management support and this partly conditioned her approach to contact. Following separation, she had supported contact but I was reluctant to attend overnight in part due to R inappropriately sharing adult information with I about P’s affair (Footnote: ¹¹). Nonetheless, contact had continued, including unsupervised contact until a concerning incident in September 2020 when R had been abusive and aggressive. However, even then P had not terminated contact but had permitted it to continue on a daily, albeit supervised basis (Footnote: ¹²). Furthermore, P had made I available for shared special occasions (such as Christmas) and accompanied I overseas to facilitate contact with R and wider family. In her first witness statement P detailed this case (Footnote: ¹³). In her second statement P comments that she was willing to move forward with contact when it was clear R had engaged with the issues raised by her and she then had gone beyond those recommendations in the contact, she proposed (Footnote: ¹⁴). P highlighted the impact on I of events witnessed during the relationship and post separation and commented upon times when R has emotionally abandoned (Footnote: ¹⁵) Iat times of dispute. It is these features which have caused I to be reluctant as to aspects of contact rather than any action on her behalf. She does not agree the relationship between R and I would be hopelessly fractured if relocation were permitted. She considers it will continue to go from strength to strength (Footnote: ¹⁶). In live evidence P recognised the challenges of the case and told me she had sympathy for R’s position with respect to overnight contact in the past but even at the most challenging times she had not blocked contact. Even when R was being extremely abusive, she concentrated on what was best for I. When it was put to her that she had never accepted having done anything wrong or that she could have done things better she disagreed and commented that she agreed she was not perfect and had always apologised when she had acted wrongly. She agreed she might have been over protective at times but R had been acting erratically and she had been doing her best to look out for I.

I should record that both parents were able to speak in positive terms about the other. P agreed R was 100% committed to I and loves I very much. He has always been close to I and has always wanted the best for him. She expressed the view that no-one will love I and want the best for him than us (my emphasis). Equally when asked R described P as a good mother who is caring and looks after I well. I felt he struggled more than P to see the positives in the other.

For my part having considered all the evidence I have found it very difficult to accept the picture of P painted by R as an obstruction to contact. I have had particular regard to the following points:

In summary my assessment is that contact in this case has been both facilitated and promoted by P in a manner which she genuinely considers to have been child focused. I accept this may at times have reflected a cautious approach on her part and this may have caused contact to proceed slower than it might otherwise have done. However, this needs to be seen in the context of the circumstances surrounding breakdown. Viewed fairly and objectively it would be wrong to form the conclusion that she has sought to obstruct contact or to limit R’s relationship with I. I do not accept that characterisation and I do not think it is likely she will take such an approach in future whatever decision I reach. I find she genuinely accepts the benefits to I of a good relationship with his father and will do her best to ensure this happens. It should be clear I consider this also requires R to make his own contribution towards this effort to make it a full success. In my assessment it is R who needs to pause and reflect on where he finds himself. In doing so I hope he will come to recognise the support P has given to contact.

Has P obstructed a relationship with wider family?

P argues that there has been a restriction of maternal family contact as a result of R’s opposition to travel to Australia. For my part I cannot see this as impacting on the issues I have to decide in the light of the concession of future travel to Australia whatever decision I make.

In contrast R broadens his criticism of P arguing she has restricted I’s relationship with his paternal family. He has particularly criticised P’s obstruction of time between I and his maternal aunt whilst in this jurisdiction. Separately, I deal with the allegations relating to the trip to Mauritius in summer 2023. Having considered the evidence, I find this allegation does not stand up to scrutiny. I have reached this conclusion as:

In my assessment the evidence supports P. I accept her case over that of R. I find she has supported reasonable contact with the paternal family and there is no reason to believe this will change. In any event all proposals provide for R to have time with I both in this jurisdiction and in Mauritius. He will on any case have the chance to promote this relationship irrespective of P.

I use the notion of ‘domestic abuse’ to include the accepted domestic abuse; the inappropriate communications; the various counter allegations and particularly those events which have occurred in the presence of or in proximity to I and which are likely to have impacted negatively upon him. I do not need to make findings in respect of matters which remain in dispute. It is clear the ultimate child arrangements put forward by both parties will not be impacted by resolution of the matters in dispute. I am satisfied that the same are safe for I and consistent with Practice Direction 12J.

These matters are relevant in understanding the manner in which contact has developed to date. I have addressed this within the heading (i) above and reached a conclusion that P was entitled to take a careful approach. I consider it is relevant that she is not referencing this history as relevant to future contact. Her settled case is that she has promoted contact, to include staying contact, in the light of R’s engagement with self-improvement work in around 2022. This counts to her credit and should be recognised by R.

The quality of I’s relationship with his father?

Somewhat contrary to normal expectations, I heard from R as to the fragility of his relationship with I and from P as to the relative strength of the relationship between father and child. This issue transpired to be one of two particularly in the focus of Ms Taylor. Her assessment of fragility was central to her concerns as to the planned relocation. In live evidence she told me that she had assessed the relationship as having fragility when she saw I in February 2023. At that time, he did not want to spend more time with his father and reported not having a close relationship with him (Footnote: ¹⁸). Each of the parents reference this issue as part of their wider case.

R adopted the reasoning of the CAFCASS officer arguing physical dislocation will simply magnify the issues in the relationship. He argues that for the relationship to flourish I must be geographically close so as to enable regular contact. In his live evidence he described his relationship with I as being ‘weak’ and likely to further deteriorate on relocation. He further told me his relationship with I was ‘insecure and not very meaningful.’ R further referenced the behaviour of I when he returned from holiday in Australia in September 2023.

P does not accept this characterisation of the relationship set out above. She relies upon the progress in contact during the proceedings. She described the contact successfully developing to the point of three-night visiting contact. She seemed to accept there may have been issues during contact with R but felt these were simply matters for R to manage as she would do if they arose in her care. I am not sure R’s description of the relations as set out above was put to P but she spoke in broad positive terms.

