England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		16th November 2006

The Hon. Mr Justice Sumner :

Introduction

1. This is an application by 30 year old S, the mother, of 21 February 2006 to take her 3 year old daughter, A, born 25 October 2003, permanently to live with her in Australia, her home country. This is opposed by 33 year old C, the father.
2. The mother was born and brought up in Ferny Hill, a suburb about 20 minutes drive from the centre of Brisbane. She came to the UK 6 years ago in November 2000. Within a short time she began a relationship with the father. They lived in Bedford where the father's parents live, though they are not together. The parties separated in May 2004 when the father left. He remained in Bedford until he went to London in April 2005. The mother has remained living in Bedford.
3. There have been problems with contact. For a time A was staying overnight with her father.
4. Proceedings began in December 2005 when the father applied for contact, a parental responsibility order (which was granted by consent in March 2006), and a prohibited steps order to prevent the mother taking A to Australia. Presently the father sees A on alternative weekends and on Saturdays in between.

The issue

5. Unusually this application is opposed only in part by the father. He recognises the genuine wish of the mother to return to Australia with A. Initially he wanted to know more about the arrangements that would be made as the details were inadequate. But he is now content to agree to A going but only after she has finished a year at a pre-school ending in July 2008. He says that there are clear disadvantages of her leaving before then. She will not have nor be able to sustain in Australia the quality and value of her relationship with the father and his family that she would do were she to stay for that time. It is in A's best interests to defer her departure for that time.
6. The mother argues strongly against this. In September 2004 she started a 3 year sports science degree in Northampton. She completed the first year. After that she felt it more important to spend time with A. Also the upset of the proceedings made it difficult for her to work. She has not continued the course. She says that the Respondent and his family always agreed that in due course she could go back to Australia.
7. For more than a year now her life has been on hold. She cannot now re-start the course for this year, and she wants to complete the remaining 3 years in Brisbane to finish her university studies. It is not right for A to have to wait given the upset and distress that it will cause for both of them. Any benefit in a continuing and developing relationship in the UK is heavily outweighed by the disadvantage. However much she tries A will be affected and that is not in A's best interests.

The background

8. The father says that after his move to London he saw A initially most weekends with overnight contact. During 2005 contact became more difficult, there was increased acrimony, and the mother changed plans at the last minute. The parties tried mediation. Proceedings started because the mother had decided to take A to Australia, a decision he later said was rash and ill-considered.
9. Contact was reduced after court proceedings had begun to 6 hours every other Saturday. It bore little resemblance to what he had previously enjoyed. The acrimony reached a level at which they found it difficult to communicate with each other.
10. There had been difficulties with the mother. She would not agree to A meeting his new partner M, who had been with him now for more than a year. He has concerns, given the mother's attitude, that she will thwart any continuing relationship he has with A once she is in Australia.
11. The mother for her part considered that the father had been having a relationship with both her and M at the same time which the father denies. Afterwards he had put his new partner before A. She recalls some 7 occasions when he was unable to have contact with A for some reason or other. She considered that she had lost energy and drained herself by trying to encourage contact between A and her father.
12. She had enjoyed a good relationship with the father's family but this had deteriorated. She wanted to return to Brisbane not only because it was her home. H, her sister has 3 children, the youngest being the same age as A. She has recently left Hampshire to return to Brisbane. Her parents have sadly died and she has no other relatives in the UK save for her brother-in-law's family in Hampshire.

