England and Wales Family Court Decisions (other Judges)

IN THE FAMILY COURT SITTING AT

THE CENTRAL FAMILY COURT

 

In the Matter of J a child

 

First Avenue House

42-49 High Holborn

London

England

WC1V 6NP

 

28 September 2015

BEFORE:

 

MR RECORDER FAROOQ AHMED

 

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BETWEEN:

F

Applicant

and

 

M

Respondent

 

 

 

 

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The Applicant father appeared in person

The Respondent mother appeared in person

 

 

 

 

This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

 

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APPROVED JUDGMENT

28 September 2015

 

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The decisions

1.     The father is granted permission to remove J permanently from the United Kingdom to live in Canada, but not before Wednesday 28 October 2015.

 

2.     A fresh child arrangements order will be made today, stating that J lives with his father and is to be allowed to spend time with his mother. That will require the father to bring J back to the United Kingdom at least once a year, starting from 2016, to allow the child to spend a block of four weeks with J's mother. It will also require the father to make the child available to spend time with the mother in Canada for two blocks of two weeks a year in addition, should she be able to take up such contact. There will also be contact for each parent with J by Skype or similar facility and by telephone.

 

3.     The mother's application to vary the order of 29 March 2015 is dismissed. Therefore an order will not be made for the child to live with her.

 

Introduction

4.     I am concerned with a child called J. He is 4 years and 3 months of age, having been born on 26 June 2011. His parents are both 45 years of age.

 

5.     J lives with his father in Hastings. The father has dual Canadian and Irish nationality. He is a graphic designer and works exclusively from home. He is able to adjust his hours of work to fit in with caring for J.

 

6.     J's mother is M. She lives in Hampstead in North London in a substantial house belonging to her parents. The maternal grandmother is a frequent resident there. The maternal grandfather lives in Pakistan but also visits the United Kingdom. The mother has British and Pakistani nationality.

 

The applications

 

7.     The father asks for a continuation of the existing child arrangements order, dated 29 March 2015, that J live with him and applies for permission to take him permanently to live in Canada.

 

8.     The mother applies by application dated 24 August 2015 to vary the 29 March 2015 order by the making of an order that J live with her. She opposes the application to take J permanently to live in Canada.

 

The findings of HHJ Altman

9.     His Honour Judge Altman heard oral evidence in this case and gave judgment on 6 April 2015. I rely upon the findings made, my having concluded that the evidence which I have received since then does not cause me to make any contrary findings. I have incorporated some of the findings of HHJ Altman into the history below.

 

The history

 

10. The parents met in 2006 and married in the United Kingdom on 5 August 2008. J was born in 2011. In the autumn of 2012, the three of them moved to Hastings to take advantage of cheaper property prices.

 

11. On 29 December 2013, the mother took J to Pakistan for a holiday, the father remaining in the United Kingdom. She returned to this country on 7 February 2014. However, instead of going back to Hastings, she went with J to stay with her family in Hampstead. She did so of her own volition and had not been refused re-admittance to the family home as she had alleged. The mother's change of home had the effect of distancing the child from his father. Three days later, when the father went to Hampstead to see J, the mother said that she was applying for jobs in Nigeria, Egypt and Thailand, with the child. The mother then revealed that she had already accepted a job offer in Thailand. She asked the father for his consent to take J to Thailand to live, which the father unsurprisingly declined to give. The father described his devastation at this suggestion and his walking along the street afterwards with tears streaming down his face at the thought of losing contact with his son. The mother decided not to go to Thailand, instead intending to pursue a teaching job in England.

 

12. On 22 February 2015, the father came to spend the day with the mother and the child in London. She said that the father got into a rage and that she was frightened. She said that she was so terrified that she just picked up the child, got a taxi to the airport, without even packing, and flew to Pakistan that very day. This was just three weeks after she had returned from Pakistan. Whilst the mother was Pakistan, from 22 February 2015, there were friendly email exchanges between the parents. The truth was that the father had not behaved in any threatening way. The documents at D567 do seem to show that she bought the ticket a couple of hours before the flight, but it was not because the father had threatened her.

 

13. The father issued wardship proceedings on 12 March 2014. These resulted in the return of the mother with the child to this country on 3 April 2014, who appeared at court with the child, without any forewarning to the father. She had been in England for 9 days, but had not contacted him. She asked Mr Justice Cobb if she should allow contact, saying that the father posed a danger to the child. In fact, the judge was pleased to note that during the hearing the child ran contentedly between both parents. HHJ Altman found that this was an attempt to get authoritative support for preventing the father from seeing the child and giving an untrue basis for doing so, the mother wanting to cut off the father from a relationship with the child.

 

14. On 6 May 2014, the mother asked for permission to remove the child from the jurisdiction of the court and was given two weeks to issue an application. In the event, no application was made. However, by 20 May 2014 the mother was telling the father that she wished to relocate to Myanmar (formerly Burma) without the child, whom she would leave with the father as he had refused to allow her to take J with her. HHJ Altman found that the mother had demonstrated a determination to pursue a career in teaching, apparently without regard for the child's needs or those of the father. The mother saw her career as being in international teaching, moving from one part of the world to another, because the pay for teachers in England did not provide sufficient income to look after the child.

 

15. As an illustration of how volatile the mother's decision-making is on even important and potentially life changing issues, the following day she had changed her mind about going to Myanmar. Five days later, she changed her mind again and said that she was going after all. She left J with his father and went to Myanmar on 27 May 2014, remaining there until 24 August 2014, a period of three months, which she had intended would be 6 months.

 

16. When the mother returned from Myanmar, she and the maternal grandmother, went to the father's home, insisting that the father let them see the child, repeatedly shouting out the child's name and repeatedly ringing the doorbell, which the child could hear. The father was not aggressive and stayed calm. He was not refusing, but was asking to plan the meeting first, which was an appropriate and child-centred approach for him to take. He was calm, polite and contained, trying to reason with the mother and the grandmother. There was, however, hostility in the behaviour of both the mother and maternal grandmother. The father was driven to call the police. The Family Court Adviser saw one of two videos of this event produced by the mother. In her view, the mother was letting her emotional need to see the child override a more sensible adult approach to the situation. HHJ Altman found that this shed some light on the substance of the mother's criticisms of the father and that in this instance they had been shown to be wholly specious. HHJ Altman observed that whilst the mother had made serious criticisms of the father's parenting, she had been content to leave the child with him when she went to Myanmar on her own, which tended to indicate that she did not believe her own criticisms of the father. HHJ Altman found that the mother and maternal grandmother had shown themselves ready to present a contrived description of father's behaviour to suit their ends.