R’s case appeared to be contradicted by his own statement evidence. He had throughout described a strong bond with I in the early years pre-separation. He argues a deterioration has followed as a result of the obstructive actions of P. However, in his first statement from December 2022 (Footnote: ¹⁹) he comments that despite P’s actions the relationship remained a ‘very strong bond’. This led counsel for P to suggest that R had in fact latched onto a point made by the CAFCASS officer to improve his position, notwithstanding it was not his actual case as to the reality of their relationship. In his live evidence the issue remained somewhat vague. I asked him to explain when he felt the relationship had in fact deteriorated from the point of being ‘very strong’ to the point at which he now describes it as being ‘not very meaningful.’ In answer he said it had in fact been very strong up to the return of I from Australia in September 2023. I have to say I found this overall argument difficult to accept. For a start it plainly left the relationship as being strong at the time of the CAFCASS report yet R had sought to rely upon the CAFCASS assessment to promote his case when in fact it did not chime with his own assessment of the relationship at the very point in time. Secondly, it was clear there were very obvious reasons as to why I might have been challenging immediately following a return from Australia given there is unchallenged evidence that I wishes to relocate to that country. On any reasonable basis the assessment of presentation at that point should be viewed as consequential upon this recent trip rather than evidence of a more sustained deterioration. Finally, it is clear this behaviour has been managed and contact has continued and developed. It seems R has managed it appropriately without needing to return to P. In my assessment R has fallen into the trap of adapting his evidence to fit a proposition that improves his case but does not fit with the available evidence. As a result, this has not been sustainable when it has come into contact with reality.

It is clear to me that I has his primary relationship with his mother, as she accepts, and that in the presence of both parents he will naturally favour P. But the evidence also supports a conclusion that I has a secure and positive bond with R. This can be seen in the positive holiday contact and the developing visiting contact. It is also represented in R’s argument for additional sabbatical time in September 2023. In reaching this conclusion I depart from the views of Ms Taylor but I bear in mind that her assessment was undertaken many months ago since which date contact has come on leaps and bounds. I also have the benefit of hearing all the evidence and some significant conclusions as set out within this section. I note the agreed proposals for contact if relocation is refused would be as to 3-nights per fortnight overnight and potentially additional mid-week and holiday time. I note that since separation I has been available to see R on almost every day of the week. It is difficult to reconcile this with a relationship which is not meaningful. I have struggled to understand how R came to label it in that manner.

The relevance of I’s neurodivergent character?

By the end of the evidence, I was satisfied this is a matter of relevance for I but of limited relevance in answering the questions posed by this case. I will explain why. It appears agreed between the parents that I is neurodivergent and specifically located on the autistic spectrum. There appears to remain debate as to where he might be on that spectrum with R suggesting he is at the low end of the spectrum and P being unwilling to speculate as to the appropriate descriptor to be applied. Both appear to agree he is not severely impacted in his presentation and is high functioning and will remain within mainstream education. I have seen expert assessments which support this conclusion whilst identifying areas of concern and focus. There appears to be a remaining debate as to whether I is also dyspraxic. I appreciate P contends this has been diagnosed. I am unsure R accepts this to be the case. It was suggested to R that a confirmatory report exists although I am not sure I have seen it. I suspect there is some support for this additional diagnosis but again I do not think the resolution of the same is required as a condition precedent to the points placed before me for resolution.

In the course of the evidence mention was made of the failure to alert the school to any diagnosis at the time of admission to the school. I understand R to suggest this is material in suggesting a limited level of relevance of any diagnosis. This would perhaps fit with the argument around I being ‘low’ on the spectrum. In many regards the response of P fits with such an analysis. Her case was that at around admission I was not showing significant signs of the impact of the condition such as to merit it being raised but that over time as learning has become more challenging it has become more noticeable and impactful. The recent engagement with professionals does tend to suggest the notion that more challenging direct learning is placing a focus on I’s areas of weakness. For my part I do not think the circumstances at admission help me in my analysis.

It is clear P is a strong advocate for I in respect of these issues. She has funded private resources as she has done with a child psychologist. She appears to be well informed in this regard and I see no basis for believing this will change. Any child with any form of developmental, neurological divergence or disability requires an actively engaged parent to both navigate the at times byzantine processes surrounding the availability and provision of resources and also to argue their case in circumstances where professionals are often having to distribute scarce resources. I am confident P has this capacity. She appears wholly accepting of these issues and driven to minimise their impact on I’s life chances.

My sense is that R is less engaged with the same. This is not to say he has entirely opted out of the process and in making these observations I appreciate it may be entirely natural for him to defer to P given her primary role and the issues between them. Yet my sense from the written and live evidence is that he has degrees of scepticism around the issue. An example is his justification for not seeking to pursue professional support in preference to the suggested opinions of the head at I’s school. Examples can also be found in his categorisation of I as low on the spectrum and in the manner in which he recently engaged with the professional assessing I. He appears to approach this issue from the position of some minimisation. This may flow from an unwillingness to accept the challenges his son faces or may be due to the comparative limited role he has played in I’s life in the last period when it appears these issues have started to come to the fore. In making these points I do not lose sight of R’s strong wish for I to achieve and his willingness to provide and fund practical support around tutoring and indeed the funding of private education. However, in conclusion I find P is the lead in these matters and will continue to be. In this sense I doubt anything material will change whatever decision I reach.

I have been asked to reflect on the comparative educational opportunities that might be offered whether in this jurisdiction or in Australia. In this jurisdiction there was a focus on the availability of the current school for I for the next two years before a change will be required. It is argued the current school is a good match for I in providing small class sizes and is an environment familiar with his needs. School reports are positive and the teaching staff know I and the family. It is agreed there will be a change at age 11 and the possibility of a further change at 13. The natural sister school at age 11 will have larger classes and P noted the parents had some reservations about that campus when the parents came to select the current school. I heard some evidence as to I’s peer group being somewhat unstable and I having a small and focused friendship group (although he is popular) and I was told about changes that have occurred as other children have moved on with their families. In contrast I heard and read about a specific proposed school in Australia and about the NDIS (Footnote: ²⁰) system of provision that would be available for I were he to relocate. I also heard P would have ongoing health insurance that would be available if required. I heard that this school was both selected and a deposit paid at the time of the aborted change in jurisdiction in 2018 (see below). The school appears to have larger class sizes but there appears to be general good levels of provision.

