England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
MANCHESTER DISTRICT REGISTRY
IN THE MATTER OF THE CHILDREN ACT 1989
AND IN THE MATTER OF: N (A CHILD)

		Civil Justice Centre1 Bridge Street West Manchester M60 9DJ
		28th January 2014

JUDGMENT

THE JUDGE: Can I begin by thanking each of the advocates for their very helpful presentations of their clients' respective cases. Without wishing to be invidious, Miss E, if I may say, had a particularly difficult task which she has performed with great care and skill.

I INTRODUCTION

1. I am concerned with C who was born on 4^th April of 2010, so C is now aged 3 years and 8 months. C's mother is A, now aged nearly 32 and his father is B now aged 39. I hope they will both forgive me if I refer to them as the "mother" and the "father" during this judgment by way of shorthand.
2. C's CAFCASS guardian is Claire Quinn.
3. This is the mother's application for leave to remove C from the jurisdiction of this court to live permanently in Tanzania. The application is now unequivocally supported by C's guardian. The father is, understandably, desperately opposed to C leaving the UK and were C to remain here, he would seek a higher level of contact than is currently being provided. Realistically, he does not now pursue an application for a residence order.
4. The mother made it clear during a hearing before District Judge Wheeler on 27^th March 2013 that she wished to take C to live permanently in Tanzania, a non-Hague Convention country. Her application was not actually issued until 29^th April 2013 and was then allocated to me sitting as a Judge of the High Court pursuant to section 9 for determination. There have been a number of subsequent case management hearings.
5. For this hearing I have read and re-read the relevant documents from the two lever arch files with which I have been provided. I have heard oral evidence from

a. the mother,

b. the father,

c. Mr and Mrs B, the paternal grandparents and

d. Miss Quinn.

I have been provided with voluminous material which the father has downloaded from the internet. I have read that material but can attach only limited weight to it. A good deal of it is irrelevant to C, the presentation is highly selective and at times tendentious.

6. At the conclusion of the evidence, a fortnight ago now, I informed the parties of my conclusion, although pressure of other cases did not permit me to set out my reasons at that stage. I decided to do so, partially because I am acutely conscious of the strain that these proceedings have imposed upon everybody, but also to give the parties the opportunity of beginning to resolve the practicalities in the implementation of the orders which flow from my decision.

