S v G (Relocation to Russia) [2015] EWFC 4

IMPORTANT NOTICE

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

Case No TN14P00214

[2015] EWFC 4

Date 14 January 2015

IN THE FAMILY COURT

Before

THE HONOURABLE MR JUSTICE PETER JACKSON

Sitting at the Royal Courts of Justice

Between

S (mother)Applicant/

G (father)Respondent/

Mark Jarman (instructed by Stewarts Law LLP) for Applicant

Kelly Webb (instructed by Barford Fraser Solicitors) for Respondent

Hearing Hearing dates: 17 & 19 December 2014

Judgment date: 14 January 2015

JUDGMENT:

[1]These proceedings relate to Daniel, who was born on 27 May 2012 and is now 2½ years old. He is a dual British and Russian citizen who has spent just under a year of his life in Russia and the remainder in England. His parents' short marriage broke down in April 2014 and since June 2014 his time has been divided equally between them in consequence of a series of court decisions. His father now seeks a child arrangements order under which Daniel would live with him or at any rate continue to be cared for by both parents in England. His mother seeks permission to relocate with him to live in Moscow, her native city and Daniel’s birthplace, with contact with the father occurring in England and in Russia.

[2]The outcome of the proceedings will not only determine Daniel’s upbringing but also shape his identity. If the mother’s application is granted, he will grow up as an essentially Russian child whose relationship with his father and his English family will be greatly reduced. If it is refused, his mother will have to remain here, and he will experience a predominantly English upbringing.

The law

[3]The approach that the court should take in these difficult cases has been thoroughly analysed by Hedley J in S v T (Permission To Relocate To Russia)

[2012] EWHC 4023

;

[2013] 2 FLR 457

– as all cases are different, the fact that that decision also concerned an application by a Russian mother is irrelevant. “[4] Transnational parenting is an increasing phenomenon in the experience of family jurisprudence in England and Wales. It is important to remember that it is brought about by the choice of the parties concerned. It is necessary to recognise that transnational parenting brings a very high price to either or both in the event of a relationship breaking up. It is a fact, certainly in my experience, that the impact upon breaking up is devastating upon one parent or the other and sometimes both. But a system of private law in which responsibility is very firmly placed with parents – and the court interferes really only at their request – depends upon the court assuming that parties that go into transnational parenting agreements go in with their eyes wide open, fully alert to the consequences of it going wrong. Of course that is a somewhat artificial assumption, but it is one necessary to be made if transnational parenting is to be accommodated within the philosophy of Parts I and II of the Children Act 1989. Accordingly, the undoubted grave impact on parents will really only weigh with the court if and insofar as that impact has its effect on the child with whom the court is concerned. [5] The parties have helpfully drawn my attention to the three key cases in the Court of Appeal which now govern this area of the law. They are: Payne v Payne

, [2001] UKHRR 484, K v K (Relocation: Shared Care Arrangement)

[2011] EWCA Civ 793

[2012] 2 WLR 941

[2012] 2 FLR 880

and Re F (Relocation)

[2012] EWCA Civ 1364

[2013] 1 FLR 645

. In my judgment, these cases establish the following propositions. First, that the child's welfare remains the court's paramount consideration as prescribed by s 1(1) of the Children Act 1989. Secondly, in discharging the obligation to make the child's welfare paramount, the court is to have regard to the checklist applicable in s 1(3) of that Act. Thirdly, in furtherance to the views of Black LJ in K v K (Relocation: Shared Care Arrangement) and Munby LJ in Re F (Relocation), the court should not categorise cases in accordance with the concepts of primary or shared care, but should use the facts of the case and the answers arrived at in consideration of the checklist to describe the arrangements for care on the ground as they have been, as they are at date of the hearing and as the parties intended them to remain had it not been for the question of relocation. [6] However, the cases also establish that there are certain issues which are specific to an application for permission to relocate permanently, an application which has its own distinctive and far-reaching consequences. Amongst those issues are principally these:(1) To scrutinise the proposals of the applicant bearing in mind that in a going home case that may be a less arduous undertaking than if it is an entirely new venture.

(2) To scrutinise the motives of the applicant in making the application and, in particular, considering whether or not a significant motivation is to exclude the other parent from the life of the child.

