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You are here: BAILII >> Databases >> England and Wales Family Court Decisions (other Judges) >> K (Minor : Temporary Removal from Jurisdiction), Re [2017] EWFC B4 (6 January 2017)
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Cite as: [2017] EWFC B4
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IN THE FAMILY COURT
RG16P00797
Before:
HIS HONOUR JUDGE MORADIFAR
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In the matter of
Re K (Minor: Temporary Removal from Jurisdiction)
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Miss Tina Villarosa (counsel) instructed by Wylie Kay solicitors, appeared on behalf of the applicant mother.
Mr Kelan McHugh (counsel) instructed on a direct public access basis appeared on behalf of the respondent father.
Hearing date: 5 and 6 January 2017
APPROVED JUDGMENT
His Honour Judge Moradifar
Introduction
1. This case concerns the welfare of a three year old child who is the subject of an application by his mother for the court's permission to temporarily remove him from England and Wales to the People's Republic of China ("China"). I will identify him as K. This application is opposed by K's father.
2. The parties are of Chinese heritage. The father is a British citizen. His parents live in China. The mother has indefinite leave to remain in the UK. Her parents live in China but the maternal grandmother has been in the UK to assist with child care. K is a British citizen and habitually resident in England.
3. The premise of the mother's application and her position may be summarised as follows. Since September 2016 the mother has been undertaking a teacher's training course at university. Part of her training requires that she undertakes 120 placement days. Given that her first language and studies are in Mandarin, such placements are not easily found. Her current placement is in the north of England. Thus far the maternal grandmother has been assisting with child care. However her visa to stay in the UK will expire on 1 February 2017. The mother argues that she cannot provide the day to day care for K whilst undertaking her studies which will conclude in July 2017. She states, that in the absence of the father providing the day to day care for K during the week, there is little option but for K to reside with her parents in China. The proposed dates for travel to and from China are from 21 January 2017 to 31 August 2017. She puts forward the following as potential options;
a. Each week the father cares for K in England from Sunday afternoon to the following Saturday morning. This arrangement to continue until the mother has concluded her studies from which time she will resume K's main care.
b. The paternal grandparents come to the UK and look after him during the week until the mother has concluded her studies. The father and the paternal grandparents must obtain suitable accommodation in England for this purpose.
c. K leaves with the maternal grandmother on 21 January 2017 to reside with her until 31 August 2017 when he will return to England. In order to provide reassurance to the father that K will be returned to England she will;
i. Offer up her mortgage free property as security and/or
ii. Lodge £5000 as security with her solicitors, and/or
iii. Lodge K's travel documents including passport and return flights with the paternal grandparents in China until it is time for him to return to England, and
iv. Regular contact with the paternal grandparents who live five minutes' walk away from the maternal grandparents' home.
d. K to reside with the paternal grandparents whilst in China.
4. The father objects to the proposed temporary removal on the basis that;
a. China is not a signatory to the Hague Convention and its legal system is such that the consequences of the mother not returning K to England will be devastating. He will find it difficult if not impossible to effect a return of his child.
b. The proposed temporary move will not be in the best interests of K. He will miss out on contact with his father who he is currently seeing on a weekly basis and that such a move will be unsettling for him given his close connections to his nursery which he attends at the mother's insistence.
c. He is unable to look after K as he does not have suitable accommodation and may take some time to obtain such accommodation. He works in the evenings and this will not allow him to look after K during the week as suggested by the mother.
d. Neither he nor his parents can afford to rent a suitable property over the next seven months. So he suggests that he and his parents could move into the mother's property for the next seven months and look after K. Alternatively, the property is let out and the rent is paid to the father to assist with renting an alternative accommodation to house K.
e. He does not consider that any of the options proposed by the mother as detailed earlier is appropriate or suitable for K.
f. The lack of expert evidence is fatal to the mother's case in that it is not a properly constituted application.
g. Father does not invite me to adjourn the application. He invites me to dismiss the mother's application and to prohibit K's removal to China.
The law
5. Both parties have been represented by counsel during this hearing. Miss Villarosa on behalf of the mother and Mr McHugh on behalf of the father have each filed a detailed note/case summary in which they have set out the applicable law by reference to the relevant authorities. I have carefully read these documents and the authorities that I have been referred to.
