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Cite as: [2012] ECHR 406

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FOURTH SECTION

DECISION

Application no. 41767/11
J.A.T. and J.B.T.
against the United Kingdom

The European Court of Human Rights (Fourth Section), sitting on 21 February 2012 as a Chamber composed of:

Lech Garlicki, President,
David Thór Björgvinsson,
Nicolas Bratza,
Päivi Hirvelä,
George Nicolaou,
Zdravka Kalaydjieva,
Vincent A. De Gaetano, judges,
and Lawrence Early, Section Registrar,

Having regard to the above application lodged on 27 June 2011,

Having regard to the decision of the President to grant the applicants anonymity pursuant to Rule 47 § 3 of the Rules of Court,

Having deliberated, decides as follows:

THE FACTS

The applicants, J.A.T. and J.B.T., are British nationals who were born in 2007 and 1975 respectively. The first applicant lives in South Africa and the second applicant, who is the father of the first applicant, lives in Kent. They are represented before the Court by Ms N. Mole of the Aire Centre, a non-governmental organisation based in London.

A. The circumstances of the case

The facts of the case, as submitted by the applicants, may be summarised as follows.

The second applicant married a South African national (“the mother”) in February 2001. In 2007 the first applicant (their only child) was born. The second applicant separated from the mother in July 2009 and their divorce was finalised in September 2010.

Following the separation, the second applicant and the mother established a fully-shared care arrangement. The first applicant spent equal amounts of time (three and a half days per week) with each parent and major events were celebrated jointly.

On 15 December 2009 the mother applied to a District Court for permission to relocate to South Africa with the first applicant. The second applicant opposed the application.

On 25 March 2010 the District Court asked the Children and Family Court Advisory and Support Service (“CAFCASS”) to prepare a report on the question of relocation. The CAFCASS officer filed her report on 10 October 2010.

The report indicated that the motivation for the mother’s return to South Africa was disputed. The second applicant believed that the principal motivation for the mother’s return to South Africa was her desire to pursue a new relationship. He was concerned about the emotional harm that separation would cause to the first applicant. He also expressed concerns that the mother’s plans appeared to be somewhat vague. The mother accepted that she had a new boyfriend (“X”) in South Africa with whom she hoped to develop a relationship on her return. However, she claimed that she had no support network in the United Kingdom and no employment prospects. As a consequence, she was unable to fund an acceptable lifestyle for herself and the first applicant. She believed that in South Africa she would have the support of her family and friends, who could also assist her in finding work.

The CAFCASS officer noted that the first applicant would likely experience feelings of loss and bereavement were he to relocate to South Africa and she suspected that he would regress severely, with the added danger of behavioural problems at home and at school. However, she believed that the good foundation he had gained from his parents should offer a reasonably good prognosis for recovery and the ability to adapt. She concluded:

“Mrs [T] has set out her plans for herself and [J] in South Africa. These are attuned to [J’s] needs and appear reasonable. In my opinion, there are areas of uncertainty, i.e. settled living arrangements, her ability to earn and provide an appropriate lifestyle, especially within a privatised system, and child care arrangements (apart from nursery). Mr [T] asserts that Mrs [T] is deeply committed to her relationship with [X] that her need to be with him will override her consideration of [J’s] needs. If this is true, this raises considerable concern. Mr [T] does not accept that Mrs [T] is unable to fund herself or obtain a good home should she remain in the U.K. He regards her as a resourceful and talented individual. He states that she has the ability to have frequent access to her friends and family in South Africa.

Recommendation

In my opinion, [J] should not be removed from the jurisdiction unless there is a cogent reason for such a removal. The viability of such a move will have to be established by the Court.”

