JAL v LSW

I am asked to decide on the future of a little boy J, who is 8 years old. The applicant is J’s father JAL who is represented by counsel, Ms Renton. The respondent is J’s mother LSW who is represented by counsel; Ms McIlroy. The father asks me to make an order that will mean J continues to live in England under a shared care arrangement; living 1 week with his father and then 1 week with his mother. The mother asks me to make an order that permits her to take J to live permanently in Hong Kong with her. She proposes that J would spend time with his father each summer for up to 4 weeks in England and either one or two other holidays each year of up to 12 days in England.

The only application formally issued is that made by the father on 23^rd June 2017 [B1] That application sought

By 23^rd June the mother plan to return to Hong Kong and the fathers to apply to court came to fruition. At about 3pm Recorder Allen made an order in the terms of the application having read the fathers statement and heard evidence from him. Between 3.18-3.20pm the father’s solicitors made 3 calls to the mother’s phone and spoke to her twice. At that time the mother was at the Chinese Embassy obtaining emergency travel documents for J. The solicitor says she informed the mother of the order and the mother told her to speak to her legal representatives and rang off. The father’s solicitor was unable to make contact again and the parties returned to court Recorder Allen then amended his order to incorporate reading the handwritten statement of the father’s solicitor. The mother says she did not understand from the call that an order had been made which prevented her removing J. At 3.47pm the mother purchased flights for herself and J and they flew that evening.

The mother’s removal of J from England of course amounted to a wrongful removal for the purposes of the 1980 Hague Convention and the father lost no time in making an application for J’s summary return. The mother defended it on the basis that a return would expose J to a grave risk of harm and that he objected to returning. The application was heard and determined on 22^nd August 2017 by the Honourable Madam Justice Au-Yeung who ordered that J be returned to the UK. The mother’s attempt to appeal did not get off the ground and on 1 September 2017 J and the mother returned to the UK. By 14 September they were back in court when the mother confirmed that she wished to pursue an application for leave to remove J permanently from the jurisdiction and so DJ Hudd gave directions to timetable the competing applications to a 3 day final hearing.

And so the applications came before me this week. Over the course of the hearing I have

Very early in my reading of the case it became clear that the mother had made very serious allegations of emotional and physical abuse against the father which appeared to fall potentially within the ambit of FPR PD12J. Given that a shared live with order had been agreed by the mother on 14^th September 2017 and DJ Hudd had not been invited to give any directions as to fact-finding this appeared a little unusual. On exploration with the parties Ms McIlroy produced a Schedule containing 19 separate allegations. She explained although the mother stands by all the allegations for the purposes of these applications the mother’s position was that

Ms Renton’s position was that given the father denied all the allegations and, in her submission, the evidence was not strong in support of them that the court could indeed deal with the allegations within the overall consideration of the case. She observed that the mother was now seeking to draw the sting of the allegations which had been made in support of her Article 13b defence in Hong Kong because in maximising their impact there, the inevitable corollary was that they now presented an obstacle to the relocation application.

The three day time estimate which the case had been given to include judicial reading and delivery of a judgment was plainly not sufficient to explore the allegations in detail (in particular those of long term coercive control) as well as dealing with all the relocation issues and so I proceeded with the case on the basis that I would keep under review whether a fuller fact-finding was required in order to ensure that J’s welfare was properly protected.

This case vividly illustrates the tension which may creep into relocation cases where the party applying to remove a child has previously made allegations that the other parent has behaved abusively. Should the parent pursue them, recognising that if they are not proved to the level alleged, the other parent will inevitably say (and perhaps with justification) that the removing parent is so hostile to the left-behind parent that they cannot be trusted to promote contact. Unless the removing parent can substantiate the concerns to such a level that a no-contact or minimal contact order is appropriate then the pursuit of the allegations in itself may undermine the application to remove. On the other hand if they do not pursue them, having made them the left behind party will say that they were falsely made and either that illustrates that contact will be made difficult because of the removing parents hostility to the left-behind parent or that they may re-surface in the other jurisdiction as a reason for opposing or terminating contact. It creates a real potential difficulty for the judge hearing such applications in particular where the parties have not confronted the issue head-on at the directions stage and emphasises the need to consider the implications of PD12J for cases at the earliest stages.

As will be seen below within the Chronology and Analysis the answer to the conundrum emerged ultimately quite clearly in this case.

In relocation cases there is no priority afforded to the application to relocate as opposed to the application for a child arrangements order; there is thus no ‘lead’ application. To approach relocation cases in such a way is to fall into the ‘linear’ approach trap which the authorities now clearly disapprove. The essential task is to weigh up two (or conceivably more) competing options as to the country in which the child should reside and the parental care framework in which the child will live. That requires a comparative evaluation of the options available. Such evaluation may be assisted by a ‘balance sheet’ but of course one has to be wary of then following a map without contours which of course can result in a misleading picture and the arrival at an unexpected and probably wrong end point.

