K v K

On 18 and 19 November 2003 I heard a series of applications concerning 8 year old Virad K who was born on 1 September 1995. His father is 39 year old Mr Shreya K, a business manager who lives with his partner, Mrs B, in Huddersfield. Virad’s mother is 40 year old Mrs Manisha K, a former social worker now qualifying as a solicitor. She lives alone in Cardiff. I shall refer to them as the mother and the father.

I first heard a lengthy application relating to a residence order dispute between the parties in July 2001. The parties had separated in April 1996 with Virad remaining with his mother. I directed that he was to remain with his mother.

Virad stayed with his father following a contact visit in August 2001 and he has remained there since then. There have been a series of hearings before me since that time.

On this occasion there were 5 applications before me:

On 19 November the urgency of the father’s latter application made it desirable for me to give my decision promptly on that and any other matters which I had by then determined. I was encouraged to do this by Mr Andrew McFarlane QC who has appeared on behalf of the father on nearly all occasions since late 2001. The mother has always appeared in person when she has attended. She did not oppose this course.

After a short adjournment I announced that I would give the father permission to leave the jurisdiction with Virad as claimed. I also announced that there would be a sole residence order in favour of the father. I said I would give my decision in relation to the other matters later. I now set out my reasons for the decisions so far announced and my judgment in respect of the others.

It is not practical to consider the present applications without a consideration of the history and particular findings I have made and recommendations in the course of a series of judgments. Before I do that it may be helpful if I provide a short history against which those details and the present situation can be more readily understood.

I gave my first judgment in this matter in July 2001 following a 5 day hearing. I set out the background to the dispute in a quite lengthy judgment.

The parties had been married in India in 1987. They came to England in 1990. The mother took employment as a social worker the following year. The father underwent further training before becoming a business manager. The mother took Virad to India shortly after he was born returning 7 months later. Within 2 months the parties had separated. The mother went back to India once more this time remaining there for about a year. I was critical of these actions by the mother.

Disputes arose over contact. The father made an application for a residence order in October 1999. He renewed it in September 2000 and it was that application which came before me in July 2001.

At the hearing the father and the Guardian were represented by their solicitors. The mother acted in person. By my judgment I dismissed the father’s application against the recommendation of the Guardian and left Virad with his mother. I gave the mother warnings about her future conduct.

Virad was not returned to his mother after his first period of staying contact with his father in August 2001. He said his mother had hit him. There was a Child Protection investigation. Virad remained with his father.

It gave rise to a further application by the father for a residence order. I gave directions on 10 September 2001. There followed a series of hearings. They were on 18, 19 and 20 October in Cardiff and again on 19 and 20 December in London.

During the course of those hearings I suggested that it would be helpful to have a report from a child psychiatrist. Despite considerable efforts, this could not be done as quickly as I hoped. There was a further directions hearing on 14 February and 2 days of hearing in Cardiff on 28 February and 1 March 2002.

By then there was a report from Dr Hamish Cameron, a well known child psychiatrist. In my judgment of 1 March 2002 I accepted his report and the evidence he had given before me on the previous day. He supported Virad remaining with his father. This was because he saw no relief from the emotional pressure which Virad’s mother placed upon him and no recognition by her of the actual as well as the potential harm that it could cause.

I made an order for a joint residence order with Virad remaining with his father and staying and telephone contact to his mother. I ordered a transcript of the evidence of Dr Cameron so that the mother could disclose it to a therapist or an expert if she wished to do so. I further ordered that the father was not to record telephone conversations between Virad and his mother.

In breach of that order the father did tape a series of telephone conversations. On 5 July 2002 I gave directions in relation to that.

At a further hearing on 4 September 2002 the mother did not appear. I made orders relating to the mother’s right to object to the admissibility of the tape recordings and obtaining a further report from Dr Cameron. I adjourned the matter to a hearing on 5 November.

By that date I had had numerous communications from the mother. She asked that the case be transferred to Cardiff. She objected to the tapes being heard by Dr Cameron.

I directed in correspondence that Dr Cameron was not to disclose any report that he had made based on the tape recordings until I had ruled on their admissibility. The mother was trying to obtain representation and asked for the hearing to be adjourned.

I had further communications from the mother on the day of the hearing. The mother did not attend. I heard evidence and submissions. I admitted the report of Dr Cameron which was immediately faxed to the mother. I heard evidence from Dr Cameron.

Immediately after the hearing I sent the mother a detailed note of what had taken place. I invited the mother to make any further submissions she wished to do so before I gave judgment. She responded at some length.

Having received those further submissions I handed down a further judgment on 13 December 2002. I did so after admitting the tapes into evidence.

I held that is was plainly in Virad’s best interests and for his protection and welfare to admit them. There was convincing evidence that the emotional pressure the mother was placing on Virad was continuing and harming him. He needed to be protected. Accordingly I reduced contact.

There was a further application by the mother to increase contact and by the father both to reduce it and for a sole residence order. They are 2 of the applications presently before me. On 13 March 2003 I gave directions.

A further hearing was listed for 3 and 4 June. The mother again did not attend. I gave a short judgment on 27 June, further reducing the mother’s contact but leaving the shared residence order in place.

