England and Wales Family Court Decisions (other Judges)

IN THE NEWCASTLE UPON TYNE COUNTY COURT

		The Law Courts The Quayside Newcastle-upon-Tyne NE1 3LA
		26th February 2014

1. THE JUDGE: These proceedings concern two boys: L, born on 21^st November 2003, age 10; and J, born on 10^th October 2004, age 9. Their parents are GL, aged 28, and PC, aged 29, who I will refer to as 'M' and 'F' respectively, or 'the parents' collectively.
2. F is the adopted brother of AC (aged 40), who is married to CC (aged 38). Their daughter AL is now 18. On 11^th February 2008, AC and CC became the special guardians of L and J. I will refer to AC and CC as 'SG1' and 'SG2' respectively, or collectively as 'the SG' in this judgment. The substantive application for my determination at this hearing is the application by the SG for permission to relocate permanently with the children to Australia. As will become apparent, this issue cannot be seen in isolation from the other proceedings which have been before the court concerning the children since the special guardianship orders were made and ongoing issues relating to contact between the children and their parents and the maternal grandmother, PaC, who is also a party to the proceedings and who I will refer to as 'MGM' in this judgment.
3. Following the making of the special guardianship orders there were ongoing proceedings in relation to contact. On 5^th June 2012, the SG applied to adopt the boys, including a plan to emigrate to Australia. In response to this, MGM applied for permission to apply for a residence order. The case first came before me for directions on 24^th August 2012. At that stage, in the light of the complexities of the issues and with the agreement of the parties, I joined the children to the proceedings and appointed a Children's Guardian from CAFCASS to represent their interests. Gaynor Taskas is their Children's Guardian (who I will refer to as 'the CG' in this judgment).
4. On 1^st May 2013, I gave the SG permission to withdraw their adoption applications in circumstances I shall return to later in my judgment. The issue of relocation remained a live issue, together with associated contact arrangements.
5. The application to remove from the jurisdiction came before me for final hearing on 11^th December 2013. Following an overnight adjournment from 12^th to 13^th December during the CG's evidence, Mr Twist, representing the SG, applied for an adjournment to allow a further social work witness, Nicola Reed, to attend to give evidence. In circumstances which I will explain later in this judgment, I acceded to this application, which necessitated an adjournment until I could next accommodate the case in my list, on 17^th January 2014. I was able to conclude the evidence that day, but there was insufficient time to hear submissions. I directed written submissions and now give judgment on 26^th February 2014, the first opportunity I have had to do so as a result of my other listing commitments.
6. I have been aware of the impact of delay for L and J in circumstances in which they are aware of the proposed move to Australia and have been anxious to know my decision. It was nonetheless necessary, in my judgment, to delay the decision to ensure I had heard all the relevant evidence in the light of the magnitude and significance of this issue. My decision will have profound consequences for L and J as well as all of the adults concerned.
7. Relations between the SG on the one hand, and the parents and MGM on the other, have been strained to say the very least throughout my involvement in the proceedings. There are many factual disputes between them. It is not necessary to resolve all of those issues, only those I consider capable of resolution and relevant to the issues for my determination. Insofar as I make any findings, it is for the person making an allegation to prove it and I decide all factual issues on the simple balance of probabilities.