The relevant legal test with regard to international relocation was set out in Payne v. Payne [2001] 1 FLR 1052, in which the Court of Appeal noted that such cases had consistently been decided upon the application of two propositions: that the welfare of the child was of paramount consideration and that refusing the primary carer’s reasonable proposals for relocation was likely to impact detrimentally on the welfare of her dependent children. Prior to reaching a conclusion, the court had to ask whether the mother’s application was genuine and realistic. If it was, the court had to ask whether the father’s proposal was motivated by a genuine concern for the child’s well-being or by some ulterior motive. Finally, the court had to consider the impact on the mother of refusal before conducting an overriding review of the child’s welfare. The test in Payne has been widely applied since the date of the judgment. However, in the case of Re Y (Leave to Remove from Jurisdiction) [2004] 2 FLR 330 a High Court Judge held that a case in which there was an equal shared care arrangement fell outside the ambit of Payne. He decided the case solely on the welfare checklist contained in section 1(3) of the 1989 Act and this decision was affirmed by the Court of Appeal in MK v. CK [2011] EWCA Civ 793.

On 5 November 2010 a District Judge granted the mother permission to relocate with the first applicant to South Africa. The judge noted that in the present case there was no clear-cut primary carer. However, she observed that both parents had new partners and that the relationship between them had been becoming more strained. She further observed that while each parent had equal custody, the second applicant had largely left it to the mother to make important decisions, for example concerning the choice of nursery school for the first applicant. Consequently, the judge found it probable that the terms of the shared care arrangement would change in future even if the first applicant and the mother were to remain in the United Kingdom. The judge therefore distinguished the case of Re Y and gave weight to the factors in Payne.

With regard to the questions posed in Payne, the judge considered that both parents were motivated by genuine rather than improper concerns. Although the judge noted that the mother’s plans were “fluid” and that there was an absence of any definite plans, she considered her application to have been researched and investigated. The judge accepted that relocation would have a huge impact on the second applicant, but stated that it was clear that the mother would be devastated if her application were to be refused, and that her distress would impact negatively on the first applicant. The judge also accepted that her distress would make it hard for her to obtain employment and improve her life.

Finally, the judge considered the first applicant’s welfare as directed by the welfare checklist. Although she noted that the case was very finely balanced, she concluded that the balance of the first applicant’s interests lay with relocation. In reaching this conclusion, she noted that she had considered the Article 8 interference with the second applicant’s rights but considered it justified and proportionate.

With regard to contact, the judge ordered that the first applicant was to be brought to the United Kingdom at least twice per year and the mother was to make the first applicant available for contact up to a maximum of ten periods per year in South Africa. Contact was to include one month’s staying contact in the summer and up to half nursery or school holidays either in South Africa or elsewhere.

Counsel for the second applicant advised him that any appeal against this decision would have slim prospects of success. Nevertheless, the second applicant appealed to the Family Division of the High Court. The High Court could only overturn the findings of the District Judge if it considered them to be “plainly wrong” or if the judge had approached the matter in a plainly incorrect way. As the High Court did not consider the findings of the District Judge to fall into either of these categories, it dismissed the second applicant’s appeal in a decision dated 21 January 2011.

The mother and the first applicant moved to South Africa in March 2011. The second applicant submits that they currently live in a one-room bedsit with no internet connection. As a consequence, the second applicant can only communicate with the first applicant through SKYPE when he visits his grandparents. The first applicant is attending a day care centre five days a week and the mother remains unemployed.

In July 2011 the mother brought the first applicant to the United Kingdom, where he spent one month with the second applicant.

B. Relevant domestic law and practice

The principle statutory provision in cases concerning the care of children is the Children’s Act 1989 (“the 1989 Act”). Section 1 of the 1989 Act sets out the welfare checklist. The welfare checklist provides that when a court determines any question with respect to the upbringing of a child, the child’s welfare shall be its paramount consideration. In particular, the court shall have regard to the following factors:

“(a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);

(b) his physical, emotional and educational needs;

(d) his age, sex, background and any characteristics of his which the court considers relevant;

(e) any harm which he has suffered or is at risk of suffering;

(f) how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;

(g) the range of powers available to the court under this Act in the proceedings in question.”