On 12 July 2003 Virad went to Cardiff for a 2 week staying contact with the mother. On 26 July the mother refused to return Virad when his father came to collect him. On 28 July the father applied for an order returning Virad immediately to his care.

On 29 July the matter came before me, the mother and the father attended. I heard oral evidence from Dr Cameron. I acceded to the father’s request that I should make a recovery order even though it would mean that Virad was taken from his mother’s home before she had returned. On the following day I refused the mother’s permission to appeal my order.

On 28 August the mother applied for telephone contact and following my release of the case, it came before Mrs Justice Black on 11 September. The mother did not attend. Indirect contact was suspended and the mother was given leave to apply. The matter was re-listed for 17 September.

On 17 September with the mother again not attending, Mr Justice Bennett dismissed her application. It was subsequently re-listed before Mr Justice Bodey on 24 September. He stood her application over to a final hearing on residence and contact issues on 31 October.

The father filed a statement on 17 October 2003 in support of his application to take Virad to live in Shanghai. On 31 October the mother again did not attend. I made an order directing that all issues relating to residence and contact were to be listed before me on 17 November. The father was to provide further details of holiday entitlement were he to move to China. The mother was to set out her grounds for opposing this application.

During 2002 and 2003 the mother had been in correspondence with me, usually in a short burst sometimes at length and often shortly before a hearing. I gathered about this time from the mother that she had lost many of the papers arising from these proceedings as a result of rain damage. I therefore directed that in particular my judgments, the reports of Dr Cameron, and the latest statements should be sent to her.

It was in those circumstances that the matter came before me on 18 and 19 November. Before I turn to the last hearing I should once more refer to parts of my earlier judgments.

I said I was satisfied that both parents had enormous affection for Virad. They could both provide for him to an unusually high degree. The main question was the best way of securing his emotional development for the future. I went on –

“There would have to be good reasons for moving Virad from the care of his mother who has looked after him almost exclusively since his birth. A good reason might be if the mother continued to show anger and resentment towards the father and Virad suffers confusion. If he does he may fail to gain from the substantial input that his father can give his emotional and intellectual development.”

I commented on the father’s unusually high degree of commitment. I pointed to the difficulties the mother had created over contact. I held that the Guardian’s views in February of that year about Virad remaining with his mother were correct and there were insufficient reasons to justify her change of mind four months later.

I said –

“There are cases where a parent’s continued resentment and problems with contact justifies a change of residence. This can happen even if as here there is a good relationship between that parent and the child. It can be significant when such a situation has continued over a lengthy period.”

I held that the mother had allowed her resentment to continue for too long. I indicated at the beginning of my judgment that I wanted a further directions hearing before Easter 2002. I gave a clear warning:

“If the mother has not learned at this late stage sufficiently from the hearing and my judgment, it was not easy to see that there was an alternative other than for Virad to move to his father.”

I accepted the report and the evidence of Dr Cameron. He pointed out the emotional pressure which the mother was placing upon Virad. It was continuing. There was no recognition by her of the actual as well as the potential harm that that can cause.

He recognised the high standards of care and affection that the mother had given Virad for the first 6 years of his life, but he did not consider it the time to change the present situation. This was because of the high emotional content of her reaction and contact with Virad.

I noted that Virad had expressed the wish to be with his mother. I had seen, as well as Dr Cameron, videos the mother had taken of herself and Virad together. Though not produced by the mother for that purpose, it showed clearly the emotional pressure she was putting upon him.

I accepted Dr Cameron’s analysis of the potential harm that this would do to Virad. I was satisfied it was so strong were her emotional feelings for Virad that hers and his feelings had become entwined to an extent that had already caused some problems and, if unchecked, would cause more.

I referred to Dr Cameron’s report in relation to the unlawful tape recordings of the father which I had admitted. In that he had said –

“The close exchanges between the mother and Virad are sometimes nurturing, warm and beneficial, and at other times damaging, hostile, critical, hurtful and distancing.”

In relation to the father’s proposed visit to India with Virad, the mother could not stop haranguing Virad about it. She almost shrieked at him such that he began to cry. He set out the harmful nature of this contact of this which I accepted. I reviewed the mother’s 40 page letter to me of 23 November 2002.

In my conclusions I said this –

“This has been a traumatic case as the history shows only too clearly. There is now a real risk that it could turn into a serious tragedy. Mrs K makes the point repeatedly that she has learned about the potential harm of her emotional intensity with Virad ……… However when she has telephone conversations she has so far demonstrated a lack of awareness of what she is doing or any ability to sustain improvement …………

That taken with the history, the phone calls in May, and the recent statements show a deeply worrying inability either to realise what she is doing or, if she does, an ability to change. There is correspondingly no insight into the harm she is doing……. I am in no doubt whatsoever that for Mrs K to play a more extended part in Virad’s life than she is at present has to be for his benefit. I need no persuasion. But this cannot happen as long as she subjects him to emotionally damaging pressure.