The report and evidence of Mrs Plater from CAFCASS of 11 October 2006

13. The mother told her that, whilst the father was a fantastic father to A, he had exaggerated the extent of his involvement in her day to day care. She pointed to the difference between them. He had been able to move on with his life and form a new relationship. She cannot do so. She had few close friends in Bedford and felt isolated. She is very close to her sister H.
14. The father felt that if he was only able to see A once a year the relationship between them would peter out. If they waited till she was older, she will be better able to maintain a relationship with him and her grandparents over a long distance. He had no confidence that the mother would facilitate contact after moving to Brisbane.
15. She observed A with her mother at her home as well as with the father. She was relaxed and at ease in his company and he was very responsive to her. It was a close and loving relationship. Mrs Plater considered that staying for 2 years would benefit A because of her continuing relationship with her father and the extended family. However she felt that there was a risk that the parent's relationship would deteriorate with the mother feeling she had been forced to stay against her will. This would have a negative impact on A. It would be disruptive for her to change to another school in Brisbane if she spent a year here and had already made friends.
16. It was evident that the mother was isolated and lonely. Court proceedings had dominated her life for almost a year and, despite her efforts, A was aware of her sadness. She only had 2 close friends in Bedford.
17. In her assessment she did not underestimate the difficulties involved for A maintaining contact with her father. Contact for an extended period as suggested of a month once a year would not meet fully her emotional needs to maintain a relationship with her father. That had to be balanced against the effect on the mother as a primary carer if she is prevented from returning home. It would not be helpful to delay the decision. She recommended that the mother's application be granted.
18. In her evidence she said that, whilst it was a loss for A not to have contact with her father, she was concerned about the effects on the mother. With quite frequent telephone calls and using a web cam A and her father could retain a relationship; that would be sufficient. The paternal grandmother intends to go out and visit as well. The impression she formed very strongly was that the mother would be putting life on hold if she could not go now. She was also concerned as she had mentioned that the relationship between the parents was likely to deteriorate if the mother had to wait for 2 years.
19. She felt that A had a strong bond with her father and she thought the mother would facilitate contact in Australia. She had been quite distressed during her interview.
20. The father's proposals involved a consideration of A's one year at pre-school. It would start in January 2008 if A was in Australia but it would start in September 2007 if she remained in the UK. It was this which encouraged the father to put forward the date of July 2008 (the end of pre-school) when he agreed the mother could then go to Australia with A.
21. Mrs Plater pointed out that, during the year in the UK in pre-school, A would obviously make friends and it would be more of a wrench if she did not go on to her next school with them. The mother was not entirely isolated, she had support from the church, but formerly she had had lots of support from the father's family. It was the frequency of contact which was important and it would be a huge change for A. It would be difficult to maintain over such a distance. But she was not sure what greater understanding A would have at 4 ½ years old rather than now. She would get better at communicating with her father as she became more used to the web cam.
22. At the age of 3 she would have a good memory of her father. She accepted it would be a different relationship in 18 months. She described the mother as being very flat. If that state continued over a long time it was bound to have an effect on the relationship. It would be more difficult to hide her distress as A got older. She had tried to shield her. She would still see her life on hold; she could not enter into a relationship because of her fear that the same thing would happen again.
23. She thought the mother would be quite upset in the interim period. She had asked her if she was clinically depressed but, even if not, she is not functioning normally. She told Mrs Plater that she was formerly quite happy and bubbly but she saw her as flat now and often upset.
24. If the father's relationship with M had been going on for a year, it was not harmful for A to meet her. The father's suggestion of meeting her at a party in the summer had been a good idea. It was a question of the mother's feelings.
25. She agreed that 2 nights with her mother every 7 days was sensible at the beginning of the father's contact in Australia. She suggested 2 periods of day visits at the start. She supported extended contact before the mother left; if the father could take a week off work that would be helpful.
26. She had been a good mother to A putting her interests first. The mother would come to terms if she had to wait, but her worry was that it would fundamentally alter the relationship between the parties and make things more difficult in Australia.