(3) To scrutinise the motives of the left behind parent who objects, in particular to check that the reasons for objection are truly child-centred and are not simply part of an adult battle about rights.

(4) The court must scrutinise the impact of relocation upon the left behind parent and his or her extended family whilst of course recognising that relocation may bring benefits in terms of widening the network of extended family by including the proposed country of return.

(5) The court should scrutinise the impact on the applicant of the order being refused or on the respondent of the order being granted, but, for the reasons I have given, this impact will be relevant generally only insofar as it impacts on the child.”

[4]I shall, with the support of the parties, apply this approach in the present case. It shows that the obligation on the court in a relocation case is fundamentally the same as in any other decision about a child's upbringing. Daniel’s welfare is my paramount consideration and among all the relevant circumstances, I must have particular regard to the matters contained in the welfare checklist. An assessment of parental capacity and the effect of a change of circumstances inevitably looms large. The severe disappointment that one parent is bound to feel is inevitable and relevant only insofar as it may have a knock-on effect on Daniel.

[5]In making findings of fact, I apply the balance of probabilities.

The Hague Convention 1996

[6]The Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children, entered into force in this country in November 2012 and in the Russian Federation in June 2013. The Convention provides that the measures taken by the authorities of a Contracting State shall be recognised by operation of law in all other Contracting States (Article 23). If measures enforceable in one State require enforcement in another State, they shall, upon request by an interested party, be declared enforceable or registered for the purpose of enforcement in that other State, which shall apply a simple and rapid procedure (Article 26). Such measures shall be enforced in the latter state as if they had been taken by the authorities of that State (Article 28).

[7]The ability and willingness of the Russian judicial and civil authorities to discharge their Convention responsibilities can be seen in the case of Neustadt v Neustadt (Child Abduction)

[2014] EWHC 4307

The hearing

[8]This took place over two days, followed by written submissions. Special commendation must go to Ms Kelly Webb, who took over the case at the last moment following the illness of counsel previously instructed on behalf of the father.

[9]Written and oral evidence was given by the mother, the father, the paternal grandmother, a cousin of the mother's (Mr K) and an independent social worker (Ms Susan Leifer). I have also read statements from the maternal grandmother, a maternal cousin, a benefactor of the mother (Mr S), the paternal grandfather, the paternal aunt, the paternal great-grandmother and the local authority social worker, and also disclosure from the police and sundry other documents.

[10]During the proceedings, the father has had the benefit of legal aid. The mother’s representation has been financed by her benefactor, Mr S. The facts The parents

The facts

[11]The mother is 39 years old. She is a Russian citizen who lived in Moscow until the age of 37. She is the younger of two children of her parents, who separated when she was 14 years old. Her father died in 2013. Her mother, with whom she remains in constant contact, has remarried and moved to Moldova in 2012, visiting Moscow every couple of months. Her older brother is a heroin addict currently serving a five-year prison sentence for possession of drugs.

[12]The mother has a wider family and social network in the Moscow area, with two maternal aunts and several cousins and their families.

[13]While living in Russia, the mother was in continuous employment. After going to college, she worked for a tobacco company, advancing to be a manager and then leaving to start her own business in furniture sales. She continued to work until a month before Daniel was born. She lived in her parents' flat and had also acquired a small flat of her own.

[14]The mother is now unemployed. She has a spousal visa that expires in February 2016. This entitles her to work, but not to claim benefits.

[15]The father is 36 years old. He is a British citizen, living in Kent. He is one of three children of his parents, who separated when he was 14 years old. His parents have both remarried. His mother lives in Sussex, as does his sister, who is herself a parent and an approved foster carer. His other sister very sadly died in 2009, leaving three young children. This was a terrible blow to the whole paternal family.

[16]Having left school, the father worked in amusement arcades, maintaining machines, before joining an organisation running cruise liners, where he worked as a casino technician. He then lived in South Africa for a year or more before returning to sea and then coming back to England. He began to work for a Sri Lankan family. They invited him to Sri Lanka and he was there at the time of the tsunami in December 2004. He helped with relief efforts and, after returning to England, made two further visits in 2005. He became involved in a commercial operation, helping members of the Tamil community to leave the country, and this led to his arrest in January 2006. He was detained until August 2007, when he returned to England. As a result of his time in prison, he experienced post-traumatic stress disorder and, after initial unsuccessful efforts to work, he has been unemployed since 2009. He receives a number of state benefits, including Disability Living Allowance.

