England and Wales Family Court Decisions (High Court Judges)

IN THE FAMILY COURT
SITTING IN SHEFFIELD

		The Law Courts Sheffield
		03/02/2016

The Honourable Mr. Justice Cobb:

1. AZ is just two years old. She is the only child of Polish parents, who lived together for only a few months of her life, and were never married. AZ was born in England and currently lives with her mother ("the mother") in Sheffield; she enjoys regular staying contact with her father ("the father"). There are cross-applications before the court: an application by the father for a child arrangements order, dated 2 October 2014 (which has in part been determined), and an application of the mother, dated 29 September 2015, by which she seeks permission of the court to move AZ to live with her in Poland.
2. By this judgment, I set out my reasons for acceding to the mother's application.

Background

3. The mother is 39 old; she was born in Poland, but has lived in England since 2010; her parents ("the maternal grandparents") continue to live in Poland. The father is 27 years old; he has lived in England for some considerable time and his parents ("the paternal grandparents") also live here.
4. The parties met in 2010, and cohabited from 2011 until 2014. AZ is their only child; the parents separated when she was 6 months old. The father is in a new relationship with a Polish national, and lives with her and her 10-year old child. There are disputes about the nature of the parents' relationship, and controversy around the reasons for its ultimate demise. The mother contends that the father was emotionally and financially abusive and controlling towards her; the father maintains that the relationship was adversely affected by the troubled mental health of the mother. To an extent these issues are relevant to the application I must decide, and I refer to them later. A specific fact-finding hearing was initially ordered for the court to investigate the mother's complaints of abuse, but then vacated when the parties agreed that determination of the facts would not affect the principle, or indeed the progress, of contact.
5. The father worked on and off throughout the parties relationship, and is currently a courier; the mother worked on her arrival in the UK and for much of the relevant period, but has not worked since the birth of AZ.
6. When AZ was 4 months old, the mother and AZ travelled to Poland for a holiday, returning after 8 weeks or so. On her return, she maintains (the father does not materially dispute) that he informed her that the relationship was at an end. After the separation of the parents in the summer of 2014, the mother spent some time in a refuge in Sheffield. There was a hiatus in the father's contact with AZ, and in October 2014, the father made an application for a Child Arrangements Order (section 8 CA 1989) seeking 'shared care' of AZ, together with prohibited steps order (that the mother be prohibited from removing AZ from the jurisdiction). It is sufficient for me to record, for present purposes, that a gradual introduction of contact was agreed, initially with supervised contact at a contact centre (ordered 16 October 2014); by July 2015 overnight contact had been agreed.
7. In March 2015, the mother indicated a wish to travel to Poland again to see her parents; this was not in the end feasible, as AZ's passport had been destroyed by one or other parent in the course of an argument at the point of their separation, and the father prevaricated (so I find) over its replacement. This left the mother not just disappointed; it fed her sense of isolation.
8. Under current agreed arrangements, AZ spends one weekend per fortnight (two nights) with her father, and alternate Thursdays (also overnight); this arrangement has been in place since October 2015. By agreement, AZ enjoyed a 4-night visit with her father at Christmas 2015. The paternal grandmother is present for much of the time when AZ is in the father's care. On 9 July 2015, an order was made that AZ live with her mother; a review was listed for October. Whether that review of 'contact' was entirely necessary or appropriate (see PD12B para.15.3), as it happens, it proved to be fortuitous because in the meantime, the mother issued an application for permanent leave to remove.
9. Her application sets out the following narrative:

"I cannot continue to live in this country. I am isolated and I suffer from depression. In Poland, I will have support from my parents and family members. In this country, I have few friends. My main sources of support are workers attached to the Domestic Abuse Refuge and I know their involvement must come to an end. In Poland, I have a large extended family and many friends. I am in a precarious situation with regard to my benefits. I have been assessed as fit for work and I cannot continue to claim jobseekers allowance as I have not continuously worked in the UK for five years. I do not know how I will manage to live. I will suffer financial hardship.… The Respondent's grandparents live just 30 km from my parents' home. The respondent regularly travels around Europe.… He can visit [AZ] on a regular basis. I feel trapped in this country and recently I have met with racism aimed at me and my daughter stop this is having a further negative impact on me."