The mother's evidence

27. She explained how she had lifelong friends in Ferny Hill, Brisbane. She contacted them now by telephone. She would at the beginning live with her sister in a 4 bedroomed property, 2 of the children doubling up. She hoped she would only be there for 2 or 3 weeks. She knew she could rent a property for A$250 for a 4 bedroomed house though she would only need 2 bedrooms. A bond would be required of 2 weeks rental. There were a lot of rented properties around.
28. She has applied to 2 universities to complete her degree. She would hope to go in February 2007. She would not have to pay the fees up front but she would get deferred payments. One university was on the way into the centre from the north, the other was in the western area of Brisbane. She would not know until December or January whether she had a place. The one year in the UK would be transferred and she would then have another 3 years to go. As a student she would get help with the rent, it could be a half. She would probably get child benefit though she did not know how much. Her sister and uncle would help her and if necessary she would do a part-time job. If all else failed she would do a full-time job.
29. There were good prospects for employment in various areas of sport. She had spoken to a course leader in Brisbane. She would be doing work placements but she had not spoken about employment prospects. With a solid degree she was confident she would find a job. It depended on how hard she worked.
30. She was very upset with her life here and the effect on A. She was not happy here and if she had to stay A would have a depressed mother.
31. The family would support her. It would not be difficult for her uncle who, apart from the full-time jobs that he and his wife have, have just purchased their 6^th home this week. She knew him well. Though he lived in Sydney, he had always been in her life and had come over here and seen them. Furthermore she still had savings of the equivalent of about £8,000. At the moment her income on benefits is about £160 a week.
32. She could not move on here. She had taken a year off. She mentioned the position of M whom she felt was forced on her to make her look uncomfortable.
33. She had offered extra contact time but it was not taken up by the father. She would have wanted to have spent every moment with A.
34. It was not in A's best interests to wait for 18 months. There was so much uncertainty. A had seen her mother crying though she had tried to hide it. She wanted A to have a confident mother.
35. She thought that having pre-school in the UK would be disruptive for A. When she went to pre-school in Brisbane they would all be on the same campus, in the same class as her cousin, and they would then all go on into the next year with the same friends. Her 2 cousins also went there and as well as other children she knew who attended.
36. Things had been distorted for her. She had been led to believe she could go home. She trusted him. If she had to remain she did not know how things would be. She would facilitate contact. It was not a question of hope. She would agree to reciprocal court orders. She would abide by court orders, there would be a web cam from the beginning and she wanted the father's family to come.

The adjourned hearing

37. The case went part-heard on 23 October. By good fortune a 3 day case listed later in the week only lasted a day. At short notice, and because of helpful cooperation, the case was able to resume on 26 October. At the end of that day, I heard submissions from Miss Markham for the mother and Miss Saunders for the father. With the agreement of the parties I announced my decision because of the need for a speedy result and my imminent departure on circuit. By then I had heard the mother's evidence conclude, and the evidence of the maternal grandmother, Mrs C, and the father.
38. I said that I would give the mother permission to go to Australia in December 2006. The advantages to A of staying here for a further 20 months or so were heavily outweighed by the advantages to her of leaving earlier rather than later.
39. By the time of the resumed hearing on 26 October, the mother and the father had individually produced a range of information about the mother's likely state-aided resources should she continue her course in Brisbane, the assistance her family could give, the school she had chosen for A, and likely rental costs. The first test the mother faces is whether her proposals are well researched and investigated. They were not when the case began. The mother has been criticised for this last minute information.
40. The mother was I suspect lulled into a false sense of security by the father's acceptance that she would be going at some time. Miss Saunders for the father rightly conceded in her final submission that that hurdle was probably now overcome. I agree. Having gone through the details and studied the arithmetic I am satisfied that the mother will be able to rent appropriate property in the area of her chosen school which A's cousins attend. With her savings, financial guarantees from her family, and state assistance she will live at least as well probably better in Brisbane than she does now in Bedford. She will certainly be happier.
41. The mother resumed her evidence on the second day going through the bundle of documents that she had been able to obtain in the previous few days about her living arrangements in Brisbane. She was quite content for there to be reciprocal agreement and orders. She would like a web cam from the beginning and keep the father updated with photographs, cards and letters. She was prepared to bring A back in 3 years time for 2 weeks in the UK to see the father and his family.
42. She had spoken about her plans to the father. It was where she had lived, and been brought up. She had been back there for 6 months returning in January 2003.
43. Her sister had gone back in June. The friends that she had listed all lived between 10 and 30 minutes away. Her original plan was to stay with her uncle in Sydney maybe for 2 weeks or one month where she also had family and friends. Her sister's husband had already lived in Australia for 11 years and now, after 2 years in the UK, the family had returned permanently to the same suburb of Brisbane where she wanted to live. Her sister has already said that she would help with the care of A.
44. There was no point in staying and having one or two trips to Australia in the meantime. A did not need to get reacquainted with the family. It would not mean much to her to show her her pre-school and school at this age. She would be unhappy staying here and that would make A unhappy.
45. Amongst friends here there was the church. One of the clergy Miss Robinson, gave evidence. Mrs C the maternal grandmother, who also gave evidence, used to be supportive and wishes to be so again. Contact with the mother stopped some time ago.
46. The mother had been disappointed when the father did not turn up or had made other arrangements rather than contact. She kept a diary which is why she was able to say in her statement that there were some 7 occasions. The father does mind A going. He loves A and treats her well.
47. She turned to the arrangements which the father could make on visiting Australia. Her sister had offered him somewhere to stay and she named friends who had agreed to help. She would if needed go without maintenance so he could come and his mother would help out.
48. Her life had been on hold for some time. It was very unhelpful. She had coped for A's sake. She did not want a life of talking to solicitors every 2 days or so and letters coming through the post about proceedings. She was miserable and dying inside. There are poor days. Counselling had not been very helpful. It was better talking to friends in Australia.
49. She did feel unhappy but she did not want to take medication. She regarded herself as being on a jail sentence. She could not continue with the degree though she accepted she could do some other courses. Whilst it would be a countdown if she had to wait, it had already been deferred, the father having agreed in February 2006 that she could go.