 

17. On 11 June 2014, whilst the mother was in Myanmar, the father applied for an interim child arrangements order, which was duly made, stipulating that J was to live with his father.

 

18. As I have said, the mother returned to England on 24 August 2014. A month later, on 24 September 2014, the father issued his application for the child to live with him and for permission to remove the child permanently to Canada.

 

19. On 29 March 2015, HHJ Altman made an order which included the court's finding that the father should be regarded as the primary carer of the child. It was ordered that the child shall live with the father and spend time with the mother. It was not an interim order. HHJ Altman delivered Judgment in writing on 6 April 2015.

 

20. The mother then made two further applications to the court. In June 2015, she sought to enforce the contact arrangements made between the parties when the father wished to take J on holiday for a week. An order was made at a without notice hearing that the father was to produce the child for contact as usual. The mother made a second application on 2 July 2015, as a matter of urgency, alleging that J should remain in her care at night because he was becoming frightened and emotionally disturbed at the father's home. She also alleged the father was not there at night. In a Judgment delivered on 6 July 2015, which I have read, HHJ Altman was satisfied that the father was not out at night, that J could see him and find him very easily in the very small flat. The cause if the problems was considered by HHJ Altman to derive from co-sleeping. Father was trying to wean J off of co-sleeping, but the mother was not. However, the court was more concerned about J being drawn into the dispute between the parents about relocation. When the father picked J up after spending time with the mother, the first thing he said was that he did not want to go to Canada and repeated that a number of times, in a state of some anxiety. Although denied by the mother, HHJ Altman found that she was the one who had spoken to the child about going to Canada. HHJ Altman said that the child must not be involved in questions of relocation. If the mother was concerned about his emotional presentation, she really had to stop drawing him into the disputes between the parties. There was an echo from earlier times when the mother sought to use J as an intermediary on her side.

 

21. HHJ Altman confirmed that from Thursday to Saturday, J would spend time with the mother, making it clear that this was on the basis that the mother would not in any way seek to influence J or to talk to him about any of the arrangements whatsoever. An order was made on that day, 6 July 2015, that the child continue to live with the father and spend time with his mother.

 

The evidence of the Family Court Advisor

22. I heard oral evidence from Lisa Pauling, the Family Court Advisor and have read the two reports from her. I accept her evidence. They are dated 3 November 2014 and 11 September 2015. I take into account the observations and findings set out in paragraphs 38 to 43 of the Judgment of HHJ Altman dated 6 April 2015. That section of the Judgment relates to the evidence of Ms Pauling.

 

23. The 3 November 2014 report suggests that at that time it was too soon for Ms Pauling to be able to recommend that J be allowed to go to Canada to live.

 

24. Ms Pauling said that social services have received a note of concerns by the mother about the father, but on a visit there had been no evidence of this, the child being delightful and well cared for. J had a 'lovely relationship with his father' and social services had no concerns as to the quality of care given by the father to J. The child's nursery had no concerns either.

 

25. Relying upon paragraph 9 of the first report from Ms Pauling, I find that J was emotionally harmed by his mother in leaving him in am unplanned way for a period of three months when she went to Myanmar. I further find that this has disrupted his attachment patterns. It is likely that J will be reluctant now to trust that all his needs will consistently be met by his primary care giver.

 

26. Ms Pauling referred to a high level of acrimony between the parents to which the child had been exposed. HHJ Altman was satisfied that this had been generated wholly by the mother and possibly the maternal grandmother. I agree with the observations of Ms Pauling that it is imperative that J continues to experience the level of stability and emotional security that he has been given in his father's care.

 

27. Ms Pauling says at paragraph 15 of her first report, "I feel that M's needs are so enmeshed within J that there is a risk that she will not let J develop into an autonomous independent young person." She felt that the mother was not fully attuned to the child's emotional and developmental needs and at times found it difficult to give priority to the child's needs over her own. I give considerable weight to this opinion.

 

28. In oral evidence, Ms Pauling said the mother had an ongoing struggle with supporting the placement with the father. The mother felt that J's needs are not being met by his father and that he would be better off living with her.

 

29. Ms Pauling described J is an incredibly delightful and charming boy. A significant amount of credit goes to his father. Children's Services decided that an assessment of the father was not needed, despite the mother having said hat J was in danger in his father's care. The allegations did not even reach the section 17 or section 47 thresholds. The feedback from the family support worker was incredibly positive. The nursery was also very positive about J's presentation. There was a very pleasant, warm and welcoming environment at the father's home. The father was loving towards and focused on his child. He had supported J when the mother left to go to Myanmar and had met his emotional needs.

 

30. When Ms Pauling met with the mother on 27 August 2015, she observed J to be happy and relaxed in her care. The home environment was pleasant. The mother said she knew, as J's mother, that he needed to be in her house every night. She said that she firmly believed that this was what J wanted and needed at this time. She said also that she understood that J needed both of his parents. It was the mother's view that J had an emotional breakdown when he was told about Canada. She said that he had stopped eating, was having tantrums and was struggling with sleeping. The mother had relayed this behaviour to a child psychotherapist, Alessandra Cavelli, who had apparently told her that J was in danger. I entirely disregard what the psychotherapist allegedly said. I am not satisfied on a balance of probability that it was said, it is untested hearsay and is probably untrue or a misreporting as it is not consistent with any other professional observations of J and the care given to him by his father. Ms Pauling says that it was an opinion given without seeing J. The nursery told Ms Pauling that they had no concerns about J or the care he received from his father. J presented as a happy child who had good relationships with staff and other children. The nursery had not noticed any concerns or changes in J since October 2014.