What I fail to understand is how Mrs K with her professional background and intelligence, and how those trying to help her professionally appear to be unwilling to face the issue that so concerns both Dr Cameron and me ………… I can only invite Mrs K to read Dr Cameron’s reports, the transcript of his evidence earlier this year, and my summaries….. on 5 November I was faced with convincing evidence that the emotional pressure Mrs K was placing on Virad was continuing. It was harming him. He needs to be protected…………..

There has to come an end to this lengthy, expensive, and damaging litigation for all concerned………. A small boy is caught up in an emotional battle which upsets him greatly. There are lessons to be learned before he is damaged further.”

I emphasised the very close and loving relationship that Virad has with his mother. I went on –

“It is of enormous importance to him. The mother appears intent on jeopardising that even though I have in a number of judgments repeatedly warned her of the potential consequences.

It has now come to a head. I do not believe that it needs me to emphasize yet again the importance I attach to a continuation of the good side of Virad’s relationship with his mother. But if she cannot or will not stop the damaging emotional pressure that she puts upon him, there has to be a real risk that I shall be compelled to stop or reduce the contact between him and his mother…………. I would find that deeply regrettable. Virad’s best interests may demand that course if the mother continues her present pressure upon him.”

I found it distressing to hear when Mrs K gave evidence that she had only skimmed through that last judgment. I am less concerned with whether she agrees with what I say than with her relationship with Virad. Dr Cameron has identified over a long period the problems with it and pointed them out in clear terms to the mother.

I have accepted those views. As my judgment will show, I have come to the clear conclusion that the mother is not even prepared to pay lip service to conclusions with which she does not agree. Despite my best endeavours, she appears intent on damaging her important relationship with Virad, important that is for him as it is for her.

Re-reading now my earlier judgments, I do not see that I could readily have put the matter in clearer terms to someone who has all the advantage of intelligence, experience in training and practice as a social worker, and now about to qualify as a solicitor. The despair that I feel is profound, but at the end of the day Virad’s best interests demand that I protect him from damaging contact that has harmed him and will continue to do unless restrained.

Prior to the hearing I had been endeavouring to help the mother obtain representation either through the Royal Courts of Justice or the Bar Council Pro Bono Unit. My Clerk provided her with a series of telephone numbers and addresses. I noted in a fax sent to the mother on 5 November that there must be now over 1,500 pages of documents that had been generated since the proceedings had started.

By 17 November it was not clear whether the mother would attend. There had been a further report from Dr Cameron of 29 October following a visit by him to the mother in Wales and to Mrs B and Virad in Huddersfield.

In the event the mother appeared. The father was again represented by Mr McFarlane QC. I asked the mother to set out her position at the beginning of the hearing.

She said that prior to 31 October she had asked for more time because the Pro Bono Unit had not allocated an advocate to her and because of her loss of documents. She had in the meantime consulted solicitors but she had not received the additional papers until 10 November.

The solicitor said that he needed 20 hours to go through them which he could not do within the time. She asked for an adjournment for 6 to 8 weeks. She was going to make an application to the Legal Services Commission.

Mr McFarlane opposed an adjournment. Dr Cameron was going to be away for 5 weeks in December. There was a pressing need for the father’s application to take Virad to China to be resolved. His employers needed to know that month. His employers had written to him on 14 October when they had asked him to confirm his availability by no later than mid-November. It was that letter which had led to the application to the court for permission on 17 October.

He argued that all the papers relevant for Mrs K had been sent to her. She was well aware of their contents from previous hearings. So far as representation was concerned, this had arisen before.

When she wrote to the father’s solicitors on 13 November 2003 she had sought further documents. She had not mentioned the question of representation nor any difficulties she was having. I also note that she made no mention of it when writing to me on 30 October 2003, asking for documents to be sent to her and for more time to consider and respond to the report of Dr Cameron.

In response the mother agreed that she knew her case. She said she might need to instruct a legal team or even a barrister.

I ruled against the mother’s application for an adjournment. The question of representation had arisen before. She had know about the original hearing date on 31October for some months. She had only latterly raised the question of representation. I was not satisfied that this was other than an attempt to put off the hearing of the father’s application which, if genuine, was plainly urgent.

In the circumstances I gave the mother an opportunity right at the beginning to renew her application to adjourn or for representation at any further stage if she wished to do so. She did not renew the application.

He had visited the mother in Cardiff on 10 October. She explained how Virad had left without her being able to say goodbye on 28 July. She had not been able to speak to him since.

She was courteous and polite. “Her love for Virad is as intense as ever, and she does not see the relevance of Mr K in her son’s life. So focussed is Mrs K on reunification with Virad, that she has not made any plans for alternative ways forward, nor is she emotionally capable of contemplating planning a shared-parenting arrangement. Although she was restrained, Mrs K’s vehemence against Mr K simmers beneath the surface”.

He visited Mrs B and Virad on 11 October. Virad told him that if he went back to Cardiff now, he believes that he would never come here again. He misses his mother lots. He knows his mother can be over-protective. He said-

“It’s a muddle. I don’t even know who to listen to. I don’t know who started the argument. You’re caught in the middle. ………… if only my mum and dad could even speak to each other but both get angry.”