The reality of the situation is likely to be a level of scarce resources available within the mainstream to some extent. However, it is clear that these parents have both personal resources and motivations to obtain what is needed for I irrespective of the same. I consider it both unhelpful if not impossible to provide a meaningful comparative analysis of the two systems available in UK/Australia. However, I consider whichever comes to be the system relevant to I, the parents will supplement it as necessary to maximise the chances for I. It is for these reasons that I have reached the conclusion this is not a particularly weighty feature in my analysis.

Does I suffer from separation anxiety?

R argues this is the case and it is relevant. My understanding is that he considers the presence of the same will mean any relocation will likely lead to a deterioration in his time with I as I will become more not less willing to separate from P. P disputes I has any such condition and contends it has no relevance to the case. She accepts a tendency on the part of I to gravitate to her and some issues in the morning getting I into school (both her and father) on occasion but denies there is any separation anxiety. The evidence for this contention is found on a lengthy questionnaire (Footnote: ²¹) provided by the school where the question of separation anxiety was ticked and a mark of 4 out of 5 was applied (with 1 being no concern and 5 being a serious concern). I have to observe this is very much the extent of the evidence in this regard. It does not amount to a psychological diagnosis but seems to identify difficulties when separating. Against this I have the fact of ongoing significant unsupervised contact with R including whilst overseas and I attending school all the time (whether occasionally late or not). I am struggling to see how I can safely reach a conclusion of separation anxiety as a concept which is materially impacting on or likely to impact on the relationship between father and child. Overall, I am willing to accept there will have been occasions when I has struggled to leave a parent and particularly in the context of the start of the school day. However, I do not consider this is a matter of real concern when addressing the issues in this case.

The extent to which the family previously planned a future in Australia and the relevance of the same?

I can deal with this in relatively short order. In summary it is suggested that this is the third time P and child have been on the cusp of a relocation to Australia. The first time being in 2014 and the second in 2018. In relation to the 2014 plans this appears to be essentially agreed and there is supporting evidence in the form of R’s application for a permanent visa (Footnote: ²²). Neither mother nor child required the same in the light of their status as Australian citizens. Within the documents the rationale for relocation were given as being: (i) reuniting with wider maternal family; (ii) for I to be able to have a proper family life around his family; (iii) to spend time with grandparents, and; (iv) for I to be educated in a stress-free environment. It is agreed this plan was never completed as R had a change of mind as to the proposed plans. I note the application was made almost immediately after I was born.

The situation with regard to the 2018 plans are more controversial. It is agreed P and child travelled to Australia in late 2017 for a family event. However, she contends that whilst there it was agreed between her and R that they should remain and live there. She relies upon messaging from R in support of this suggested agreement (Footnote: ²³). In the months that followed P made trips to this jurisdiction leaving I with family and whilst here she was living with R. She further relies upon R providing funds (c.£2,500) to enrol I into a school (the school referred to above). P agrees that by March 2018, R was no longer agreeing to this plan. She therefore returned with I without the need for litigation. R disputes this account and continues to refer to the events as being an abduction. He complains P purchased one-way tickets (she denies this and evidenced that she purchased return tickets in November 2017 in her second statement) and he explains he was at the time devastated about P’s action (a reference I assume to her affair) and agrees he sent the messages relied on by P and that he paid the school fees. He points out that he continued paying fees for the nursery in this jurisdiction to maintain the place. He explains he made clear his opposition by the end of January 2018 but that it took legal letters to get P to return in March 2018. The parents maintained their positions in live evidence.

On balance I accept the case put by P in this regard although in reality my finding is largely based on agreed matters. In 2014 the parents did see a future in Australia following the addition of I to their family. The benefits of the same were set out in clear terms in the application process. R had a change of mind and the parents did not follow through. In 2018 I find R did acquiesce in P staying in Australia. He clearly accepted the positives of the plan in his messaging. I do not find this could be accurately described as an abduction. It may be he was in a poor mental state at the time given the relationship was falling apart (or had done so) but this does not change the views he expressed. It is clear that when he made his opposition clear P returned.

What if anything can I draw from this? It seems clear P has previously taken a conciliatory approach to the issue and not forced the point when opposed by R. It is also clear R could see the merits of relocation albeit at a time when he was part of the relocation plan (2014). It is clear the parties recognise Australia has positives for I on any neutral assessment. Beyond this I am not sure very much more can be drawn from these episodes.

The events of summer 2023?

At a hearing in March 2023 the parties agreed holiday arrangements for summer 2023. Under this agreement I would spend two weeks in Mauritius with his father with his mother staying locally. It was agreed I would see P midweek in each week. He would then travel on to Australia with P. R complains P interfered with this trip in a number of ways. First, she changed I’s flight so that he would travel with her on the outward journey. Second, she interfered with the arrangements R sought to make as far as it concerned seeing the maternal grandmother. Third, at a point midway through the holiday P relocated to R’s hotel and in doing so undermined his contact time. P denies these suggestions and makes the following points. Shortly, before the trip she was informed the maternal grandmother had become very unwell to the point where she underwent an amputation. In pre-trip video messaging I saw the grandmother and was distressed to see her in that state. Understandably family emotions were heightened by this deteriorating situation. Then R made clear he intended to take I straight to hospital on arrival in Mauritius. P communicated objecting to the same on the basis that this would be emotionally challenging for I. She did not oppose I seeing the grandmother but argued this should be managed in a different way. She argued R was not only unwilling to adjust but by his response concerned her as to emotional state. As a result, she altered the arrangements for I to fly with her. In any event on arrival I was delivered to R who proceeded to take I to see the grandmother. Unfortunately, in the course of the trip the grandmother’s health further deteriorated and she died. P argued that she assisted R by looking after I to free him to deal with family affairs and rituals. Although R argued this stopped him taking I to the funeral P pointed out she asked R whether he wished her to take I to the funeral and he said not to. In any event as a result of her ongoing support she and R made arrangements for her to relocate to the hotel in which I was staying. As such this move was to give support rather than obstruct the relationship. R disputed this and said it was P who had changed the arrangements.