 

31. I agree with Ms Pauling that the mother has shown very little meaningful support of the father's care of J. She is concerned that if J lived with the mother, she would leave it to J to decide how much time he spent with his father. I consider that her current view of J's wishes is that he would wish to be in her care every night and see his father for a few hours a day after school. She minimises the importance of the role of J's father and his relationship with his son. I further agree with Ms Pauling the mother has a level of rigidity and lacks flexibility and understanding of the needs of others. Ms Pauling refers to the examples of removing J to Pakistan without his father's knowledge or consent and then leaving J in an unplanned way in his father's care to move to Myanmar.

 

32. Ms Pauling says that if J moved to live with his mother, it is likely that he will easily settle into her care and he would benefit from a close relationship with maternal grandmother. However, Ms Pauling would be concerned about the mother's ability to support J's relationship with his father given her views that J is in danger and her belief that the father lacks the ability to care for J. J will also lose the stability and emotional support that Ms Pauling feels that the father offers him.

 

33. Ms Pauling said that J's relationship with his mother would be changed rather than lost if he were he to move to Canada. She said that when the mother went to Myanmar she spoke to J on Skype. She recommended that should be at least weekly or more frequently than that. She added that the father should bring J back every year and that he should spend the majority of his time with his mother for 4 to 5 weeks. She suggested that the mother could go to Canada for 2 to 3 weeks a year or whenever she was able to do so and J could stay with her then. She recognised that that would never replace the time that J has with his mother at the moment. Pending a permitted removal of the child to Canada, Ms Pauling recommended weekly contact for J with his mother from Friday to Sunday.

 

34. Ms Pauling was satisfied that the father had properly thought through the arrangements and plans for the proposed move to Canada. She noted that father's business is transferable and he can work anywhere. She was unable to see any evidence of the father moving out of the country to cut out the mother. She noted that J had had 'absolutely regular' contact every week with his mother. That gives me confidence that he would continue to allow J to see his mother. When she asked him how he would feel if he was refused permission to take J to Canada, "he could mentally not go there" and became visibly upset at the thought of being denied permission.

 

35. Ms Pauling briefly set out the advantages and disadvantages of the Canada plan. She indicated that the advantages were a stronger relationship with the paternal family, the father's mental health and well-being would be better which would make father better and more focused carer, and father would be happy and content. The disadvantages included J losing his connection with the United Kingdom, his relationship with his mother would be disrupted again, he would have a reduced relationship with his maternal extended family, and he was a dual heritage child who needed to know both cultures.

 

36. I reject entirely the mother's allegation of bias made at page 12 of her document setting out her concerns regarding the report of Ms Pauling. There is no evidence of any bias. On the contrary, Ms Pauling made it plain that J needed to have his dual heritage cultural needs met. Furthermore, Ms Pauling in her first report did not support the proposed move to Canada at that time. I find that Ms Pauling has conducted a fair, careful and child focused assessment, without bias. I agree with the mother that the report contains some errors, for example as to the date on which she saw the mother. I do not think that such errors were material to her recommendations. I have corrected the errors where necessary and appropriate. Where I have not made reference to something which the mother says is wrong, it is because I prefer the evidence of Ms Pauling to that of the mother or because the error is of no consequence. The mother says that she did not put all the alleged errors to Ms Pauling. However, I gave her specific opportunity to do so.

 

The evidence of the mother

 

37. The mother is an very intelligent Cambridge graduate who does not miss a thing. She was unfailingly pleasant and polite in court, both to me and to the father. However, a great deal of her evidence was not relevant to the issues which I have to decide. In her oral evidence she often recounted events and gave her views at length. I attempted a number of times to keep her evidence to that which was relevant, but she still wanted to say what she erroneously believed I needed to hear. To avoid her feeling that she had not had a fair hearing, I mostly allowed her to say what she wanted to tell me. Unfortunately, she was not focused on the welfare issues with which I am concerned.

 

38. She told me that if J was allowed to be taken to Canada he would lose his mother and that his emotional state was the most important thing. She said of J that within the first week, "I saw him emotionally collapse." If that is what she saw, I find that it must have been caused wholly or in substantial part by her depositing him with his father in a completely unplanned way, without any appreciation of the likely effect on his emotional well-being. I reach that conclusion because there was no other sufficiently significant event or change at that time. It was therefore the mother herself who was to blame for any 'emotional collapse' in the child. As I have already said, had it been left to the mother, she would been apart from her son for 6 months, rather than for just the 3 months. I rely on her oral evidence that she told father that she would leave J with his father from May to November 2014. I find that she went to Myanmar in pursuance of her career and not because of any financial difficulties, regardless of the welfare of her son.

 

39. The mother's work was and remains that of a supply teacher in English and Drama. Her current earnings are around £29,000 a year, including tax credits of £3,500 a year, with a net income of £1,600 a month. She told me that her outgoings are, on a monthly basis, £100 towards bills, £100 to her mother and £1,300 for her parents' mortgage. On that basis, the mother asserted that she was short of money. However, she chooses to pay her parents' mortgage and £100 to her mother. Even on the basis of her own case, namely that she left J to work in Myanmar for financial reasons, she gave payments to her parents priority over the welfare of her son. I note that Ms Pauling does not record at paragraph 18 of her second report that the mother made any mention of having to pay her parents' mortgage. I will consider this aspect further below.

 

40. The mother said also that her low income and high outgoings mean that she does not have sufficient funds to visit J in Canada. I am unable to accept that. HHJ Altman said that having heard the father and his approach to providing money for the mother, he was unconvinced that any serious demand for money had been made.

 

41. As for her going to Myanmar, a responsible, attuned, child focused mother would not abandon her 3 year old child to go to live and work in another country, particularly without careful planning and care arrangements having been discussed and made in advance. I find that it was irresponsible of this mother to have done so and demonstrated a lack of understanding of the child's emotional needs.

 

42. The mother's evidence showed that were matters left to her, she would not allow the father to have much of a role in J's life. She said, "When J is in my home he comes to life. I'm the one who can reassure him. J said I want to see you every morning... If he were to go away from me for more than a few days, all his fears would be realised... If J went to live in Canada, my life would have no meaning. J needs me and he wants to live with me. He wants to be in the same room as me every day and night. This is his home. He saw me almost every day. Seeing him virtually is not the same... J is in a fragile emotional state and needs psychotherapy."