II THE AGREED BACKGROUND

7. The mother was born and raised in Tanzania. Her father is now the [post held stated] for an area of Tanzania called Area A, a substantial distance from the usual family home in Area B. Her mother is a teacher and runs a number of small businesses. She has four siblings: three sisters and one brother. The older sisters are independent but living at home with the mother and father is her younger sister and her brother who remain in education.
8. Having secured a degree in law from a university in Tanzania the mother came to the UK to study for a Masters degree at University A in 2008. The mother speaks Swahili and English fluently. The mother would, I think, describe herself as a black African woman.
9. The father was born and raised in City B. It is agreed that, sadly, he has had a significant history of psychiatric problems and developed an addiction to heroin during his 20s. He committed a range of criminal offences between 1994 and 2006, including offences of dishonesty, possession of drugs, assault and robbery. He served two sentences of imprisonment. He has not been in any trouble recently, having undergone extensive drug rehabilitation programmes and is now studying at [university named].
10. At a point when the father's life was in some chaos, he formed a relationship with a troubled and also drug-addicted young woman. Their son, G, was born on 16^th July 2001. The Local Authority, Local Authority A, was involved even prior to G's birth and he was quickly made the subject of public law proceedings. The court made a care order in relation to G on 21^st June of 2002. He was placed with his paternal grandparents where he has remained and where he receives an extremely high level of care and is evidently thriving. The care order was discharged on 6^th May of 2009 and his grandparents now hold a residence order for him. The father and the grandparents are white British. G's mother was black, so G is of mixed ethnicity. His grandparents have gone to considerable lengths to ensure that G has a good understanding of his heritage and background.
11. The parents met via the internet in February 2009, began a relationship and subsequently the mother became pregnant. Once she had completed her course her UK visa expired and she returned to Tanzania in January 2010. Subsequently the father joined her in Tanzania.
12. C was born, in Tanzania, on 4^th April 2010 and the parents underwent a civil ceremony of marriage in Tanzania on 28^th April of that year. In the autumn of 2010 the father returned to the UK and arranged the necessary paperwork to enable the mother and C to join him. They arrived in City B in February 2011 and lived there together until the summer of 2012. In June 2012 the family, including the paternal grandparents and G, travelled to Tanzania for a church blessing of the marriage and associated celebrations. Both parties agree that by that stage the marriage was in difficulties, although their explanations as to how and why differ.
13. On 8^th August 2012 the parents returned to the UK with C. Over the coming weeks there were arguments and unpleasant scenes. On or about 5^th September 2012 the father admitted to the mother that he had taken heroin on the very day that they had returned to the UK. On 27^th October 2012 the mother left City B with C to stay with a friend in City A. A few days later she informed the father that she could not continue with the marriage. She returned on 3^rd November 2012 to City B only to collect her personal belongings. She says that the father knew the address where she was staying.
14. The father obtained legal aid and on 9^th November 2012 issued an application, without notice, for residence and contact orders, for a prohibited steps order and a recovery order. Her Honour Judge B QC sitting in City B granted the prohibited steps order preventing the mother from removing C from the jurisdiction. On 16^th November the mother did not attend the adjourned hearing before Her Honour Judge B QC but was legally represented. The prohibited steps order was continued. Despite the absence of safeguarding checks, the court made orders for contact to the father, including unsupervised staying contact. The mother responded by pointing out her concerns as to the father's use of illicit drugs and when the matter came back before Her Honour Judge B QC on 23^rd January 2013. Contact to the father was ordered on each Sunday from 10am to 6pm supervised by the paternal grandparents with the mother being responsible for bringing C to and from City B by train each weekend. Thereafter the contact order has been tweaked from time to time but contact has essentially remained as a day on either Saturday or Sunday on about three out of four weekends supervised by the paternal grandparents.
15. The case was transferred to County Court A and came before me, as I have described, on 29^th April of 2013. I directed a CAFCASS report, a legal opinion as to the enforceability of any orders of this court in Tanzania and witness statements, listing the matter for an issues resolution hearing on 28^th August of 2013. In the event, on 20^th August Miss Quinn had not been able to address the mother's application for leave to remove C, dealing only with the then extant cross-applications for residence and contact. The expert evidence on the legislative position in Tanzania was not available and it was necessary to adjourn the final hearing to 2^nd October of 2013.
16. On that date, with the agreement of all parties including CAFCASS, I made C a party to the proceedings and appointed Miss Quinn as his CAFCASS guardian. Miss Quinn was, legitimately, anxious as to the position of a child of mixed ethnicity in a largely black environment in Tanzania and sought expert evidence on the point. I subsequently granted an application for Dr Fatimelehin, a consultant psychologist with a particular expertise in this area, to be instructed and to address that issue. I adjourned the case and also varied the interim contact arrangements following an unpleasant incident which took place at the railway station in City B on 29^th September of 2013. Again, I directed further evidence and adjourned the issues resolution hearing to 14^th November. On that date I gave further directions to facilitate a final hearing and listed that hearing to commence on 6^th January 2014.
17. Finally by way of background, I record that the mother now has indefinite leave to remain in the UK, granted in February 2013.

III THE LEGAL FRAMEWORK

18. I have reminded myself of the paramountcy of the welfare of C and the welfare checklist at section 1(3) of the Children Act. I am acutely conscious that were I to grant the mother's application, it would result in a significant interference with the Article 8 rights of the father and of C to respect for their family life which can only be justified by pressing concerns for the welfare of C. Any such interference must, of course, be reasonable, proportionate and in accordance with law.
19. I have been referred, inevitably, to the decision in Payne v Payne [2001] 1 FLR 1052. It is apparent from that decision that the welfare of C is my paramount consideration but also that refusing the primary carer's reasonable proposals for the relocation of her family life is likely to impact deleteriously on the welfare of the dependent child. Therefore, the application to relocate will normally be granted unless the court concludes that it is incompatible with the welfare of the child. Having stressed that there is no legal presumption in favour of the reasonable proposal of the primary carer, Lord Justice Thorpe held this:

"To guard against the risk of too perfunctory an investigation resulting from too ready an assumption that the mother's proposals are necessarily compatible with the child's welfare I would suggest the following discipline as a prelude to conclusion: Pose the question: 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? Then ask is the mother's application realistic, by which I mean founded on practical proposals both well researched and investigated? If the application fails either of these tests refusal will inevitably follow."