Dr Cameron concluded that the distant emotional force of the mother was so strong that Virad cannot make a judgment for himself for the view of his mother totally dominates. He has absorbed devotedly his mother’s dismissive-ness towards his father. He noted the warm and trusting relationship between Virad and Mrs B.

She described how long it had taken for Virad to get over the upset after his July visit to his mother. He had been very confrontational. On one occasion Ms B had eventually said that he was to pack his things and he would drive him to Cardiff then if that is what he wanted. Virad said no.

Dr Cameron commented that Mrs B knew from experience that Virad returned from his mother “with a psychologically tormented, out-of control, troubled mind. It seems as if he is overwhelmed mentally by his mother, who pumps him full of negative thoughts and ideas about his father and everything to do with his paternal family”. He spoke on the telephone to Mr K who had been in India where his mother had just died.

Dr Cameron concluded that on each of his visits to Virad in Huddersfield he had found him steadily more integrated as a full member of the home and the school environment. He was flourishing academically and was well-behaved at school. He was no longer showing “loner” behaviour.

Whilst he would benefit from “shared-parenting” this was not possible at present. He was well aware of the intense emotional pull exerted by his mother. It had to be recognised that Virad’s staying contact with his mother profoundly impaired his psychological well-being for 4 to 6 weeks afterwards.

He said of the mother that her situation was sad.

“She had given Virad a loving start in life, but her enmeshing exclusive affection for her son, combined with her embittered hostility to Mr K, has resulted in her alienating influence on Virad disturbing him psychologically. She has not intended to harm her son, but the unbridled intensity of her hostile emotions against Mr K swamp Virad’s thinking mechanism, so that he suffers emotionally and is abusive in his subsequent emotions and behaviour.

……….until such time as Mrs K’s parenting style softens and becomes more cooperative, the benefits to Virad from staying contact are far outweighed by the harm caused by the mother to his social and psychological well-being in his resident parent’s home.”

The mother did not contact Virad by letters, cards or sending presents. Telephone contact had been emotionally upsetting on Virad and he did not recommend it. He recommended a supervised day contact visit by Virad with Mrs K in each of the school holidays. He appreciated it was little but it was better for Virad than not seeing his mother; there was an encouragement for Virad and his mother to plan for a resumption of holiday staying contact in the future.

Dr Cameron was asked to comment on the father’s application to remove Virad from the jurisdiction. Having looked at the arrangements but regretting having received no comments from the mother, he considered the father’s application was well-grounded. A three year stay was more likely to broaden Virad’s horizons than impair them. He concluded that there seemed no good reason from Virad’s point of view to refuse the father’s application.

Before giving evidence, Dr Cameron heard of the father’s disagreement with his proposals because of the degree of upset caused to Virad. It was a question of satisfying Virad’s yearning to see his mother without causing him harm. There was a huge uphill task for the mother. He had recommended a very good mediator in Cardiff who specialised in contact for the non-resident parent.

He had hoped to see a shift in the mother’s thinking with the ideas he had put forward. But he had not seen any. Virad has slotted in so much with his mother’s psychological views that the effect of him was almost instant. Contact risked disrupting him psychologically again. Virad is led to believe that his father is a corrupt person.

In the light of all this he had changed his recommendation to one of no contact. He accepted that Virad clearly loves his mother and their relationship gives him much happiness. He had asked the mother whether she wanted to discuss it with him that morning and she had said no.

In answer to the mother he said he thought in this case that bad contact was worse than none. Contact disturbed Virad to such an extent in all aspects of his.

July had been a disaster and unless the mother could change it was going to be repeated. He accepted that he relied upon what the father and Mrs B had said about this.

Virad’s description of not returning from Cardiff if he went there again showed a degree of polarisation he felt. He would be so securely entrapped and involved that he would never get out again. He was impressed by Virad not returning to Cardiff in July when the offer was made by Mrs B.

Virad had said that he had seen court papers and a forged one from Milton Keynes County Court, the point being that he realised that according to the mother the father had done bad things. When he wrote his recommendation for supervised contact he hoped there would be a reaching out by the mother.

She has continued the adversarial conflict against the father. She is trying to win a case. He recommended intensive counselling for the mother. He was very encouraged here that the mother had taken steps shortly before so far as counselling was concerned. She mentioned this in her cross-examination of Dr Cameron.

He said that preparing a child for the return is the duty of the non-resident parent. The way forward was for the mother and father to meet with a conciliator and both parties to cooperate to make a plan acceptable to the court.

If the mother further advances her mediation, the father would be also involved in the process. It was better for there to be no contact to Virad until the parents, if necessary with icy politeness, can make plans which are sensible enough.

In his statement of 17 October 2003 the father set out the circumstances in which he was seeking permission to take Virad to China. He is a sales and marketing executive for Holset Engineering Company with particular responsibility for Asia. The company is a wholly owned subsidiary of Cummins Inc. a major American multi-national company. Cummins operates in over 100 different countries. The father’s present area includes China, India, Korea and Japan.

Mr K explained that Holset had been through senior level reorganisation in November 2002. His job had expanded. His area is expected to show significant growth.

The father pointed out that he had been with the present company for 7 years. They are good employers. He is next in line to be a Director. He has worked extremely hard to get where he is.