[17]The father underwent counselling to help him with his experiences. He also received treatment for depression. He describes, and I accept, that by 2011 he was through the worst of his difficulties, but he remains on a maintenance dose of the antidepressant Escitalopram.

[18]The father has a criminal record, mainly relating to his teenage years and involving offences of dishonesty.

The parents' relationship

[19]The parents met on holiday in Goa in November 2010. In what might be seen as a cameo moment, the mother approached the father, asking to share the cannabis joint that he was smoking. They quickly formed a relationship involving what Mrs Leifer describes as "a strong element of romance". All in all, the father visited Moscow seven times in 2011/12, while the mother came to England three times before her last arrival here. She stayed with the father in the flat that he has rented since 2009.

[20]In August 2011, the parents went on holiday to Turkey and the mother became pregnant. In May 2012, the parents married in Moscow and three days later Daniel was born. The father then returned to England. His next and last trip to Moscow was in August 2012 for Daniel's christening.

[21]Between October 2012 and March 2013, the mother and Daniel came to England for five months before returning to Moscow. This was the first meeting between the mother and the paternal family.

[22]On 15 June 2013, having obtained her spousal visa, the mother moved with Daniel to England to live with the father. They lived together for ten months before their relationship ended.

[23]Since arriving, the mother and Daniel have returned to Moscow on four occasions of about three weeks each: September 2013, October 2013, January 2014 and May 2014.

[24]The parents agreed to separate after an argument on 13 April 2014, with the mother and Daniel moving out. The father remained in his flat.

Event since the separation

[25]At first, the mother and Daniel stayed with a friend of the mother's.

[26]On 16 April, the father issued an application for an order preventing the mother from removing Daniel from the jurisdiction. This was granted at a without notice hearing. The next hearing was on 24 April, when directions were given. The mother was given permission to take Daniel on holiday to Russia and Turkey on her undertaking to return him. In the following days, the father saw Daniel on a number of occasions.

[27]Between 3 and 25 May, the mother and Daniel went on holiday. On their return, the mother did not make contact with the father, who consequently did not see Daniel on his second birthday on 27 May.

[28]On 30 May, the father issued an application for a child arrangements order that Daniel should live with him.

[29]On 2 June, the mother and Daniel were in a park when they were approached by the father. He spent some 40 minutes alone with Daniel. He then began a conversation with the mother that led to her becoming angry. An incident occurred as a result of which she was arrested for assault on 4 June and accepted a police caution.

[30]On 4 June, while the mother was with the police, the father returned to court requesting an order placing Daniel in his care. The court made an order saying that it knew no reason why the child should not be placed with either parent.

[31]On 5 June, following her release from the police station, the mother was approached by social services, who asked for her agreement to Daniel being removed from her care in view of her assault on the father. Wrongly believing that she had no option, she agreed. She nevertheless cooperated in Daniel being placed with his maternal grandmother, who had not cared for him before. He remained there for five days.

[32]On 10 June, the court ordered that Daniel should live with his father until further order, with contact with the mother to be agreed. The father undertook not to use cannabis. A report was ordered from social services

[33]Since the separation, the father has continued to receive child benefit and child tax credit for Daniel in the sum of approximately £350 a month. He has retained this. His direct payments to the mother have totalled just £80, with none since June. He has paid the fees for the nursery that Daniel attends on two mornings a week, amounting to £500.

[34]On 13 June, the mother entered into a six-month tenancy of her current flat, with the rent being provided by her cousin, Mr K. It is by chance very close to the paternal grandmother's home in Sussex.

[35]On 31 July, the s.7 reporter recommended that Daniel should live with the father and have contact with the mother.

[36]On 11 August, now being represented by solicitors funded by Mr S, the mother issued an application seeking leave to remove Daniel to live in Moscow.