20. In her judgment the former President held as follows:

"In summary I would suggest that the following considerations should be in the forefront of the mind of a judge trying one of these difficult cases. They are not and could not be exclusive of the other important matters which arise in the individual case to be decided. All the relevant factors need to be considered, including the points I make below, so far as they are relevant, and weighed in the balance. The points I make are obvious but in view of the arguments presented to us in this case, it may be worthwhile to repeat them:

(a) the welfare of the child is always paramount;

(b) there is no presumption created by section 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) consequently the proposals have to be scrutinised with care and the court needs to be satisfied that there is a genuine motivation for the move and not the intention to end contact between the child and the other parent;

(e) the effect upon the applicant parent and the 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 in some cases his family is very important;

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

21. I am conscious that Payne has been the subject of much debate and, indeed trenchant criticism over the years. However, it is binding upon me.
22. Miss E has pointed to the decision of Lady Justice Black in K v K [2012] 2 FLR 880 and I accept entirely the proposition that the only true authoritative principle is that the welfare of the child is paramount in my decision-making. K v K does deal with a very different situation where the child was effectively co-parented before the application to remove from the jurisdiction.
23. Miss D has also referred me to the decision of Mr Justice Holman in S v Z [2012] EWHC 868 46 which is interesting in that it also addresses the removal of a child to Tanzania but although a useful illustration of the working through of the welfare jurisdiction in this type of case, it does not break any new ground.
24. Finally, I have to bear in mind that Tanzania is not a signatory to the Hague Convention. There is no practical means of enforcing any order of this court and no obvious process of notarised agreements or mirror orders which might assist. The evidence to that effect which is found at E35 in the bundle from IMMMA, a firm of advocates in Tanzania linked to an English law firm has not been disputed.

IV MY IMPRESSION OF THE WITNESSES

25. The mother is basically an intelligent and articulate young woman, though historically she has behaved in a somewhat naïve and immature fashion. Her evidence was, perhaps understandably, defensive at times as though she was trying to anticipate criticism. On an emotional level she presented as open and warm. She was very willing to make sensible concessions. I found her basically sincere and I am entirely satisfied that C is at the centre of her existence.
26. The father was quietly spoken and I have no doubt at all about his love for his son. I appreciate his desperate anxiety to prevent C moving to Tanzania. However, I am sad to say that I found him a most unusual witness with elements of distorted thinking, obsessiveness and occasionally something close to paranoia. I was struck by his inability to see events from any perspective other than his own. It was readily apparent that, even on his own account, honesty is not one of his stronger characteristics. His confused account of the lies which he told professionals to secure therapy, his inaccurate accounts of a telephone call to the police involving the keys to his car, his failure to be completely frank with the court when he applied without notice to the court in City B early in these proceedings, are only three of very many examples. I did not find him a convincing witness.
27. Both paternal grandparents were obviously decent and caring people, somewhat bewildered to find themselves in this unhappy predicament. Although strongly identified with their son for understandable reasons, I thought they strove to put C's interests first and I found their evidence basically reliable.
28. Dr Fatimelehin addressed two comparatively narrow areas of the evidence. I found her evidence on those issues persuasive and I accept it.
29. Miss Quinn is an experienced CAFCASS officer who has expressed herself with care and clarity. Her approach to the mother's application has been very cautious and thorough. I have no doubt as to her understanding of the gravity of the recommendations she was making. I accept her evidence as honest and reliable.

V MY FINDINGS

30. I have been specifically requested by the parties not to make any findings in relation to the incident which occurred at City B railway station on 29^th September 2013 and I do not do so. Were it to have been necessary for me to have investigated what happened on that occasion, these proceedings would have been delayed yet further for the gathering of evidence.