The Early Years

8. Care proceedings were issued by Sunderland City Council ('SCC') in respect of L and J on 21^st March 2007. The boys had been in M's care but had experienced inconsistent and neglectful parenting, as a result of which they had been cared for within the extended family for periods. In February 2007, L and J were placed in the care of the SG where they remained. The SG were joined as parties to the care proceedings. The Local Authority did not support placement of the children with either of the parents. During the course of the care proceedings, assessments were undertaken of the SG as well as a maternal aunt and uncle. Although both assessments were positive, placement with the SG was preferred because of their parenting experience.
9. On 11^th February 2008, the care proceedings concluded with the making of the special guardianship orders by consent. An interim contact order was made which included provision for contact with M, F, and the extended maternal family. The order provided for contact to take place on two weekends out of four. It appears that difficulties emerged in relation to contact soon after the special guardianship orders were made.
10. A final contact order was made on 29^th October 2008 providing for M and F each to have monthly contact for two hours supervised by the SG, with supervision to continue as long as the SG considered it necessary. The order provided for the extended maternal family, including MGM, to have contact not less than four times a year supervised by the Local Authority.
11. By autumn 2009, there were difficulties in the contact arrangements for L and J and the parents. There is no agreement between the relevant parties about the circumstances of this. A chronology of contact prepared by M's solicitor records that F's contact was terminated or suspended by the SG in October 2009 and that they reduced M's contact to once every two months in November 2009. For their part, the SG's case is that F failed to attend contact and that the contact with the maternal family was undermining the children's placement with them.
12. In April 2010, F issued an application for variation of contact. The SG were then seeking a cessation of the contact with the extended maternal family. M issued an application in relation to her contact seeking enforcement and, it appears, variation of the order dated 29^th October 2008. A CAFCASS report was ordered on the question of contact which was duly prepared by Ged Hennessey, Family Court Advisor. On 22^nd December 2010, an order was made by consent providing for M to have contact four times per year with a potential for an increase to six times a year and for F to have indirect contact with a prospect of a progression to direct contact. The issue of contact with the extended maternal family was considered at a further hearing on 17^th January 2011. MGM and the maternal aunt and uncle were joined. Ged Hennessey was directed to file a further report.
13. On 6^th September 2011 a family assistance order was made for twelve months providing for Ged Hennessey to continue his work with the family. By this time, J had stopped attending contact. The order recorded the intention to arrange a family group conference during the currency of the family assistance order. In January 2012, Ged Hennessey wrote to the court requesting a review hearing due to difficulties that had arisen in relation to the family group conference. He had then been made aware of the SG's intention to emigrate to Australia.
14. By early February 2012, the SG had approached the Local Authority seeking support for funding of their legal fees to pursue adoption applications in relation to the boys. Once that application for funding was approved they gave the Local Authority notice of their intention to adopt L and J.
15. Directions were given on 20^th March 2012 for the SG to file position statements in relation to their planned emigration to Australia. On 5^th June 2012, the SG issued the adoption applications in respect of L and J. On 12^th June 2012, MGM's application for leave to apply for a residence order was filed. The case then came before a Deputy District Judge on 2^nd August 2012. His order recorded that, in addition to the applications already filed, M and F were also intending to make applications in relation to their contact. He referred the case for directions before a Circuit Judge.
16. It was in these circumstances that the case came before me for the first time on 24^th August 2012. My order recorded the various applications then before the court and which were anticipated: the adoption applications and MGM's application for permission to apply for a residence order had been issued; applications by the SG for permission to remove from the jurisdiction, together with contact applications from M and F were anticipated. My order recorded that MGM did not pursue her application for permission to apply for a residence order in circumstances in which the SG had confirmed they would not move to Australia without L and J. She nonetheless had a clear continuing interest in the proceedings and was therefore joined as a party.
17. In addition to these various applications, a further potential complication was raised at this hearing in relation to a fracture sustained by J in January 2012 in the SG's care and the possibility that the court would be asked to consider whether that injury was non-accidental. At a later stage in the proceedings it was accepted that this was not an issue.
18. At a case management hearing on 22^nd October 2012, I gave directions for the instruction of a clinical psychologist, Estelle Louw, to assess the children and the relevant family members. The case was timetabled to a final hearing in March 2013, although the timetable was later revised to a hearing on 29^th April 2013.

The Adoption Applications

19. A statement filed by SG2 on 30^th April 2012 made reference to the close nexus between the SG's desire to move to Australia and the adoption applications. She set out the case for the move to Australia and went on to put forward the argument that adoption orders were required for the move to be 'completely successful', so they had the full range of decision-making powers of parents to the exclusion of others.
20. Her next substantive statement is dated 10^th April 2013, filed in advance of the final hearing listed on 29^th April 2013. In this statement SG2 set out the case that she and SG1 believe that adoption orders should have been made in 2008, rather than special guardianship orders. She said that she and SG1 told both the social worker and children's Guardian in those proceedings that they wanted to adopt the children and that they intended to emigrate, but that they were advised by those professionals to accept special guardianship orders and not to mention the plan to emigrate. Neither the relevant social worker, Lyndsey Davison, nor the Children's Guardian from those proceedings, Julie Collins, accept that they were either aware of such a position on the part of the SG, even less that they advised them to keep quiet about their true plans.
21. During the hearing I was provided with a copy letter dated 27^th February from Jenny Parkin, the Adoption Service Manager, in response to a complaint by the SG in which she confirms this to be Lyndsey Davison's position and that there was no evidence on the Local Authority files that this did happen. She also stated, however, that a finance clerk employed by the Local Authority, who had dealings with the SG in relation to the financial aspects of their care of the boys did recall the SG telling her of their plan and that they had been advised by the social worker and the children's Guardian to keep it quiet.
22. The enquiries by the CG of Julie Collins confirms her position that she too denies either being aware of this plan on the part of the SG or giving the advice suggested by them. It is neither necessary nor possible on the evidence before me to make any findings in relation to this. On the SG's account, however, they had a clear wish to adopt the boys at that early stage. It may well be significant that they had decided to adopt and had started the process of assessment as prospective adopters in 2003 or 2004 (and therefore long before there was any question of them caring for L and J), having failed to have a further pregnancy after their daughter's birth.
23. Before leaving that letter, I should record one further aspect of its content which has clearly assumed significance for SG2, from the evidence I heard. She made reference to the reported view of the social worker that, in hindsight, she considered adoption may have been more appropriate than special guardianship. For my part, I doubt very much that a court would have considered adoption to be in the best interests of L and J, either at that time or with the benefit of hindsight. A family placement such as this is precisely the sort of situation special guardianship was designed for, to avoid the distortion of family relationships through adoption.
24. The parents and MGM were unsurprisingly opposed to the adoption applications. Estelle Louw's report was completed on 24^th March 2013. Her report supported the proposed adoption of L and J by the SG, which she understood would allow them to proceed with their plan to emigrate without the need for any court approval. The CG reported on 22^nd March 2013. She did not support the adoption applications but supported the application for permission to remove the children from the jurisdiction to allow them to move as a family to Australia. The CG recommended that further work be undertaken with the parties before the move, with a view to addressing the continuing difficulties between them in the hope of improving the position of the boys.
25. The Local Authority Annex A reports were prepared by Nicola Reed, an independent practitioner employed by SCC on a contract basis to undertake such pieces of work. The reports, dated 8^th April 2013 in each case, supported the proposed adoptions with indirect contact by means of three letters or Skype calls each year.