[37]On 12 August, orders were made providing for Daniel to share his time equally between the parents, for an independent social work report to be obtained and for the parents to undergo hair strand testing for cannabis. The matter was timetabled for a final hearing in December, but on 3 September the Circuit Judge transferred it to the High Court.

[38]On 31 October, Ms Leifer’s report was filed.

[39]On 5 November, I gave further directions.

[40]On 5 December, an expert report on the mother's immigration status was provided by Ms Kathryn Cronin. On the same day, the mother's hair strand test was filed, showing a negative result for cannabis use.

[41]The hearing took place on 17 and 19 December. At the end of the second day, the father's hair strand test arrived, showing a positive result for cannabis use.

Specific findings

[42]I will set out my findings on the following matters:• The care of Daniel

• What the father told the mother

• Cannabis use

• Incidents between the parents

• Immigration issues

• Employment prospects

• Family support and social networks

The care of Daniel

[43]Until he was five months old, Daniel was in the exclusive full-time care of his mother and it was she who established his routines. The father's participation will have increased during the five months that Daniel then spent in England in the winter of 2012/13, but the mother remained the main carer during this period and, of course, after she and Daniel returned to Russia in the spring of 2013.

[44]Between the time that the mother and Daniel returned to England in June 2013 and the separation in to April 2014, the father was mainly responsible for the shopping and cooking. He took some part in Daniel’s care, but I find that the mother continued to take the lead. This was in part because of the established pattern, but also because of issues relating to the father's lifestyle, to which I will return.

[45]When the parents separated, Daniel went with his mother. Given the history, this is not surprising. Indeed, up to his removal from her care at over two years of age on 5 June 2014, he had never spent a night away from her. It is therefore beyond doubt that up to this point, his mother was his main carer in the sense that she determined his routines and took overall responsibility for his welfare.

[46]The father has cast doubt on this. In his statement he said that the mother had not been Daniel's primary carer, but that he had. When asked about this, he said that he meant to say that they had cared for Daniel equally. Neither contention is correct.

[47]The arrangement between June and mid-August 2014 involved the father taking on the role of a full-time carer for two months, with the mother’s role being greatly reduced. Thereafter, the father has looked after Daniel for half of the time, alternating between three days in one week and four in the next.

[48]I accept the mother's evidence about the development of the relationship between Daniel and his father:

"After [he] started caring for Daniel, it grew up. Before, [he] acted a small role in Daniel's life. In June, social services took Daniel from me and put him with him. From that period he understood how he loved Daniel. Before, he didn't spend very much time with him. He didn't feel like this."

[49]I also accept the evidence of Ms Leifer that Daniel is currently thriving in the care of two primary carers to whom he is now well attached.

[50]There is no doubt that the father has risen creditably to the challenge of becoming a single parent. The parents have shown that they can successfully share Daniel’s care in the short term at least, but it should not be forgotten that these arrangements are a relatively recent departure, fashioned by the court, and do not represent the whole picture in relation to the history of Daniel’s parenting.

What the father told the mother

[51]An unfortunate aspect of the early history is that the father misled the mother about his circumstances by telling her that he lived and worked in London. His e-mails referred to how busy he was with work. It was not until the end of 2011, when the relationship had been continuing for a year and the mother was pregnant, that he told her that he was living outside London and on benefits. Up to that time, as the father put it in evidence, "I went out of my way to make it look as if I was a good prospect." The mother’s weak grasp of English in the early stages of the relationship made it easier for this approach to succeed.

[52]However, this did not in the end affect the mother's commitment to the relationship, as she married the father in the following year and pursued her visa application with him in knowledge of the actual facts. Nonetheless, the father's inability or unwillingness to obtain employment then became a continual source of discord between them. On his own evidence, he has felt capable of returning to some kind of work since about 2011. At one point, seeking to show that the mother would be able to find work in England if she remained here, he described how he had found two jobs for her, one being with one of his own previous employers.

Cannabis use

[53]The father says that he began to use cannabis at the age of 17. His use abated during the time that he worked on cruise ships, when employees were routinely tested. Following his return from detention in Sri Lanka, he again began to use the drug regularly, finding that it helped him to relax.