The mother's motives for this application

31. The father suggests that the mother does not really want to return to Tanzania to live; rather, he says, she wants permission to go so that she is able to cut the paternal family out of C's life, whereupon she will return secretly to the UK.
32. The breakdown of the parents' marriage has, no doubt, had a deeply unhappy impact upon the father but the circumstances were really quite devastating for the mother. It was only following the revelation by the father in early September 2012 that he had recently used heroin and that he had used heroin in the past, that she discovered there was any hint of the father taking drugs. She has only learned as these proceedings have unfolded that the father has a lengthy history of psychiatric problems, that he had been for very many years a heroin addict and that was the reason why he was not caring for his son, G. She only discovered through the safeguarding checks in these proceedings that the father also had an extensive history of criminal offending and that he had been to prison. I accept the mother's evidence that CAFCASS advised her to be very wary of the father in the light of his conviction for an assault on a previous partner, G's mother, and that she should not give him her address in City A.
33. I accept that, at times, the mother has been genuinely fearful of the father. This is a man whom she loved and trusted, to the extent that she was willing to have his child and to make her home in a foreign country.
34. I am not persuaded by the father's evidence that she said early in the relationship she did not want to know anything about his past whatsoever. Even if she did, anyone with any degree of decency would have appreciated that these matters were not insignificant trivia about, say, a previous girlfriend, but crucial information that a potential life partner and a potential joint parent was entitled to know before committing themselves.
35. The father's level of dishonesty displays a callous disregard for the mother's welfare and that of their joint child which is relevant to my decision. Her discovery of his deceit, her reaction to his use of heroin and her entirely reasonable decision that she could not continue living with him, left her stranded far from home in City B and subsequently City A with very limited emotional support, at a time of huge misery and distress with a child to consider. I quote from her evidence:

"When I found out about his history of drug taking, it was the worst thing ever in my life. I went and washed myself. I was heartbroken."

Accepting that this was, in retrospect, an overreaction, she said she did not even want him to touch C in case C became "infected" by the drugs the father had taken.

The circumstances of the breakdown of the marriage, in my judgment, make the mother's desire to return to her home and family all the more reasonable and explicable. As Miss D put it, "she needs her mum".

36. The fact that the father does not really accept or understand any of this is quite telling. Even during his evidence he persisted in seeking to attribute blame to the mother for her inability to, as he put it, "to accept my past," and seeking to deflect blame by saying that he had asked other people who had told him not to be truthful, "It's your past; you don't need to tell her". He also seems to have persuaded himself that if they undertook mediation and started to get on better the mother could somehow be persuaded to stay on in the UK. Perhaps even more puzzling was his evidence that anyway he was "appealing" all of his criminal convictions saying that he was innocent of all of them. These passages of his evidence were particualry clear illustrations of his capacity for distorted thinking and his difficulty in seeing the world through the eyes of others.
37. The father cites in support of his contention that the mother is not genuine in her desire to go to Tanzania what he says are the problems he has had in securing contact to C. I have heard detailed evidence of the times and dates when contact has not taken place and I accept that the paternal grandparents have done their best to tell the truth about those issues. I am, however, persuaded that:

a. there have been times when the mother or C have genuinely not been well,

b. there have been a couple of times when contact did actually take place despite the father's contention to the contrary, for example on 30^th June 2013 when it is clear from his telephone call to the police that C was in City B,

c. on a number of other occasions the grandparents who had the responsibility of supervising contact were on holiday,

d. on a couple of occasions there have been genuine misunderstandings as to the arrangements and

e. on one occasion the money for travel was not sent in sufficient time to enable the mother to go to City B.

38. The mother's compliance with the order has not been perfect but, taking a broad view, it is clear that on the substantial preponderance of weekends over a period of at least a year the mother has got C ready early in the morning, taken a bus to the railway station in City A, then a train to City B, waited for the day in City B, collected C again at the end of contact from, usually, the paternal grandfather, taken a train back to City A and then got the bus home.
39. More importantly, it is apparent that she has prepared and positively encouraged C emotionally to enjoy the time he spends with his paternal family. There is no evidence at all that she has ever sought to undermine C's relationship with his father and she has made sure that C enjoys contact. She told me "he loves to go".
40. In essence, I accept the submissions made on her behalf along with the advice of the guardian that the quality of the relationship between C and his paternal family is evidence which is reliable in indicating that this is a mother who has been committed to contact. I am quite sure that if the mother had set out to destroy or damage C's relationship with his paternal family, she could easily have done so. That is not a scenario that is unknown to these courts. She chose not to go down that road. The mother told me:

"I want to be peaceful and friendly with C's father. We shouldn't quarrel. He needs his father."

The father says this is a game of "double bluff" which the mother is playing. I disagree. The only sensible conclusion is that she does recognise the importance to C of a good relationship with his paternal family despite the bitterness around the ending of her adult relationship with the father and that she is willing to support and promote contact.