18. Section 13 of the 1989 Act concerns the removal of a child from the jurisdiction. It provides that where a residence order is in force with respect to a child, no person may remove him from the United Kingdom without either the written consent of every person who has parental responsibility for the child or the leave of the Court.

19. With regard to the question of relocation, the foundation of the current case-law is the case of Poel v. Poel [1970] 1 WLR 1469. In that case Lord Justice Sachs stated that:

“When a marriage breaks up, then a situation normally arises when the child of that marriage, instead of being in the joint custody of both parents, must of necessity become one who is in the custody of a single parent. Once that position has arisen and the custody is working well, this court should not lightly interfere with such reasonable way of life as is selected by that parent to whom custody has been rightly given. Any such interference may, as Winn LJ has pointed out, produce considerable strains which would be unfair not only to the parent whose way of life is interfered with but also to any new marriage of that parent. In that way it might well in due course reflect on the welfare of the child. The way in which the parent who properly has custody of a child may choose in a reasonable manner to order his or her way of life is one of those things which the parent who has not been given custody may well have to bear, even though one has every sympathy with the latter on some of the results.”

20. Following the adoption of the 1989 Act the approach in Poel was reiterated in Payne v. Payne [2001] 1 FLR 1052. Lord Justice Thorpe stated that:

“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 the 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 the 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 a 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 relationship with the maternal family and homeland?

(c) What would be the impact on the mother, either as the 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 insofar as appropriate.

In suggesting such a discipline I would not wish to be thought to have diminished the importance that this court has consistently attached to the emotional and psychological well-being of the primary carer. In any evaluation of the welfare of the child as the paramount consideration great weight must be given to this factor.”

21. Later on in the judgment the President summed up the position as follows:

“In summary I would suggest that 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 133(1)(b) of the Children Act 1989 in favour of the applicant parent.

(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 bring contact between the child and the other parent to an end.

(e) The effect upon 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 significant.”

22. The test in Payne has been widely applied since the date of the judgment. However, in the case of Re Y (Leave to Remove from Jurisdiction) [2004] 2 FLR 330 a High Court Judge held that the facts of a case in which there was an equal shared care arrangement fell outside the ambit of well-settled authorities. He therefore decided the case solely on the welfare checklist contained in section 1(3) of the 1989 Act. This decision was affirmed by the Court of Appeal in MK v. CK [2011] EWCA Civ 793, in which Lord Justice Thorpe categorically stated that Payne was based on the premise that the applicant was the primary carer and that it in no way set out the approach the court should take where there was no primary carer. In such cases the court stated that the judge should exercise his discretion to grant or refuse by applying the welfare checklist contained in section 1(3) of the 1989 Act. Nevertheless, Lord Justice Thorpe considered the test in Payne to be of continuing relevance in relocation cases. However, Lady Justice Black and Lord Justice Moore-Bick appeared to suggest that the test in Payne was “guidance” rather than principles of law from which no departure was permitted. They further suggested that the welfare of the child should overbear all other considerations, however powerful or reasonable they might be.

C. Relevant international law and practice

The United Nations Convention on the Rights of the Child provides as follows:

“Article 9

1. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child’s place of residence.

2. In any proceedings pursuant to paragraph 1 of the present article, all interested parties shall be given an opportunity to participate in the proceedings and make their views known.

3. States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests.

... ... ...

Article 10

... ... ...

2. A child whose parents reside in different States shall have the right to maintain on a regular basis, save in exceptional circumstances personal relations and direct contacts with both parents. Towards that end and in accordance with the obligation of States Parties under article 9, paragraph 1, States Parties shall respect the right of the child and his or her parents to leave any country, including their own, and to enter their own country. The right to leave any country shall be subject only to such restrictions as are prescribed by law and which are necessary to protect the national security, public order (ordre public), public health or morals or the rights and freedoms of others and are consistent with the other rights recognized in the present Convention.