 

43. It follows from what the mother said in oral evidence that she does not want J to spend much time with his father because she thinks that J does not want to be away from her. Her occasional statements that J needs his father are more window dressing than of substance. HHJ Altman found the mother to be "deceptive, uncommunicative and manipulative." She is very unlikely to have changed since that assessment and I therefore adopt it. An example of her attempts to deceive is that she told me in oral evidence that J did not know about these proceedings or about the plan to go to Canada. Plainly she did, because HHJ Altman made a finding on 6 April 2015 that she was the one who told J about it and drew him into the adult dispute. The evidence which I have amply supports that finding.

 

44. The mother has filed a large amount of material in support of her case. It almost fills a lever arch file and runs to 326 pages. I have read it all. Not all of it is relevant. I will refer to the relevant parts of it.

 

45. In her application dated 24 August 2015, the mother summarises why J should live with her. D261. She says that the father says in his statement that he is depressed, on medication and suffering from memory loss. She refers to the father's application to move to Canada and says that it will result in J having no contact with his mother. She says that she and J are British, that J has lived here all his life and this is his home. That does not sit comfortably with her request to take him to live in Myanmar. It shows that the mother changes her evidence to suit what she wishes to show at any particular time.

 

46. At D294, in her statement dated 24 August 2015, the mother sets out the welfare checklist. The clear impression given at D295 is that the mother thinks that J should not be out of her care for any length of time. She refers to J refusing to let go of her, his refusing to return to his father, his asking if he has to return to Hastings, saying that he does not want to go back there, and his saying that he would like to stay every night and every morning with his mother. At D310 the mother says that J struggles to eat properly and does not sleep well without his mother, that he clings to her and has said that he wanted never to see his father. That evidence makes it unlikely the mother would support staying contact with the father if J lived with her and that she would strive to keep any visiting contact to a minimum. I have taken account of the mother saying also that J has said that he wants to see his father sometimes, but I do not think that she really believes that he does. My view is fortified by the mother saying that J is at high risk of suffering harm in his father's care because she believes that the father may be suffering from what she describes as the 'toxic trio' of mental health, possible substance misuse and a tendency to become aggressive. D311. I consider that J is at no such risk.

 

47. At D296, the mother makes numerous criticisms of the father, saying that his accommodation is unsuitable, that he has no family or friends to support him in Hastings, that he is depressed, that he has gained weight, that he has a very unhealthy diet, that he is suffering from memory loss, and that he will not be able to organise things for J. The allegation of memory loss was not explored in oral evidence, and I saw no signs of it during any part of the hearing, which lasted one and a half days. From D318 onwards, the mother sets out further shortcomings in the father, relying on his own evidence. What she fails to appreciate is that the matters that he refers to are largely the reasons why he wishes to move to Canada. I am not able to draw any conclusions about the causes of J's behaviour as reported by the father because I do not have any expert evidence about it. However, such behaviour would not be surprising where there is change for the child and where there is conflict between the parents, with each of them wanting to have the child live with them.

 

48. During the hearing, the mother said that she has very little money left each month. It seems to me this varies depending on how it suits the point that she wishes to make. In contrast to her oral evidence, at D297 the mother says, in support of her ability to care for J, that she earns a good income as a teacher and does not mention any financial difficulties.

 

49. From D404 onwards are a large number of references in support of the mother's case. They show that the mother has a great many friends and supporters. They see the mother's personable character and the good care that she gives to J. However, they have not had the father's evidence, nor all the material that is before me, and are unable to come to a balanced view. Their evidence is hearsay and based on partial information. Therefore I give it very little weight.

 

50. There is an interesting and significant document at D471. It is a signed letter from the maternal grandfather dated 29 September 2014. He says that he owns the house in which the mother lives in Hampstead. In the letter he says that he has assured the mother that until she generates an income sufficient to provide her son with a high quality of life, she will continue to receive any and all costs from him. He says that proof of his capacity to pay such costs can be provided if necessary. The letter has been produced by the mother to support her case. I give it considerable weight. It shows that the mother does not need to be paying £1,300 or any amount towards the mortgage. I have already referred to her saying to Ms Pauling that she had no rent to pay. The document which follows at D472 is a statement from the maternal grandmother, dated 1 July 2015. It states that they will in the near future build another bedroom on top of the flat roof of the dining room. Putting all of these matters together, I am satisfied that there is no shortage of money in the family and that the mother's parents help her out financially. I therefore find that the mother has sought to mislead the court about whether she can afford travel to Canada to see her son.

 

51. The document at D505 is a copy of an email dated 1 June 2015 produced by the mother and sent to someone called A, who appears to be a friend of the mother's. It says: "But J is very clever and very determined - and even before we sat down - told his Dad he was not going to Canada - his dad got frightened and said hold that thought and not now - but I said well done for remembering to bring it up and told him that's why I had come..." On the very same day, the mother emailed the father and said that she had not asked J to speak to him about Canada. D496. That was clearly untrue.

 

The father's evidence

52. As with the mother, the father is very articulate, intelligent and seemingly aware of every detail in this case, having lived it for so long. He too was unfailingly pleasant and polite with everybody. It was pleasing to see the parents helping each other with papers and electronic communications. I found the father to be a straightforward man who thought about things rationally and in a child-centred manner. I found his evidence to be convincing, both in writing and orally. I am satisfied that he was truthful, as he was when the case was before HHJ Altman. Where there is a conflict between the evidence of the mother and that of the father, I prefer the evidence of the father, by whom I was very impressed.