As I have noted above following this holiday P and child travelled on to Australia. On the return journey they stopped over in Mauritius so that the paternal family could have time with I. R was not present during this trip. R contended P imposed herself on his family. In their live evidence each party stood by their written accounts without significant departure.

I have considered the respective evidence and reached the following conclusions:

Is the Australian plan practical?

In my experience there are two forms of application of this sort. The first concerns a party who seeks to start a new life in a country with which they have little or no connection. The second relates to cases in which a party effectively seeks to return to their country of origin. The first form of application will often raise significant issues as to the practicalities of the planning whereas in the majority of cases in the second category this is not the case. Here P seeks to return to Australia having left in 2004. Whilst Australia is not her country of birth it is where she grew up and it is where all of her family continue to reside. She left the country in support of R’s career progression. She is a national of that country as is I and she returned there to give birth to him. She continues to hold a strong connection to the country and has a right to return there without restriction. On the facts of the case her planning is to live with her parents in a property with which she and I are familiar. I did not hear any meaningful argument as to the suitability of that property. She would school I at the same school as was subject to the 2018 admission process. I have dealt with this above and notwithstanding the argument as to the 2018 trip it is clear the parents co-operated to an extent in such an admission. On any objective analysis the school would appear to be a good one. P has been offered a new job with her current employer working from Australia. As such she has a readymade post to assume were she to relocate. Issues of health care and ancillary matters were not relevant. Language is plainly not an issue. I did not hear any significant, if any, challenge to the practicality of the planning (I deal separately with contact planning below) and the arrangements that would be in place were P to relocate. I am satisfied the plans are sensible and realistic. Were I to give permission I am in no doubt the key arrangements necessary to make daily life workable would be in place and would be sustainable.

The relevance of the adult finances to my decision making?

Within the evidence each party considered their own and the others financial circumstances. The key focus of this assessment was to consider their respective ability to make contact work should relocation be approved. It should be recorded that both parents have a good level of net earnings. P has net earnings of around £95,000. I understood her evidence to be that this would be maintained if she relocated but she would hope to improve this over time. R is a self-employed consultant with a net income of about £110,000. My understanding was that he intends to continue working in the same manner and it appeared his income is likely to be stable at about that level. This has permitted both parties to successfully run separate households whilst living in an expensive capital city. They have additionally funded private schooling (R) and financed professional support for I (P).

R appeared to question whether he could financially maintain a relationship with I were I to relocate (Footnote: ²⁴). In his written evidence R comments on the cost to him of a trip to Australia each year as being £12,000 for 2-weeks. This includes a £6,000 business class return flight. In contrast P accepts she would be largely responsible for the costs of contact facilitation and proposes funding travel to London (or Mauritius if preferred) on three occasions per annum based around the Christmas, Easter, and summer holidays. She argues this will be within her financial capacity as she will make savings in moving to Australia (accommodation costs principally) and will be able to travel for work when she travels with I to London. She appears to estimate the cost at no more than £12,000 per annum (3 return trips) and has set the same aside. In evidence she also told me that her brother has offered to make a property available to R when he comes to Australia.

I will turn to contact proposals generally below. However, it seems clear there are sufficient resources available to enable the facilitation of contact should relocation be approved. The costs to P are likely to be significantly less than the savings accruing from the relocation. The costs for R are within his resources. In reaching this conclusion I bear in mind R may no longer pay school fees but may be responsible for equivalent child support. I appreciate P may be responsible for school fees but she may receive child support (which she does not currently). For my part I can see no reason why R would need to travel business class when visiting Australia. In my assessment the budget he sets for 2-weeks could fund close to two separate trips per annum.

Is R available for contact in this jurisdiction?

This was an issue of concern raised by Ms Taylor which were balanced against her concerns with respect to the proposed relocation. It arose out of concerns as to whether R would in fact be available for I to the level contended for were permission to relocate be refused. R works in Paris and will likely continue to do so into the foreseeable future. His consultancy role is likely to continue with respect to agencies of the European Union and as such contracting parties will be located within that economic bloc. R provides consultancy services in respect of various projects activated from time to time. These appear to proceed over fixed periods of between 3-12 months or so. They tend to commence at particular times of the year, for instance after the Easter break or the summer period and then run for the stipulated period. Engagement with the contract and the necessity for attendance in the office (or the availability for remote working) is difficult to predict and has on occasion been seen to be a whim of the individual in charge of the project. R also accepts the remote element is a function of the extent to which this facility is made available to employees linked to the contract; is a hold-over from Covid times, and; is therefore susceptible to political issues around return to the workplace. As such the future working patterns may be unpredictable but may or may not require enhanced time in the office. In November 2023, R was required to be in the office for most of the time leading to him being in Paris Monday to Friday. He expects this to change. He tends to take time off when his employee colleagues are themselves on national holidays and so currently this mirrors the French school vacation plan.

Within these proceedings in March 2023 a plan for mid-week contact was negotiated and agreed. Under this R was to have contact each Wednesday night. It then transpired he could not in fact be available for mid-week contact as he would be out of the country. As noted above R contends this will not be the case in the near future. This has led to questioning as to his availability to assume contact. When Ms Taylor was questioned about this, she expressed some concern that P was being asked to live in a country in which R was not himself living. She was left worried as to R’s availability. P echoed these concerns. R argued that his unavailability was temporary and he would soon be available for midweek contact. He challenged the notion of the centrality of Paris as his base making a case for it simply being a workplace with availability for him to work from home in the future. I think on any case there was no question of R being unavailable at weekends and holidays.