The most recent and authoritative appellate decision on the approach to permanent overseas relocation cases is Re F (A Child) (International Relocation Case) [2015] EWCA Civ 882 [2017] 1 FLR 979. The material paragraphs of the judgment are 3 & 4, 30-35 (Ryder LJ) and 45-52 (McFarlane LJ). Re F together with the earlier authorities makes clear that that whether the applications are configured under s.8 or s.13 Children Act 1989 the following framework applies.

Insofar as it may assist in identifying the relevant issues a court may find it helpful to consider what may be described as the ‘F, K, C Payne’ Composite. This is no more than an integrated approach to the welfare checklist and the ‘Payne’ guidance/discipline incorporating the Payne criteria and any other particular features of the individual case which appear relevant. Of course in some cases it may be that one or more particular aspects will emerge as carrying significantly more weight than others – a contour map with high peaks and low valleys; in others the factors may be much more evenly weighed and present a gently undulating landscape. In the former the balance may fall more obviously in one direction if it is dominated by peaks with no valleys in others the peaks may be balanced by the valleys creating a finer balance. In the latter the overall undulations may make the balance a very fine one. Ultimately every case is fact specific. This case is a paradigm example of that.

The father’s case is set out in his statements. A significant deficiency in his case prior to the commencement of the hearing was how he proposed the mother should exist financially. As a result of the mother having issued a divorce petition in Hong Kong the issue of the financial orders that might subsequently be made was uncertain and the father had, it seems, been advised by his HK lawyers to await proceedings there before committing himself to any package of support for the mother. Whilst from the financial remedy perspective and that of the HK lawyers this might be perfectly acceptable – indeed absolutely the right approach – it does not dovetail with the child-centred approach of the court considering the children. Ultimately parents have to elect whether to prioritise the welfare or their children in these situations which is best achieved by giving clarity and certainty to finances and housing options. If they elect to prioritise the finances – even under the cover of advice from their finance lawyers – this is likely to be counter-productive to the children’s welfare. This difficulty was very evident to Ms Sivill’s such that her conclusion was largely centred on whether a way could be found for the mother to remain in England.

However after some encouragement from me the father made an open offer as to the finances. Thus his proposal in summary is this

On behalf of the Father Ms Renton makes the following points in support of the contention that J’s paramount welfare would best be served by this court endorsing the fathers approach.

The mother’s position is set out in detail in her statement and was supplemented by her oral evidence. The main features of her proposal are

Ms McIlroy in support of the Mother’s case makes the following significant points.

Ms McIlroy said that J’s emotional needs and the mother’s capability being enhanced in HK and undermined in England together with the risks arising to J from the father and to the mother from being forced to remain are the predominant features. Although finely balanced – the impact on M and J means the application should be allowed.

I set out below a summary of the background and evidence drawn from all that I have read and heard. Insofar as matters of fact are in dispute I determined them on the basis of the normal civil standard, namely whether it is more likely than not that a matter occurred or did not occur. I take account of all the evidence I have heard and place it in the context of other evidence. To the extent that lies have been told I give myself a ‘Lucas’ direction and remind myself that people lie for many reasons and that just because they demonstrably lie on one issue that does not mean that they have lied on all others. In evaluating a party's credibility I have regard to the totality of their evidence and how it fits in with other pieces of evidence, how consistent it is internally and with other items of evidence and whether they had a motive to lie and how they gave their evidence and the dynamic between them insofar as that may bear upon their credibility and the issues in the case.

I will say immediately that this is a case where the benefit of seeing the parties or hearing the parties giving oral evidence was manifest. The demeanour of the mother and father, some of their answers and demonstrations they gave in court gave me an insight that simply could not be gleaned from the papers.

When I say I conclude or I think or other such expressions that means it is my finding on the balance of probabilities as to that matter.

In order to understand what happened I think one cannot look at this in isolation from the characters of the parents, J and his experiences of his mother and father.

The father is clearly a man who likes routines, structure, and tidiness. He was diagnosed with mild OCD and prescribed anti-depressant and anxiety medication. He is I think inflexible and reluctant to change course – that translates at times into a sense of his own rightness. Having heard him talk about the finances in the marriage he obviously was very much in control – and I think by and large the mother was content with this – perhaps because she is unused to financial responsibility and probably struggles to be sufficiently organised to budget. She probably did have debts which he paid off. The fathers approach may come across as mean rather than frugal or careful.