 

53. He told me that he has had the care of J for one and a half years. He believes J is doing well and that he is healthy and joyful. He described it as having been a long road. He referred to having to deal with matters when J was taken without consent to Pakistan and when J was left with him suddenly when the mother went to Myanmar. He had to stop working for a time and it was a huge adjustment for him. He said that the caring task had been a learning curve, which had taken a huge toll on him. He described his life as putting out fires. He wondered how he was able to keep working whilst he was looking after J, but he did. However, he says he has come to the end of it and said that it was exhausting. The paternal grandmother was able to visit and help look after J. The father said that he has huge lawyers' bills coming in. His debt is £25,000, mostly lawyers' fees. His income is dropping and is down 20 per cent. He says that his emotional state is the cause. He is the driver of his business, but his will is low. His circumstances have put him into a dark depression. He has had to have counselling. When I asked him how he would feel if he were refused permission to take J to live in Canada, I was able to get a glimpse of the effect on him. He said that it would be terrifying and that he would be devastated. He said the prospects for him here were bleak. He would be impoverished and in debt forever. It would always be a struggle. I believe that this response was genuine.

 

54. It is important to include here what the father said to HHJ Altman in response to questions about his situation in this country and his wish to return to Canada. The father's answer is to be found at paragraph 43 of the Judgment of 6 April 2015:

 

"It is really important to me; (I noted that tears came to his eyes at this point). I feel that the way things are that my future here is really a mediocre life with struggle and just being alone here by myself with nothing save (the child); my family want to help what they can; you need to make your life and here with so little support and I can see this debt over my head for ever what do you do when you want a house or you want a good school or you want to pay for your kid to go to camp. And how do you get this when I am stuck. I have always worked hard and I look here and I think where are my efforts going and where will I go; just survival? And then I think in Canada I could have a wonderful life and maybe find the love of my life if I can lift my head up; and have my family. I came here it was risky and I find that the dream has gone and it would be good to feel something else was possible for me."

55. The father was able to predict and understand the likely effects on J of his plans to go to Canada. That is something which the mother lacks the empathy to do, as shown by her own ill-considered movements between countries.

 

56. The father states that if he is allowed to take J to live in Canada, J will miss his mother and he will be afraid. He will tend to be more aggressive. He said that the family had been through it before and that J had the idea that people go away and come back. He said that J is quite frightened about being in Canada and his fear was about losing his mother. The father was referring to J's mother's having discussed with J the plan of going to Canada.

 

57. The mother suggested to the father that J was not being properly fed. The father's response to that was she should look at how healthy J is if she was worried about nutrition.

 

58. Mother then suggested that the father would live off his credit cards. The father replied that he did not own any credit cards now.

 

59. Father was asked about the arrangements that could be made for J to spend time with his mother if he lived in Canada. Ms Pauling has recommended that the father bring J to the United Kingdom every year for the child to spend 4 to 5 weeks with his mother. The father agreed to doing that, but would prefer to start in 2017 because starting earlier would delay the clearing of his debt. At a push, he would agree to starting in 2016. In my judgment, 2017 is far too long for J to wait to see his mother again. The father must bring J back to the United Kingdom in the summer of 2016.

 

60. The father sets out his plans for how he will look after J in Canada at D162. He will be able to continue to work from home for the same clients. His expenses would be substantially lower and he would pay no rent as he will be living with the paternal grandmother for the first year at least. That will save just over £2,000 a month, yet his income would be at least the same and probably higher. He plans to live in Victoria, near Vancouver which he says, and I accept, is a very pleasant and safe place to live. In Victoria, father has his sister and brother-in-law, who are both delighted at the prospect of being more involved in J's life. His family have networks of friends which will give J a depth of community which is much greater than he has with the father in this country. He plans to arrange childcare for J for five afternoons a week. There are plenty of nurseries offering J a place. In England, J would be starting school now. However in Canada J will not start school until 2016 when he reaches five years of age. Father says that schools in Canada are excellent and free. Canada has a free health care system. The father wishes to promote J's British and Pakistani culture and intends to do this through television, cartoons and music, as well as through making Pakistani friends at school. D166. I accept the father's evidence about all these matters.

 

61. Throughout the time the mother was in Myanmar, J had frequent contact with her using FaceTime. Father intends to facilitate such contact with J's mother from Canada and to do so on a frequent basis. He suggests five times a week. The father offers to come to the United Kingdom once a year with J, for which the flights will cost approximately £1,500. In addition, the mother could visit J in Canada 2 to 3 times per year. D167. Temporary accommodation is available in Victoria for £200 to £400 per month.

 

62. Father suggests that the mother could move to Canada. However, having heard her evidence on that issue, I find that the jobs market for teachers of English and Drama is very small and the prospects of success very limited. I do not think that the mother could easily move to Canada.

The advantages and disadvantages of the proposed move to Canada

 

63. The father helpfully provided me with a list of benefits for J of moving to Canada and the mother provided me with an equally helpful list of benefits of staying in the United Kingdom and detriments of moving to Canada. They are not to be regarded as findings or views of the court as they come largely from the parents. I have taken them all into consideration, but I have been selective in setting them out here so as to make list more concise and to avoid repetition. Also, it is the benefit or detriment to J which is important, whether that is direct or indirect.

 

The benefits to J of moving to Canada

 

a.     Father and therefore J will be more settled.

 

b.     Father will be able to work more and his income will increase by between £8,000 and £18,000.

 

c.     J's standard of living will be greatly increased.

 

d.     The father will be able to overcome his depression, which will be good for J.

 

e.     The father will be happier and hopeful again.

 

f.      J's relationship with his paternal family will be improved, especially with his paternal grandmother, who has been a significant adult in his life.

 

g.     He will be able to clear his £25,000 debt. He will not have constantly to worry about J being taken from him or have to deal with 'endless court applications.'

 

h.     The scope for the mother to make untrue allegations about the father's care of J will be reduced.

 

i.       Many more opportunities will be available to J.

 

Detriments to J of moving to Canada and benefits to him of remaining in the United Kingdom

 

a.     J is likely to see his mother only once a year, albeit for several weeks at a time.

 

b.     J's relationship with his mother will be greatly changed and reduced.

 

c.     That will have an adverse emotional effect on J.

 

d.     The strength of his relationship with his maternal grandmother and other extended family members will be reduced.

 

e.     J might resent his father for removing him from close proximity to his mother.

 

f.      It may be more difficult for the mother to enforce contact arrangements.

 

Benefits to J of living with his mother

 

a.     He wants to live with his mother and is happier in her care.

 

b.     The mother would give him a higher standard of care than the father gives to him.

 

c.     Mother has a lovely home, many friends and family from which J would benefit.