The Hearing in April 2013

26. Estelle Louw was due to give evidence on the second day. I heard evidence from SG1 on the first day, which has since been transcribed and forms part of the court bundle. He gave evidence at some length and reinforced the SG's case of their wish to adopt, their plan to emigrate, and their belief that ongoing direct contact between the boys and the parents and maternal family was not in their best interests. As he said in terms at the end of his evidence, he did not see any positives for the boys in the contact they were having with those family members.
27. Estelle Louw came to court to give evidence the following day. Before the hearing resumed she informed the parties that her recommendation had changed in the light of the updating documents she had received since she completed her report. In due course I was provided with an addendum report in which she said she no longer supported adoption, having read the report of the CG and having not understood the proposed emigration could proceed without adoption orders being made.
28. The SG asked for and were given some time for reflection, after which I was told that they were no longer pursuing their adoption applications, which they considered to be unrealistic without the support of Estelle Louw. I was told that they nonetheless wished to pursue their application for removal from the jurisdiction, but that they recognised that the work identified by the CG (and supported by Estelle Louw) needed to be undertaken before the court would properly be able to determine that issue. At the request of the parties I gave further time at court for them to discuss how this outstanding work should best be done.
29. On 1^st May 2013, I made an order giving the SG permission to withdraw the adoption applications. That order recorded that the Local Authority was to be involved in the outstanding work as within the ambit of the support services under the special guardianship regulations. I gave further directions on 23^rd May 2013 relating to the work to be undertaken by the Local Authority and timetabled the case to an issues resolution hearing on 4^th November 2013.
30. I had therefore heard SG1's evidence in support of the adoption application before the application was withdrawn. I had not heard from SG2, but was told at the time I was asked to give permission for the applications to be withdrawn that she was extremely upset by the developments in the case. As I recall it, her distress was such that she felt unable to be present in court. I did hear evidence from SG2 in December 2013, when it was evident to me that the ending of their apparently longstanding desire to adopt the boys had had a significant and continuing impact upon her. At times she was very obviously upset when she was asked about this.

The Plan to Emigrate

31. The SG's case is that this is a longstanding desire on their part. They agreed that the impetus originally came from SG2 but both say that it has been their joint aim for a considerable time. Their daughter is also said to be very keen to live in Australia, having visited previously. The SG have extended family (SG1's sister and her husband and children) and also friends who live in Western Australia in the area the SG would plan to live. M, F and MGM first became aware of the plan to emigrate at the time of the family group conference in January 2012.
32. Neither SG1 nor SG2 had visited Australia before their application was made to court. SG1 had, however, made a successful VETASSESS application between 2009 and 2010, a certification procedure for those seeking to emigrate to Australia with particular skills. SG1 is a joiner by trade, although he apparently has wider skills in the building trade. At the time the case was before me in April 2013, the SG's case was that there was a pressing need for the issue of relocation to be determined without delay, as SG1's points - and therefore their eligibility - would reduce after his 40^th birthday in September 2013. At the hearing in December 2013 their evidence was that their application would not be compromised by his age, as he had other assets which would attract points for different reasons. This changed position was not based on any different evidence to that previously provided.
33. On 28^th December 2012, SG1 filed a statement which had a dossier attached, described by him as prepared by him and SG2, particularising their proposals for their emigration. Surprisingly, this detailed and apparently comprehensive document records at paragraph 2.2 (C46):

'The SG have already taken their family to visit family in the area and have had the opportunity to view firsthand what the area has to offer. Apart from the good supply of excellent housing, schools and services, the SG have a ready-made support network here.'

This was patently untrue. The family had not visited Australia. Their teenage daughter had visited with other relatives in or about 2011 but neither SG1 nor SG2 had been to Australia by that time. In the event, SG1 visited with L and J for a holiday during the summer of 2013. The SG said in their evidence that this trip was arranged as they had been criticised for the fact they had not visited before. SG2 did not accompany them as she was apparently - and I have no reason to doubt - unable to get the time off work. SG2 has never been to Australia although she was, at least initially, the driving force behind the planned move.

34. In the event that permission to remove the children from the jurisdiction is granted, the SG envisage that it would take them between six months and two years to complete the necessary steps before they could move to Australia (on the assumption that their visa applications are granted). The visa application process is costly (several thousand pounds, and more if an agent is used), as a result of which they would only start this process if permission to remove the children is granted. The SG envisage that SG1 would travel ahead of his wife and the children, who would follow once he has found suitable work and accommodation.
35. Their daughter, who is now 18, is exploring the possibility of moving to Australia with her boyfriend. In her statement dated 10^th April 2013, SG2 said she did not know how she would cope if her daughter went to Australia in circumstances in which the family were not given permission to go. She said it would be very upsetting for L and J. At C93 (paragraph 9) of this statement SG2 said:

'Adoption and emigration would, we believe, bring an end to the risk of any other application from the parents and maternal family which could destabilise the boys in our care and it would give us a fresh start'.