His boss and former boss are both in the UK. He hopes to take one of their jobs when he returns. He thought it more likely than not that he would be back in 2 to 3 years.

He pointed out that he was not changing jobs but relocating. He has already been to China 17 times. He says that though there had been discussion over the last few months about the prospect of relocation, it only came to a head when he received a letter from his company on 14 October 2003. Even then it was tentative about relocation to Shanghai. His relocation would be governed by Cummins International Assignment Policies. He was asked confirm his availability by mid November.

It was this notification that prompted his urgent application to the court. He would not however go until about June/July 2004. He considered that if he did not go he would seriously jeopardise his career and his future prospects. Given his specialist skills and experience, he considered it difficult for him to find equivalent employment elsewhere.

He described Shanghai as having all modern public amenities, a large expatriate population, and several large western companies. The quality of life compares well with the developed world.

His employers will provide and pay for comparable western standard accommodation. He intends to rent out his house in Huddersfield. He will have private family medical care, a car and a driver, his National Insurance and pension fund will be kept up, and he will work a comparable 40 hour week.

His employers will provide language and cultural training and he will have the use of a full-time interpreter. They will also provide help for Mrs B to obtain employment and work permits. He told me that, having spoken to colleagues in a similar position, his company relocation package compared very favourably with theirs.

He had made investigations about schooling. He had chosen the British International School which had an English National Curriculum, the details of which he provided. It is a day school with comparable terms to an English school and costing US$18,000 per year which his employers would meet. The school which would be close to his home is almost all for expatriates.

So far as leave is concerned the father would have 47 days a year. He would expect to return to the UK 2 or 3 times a year.

He said in answer to questioning from the mother that he had not considered boarding school as there was no necessity. His present and previous boss had been educated at Huddersfield Grammar School. The school in Shanghai was British founded and British run.

He intended to provide good education. He did not consider it unsettling despite what Virad had been through.

He did intend to return to the United Kingdom. He was prepared to have a charge put on the equity in his home and on his pension fund if this was required to ensure Virad’s return.

He did not consider that he or Virad would lead an isolated life in China. Shanghai was a major financial centre and with an international school, there was no chance of isolation. He pointed out that whilst the mother might have understandable fears, they were not based upon the facts as he had seen them in respect of life in China.

Another aspect of the relocation would be the positive impact on his financial position. It remained very tight in the United Kingdom. He was happy to assist the mother to obtain a visa should she want to visit Virad in China.

He was aware of the recommendations of Dr Cameron. He did not think that 3 or 4 short supervised visits a year were in Virad’s best interests. It was bad for him. He thought it must stop.

It remained clear in Virad’s mind that he was the bad man. In any adversarial situation, Virad was always taking the other side. He pointed to her tactics. She firstly tried to get an adjournment, then to discredit Dr Cameron, and then, when everything was not going her way, she pulled things out of her pocket about counselling.

She had been in touch with the court and solicitors. She had never mentioned this though the date on the counselling document was 11 November.

Of course he was willing to go at least half-way. He said that deep down he knew the mother’s actions were a sham.

He pointed out that she was well qualified. There had been too many last chances. He had known the mother since she was 17. He had no belief in the sincerity of what she was doing. The first thing she had to do was to admit she had made mistakes. He had made mistakes. He had gone ahead despite the risks shown by the mother in the tapes. She had had ample opportunity. In effect he saw litigation continuing.

She said, in relation to her application of 20 January 2003 to set aside the order of 5 November 2002, that this did not matter at this time. In respect of the father’s application for a sole residence order, she thought it was designed to help the father get Virad to China. She considered the original joint residence order was an idea by Dr Cameron to save face on both sides.

She pointed to the steps that she had taken. She had persisted with telephone contact. She had been there for staying contact. She had not told others of how Virad came to her with inappropriate clothing.

She had fulfilled her part of the care of Virad when he was with her. She had had various immunisations carried out and provided medication. She felt that the joint residence order should remain. Her view was that no one had assessed contact. It was all based on what the father had said. Virad was feeling that he was losing out on his mother.

She said that there should be normal contact with her, staying at half-term and in the holidays. There should be telephone contact. It should take place from school once or twice a week.

There should be supervised contact which should be assessed. There would then be an unbiased view of her and Virad. There should be 10 or 12 occasions of supervised contact and then a report for the court. She was prepared for telephone contact to be taped so everybody could tell what was happening.

On relocation, the father had done a good job. Her real fear was that she would not see Virad again. There was no court abroad whose door she could knock on. That was her fear.

Contact is very difficult. It was naïve to think that Virad would not be upset on his return. What had happened here was that a normal reaction had been drummed up. Virad had been taken away when he did not want to go. She had had the same when Virad had contact with his father.

It needed a lot of commitment and dedication. She had the energy for this. The father did not have the time and did not understand to respond in this way. She had discussed it. She worked round all that Virad told her. There were videos they had seen a hundred times and they giggled over the bits of the dialogue. What he says as the start of a game is taken as saying nasty things.