41. I doubt if the mother has herself planned for the long term future. She has leave to remain in the UK and C is a British citizen, so they are entitled to return to the UK when they choose to do so. I am, however, entirely satisfied that the mother's present wish to return to Tanzania is not motivated by any improper desire to exclude the paternal family from C's life. The mother's motives are, of course, closely linked with the substantive merits of her application which I will address in due course.

Are the mother's proposals well researched and investigated?

42. The mother is not proposing a step into the unknown. Her plan is to go "home", to return to live with C in the visitors' bungalow in the gardens of her parents' home. The property is of a sufficient size, it is where the mother and father previously stayed on their three protracted visits to Tanzania. Her parents' home is in an affluent suburb of Area B called Area C and is surrounded by other houses of a similar size with gardens and a degree of security. I envisage that even if the mother and C are actually sleeping in the bungalow, much of their time will be spent in the main house which is very large and well appointed. For example, she explained that usually meals were taken as a family with her younger brother and sister who remain at home.
43. The father has criticisms of the property, for example, that the electrical wiring would not meet British standards and that there is generally a casual approach to health and safety issues. He points out that on one occasion when he visited there was a good deal of potentially dangerous equipment and general rubbish stored at the back of the main house. The mother counters by saying that that area of the garden is not somewhere where any member of the family, as opposed to the gardener, would normally go, that the area is now, in any event, clear and she says that the electrical wiring is of an acceptable standard.
44. The maternal grandmother has written to the court assuring me that the mother and C will be financially supported for as long as this proves necessary. I have already referred to the maternal grandfather's position. His post is held on renewable five year terms. I accept that he is nearing 60 years of age and also that his current post is an appointment which is in the gift of the President of Tanzania and thereby always subject to the vagaries of elections. However, at present he clearly holds a prestigious and well-remunerated position. He has clearly held a senior post in the Tanzanian army and I can be reasonably confident that he has adequate, if not generous, financial pension provision even should his present position come to an end. The maternal grandmother is herself employed as a teacher and runs a number of small businesses. The mother's older siblings are in respectable and remunerative employment. This is an affluent family with a high standard of living. I am entirely satisfied that financially the mother will be well supported by her family as will C.
45. In any event, I accept the mother's evidence that she is very likely to be able to return to her former employment in a bank in Area B. It is not disputed that when she was last home in May 2013 she was offered such employment, which she declined. The letter of offer is at C77 in the bundle. She said in evidence, and I accept:

"In Tanzania if you have the qualifications it is easy to get a decent job and they will be very happy to take me back."

The grandmother runs a number of small business enterprises and the mother could work for the grandmother temporarily until she obtained a suitable job.

46. The mother has identified a private school which she proposes C should attend at the start of the new term in summer 2014 when he will be 4. I have read the details about that school found at C52 in the bundle onwards. The mother points out that she and her siblings have all enjoyed the advantages of private education, that the fees are modest in the context of her anticipated salary and that her parents have confirmed their willingness to pay for private education for C should she, for whatever reason, be unable to afford the fees. Even allowing for an element of self-promotion in the material that has been provided by the school, this seems to me an established and well run international school. C would be taken to school by his mother and probably collected by his grandmother whose own teaching commitments end at 2pm. If necessary, there is a full-time maid at home who could provide back-up care if that were necessary whilst his mother was at work.
47. I have read the relevant documentation and it seems not to be disputed that private local medical services are of a high quality
48. I am always concerned when a young child is being taken from England to a country where English is not the first language because of the risk that such a child may end up being unable to communicate effectively with a parent left behind. I have already noted the excellent standard of the mother's English. I accept her evidence that she and her family speak both English and Swahili quite naturally at home. At the school she proposes, all of the teaching is in English and all secondary and tertiary education in Tanzania, whether at private or public school, is now taught through the medium of English. I am reassured there is no real risk of C's fluency in English being undermined by a removal to Tanzania.
49. Taking all of the evidence into account and particularly that the mother is seeking to relocate to very familiar surroundings, I am satisfied that the mother has made entirely sensible and realistic practical arrangements for herself and C.

What are the advantages and disadvantages for C of a move to Tanzania?