36. She continued in paragraph 26 (C97) as follows:

'If we are to remain in England, all I can see ahead is continuation of an endless hopeless cycle of conflict and litigation with the maternal family over their contact, over our judgments and our choices for the boys, and over the slightest incident. This has had a harmful effect on the boys and it will continue to harm them.'

The SG do not expect to make trips back to the United Kingdom if they are granted permission to relocate to Australia. Their proposal is the boys would have contact with their family in England by means of Skype and letters.

38. A possible alternative plan has emerged during the course of the proceedings should permission to remove the children from the jurisdiction be refused. During a conversation with the CG, SG2 indicated an intention that the family would move to the south of England (it appears in fact to be the Midlands), to be closer to her family and also to curb further applications from the family as a result of the distance and cost implications. Surprisingly, during the CG's discussion with the SG it was apparent to her that SG1 was not aware of his wife's plan. This was not disputed by the SG in their evidence. This alternative plan apparently remains an option they would consider if they are not given permission to emigrate to Australia. Once again, SG1 is evidently less enthused about this possibility than his wife.
39. SG2 is on all accounts, including her own, a strong-minded and vocal woman, who is not afraid to articulate her views. She has been described by those involved with the couple as the stronger personality of the two, which certainly appeared to be the case from these examples and also from my assessment of them and the evidence I heard from them.

The Contact Arrangements

40. It will be evident from what I have already said that contact has been the focus of ongoing conflict and dispute between the SG and the parents and maternal family. The difficulties in contact between the boys and their parents in 2009 and 2010 coincided with the VETASSESS process being undertaken with a view to progressing the plan of emigration. Whether there is any direct connection between the two is not clear, but the negative view that the SG had of contact between the boys and their parents and maternal family is not in dispute.
41. The evidence given by SG1 at the hearing in April 2013 that he saw no positives in the contact whatsoever was entirely representative of the views then put forward by him and SG2 at that time. The children's attendance at contact (and particularly in the case of J) was inconsistent. They had only had indirect contact with F for some considerable time. From May 2013, it was agreed that CAFCASS would be involved in the facilitation and supervision of contact to provide an independent overview of the quality of contact, to encourage J to attend contact and to reinstate direct contact between the boys and F in accordance with their wishes. Much of this work has been undertaken by Alyson West, a family support worker with CAFCASS.
42. The CG's views in relation to this contact are set out in her report dated 6^th December 2013, sections 4 and 5 (at D364-366). The contact is reported to be extremely positive for the boys. For reasons connected with F's circumstances, the recommendation is for his contact to remain supervised. In the case of the maternal family, the CG's view was that there was no need for supervision. Contact with the maternal family progressed to unsupervised at the end of 2013. A significant feature of contact, however, has been the tensions witnessed by CAFCASS at handovers, with the children visibly distancing themselves from the maternal family, particularly in SG2's presence, and evidently anxious about her presence.
43. Until December 2013, the evidence of both the SG was that the quality of contact was seen as positive because of the circumstances in which it was then supervised by CAFCASS. The statements they each filed before the hearing in December 2013 expressed their reservations about unsupervised contact taking place while life story work was undertaken with the boys.
44. In her report dated 6^th December 2013 the CG expressed the following views in relation to contact. In paragraph 3.5 (D363) she said:

'I remain concerned that the SG do not truly accept the value of ongoing contact between the children and their birth family. Sadly, they have not evidenced an ability to promote positive contact arrangements of their own volition and will seek for contact to be reduced should their application [for removal from the jurisdiction] be granted.'

45. In paragraph 3.6 at (D363-364) she continued:

'The longstanding difficulties in organising and maintaining simple contact arrangements has been evidenced during CAFCASS facilitation of contact since May 2013. In essence, SG2 struggles to relinquish control over the children even during the limited confines of contact and becomes highly critical of professionals and family members. This appears to be adopted as a diversionary tactic rather than addressing the real issues relating to contact. The tone and content of SG2's statement dated 13th November 2013 is indicative of a tendency to misrepresent information, unnecessarily complicate arrangements, and overreact to minor adjustments which must be expected when dealing with children's lives. Sadly, the SG have yet to evidence their ability as special guardians to value the children's birth family and appropriately moderate contact arrangements to meet the changing needs of the children. Therefore, should the application be refused, any future contact arrangements will need to be clearly defined by the court.'

