London WC2A 2LL.
B e f o r e :
IN THE MATTER OF THE CHILDREN ACT 1989
AND IN THE MATTER OF S (A CHILD)
John Larking Verbatim Reporters
(Verbatim Reporters and Tape Transcribers)
Suite 305 Temple Chambers, 3-7 Temple Avenue, London EC4Y 0HP
Tel: 020 7404 7464 DX: 13 Chancery Lane LDE
appeared for the Applicant.
The Respondent appeared in person with a McKenzie Friend.
Crown Copyright ©
Monday, 28th September 2015.
MR JUSTICE BAKER:
'In summary, a review of the decisions of this court over the course of the last 30 years demonstrates that relocation cases have been consistently decided upon the application of the following two propositions: (a) the welfare of the child is a paramount consideration, and (b) refusing the primary carer's reasonable proposals for the relocation of her family life is likely to impact detrimentally on the welfare of her dependent children. Therefore her application to relocate will be granted unless the court concludes that it is incompatible with the welfare of the children.'
'However there is a danger that if the regard which the court pays to the reasonable proposals of the primary carer were elevated into a legal presumption then there would be an obvious risk of a breach of the Respondent's rights not only under Article 8 but also his rights under Article 6 to a fair trial. To guard against the risk of too perfunctory an investigation resulting from too ready an assumption that the mother's proposals are necessarily compatible with the child's welfare, I would suggest the following discipline as a prelude to conclusion:
(a) Pose the question, is the mother's application genuine in the sense that it is not motivated by some selfish desire to exclude the father from the child's life? then ask: is the mother's application realistic, by which I mean founded on practical proposals both well-researched and investigated? If the application fails either of these tests refusal will inevitably follow.
(b) If however the application passes these tests then there must be a careful appraisal of the father's opposition. Is it motivated by genuine concern for the future of the child's welfare? Or is it driven by some ulterior motive? What would be the extent of the detriment to him and his future relationship with the child were the application granted? To what extent would that be offset by extension of the child's relationships with the maternal family and homeland?
(c) What would be the impact on the mother, either as a single parent or as a new wife, of a refusal of her realistic proposal?
(d) The outcome of the second and third appraisals must then be brought into an overriding review of the child's welfare as the paramount consideration directed by the statutory checklist in so far as appropriate.'
'In summary, I would suggest the following considerations should be in the forefront of the mind of a judge trying one of these difficult cases. They are not and could not be exclusive of the other important matters which arise in the individual case to be decided. All the relevant factors need to be considered including the points I make below so far as they are relevant and weighed in the balance. The points I make are obvious but in view of the arguments presented to us in this case it may be worthwhile to repeat them.
(a) The welfare of the child is always paramount.
(b) There is no presumption created by Section 31(b) in favour of the Applicant parent.
(c) The reasonable proposals of the parent with a residence order wishing to live abroad carry great weight.
(d) Consequently the proposals have to be scrutinised with care and the court needs to be satisfied that there is a genuine motivation for the move and not the intention to break contact between the child and the other parent.
(e) The effect on the Applicant parent and the new family of the child of a refusal of leave is very important.
(f) The effect upon the child of the denial of contact with the other parent and in some cases his family is very important.
(g) The opportunity for continuing contact between the child and the parent left behind may be very significant.'
'141. The first point that is quite clear is that, as I have already said, the only authentic principle that runs through the entire line of relocation authorities is that the welfare of the child is the court's paramount consideration. Everything that is considered by the court in reaching its determination is put into the balance with a view to measuring its impact on the child.
142. Whilst this is the only truly inescapable principle of jurisprudence that does not mean that everything else – the valuable guidance – can be ignored. It must be heeded for all the reasons that Moore-Bick LJ gives but as guidance not as rigid principle or so as to dictate a particular outcome in a sphere of law where the facts of individual cases are so infinitely variable.
143. Furthermore the effect of the guidance must not be overstated. Even where the case concerns a true primary carer, there is no presumption that the reasonable relocation plans of that carer will be facilitated unless there is some compelling reason to the contrary nor any similar presumption however it may be so expressed. Thorpe LJ said so in terms in Payne.
144. Payne therefore identifies a number of factors which will or may be relevant in a relocation case, explains their important to the welfare of a child and suggests helpful disciplines to ensure that proper matters are considered in reaching a decision while it does not dictate the outcome of the case. I do not see Hedley J.'s decision in Re Y as representative of a different line of authority from Payne applicable where the child's care is shared between the parents as opposed to undertaken by one primary carer. I see it as a decision within a framework of which Payne is part. It exemplifies how the weight attached to the relevant factors alters depending upon the facts of the case.'
'There can be no presumptions in a case governed by section 1 of the Children Act 1989. From the beginning to the end the child's welfare is paramount and the evaluation of where the child's interests truly lie is to be determined having regard to the welfare checklist of section 1(3).'
At paragraph 61, he added:
'The focus from beginning to end must be on the child's best interests. The child's welfare is paramount. Every case must be determined having regard to the welfare checklist though of course also having regard where relevant and helpful to such guidance as may have been given by this court.'