On 23-25 March 2010, more than fifty judges and other experts from Argentina, Australia, Brazil, Canada, France, Egypt, Germany, India, Mexico, New Zealand, Pakistan, Spain, United Kingdom and the United States of America, including experts from the Hague Conference on Private International Law and the International Centre for Missing and Exploited Children, met in Washington, D.C. to discuss cross-border family relocation. The principles agreed on are known as the Washington Declaration on International Family Relocation. The Washington Declaration provides that:

“Factors Relevant to Decisions on International Relocation

3. In all applications concerning international relocation the best interests of the child should be the paramount (primary) consideration. Therefore, determinations should be made without any presumptions for or against relocation.

4. In order to identify more clearly cases in which relocation should be granted or refused, and to promote a more uniform approach internationally, the exercise of judicial discretion should be guided in particular, but not exclusively, by the following factors listed in no order of priority. The weight to be given to any one factor will vary from case to case:

i) the right of the child separated from one parent to maintain personal relations and direct contact with both parents on a regular basis in a manner consistent with the child’s development, except if the contact is contrary to the child’s best interest;

ii) the views of the child having regard to the child’s age and maturity;

iii) the parties’ proposals for the practical arrangements for relocation, including accommodation, schooling and employment;

iv) where relevant to the determination of the outcome, the reasons for seeking or opposing the relocation;

v) any history of family violence or abuse, whether physical or psychological;

vi) the history of the family and particularly the continuity and quality of past and current care and contact arrangements;

vii) pre-existing custody and access determinations;

viii) the impact of grant or refusal on the child, in the context of his or her extended family, education and social life, and on the parties;

ix) the nature of the inter-parental relationship and the commitment of the applicant to support and facilitate the relationship between the child and the respondent after the relocation;

x) whether the parties’ proposals for contact after relocation are realistic, having particular regard to the cost to the family and the burden to the child;

xi) the enforceability of contact provisions ordered as a condition of relocation in the State of destination;

xii) issues of mobility for family members; and

xiii) any other circumstances deemed to be relevant by the judge.”

COMPLAINT

The applicants complained under Article 8 of the Convention that the granting of leave to the mother to remove the first applicant from the jurisdiction infringed their right to respect for their family and private life. In particular, they submitted that the English law on relocation in force at the time and applied to them did not permit appropriate weight to be given to the gravity of the interference with either of their rights under Article 8 of the Convention.

THE LAW

The applicants complained that the decision to grant the mother permission to relocate to South Africa with the first applicant violated their right to respect for their family and private life under Article 8 of the Convention.

Article 8 of the Convention provides as follows:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

The Court observes that the second applicant did not seek permission to appeal to the Court of Appeal against the decision of the High Court as he did not consider that such an appeal would have had any prospect of success. The Court has on occasion found that where an applicant is advised by counsel that an appeal offers no prospects of success, that appeal does not constitute an effective remedy (see Selvanayagam v. the United Kingdom (dec.), no. 57981/00, 12 December 2002; see also H. v. the United Kingdom, cited above; and McFeeley and others v. the United Kingdom, no. 8317/78, Commission decision of 15 May 1980, Decisions and Reports (DR) 20, p. 44). Equally, an applicant cannot be regarded as having failed to exhaust domestic remedies if he or she can show, by providing relevant domestic case-law or any other suitable evidence, that an available remedy which he or she has not used was bound to fail (Kleyn and Others v. the Netherlands [GC], nos. 39343/98, 39651/98, 43147/98 and 46664/99, § 156, ECHR 2003 VI; Salah Sheekh v. the Netherlands, no. 1948/04, §§ 121 et seq., ECHR 2007 ... (extracts)). That being said, the Court has consistently held that mere doubts as to the prospects of success of national remedies do not absolve an applicant from the obligation to exhaust those remedies (see, inter alia, Pellegrini v. Italy (dec.), no. 77363/01, 26 May 2005; MPP Golub v. Ukraine (dec.), no. 6778/05, 18 October 2005; and Milosevic v. the Netherlands (dec.), no. 77631/01, 19 March 2002). However, in the present case the Court does not have to take a stand on the exhaustion of domestic remedies as it finds the complaint under Article 8 to be inadmissible for the reasons set out below.