The Work Undertaken by the Local Authority

46. In April 2013 the Local Authority agreed that further work should be undertaken by the Authority as a result of its responsibilities under the special guardianship regulations. It was agreed by the Local Authority that two workers would be involved, Nicola Reed, to continue with the (SG following on from her completion of the Annex A reports), and another worker, Kirpal Bassi, to work with the other relevant family members. The work was to focus on the following areas from their different perspectives: the understanding of each other's roles in the children's lives; to help them understand the children's needs of all the adults in their lives; to assist with feelings of loss - for the birth family in relation to the placement with the SG, and in the case of the SG with the failure of their plan to adopt; and, finally, life story work with L and J.
47. The joint report of Nicola Reed and Kirpal Bassi, dated 13^th November 2013, records the work undertaken. Nicola Reed provides information from her visits to the SG on 30^th May, 1^st August, 13^th September, 26^th September, 6^th October and 24^th October 2013. At the third of these visits, on 13^th September 2013, the SG agreed and signed a plan of the work to be undertaken.
48. The record of the session on 26^th September 2013 recorded Nicola Reed's view that the SG had displayed the ability to move forward in many ways but were still understandably coming to terms with the loss of the failed plan of adoption. She recorded that the family were focusing on the plan of emigration to Australia. Nicola Reed referred to them as focusing on the future rather than historical events, in contrast with their earlier position.
49. It was not considered necessary by any party, or indeed by me, for M, F, or MGM to give evidence at the hearing. In these circumstances, on the second day of the hearing in December 2013, and having completed the evidence of the SG, the CG gave evidence. At the end of that day, her examination in chief was completed and Mr Twist had started to cross-examine her. She had been asked about the work undertaken by the Local Authority with the SG and their positive perception of the progress. It was following the evidence of the CG, reporting her perception of the work undertaken and the extent of the progress, I was asked the following morning to allow Nicola Reed to be called. In the light of the evidence I had then heard, and the importance of the issues addressed by Nicola Reed (in relation to the progress or otherwise of the SG in their acceptance of the birth family's role in the children's lives), I agreed she should be called, notwithstanding the delay that would necessarily cause.
50. Nicola Reed gave evidence when the case resumed on 17^th January 2014. She said this was the first time she had undertaken such a piece of work. She said she noticed a change at her fourth meeting on 26^th September 2013 at which point she said the SG were able to accept that they were not the boys' parents. It was evident from her evidence that Nicola Reed considered that the SG have made progress. She said she had spoken to the CG about this, but said she did not think the CG had always taken it on board.

The Evidence of the SG and the CG

51. SG2 was the first witness to give evidence on 11^th December 2013. This was my first opportunity to see and hear her give evidence. She was evidently upset at times during her evidence, notably when she was asked at different times about the withdrawal of the adoption applications and their acceptance (by that I mean her and SG1) that they are not the boys' parents. Otherwise, she was generally composed and forthright, if not forceful, in her evidence and the views she expressed. She said that she and SG1 now accept their role as special guardians and the importance of the birth family in the boys' lives. She said this had only recently come about as a result of information they had received, particularly a book on attachment which she had been provided with and was in the process of reading.
52. Her evidence was very significantly more conciliatory towards the birth family than her written evidence or her views as reported by the CG. She spoke directly to MGM at times from the witness box. She said she and SG1 had to let go of the reins in relation to contact and let professionals decide what is best for the children. She proposed that direct contact would be promoted and developed before a move to Australia. After a move, she spoke of weekly Skype sessions of up to three hours at a time, as well as other electronic communication. She said her mindset had been different in April 2013, when her statements recorded her view that adoption and emigration would bring an end to applications about the boys. She repeatedly referred to the lack of training and advice previously and their focus on a plan of adoption as explaining their earlier negativity about the contact.
53. This was reflected in SG1's evidence. He said he has always accepted the children's need to identify with the maternal family and have ongoing contact. When he was taken to passages in the written evidence and his oral evidence from April 2013 when he said quite the opposite, he said he had made an error in what he had said previously. In the light of this evidence from the SG about their views of the importance of contact for the boys, it was surprising to hear the CG's evidence of discussions with the SG on 23^rd and 26^th November 2013, little more than two weeks before the final hearing, when she said they both told her they would want contact to reduce immediately and end as soon as possible in the event that they were given permission to emigrate. The CG said that on 26^th November 2013 the SG specifically said it would be unfair for the boys and the birth family for any contact to be prolonged.
54. The CG said she had not been made aware of any change from that position until SG2 gave evidence. The CG was concerned about what she saw as a total change in the SG's stance and questioned its reliability as a result. Another striking feature was the CG's evidence was that the first time that she had seen SG2 acknowledge the birth family was during her evidence when she addressed MGM directly.
55. The CG said she was "shocked" and "astonished" at the change in SG2's presentation in her evidence from that that she had seen throughout the proceedings, up to and including her visit on 26^th November 2013. The CG said she could have accepted a less dramatic shift in the SG's position as being more reliable. She said she questioned whether the change was genuine in these circumstances and what she described as a "very entrenched case". The CG was clearly sceptical about circumstances in which such a radically different position had been adopted within such a short period of time after such a long history of conflict.
56. The CG's evidence was not completed when the case was adjourned on 13^th December 2013. She therefore resumed her evidence after Nicola Reed's evidence was completed on 17^th January 2014. The CG then gave evidence about developments since the case was at court in December 2013. She said she had visited the SG by agreement on 14^th January 2014 (three days before the hearing) to discuss the contact that had taken place over Christmas, in circumstances in which at court in December 2013 the SG offered additional contact on Boxing Day, the first time such an offer had been made. The CG said she also wanted to discuss the SG's changed position at the hearing in December 2013 as well as the view expressed by them, and SG2 in particular, that CAFCASS was biased against them.
57. The CG described SG2 as angry and confrontational at her visit to the family home. She said SG2 was in pyjamas when she arrived after SG2 had finished work but that SG2 said she was happy to continue. Mr Twist's written submissions refer to SG2 being unwell. That was not the CG's evidence, nor as I recall it was it challenged on the SG's behalf. The CG said SG2 reverted back to events in the past and was blaming the birth family for the difficulties in contact. She blamed CAFCASS for their situation and held the CG responsible for the adoption not proceeding.
58. The CG said it was impossible to have any rational or reasonable conversation with SG2. She said SG1 stepped in and told SG2 her approach was not appropriate. The CG described SG2 as "very much the dominant partner" in the relationship. The CG said SG2's part in the meeting came to an end when she said she did not intend to continue with it, got up and left in a distressed state. The CG said she stayed and talked to SG1 for a further 20 to 30 minutes. I accept the CG's account of this meeting.
59. The CG was also asked about an email produced at the hearing which SG2 had sent to the boys' school on 13^th January 2014, raising issues about the role of CAFCASS. The CG said that this email was factually incorrect in a number of respects. She said it was a feature of the case that there could be a grain of truth or reality, but that was then distorted by SG2 or a negative spin was applied. The CG's view, which accorded with my assessment of the email, was that it had a negative tone with regard to contact between the boys and the birth family.
60. The CG's evidence was that she had very real concerns for the boys which, if anything, had heightened. Her evidence was that the SG had been provided with a significant amount of support over years including fostering and special guardianship assessments, during which they said they had a good understanding of the birth family and their importance for the children's heritage and identity. Following that, there has been the long involvement of CAFCASS. Despite this professional support, the CG said she still questioned the SG's ability to value the birth family, to realise the birth family's importance in the children's lives and to actively support L and J's contact with them. She said "time and time again" they have sought to reduce the contact. She said she had little confidence that indirect contact would be promoted if the boys moved to Australia. She said she was fairly confident that the move would bring about an end of all contact.