10. In determining this application, I had the benefit of reading the statements of the parties, and hearing their oral evidence. The Family Court Adviser also gave evidence. Both parties were ably represented by counsel.

The law

11. There is only one key authentic legal principle engaged in a case of this kind, and that is that the outcome for AZ must be governed by what is best for her. There is already a Child Arrangements Order in place, and the application is therefore one to which section 13 applies. Although section 13 is governed by the welfare principle in section 1(1)(a) CA 1989, the 'welfare checklist' in section 1(3) is not a necessary part of the court's analysis on a section 13 application. That said, the welfare checklist is well recognised to be a useful cross-check of the relevant issues for my consideration. In considering this application, I am guided by the Court of Appeal's recent pronouncements in K v K (Children: Permanent Removal from Jurisdiction) [2011] EWCA Civ 793, [2012] Fam 134, Re F (A Child) (Relocation) [2012] EWCA Civ 1364, [2013] 1 FLR 645 at [37], and Re F (International relocation cases) [2015] EWCA Civ 882.
12. Each case has to be determined by reference to its own facts. In K v K Black LJ said (145) that

"The ways in which parents provide for the care of their children are, and should be, infinitely varied. In the best of cases they are flexible and responsive to the needs of the children over time. When a relocation application falls to be determined, all of the facts need to be considered."

13. The authority on which both counsel specifically relied was Re F [2015] (above) from which I extract the following significant passages. Ryder LJ in Re F at [28] and [30] said this:

"[28] Given the agreement of the parties to an holistic approach to the court's welfare analysis, I need to set out what that involves. The re-crafting of section 8 orders from residence and contact into child arrangements orders has inter alia the benefit of emphasising, absent adverse circumstances and welfare conclusions, the equality of parental responsibility that each parent has. Parents are to be expected to exercise their autonomy and to respect the autonomy of their children by entering into arrangements that plan for their children's long term welfare by providing for a meaningful relationship between each adult and each child.

[30] Where there is more than one proposal before the court, a welfare analysis of each proposal will 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 side-lined 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 merit on its own may still be better than the only other alternative which is worse".

14. McFarlane LJ indicated the use of 'holistic' ("the 'h' word" as he described it [51]) in recent Court of Appeal authorities (adopted by counsel in their arguments in Re F) was not intended to be a term of art or designed to change the law, but was simply used to describe:

"'the old-fashioned welfare balancing exercise', in which each and every relevant factor relating to a child's welfare is weighed, one against the other, to determine which of a range of options best meets the requirement to afford paramount consideration to the welfare of the child. The overall balancing exercise is 'holistic' in that it requires the court to look at the factors relating to a child's welfare as a whole; as opposed to a 'linear' approach which only considers individual components in isolation" [48]

He added that in a case of international relocation:

"… [T]he factors that must be given due consideration and appropriate weight on either side of the scales of the welfare balance may be such as to require an analysis of some sophistication and complexity. However, whatever the issue before the court, the task is the same; the court must weigh up all of the relevant factors, look at the case as a whole, and determine the course that best meets the need to afford paramount consideration to the child's welfare. That is what, and that is all, that I intended to convey by the short phrase 'global, holistic evaluation'". [50]

The mother's case

15. The mother apparently signalled her intention to apply to relocate to Poland in November 2014 in discussion with the Family Court Adviser in the first round of litigation concerning child arrangements for AZ (November 2014). However, in her statement following that discussion (December 2014) she said this:

"I confirm to the court that I do not have any wish or intention to move to Poland in the immediate future. There are no plans in place for this to happen.… I have seriously considered moving back to Poland as I would like to be near to and have the support of my family but if this happened it would not be for at least a couple of years' time… I would like to visit my family in Poland…"