 

d.     J sleeps and eats well when with the mother, whereas when with the father he gets stressed and aggressive.

 

Benefits to J of living with his father

a.     J would avoid the harm which a move to his mother's care would cause to him.

b.     The father would give him a higher standard of care than the mother gives to him.

 

c.     J is happy in his father's care.

 

Detriments to J of continuing to live with his father.

 

I will deal with these when I consider the mother's evidence in more detail as she sets out her criticisms comprehensively.

 

The law

64. I refer to Re F [2015] EWCA Civ 882, in which Ryder LJ sets out the principles to be applied in international relocation cases:

 

"15. The approach to be taken to cases where one parent seeks permission to remove a child permanently from the United Kingdom has been considered exhaustively in the three leading authorities ( Payne, K v K (Children: Permanent Removal from Jurisdiction) [2011] EWCA Civ 793, [2012] Fam 134 and Re F). In Re F, Munby LJ identified that K v K is now the starting point:

 

"[29]. The starting point now must be K v K. Its central message is conveyed, succinctly and accurately, in the headnote in the Law Report:

 

                                          i.     "...that the only principle to be applied when determining an application to remove a child permanently from the jurisdiction was that the welfare of the child was paramount and overbore all other considerations however powerful and reasonable they might be; that guidance given by the Court of Appeal as to factors to be weighed in search of the welfare paramountcy and which directed the exercise of the welfare discretion was valuable in so far as it helped judges to identify which factors were likely to be the most important and the weight which should generally be attached to them and promoted consistency in decision-making; but that (per Moore-Bick and Black LJJ), since the circumstances in which such decisions had to be made varied infinitely and the judge in each case had to be free to decide whatever was in the best interests of the child, such guidance should not be applied rigidly as if it contained principles from which no departure were permitted".

I have had regard to the other case law that deals with the principles applicable to applications permanently to remove children from the United Kingdom and it is not necessary to set them all out here. Mostyn J sets out in Re TC and JC (Children: Relocation) [2013] EWHC 292 (Fam) a helpful summary of the principles derived from the relevant cases, including Payne v Payne [2001] 1 FLR 1052. At paragraph 11 Mostyn J states the following:

a.     The only authentic principle to be applied when determining an application to relocate a child permanently overseas is that the welfare of the child is paramount and overbears all other considerations, however powerful and reasonable they might be.

 

b.     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. Such 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.

 

c.     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.

 

d.     The guidance suggests that the following questions be asked and answered (assuming that the applicant is the mother):

 

 

                                          i.     Is the mother's application genuine in the sense that it is not motivated by some selfish desire to exclude the father from the child's life?

 

                                        ii.     Is the mother's application realistically founded on practical proposals both well researched and investigated?

 

                                       iii.     What would be the impact on the mother, either as the single parent or as a new wife, of a refusal of her realistic proposal?

 

                                       iv.     Is the father's opposition motivated by genuine concern for the future of the child's welfare or is it driven by some ulterior motive?

 

                                        v.     What would be the extent of the detriment to him and his future relationship with the child were the application granted?

 

                                       vi.     To what extent would that detriment be offset by extension of the child's relationships with the maternal family and homeland?

 

e.     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 no departure is permitted.

 

f.      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 that a reflection of the reality of the human condition and the parent-child relationship.

 

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

 

Analysis and Findings

65. The conclusions and findings of HHJ Altman are set out in the Judgment of 6 April 2015. I have considered them in the light of the further evidence since that date, and I do not come to any different conclusions. I therefore rely upon them as set out here:

"47. I find that the mother's actions have demonstrated both a lack of insight into the needs of the child and also a determination to separate the child from his father. It is the father's belief that the mother was trying to cut him out of the child's life and I find that the evidence does tend to support that conclusion. Indeed the father believes that the mother's leaving the child with the father when she went to Myanmar was a 'bluff calling' exercise that failed, for the mother calculated that the father would not be able to care for the child and so would let her take him with her. I find that the mother has a strong desire to pursue a career in international teaching. I accept the view of Ms Pauling that the mother has difficulty in separating the needs of the child from her own, and I find this is evidenced by her argument about going abroad and expressing it as being in the interests of the child. I find, following the opinion of the Family Court Advisor that if the child is living with the mother the continuation of his relationship with the father will be in jeopardy. Having taken the child to Pakistan for a holiday she returned to England and instead of returning to the family home went to her own family's property in Hampstead, creating a considerable distance between father and child. Although there had been talk of separation I find that decisions had not been made and that the mother did not, at the very least, discuss with the father the best way forward. The mother then unlawfully removed the child from the jurisdiction of the court, again taking the child from contact with the father. She deceived the father as to where she was. Whilst abroad I find that she put obstacles in the way of the father's speaking to the child by being ostensibly restrictive as to the appropriate time. She returned without warning to the father so that they met, effectively, at court. She then applied to the court for leave to take the child to Myanmar, again with what I find to be cavalier disregard for the relationship between father and child. Upon leave being refused she determined to go on her own; she gave no notice to the father but left the child with him with, I find, no regard to the effect on the child. She remained abroad for a period of 3 months without seeing the child. She returned and although she gave short notice of the period she would arrive, made no arrangement about the time of arrival at the home in Hastings. She arrived without notice in the company of the maternal grandmother. There were exchanges which were recorded by video. This video demonstrated the unreasonableness of the mother and maternal grandmother. In evidence neither seemed to recognise how potentially very damaging for the child was the failure to prepare the child for reunion with the mother followed by arriving without notice and generating a row. I find that this was either a disregard of the child or a total lack of insight into the situation and that this applies to both the mother and the maternal grandmother. Further it appears that the experience of the effect of her actions has not enabled the mother to develop insight. Her first removal of the child to Pakistan and its aftermath in connection to the wardship proceedings did not prevent the mother from applying within a month to take the child away again.

"48. I find a striking irony when contrasting the mother's self regard in determining her own actions in removing the child from the jurisdiction on the one hand, and the reasons given by her for opposing the wish of the father to relocate on the other.