The father's evidence

50. He felt that if the mother waited for another 20 months (to July 2008), A would have got to an age where she had good memories of the family. He would not resist if the wait was likely to hurt A but that was not the case.
51. He said that originally he had agreed to allow the mother to take A. That was this time last year. He had felt under some pressure. The mother had taken the view that he had extinguished his rights by leaving and he did not have the confidence to challenge her. It was only when he had spoken to a lawyer that he objected. The mother had undermined his position as a father. The bond that he has with A would go if she went now and be lost. There was a great difference between the ages of 3 and 5. He did not agree that his relationship with the mother would get worse if she had to stay because a lot of her anxiety was the uncertainty.
52. After his move to London in April 2005, he now earns £23,000 a year as an administrative assistant for a building in West London. He was doing a law conversion course part-time with the idea in September 2007 of becoming a full-time student working for his Bar finals. The fees would be £12,000 but he would work part-time. He was now paying £200 a month for A.
53. He felt that 5 December 2006 when the mother wanted to leave was incredibly soon. He did think that 2 day visits were necessary when he went to Australia as Mrs Plater recommended. His fear was that he would go to Australia and contact would be denied. The arrangements would not be followed. He was not going to walk away. Her distrust for him would diminish if she remained here for the 20 months.
54. He had said in his February 2006 statement that the mother could go. His worry was contact. He changed his mind. It took some time but one factor was mediation. He had shown how reasonable he was but the mother fought with him over everything. He felt things were not going to change. It brought into sharp focus whether she would let him see A in Australia. He hoped that time would ease the problem of her anger. If A was 5 she would ask to see him and speak to him.
55. He did not accept that the mother was in limbo. She would have a departure date, she had had a good first year at university. She would have nothing to fight him with if the court said 18 months. She is a wonderful mother. He would only his Bar finals if A stayed here. M was a trainee solicitor. She might be able to assist with trips to Australia as could his parents.