At times of stress I accept he can lose his temper. Given his tendency to be controlled I doubt that – unless he was in a period of acute stress - it would happen frequently. The mother’s oral evidence at one stage which clearly was genuine was of him having panic attack and ‘losing it’. However from the way she described it sounded like a one-off – something so rare she felt she could jog his memory simply by saying to him across the court room ‘remember that time..’ If it was regular I don’t think she could have described it in this way. I conclude that it is far more likely that he would be stern or strict and tell J off that that he would lose his temper. At one point in her evidence the Mother described the father telling J off but described it as losing his temper. They are clearly not the same but the mother seemed to equate them in that way. She also demonstrated him holding J’s arms but then described it as like two men wrestling although her demonstration appeared more like a parent restraining a child having a tantrum or similar. Her language – and I don’t believe it is do with her use of English - is to describe things like this in extreme terms. A telling off is ‘losing his temper’ or ‘rage’, the father making physical contact to make J do something or to stop him hitting out or taking him to his room becomes restraint, or pushing or wrestling. They are often over-dramatised accounts often rather than frank exaggerations. I say this because when put to the test or asked to more fully explain she sometimes demonstrates or expands in a way which gives a more accurate picture. However she clearly still views them as being of a very serious nature and worthy of serious concern on her part; whilst to any objective bystander they are well within the range or ordinary parental management of a child.

So the father I conclude is a stern and exacting father figure, not as attuned to his own emotions and therefore probably not to the mother or J’s. He is too focussed on routine, and activity – keeping busy. His descriptions to professionals of J and what they did don’t bring their relationship to life although his familiarity with his sons Pokemon fascination was obviously real. They have less just chilling out and having fun. However his complete devotion and love for J were manifest both in his oral evidence but also in his communications; particularly in June 2017. He did though demonstrate some insight into his limitations when I asked him about that and seems to have reflected on what he has read and been told. Overall I thought he was generally reliable in his evidence. There are some inconsistencies between his statements but not such as to call his overall credibility into question.

The mother is as Ms Sivills described almost the polar opposite. She is obviously more openly emotional. I can see that the mother may well have adopted relatively little routine or structure to her day or to J’s and that her approach was as Ms Sivills said very laissez-faire. Given that this is the absolute opposite of Father’s approach I can imagine that firstly it would have been a source of constant friction as the father wanted to follow his routines, do certain things on certain days, have tidiness and order and the mother did not want any of this. She would undoubtedly have experienced him as over-riding her and making her adopt an approach and structure she did not really want but she would go along with it for an easier life. The father rightly identified himself as pushy, salesman type which wants to get things done and get his ‘deal’ and I believe that would be true in his dealings with Mother and with J.

M’s unstructured approach also comes across in her evidence. Her answers in evidence very often quickly drifted off the point and went into some point she wanted to make. Ms Sivills noted that she found it hard to get any real understanding of why she left J with the father for such lengthy periods – this I found also to be so when the mother was asked about a subject she felt uncomfortable with – by uncomfortable I mean she did not feel she had an acceptable answer and so she deflected. This was particularly obvious when she was asked about the impact on J or the father of her removal of J in June when time and again she changed the subject and gave answers largely unrelated to the topic. I don’t consider this was anything to do with interpretation for the interpreter was obviously highly effective. She was a less reliable witness in part because of her tendency to deflect but also as referred to above because of her over-dramatisation in her descriptions and in her reactions. The inconsistencies between her statements in respect of her views on contact and on the extent of abuse also show exaggeration and massaging of her position to create the required impression.

In her interactions with J I am sure she would be very much a passive figure, letting J take the lead – given he is only just 8 she talks of him and his views as if he were much older – almost a teenager and I believe she is indeed a very laissez-faire mother. Her evidence suggests that with her J is the one in charge. He may also feel a sense of responsibility for her which is unfair to him. He said he would like to be grown up so he could look after her. To say she wants to implement his wish to live in Hong Kong is to give responsibility way beyond his years. That approach to a child’s views was reflected by the maternal uncle who also endorsed the idea of following what the child wanted. She is very open, spontaneous and no doubt warm and loving to J. I am sure he would experience her when she is there as warm and loving and supportive of him. In contrast J would experience his father as much more disciplinarian and stern – no doubt being the one who was always telling him off and making him do things he didn’t want to whereas with his mother he could do pretty much what he wanted. That in itself would undoubtedly create problems on the home front; the mother feeling the father was too harsh and was suppressing J perhaps. The father feeling undermined and that the mother was spoiling J. In the middle would be J and who would he be likely to align himself with?