Virad is in difficulties. He is a normal child. He is not psychologically disturbed because if so his behaviour and at school would suffer. It is a credit to the father and Mrs B that he has done well in school.

In cross-examination she said that she had seen my judgment of 27 June. She browsed it. She had not read it because it was stressful. She had not had in mind the passage in my judgment where I had said at paragraph 43 about Dr Cameron asking the question of whether there should be one more staying contact.

This was provided it was made absolutely clear to the mother that the significant emotional harm had to stop. If it did not direct contact may have to stop. She had not realised the importance of the visit.

Where I had said later that I was deeply concerned about how the court could bring home to her the damaging consequences of her behaviour towards Virad, she said the court had not had her side of the story. She did not accept that she was emotionally abusing Virad. All that the father had said had been taken at face value. She accepted that her telephone contact had been wrong.

What she had had difficulty in understanding was what had happened after November which had been so drastic that he had moved to his father. When he was in Cardiff for 2 or 3 days Virad had said everything that had been told to him by the father. She told him to write it down and then let us address it.

The father said what Virad has told him without context. The father had set out what Virad had shouted from the first floor window when he came to collect him on 26 July. She denied that was an accurate record. He had said that the father had a marriage-like relationship with Mrs B, and that his father did not care about him. He had said that this was a perfect house for a child and there is a school in Cardiff. She had heard him; she was in the same room.

He was unhappy in the father’s home and he did not want to go back. She had said that if he was so unhappy he should stay with her. She had intended Virad to go back.

They had had a party. Virad knew he was going back, his bag was packed. The father knocked at 3.30, he was changing in the room. He said he would not go and blurted out these things.

The father shouted as usual. The mother had said that maybe he would not go and now they were in big trouble.

She was asking for an adjournment because it had been adjourned on 31 October. She knew it was very unlikely. She did not agree with Dr Cameron and wanted to ask questions.

She had only spoken about the counselling when Dr Cameron was saying that there was no movement. After talking with friends, family and parents she did not retaliate but the way forward was mediation.

The approach which should be adopted by the court is set out in the Court of Appeal decision in Payne v Payne (2001) 1 FLR 1052. In the judgment of Lord Justice Thorpe he emphasized that the welfare of the child is the paramount consideration. Apart from the effect on the primary carer of refusing their reasonable proposals, he put forward a two-stage approach.

The first part was a consideration of 2 questions –

Before going on to the second part of the framework I consider whether the father has satisfied me that he has met both those questions. If not then his application fails.

I make the following findings. The reason for the father’s wish to relocate to Shanghai for a limited period is wholly concerned with his employment and future career. It would have arisen whether Virad was living with him or not. There is no question of any selfish desire by the father.

It is a practical proposition that has been well researched and investigated. The father is employed by a subsidiary of a very substantial multi-national American corporation. They are well used to moving employees to different countries. Their package I am satisfied does, as the father said, compare well with similar moves by other companies or corporations.

I accept the father’s description of Shanghai as a city. I have regard to his frequent visits to China. He, Mrs B, and Virad will be comfortably housed, provided with proper assistance in a city which is more westernised probably than any other in China. It has a substantial number of expatriates.

Schooling for Virad has been properly considered. It is a private school providing education at least as good as Virad is presently receiving. As a single topic it causes no concerns. The mother has not suggested otherwise, other than rightly pointing out that it is another change for Virad.

I conclude that I can with confidence move to the second of the framework put forward by Lord Justice Thorpe. It involves a careful appraisal of the mother’s opposition.

Amongst the relevant considerations which arise are as follows –

Given the history that I have set out, the upset to the mother caused by this proposal even though I have found it to be a proper and genuine one will be substantial. It comes at a time when her contact to Virad has been by court order substantially reduced. She is anxious to increase that and believes that she can change to meet it.

The particular feature of this application is that it is for a limited period. It is not shutting out the mother from Virad’s future for his childhood. He will be returning to England within 3 years. I do not have to consider the further implications if it were intended as a permanent relocation.

Furthermore he will be back in this country each year. The father has in mind that this should be on 2 occasions. He is genuinely prepared to assist the mother to obtain a visa to visit China if it is her wish and within her financial resources.

Given the fact that Virad is likely in the foreseeable future to be with his father, and as I find it is an essential part of the father’s employment to go to China, it must be in Virad’s welfare to accompany him. It is asking too much of the mother that she would agree given her wishes and the extent of her present feelings. I am loathe to say that the mother is motivated by other interests but I am satisfied where Virad’s welfare lies in accompanying his father.

The application comes at a time when I am being asked to stop contact in any event between the mother and Virad. Whether I accept that or allow it to continue to the extent originally recommended by Dr Cameron, 3 times a year, or whether I have in mind that that could be increased, the detriment to Virad will be less than in many other cases.

That arises naturally from the limited extent of his present contact to his mother; it will of course be very small if I stop all direct contact in any event. I accept that Virad being so far away from his mother may pine to a greater extent than before. It may add to the intensity of any meetings between them. But I have to conclude that the detriment to him given the particular circumstances is very much less than in most other cases because of the reduced extent of any contact there may be.