50. The father now concedes that there is no basis founded on C's welfare that he should live anywhere other than with his mother, subject, of course, to his contention that this should be in the UK. Whilst C enjoys his visits to his paternal family, it is right to recognise that his primary attachment lies with his mother.
51. The mother is an African woman. I noted that when she spoke of Tanzania, quite unconsciously she referred to it as "home". Her life has been largely spent in Tanzania and were it not for her relationship with the father, I have no doubt that that is where she would be living now. I was also struck by her genuine fear when she said, "I can't die in this country here on my own".
52. In Tanzania the mother would be returning to her place within a warm and loving family who will provide support, both practical and emotional, for her and C. This is a close family. She speaks to her mother every day and to her sister several times each week by Skype. The extended family, including aunts, uncles and cousins, live a few minutes away. C was born in Tanzania. He has already spent a proportion of his life there. When the parents' relationship was going well, it was anticipated that they would move freely between Tanzania and England, living and working in both countries.
53. In England the mother has been unable to obtain employment, partly because of her responsibilities to C, partly because her efforts have been limited to trying to find employment within a bank and have been unsuccessful, so she is currently relying on state benefits. I find that the father is very unlikely to be in a position in the short to medium time future to provide any meaningful, financial support for his son. The father suggests that the mother is "running a business" In effect, she buys clothes in City A, sends them to her mother who gives them away or, and perhaps more often, sells them. The reality, in my judgment, is that this is a young woman who enjoys fashion, who likes to go shopping on behalf of others and that provides her with a means of occupying her time, rather than it being a reliable source of income.
54. So, the mother rents a modest house in the City A area. Whilst she has made a life for herself in City A, she is not particularly happy here. She has an aunt in Area D to whom she talks on the phone but whom she has not seen recently. She developed a small network of friends but she does not see any of them on a regular basis. Inevitably, she and C are somewhat isolated and her life revolves around meeting C's needs and at weekends travelling to and from City B. She clearly misses the love and practical assistance of her extended family.
55. There are, of course, some manifest disadvantages for C in a move to Tanzania. I do not accept the underlying theme of some of the father's evidence that C is "clearly better off in England," than in a relatively poor and underdeveloped African state. I cannot approach this case on the basis of some Eurocentric assumption of inherent superiority over other countries.
56. What is, however, crucial is that the time that C is able to spend with his paternal family will be drastically reduced. The mother proposes that she will return to the UK once each year for about two weeks to allow C to stay with his paternal grandparents and to see his father. She anticipates that any employer will only provide her with four weeks holiday in total each year. She also suggests that the father and the paternal grandparents and G could visit Tanzania whenever they wished and either stay in the family home or at a nearby hotel saying, "I don't want us to be enemies". Realistically, the financial resources of the paternal family are unlikely to permit them to visit Tanzania more than once a year and the father has expressed some trepidation and reluctance to do so.
57. In terms of indirect contact, telephone contact has not been very successful. C is already familiar with Skype and the mother would be happy for C to receive cards, letters, pictures and so forth and to reciprocate. However, I accept entirely the validity of Miss E's submission that Skype and indirect contact is no substitute for ordinary face-to-face contact arrangements and that the relaxed and easy going relationship which C currently enjoys with his paternal family will be put in jeopardy.
58. I am also conscious of Dr Fatimalehin's evidence. At E80, having referred to the need that all children have for stability and consistency of care she comments:

"However, there are additional considerations for the emotional and psychological development of children of dual or mixed ethnic heritage. They benefit from being raised in multicultural schools and neighbourhoods where there are other children and young people from similar backgrounds and in which their dual or mixed heritage is viewed positively. Furthermore, they are more likely to develop a strong and positive sense of their ethnic identity if both their parents are involved in their care and both parents are able to talk openly and positively about any challenges they may face as a result of their ethnicity. Children and young people of dual ethnicity benefit from identification with both their parents and their ability to develop a secure and positive ethnic identity is strongly linked to their sense of self-worth and self-esteem."

She confirmed in oral evidence that given C's dual heritage, it is, as she puts it, "absolutely crucial" that C has the opportunity of a positive relationship with both parents and for both parents to promote the positive sides of his dual heritage with giving him knowledge and awareness of both histories.