This would create an issue – indeed probably does in many families but mostly they muddle through with some compromises, some reflection that perhaps one is too strict the other too lax. But in this case there are other complexities both in terms of the parents and in terms of J. The mother clearly has a tendency to seek to escape, to avoid problems. At the lowest level this would show as generally seeking to keep the father sweet with tidiness rather than telling him to chill out. However in this case there are far more extreme examples of it; most obviously with the mother’s absences from 2014-2017. As mentioned above Ms Sivills did not feel she could get a real understanding from the mother of what led to these very prolonged absences. Her explanations have a superficial quality (see that which she gave to Ms Chow, to Ms Sivills and in her statements) relating to having to leave in December 2014, to having to have medical treatment in 2015, 2016, to seeking work but they simply do not on closer examination explain this. At Xmas 2014 I accept that the mother returned to pack and the father said don’t leave but she did – this was around J’s birthday and just before Xmas. I also accept that the father struggled to contact her and J did not have contact on Xmas Day. I understand the mother’s dilemma in one sense – she obviously had very limited means - but on the other hand I do not accept things were as bad as she paints in terms of father’s mood, temper or behaviour. She says he blew his top at some paint on the floor – if she thought his losing it was sufficient to scare J, or to put J at risk of physical harm it is inconceivable that a primary carer mother would leave her child in that situation. Her account of 3-4 times a week rages with a physical and emotional dimension are wholly inconsistent with leaving J. The only conclusion I can reach is that her account is an exaggerated or over-dramatised version. She must have considered J would be sufficiently well cared for to leave him with the father and would not suffer physical or emotional harm.

What I find much harder to understand then is the length of time she spent away. The communications between the parties – do not have a flavour of coercion, anger or indeed contrition which would be the emotions most likely to be on display if the mother’s account was right. The father was looking to the future and opening a discussion which included reference to Singapore. And so despite being on the face of it a devoted primary carer the Mother was able to keep herself away from J for several months. What J must have made of this is hard to gauge now. The father says he was very upset and didn’t really understand. I think that is likely to be true. He then saw the mother in HK/Singapore and then he flew back to UK and the mother stayed in HK – ostensibly she says to complete interviews – but she stayed 2 more months. She then returned which must have been an immense relief and joy for J but within a few months she again leaves – this time for an operation on a cyst and was gone 7 months. I do not accept either that she had to go to HK for that operation or that she needed to stay that long for medical reasons; as the evidence from the doctors shows.

So J’s mum disappeared from his life save for skype and the father became his primary carer. The extent of her absence is reflected for instance in the documents from the after school club. What went through J’s mind can be imagined. I think J must have felt confused, upset, abandoned probably, rejected perhaps by his doting mother. I got the impression when the mother gave evidence of such things that she found it hard to contemplate those deeper emotions and consequences. Whilst she is very open emotionally – I was unsure how deep those ran and how sophisticated her understanding of the impact on J. In a sense her approach is rather unsophisticated. If J says he doesn’t want to do something or is scared we take it at its face-value rather than thinking about it any deeper or thinking whether that is best in the longer term. I don’t think the mother thought about the more deep-seated emotional impact her absences were likely to have on J. The reality was that J was left by his mother for the majority of a 2 year period. This must have had consequences for him in terms of his emotional development and the relationship with his mother and his father. It also shows that by summer 2016 M was not so worried about the father F that she couldn’t leave J safely in his care albeit with support from her M. The GP report of two incidents of the father restraining J (which at worst I would characterise as rough handling). I also cannot understand why if M felt F was so abusive, controlling, abusive, explosively temperamental how she would have exposed her mother to that behaviour.

I consider when his mother did return that J must have been delighted to have his warm and relaxed mother back supporting him – but it must have created tension as by now the father would very much have firstly settled a regime and routine in their lives and would have felt the mother had little right to query it and would have felt aggrieved if undermined. That is why I believe he felt able to say to M in June 2017 she should leave it to him to explain to Social Services about their family life and that she helped him – not because he was controlling – but because he had had to take control .

That history and the parties’ personalities set up a combination which was likely to prove highly problematic. Like the introduction of reactive chemical elements to each other both Father and Mother were not compatible but the domestic situation after that 2 year history was highly combustible. J must have been either subconsciously or consciously very alive to the possibility that his mother would disappear again. I believe he would have very much wanted that not to happen and would ‘side’ with his Mother and feel closer to her. So when an incident such as that of 10 June occurred and there was talk of separation he would have been terribly anxious.

When his Father told him to go to bed on June 14^th and he refused this was a spark about to ignite the powder. Having considered all the evidence about this incident but also all the other evidence about accounts given by the mother and J about the father I think that the incident was far closer to that described by the father than that of the mother. However I think that the father has minimised it to a degree. I conclude it more likely than not that the father got cross with J and pushed him with his foot – perhaps it was too hard – perhaps he ended up standing on his arm and bruising him. It was too forceful but I am satisfied it was not the ‘repeatedly and violently kicking’ as the mother says. A kick to the face would be likely to have caused serious injury. Probably as J got up there was further physical contact. Knowing his mother would support him he goes to her and cries about daddy kicking him – after all it was contact between a foot and him so it was a ‘kick’ in a child’s mind. I don’t consider J to be lying – it is perception. How many children say things they don’t truly mean ‘I hate you’ etc. The mother who is again by this time deeply unhappy and on the verge of separating anyway takes this as the final straw and the next day goes to social services.