"49. On behalf of the mother it is pointed out that the mother's view is that the child is not well cared for. I have the views of professionals who know him from social services and the nursery and the assessment of Ms Pauling. I find that in the light of what they all say, and taking account of the evidence in this case and the modest but patently caring approach of the father, that there is no substance in the mother's case in this respect.

"50. I agree with the opinion of the Family Court Advisor that the child is settled and secure in his present home with the father. I find that were he to live with the mother she would seek to distance him from the father and would continue to fail to recognise the value of the relationship between them. I recognise that mother and maternal grandmother voiced a readiness for the father to see the child were he to live with the mother. I find that the mother painted a very unfavourable picture of the father, but that such picture was untrue and contrived and designed to justify her own conduct in removing the child from connection with the father. Nonetheless I find that, in the light of the dismissive attitude of both mother and maternal grandmother towards the father, and bearing in mind the mother's readiness to contemplate the separation of father and child in her earlier actions, there is a likelihood that both mother and maternal grandmother would develop the view that the child had little if anything to gain from his relationship with the father. I find that the statement of the father to the Family Court Advisor that he had no confidence that the mother could support his ongoing relationship with the child if he was in her care to be an accurate assessment. I find that the father has in this and other areas a reliable understanding of the mother. In addition the child would be less secure, being at risk of the mother's history of impulsive plans to relocate around the world and which may find reflection in her other actions, although I have received no evidence of this

[...]

"52. Counsel for the father submits the first issue is to determine where the child should live. I find on all the evidence that the child should live with the father as primary carer, best able to meet the child's needs. In terms of the welfare checklist I find that the needs of the child are for consistency, security, loving nurturing and a capacity to put the child's interests first. I find that the father has shown he is capable of meeting those needs. On behalf of the mother it is submitted that it is unfair to doubt the mother's capacity to support placement with the father as this may just relate to the stance in litigation. I find that the mother's actions, apart from litigation, demonstrate a lack of regard for the placement with the father. The capacity of the mother to accept this 'placement' is, I find, one of the main tests referred to in the last paragraph. I adopt the reservations of Ms Pauling in relation to the capacity of the mother to meet the needs of the child."

 

66. HHJ Altman concluded that J should live with his father and spend time with his mother. It was found this was not shared care and that the parents were not able to communicate sufficiently with sufficient trust to share care. The father was the primary carer.

 

67. HHJ Altman felt that the father's evidence on the application to relocate to Canada required further clarity, detail and support. Those requirements have now been met by this hearing and the evidence filed since 6 April 2015.

 

Should the child live with the mother or with the father?

 

68. This question must be answered before and independently of the question of whether the father should be given permission to take J to live permanently in Canada. I note that the father will not move to Canada if he is refused permission to take J there to live with him. He will remain in Hastings with J.

 

69. There is overwhelming evidence that if J were to be placed with his mother, essential aspects of his welfare needs would not be met. It was clear from her evidence that she is able to meet his physical and educational needs, but equally clear that she cannot meet his emotional needs.

 

70. J's life would be insecure as he would be at risk of the mother's impulsive plans to relocate around the world. She has applied for jobs in countries with which neither she nor J have any connection. They include Nigeria, Egypt, Thailand and Myanmar. Were she to move to one of those countries, it is likely that the father would lose contact with J. In stark contrast to the mother's approach, the father is likely to settle in Canada, that being where he is from and has most connections. If J lives with his mother he is very likely to experience instability as the mother moves from country to country. Her tendency for such moves has already harmed J when she went to Myanmar, leaving him behind. Not only is she likely to move to another country, but she is likely to be indecisive about which one. For example, she changed her mind more than once about going to Myanmar. On her own case, she is capable of leaving with the child for another country at the drop of a hat, as she said she did when she went to Pakistan on 22 February 2015.

 

71. If J is in the mother's care it is likely that she will make repeated applications to the court on a range of issues as she did in June and July of 2015. These are likely to consist of numerous criticisms of the father's care of J. In doing so, she will drain the father's emotional resources and divert his time and energies away from caring for J. I rely upon her numerous references to the father's shortcomings, as she regards them to be. She is likely to draw J into these disputes at the cost of his emotional wellbeing. She has already involved Children's Services without any justification, complaining about inadequate care given to J by his father. The professionals from Children's Services, the nursery and the CAFCASS officer consider that J is well cared for by his father, and the court has already concluded that the mother's complaints about the father's care of J are without any substance.

 

72. If J lives with his mother it is likely that she will do all she can to exclude or reduce to an absolute minimum the father's involvement in his son's life. She has a determination to separate the child from his father.

 

73. I am unable to rely on what the mother tells me as she does not always tell the truth. An example is her untruthful denial that she had encouraged J to tell his father that he did not wish to go to Canada. Another example is her misleading the court about whether she needed to pay £1,300 towards her parents' mortgage.

 

74. The mother says that J wants to live with her and is happier in her care. He is only four years of age. His wishes and feelings cannot reliably be ascertained, particularly where they have been influenced by the mother. I find that he is perfectly happy in his father's care and that he very much enjoys spending time with his mother.

 

75. Were he to be removed from his father's care to live with the mother he would be emotionally harmed by the change in his circumstances. As I have already said, even that move would be unlikely to be the last move for him. The care that he receives from his father is of a high standard. There are serious and substantial disadvantages and there is risk of harm if he is moved to live with his mother. He should therefore remain living with his father. I dismiss the application to vary the order of 29 March 2015. I reach that conclusion separately from the question of whether the father should be granted permission to take J permanently to Canada.

 

 

Should the father be given permission to remove J permanently to live in Canada?

 

76. I consider this question bearing firmly in mind that the decision will affect J for the remainder of his childhood and for the rest of his life.

 

77. I find the father's application is genuine in the sense that it is not motivated by any selfish desire to exclude the mother from the child's life. He has given proper reasons for his wish to go back to his home country. He has sensitively acknowledged the importance to J's welfare of seeing his mother and has spent some time and effort in formulating plans to ensure that J spends time with his mother.

 

78. The father's application is realistically founded on practical proposals which have been well researched and investigated. He has set out in considerable detail his plans for accommodation, schooling, health, finances and family support. Unlike the mother, his plans have not been formulated on a whim and have been considered by him and the court most carefully.