[54]The mother has been an occasional recreational user of cannabis, but has not used the drug since 2013. While she and her father were living together, she would from time to time smoke with him, but in general she disapproved of the frequency of his use.

[55]The mother says that the father used cannabis several times daily, with the result that he habitually got up late in the day. The father agrees that he was a regular user of cannabis throughout the relationship, but says that he only smoked every two or three days. He also accepts that from early 2013 the mother repeatedly complained about the extent of his smoking, but that he nevertheless continued. He said that by the beginning of 2014, he felt that he was walking on eggshells and that he was going to lose the mother and Daniel if he did not stop.

[56]It does not much matter whether the father's cannabis use was a daily occurrence or a frequent one. On any view, it was a habit. It was also an unhelpful habit in circumstances where he had become responsible for a foreign wife and a new baby. Contrary to the father's assertion that his drug use had no effect on his ability to support the mother in the home, I find that it reduced his active participation in family life and his motivation to support the family by working.

[57]The father said in his statement that he stopped using cannabis in February 2014 after the mother gave him an ultimatum. However, in evidence he said that he had used cannabis for the last time at the end of May 2014, just after Daniel's second birthday. He justified the discrepancy by saying “There’s using and using.”

[58]His hair strand test shows a high level of cannabis use, based on a sample of body hair going back to at least the end of June. However, the report explains that the drug use may have been within a month before the test or perhaps up to about 12 months before.

[59]Apart from the non-specific hair strand test, there is no evidence of drug use by the father in the past six months. On the contrary, he has brought Daniel to and from nursery regularly and has not been seen to be under the influence by anyone. I am satisfied that since the separation he has not used cannabis during periods when Daniel has been in his care: he said "I'm not smoking now – I'm looking after a child", as if he had not been looking after a child when he and the mother had been living together.

[60]I am not able to make any finding about the father’s cannabis use during periods since the separation when Daniel has been with his mother. That is because his court statement is untruthful about the date of his last use and because of the overall picture. I find that the father is a long-term habitual cannabis user, who would find it hard to abstain indefinitely. This may not impact significantly on his day-to-day care of Daniel for specific periods, but it is likely to prejudice his ability to find work and to keep it.

Incidents between the parents

[61]There have unfortunately been a significant number of arguments between the parents, including arguments in the presence of Daniel. These have at times spilled into violence, usually by the mother towards the father. In relation to two of the more significant incidents, I am unable to accept the mother's evidence. I find that she has chosen not to remember what she did.

[62]In February 2012, when the mother was six months pregnant and living in Moscow, the father says that she attacked her paternal aunt, damaging her own hand. The mother agrees that there was an argument with the aunt involving her slamming a door but denies any other violence. It is not possible or necessary to make any specific finding about this event.

[63]In August 2012, there was an incident at the time of the father's visit to Moscow for Daniel's christening. The mother was berating the father for not having enough money to make her visa application go through smoothly. He burst into tears. She lost her temper with him, saying that he was not a man but a baby. The father says that she then carried out a full-blown assault, striking him with an iron, breaking a chair on his back and throwing a fruit bowl at him, before rubbing squashed banana into his head and face. She also threw his belongings out of the flat and put some of them down the rubbish chute. The father immediately cut short his visit and returned to England. The mother accepts that there was an serious incident and that she threw a banana skin at the father, but denies the other allegations.

[64]I find that the father is broadly correct about the way in which the mother behaved on this occasion. Fortunately, he was not physically injured, suggesting that the actual violence was relatively limited, but it was plainly a shocking incident. Apart from the unpleasantness of the event, its main significance is that it is the last time that the father visited Moscow. Significantly, he says that when he left he did not know whether he would see the mother and Daniel again. Nonetheless, by the time he reached London he had received a lengthy semi-apologetic e-mail from the mother to which he replied in a similar tone, and the plans for the mother and Daniel to move to England remained in place.

[65]On 30 October 2013, the mother went to her GP, complaining that the father was using cannabis and that there was angry pushing and emotional abuse, with him telling her to go back to Russia. She described feeling "trapped".