R also raised a different point in respect of availability were permission given. His argument was that his availability in such circumstances reflected the European school vacation periods which did not entirely overlap with those in Australia. As such whilst P might be proposing extended stays at given vacation times that would not necessarily be periods when he could be available. He also asked me to reflect upon additional features which included reduced availability at times close to the conclusion of contracts (when he would be expected to be fully available to ensure a successful completion of the contract) and periods between contracts when he was able to take some time off work pending the next contact – an example of this being the sabbatical opportunity in September 2023. As I understood the evidence these periods would generally occur in about September; December; Easter, and August – when they did occur bearing in mind contracts are often for more than 3 months.

My conclusions in this regard take account of the evidence but also a certain level of uncertainty as to the exact details of R’s future contractual relationships. On balance I have concluded as follows:

Are the relocation contact proposals realistic?

Following on from the above it is clear I consider continuing contact within this jurisdiction would be practical and likely to continue without substantial difficulty. It would likely be founded on recurring fortnightly weekend contact and holiday contact with irregular midweek contact as and when.

However, I also consider the proposals for contact post-relocation are practical and capable of being managed without real difficulty. I have commented on the financial resources available to the parties. It is clear to me that the ‘at least’ four contact sessions identified by P could be facilitated without practical difficulty. I do not comment in this regard as to whether R would in such circumstances prefer his travel to be to Mauritius rather than Australia, but either would be possible. Indeed, I consider there should be no fundamental reason as to why R could not accept the suggestion of an additional contact under which he travelled. In my assessment it would be entirely practical and consistent with my findings elsewhere within this judgment for R to travel to Australia and Mauritius on one occasion per annum each. In Mauritius I would imagine he would have family accommodation available should he want it. I therefore envisage the possibility for 5 sessions of contact each year with three in this jurisdiction and two divided between Australia and Mauritius.

I observe the periods of contact proposed by P largely arise around the potential fallow (sabbatical) periods noted by R. The four contacts identified by P break up the year evenly with a period each 3 months (with around 2 months between each period). Were there to be a further contact period then this would have to occur within one of these interim periods. I have no views as to when this would best be.

Having heard R’s evidence, it would seem practical for him to fit his required travel into the September period when he might be between projects and for the other three offered by P to be in this jurisdiction with R arranging his availability by reference to holiday periods and/or working from home. A fourth trip could be organised at a convenient time with R combining leave and working from home. I observe that this totals around 10 weeks on P’s case (the four trips) which is broadly consistent with R’s case of being available for half the current school holiday (around 9 weeks). Were a fifth trip agreed then this would equate to around 13 weeks per annum (25% of the year).

This and the last paragraph are not intended to be a commentary as to the relative merit of each but simply a statement as to whether, if this were the situation, I consider contact could be successfully maintained in the light of the outcome. It can be seen I answer the question in the affirmative.

The impact of refusal on P / approval on R?

In previous case authorities one can see a keen focus on the impact on the leaving parent of a refusal of otherwise reasonable relocation plans. Many cases engage in an assessment of the psychological impact on the mental health state of that parent. There are cases in which the Court is asked to distinguish between simple upset and profound emotional harm. With the recognised ascendancy of welfare these cases seem not to be so common place. Plainly if one is considering the welfare of I then the impact on the parent will only have indirect relevance on the basis that refusal negatively impedes the ability of that parent to meet the welfare needs of I. In this case I have received competing views as to what a refusal might mean for P. To be clear she does not argue a likelihood of psychological harm. She does though make points as to the impact that being compelled to remain in this jurisdiction is having upon her. The sense of her evidence is that she is being worn down and although not at breaking point is moving in that direction. Part of her case reflects the argument that she has now on two occasions been at the point of relocation only for the same to be snatched away. She argues that she has no support in this jurisdiction and no real social network. She is alone and feels lonely. The difficulties in the parental relationship do not make this situation any easier to bear. In contrast R disagrees and paints a picture of P as a socially engaged and energetic individual. He disputes her relative isolation as suggested by her. In any event he addresses the sense of displacement from her family by arguing he would accept P travelling to Australia with I on two occasions per annum for a period of 3-weeks on each occasion. This would address the sense of being home sick.

I prefer the evidence of P as to the issue of her perceived social isolation. She is of course best placed to give this account. I found her evidence to be genuine and credible. From her perspective the relationships she has maintained are superficial school gate relationships. I accept this evidence. I also accept her evidence as to feeling increasingly worn down. I certainly do not understate the challenges of being a single parent whilst holding down a challenging career. I also (see my findings) accept that this is made more burdensome when it is associated with a co-parent who is at times oppositional in his approach and has been personally abusive. Further, I recognise the sense of unfairness that exists in circumstances in which P finds herself in this jurisdiction based on a choice to prefer R’s career and now fixed here even though he is free to pursue his career in another jurisdiction. Lastly, I appreciate the feeling of isolation from family which is found within P’s case. I am in no doubt that whilst these impacts fall short of impeding P’s ability to meet the needs of I, they are such as to make her daily life much harder than it need be. Over time this has the potential to have a more negative impact on P. Having heard the evidence, I cannot envisage a meaningful improvement in the attitude of R to P. In reality if she remains she will do so in an atmosphere of challenge and conflict.

For R there are obvious benefits in P remaining local. This has permitted daily contact through the previously challenging period. It allows for generous regular contact. I do not overlook the significant impact upon him were approval to be granted. I have noted above the practical potentials of P’s proposals but this would be materially different in scope from that which would arise but for the relocation. There would undoubtedly be a significant period of at least 8 weeks without direct contact. I am in no doubt R would find this situation hugely upsetting in its diminution of his relationship with his son. I acknowledge the real potential for video messaging to bridge the periods of direct contact and accept that in this day and age children of I’s age are adept at maintaining a range of communication tools through instant messaging that can keep alive a relationship at a distance. Still, this does not compare with a direct relationship. I bear in mind many of R’s concerns as to the capacity and willingness of P to support the relationship and what this might mean if a distance is added to the situation but I do not lose sight of my conclusions in this regard as set out above.