I am not sure what prompted her to make that approach. I wonder whether she had been discussing the situation with her family who she turns to and relies on? She had of course undertaken a counselling course and the contents of that and her lengthy meditation studies in Hong Kong may have convinced her that the explanation for her predicament was that she was a victim of coercive control. She is by this time deeply disenchanted with the father, she does see him as domineering, she has been side-lined in the care of J, perhaps she thought the bond of motherhood could never be replaced but F has done so in many ways. She doesn’t immediately leave but sees Social Services and Women’s Aid and returns home and it is only when F opens the letter and she then speaks to Women’s Aid that she is almost forced to leave by the discussions she has with Women’s Aid.

I have little doubt that M us unable to protect J or hide her feelings from him. She may not be deliberately planting poison but she is so open AND treats him as older than he is, that I am sure he has picked up not only her anger and distaste for the Father but also an element of anxiety or fear arising from her over-dramatisation. I did not detect obvious fear of the father in any of her evidence – frustration, sadness, anger but not fear in the classic sense. Certainly anxiety about his response and what would happen to her. There are examples of J saying things which it seems he could never have recalled from his own memory; the mother being strangulated by the when he was a baby as he said to Ms Chow. The mother had said it in DASH but put it many years ago which would be consistent with J being a baby), him being locked in the toilet when he was two, him being locked in a room with a snake when he was 3. These seem most likely to have been picked up from the mother and her family. As the mother said she was on the phone to her family ‘every second’ and the social worker noted that J had possibly been exposed to adult conversations. I can well understand that as the mother left the father and moved into refuge, consulting by phone or skype with family and recounting what had happened the incident which in many families might be fairly innocuous has become magnified into something it wasn’t and J’s attitude to his father moved to one where when asked about his father he would describe him as his mother would; in terms of being afraid of him.

That this is a construction is shown by how easily J readjusted when left with his father on 21^st June as observed by the social worker. That his relationship with the father was not characterised by harsh discipline, regular physical abuse, emotional abuse are I think amply demonstrated by the school report, the school discussion with the social worker, the after school club reports, the GP, Ms M. All show a child doing well, showing no signs of problems in the care of his father (and at times mother) , These are inconsistent with the mother’s account of the sort of atmosphere and behaviour she describes of Father towards her but most importantly as she says and most frequently towards J. I have little doubt that the mother and Father fell out over various issues – I believe that J was one of them. I think the nature of how these relatively minor incidents can escalate is also well illustrated by the 6 September 2017 incident when J tells his mother his father has thrown him to the floor. The mother calls the police and tells them this and that J has scratches on his knees (plural) and elbows (plural). The police attend and examine J and find one tiny graze on a knee which they are not even sure is recent. I accept the Father’s account of J behaving in a silly or slightly naughty way – probably feeling empowered by what happened in HK – the Father having none of it, J losing his grip and falling over and then running to his mummy complaining about daddy where he knew he would have a sympathetic ear.

When the mother left in June 2017 and in December 2014 I think she left because she felt she must - although objectively she did not and in that she allowed her interests to take precedence over J’s. I don’t think that she gave any thought to the medium to long term consequences for J either of her leaving or of removing him. I don’t think she planned the abduction in anything other than the day or two beforehand. She reacted to a situation but reacted extremely – perhaps another reflection of her not thinking through the consequences. The extreme reaction is a reflection of how she magnifies the problems. It can then lead her though to ignore any other consideration; whether that be the law, her prior agreement, the interests of others, the medium to long term view.

Overall I do not believe there was long term physical or emotional abuse of her or J. She called the police in 2013 after an argument which didn’t involve violence – I think she would have contacted services including police if the father had strangled her or scalded J or locked him frequently in the toilet or anything else of that nature. As I have said before if she had thought J was seriously at risk she would not have left him. The weight of the evidence, in particular from the independent sources does not support the mother’s account. Yes there may have been a power imbalance, yes the father may have been the more dominant but I do not accept that coercive control was present in this relationship which the mother was able to leave and stay away for the best part of 2 years, returning on several occasions, in which she signed up (with the father’s encouragement) for a counselling course and where she present in court both generally and in her interaction and approach to the father as the mother did.