The law

56. There has been no sustained argument on whether the principles set out in Payne v Payne (2001) 1 FLR 1052 applies to this application. The issue here is not whether a mother should take a child permanently abroad but whether it is now or in 20 months time. It is however a valuable framework within which to consider the application and I propose to follow it.
57. In that case Thorpe LJ said –

"a) Pose the question: is the mother's application genuine in the sense it is not motivated by some selfish desire to exclude the father from the child's life? Then ask is the mother's application realistic, by which I mean founded upon practical proposals both well researched and investigated? If the application fails either of these tests refusal will inevitably follow.

b) If however, the application passes these tests then there must be a careful appraisal of the father's opposition: is it motivated by a genuine concern for the future of the child's welfare or is it driven by some ulterior motive? What would be the extent of the detriment to him and his future relationship with the child were the application granted? To what extent would that be offset by extension of the child's relationships with the maternal family and homeland?

c) 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?

d) The outcome of the second and third appraisals must then be brought into an overriding review of the child's welfare as the paramount consideration directed by the statutory checklist insofar as appropriate."

58. In the same case Dame Elizabeth Butler-Sloss said at paragraphs 85 and 86 –

"All the relevant factors need to be considered……. and weighed in the balance, including:

a) the welfare of the child is always paramount,

b) there is no presumption created by s.13(1)(b) in favour of the applicant parent,

c) the reasonable proposals of the parent with a residence order wishing to live abroad carry great weight,

d) these proposals need to be scrutinised with care and the court needs to be satisfied there is genuine motivation for the move and it is not the intention to bring contact between the child and the other parent to an end,

e) the effect upon the applicant parent and new family of the child of a refusal of leave is very important,

f) the effect upon the child of the denial of contact with the other parent and his family is very important,

g) the opportunity for continuing contact between the child and the parent left behind may be very significant."

59. I have also considered the judgment of Charles J in Re: C (Permission to Remove from Jurisdiction) (2003) 1 FLR 1066. At page 1073 he said –

"If the court concludes that a refusal of the application will be likely to have a detrimental impact on the care that the primary carer will give then the guidance in Payne v Payne indicates that that harm will usually outweigh the likelihood of harm flowing from other effects of the proposed move. This is based on a recognition of the importance of stability and happiness in the home."

Submissions

60. Miss Saunders argued on behalf of the father that these were very particular facts. The bitterness would not be long term. The father genuinely wanted to know A better. To lack that opportunity would be detrimental to her. By the age of 5 she would have a better memory, she would recall her father therefore much better, and would be using a web cam in her own right. If she went now she would be catching up all the time. For a child there is a considerable difference between the ages of 3 and 5.
61. The raw wounds which the mother has can be worked on in the meantime; Mrs C wanted it to work. The expected level of the mother's distress is not that high, there was no evidence she would not hold together, and Miss Robinson thought she would cope.
62. It is finite period. She could do valuable work experience here. She could visit Australia in the meantime and her level of distress would not be of the high order of somebody stopped indefinitely from going. She is very unhappy but it is better if she knows when she is going. Contact is likely to be better not worse. Any hiatus for A in education is outweighed for the benefits to her of a longer and deeper relationship with her father.
63. Miss Markham for the mother pointed out that both parents speak highly of each other in that role. The mother has found it difficult to remain here. She has stated that there were days when she did not feel she could go on. She described it as a sentence. Mrs C conceded that A will become more aware. It is right to describe both the mother and A's life as being in limbo if they have to wait. She knows her father and her grandmother and the father had already been able to describe in his statement that their relationship was so strong. The father's risk of losing A is not justified. She will quickly pick up from where she began.