6. The relevant legal principles and the test to be applied may be summarised as follows;
a. The applicant or a party making an assertion of fact in dispute must prove it to the requisite civil standard of proof, namely the balance of probabilities. Nothing more and nothing less. When considering the issues in the case, including the relevant factual issues, I must adjudicate on those by having regard to the totality of the evidence. If I find a witness to have lied, I must consider that in light of the guidance pursuant to R v Lucas (1981) QB 720.
b. K's welfare is my paramount consideration and any decision concerning his welfare must be made by reference to the welfare checklist as set out in S1 (3) of the Children act (1989). This is not an exhaustive list and must be considered in light of all other relevant factors.
c. The Court of Appeal in Re A (prohibited Steps order) [2014] 1 FLR 643 (per Patten LJ) stated that when the proposed removal is to a country who is not a signatory to the Hague Convention, the court must consider;
i. The magnitude of the risk of breach of the order if permission is given;
ii. The magnitude of the consequences of breach if it occurs, and
iii. The level of security that may be achieved by building into the arrangements all of the available safeguards.
iv. Abduction will be detrimental to the subject child's welfare. In evaluating the aforementioned three considerations, most cases will require expert evidence. However there is no bar to the court proceeding in the absence of expert evidence. In such circumstances the court must have very clear reasons to justify such a course. This was a confirmation by the Court of Appeal in Re A (Ibid) of the approach previously taken by the court in Re K (Removal from jurisdiction; Practice) [1999] 2 FLR 1084 and Re M (Removal from Jurisdiction: Adjournment) [2011] 1 FLR 1943.
v. The three factors that are set out above (C i-iii) must each be considered individually and the evaluation of one factor must not diminish or dilute any concerns that may be identified in the other factors (Court of Appeal in Re XN (A child) B4/2014/2205).
d. I must ensure that K's rights and the parents' respective rights to a private and family life pursuant to Art. 8 and to a fair trial pursuant to Art. 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) are observed. There can be no interference with those rights unless such an interference is necessary, proportionate and in accordance with the law.
Background
7. This case comes before me against a background of acrimony and previous legal proceedings involving financial proceedings in which the maternal grandmother was an intervener and child abduction proceedings between the parents. They have each spent a great deal of money in those proceedings to the point that the father tells me he has now exhausted all of his financial resources and continues to owe substantial sums. The mother continues to rely on her parents for physical and financial support. I will not set out the full history of this case but will summarise the relevant parts.
8. The father was previously married but the marriage did not last long. When in China to deal with the divorce from his first wife, he met the mother. They were married on 26 July 2011. Mother came to the UK on 9 June 2012 when she began reading for a master degree in Educational Psychology. In October of the same year she began a three year employment as a teaching assistant.
9. K was born on 3 September 2013. K is a British citizen and holds a British passport. He is habitually resident in the UK. On 22 May 2014, the mother was granted indefinite leave to remain in the UK. By now the parents had purchased a mortgage free property in their names. The purchase was funded by the maternal grandparents. Subsequently the parents obtained a mortgage on this property to purchase another property in which they lived.
10. On 3 August 2014 the parents and K travelled to China where they stayed at the maternal grandparents' home. Whilst in China the parents separated after an argument about the father's previous marriage. Mother states that this was the first time that she and her family were made aware of this. The father left the maternal grandparents' home. The mother returned to the UK on 31 August 2014 leaving K in the care of her parents. By now the mother had come to a settled view that her marriage was irreconcilably broken. She moved into a rented room in a shared accommodation.
11. Before the father returned to the UK on 9 September 2014, he did not have contact with K. He states that the maternal grandparents had moved K to another address and he could not locate him. The mother states that he did not seek any contact with K from 11 August 2014 until he left for the UK.
12. On his return to the UK, the father failed at his attempts to reconcile with the mother. On 17 October 2014 the mother issued a petition for divorce. In November of the same year, the father issued an application in the High Court of Justice in which he alleged that K had been abducted to China and sought his immediate return. Those proceedings concluded with orders against the mother for the return of K and 60% of the father's legal costs being paid by the mother. The summary of that hearing and the court's findings are set out in the judgement of HHJ Gareth Jones sitting as a Deputy High Court Judge under reference (2015) EWHC 533 (fam) (B64-78 of the bundle). I have read and carefully considered these documents. K was required to return to the UK by 13 January 2015, however due to immigration issues, the maternal grandmother was unable to return K to the UK until 4 April 2015.
13. The family, including the maternal grandmother moved to live at the parties' second home. Within a few days, the father called the police asserting that the maternal grandmother had shouted at him and told him that he "should be killed". The police did not take any further action. The grandmother moved out into the first property which was now rented. She had to share the home with another tenant and for a short period made some financial contributions by way of rent or mortgage payments. The proceedings concluded with an agreement between the parties on 18 May 2015 when the father agreed to vacate the marital home.