16. Within nine months, the mother made the application which is now before the court. As indicated above, the essential reason for the application is that she asserts that she is lonely, isolated and feels trapped in England. She is currently in receipt of benefits, and modest child support from the father. The mother has been receiving assistance from HomeStart which has:

"…been supporting the mother for approximately 12 months, during that time they feel that her self-confidence has improved and she is much more able to manage her own situation. Initially she had been withdrawn and lacking the skills to interact with other adults; she would isolate herself rather than meet with others." (Cafcass report)

17. The mother fears a deterioration of her mental ill-health if she is required to live here. The mother has filed a letter from her GP which records the following:

"[The mother] has been diagnosed with a reactive depression. This started in 2014 (when she was registered at a different GP practice) and has been documented on our system here since March 2015. The vast majority of her depression has been as a result of a traumatic split with her ex-partner… And her strong desire to return to Poland with [AZ] and feeling rather "trapped" here in the UK until that is possible. She has been suffering with low mood, anxiety and feeling of despair. She has been greatly helped by occasional visits from her mother. She was referred briefly to our counselling service here at the practice and she has remained on the antidepressant treatment…which was started before she registered here with us.

18. The mother complains of having experienced racism here recently, which she has found upsetting.
19. The mother wishes to be able to benefit from the help of her parents in managing her own life, and in the upbringing of AZ. She proposes to live with her parents at their flat in Walbrzych; the maternal grandparents have confirmed their willingness to support this arrangement. The maternal grandmother (aged 64) came to England to help the mother after AZ's birth, and has spent much of the last five months in England supporting her daughter; this reflects favourably on her commitment to support the arrangements going forward. She was assessed by the Cafcass officer to have a warm relationship with AZ. The maternal grandfather (72) has had some health difficulties (cancer in 2002), but has obviously been able to look after himself while his wife has been here with their daughter and granddaughter. There is a wider maternal extended family in the local area. The mother has identified a local kindergarten and school for AZ; she does not envisage any difficulty in obtaining employment, and would not have to pay for childcare given the commitment of her parents. Although wages in Poland are (by the standards of remuneration reasonably achievable in the UK) low, so is the cost of living.
20. The mother maintains that she has always sought to promote contact between AZ and her father provided it is "safe and appropriate". While she would obviously have preferred a slower expansion of the contact over the last 18 months, the successful development of the father's time with AZ over this relatively short period reflects well the mother's ability to promote that relationship.
21. As to the detail of future contact, the mother proposes that AZ should have contact with the father once per month, in Poland, and has agreed that AZ should spend one week with the father in England in the Christmas holidays 2016, and again in Easter 2017 and summer 2017. This is – to the mother's credit – more extensive contact, at an earlier point in time, than the programme proposed by the Family Court Adviser. Members of the paternal family reside within a relatively short travelling distance of the maternal grandparents' home and (according to the mother) have offered their homes to accommodate the father and AZ in the event that they visit for contact; indeed it is said that members of the paternal family actually support the mother's application to relocate. The mother has offered members of the paternal family in Poland the chance to visit AZ weekly.
22. Because of her depression the mother currently receives Employment and Support Allowance, and £40 per month child support (the mother says that she spends £30 of that facilitating contact); she has accumulated £700 savings having lived 'on a shoestring'. Although the father has alleged she is financially profligate and irresponsible, recent evidence would suggest on the contrary that she is thrifty and resourceful.
23. In evidence she declared rather trenchantly her 'right' to reside where she wishes, and I detected a slight sense of incomprehension that anyone should consider otherwise. Her attitude reflected a rather rigid sense of entitlement, and perhaps a lack of appreciation of other important interests including those of AZ's father.

The father's case

24. The father harbours hopes for a shared care arrangement in which he can spend more time with AZ; he told the Family Court Adviser that he would ideally likely to be AZ's primary carer. He is, in my judgment, genuinely fearful of a significant diminution in his relationship with his daughter; indeed he fears a virtual eradication from her life.
25. The father told me that he always believed that the mother would want to return to Poland once they separated. In his January 2015 witness statement the describes a conversation which took place between them in August 2014 thus:

"We spoke for another hour… she would try to sort out her life in England and if she was still not happy here she would go back to Poland and we would think when and how I can meet with [AZ]. We shook each other's hands and I left to [go] home".