[66]On 11 November 2013, the mother went to her GP and described an incident in which she had been pushed and grabbed by the father on 9 November. She had a large bruise on her upper arm that was consistent with a grabmark. The parents describe a row, during which the father tried to push the mother out of the flat. She says the bruise was caused when he pushed her against a door; he accepts that it could have been caused when he was trying to restrain her. The picture is once again of the mother losing her temper with the father and the father on this occasion manhandling her out of the flat. Daniel was present during the incident and was upset by it.

[67]In September 2013, there was an incident when the mother became unreasonably angry with an elderly neighbour for moving some of the family's belongings that had been kept in the communal hall.

[68]On 2 June 2014, the incident in the park took place. The father was upset at the breakdown of his relationship with the mother and at not having seen Daniel for about a month. For her part, the mother was homeless and anxious about coming into contact with the father. The flashpoint seems to have been when the father returned Daniel and started to plead with the mother to return to live with him and to say that he would take Daniel away from her, despite her making it clear that she did not want to have a conversation of that kind. She then struck out at him, making contact about four times. None of these were enough to cause injury, but it was a nasty scene. The police were called by members of the public. After the mother and Daniel left, the father had a conversation with an officer, leading to the conclusion that the mother should be arrested.

[69]The mother's evidence about this incident was unconvincing. She described flailing her arms at the father to make him go away, but said that she did not believe that she had struck him. However, when interviewed by the police she admitted doing so, and I find that she did. Even though the assault itself was not a very serious one (the worst thing about it was that it happened in front of Daniel), her refusal to tell the truth about this incident and about the incident in August 2012 is reprehensible.

[70]On behalf of the father, it is submitted that the mother has an issue with managing her anger and that she may need help to ensure that Daniel is not affected. It is also said that her evidence on this issue affects her credibility or trustworthiness. I find that the mother’s behaviour on some of the above occasions was unacceptable and that the impact on Daniel of being exposed to incidents of this kind is harmful. However, there is no history of behaviour of this kind in the mother's past. Ms Leifer considers that anger is a feature rather than a prevalent problem. I agree. I find that the mother has become increasingly exasperated in the context of her relationship with the father and at times lost control of herself. On the last occasion, the penalty was dramatic – the loss of Daniel – and it is in my view unlikely that such behaviour will be repeated. Moreover, having heard the mother give evidence on a wide range of issues, I do not find that her unsatisfactory evidence about two particular incidents seriously damages her general credibility.

[71]The father's bears far less responsibility for these incidents, but his behaviour is also open to some criticism, as can be seen from the descriptions. There has also been a degree of passive-aggression on his part. On 27 August, he sent the mother a draft letter addressed to the Home Office stating that he was withdrawing his sponsorship for her spousal visa following their separation – it was not sent, following the intervention of her solicitors. There was also a very recent exchange of text messages between the parents in which the father tried to dictate arrangements for Daniel and, when the mother stood her ground, sent a number of gratuitously abusive messages to her.

Immigration issues

[72]The mother has said that if she is not allowed to relocate with Daniel, she will seek to remain in England. Her immigration position is addressed by the jointly instructed expert, Kathryn Cronin. Her advice is that the mother is likely to be permitted to remain in the UK as Daniel’s parent, but that she will have to show that she can adequately maintain herself and any dependant without recourse to public funds. This would lead to the prospect of her qualifying for settlement in five or ten years depending on the level of her ability to maintain herself. As Ms Cronin remarks, there is a long lead time for settlement and security in the UK.

[73]The mother would therefore be unlikely to face removal from England during Daniel's childhood, but there would be some insecurity and impermanence in her position in comparison to her position in Russia.

[74]The father for his part expresses concern about his ability to visit Moscow if Daniel lived there, being apprehensive to the point of unwillingness to travel there. The process of obtaining a family visa would require the mother's cooperation. However, this would be forthcoming and he has been successful in obtaining a visitor’s visa on seven previous occasions. I consider it unlikely that the Russian authorities would prevent him from visiting his son there.

Employment prospects

[75]The father spoke about making a return to work via training courses relating to the security industry. I formed the impression that this was at best a medium-term aim. Until the breakdown of the marriage, the father was making no real effort to secure employment and since then he has prioritised his commitment to Daniel. A great deal has happened since the father was last in the world of work and it is in my view uncertain that he will re-enter it while he has the care of Daniel and the support of state benefits, which continue until their next review in 2016.