14. The financial proceeding followed shortly thereafter. The father had by now transferred £20,000 to China. The maternal grandmother was joined as an intervener into those proceedings. A preliminary hearing established the maternal grandmother's interest in the two properties. The court also ordered the sale of the two properties and the father to pay costs. At the final hearing of those proceedings on 26 July 2016, the parties came to an agreement whereby the second property was sold and the mortgage on the first property discharged. The father received a lump sum of £20,000. An agreement was reached not to enforce the two costs orders arising out of the two sets of proceedings. Finally through financial arrangements between mother and daughter, the maternal grandmother now has a 90% beneficial interest in the property the legal title of which is vested in the mother.
15. Prior to the conclusion of the financial proceedings, the mother issued an application for the variation of the existing child arrangement for K, such that he would attend nursery from 8 am to 6 pm and to have his care in the evenings as well as the release of his passport and travel documents to the care and custody of the mother. On the 1 September 2016, by consent, the arrangements were varied so that K would see his father from Saturday to Tuesday morning every other week. Furthermore the court recorded that the mother's application to take K to China will be considered within these proceedings.
16. In early September 2016 the mother commenced her teacher training course. On 28 September she informed the father that she was no longer pursuing an application to take K to China. On 30 September the university found the mother a placement that catered for her language choices. The placement was in the North of England. Mother continued with her studies and fulfilling her placement requirements. This has meant taking out a student loan and spending significant periods of time away from home. The maternal grandmother has been assisting in looking after K.
17. In an email dated 3 November 2016 the father informed the mother he had moved into the staff quarters of the restaurant that he works in and that he was unable to see K. Mother replied raising her surprise and concern. Subsequently, the mother resurrected her application to take K to China. The first detail of this is contained in her first statement dated 17 November 2016 although she does mention this possibility in an email to the father dated 4 November 2106. The father formally learned of mother's intentions when served with the updated documents and prior to attending before me on 25 November 2016. On that day I granted the father's application for an adjournment so that he could access appropriate legal advice and to reply to the mother's case. Following this hearing the father contacted the Home Office raising concerns about the maternal grandmother's immigration status. This led to the involvement of social services who conducted a telephone interview with the mother and took no further action. In December the parents agreed a schedule of weekly day visits between K and his father which have largely taken place.
The evidence
18. I have read the case papers, the case summary/note that has been filed on behalf each of the parties, heard the oral evidence of the mother, the maternal grandmother through an interpreter and the father. I have listened to the detailed submissions that were made on behalf of each of the parties.
19. I first heard the evidence of the mother who confirmed the accuracy of her statements that have been filed in these proceedings. The mother told me that whilst the legal title of her property is in her name, her mother has a 90% beneficial interest which has yet to be the subject of a deed of trust and registered. She confirmed that the mortgage on the property was paid off in October or November 2016. She also confirmed that the father received £20,000 from the sale of the second property and had already transferred £20,000 to China. This is why she struggled to understand why the father would choose to live in staff quarters. She explained that her course is intensive and until 30 September 2016 she did not know that her placement will be such a distance away. She was advised that this was a unique opportunity that would greatly assist her career. She denied having the option of postponing her studies. She explained that there is an expectation that she will complete her course by the end of July 2017.
20. The mother was clear that her primary choice would be for the father to look after K during the week until she has completed her studies. She felt that the father could have achieved this aim by now but has chosen not to. When it was pointed out to her that the father had significant debts to pay back and he had little money, the mother was not at all sympathetic stating that the father had incurred unreasonable legal costs by pursuing unnecessary and costly applications to the court. She explained the sensitivities around her property and that her mother could not consent to the father or his family moving back into that property after spending thousands of pounds in legal fees to recover her interest. She raised further concerns about where she would stay with K at weekends.
21. In April 2016, the mother sent an email to the maternal grandmother's counsel in anticipation of an effective mediated solution. In that email she expressed her desire to pursue her teaching career and that K would have to live in China for two to three years. She asked counsel not to disclose this to the father as it may get in the way of negotiations. This email was mistakenly copied to the father. When cross examined on this point she denied that she intended to remove K from the jurisdiction for that period but struggled to explain the reasoning behind writing that email and the exchanges that followed. She stated that this was a difficult time in her life and there were a number of issues she was dealing with. She maintained that she did not wish to remove K for as long as two or three years. I was not satisfied with the mother's explanation in this regard. In my assessment of her evidence this was clearly an option that she was seriously considering at that time that she chose to withhold from the father for the fear of an unsuccessful attempt at mediation and protracted financial remedy proceedings.