Conclusions

64. It has not been suggested that the mother's application is other than genuine. I also consider it realistic. I then turn to the father's opposition. It is genuine because there is no doubt of his feelings for A and his wish for her to remain in this country so that their relationship will develop. But its origins lie in concerns about contact. As recently as February 2006 the father was not opposing the mother going to Australia with A. What caused him to change his mind as he explained was his fear that the mother would stop contact in Australia working. His reasoning then switched to the idea of a delay because he thought that that would overcome difficulties created by the mother. A would be older and better able to express her own feelings and wishes to see her father. It would have within it an added bonus that he would have longer to see A on a regular basis.
65. I see nothing in this approach that throws doubt on the father's obvious affection for A. It is that he sees delay as a better means of securing contact in the future. I consider the mother is genuine in saying that she will facilitate contact in Australia. Even if she was not I would not regard a wait of 20 months as providing a better prospect of success. It is because the father has not understood what was obvious to Mrs Plater. That is that the mother would resent being compelled to remain in the UK when the father told her she could go. She desperately wants to leave for understandable reasons.
66. I am satisfied that the mother would be deeply frustrated and upset if she was compelled to wait for 20 months. Miss Robinson from the church spoke of how the mother felt, being very much on her own now she was not seeing or being supported by the father's family. It was very distressing for her though there was a support network at the church. She regarded the mother as in limbo, unable to study or take any worthwhile job. It was not ideal to wait for 18 months and she considered that the mother would hate it.
67. In my judgment Mrs Plater, whose evidence I accept, was right to express her concerns about the impact on the mother of a prolonged wait. I do not consider that the mother exaggerated the effect on her. Whilst probably not clinically depressed she is flat, far from her normal buoyant self, and likely to deteriorate if she has to wait longer. She is already not functioning properly as Mrs Plater observed. She is often upset. To wait would cause her serious detriment.
68. I accept that she has tried hard not to show her upset to A and that probably that has had a degree of success so far. I do not consider that it will continue. Even over a 20 month period the mother would become even more upset and depressed. A would become more aware of this as the months go by. It is not surprising. A comparison with the father is helpful. He is 30, three years younger than the mother. He is in full-time employment though not in the occupation of his choice. He has a partner in M and a home in London.
69. The mother lives on state benefits. She understandably gave up her degree when caught up in the litigation and in order to provide stability and full-time care for A. I think it unrealistic to think that she can re-start the course or, on the father's proposals, re-start her course in Brisbane until January 2009 when she would be 36 years old. She wants to graduate, obtain employment, and provide for A. If she has to give up her course it will in part be because she feels she cannot wait because of the delay imposed on her by the father.
70. That is not all. She will wish as a young woman of 33 to meet someone else, make plans, and hopefully form a new relationship. That too has to be put on hold until she arrives in Brisbane. The father's lack of understanding of why this might impact negatively upon the mother and adversely affect their relationship whilst she waited is surprising.
71. There will also be a direct impact on A. The father's plans would mean her starting pre-school for a year in the UK from September 2007 to July 2008. Having then prepared herself for her next school, there would be a 6 month wait before she started again in Australia in January 2009. It is not just that delay. It is quite apparent that by far the greater number of pupils at the pre-school in Brisbane she would start in January 2007 and go on to her next school. It is a major disadvantage for A to have a year at pre-school here, then wait for 6 months to start at a school in Brisbane where she would hardly know anyone. It would be far better for her to start there in January next year.
72. The father has failed to realise what his change of mind has meant to the mother. He has not appreciated the marked effect on her that the delay has already had. He does not see that the further delay would be likely to make the mother more depressed and inevitably have an adverse effect on A. She must already be aware that her mother is not the former happy bubbly person she used to be. That will become worse as the mother tries to grapple with what she sees as a further 20 wasted months here. She has already waited nearly a year. A's awareness of her mother's state will increase with age and within that period.
73. I accept that A's relationship with her father would grow. That is important. But it is wholly out of proportion firstly to the loss to A of 6 months waiting to join a school where she would be a stranger rather than with friends. Secondly the mother's understandable resentment would be bound to affect her relationship with the father. Far from her relationship with the father improving, it is likely to deteriorate further.
74. Finally it is not just unreasonable to require the mother's life to be put on hold. Her disappointment and upset has already affected her. It was plain to Mrs Plater. It can only get worse which will affect the quality of her care for A despite her efforts to prevent it.
75. The father's opposition is natural because he wants to see more of A for a longer period. But it is at a price. It has already and will increasingly be offset by a less stable and more unhappy home for A because of her mother's understandable distress. That I am satisfied will come to an end when the mother is back in Brisbane.
76. I have reached a clear conclusion. Whilst I have sympathy for the father, A's best interests demand that her mother be now permitted to go to Australia with her for the reasons set out above.