59. Having said that, I do not accept the submission that C will be "emotionally devastated" by separation from his paternal family. That is putting it too high. C will grieve the loss of his paternal family but this child's true security lies with his mother. She is his primary attachment figure and I judge that any potential harm will be mitigated by the quality of this relationship. In this respect, I rely on the evidence of the guardian. She told me that "C is a resilient child; he is bright and securely attached to his mother. He will recover. He will develop a relationship with his maternal family and he will start to see his family as a larger unit incorporating both the maternal and paternal family in a way it does not at the moment. C will be able to cope." I say in parenthesis, of course, it goes without saying it would be better if he did not have to cope. The mother said that she believed C would be able to settle anywhere and that he needed to understand that he had an African family as well as his birth family and she pointed out that when he first came to England C did not know his father at all but has been able to adapt.
60. All of these issues are made more concrete by some of C's recent behaviours where at school and to his parents he has described himself as "white"; he has expressed a desire to be white and a wish only to play with white children. This level of confusion is a worry to both parents. The mother has raised it with C's teachers who have done work with the whole class on issues of difference.
61. I suspect that even if C were to remain in England, it would be a very long time before a court would be prepared to agree to the father's contact to C progressing to unsupervised contact and I certainly cannot presently envisage a scenario which might amount to something approaching shared residence. Both the parents owe a huge debt of gratitude to the paternal grandparents for their willingness to supervise C's contact to his father. The only alternative would have been professional supervision and that could not possibly have enabled C to enjoy the quality of relationship with his paternal family that he now has.
62. This is a father who has had significant mental health issues over an extended period exacerbated by the use of illicit drugs. On his own account he is about to undergo treatment for post-traumatic stress disorder, he continues to have problems with anxiety, stress and sleeping. He remains, in my judgment, vulnerable to the misuse of illegal drugs in the future. I was very unimpressed that when ordered to provide a hair strand test he saw fit to shave his head and body hair. I do, however, note that the recent drug tests found at E85 in December 2013 are clear.
63. The father's evidence was that once the mother and C are in Tanzania he will never see C again. Of course, I do recognise how heartbreaking the paternal family must find this situation and I cannot ignore entirely the risk that they may be proved right. However, my clear impression, as I have already recorded—

B: [Interrupts…]

THE JUDGE: I will rise.

[Short adjournment]

MISS E: My lady, I am very grateful for allowing B some time to collect his thoughts. He does wish to listen to the conclusion of the judgment and understands that everybody needs to listen to the decision of the court.

THE JUDGE: I appreciate how difficult this must be for him.

64. I was, in fact, at the point in my judgment where I was indicating that I understood, as far as one ever can, how heartbreaking the paternal family must find this situation and that I cannot ignore the risk that he may be proved right. But my clear impression is that the mother does recognise the important role which the father, G and Mr and Mrs B play in C's life, is conscious of the harm that cessation of contact would cause to C and that she will promote contact in the future.
65. The father is, I think, genuinely very anxious about C's security in Area B and he was himself subject to a robbery at a market during his last visit. Although I was not wholly persuaded by his account of what exactly happened and why, I do accept his evidence and that of his parents that the maternal grandfather carries with him a loaded pistol and was very concerned about the safety and security of his English visitors. I do accept that as with any developing country where the gap between rich and poor is very wide, there are risks of violence and theft which are greater than those which are present in more developed, equal societies.
66. The mother assures me that the family takes sensible precautions, that their home is in a safe area, that it is gated and she points out that C will not be a white visitor, he will be growing up as part of this society, he will learn to recognise and address the risks as the mother and her family are accustomed to doing. As Dr Fatimelehin put it, "it all comes down to the specifics of who you are and where you live". Nevertheless, I do accept that C's physical security and safety must be weighed in the balance.
67. Finally, I record the father's concerns which I think until Dr Fatimelehin reported, may have been shared by the guardian, that as a child of mixed ethnicity C would be disadvantaged, may be discriminated against as well as being a likely target of crime in Tanzania. I have already apologised to the mother for descending to a remark which may appear highly personal but I am bound to observe that she is herself quite pale skinned and, as with many Tanzanians, her heritage clearly includes white or Arab elements as well as black African. I suspected that she was right in asserting that in most African countries if anything lightness of skin is a positive advantage and that was, indeed confirmed by Dr Fatimelehin.
68. Dr Fatimelehin's oral evidence confirmed the terms of her report which I will not read fully into this judgment. She referred to rather limited published research and a couple of first-hand accounts but was quite clear that:

"The impact of a dual ethnic heritage is that C will be linked to whiteness and privilege in terms of education, health care and employment. There will be an element of positive discrimination."

She noted that in an international school attended by expatriate children, C was very unlikely to be the only child of mixed ethnicity. I am satisfied that C will not be substantially disadvantaged by the fact that he is a child of mixed ethnicity.