22. The mother explained that at the time of making her current application she had no intention of taking K to China. She then wanted to have the option of taking him on a holiday. It wasn't until later that she came to her current view. She stated that her tutor had impressed upon her the importance of taking this rare placement opportunity. She accepted that she had not informed the father until after his email of 3 November 2016 and when pressed, she accepted that the evidence shows that he first learnt about the plans for K's temporary removal shortly after the 17 November 2016.
23. The mother expressed her frustration at the father's historical conduct. She commented that when in China in 2014 despite having the option, he did not collect and return K to the UK. He knew perfectly well that K was safe and well cared for in China and that his application for his return was unnecessary. She cited other examples such as the father calling the police on the maternal grandmother in 2015, reporting her to the local council for council tax liability and latterly his report to the Home Office about the maternal grandmother's immigration status that led to the social services involvement. When giving evidence about this later incident, the mother was very upset and clearly shocked and embarrassed. She expressed further frustration at the father's current attitude explaining that he could make himself available to look after K if he wished to but he chooses not to. The mother explained that it was the father who chose to stop direct contact with K between November and December 2016. She confirmed that if the paternal grandparents were to look after K in China, she would trust them to look after him well and to respect any English court order requiring his return to the UK.
24. Whilst accepting that there will be a disruption and significant changes to his life, if K goes to China, mother sought to bring out the positives of such changes. She explained that K would benefit from his experience in China which will allow him to spend time with both sides of the family and continue to develop his linguistic and cultural experiences. Mother emphatically denied that her application is a prelude to permanently removing K from China and stated that she would give whatever assurances that are required of her. These included a charge being secured against her property which she estimated to have a current market value of £250,000 and any undertakings or assurances that may be required of her. She emphasised her commitment to her course and remaining living in the UK. She told me about the great many benefits that life in the UK brings for K. This included his ongoing access to fantastic education and health care. She further stated that if K is permitted to go to China, she intends to travel to see him during the Easter break and the summer holiday, returning with K by the end of August. These were also opportunities to see her own father.
25. I found the mother to be largely a reliable and credible witness. Most importantly I found her motivations to be entirely genuine and her choices have been made in circumstances that she finds few alternative options. Her continued denial of the concerns in the previous Children Act (1989) proceedings are concerning. Her attitude towards the father and the lack of recognition of his concerns or offers of support, I found to be tainted with her experiences of the father. Despite this and much to her credit K and his father have a positive and enduring relationship.
26. I next heard the evidence of the maternal grandmother who confirmed the accuracy of her statement. She told me that she is in good health but that her husband has concerns about his liver function as this has been a problem within his side of the family. She explained that she stopped running her own company in 2010 and for the following three years she had a ten day annual voluntary admission to a clinic for check-ups. Her blood pressure and other minor issues may have been treated in the clinic. She did not have any current health concerns. Since 2015, she has on two occasions attended the accident and emergency department. The first was an angina attack and the second time she felt better whilst waiting and left without being seen. She further told me that she did not suffer with any chronic or age related illnesses and that she is good health.
27. In his statement, the father has quoted passages form the maternal grandmother's statements in the financial remedy proceedings. In one such passage, she expresses the need for money for treatment of her health and medicine for her and her husband. This was put to her on behalf of the father in very strong terms. The maternal grandmother accepted those passages as being accurately recorded and sought to explain the obvious difference to what she is now stating. She told me that the need for medicine relating to vitamins and medicines that would have to be purchased abroad and taken to China for her husband. These can be expensive. She also referred to the ill health of her mother and mother in law. Even allowing for difficulties in translation, I was not satisfied with the maternal grandmother's explanation in this regard. I have little doubt that what she stated in the financial proceedings was designed to cater for the needs of those proceedings. Whilst I do not have enough evidence before me to come a conclusion that she had lied, having regard to the totality of the evidence and the difficult circumstances surrounding the financial remedy proceedings, in my judgement this is not fatal to her overall credibility.