In summary, and as referenced at the outset of this judgment, the outcome will be extremely hard to take for whichever parent is unsuccessful as to the end result. I find it invidious and in reality, impossible to seek to conduct a comparative balance of these respective heartaches. I simply record that either parent will be bitterly disappointed.

I’s expressed wishes and feelings?

I has expressed a strong and consistent wish to be able to live in Australia. In her position document P narrates how this wish has been stated to a range of different individuals and has been a consistent theme for some time now. She argues that I is expressing this view with an understanding of life in Australia (having visited) rather than through an idealistic prism. At the same time, P did acknowledge in evidence that I will not fully understand the implications of what the trip will mean for him given his age and characteristics. In the position note it is referenced that he tends to fixate on matters. P is concerned as to the possible implications for R’s relationship with I if permission is refused and I comes to resent R for this decision. R does not challenge the suggestion that I has strong and clear views on this subject. However, he questions whether this wish is simply a mirror of P’s own wishes and feelings. As such he questions whether the views held are ones which should carry weight in the Court’s balancing exercise. In his position (Footnote: ²⁵)note he argues the ‘mirror’ point and further suggests that the wishes flow from positive holiday experiences in Australia. The sense is that the wishes are not ones based on daily life in that environment. Further he draws upon the argument of separation anxiety (see above) and I take this to be a facet of the ‘mirror’ argument with I’s anxiety compelling him to make a case in support of what P wants. For her part, P denies any coaching or encouragement on her part. As to I’s experience in Australia P relies upon this experience as being one which has reinforced any feelings held by I.

Ms Taylor addressed this issue as part of her reporting process. She described I as a ‘an intelligent little boy who [was] articulate in his discussions with [her]’ (Footnote: ²⁶). Ms Taylor discussed the issue and commented that P wished to move to Australia. In response to this I responded, ‘it’s not my mum who wants to move to Australia, I want to move to Australia.’ He explained that he had been expressing this view since 2018 and went on to explain his reasoning which was based on the fact his extended family live there. He was able to consider the impact that this would have in respect of his relationships in this jurisdiction and commented that he would miss his father and friends but his father could visit him there and he could visit his father here. He told Ms Taylor he would be very upset if permission were refused and made clear, when it was suggested, he would be able to visit, that he did not want to visit – he wanted to live there.

I wrote a letter for me (Footnote: ²⁷). I am asked to note he crossed out the word ‘move’ and replaced it with ‘go to Australia.’ The letter explains he wants to go there because he misses his family. I have received a follow up letter which came to me via P’s evidence. R questions the potential for maternal influence over this letter (Footnote: ²⁸). In substance this repeats the earlier letter expressing a clear wish to move; explaining this by reference to wanting to be with his family and noting his father can still see him if he moves. I will return to these views within my welfare analysis but I pause to make some observations:

It is very clear I has a strong and settled view to move to Australia. His reasons for doing so are genuine and plausible from the perspective of a child of his age. He enjoys the lifestyle there and has a particular wish to be around his maternal family. I bear in mind the undisputed evidence that there are no family (on either side) living in this jurisdiction. These wishes are based on experience rather than speculation as to what Australia might like. On the evidence I have received there is little support for the notion that these views are simply I mirroring what his mother wants. I accept the views are his own. I accept there will be a degree of entwinement between the mother’s and child’s feelings although I see this as the inevitable consequence of a shared wish and a close relationship rather than anything more troubling.

This is not a wish to be away from the father. Alienation is not raised directly in this case and I have elsewhere considered the question of obstruction on the part of P. It is clear I values the relationship with his father even though there have been periods of difficulty and episodes of challenge. I accept the reports from Ms Taylor as to I’s views around ‘missing his father’ and his suggestion that the relationship can be maintained. I will need to consider whether this is realistic but I do find the child sees a future in which his father is an important component.

I am assessing this case in the context of a near 10-year old child. A move to the other side of the world is a profound change and the actual implications of the same may be beyond an adults full comprehension. Many adults engage in such a move only to find the grass is not as green as they anticipated. I appreciate this move is to a jurisdiction to which there are strong ties and I am in no doubt P is able to predict what the future will look like. However, for I the situation will be less clear. He will likely focus on the positives and avoid the negatives. This is of course human nature but is particularly so for children when considering things they want. I bear this in mind.

I bear in mind that over the next 3-5 years I will mature and with it seek growing autonomy. Many parents in litigation of this sort find that their children are no longer willing to be held to child arrangements set down for them when they were ‘children’. Flexibility is required and the parents will often have to mould the plans around the willingness of the child to engage. I consider there is a risk that I will identify R as the reason why he could not have what he wanted and he may as a result be less willing to engage with his father. I do not think this feeling will readily dissipate. The proposed move is central to I’s thinking and he may take time to adjust although there is a real possibility he will not come to terms with a refusal.

I have considered whether these wishes are equally consistent with frequent holiday periods in Australia. Plainly, this would be preferable to no opportunity. However, I am not convinced this would solve the issue. I consider it is likely to elevate the feeling of unhappiness of what has been lost on return from any trip, as I sense was the case in September this year.

But this is only one factor in the analysis and this is far from a case in which wishes and feelings are determinative of outcome.

I’s needs encompass emotional, physical and educational needs. I have previously provided an analysis of the comparative merits of the educational opportunities for I whether here or in Australia with particular focus on his personal characteristics. I have concluded in all the circumstances of the case there are no real grounds in isolation for favouring one over the other. As to his physical needs he is fortunate to have two parents who are each well placed to meet his basic needs and beyond. There is nothing in this case to cause me to dig deeper into this feature.