The balancing exercise

69. Ultimately, having sought to balance all the factors and having, I hope, addressed all of the relevant aspects of the welfare checklist, I am satisfied that basically this is a good mother focused on her son's welfare. She would be a good parent to C in the UK but she would be a better parent in Tanzania. She would not, in my judgment, have pursued this application for selfish motives if she genuinely felt that C's welfare would be promoted by remaining in the UK. She perceives for herself and C a better standard of living, a higher quality of life, particularly in terms of his relationships with his maternal family and generally a greater degree of integration and emotional support for C than is the current situation. She put it thus: "I want C to have a better future".
70. So I am satisfied that it does accord with the welfare interests of C for his mother to be permitted to take him to live in Tanzania. In reaching that decision I have, I hope, accorded appropriate weight to the impact which removal will have upon C's relationship with his paternal family.
71. I have sought to analyse the evidence on its merits. It is, of course, reassuring that an experienced CAFCASS officer who has had the opportunity, which I have not, of seeing C with both of his parents has reached the same conclusion but I hope it will be apparent that I have reached an independent decision. For completeness I record the guardian's summary:

"Mother's heart remains in Tanzania and she wants to build her life there and raise her child there. She impressed me as genuine in her desire to retain contact with the paternal family and to promote his dual heritage."

72. For the avoidance of any doubt, although none of the parties had initially addressed me on this issue, I have considered whether I should refuse leave on this occasion on the understanding that the position could be reconsidered in, say, twelve months' time thereby giving C the opportunity to further consolidate his relationship with his father and paternal family and perhaps his grasp of English. I have rejected that course since I have concluded that at his present, tender age and the fact that he is "pre-school" it will be easier for him to cope with the transition now than it would be in even a few years' time.

The impact of a refusal to permit relocation upon the mother

73. Finally, I record my finding that the mother would be utterly devastated if refused permission to relocate to Tanzania. She has pinned all her hopes on the success of this application. She is a relatively robust, young woman and would, no doubt, do her best to adjust to the consequences of a refusal of leave. However, her disappointment and distress would inevitably have some impact upon her ability to provide a stable, secure and nurturing environment for C. I have dealt with this factor briefly at the conclusion of my findings so as to emphasise that the mother's interests have been far from determinative in reaching my judgment. Even were that factor to be absent, the arguments for granting leave to relocate are overwhelming.
74. I will discuss with counsel the precise orders that I need to make but there is one important development. I am very grateful to Miss Quinn who has agreed on behalf of CAFCASS to the making of a family assistance order for a period of three months. I agree with her that the scope for improving the relationship between the parents at this stage is limited, but I hope that she will be able to assist in providing a bridge between the parents. She envisages being able to, as she put it, "oil the wheels of communication" as a neutral third party. She hopes to help the parents in deciding how they will communicate in future years and to encourage a proper "give and take" within that communication, to get Skype contact underway and to enable what might be described as "life story work" to be completed for C, including the preparation of a volume of photographs and keepsakes of his paternal family which C can take with him.
75. Mr and Mrs B, you may also have an important role to play in that process over the next few months because I suspect it may be easier for the mother to communicate with you than to communicate with the father. I have no doubt that is something that Miss Quinn will bear in mind. I have also been wondering, for instance, whether if you were to visit Tanzania, even if your son chooses not to do so, contact could take place in Tanzania in an environment more accustomed to tourists than downtown Area B. There are some delightful areas in Tanzania that are completely safe and where I am sure that you and G along with C could have a very enjoyable holiday - but those are matters for the future.

VI ORDERS

76. I will hear any further submissions as may be necessary but I anticipate making the following orders:

i. C shall reside with his mother,

ii. The mother has permission to remove C from the jurisdiction of England and Wales to reside permanently in Tanzania,

iii. There shall be a transcript of this judgment, the cost of which shall be shared equally between the parties and a copy sent by Ms … Instructing Solicitors to Dr Fatimelehin with my gratitude for her ready assistance.

77. I record that that the reasonable costs of this judgment being translated into Swahili would be a proper disbursement on the mother's public funding certificate. Should there ever be any difficulty in the future, I hope that possession of that document may assist C.
78. I have thought carefully about the question of whether I make an order for defined contact. The parties agree that I should but I do not know if you have actually discussed the precise terms of that.
[Discussions re order follow. Final orders made on 5.3.14]