28. The maternal grandmother stated that she had looked at six nurseries in China and has three in mind that would be suitable for K. She explained that they are bilingual nurseries and that she and her husband will meet the fees that are £220 to £ 370 per month. She wanted to assure me that she will help the mother and K where possible but would not be paying the nursery fees in the UK. She was strong in her view that K's parents need to take responsibility for him and that once her daughter has completed her studies, she will be able to meet K's needs. She expected the father to assist. The maternal grandmother told me that she could not pay the nursery fees in the UK and help the mother financially to complete her education.
29. The maternal grandmother confirmed that she has a 90% beneficial interest in the UK property and that she would consent to it being charged as security for K's return to the UK by the end of August 2017. She also assured me that she has every respect for the paternal grandparents and she did not foresee any difficulties in K spending time with them especially as they live very close to each other. However she could not agree to the father or his parents residing in the property in England. It was clear to me that she wishes to avoid any further conflict over this property having gone through expensive and emotionally charged proceedings.
30. She told me that the father has broken her heart. She was clearly upset and embarrassed by being visited by the police and social services contacting the mother after the father contacted the Home Office. Her disappointment in the father was clear and obvious. She denied any intention of abducting K or not returning him to the UK. She agreed that she would offer a further £5000 security towards the father's legal costs if K is not returned to the UK. She also told me that she will give and comply with such undertakings as may be required of her.
31. The maternal grandmother's hurt and disappointment in the father and his conduct was palpable. I found her to be a very proud lady who very much regrets the circumstances she finds herself in. I found her evidence to be heart felt, genuine and reliable. She was child focused and to the extent that she was allowed to, she avoided conflict by becoming involved in the adult issues.
32. Finally I heard the oral evidence of the father who also confirmed the accuracy of his detailed statement. He explained that he called the police in 2015 as the maternal grandmother was shouting at him in front of K stating "you should be killed". This was taken by the police as threats to kill and was investigated by them. He could not recall the maternal grandmother going to the police station. As a consequence of this the parents both agreed that she should move out. She moved to the property that was rented. She did not pay rent but the mortgage payments needed to be met and she contributed towards those payments for a short period. He further explained that after the last hearing he called the Home Office as he was concerned about the maternal grandmother's immigration status. He was worried that this may have an impact on him as she gained her visa pursuant to a formal invitation by the father.
33. The father also explained that the sums that he received from the financial remedy proceedings have been exhausted. Those were used to pay significant debts that had been accrued as result of the previous proceedings. His employer had provided him with a loan in respect of those sums and he continues to pay for his liabilities. He has since borrowed further sums to pay for his legal advice and representation in these proceedings. Therefore he has no ability to raise a deposit or to afford any rent for a suitable property. He has applied for housing benefit but could not complete the form as he needs to have an existing tenancy. He appeared confused about the differences between housing benefit and council housing. However he did not feel that council housing would be suitable for his son. His ambitions are to pay off his debts and to rebuild his life.
34. He argued that the mother could postpone her studies. This would afford him the time to obtain housing and to look after K without the need for him to go to China. Alternatively he suggested that his parents could come to the UK and help look after K. To this end, they cannot afford to rent a home here. He suggested that they could stay at the mother's property when the father is at work and when not working they could occupy the staff quarters whilst he looks after K at the mother's property.
35. The father was animated and clearly upset when he urged me not to allow K to go to China. He told me that he had a number of concerns which included lack of guarantee of K's return without instigating costly legal proceedings in China, attempts by the mother or the maternal family to change K's legal status whilst in China, historical expressions by his father in law that the mother must return to China at the end of her studies, previous discussions by the maternal family that K should stay in China for two to three years and most significantly the impact on K of being in China for such a long time without direct contact with his father, the loss of his connections and the disruptions in his life.
36. He denied that he could travel to China to see K or that his parents could bring him here for a visit as neither option is affordable. He expressed further concerns that the maternal grandparents or the mother could choose not to allow contact whilst K is in China or to give his travel documents and passports to his parents for assurance. He is similarly concerned about any arrangement involving K residing with his parents in China as in his view there are no guaranteed ways of ensuring that K's care is handed over to his parents in China.
37. Father explained that the terms upon which the financial remedy proceedings were compromised were predicated on K needing a home and living with his mother at the subject property. He explained that he gave up his managerial position at the restaurant as he was suffering emotionally and unable to keep up with the demands of that position. He accepted that this was at a cost of earning significantly less which in turn has impacted on his ability to provide an adequate home for K to stay overnight with him. Similarly he explained that he had no choice but to stop his contact with K in November 2016 due to working in the evenings and the mother insisting that K attends nursery. The father struggled to explain why he was unable to spend time with K at weekends, particularly given that he has been doing so since December 2016.