In this case as in most, emotional needs will be the central need under consideration. I shares with all children the need for stable, consistent and predictable care. I am required to assume and readily accept that his welfare is consistent with and requiring of a relationship with both parents. It is emotionally important for his identity to understand and be accepting of the dual nationality that underlies his make-up. Although there is no evidence to suggest the same it would be harmful for him to be rejecting of his paternal family identity. I have dealt with his wishes above but I also accept there is an emotional need for him to understand that his voice is heard although this does not equate to his views being followed. Were I to disagree with his wishes then it may be important that the reasons for refusal are ones that he can understand and hopefully respect.

On the particular facts of the case I find that he has a strong sense of family with a focus on his maternal family. His consistent reference to wanting to be part of his family and physically close to relatives is hardly unexpected in a child with nonexistent family connections local to his place of residence. It is easy to understate the significance to many children of a place within a family and the role of family in giving them a solid grounding. It seems clear that for I his place within the maternal family is very important. Yet this is not to say he rejects his paternal family. He has spent time in Mauritius and it appears enjoyed time with them. There is no reason to believe they will not continue to be a part of his life whatever decision I make.

I bear in mind the decision making of the parents in this regard and consider what it says about their own assessment on this topic at a time when they were not before the Court. In 2014 both were alive to these very issues and placed family connection as the focus of the planned move. Once again in 2018 the messaging suggested an acceptance that there was significance and benefit to I of moving to Australia. I note this understanding fits with the points I have made whilst recognising the earlier planning incorporated R into the plans.

I’s emotional needs will benefit from his parents accepting my decision and supporting it, whichever decision is made. It will be contrary to his welfare for his parents to continue a conflict around this issue once resolved. If I refuse the application then parental reinforcement of the decision may be required to address I’s disappointment. If permission is granted the parents will need to be respectful of the impact this has on the other and will need to show I that they will make this work despite their previous opposition. Irrespective of the issues examined in this case I has an emotional need to feel attached to both parents. If permission is given it will be crucial for the relationship with his father to be seen as valuable to I and for it to be consistently promoted as such by the maternal family. Were R’s fears to materialise then I would undoubtedly suffer welfare harm. I have addressed these issues in considerable detail earlier in this judgment. I have formed the view that P has shown herself to be an active and genuine promoter of contact and I have noted I’s wish to continue to see his father were he to move. I have no reason to reconsider these views.

I have commented as to the impact of refusal on P and visa versa on R. The evidence suggests that P has the predominant daily role in ensuring I’s welfare needs are met. I do not intend to diminish R’s role in making this observation but there is not doubt it is upon P that central care duties fall. I see no basis for believing this will change. I consider I’s welfare is closely aligned with P’s continued emotional availability and resilience. Whilst not seeking to exaggerate my concerns I do consider there is a risk of P reaching a point where she is impacted by the continuing inability to return home and by the conflict in the separated parent relationship. I consider her care of I risks suffering without falling to a point where it is not good enough. Children are adept at picking up on adult difficulties and downturns in emotion. I do not believe P would consciously show the same to I but I worry he might become aware of her unhappiness and this would negatively impact him in turn.

I consider I’s needs are strongly opposed to enduring parental disagreement. This is a case in which I has experienced this conflict first hand on a number of occasions. I have commented on information being shared with him in a most unhelpful way. It is the duty of separating parents to prioritise the emotional needs of their children however they personally feel. This can be a very challenging expectation when emotions are high or raw. The evidence tells me that R has struggled in this regard. This is positively harmful for I and I will need to assess to what extent this will likely continue and whether or not relocation may temper the worst elements of this behaviour.

This is a central consideration in any relocation application. How will I likely be effected by a removal? This encompasses the impact on his relationship with the father if approved. I have outlined my observations and conclusions as to the practicality and workability of the plans and the commitment or otherwise of the parents to such plans. I have concluded the plans are workable and the mother has shown commitment to making contact work whilst at the same time recognising that such a change would have a profound effect on the time the father enjoys with I.

I would experience a real change in circumstances given he currently sees his father regularly on a number of days each fortnight. This could not be maintained post move. Following a move there would be sustained periods during which he would not see his father at all other than remotely. R is concerned a combination of related features will lead to contact withering on the vine. That the mother would continue to be obstructive and should I not want to travel then it simply would not occur. I have to assess this suggestion in the light of my findings. I do so in the knowledge that P would be able to travel to this jurisdiction for work purposes. There was a level of dispute in this regard but P was clear (and I accept) that her employer has agreed she will be able to spend some time in the London office and this can be dovetailed with contact visits. I accept her evidence that she will retain a team here and will visit (as do other managers) on an occasional basis. This would be a significant force in favour of I travelling as well. I bear in mind I’s expressed wish to carry on seeing R. I do not consider I have an evidential basis for believing this is other than genuine on his part. I also accept there is at least a risk of I having competing wishes during holiday period which may conflict with seeing R but this could arise wherever he were located. The question is whether a combination of P’s commitment; bond to R and the reality of the mother planning the trip and travelling herself would counter these concerns.

Would this form of contact be such as to damage the relationship between R and I? I note it would likely amount to contact every 8-9 weeks for periods of between 2-4 weeks. Taken over the course of the year, were 5 trips possible this might total some 12-13 weeks (or 25% of the year). Whilst this is significantly lower than that which would be expected were I in this jurisdiction it remains at a level which one would expect to maintain the father-son bond. I would expect interim periods to be filled with remote contact. I bear in mind the significant changes in this medium that have occurred in recent times and the familiarity of many children with contact by online video calls. I remind myself I is familiar with the same with respect to both his Mauritian and Australian families. Whilst I accept this is not the same as direct contact it is a very valuable form of contact to bridge periods of separation.

I have commented elsewhere in detail as to I’s personal characteristics and will not repeat the same here.

This is not a case in which one is considering direct risk of harm. Elsewhere I comment as to the emotional impact on I of my decision making.