The Legal Framework

61. Section 14C Children Act 1989 contains the provisions in relation to special guardianship. The relevant parts of the legislation for the purposes of this application are as follows.

14C(1) provides that:

The effect of a special guardianship order is that while the order remains in force:

(a) a special guardian appointed by the order has parental responsibility for the child in respect of whom it is made; and

(b) subject to any other order in force with respect to the child under this Act, a special guardian is entitled to exercise parental responsibility to the exclusion of any other person with parental responsibility for the child (apart from another special guardian).

Section 14C(2) provides that:

Subsection (1) does not affect: a) the operation of any enactments which require the consent of more than one person with parental responsibility in a matter affecting the child;

Section 14C(3) provides that:

While a special guardianship order is in force with respect to a child no person may: (b) remove him from the UK without either the written consent of every person with parental responsibility for the child or the leave of the court.

By section 14C(4), subsection (3) does not prevent the removal of a child for a period of less than three months by a special guardian of his.

Section 14C(3)(b) mirrors the provisions of section 13 of the Children Act 1989 which governs relocation in the case of children who are subject to residence orders.

62. Relocation, or permanent removal from the jurisdiction, is therefore specifically included from those areas in which the enhanced parental responsibility vested in special guardians allows them to take decisions to the exclusion of those who also have parental responsibility for the child or children in question. The relocation authorities which set out the relevant principles for the court on the issue of relocation all involve disputes between parents of children in the context of disputed residence, care or contact arrangements. The case law in relation to relocation has developed from the decision of Payne v Payne [2001] EWCA Civ 166, in the more recent authorities of K v K (Children: Permanent Removal from Jurisdiction) [2011] EWCA Civ 793 and the judgment of Munby LJ (as he then was) in Re: F (A Child) [2012] EWCA Civ 1364. In Re: F, Munby LJ warned against the classification of relocation cases as one type or another (whether shared care or an application by a primary carer, as the case may be). In paragraph 60 and 61 he said that the focus from beginning to end must be on the child's best interests. The child's welfare is paramount with every case to be determined having regard to the welfare checklist, while having regard, where relevant and helpful, to such guidance as may otherwise have been given by the Court of Appeal.
63. In KAC v DJC (also reported as Re: TC and JC (Children: Relocation)) [2013] EWHC 292, Mostyn J gave a helpful summary of the law in paragraph 10, identifying the following general principles in paragraph 11:

i) The only authentic principle to be applied in a permanent relocation overseas is that the welfare of the child is paramount and overbears all other considerations, however powerful and reasonable they might be.

ii) The guidance given by the Court of Appeal as to the factors to be weighed in search of the welfare paramountcy, and which directs the exercise of the welfare discretion, is valuable. The guidance helps the judge to identify which factors are likely to be the most important and the weight which should generally be attached to them, and, incidentally, promotes consistency in decision-making.

iii) The guidance is not confined to classic primary carer applications and may be utilised in other kinds of relocation cases if the judge thinks it helpful and appropriate to do so.

iv) The guidance suggests that the following questions be asked and answered:

(a) Is the application genuine in the sense that it is not motivated by some selfish desire to exclude the father or other person from the child's life?