It is clear that the applicants had established a family life with each other and that the removal of the first applicant from the jurisdiction amounted to an interference with their right to respect for their family life. However, it is equally clear that the mother’s relocation to South Africa with the first applicant was authorised by the domestic courts and pursued the legitimate aim of protecting her rights and freedoms. The principal issue to be determined is therefore whether the interference was “necessary in a democratic society”.

The Court reiterates that the question whether an interference was “necessary in a democratic society” requires consideration whether, in light of the case as a whole, the reasons adduced to justify the measures were “relevant and sufficient” and whether the decision-making process was fair and afforded due respect to the applicants’ rights under Article 8 of the Convention (K. and T. v. Finland [GC], no. 25702/94, § 154, ECHR 2001 VII).

In considering the reasons adduced to justify the measures, and in assessing the decision-making process, the Court will give due account to the fact that the national authorities had the benefit of direct contact with all of the persons concerned. It is not the Court ‘s task to substitute itself for the domestic authorities in the exercise of their responsibilities regarding custody and access issues (see, amongst many authorities, T.P. and K.M. v. the United Kingdom [GC], no. 28945/95, §§ 71-72, ECHR 2001 V (extracts) and R.K. and A.K. v. the United Kingdom, no. 38000/05, § 34, 30 September 2008). Indeed, the Court recognises that decisions concerning international relocation raise difficult questions for decision-makers because they involve a delicate balancing exercise between the rights of each parent and the rights of the child and any decision made will almost certainly constitute a significant interference with the rights of at least one of the parties. Consequently, the domestic authorities enjoy a wide margin of appreciation when conducting such a balancing exercise and the Court will only interfere with a domestic decision in the circumstances indicated at paragraph 29, above: where the reasons given are not relevant and sufficient, or where the decision-making process is not fair or fails to afford due respect to the rights of all of the parties.

In its current state English law gives great weight to the reasonable proposals of the primary carer. However, it is clear from the comments of Lord Justice Thorpe in Payne that there is no legal presumption that his or her wishes will be granted. Rather, the test in Payne not only requires the domestic courts to consider the Article 8 rights of the non-applicant parent, but it also requires that they prioritise the best interests of the child. Consequently, it could not be said that the test in Payne does not afford due respect to the rights of the child or the rights of the non-applicant parent.

The Court recalls that in the present case the District Judge gave weight to the factors established by the Court of Appeal in Payne despite the non-existence of a primary carer. She did so because she did not accept that the shared care arrangement could continue indefinitely as both parents had new partners and there had recently been some deterioration in the relationship between them. In making such an assessment the District Judge had the benefit of first-hand contact with both parents and it would not, therefore, be appropriate for the Court to carry out its own assessment of the evidence. It therefore accepts that the District Judge was entitled to reach this conclusion.

Moreover, the Court does not consider that the manner in which the District Judge applied the test in Payne can be criticised. She properly considered the wishes of the applicant mother and the impact refusal of the application would have on her; she considered and prioritised the best interests of the first applicant; and she considered the proportionality of the interference with the second applicant’s rights which would result from the removal of the first applicant from the jurisdiction. In reaching her conclusions the District Judge took full account of the CAFCASS report. She accepted that the first applicant’s relocation to South Africa would be likely to have a negative impact on both him and the second applicant, but she concluded that in the circumstances of the case, and in view of the expert evidence available, that relocation would still be in the first applicant’s best interests.

Consequently, the Court considers that the reasons given by the District Judge for granting the mother’s request were relevant and sufficient and her conclusions were within the margin of appreciation of the Contracting State. Likewise, the decision-making process was fair and afforded due respect to the rights of the applicants.

The foregoing conclusions are sufficient to enable the Court to conclude that the applicants’ complaints under Article 8 of the Convention are manifestly ill-founded and therefore inadmissible.

For these reasons, the Court unanimously

Declares the application inadmissible.

Lawrence Early Lech Garlicki
Registrar President