It is against this backdrop thus that J’s narrative whilst away from the Father become divorced from the reality; where minor incidents have been magnified partly out of his fear of losing M, partly built on M openly exposing her feelings about F and sharing some stories in J’s presence, so that J expressed fear of F as that has become the narrative in the care of his Mother who he fears losing.

Thus in terms of determining whether the light touch fact-finding approach was appropriate or whether a deeper enquiry was required to comply with the FPRPD12J obligations I have concluded that the documentary and oral evidence has resulted in a clear picture emerging. Not entirely complete but clear enough to conclude that

Having dealt with those issues I turn now to the holistic evaluation of the competing proposals by reference to the FKC Payne composite. Into this section I will incorporate Ms Sivills’ evidence.

J has been spoken to by several professionals over the last 6 months. In his recent interview with Ms Sivills he spoke positively and negatively of both his parents. He enjoyed doing things with both of them. He was sad his mum went away. He was fearful of his father. He does not like living with his dad every week. He was worried what his father’s reaction to learning of his worries. He heard his parents shouting at each other.

When he drew his family he left his father out. This was when he attended with the mother. Ms Sivills did not think this was very significant. I agree – although I think it does reflect for J how his father is not a welcome part of things when he is with his mother. J says he wants to go to live in Hong Kong – he prefers his uncle to his mother and father. Interestingly his uncle is preferred to his maternal grandmother who has lived in England looking after him for lengthy periods of time.

I think J’s current expressed wish is a combined reflection of :

I don’t think J has the age or maturity to understand the impact of living in Hong Kong. He is in truth a little boy who should never have to make these choices. His school reports show he has the maturity of a 7-8 year old and one cannot expect him to express a view which can in any way really process the pros and cons of the options open to him. His views have been shaped by his exposures over the last 6 months and like my sister Judge in Hong Kong I don’t believe his expressed views should carry much weight.

From all that I have read and heard I believe that what J wants is to live with his mother and father in a conflict free world where he can enjoy activities with both and get on with school, sports and Pokemon. Where he can see his maternal family and his paternal family. He prefers his mother’s household because he it revolves around him and discipline is very limited indeed. He enjoys his father but wants him to be less strict and disciplinarian and to feel less anxious about him.

J is physically well and enjoys his food. His educational needs are those to be expected save that he will no doubt benefit from ensuring his English or his Cantonese are maintained even if he is living in a country where they are not the first language. It is emotional needs which are at the forefront of this issue. As Ms Sivills says he needs to have a continuing meaningful relationship with them in order to grow up in psychological or emotional good health. He has suffered emotionally through the absence of his mother and from his belief that his father was a figure to be feared. The separation and events in Hong Kong have added considerably to his emotional burden. As Ms Sivills identifies he doesn’t have a sibling group to share this with. His statement that he didn’t like anything about himself is worrying. If he fears his mother leaves because she doesn’t love him and his father tells him off because he is not good enough his self-esteem will suffer accordingly. Both parents need to nurture him. The difference in the parent’s styles of parenting creates a real issue. As J grows older a situation where one household and parent offers freedom and power and the other imposes strict boundaries and discipline is problematic. He is bound to come into conflict with the father who seeks to control him. Equally he is likely to walk all over his mother. Neither are good for him. Both will need to amend their styles and both may benefit from guidance. J needs to have as much that each parent can offer him in terms of emotional support to ensure as he grows from child to adolescent to man that his emotional development is as healthy as his physical. His emotional need to know his wider family will inevitably be limited by his location. One or other will play a role, one will not. In Hong Kong his maternal family will clearly offer more than the paternal family in England who are more remote.

J is facing change. If he remains in England there will be changes afoot. His mother will need to find a permanent home. That would hopefully be in the area where he can remain at his current school and continue to live with her. He will face a change in his mother becoming a single parent to him and establishing a medium to long term home here. That will have an impact on her which I will consider. I hope J will experience a change in his father too; that whilst remaining a man of routine and boundaries he will develop some softer edges and be able to take the edge off J’s anxiety. J’s experience of his mother in the last two years has been of inconstant presence. I hope that will change and that whether in Hong Kong or England she will be a constant. I shall return to this.

If he moves to Hong Kong the change will be profound. It is not a new country or environment though and I am sure he would make the transition to a new home with his mother, grandmother and uncles and to the city and community without much difficulty. He would be able to assimilate into his new school and the limits in his ability to read and write Cantonese can be managed. The mother’s plans are realistic and as it is her home country I am satisfied she can bring the physical elements to fruition. J would have the benefits of close relationships with his adored uncle, his aunt and grandmother. I believe the mother would promote both his Chinese and English heritage and language.