(b) Is the application realistically founded on practical proposals both well researched and investigated?

(c) What would be the impact on the applicant, either as a single parent or as a new spouse or partner, of a refusal of a realistic proposal?

(d) Is the other parent or person's opposition motivated by genuine concern for the future of the child's welfare or is it driven by some ulterior motive?

(e) What would be the extent of the detriment to him and his future relationship with the child were the application granted?

(f) To what extent would that detriment be offset by the extension of the child's relationships with the applicant family and homeland?

v) Since the circumstances in which such decisions have to be made vary infinitely and the judge in each case has to be free to decide whatever is in the best interests of the child, such guidance should not be applied rigidly as if it contains principles from which departure is not permitted.

vi) There is no legal principle, let alone some legal or evidential presumption, in favour of an application to relocate by a primary carer. The old statements which seem to favour applications to relocate made by primary carers are no more than a reflection of the reality of the human condition and the parent-child relationship.

vii) The hearing must not get mired in taxonomical arguments or preliminary skirmishes as to what label should be applied to the case by virtue either of the time spent with each of the parents or other aspects of the care arrangements.

64. Mostyn J went on to consider the paradox of (c) above, in which an applicant who stoically accepts the decision against moving may fare less well on an application to remove than an applicant who argues that he or she will collapse emotionally, but concluded that it is nonetheless a relevant factor. This analysis by Mostyn J is, in my judgment, a thorough and helpful analysis from the Court of Appeal authorities of the proper approach of the court in such cases. The principles established by these authorities are, in my judgment, equally applicable in the present case. In my assessment of the children's welfare interests a relevant consideration is, however, that the court has made the SG special guardians for the children, approving the permanence of their living arrangements in the most secure manner short of adoption. The questions posed by Mostyn J above provide a helpful framework within which to consider the welfare analysis for L and J.
65. First, whether the application is genuine and not motivated by some selfish desire to exclude the parent (and in the context of this case I include the birth family here) from the child's life. In his submissions Mr Twist referred to the commitment that the SG have to the boys and providing a home for them. Although that is not in question, that is not the relevant question. The question relates to the application to relocate permanently to another country, in this case to Australia, with no prospect of the children or family returning during the children's remaining childhood. The question is whether the motivation for the application is genuine.
66. The SG have demonstrated a longstanding antipathy towards contact. This is seen throughout the chronology of the proceedings after the special guardianship orders were made. I have not revisited the disputes in relation to this contact going back now many years. There is, however, a wealth of evidence of their attitude to contact since CAFCASS became more closely involved which highlights their negative approach to contact and their desire to limit or stop it. I accept the evidence of the CG in relation to this. I do not accept the SG's assertion that CAFCASS has been biased against them.
67. It is clear from the evidence of the SG that they have wanted to be and consider themselves to be the boys' parents. This appears to have played a significant part in their desire to restrict the boys' contact with the birth family. I have taken account of the evidence of N Reed about the progress she has noted through her work with the SG since September 2013. I do not question what she says about the sessions she has undertaken with them and the responses she reports she has received from them while undertaking this work. This is, however, only one part of the picture. It must be seen in the context of the evidence overall. The evidence of the CG, which once again I accept, is of a continuing resistance to ongoing contact up to and including her meeting with the SG at the end of November 2013. This is, in any event, reflected by the tone of their statements dated 13^th November 2013 and in the recent email from SG2 to the school in January 2014.
68. I was not persuaded that the dramatic shift in the SG's approach to the issue of contact with the birth family, as stated in their evidence in December 2013, can be relied upon as genuine. The extent of the change - a complete volte-face from the views they had expressed only a matter of days before and which had not been indicated in any way before they each gave evidence - raised significant questions about the extent to which it could be relied upon. Moreover, SG2's behaviour since - in terms of her email to the school and her behaviour during the CG's visit to the SG in January 2013 - seriously undermines what was said in their evidence about their new-found understanding (said to have developed in the weeks before the hearing in December 2013) of the significance of the birth family to the boys.
69. The SG may well have considered the issue of emigration years ago and quite possibly before the boys came into their care. What is clear, however, is that they did nothing to progress any such plan until the issue was raised with Ged Hennessey in January 2012. The passages I recorded earlier in my judgment from their statements filed in support of the application to adopt and emigration to Australia emphasises the link the SG were making between the legal security they would achieve through adoption and emigration in preventing further applications by the family in relation to contact.
70. The withdrawal of the adoption applications left only the issue of emigration. I have concluded on the evidence I have read and heard that a very significant motivation - if not the most significant factor - in the proposed emigration to Australia is to move the boys away from the birth family and thereby to bring about a cessation in the direct contact and restrict the involvement of the birth family to limited indirect contact at best. I therefore find that the proposed emigration is motivated, if not entirely, then substantially, by the SG's desire to exclude the birth family from L and J's lives.