38. Father told me that if K is to travel to China, he should do so under a visa on his British passport and not by obtaining "travel documents". The latter, he explained, will last for two years and may be extended whilst in China. He reasserted his position that he has no objections to K going for a holiday of up to one month but that this needs to be the subject of a period of sufficient notice and adequate details being provided in advance. He told me that he wishes to have the care and control of K's passport and subject to the aforementioned conditions, he will hand it over to the mother if she wishes to take K on holiday. He would like to take K on holiday but at present he cannot afford to do so.
39. When pressed about his proposal that he and his parents could reside at the mother's address over the next seven months, he reluctantly accepted that there may be difficulties given the history of litigation that concerns the property. However he justified the suggestion by stating that all of the adults must try and put their feelings aside and work together for K's best interest. In his view, this was the best option for K which allowed the mother to continue with her studies. He could not offer any assistance with the issue of where the mother would reside and see K. He estimated that the property could be rented for £1,200 per month. This sum would be paid to him to rent a property for himself and K to live in. By his estimate, there would be a shortfall of £300 per month on the rent of a suitable property that is local to the father's work. However he would be able to meet that short fall. He did not know how he could raise a deposit but suggested that the maternal grandmother could pay the deposit which will be returned to her at the end of the tenancy. The father was challenged further about the lack of any evidence supporting his contention. At first he stated that he did not have time to acquire the necessary evidence but then stated that he had looked at properties near his work and that they would costs around £1,500 per month to rent.
40. His earnings are limited to 25 hours per week on minimum wage rates. He told me that he had borrowed a great deal of money from his employer. Much of this has been used to fund the historical litigation and a further sum for the current application. He estimated that he had borrowed in excess of £100,000 although he has paid some of it back. He struggled to explain why he didn't seek other employment that would allow him to care for and spend more time with K. He felt that he could not as his employer has been so supportive of him.
41. It is clear to me that the father loves and cares for his son. His concerns are genuinely held. However I found his stance to be uncompromising and tainted by the scars that he shares with the mother and the maternal grandmother as a consequence of the history of this case. His loyalty to his employer has outweighed his relationship with his child. The clearest illustration is his unilateral decision to cease contact with K in November 2016. His attempts at explaining why he contacted the Home Office after the last hearing, reporting the maternal grandmother to the council for council tax issues and to the police on allegations of threats to kill, in my judgement lacked any credibility. The father has sought to use any official route or method at his disposal to bring further misery and pressure upon the mother and the maternal grandmother. This is against background of the maternal grandmother purchasing a mortgage free home for the parents and K to reside in and providing the main care for K since 2014. Whilst the father's concerns about the mother's proposals are genuinely held, I found that these were overstated and exaggerated by the father. His expectations of the mother to put her life on hold whilst he attempts to rebuild his are entirely selfish and an attempt to continue to manipulate or exert some level of control on the mother. There is a great deal of mistrust and hurt within this family that is born out of the historical difficulties between the adults.
Analysis
42. This is an unusual case in which the mother seeks the court's permission to remove K to China for a period of up to eight months. The suggested period of removal is a significant factor that I have taken into account given that it is much longer than the usual holiday periods that the courts are accustomed to dealing with and equally not a proposed permanent move. Its significance is acutely relevant to the impact this has on K. K is three years old and much too young to be able to come to an informed view and to express a view. He is bilingual and there is nothing to suggest that he is anything other than an average happy child. He attends nursery during the week and will not be commencing school until September 2018. His main care is provided to him by his maternal grandmother, who has been a consistent carer for him since September 2014. He currently sees his father for a few hours at the weekend. He is happy and settled in his life.
43. The proposed temporary move would present a significant change to K. His recently re-established contact with his father will cease and replaced with indirect telephone or skype contact. He will not see his mother for significant periods of time. His connections to his friends and nursery will be severed. He will experience cultural changes that he will need to adjust to. He will not be residing at the property that he is used to. All of these factors will have an impact on all aspects of his life including his emotional and educational needs. These must be balanced against the fact that his maternal grandmother will continue to be his main carer. He will be attending an English speaking nursery. K will benefit from his first-hand experience of Chinese culture. He will be able to see his extended family that importantly include the maternal grandfather and the paternal grandparents. There will be opportunities to spend longer periods with his father if father travels to China or K is brought to the UK during the Easter holidays instead of the mother visiting him in China. These considerations are capable of having a positive impact on K in the longer term. There are no issues about the parents' respective parenting abilities. However for reasons that I have detailed neither is in the position to look after K in the coming months. The maternal grandmother is the only consistent adult who has provided and is able to continue to provide full time care for K. Her immigration status prohibits her from doing this in the UK. The father's suggestions of renting the mother's property or for the father and his parents living at the property are riddled with potential difficulties that would not serve K's best interest. The issues around this property are understandably emotional given the background. There is a real risk of creating further litigation or upset in the family if father's suggestions are put into practice. This on any view cannot be good for K's emotional wellbeing and may have long term financial consequences for his parents.