I conclude there would be a positive impact on his mother. She would be in her home environment. She would feel supported. I think she would find it much easier to secure work and to be happy in Hong Kong than in England. That is likely to benefit J. I think there is less of a risk of her disappearing from J’s life if she is in Hong Kong. I say less of a risk because I conclude there is still a risk that even if J lived in Hong Kong that she might leave him in the care of her mother and brother whilst she went elsewhere. This possibility arises from her actions over the last 2 years. Her explanations simply don’t persuade me that her absences from J’s life were necessary. They were her choice and I conclude there remains a risk of this. That risk is greater in England than in Hong Kong but it exists in both.

The most significant change would be in respect of his relationship with his father. Having experienced his father as his primary carer for the majority of the last two years a move from that is a big change. The evidence from the school and after-school and from all who have met J paint a picture of pleasant, shy, diffident boy who is doing as well in terms of friendships and school achievement as might be expected. Both parents have obviously contributed to this but in the last 2 years it is his father who has been the principal carer. J has experienced significant periods of time without his mother but less without his father. It is clear that the father has much to offer J – although that could be improved upon.

A move to Hong Kong will inevitably mean a profound change in the relationship with the father. I accept that it is now impractical to expect the father to return to Hong Kong and to seek to establish a new business there. From his description of his client base and the work involved it is clearly London and US centred and would involve giving up an established income and business to start afresh. At his age starting up afresh would not be easy. In other respects I think he could probably make a transition to life back there – he lived there for many years. There is a risk to his health though. He seems to be stable health wise since 2013 but a significant increase in stress which would accompany a return to Hong Kong and to seeking employment there might lead to a deterioration in his condition of the sort that occurred in 2013. So I don’t think that the father either could or should relocate to Hong Kong. That means if J moves to Hong Kong his relationship with his father will be one of international contact for 4 weeks in the summer and 1 or 2 x12 days at Christmas, Chinese New Year or Easter. That is a holiday relationship – which is what the mother thinks is the best relationship for J and the father to have. J would not grow up with them being part of each others lives, experiencing the daily ups and downs, developing and growing together as individuals. He will be a remote presence. Skype, whilst far better than the telephone is no substitute for presence waking up and preparing for school, at the school run, doing homework, participating in weekly activities, being a part of a community together. A remote and holiday presence is the best that can be achieved. That will be the case if the contact proposal is realistic and can be put in place. I consider that on a practical and financial level it can be. The father’s devotion to J is such that I am sure he will move heaven and earth to maintain the relationship. He might even consider moving to Hong Kong. Flights are expensive at holidays but I think he could manage the cost or a fund could be created from the equity to enable it. The issue in this case is whether contact would endure for other reasons; I will explore that under the risks. J will lose his relationships with his extended family although it seems they are nowhere near as deep-rooted as those with his maternal family.

J needs to grow up with exposure to both cultures that he is born from. As Ms Sivills said, being an only child in particular he will need to develop friendships and not just spend time with the adults in his life.

J has suffered harm. He suffered a bruise from the incident when his father accidentally kicked or stood on him. That is the far less worrying aspect of harm. J has in my view suffered emotional harm in the following forms

I consider there are risks to J whether he moves to Hong Kong or remains in England.

If he remains in England there are risks that the mother’s parenting will be compromised. I do not believe she will suffer a collapse. She has no history of mental illness. I think she will be able to find work and to build a life here. The absence of friendships is in part a function of her physical absence and in part a function of the rather insular style of relationship the parent had. Neither seems to draw great support from a close network of friends but rather rely on their partners. With some attention to her English through courses or otherwise I consider she would be able to obtain employment within her field. She is intelligent and bright. She will be unhappy though and inevitably that might have some impact on J. However I believe that the risks are limited in level and consequences. Involvement in the school during her week, securing work, accessing the Chinese church and community can all help in minimising any impact. She can gain some degree of support by her family visiting and by her returning to Hong Kong alone or with J.

There is an on-going risk in England of the parental conflict impacting on J. The difference in attitudes in the parents gives rise to a risk of J of being confused by different approaches or as referred to above becoming too powerful in his mother’s or too much in conflict in his father’s. There is a risk each parent will continue to see themselves as the primary carer whose decisions should hold sway. I think with work these can be managed. Having concluded that this is not a coercive control situation I do not consider the mother is at risk from that.

The far more concerning risk in my view is the risk of him losing his relationship with his father if he moves to Hong Kong. I conclude this is a very significant risk for the reasons given by Ms Renton. As things stand now I think the risk is of a very level of probability closer to near certainty than on balance. That is for the following reasons

Thus the risk is very high. The consequence in practice will be the complete termination of J’s relationship with his father. His fear will be fostered not negated by the environment in Hong Kong. Contact will not happen because J will not want to go and the mother and her family will not make him because he says he doesn’t want to and they don’t believe he should be made to. No order of a court can prevent or ameliorate this. I have doubts as to whether the mother would abide by an order of this court. Her track record suggests she will do what she considers best. Her oral evidence was that she would decide in the situation she then faced. Maintaining contact in the face of parental resistance is hard enough when the parents live in the same country; our own experience in these courts tells us this. The international dimension introduces a further level of complexity.