71. Second, the practical proposals. The SG have undoubtedly made extensive enquiries in relation to the proposed move. The vast majority of those were done from the UK and before the visit by SG1 and the boys last summer. A number of questions nonetheless remained, having read and heard the evidence. I was concerned about the reliability of their dossier in circumstances in which a basic premise - whether they had been to the country - was misrepresented. Taking that further, a question also arises about the circumstances in which the SG were so positive about the move with no firsthand experience of the life they would live. I am, of course, aware that some families do emigrate without having visited or lived in a country (and that the SG do have relatives and friends who do live there) but it nonetheless raises a question about their motivation in the circumstances of this case.
72. Finally, I was struck by the emphasis in their case in April 2013 of the need for permission to be granted as soon as possible to ensure their visa application would have the best prospect of success before SG1 was 40, whereas now his 40^th birthday has passed they argue that their application is as strong as it ever was. Their prospects of success in their visa application are unclear in these circumstances. On their own evidence, a successful application would take between six months and two years during which time there would be uncertainty for the children in their lives generally, but also as to their ongoing relationships with the birth family.
73. Third, the impact of refusal on the SG. I do not doubt that a decision refusing the application will be very upsetting for the SG, but they have had to contemplate that their application may not be successful in any event, even if permission were given. In the light of my conclusions about their motivation, I have concluded that a significant part of their disappointment will result from the thwarting of their desire to dramatically limit, if not end altogether, the relationships L and J have with their birth family.
74. Fourth, the motivation for the opposition. This has not been an issue in the case. It is not suggested that the birth family's objections are driven by any ulterior motive. They are concerned about the impact of the proposed emigration on the relationships L and J have with their birth family in the United Kingdom.
75. Fifth, the detriment to the birth family if the application were granted: On the SG's oral evidence at the hearing in December 2013, the birth family would maintain direct contact with the boys until the planned move came to fruition. Their earlier proposals favoured a termination of direct contact sooner, rather than later. Even taking their most recent position at face value, if permission were granted the boys would lose all direct contact with their birth family throughout their childhood. I consider there to be a real prospect that all forms of contact would end.
76. Sixth, the extent to which the detriment would be offset by the children's relationships with the SG's family in Australia and homeland. Although the SG have some family and friends in Australia, most of their family remain in the United Kingdom. This is not a case of a family returning to their homeland.
77. There are other relevant welfare considerations for L and J, in my judgment, when considering their best interests and the welfare checklist in Section 1(3) Children Act 1989. They are now aged 10 and 9 respectively. They have lived with the SG for the last six years. In 2008, the court approved their permanent placement with the SG, securing the placement with special guardianship orders, providing the greatest security short of adoption. The court nonetheless recognised the continuing importance to the boys of ongoing relationships and direct contact with their parents and maternal family.
78. L and J are described as very different children. They each have different relationships with their parents and birth family, as would be expected having regard to their different personalities and the relationships they each had developed before their placement with the SG. For each of the boys, however, I am satisfied and find that their contact with their parents and maternal family is a positive and beneficial experience for them. L and J are undoubtedly part of and see themselves as part of the SG's family. They also understand themselves to be part of the wider family and have important and beneficial relationships with M, F and MGM. L and J are aware of the difficulties which relate to their contact with their parents and maternal family and the tensions particularly associated with the contact handovers. They react visibly to SG2's presence at these handovers.
79. L and J both say that they want to move to Australia. In her evidence, on 17^th January 2014, the CG said L appeared rehearsed - not natural or spontaneous - when he spoke to her of his wish to move and have Skype contact with his family in England. J said he wanted to go as he would have a hot tub and eight weeks holiday in the summer rather than six. When asked if there was anything they would miss, the CG said L went carefully through the birth family members and said he would miss each of them and would want to see them. The CG said L wanted to be sure he had not missed anyone out.
80. I do not doubt that both L and J had a very enjoyable holiday to Australia last summer. They have both spoken positively about the prospect of a move. Their stated wish is to move to Australia, but they cannot have a realistic appreciation of what this would involve in any real sense as demonstrated by J's reasons for wanting to move. L showed a good understanding of what he would miss, namely his birth family.
81. Granting the SG permission to move to Australia would, if they are ultimately granted visas and move, allow them to fulfil what they describe as a longstanding plan to emigrate and this would arguably provide the boys with a more relaxed family environment where their special guardians are away from the pressures, as they find it to be, of the continuing involvement of the birth family. It would also remove the children themselves from the conflict which has been associated over the years with the contact arrangements. In the light of my findings, a move to Australia would also be likely to end not only the direct contact between the boys and their parents and maternal family, but also any meaningful contact of any sort. The relationships L and J have with their parents and maternal family are, in my judgment, important in terms of their enjoyment of the contact and those relationships, but also in the longer term in relation to their identity and their general wellbeing.
82. The arguments against the proposed move far outweigh those in favour, when viewed in the context of the best interests of each of the children, having their welfare as my paramount consideration. I have reached a clear conclusion in this case that the welfare interests of L and J clearly determine that the application to remove from the jurisdiction must be refused.
83. This is not an end to the matter - either in terms of the litigation or the important work which remains to be done. As the CG agreed in her evidence, there will be considerable further work to be done, whatever the decision of the court. I do not doubt this. At this stage I propose to direct a transcript of my judgment and hear submissions in relation to the way forward in terms of further case management.
[Judgment ends]