England and Wales County Court (Family)

Neutral Citation Number: [2009] EWCC 1 (Fam)

IN THE COUNTY COURT

2^nd November 2009

HIS HONOUR THE JUDGE

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RE:  A

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Transcribed from tape by Cater Walsh Transcription Ltd.,

1^st Floor, Paddington House, New Road, Kidderminster DY10 1AL

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JUDGMENT

HIS HONOUR THE JUDGE:

1.           This is an application by the mother in this case for leave under section 13(1)(b) to remove a child permanently from the jurisdiction of England and Wales.  I mention the jurisdiction because the child in question, who I will simply call A, was born here on [a date] and has been habitually resident here but is in fact a Polish National.

2.           The fact is that when A was born, and at the time that the father in this case made an application for a contact order and a prohibited steps order, A was definitely habitually resident here and had been since his birth. 

3.           A brief history of this matter is that the mother, who is also a Polish National, had been working in the United Kingdom to improve her English, to gain experience, and to be able to send some money home to her family.  She was staying with her brother, who was also at that time working in the UK but he has now left.

4.           As for the father, he came to the UK from Bangladesh in 2004 and is currently an over-stayer in the sense that his visa and permission to remain here has expired and he therefore has no right to remain. However, he applied on 20^th March 2009 for leave to remain in the United Kingdom.  The United Kingdom border agency initially said that it was unable to give a date for determination of this application, but now says that it would be able to do it within a matter of days of knowing the outcome of this application to relocate.

5.           The relationship between the father and the mother was shortlived. They did not live together and, of course, they were never married, but the mother became pregnant and in due course decided to return to Poland, ostensibly for a visit rather than permanently.  However, the father took proceedings in the High Court because he was concerned that she was not going to return with A, although in fact in June of this year she did.

6.           The present position is that the mother has no job, no means of support and wants to return to her family in Poland.  The father initially opposed this because it would be very difficult for him to exercise contact in Poland due to his very reduced financial circumstances, and more particularly because of problems with his immigration status.  If he were to leave the UK he would not be allowed to re-enter.

7.           However, the current position has changed as a result of discussions between the parties and is now this.  The court has been provided with extensive statements from both the mother and the father, as well as a very helpful report from the Guardian, and immediately prior to this hearing skeleton arguments from the mother and the father.  The Guardian rightly identified the case of Payne v Payne [2001] 1 FLR 1052 as the guiding authority in the situation that prevails.  I will do no more than refer in this short judgment to what Lord Justice Thorpe had to say at paragraph 40 and what the President, then Lady Justice  Butler-Sloss had to say at paragraph 85, that advice was followed by the Guardian and, I hope, has been followed by not only the parties, but the judge in this case.

8.           The situation then is that the mother is undoubtedly to be the primary carer and, indeed, it is part of the outcome of this hearing that there should be a residence order in her favour.  There has never been any dispute that that should be the position.  Her family support here is, as I have indicated, non-existent; her knowledge of English is somewhat limited, and in fact she had asked for an interpreter to be present today; she only ever expected to be here in the UK on a semi-temporary basis and, of course, no doubt whilst she was single and childless.  The present position is that she has no income here, there is no financial support from the father for reasons I will mention in a moment, and she is currently dependent on the charity of friends whilst this case is being resolved.  All that indicates that A’s welfare, it seems to me, indicates most strongly that he should be cared for by his mother and the only practical solution to that is in his own country.

9.           As for the father, his immigration status is uncertain.  He has no income because he is not allowed to work.  The UK, of course, is not his homeland and may never become so, and I have to take into account the fact that his application is motivated in part to strengthen his application to remain in the UK so that he does at least have the means of exercising contact to A, because if he returned to Bangladesh that prospect would become even more distant.

10.        All parties recognise the strength of the mother’s case that she should return to Poland, she and A being Polish Nationals and with no particular link with the United Kingdom.  I am quite convinced that a refusal of her application would be devastating for the mother and effectively leave her destitute here.  The only reason for such a conclusion would be to put the father’s desire for contact above the welfare interests of the child, and it is the welfare interests of the child that must be the guiding determination in this situation.  That has been recognised by the father and, to give him all due credit, he has accepted that an order should be made allowing mother, not only to have a residence order, but for the court to allow her to return to her own country with A.  By consent a fairly complicated contact order has been made which will enable him to enjoy contact if he is in a position to arrange it, either in Poland or in the UK.  That is an arrangement which, after some discussion and amendment, I am able to support and endorse, and is the reason for the making of the order that I do today.

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