To such detriment as there may be, there is the alternative of the father not going. That I consider shortly. The reality of the present position is that Virad’s present carer is his father assisted by Mrs B. It has continued since the autumn of 2001. There are no good reasons to change it at this time. I am satisfied that the alternative would be to cause Virad significant harm, accepting as I do Dr Cameron’s approach.

I then have to consider what the impact on the father would be if his realistic proposals were to be refused. This is in my judgment an unusually important part of this application.

The father has worked hard. He is ambitious. He sees his future as reaching the board of his present employers. That is realistic. He has been in straightened financial circumstances because of the debts he has incurred when he was instructing his solicitor privately in this litigation and before he received public funding.

The proposed relocation offers him three advantages. Firstly it is plainly an advantageous career move which is both necessary and reasonable. Secondly the alternative might well be I find to leave him at the age of 40 having to consider seeking alternative employment when he has made a major input of his skills and abilities with his present employment.

It is I am satisfied a dismal prospect. Dismal because of the difficulty of finding a company which can to the similar extent use those skills, dismal because the prospect of similar position and career prospects is unlikely to materialise. Thirdly he has the advantage of a period when he can recoup his financial situation as well as assisting his promotion prospects.

It follows that to prevent the father moving with Virad would run a real risk of putting his career at best on hold and worst setting it back substantially. He would have to be superhuman not to regard this as a most serious setback. It would be bound to affect him and his relationship with Virad. It would be little short of a disaster.

Then I have to take into account Virad’s best interests. I take into account all I have set out about the mother’s opposition and the detriment to her, the advantages to Virad of being able to move, and the disadvantages to the father if he is not permitted to do so.

At this stage I take into account the views of Dr Cameron which I have summarised earlier. They fully support the father’s application.

I also bear in mind the judgment of the President in the same case. Though not expressed in the same words I am satisfied that her general approach and that of Lord Justice Thorpe are very close to each other.

She points out the important point that there is no presumption in favour of the father. But his reasonable proposals do carry great weight. Nevertheless those proposals must be looked at with care. She also points to the genuineness of the motivation for the move and whether it is influenced by an intention to bring contact to the other parent to an end.

I must balance the effect upon the father of a refusal and the effect on Virad of the extent to which any contact may be reduced as this can be very important. I have endeavoured to bear all these considerations in mind. In the light of my findings and based upon that approach my decision is clear. I should allow the father’s application.

In essence the important points are that it is for a limited period, it is highly important for the father’s career, and it would only risk impact on contact to a small degree. I note that Dr Cameron’s final proposal is that there should be none to the mother in any event.

The proposal is well thought out, it is to a country and place well known to the father, it has exciting prospects for Virad, and contact though of a limited extent can continue. It would be devastating for the father to have his career put in doubt or lost were he to have to refuse this opportunity. It would be bound to have a reaction on his care of Virad. It was taking all the considerations into mind and bearing in mind Virad’s welfare as my paramount consideration that I was able to indicate that I would grant this application.

I have set out the history of contact. I have referred to the conclusions of Dr Cameron. I have summarised the father’s objections and the mother’s wishes.

I have in mind the great commitment shown by the father to contact in the early years. I consider the difficulties created by the mother, the repeated applications to court, the financial effect on the father and the problems that have continued even when Virad came to live with him.

I have borne in mind the mother’s devotion to Virad. I also note her difficulty in accepting at any stage over the last 2 years the message of what I was setting out repeatedly in judgments, and the clear and firm conclusions of Dr Cameron. She says that she has now started seeking counselling.

I have to bear in mind that this arose not because of any proposal put forward by her, but in answer to Dr Cameron’s observation that he had seen no change in her. I have to consider whether it was genuinely a move by the mother at long last or simply a step to impress the court or a ploy as the father believes.

Only time can provide a sure answer to this. The mother has laboured under the disadvantage of representing herself. I am not satisfied that she has ever wholeheartedly sought to obtain representation. I share the father’s disappointment at the approach she adopted during the last hearing. I find it difficult to see why, even though my judgments may be upsetting, if she is to develop her relationship with Virad which is her primary motivation, she does not trouble to see what steps she could take.

It was not however the only time that I had set this out. She leaves me baffled by a number of factors. Firstly how is it that someone with her intelligence, her knowledge and experience as a social worker, and her training in law can feel it right to ignore judgment after judgment of the court when the key to a better relationship to her beloved son is all there to be grasped.

Secondly why is it that when telephone contact is stopped and when she has sent letter after letter to me (all of course copied to the father’s solicitors), she cannot or will not write to Virad to help him. Why does she not give him assurances about his mother which he must surely want to receive?

I almost despair in the light of all this history of seeing how I can help the mother to rebuild to Virad’s advantage her relationship with him. If she continues to refuse to listen, to learn, and to put in practice the result will be devastating for her and deeply upsetting for Virad. She pays only lip service to the advice of Dr Cameron and the judgments of this court.

But I still have to consider the immediate future. I am very troubled by this. I see the force in the strongly felt views of the father. I take into account that it was those views that caused Dr Cameron to change his stance from limited contact to no contact at all.

I am of course guided only by Virad’s best interests not the desires of his father nor the wishes of his mother. I have reached a conclusion but not without much consideration.