26. While not disputing that the mother is depressed, the father does not accept the mother's sense of isolation, and challenges the attribution of her depression to her living in the UK. He invites me to accept that the mother is just as likely to be depressed in Poland as she is or has been here, and that if depressed in Poland, the health services would be likely to treat her less sympathetically, that supports and medication are less likely to be available, and that the mother is more likely to find herself hospitalised for treatment in this way he fears that she will expose AZ to greater levels of disruption and substitute care. The father believes that the mother has underestimated her eligibility to financial State benefits here, and has over-stated her case that she is likely to be more financially secure in Poland. The father doubts that the maternal grandparents (by reason of their age, health, and the limited financial standing) will be able to offer the level of support which the mother will reasonably expect of them if she is to work. The father believes that educational and employment opportunities abound in the UK, and that many nationals from Poland, recognising this, are leaving their home country to travel here. She fears that AZ will miss out on these opportunities if she is raised in Poland.
27. The father works as a courier, and earns reasonably well. He makes a full contribution to the outgoings on the home which he shares with his fiancée, and buys items for her child. Although the father pays £40 per month for AZ (as mentioned above), he says that he has offered more (he said £135pcm) but this sum has been refused. £135 would, in my view, represent a more realistic assessment having regard to his means. The mother disputes that she has been offered more; I am not able to find one way or another (this point arose after the mother had completed her oral evidence), but the father's account helpfully marks his estimation of what he believes he ought to have paid, and what he may realistically be able to contribute to her in the future. He is accordingly theoretically 'in credit' to the mother's child support account. The father has been able to save £500; the father told me that he has been able to make meaningful payments towards his step-child.
28. The father has a degree of flexibility through his work and will I consider be able to visit Poland reasonably easily on a monthly basis, even if that means taking a day or two from work; this much is confirmed by his employer. However, the father doubts the practicality or financial feasibility of the contact proposals. He further maintains that due to a family feud, he could not currently stay with his own grandparents who live close to the mother's family.

Cafcass

29. In January 2015, a section 7 report was ordered on the issue of child arrangements. This report recommended regular and increasing contact for the father. The recommendations of this report were accepted by the parties. When the mother issued her application for leave to remove, the court ordered (8 October 2015) a further Cafcass report, focused upon this issue. The report in question is dated 13 January 2016. The Family Court Adviser was called to give evidence.
30. The Cafcass report recommended that the application should be granted and that the mother should be permitted to take AZ to reside in Poland. The Family Court Adviser's recommendation includes the following passage:

"… [T]he effect on the mother being forced to stay in England would, in my opinion, be devastating. I have no doubt that her unhappiness, sense of isolation and depression, would be enhanced to a degree which could well be damaging to [AZ] whose welfare is, of course, the paramount consideration. If any single factor needs to be considered, it is that the future happiness of AZ will be best assured by her being brought up in a place in which the mother is not just content, but happy..… The mother is meeting all the needs of her daughter and I feel that she should be allowed to be able to do so in the future, in the area of her choice."

"I am of the opinion that the application by the mother is genuine and not motivated through selfish reasons to exclude [AZ] from her father's life. She has provided to the court comprehensive details of the practical proposals should she be allowed to return to Poland."

31. In relation to the father, and the facilitation of his time with AZ he said this:

"I feel that he has a good relationship with [AZ] and this could continue even if she was resident in Poland; there are frequent flights that are available that would allow him to visit regularly. The extended paternal family would be able to provide extensive details of [AZ] and how she was progressing and this would go some way towards enabling the father to be aware of any progression during the period that he was not spending time with [AZ].… I am of the opinion that arrangements could be made for the father to spend time with [AZ], and the mother has offered to finance the travel costs…. I am of the opinion that the application by the mother is genuine and not motivated through selfish reasons to exclude [AZ] from her father's life. She has provided to the court comprehensive details of the practical proposals should she be allowed to return to Poland. I am of the opinion that the mother should be allowed to return to Poland with AZ and that the father should be able to spend regular time with her."