'In the decade or more since Payne, it would seem odd indeed for this court to use guidance which out of the context which was intended is redolent with gender-based assumptions as to the role and relationships of parents with a child. Likewise the absence of any emphasis on the child's wishes and feelings or, to take the question one step back, the child's participation in the decision-making process is stark. The questions identified in Payne may or may not be relevant on the facts of an individual case and the court will be better placed if it concentrates not on assumptions or preconceptions but on the statutory welfare questions before it.'
At paragraph 27 he warned that:
''[s]elective or partial legal citation from Payne without any wider legal analysis is likely to be regarded as an error of law. In particular a judgment that not only focuses solely on Payne but also compounds the error by only referring to the four point "discipline" set out by Thorpe LJ at paragraph 40 of his judgment in Payne is likely to be wholly wrong. There are no quick fixes to be had in these important and complicated cases. The paragraph 40 discipline in Payne may or may not be of assistance to a judge on the facts of any particular case (whether there is a primary carer or not) in marshalling his or her analysis of the evidence prior to the all-important analysis of the child's welfare.'
At paragraph 30 he gave this further guidance:
'Where there is more than one proposal before the court, a welfare analysis of each proposal will then be necessary. That is neither a new approach nor is it an option. A welfare analysis is a requirement in any decision about a child's upbringing. The sophistication of that analysis will depend on the facts of the case. Each realistic option for the welfare of a child should be validly considered on its own internal merits i.e. an analysis of the welfare factors relating to each option should be undertaken. That prevents one option (often in a relocation case the proposals from the absent or "left behind" parent) from being sidelined in a linear analysis. Not only is it necessary to consider both parents' proposals on their own merits and by reference to what the child has to say but it is also necessary to consider the options side by side in a comparative evaluation. A proposal that may have some but no particular merits on its own may still be better than the only other alternative which is worse.'
At paragraph 31 Ryder LJ said:
'A step as significant as a relocation of a child to a foreign jurisdiction with the possibility of a fundamental interference with a relationship between one parent and a child is envisaged requires the parent's plans to be scrutinised and evaluated by reference to proportionality of the same'
At paragraph 32 he added:
'That evaluation will inevitably focus upon the welfare analysis of each of the realistic options and may amount to no more than an acknowledgement that one option is better than the other and that the preferred option represents a proportionate interference with the Article 8 ECHR rights of those involved.'
He suggested the court might usefully adopt a balance sheet in analysing the alternative options, although McFarlane LJ at paragraph 42 added this warning:
'Whilst I entirely agree that some form of balance sheet may be of assistance to judges, its use should be no more than an aide-memoire of the key factors and how they match up against each other. If a balance sheet is used it should be a route to judgment and not a substitution for the judgment itself. A key step in any welfare evaluation is the attribution of weight or lack of it to each of the relevant considerations. One danger that may arise from setting out all the relevant factors in tabular format is that the attribution of weight may be lost with all elements of the table having equal value as a map without contours.'
The mother's proposal.
The father's proposal
'1.3.1. In Shah v Islam the House of Lords held that the women of Pakistan constitutes a particular social group because they share the common immutable characteristic of gender. They were discriminated against as a group in matters of fundamental human rights and the state gave them no adequate protection because they were perceived as not being entitled to the same human rights as men.
1.3.2. There have been a number of legislative measures undertaken to improve the situation for women in Pakistan in recent years. However, Pakistan remains a heavily patriarchal society. Levels of violence continue to be high, being rape, "honour" crimes and killings, acid attacks, dowry disputes, kidnappings, domestic violence and forced marriages.'
'1.3.1. Simply living in an area occupied either wholly or partly by the Pakistani Taliban or other military groups does not give rise to a protection need. In general the risk from the Pakistani Taliban or other military groups will depend on the particular profile of the person, the nature of the threat and how far it would extend.
1.3.2. Primary targets include political and/or tribal leaders, security forces and minority religious groups. However, ordinary Pakistanis including students and those perceived to be opposing the Taliban and other military groups who are not following the Sharia law have also been subjected to violence by these groups. The risk will be highest in the areas where anti-Government groups are operating or have control. Those main areas [include] the KPK province.'
I note in passing that this guidance was updated and dates from May 2014.
The CAFCASS officer
Discussion and analysis
(1) a child arrangements order whereunder S shall continue to live with her mother;
(2) a specific issue order permitting the mother to remove S to Pakistan permanently;
(3) an order that the father shall have contact as follows:(a) during the summer each year for a total of six weeks' staying contact in England on dates to be agreed between the parties;(b) staying and visiting contact in Pakistan on dates to be arranged between the parties;(c) contact once a week via Skype, I would suggest for a period of not less than 30 minutes;(d) such further or other contact as may be agreed between the parties including telephone contact;
(4) I direct the mother to lodge a bond in the sum of £2000 by way of a surety to guarantee compliance with the terms of this order. I leave it to the parties to discuss the terms upon which this order should be finalised;
(5) I direct this judgment to be transcribed at the joint expense of the parties;
(6) I direct the mother to file an application in the Guardian Court in Peshawar after her arrival there with a view to obtaining an order from that court in the same terms as this order.
(7) I give permission to the parties to disclose the transcript to the Guardians Court in Peshawar for the purposes of obtaining an order in the terms of this order.
I will consider any further or ancillary orders the parties may now suggest.