 

79. The impact on the father of a refusal of his application to take J to Canada are amply set out above. I find that in those circumstances the father would be devastated, would feel a sense of hopelessness, would remain in debt, would be unable to buy a property to give J more security, he would feel trapped in a country where he now has few connections and he would remain depressed. Many of those matters are likely to have an adverse effect on the level of care which he is able to give to J. I have already concluded that J's welfare requires him to live with his father. I further find that the care which the father is able to give to J will be enhanced were he able to move with him to Canada.

 

80. The mother's opposition to the move to Canada is very understandable. It is driven by her very close attachment to J and what she probably believes is in his best interests. She is right to say that it will affect J's relationship with her and the rest of the maternal family. Some harm will occur whether J stays in this country or goes to Canada. However, in my judgment, the balance of harm weighs firmly in favour of J's going to Canada.

 

81. The mother will be devastated if J moves permanently to Canada. That is almost always the case when a child is moved to another distant country. All that one can do is to try to ameliorate the situation by maximising the amount of time that the parent spends with the child through contact. In this case frequent contact is possible using Skype and the relationship will be consolidated and built upon at least once a year for four weeks or more when the father brings him back to the United Kingdom to stay with his mother. I am satisfied that this arrangement will work because the father can work anywhere and he has friends with whom he can stay. If not, he will be able to rent cheap accommodation whilst he is here.

 

82. I have referred to the mother's financial situation. I consider, particularly in the light of the letter from the maternal grandfather, that she does not have to pay £1,300 a month for her parents' mortgage and she could use that money to fund the two or three visits to Canada a year which the father offers to spend time with J. I make it plain that even if the mother did have to pay £1,300 per month towards the mortgage, I would still grant permission to the father to take J permanently to live in Canada.

 

83. Whilst J's relationships with his mother and extended maternal family will be diluted by his move to Canada, that loss will to some extent be offset by the extension of his relationships with the paternal family, particularly his paternal grandmother.

 

84. In making the decisions in this case, the welfare of J has been paramount and I have had regard to the relevant matters in the welfare checklist set out in s1(3) of the Children Act 1989. The Article 8 rights of each parent and of the child are engaged. However, having looked at the case, the evidence, the arguments and options as a whole, I have concluded that the welfare of J demands the level of interference with those rights that will result from the decisions made. I have stood back from the detailed analysis and considered whether the orders that the child should live with the father and that he be allowed to take him permanently to live in Canada meet are proportionate and have found that they are. Indeed I find them to be necessary for J's welfare.

 

Conclusions and Orders

 

85. I therefore will make a fresh Child Arrangements Order confirming that J will continue to live with his father and spend time with his mother. I grant the father's application for permission to remove J permanently from the United Kingdom to live in Canada on a date not before 28 October 2015, which is approximately 4 weeks from today's date. In the interim, until the father and J leave to go to Canada, the mother shall spend time with the child each week from 3.30 pm on Friday until 6 pm on Sunday, the mother to collect the child from and return him to Hastings Railway Station.

 

86. I take into account that Canada is a 1996 Hague Convention country. In any event, bonds, undertakings or mirror orders are not necessary as I am completely satisfied from his evidence and actions that the father will return J to the United Kingdom each year to spend time with the mother. As I have already said, he must do that from the summer of 2016. I further take into account the father's very limited funds to make court applications in Canada, shortage of money being one of reasons why he wishes to return there.

 

87. The mother shall have a block of at least 4 weeks in the United Kingdom in the summer of each year and she shall have two additional blocks of two weeks in Canada when she may spend time with the child. There must be frequent telephone, Skype or similar contact between the father and J during those periods. I also expect the mother to allow J to see his father in person during that time as and when J wishes or needs. The mother shall have frequent Skype contact with J when he is not spending time physically with her. The mother shall not remove J from the United Kingdom without the prior written consent of the father or order of the court until further order.

 

Enforcement of English court orders in Canada

 

88. The default position set out in the 1996 Hague Convention is that a court's decision in one Contracting State must be recognised by operation of law in all other Contracting States, without any further proceedings being necessary. This enables a contact order in favour of the mother to be recognised without the need for proceedings for mirror orders in Canada. The procedure for enforcement of orders is determined by each particular Contracting State according to its national law. However, the Convention makes it clear that the procedure for enforcement should be simple and rapid. The rules relating to recognition and enforcement are found in Articles 23 to 28 of the Convention.

 

89. The order which I intend to make will include an expectation that the child arrangements order will be recognised and enforced in Canada pursuant Article 23 of the 1996 Hague Convention. Those provisions mean that it is not necessary for me to require the father to obtain another order in Canada before he leaves the United Kingdom, as those provisions provide that my order shall be recognised and enforced in Canada as if it were an order made in Canada.

 

90. In order to help both parents, I have set out the contact details for the appropriate authority in British Columbia, Canada and in England on the page following this Judgment.

 

 

Farooq Ahmed

Recorder

 

28 September 2015

 

 

 

 

 

 

 

 

 

 

The contact details of the appropriate authority in British Columbia, Canada are:

 

Ministry of Justice

Legal Services Branch

PO Box 9280, Stn. Prov. Gov't 

1001 Douglas Street

VICTORIA, British Columbia

Canada

V8W 9J7

 

Telephone number: +1 (250) 356 8433 / 8449

Fax number: +1 (250) 356 8992

 

Persons to contact:

 

◦    Ms Penelope Lipsack, Barrister and Solicitor

◦    e-mail: Penelope.Lipsack@gov.bc.ca

◦     

◦    Ms Jillian Stewart

◦    e-mail: Jillian.Stewart@gov.bc.ca

 

The contact details of the appropriate authority in England are:

 

The International Child Abduction and Contact Unit

Office of the Official Solicitor

Victory House, 30-34 Kingsway

London,WC2B 6EX

DX 141423 Bloomsbury 7

 

Tel: 020 3681 2608

Fax: 020 3681 2763

www.justice.gov.uk

https://www.gov.uk/government/publications/international-child-abduction-and-contact-unit-application-form

 

e-mail for new applications only: ICACU@offsol.gsi.gov.uk

email for general enquiries: osenquiries@offsol.gsi.gov.uk