44. I have carefully considered the mother's evidence. There are historical concerns about the mother and the maternal family's intentions in respect of removing and retaining K in China. Those concerns must be looked at in the context in which they arose. Since then, the maternal family have made a commitment to K's life in England. Having carefully considered the mother's evidence I am satisfied that she continues to commit to her life and that of K's in England. Furthermore, the previous proceedings are capable of clearly demonstrating that she does adhere to orders of the court and has not sought to flout them. I am even more so convinced by the maternal grandmother's commitment to K and her assurances that she will adhere to court orders and return K to the England. This has been best illustrated by their willingness to offer a myriad of sureties and security to effect K's return to England. Having considered the totality of the evidence, in my judgement the risk of abduction by the mother or the maternal grandmother is nominal.
45. If the mother is permitted to take K to China and not return him, the consequences would be devastating to K and the father. There is no expert evidence in this case that would assist me in ascertaining the potential legal options that could be put in place to ameliorate the consequences of such action by mother or to advise as to the remedies that may be available to the father in such circumstances. The mother has produced an email from a Chinese lawyer which states that the People's Republic of China is under no obligation to recognise or to give effect to orders of this court. It further states that the father can only pursue an application for K's return in the Chinese legal system which can take some months and be costly. This I have considered in circumstances where neither counsel has been able to produce an authority where the court has proceeded in the absence of expert evidence and the decision of the court of first instance to do so has been upheld by a higher court. In such circumstances the father argues that whilst there is no bar to the court proceeding without such expert evidence, the lack thereof in this case is fatal to the mother's application. Neither party seeks an adjournment but the father invites me to dismiss the mother's application. I respectfully decline that invitation. I will proceed to consider her application in the absence of such evidence as I am entitled to.
46. The current application has been before the court since November 2016. The maternal grandmother's visa runs out on 1 February 2017. The welfare interests of K demand that a final decision is made in respect of the mother's application as soon as possible. If the mother's application is granted, the father needs sufficient time to consider his position and to have contact with K. If I do not grant the mother's application, she will require time to put in place such arrangements as she can which include discussions with her university about the future of her course, her continuing studies and child care arrangements for K. The mother and the maternal grandmother need to know if K is flying out with her and to make arrangement for his arrival in China. Whilst I recognise that an expert may be able to advise the court of the actual consequences of any breach and possible remedies available, it is clear, as agreed by the parties that orders of an English court are not enforceable in China. The mother put her case on the basis that the only remedies available to the father would be to issue proceedings in China seeking K's return. There are no guarantees of the father's likelihood of success in these circumstances. The father states that there may be diplomatic means or otherwise the involvement of the Foreign Commission that may be capable of assisting. I have considered all of these factors in light of my overriding duty to deal with the case justly and expeditiously (Family Procedure Rules 2010). Having regard to all of these factors including the unique circumstances of this case, I will proceed with this matter in the absence of expert evidence. In doing so I have balanced the absence of such expert evidence and the worst case scenario of the consequences of any breach against the unique factors of this case. The mother's case is not predicated on any assertion that there are other legal remedies that may be available to the father that may be capable of giving effect to an order from this court in China. Indeed, the father relies on this as one of the main pillars upon which his case rests. This begs the question whether an expert is in fact necessary. In my judgement the balance clearly favours this case proceeding in the absence of expert evidence. This is one of the many examples that that Court of Appeal must have had in mind by not placing an absolute bar on proceeding in such cases without any expert evidence. The courts of first instance retain the discretion to decide whether to proceed in the absence of expert evidence provided always there are clear reasons for doing so and the court has approach this issue with caution.
47. In doing so, I can only conclude that the consequences of any breach of the court's orders if the mother's application is granted will be devastating. The father will have no means by which to enforce this court's orders in China and the only likely course of action that will be open to him would be an application to the courts in China. The likely outcome of any such application is at best uncertain without any guarantee of success. Such uncertainty is further exacerbated by the possibility of an application by the mother in China to change K's legal status and citizenship. Inevitably the father will require funds to pursue such an application in circumstances where he has limited access to such funds and the sums required may be beyond his means.
