SITTING AT THE ROYAL COURTS OF JUSTICE
Strand, London, WC2A 2LL
B e f o r e :
|- and -
||Respondent and Cross Applicant
Ruth Kirby and Michael Edwards (instructed by Sears Tooth) for the Respondent and Cross Applicant
Hearing dates: 16-19 April 2018
Crown Copyright ©
Mr Justice Mostyn :
"These cases are particularly traumatic for the parties, since each of them conceives so much as being at stake. They are very, very difficult cases for the trial judges. Often the balance is very fine between grant and refusal. The judge is only too aware of how heavily invested each of the parents is in the outcome for which they contend. The judges are very well aware of how profoundly the decision will affect the future lives of the children and how difficult it will be for the disappointed parent to adjust to the outcome."
So here. The parties have invested vast amounts of emotional (as well as monetary) capital in their respective cases. Having had the advantage of reserving judgment for a week and having carefully considered all the evidence, written and oral, as well as the very extensive written and oral submissions by counsel I have come to the clear conclusion that the best interests of these children requires that the mother's relocation application is dismissed and that the children resume their life in London under their mother's primary care, but with very frequent contact to their father. This outcome is aligned with the recommendation of the Independent Social Worker Ms Sandrini. It also is aligned with the opinion of the mother's own mother as well as that of the children's nanny VV.
"The problem with the attribution of great weight to this particular factor is that, paradoxically, it appears to penalise selflessness and virtue, while rewarding selfishness and uncontrolled emotions. The core question of the putative relocator is always "how would you react if leave were refused?" The parent who stoically accepts that she would accept the decision, make the most of it, move on and work to promote contact with the other parent is far more likely to be refused leave than the parent who states that she will collapse emotionally and psychologically."
Eight years on, during which time a lot of relocation water has flowed under the jurisprudential bridge, I remain firmly of the same view.
"G wishes to relocate with the children to California in order to live with her fiancé who is a Ukrainian national but has lived in California for the last five years and runs a business there. G and her fiancé intend to rent a family home in Los Angeles. G plans to relocate in summer 2017 before the start of the new school year."
The letter went on to make proposals for the father's contact which on any view were unreasonably restricted. She proposed two weeks of summer contact; five days at Christmas; and day visits (but not overnight) in Los Angeles. Not very surprisingly these were not agreed by the father. At a round-table meeting on 4 May 2017 the father withdrew his agreement in principle and signified his opposition to relocation in California. This seems to have provoked a major and rapid change of direction in the mother's planning.
"I reported to G after our meeting [on 4 May 2017] and confirmed to her that R's position is that he would not consent to the children relocating to California. G has given the matter careful thought since our meeting and there have also been personal developments for G and her fiancé which are relevant to their choice of country of residence. After much thought, G and her fiancé have decided that they wish to live in their home country, Ukraine. Indeed, G's fiancé has already returned to the Ukraine where he is now based.
I am instructed that G wishes to return to Ukraine to live permanently with her fiancé and to be closer to her family and friends and her support network for G wishes to have more children and to start her family with her fiancé soon. She will be able to continue to run her business remotely from Ukraine, just as she would have from California. G's fiancé has an office for his business in Ukraine and is able to run the business from there as he is from California. In addition, G's fiancé's mother has been unwell and he wishes to return to be close to her during the next few years. G very much wishes to support her fiancé in this, and also wishes to return to her home country and to be close to her parents and other family members."
In fact, as mentioned above, the mother and S had by then already embarked, as it happens successfully, on achieving a planned pregnancy. The letter enclosed a copy of the application for permission to relocate which had been issued on 23 June 2017.
"This is to certify that GT (hereinafter referred to as the patient) was an inpatient at the [redacted] maternity hospital between 28.11.2017 and 30.11.2017 inclusive, diagnosed with: pregnancy III, 26 – 27 weeks. Threat of premature birth, positive somatic history (gestational diabetes, mellitus, euthyroidism). During this time, complete examination took place (clinical and biochemical), consultations with the therapist, psychiatrist and midwife. Based on this, the patient is recommended protective regimen (limited physical exercise, consultation with a psychologist), psychoemotional calm, appointments with the midwifery section of the [redacted] maternity hospital at least once a week. Flying is counter indicated until the birth."
i) The mother's application for adjournment of the substantive hearing;
ii) The mother's application for interim order providing for temporary removal of the children, allowing their retention in Ukraine until the substantive hearing;
iii) The father's application under the inherent jurisdiction for the immediate return of the children;
iv) The father's application to freeze the mother's London property.
"This decision is made without prejudice to the court's consideration of the mother's substantive application for leave to remove the children from the jurisdiction and the father's application for a child arrangements order, which will be determined at the hearing in April 2018. The court's conclusions as to any matters of fact as set out in the judgment of 6 December 2017 (sic, recto 7 December) are a summary assessment on the papers before the court made for the purposes of the decisions required to be made by the court today. Those conclusions were based upon reading the documents in the court bundles, and upon the written and oral submissions advanced by leading counsel for each party. It is not intended that any such findings should in any way restrict or constrain a further examination of these matters at a full hearing upon oral evidence."