32. In my view the Family Court Adviser had not conducted a sufficiently balanced ('holistic') welfare analysis in this case with the care which I consider is necessary. In the report there is surprisingly no specific reference to the section 1(3) welfare checklist or indeed to its component parts. While understandably attaching weight to the obvious concerns about the mother's mental health and its impact (or potential impact) on her ability to care for AZ, I had a sense that the Family Court Adviser allowed this issue to assume disproportionate significance among other important relevant (but perhaps neglected) considerations. Specifically, I felt that there was relatively limited analysis of the potential losses to AZ from the proposed relocation, and a rather uncritical acceptance of the mother's case about the feasibility of contact. He accepted in his oral evidence (when cross-examined) that the reduction in contact would represent a "backward step" for the father and AZ, and would have a "significant bearing" on their relationship. He referred in his evidence to indirect contact, but adverted to the use of social media and WhatsApp – hardly appropriate for a child of AZ's age. He felt that AZ should not come to England for contact until she was five years old; he was concerned about the risk of the father unlawfully retaining her here (for which he did not provide any evidence as such), and seemed unaware of the protections offered by the 1980 Hague Convention. A further matter of concern is that the Family Court Adviser used language in his report which is more redolent of the Payne v Payne guidance (which now has to be seen in the context of K v K and Re F (above)), and which may have reflected an outdated appreciation of the current law.
33. At the conclusion of his evidence, in answer to one of my questions, the Family Court Adviser told me that he did not think that the mother viewed contact between AZ and the father as an "absolute priority" – a point of obvious concern to the father (and to the court) but which was disputed by the mother. It was surprising that this important consideration had not made its way into his written report, or his analysis.