I start from this basis. Virad will as a result of my order be going to China with his father and Mrs B in the middle of the summer 2004. He will be returning to the United Kingdom in the next year. I bear in mind all that Dr Cameron says about the rapid way in which Virad and his mother can engage. It can revive the deep feelings which were so apparent when he returned from the visit to his mother last July.

What was proposed originally was supervised contact between the mother and Virad 3 times a year. The mother proposes that it should be in Birmingham, half way between them. The father accepts that, if it is to go ahead, such a destination would make sense.

It would be I find very upsetting for Virad were he to go to China without having seen his mother first of all. That contact runs risks for Virad. They are limited by the fact that the contact will be supervised and its duration will be limited. If that contact is shortly before Virad leaves for China, there is a risk that the extent to which he is unsettled could impinge upon that exciting venture.

I consider that any adverse impact on Virad of supervised contact will be considerably less than was experienced this year. It would be better that it happens at a time when he has full opportunity to recover before his trip to China.

Balancing the risks against the advantages to Virad, his best interests are met by an occasion of supervised contact. I therefore direct that there should be supervised contact with his mother. It will be in the half-term before Easter. That should enable there to be sufficient time for it to be set up.

Whether there will be further contact and if so the extent of that must I regret depend upon how that period of supervised contact turns out. I appreciate that this would give the mother much concern because she believes that the father may not give a balanced account of Virad’s reaction. There is the protection that Virad’s contact will be supervised and some report could well be available if there is a dispute. I very much hope that this would not arise.

For the future and in relation to the father’s leave whilst in China, if contact can continue as I trust, I direct that the father should make Virad available for supervised contact to his mother on 2 separate occasions a year. There can be contact by the mother to Virad in China. Supervision will be needed unless the mother demonstrates it is not required.

The question of whether there should be further supervised contact before Virad goes to China will be up to the mother. She may seek the father’s agreement, failing which she can apply to court, reserved to me. It is unlikely to be successful if she has learned nothing from yet another judgment.

The father has offered a charge on his home and over his pension fund as security for bringing Virad back. The mother feels particularly helpless with Virad in another jurisdiction. I am minded to take the father’s offer up to the extent that either one or other of his assets should stand secured against the risk that Virad is not returned to this jurisdiction. I would be content that the asset is chosen which involves least expense and trouble to achieve that result.

Mr McFarlane says that there is no jurisdictional basis for continuing a shared residence order in this case. The mother is only having very limited supervised contact to Virad.

I have considered the guidance from the Court of Appeal in the cases of A v A (Minors: Shared Residence Order) (1994) 1 FLR 669, Re: H (Shared Residence: Parental Responsibility) (1995) 2 FLR 884, D v D (Shared Residence Order) (2001) 1 FLR 495 and in particular the case of Re: A (Children: Shared Residence) (2002) 1 FCR 177. I do not propose to quote from those judgments but I do bear in mind s.11(4) of the Children Act 1989 –

“Where a residence order is made in favour of 2 or more persons who do not themselves all live together, the order may specify the periods during which the child is to live in the different households concerned.”

In none of the cases are children involved who are not having a continuing relationship with the non-resident parent. They were also spending significant periods of time with them. I am satisfied that it would require exceptional circumstances before a parent only seeing a child in terms of supervised contact 2 or 3 times a year would be a party to a shared residence order.

I cite in support of that the headnote to the case of Re: A to which I have referred, which summarises the judgment of Lady Justice Hale as she then was-

“Shared residence orders are not necessarily exceptional; they were to be made if in the best interests of the children. However, it was important to realise that a residence order was an order which settled the arrangements to be made as to the person with whom a child was to live. In the instant case, the Recorder had made a shared residence order to recognise the equal status of each parent in relation to all 3 children. However, it was difficult to make such an order about a child who was not only living with one of the parents but was, for the foreseeable future, unlikely ever to visit that parent. The court’s order had to be designed to reflect the real position on the ground. Accordingly the shared residence order in relation to M was inappropriate and an order that M was to live with his father and have contact with his mother would be substituted.”

I no longer consider that the reality of the present situation justifies the shared residence order continuing. Accordingly there will be substituted for that a residence order in favour of the father.

In the light of what I have set out above I consider it right to dismiss the mother’s application of 20 January 2003 to set aside the order I made on contact of 5 November 2002. I grant the father’s application for a sole residence order. I dismiss the mother’s application of 28 August 2003 for enforcement of an order for telephone contact. I grant the father’s application of 17 October 2003 for leave to remove Virad to Shanghai for a period of 3 years from the summer of 2004. I give the mother leave to apply.

Finally, bearing in mind that I consider that at this stage telephone contact between the mother and Virad is too upsetting for him to be to his advantage, I urge the mother to write to him on a regular basis. I have not discovered why she will not do this given the ready manner in which she has been able to write to me.

For a correspondence to develop must surely be to Virad’s advantage. If the mother finds it too upsetting to write she might well receive assistance from friends or counsellors to give assistance. I also hope that her start with counselling will be shown to be real and beneficial and that mediation can include the father in due course.