"I have not been able to gain an accurate measure of S. He has availed himself to be interviewed and has been courteous but he has been reluctant, resistant and evasive about his past business involvement in about his finances, his demeanour changing to borderline aggression to any questions he considered to be personal. He has also been reluctant to consider the implications of the court refusing G's application to relocate"
I note from paragraph 6.5 that S has now changed his position to one of refusal to relocate to London in any circumstances. It is noteworthy that in this paragraph and in paragraph 6.3 he now appears to be saying that he would separate from the mother, and even seek to retain custody of IV, were her application to be refused. His reluctance to provide proper information about his business is very striking. It is clear that he still retains his interest in the American cybersecurity business for which he will have to travel every three months to the USA. He was not able to explain why it would be impossible to run his new gaming business remotely even in circumstances where he will have to travel great distances from Kiev to his artistic designers who are based nearly 500 km away in Kharkov.
"I am lucky to have a very close relationship with my mother the children absolutely adore her and call her "[redacted]". We often holiday together and in fact she came to see us in London this August when we returned from our holiday in Turkey. It brings me great pleasure to see the enjoyment my mother gets from doting on her granddaughters who in turn adore her."
Yet, in recent times a deep fracture has arisen in this relationship so much so that the mother has had virtually no contact with NT for months; the girls have not seen their grandmother in Ukraine with their mother; and remarkably NT has not met her new grandson IV. Equally remarkably, NT was not informed of the marriage of her daughter to S. Apart from one occasion when the nanny VV allowed the girls to meet their grandmother in Kiev the only contact between her and her grandchildren has been during the father's periods of contact in London. Although the mother said all the right things about her hope for reconciliation I have my serious doubts whether this will happen as the rupture seems very deep and the hostility very fierce. The upshot of this view is that NT now very firmly supports the father's case. She has been interviewed by Ms Sandrini and the supplemental report records NT saying that "she made a fundamental error of judgment by endorsing S and believing that it would be in S's and V's interest to move from London to Kiev." She explicitly blames S as the cause for the estrangement. She explains that her contact with her daughter decreased rapidly as soon as she and S began to live together. She described S as an egotist, and spoke of her fear of the consequences for her daughter and the children from a man who is self-centred and controlling. I have to say that these statements have reinforced the inference I have drawn that S and the mother have something serious to hide.
"If the children stay in Kiev they are not as happy because they are restricted in every way. They don't communicate with other children. They only see children in kindergarten … They have no proper social life they don't see any other children."
i) There is no evidence that the mother was homesick when married to and living with the father. She did not want the marriage to end, and had it not ended the life she now describes as lonely and isolated would be continuing. I cannot see why it would be different if she lived in her new home with her daughters, S and IV.
ii) The purchase of a £9 million home in January 2016 in London is not a step you would expect someone desperately homesick to take.
iii) The mother's first proposal was to relocate to California, not her native Ukraine.
Fundamentally, I agree with Ms Sandrini when she said that in her opinion the mother's case was 90% about S, not about Kiev.
i) The children will have a better life in London, there is better schooling, a social infrastructure and cultural opportunities like museums and theatre. They are able to see their friends after school in Hampstead because everyone is nearby unlike the school proposed in Kiev.
ii) He is not confident the mother will comply with the decision of the court. He believed she only complied with the order following the FHDRA because it was in her short-term interests to do so.
iii) He said that S is a mystery.
iv) He said that if there are problems with S in London he will be more readily available to remedy them.
v) He also relied on the reduction of contact because he would not contemplate any mid-term week-end contact either in London or Kiev. In my judgment those reasons were spurious and I place no weight on them.
vi) He said under cross-examination: "The most important thing is the happiness of my children. They would not be happy in Kiev."
i) The requisite travelling was very tiring for the children. She explained that this level of travelling was not child focused.
ii) Any contact with their father in an agreed location like Kiev or Vienna will not be of the same quality as contact in London where the children can be around the father's family.
iii) Contact with their father "little and often" is very important and that infrequent but long visits will not foster the same relationship.
iv) The reduced role of the children's nanny, VV. The children had been very close and she would have been a protective part of the move.
v) The fractured relationship between the mother and the maternal grandmother. She had been one of the closest people to the children in Kiev and they now were completely estranged.
I accept Ms Sandrini's evidence and recommendation. However, that is not the only basis on which I make my decision. An important reason for refusing the application is that I am satisfied that I have been presented with a manipulative and contrived case which is wanting in candour, as I have explained above, and that there has been an arrogant and contemptuous disregard for the court's authority. This has led me to have very serious concerns as to the likelihood of the mother's compliance with orders for contact in favour of the father in circumstances where she is within the sphere of influence of S who plainly has an extremely negative view of the father. I have no reason to think that contact enforcement litigation in the Ukraine would be any more fruitful or efficient than it is in this country.