I have considered this issue with care and comment as follows with respect to each parent:

I am engaged with section 8 and 13 of the Children Act. This is not a case in which the Court can conclude it is better for the child not to make orders at all. I need to decide whether or not I give permission to relocate and if I do an order is required to confirm the same. In any event I need to set out the basic spending time arrangements whether or not permission is given. At one time R was advocating for a shared care arrangement however that was not actively pursued before me. It is accepted I will find his main home with P and will have unsupervised staying time with his father. There is no longer an active dispute as to overseas trips but were I to refuse permission there would be sense in formalising this entitlement to avoid future litigation.

An order permitting relocation engages article 8 ECHR. Whilst not amounting to an absolute severance of family relationship it will have a significant impact on the same. It needs to be justified having regard to proportionality, reasonableness and necessity. The Court cannot carry out such an assessment without engaging in a balance sheet analysis of the competing options and assessing how they compare and contrast having regard to the respective positives and negatives of each.

The positives of this option include: (a) It is consistent with the child’s expressed wishes; (b) It would enable I to develop and enjoy his wider family relationship; (c) It would enhance P’s caring role in reducing stress and anxiety associated with remaining in this jurisdiction; (d) It might permit easier access to the paternal family in Mauritius although this is a modest positive; (e) It does not prevent a relationship with the father and would encourage extended periods during which the relationship could be developed in a meaningful manner; (f) The child is familiar with the proposed location; (g) the planning is practical and realistic.

The negatives of this option include: (a) It would impact on regular contact; (b) It could create an emotional distancing of the relationship; (c) It has less inherent flexibility and it would be harder to provide replacement contact were there to be an emergency close to a period of contact; (d) It would limit spontaneity in the relationship; (e) It might suggest the father is a less important individual in the mind of the child; (f) It would limit the ability of the father to fully exercise his PR given the distances involved. There is a risk of him becoming a second level parent; (g) It requires an expectation of continued financial availability without which the contact would become harder or impossible to maintain.

The positives of this option include: (a) Contact could be maintained at a higher level; (b) It is an option with enhanced flexibility and would be resilient to last minute changes; alterations in the father’s working arrangement and financial change; (c) It permits spontaneity; (e) It would keep the father present in the child’s life; (f) It would enhance the ability of the father to fully exercise his PR, for instance by engaging with school at a full level; (g) It would maintain the equivalence of both parents; (h) As the status quo it is a known proposition.

The negatives of this option include: (a) It is inconsistent with the child’s wishes; (b) there is a risk it might lead the child to become oppositional to the father with a significant impact on contact; (c) It has the potential to impact on the mother to the point where her parenting suffers and is not as good as it might otherwise be; (d) It leaves the mother to continue to navigate a difficult relationship with the father whilst feeling isolated and often under attack (e) It has the potential to lead to a continually conflicted relationship which will negatively shape the child’s appreciation of the parental relationship; (f) It does not remove future change, e.g. school and housing changes, and the conflict that may come with the same; (g) It is on balance a financially harder outcome for the mother as she is compelled to continue to live in an expensive capital city which places strain on her resources. This leaves less available to enhance the lived experience of the child.

This remains a very difficult decision for the Court. I am not determining what is best for P or R, if I were the outcome would be easy. The question for me is what is in the welfare interests of I. As can be seen from the balancing exercise there are points which are important and which point in opposite directions. It falls on me to assess and balance these factors. I do not simply add the points up and decide which has most in its favour. This decision is not a simple discretionary decision but is a reasoned decision based on a qualitative analysis of all the evidence in the case.

I have reached a balanced decision but one which I am confident is the right outcome for I. I have determined it is better for him to relocate as proposed by P and for him to enjoy significant and reasonably regular contact with R. On balance I consider this is a better outcome for I and is the outcome which best promotes his welfare. In reaching this decision I do not underestimate the disappointment this will cause to R, indeed any less than I would have done in the case of P if I had refused permission.

These are my reasons for reaching this decision:

I have carefully scrutinised the alternative of refusal. This has the attraction of appearing to preserve the status quo and permits more extensive contact. But I have questioned whether this would in fact materialise given the impact on I directly and medium term impact on P (and thus on I). Moreover, I consider it will maintain a likely continuing conflict which will colour I’s relationship and place unacceptable pressure on his home life.

I appreciate I have departed from the recommendation given by Ms Taylor. In doing so I note her final position was more balanced than matters first appeared in her written evidence. I have reached a different conclusion and in doing so note: (a) the somewhat dated nature of her report. Time and events have moved on considerably since that time; (b) I have the benefit of hearing the evidence and have reached conclusions on aspects of the case which Ms Taylor could not bring into her assessment. I have also made findings which conflict with some of the evidence given to her; (c) I have been able to undertake a far more child specific assessment. In contrast I found Ms Taylor’s assessment to be more general in nature. This is not to say I did not benefit from her evidence or her assessment. There were significant elements which can be found in my analysis.

I therefore give P permission to permanently remove I from the jurisdiction. This is effective from an identified date after 22 January 2024. I make a lives with order in favour of P and a spending time order in favour of R as set out above. The costs of travel for I are as set out within P’s position document.

I will forward this judgment to counsel for both parties. I thank them for their high quality argument and the manner in which they put their clients case. Both parents can be assured their cases were fully explored and all valid points put before me.

This judgment can be shared with the parties (it is not subject to embargo pending handing down). I would wish to hand this down as soon as possible but a combination of Christmas and my sitting arrangements means this cannot be done until the New Year. I will hand the decision down at 10am on 5 January 2024. Can I have any proposed corrections; requests for clarification and additional steps to anonymise the judgment (in addition to those contained within the anonymised version copied with this judgment) by 4pm on 4 January 2024. Can I have a draft order by the same time. If all matters are agreed then subject to their wishes I release the parties and counsel from attending the handing down. The hearing will in any event be held on a remote basis with a time estimate of no more than 30 minutes.

If I do not see the parties I would wish them the very best for the future. This is now in their hands and with goodwill to each other I am confident they can make it work for I.