Discussion

34. I am dealing in this case with the international relocation of a very young child. AZ is a Polish child born to Polish parents; her mother speaks little English (and gave her evidence through an interpreter), her father speaks English well but heavily accented. He currently lives with a Polish fiancée. While AZ happens to have been born in England, she has no English language, education, nor friends. She has not integrated here in any meaningful way; she is not a dual nationality child in the sense in which that phrase is commonly known.
35. AZ has a good attachment with her mother (according to the Family Court Adviser), and there is no reason to doubt that she has a positive relationship with her father, achieved through regular contact. It is abundantly in her interests for her to continue to build and maintain a solid and enduring relationship with both of her parents throughout her life. Mercifully, she has been largely insulated, thus far, from the acrimonious separation of the parents.
36. She has been raised for the whole of the last two years in the primary care of her mother who has it appears met her needs well. That is no small achievement for a mother who has in that period been suffering, I am satisfied, from a marked reactive depression. That depression, I am equally satisfied, has been caused or materially contributed to by her isolation in a country where she has virtually no friends, no family support, limited linguistic familiarity, and no work. The key adult relationship in her life here, with the father, is tense and highly conflicted.
37. In my judgment it is perfectly natural that in these circumstances the mother would want to return to her native country, to the familiar environment of her home town, to her friends, work and importantly to her family. In fairness, the father himself recognised this too, illustrated by the 'agreement' on which they shook hands in August 2014, and indeed by his oral evidence before me. I am satisfied that the mother will find it easy to settle back in Poland, and her vulnerability to further episodes of reactive depression will be significantly reduced than if she remains here.
38. I have considered whether the mother is simply seeking to run away from her difficulties here, and whether she may in fact encounter similar difficulties back in Poland. Although she suffered depression in the past in Poland I am satisfied that this was reactive to a specific (identified) trauma in her life (a miscarriage). In pursuing her objective, I consider that the mother has done all she can to set in place arrangements in Poland for nursery, schooling, and substitute care when she herself is working.
39. A move of AZ to Poland would come at a significant price for her in her relationship with her father; the father would pay a similar price. The contact which has been developed over the last 18 months would have to be significantly reduced, and there is every reason to suppose, regrettably, that the quality of their relationship would be adversely affected now, and in the future. Frankly, this would be an inevitable consequence of the mother's proposed plan. I think that the Family Court Adviser had proper cause for believing that the mother did not regard the father's contact as an "absolute priority"; this was of a piece with the mother's expressed resentment at what she saw as interference from the father (and possibly the court) in not being able simply to pack her bags and 'go home'.
40. That said, I am satisfied that the mother recognises that an order is likely to be made for contact if she is permitted to take AZ to Poland, and there is no reason to doubt on the evidence before me that she would comply with it. I was impressed by the fact that the mother was prepared to contemplate a higher degree of contact than the Family Court Adviser had recommended. An order made here would be readily recognised and enforceable under the provisions of BIIR (2201/2003) as she well knows. The practical arrangements for contact under her proposal (monthly in Poland, with holiday stays in England during holidays with effect from December 2016) are reasonable; flights are reasonably cheap, and both are in a position (and currently sufficiently motivated) to offer to contribute half of the cost. In my judgment, and as indicated above, the father is in 'credit' for the rather paltry sum he has been paying the mother by way of child maintenance since their separation, and is therefore well able to make his due contribution.
41. It is to AZ's advantage that she has wider family on both the maternal and paternal sides in Poland. It would plainly be in the father's interests (and AZ's) that he can resolve the family differences with his grandparents (the feud does not directly affect him anyway), so that he can (for as long as they live reasonably locally) see them and stay with them – with AZ – on visits to Poland. To the mother's credit, she has already discussed with the paternal family a proposal for them to have regular visits with AZ, a sure way of maintaining links for AZ with her father, through family. In this way, the risk of the father being 'side-lined' (Re F [30], see [13] above) would be significantly mitigated.
42. International relocation cases of this kind are always difficult for the parties, and indeed for the court. The stakes are high. Almost invariably and understandably the central issue polarises the parents, who find it hard to contemplate an adverse outcome of the litigation; they tend firmly to entrench themselves through their evidence in defence of their own positions. Inevitably at the conclusion of the hearing, one parent is left feeling utterly dejected. In a family where resources are tight, the prospect of funding international travel for continuing contact may seem daunting, even unachievable. These features characterise this case.
43. Having considered the competing options in the round, and having faithfully applied the paramountcy principle, I am of the clear view that it would be in AZ's interests that her mother be permitted to remove her to live permanently in Poland. While acutely conscious of the significant diminution of her relationship with her father which will be caused by this move, I consider that the losses to AZ were she to remain living here would potentially be much greater – deteriorating health of the mother, with a correspondingly elevated risk that the mother would become emotionally unavailable to her. This permission is granted on the strict condition that the contact proposed by the mother is facilitated as she proposes, and as I have set out above: I regard it as important that AZ has the chance to visit her father in England, and it seems sensible to initiate that programme of visits after she has had chance to settle in her new home; a Christmas holiday visit in 2016 will fall shortly prior to her third birthday. This frequency of contact is crucial in preserving the vital relationship which AZ currently enjoys with her father and her paternal family. In addition to the direct contact, there will be indirect contact by way of Skype, and in due course, other means. I will grant the necessary certificate to confirm the authenticity of the order under the regulation.
44. The parents will contribute one-half each to the cost of the father's flight to Poland each month at the cheapest available fare, and to the cost of AZ and an accompanying adult, when AZ comes to England for holiday times. As the father is significantly in credit in relation to what he believes he should have paid to the mother by way of child support, and as he has family in Poland with whom he can probably stay from time to time in any event, the responsibility for covering any cost of his accommodation when he travels to Poland for contact will fall to him.
45. Both parents agree that AZ should have a Polish passport. The necessary forms are now at court for them to sign; I trust that this will now be done without further difficulties.
46. That is my judgment.