The loss of his relationship with his father will in my view be a very serious loss for J given what his father has to offer and the role he can play in his life.

I also consider that the impact on the father of J moving would be significant. He has built his world around J now and his emotions bubbled to the surface when he contemplated life without him.

Both parents have much to offer J. Each are capable of meeting his physical needs. They have so far brought up a child who is doing well in many ways. They are each capable of meeting his educational needs – both believe in this.

The mother in particular has the ability to provide a very warm and loving home in which J’s confidence in himself can grow. I believe the mother can co-parent with the father. Strangely they still seem at times to be capable of working together on practical issues to do with J in England. The very significant limit in the capability of the mother is her ability to truly understand the importance of J’s father to J and to meet his need to have a relationship with his father. Whilst in England that incapability is of limited impact because J will be having that relationship by order and will be thriving. The issue arises in the context of Hong Kong where that lack of capability becomes hugely significant. A return to Hong Kong will I am satisfied lead to a resurrection in full force of the mother’s concerns about the father. Whilst the mothers desire to move to Hong Kong is not motivated by a desire to end the father-son relationship a component in it is to keep J safe and to introduce a relationship that is far more limited with the express rationale that J needs to see less of his dad to be safe. That will mutate into J becoming fearful and he will not want contact and the mother will be incapable of promoting it. History will repeat itself only this time it would probably be irreversible given the father would be in England and J permanently in Hong Kong.

I believe the mother’s capability (in all save promoting the father-son relationship) would be enhanced by a return. She will be happier and feel better supported. But in particular given her own attitude and those of her family her ability to support the father-son relationship will remain seriously compromised. Neither her mother or brother can provide any sort of objective weight to bear which would be likely to improve this aspect. They feed her fear rather than ameliorating it.

The father has the ability to meet J’s emotional needs. He needs to develop a better understanding of the growing boy who is no longer an infant and to introduce some other elements to his parenting to accentuate the fun and warmth and reduce the routine and discipline. I conclude he is prepared to co-parent with the mother. His texts in June, his organising Mandarin lessons and a birthday party without reference to the mother do not in my view justify the conclusion that he will marginalise the mother and impose his will. Both parents have acted unilaterally at times. The father sometimes had to in the absence of the mother and he cannot be blamed for this. He may need to re-learn the skill of compromise and negotiation with the mother. In any event a co-parenting agreement and orders as to time would assist in ensuring co-parenting meant what it said. However if J lives in Hong Kong there is a high risk he will play no role at all.

In Hong Kong the maternal family will clearly be of great practical support. They will also help meet J’s emotional needs. The flaw in their capability is in respect of the father. They accept he is a risk. They will support J. They will not override the mother but buy into her narrative. They cannot meet J’s need for a relationship with his father.

In England the family support is less obvious. The evidence shows the paternal family have supported his parenting but only in a fairly limited ad hoc way. I do not think the paternal aunt could provide the level of support she said but then she probably does not need to with the school wrap around care and both parents being present if J is in England.

There are clearly aspects I have considered above that can be assisted by orders.

Taking into all of those factors and trying to discern which route will best promote J’s welfare has ultimately become clear. I take into account all the undulations, valleys, and peaks from the route map. If the mother had been able to promote J’s relationship with his father the balance to be struck would be much more finely balanced. I accept she would be much happier in Hong Kong and that would have benefits for J. She does not need to prove she will collapse for me to accept that remaining in England will have an adverse impact on J. She will be less happy certainly ion the short term and that will have consequences for J. However the weight that I must give to the probable loss of the father-son relationship is very considerable. That is a relationship of real value now and it can be improved on further. In England J can live a life with both parents and continue the stability he has recently found and as Ms Sivills has said from which he is benefiting. A way has been found to make it practical for the mother to remain and so Ms Sivills caveat has been filled.

Thus taking all matters into account in a holistic and non-linear way and carrying out a comparative balancing as best I can I have reached the conclusion that the balance between the two options for J is that he should make his life in England in the shared care of both his parents.

I do not intend to prolong the litigation. The shared care – week on week off regime should continue for the foreseeable future. Holidays should be shared equally. The mother should be able to take J to visit Hong Kong next summer provided there have been no intervening issues over compliance with the orders. It will be a condition of the order that the father puts into effect his financial offer.

I will hear the parties further on the 17^th January 2018 to finalise the order unless prior to that the parties agree a comprehensive order which I am able to approve.