48. On the facts of this case there are some safeguards that could be put in place to balance the risks of breach of an order granting the mother's application. The mother and the maternal grandmother have agreed that a charge may be executed against the title to the mother's and the maternal grandmother's property. There is no dispute that the property is valued at around £250,000 and that there are no other mortgages or charges secured on this property. This is a property that was the subject of costly litigation between the parties and the maternal grandmother. The mother has very limited means and cannot offer any other financial security. However the maternal grandmother offers a further sum of £5,000 to be held by the mother's solicitors as security for costs of any proceedings that the father may have to issue in China. This has the clear advantage of making immediate funds available to the father. Furthermore the mother and the maternal grandmother have each offered to give the court undertakings in such terms as are necessary to reassure the court and the father that K will be returned to England.
49. The father has expressed his concerns about K traveling with "travel documents" and not as a British citizen with a visa. There is no reliable evidence before me to suggest which of these options would be available to K if he is to travel to China. However, it is common ground that both options remain a possibility and there are no other options. The father states that if K is traveling as a British subject, a visa will limit the time that he can stay in China and would potentially be easier to effect his return if the mother chooses not to return him. The father argues that this would give him further confidence in K returning to England. Therefore if K is to travel to China, the mother must ensure that he does so as a British citizen with a visa and the "travel documents" may only be applied for if the option of a visa is not one that is available to K. This is information that both parents must ascertain when they attend the allotted appointments at the Chinese Consulate.
50. Finally the father argues that there is an inherent procedural unfairness that has impacted on his case and the way his case has been presented. He argues the way in which he has become aware of the mother's true intentions, this being at the earliest 4 November 2016 or as late as a short time after 17 November 2017, have resulted in the father having little time to present his case. He further argues that this must be assessed against the background that the father was sent an email by mistake in which the mother discusses her studies and the possibility of K being in China for 2 to 3 years, before she asks the recipient not to mention this to the father as she did not want this to get in the way of the parties reaching a financial settlement. The mother's application lacks in a number of necessary details which include possibility of postponing her course and looking at detail of financial resources that may allow other options to be considered. The letter from her university was not received until 23 December 2016. The lack of any material detail in the mother's application, has left the father having to anticipate the important detail of the mother's application. He argues that on 28 September 2016 the mother informed him that she was no longer pursuing an application to take K to China for a holiday. Whilst I sympathise with the father's complaints in this regard, I note that he has had full representation at this hearing. He has filed a comprehensive statement consisting of 23 pages which quotes from papers in other proceedings and includes an additional 39 pages of exhibits. He does not seek an adjournment but states the mother's application must be dismissed. In my judgement any perceived procedural unfairness is not such that would lead me to dismiss the mother's application. Having said that, those considerations are very important and I have weighed them in the balance when making my decision.
Conclusion
51. Having considered all of the factors that I have detailed above, on balance it is in K's best interest that the mother is permitted to remove him to China. This must take place on or after 21 January 2017 and he must be returned back to England on or before 31 August 2017. This is subject to K traveling with his British passport and a visa. If the parents are advised by the visa section of the Chinese Consulate that this option is not available, only then he may travel with "travel documents" that have been issued by the Consulate. Furthermore the mother must first execute a charge against her property as security and make available £5,000 to be held by mother's solicitors as security for costs of any proceedings that the father may have to issue if K is not returned to England. On arrival in China, the mother must ensure that K's passport and any travel documents are given to the care and control of the paternal grandparents. The father must ensure that those documents are returned to the maternal grandmother's or the mother's care and control no less than fourteen days before K's scheduled return to England. K must have reasonable telephone skype contact with his father. He may have face to face contact with K if he is able to travel to China. The paternal grandparents must have reasonable weekly contact with K. If father is able to confirm with supporting documentary evidence that he has suitable accommodation to house himself, K and one of the paternal grandparents, then K must be brought back to England for a period of two weeks during the Easter break when he will see his parents for those two weeks. The reasonable costs of travel to and from England for K and one of the paternal grandparents must be met by the mother. Furthermore the parties and the maternal grandmother must give the court the necessary undertaking that will ensure K will obtain a visa or "travel documents", his travel to China and back to England and where necessary give effect to the terms of my orders. Those undertaking will be attached to the orders that have made.