[76]If the mother remains in England, she is likely to obtain part-time employment, perhaps as a cleaner or working in a coffee shop, or possibly something slightly more rewarding. She would not be able to work to her full ability for the foreseeable future.

Family support and social networks

[77]The father is on good terms with his parents and his sister and can count on them for support. They are very concerned about Daniel, who they have got to know much better in the last six months. The grandmother sees the father and Daniel most weeks and the aunt sees them once a fortnight. Daniel has four cousins who he sees regularly. These are all described as "strengthening connections" by Ms Leifer.

[78]The maternal grandmother spoke to Ms Leifer and has filed a statement and given evidence. Her written statement shows the anxiety felt by the paternal family at the prospect of, as she puts it, losing Daniel. It is couched in terms that are critical of the mother and fearful for Daniel's future if he lived in Russia. Giving evidence, the grandmother said that the last time she had had a proper conversation with the mother was in February 2014. Following the parents' separation, she had been willing to continue a relationship with the mother if that was wanted, but had "stayed out of it" because of the overall situation, even though she lives just five minutes away from the mother's present home.

[79]The grandmother said that she had wondered whether something was amiss between the parents as long ago as May 2013, when Daniel was a year old. She thought the mother seemed unhappy and had asked her why in that case she did not go back to Russia with Daniel.

[80]The father's social network in England is limited. When he visited Russia, he was on friendly terms with the mother's family, but he has not been in contact with them for over two years.

[81]The mother is on close terms with her own mother and speaks to her frequently, despite the distance. She is concerned about her brother's welfare. She has a few friends in England, mainly Russian speakers. The environment in which she was living in Moscow is metropolitan and aspirational and includes a number of wealthy individuals such as her cousin, Mr K, and her benefactor, Mr S.

[82]Mr K is the mother's second cousin. They are the same age and grew up together. He spoke to Ms Leifer when she was preparing her report. He and his wife came to London so that he could give evidence. This covered the support that he was willing to offer the mother and included some observations on the parents' situation.

[83]Mr K owns a number of businesses and is in a financial position to assist the mother as a family member in difficulties. He has sent money to her to enable her to rent her current property. As for the future, he said that he would support her wherever the support was needed, either in Russia or in England. If the mother returned to Russia, he would provide her with a flat that he owns which is currently vacant. He could help her to find a job, possibly in one of his companies. If she needed money to live on in the short term, he would provide that until she had an income from work. If the mother remained in England, he would help her in the same sort of way, although his influence would be less effective, given the higher price of property and the fact that he has no knowledge of the English job market. Asked whether his liberality would extend to assisting the father financially to visit Moscow, he said that he would if the mother asked him, but would not if she did not.

[84]Mr K spoke highly of the mother's business abilities, saying that he had given her a small project to do here in recent months. He described her as responsible, open to new ideas and with an entrepreneurial spirit.

[85]Both in speaking to Ms Leifer and in giving evidence, Mr K said that he did not know the father well but that he thought he was like "a teenager". By this, he meant that he did not feel that the father had taken an appropriate level of responsibility for his life and his family. He said that the father could visit Moscow safely, as in the past, and that he personally would respect any legal obligations relating to contact.

[86]Mr K’s evidence was clear and straightforward, and I accept it.

[87]Inevitably, the intervention of Mr S in paying the mother's extensive legal fees of over £100,000 raised questions. He is the remarried ex-husband of one of the mother's close friends and is a successful businessman. In a letter written for these proceedings, he explains his motivation. He was impressed by the mother's self-reliance when she was working in Moscow. He described how others had helped him when he was a young man for no particular reason and that he views his intervention as a way of paying a debt to those who did good for him earlier in his life. He has had no direct contact with the mother for six years and there has never been any romantic relationship between them.

[88]I am satisfied that the mother has not placed herself under any personal or financial obligation in accepting the help from Mr K or from Mr S that has allowed her to survive financially since the separation and to be represented in these proceedings. Their generosity is unusual, but it has no ulterior motive.

[89]This evidence is relevant for two reasons. Firstly, it shows that there is material backing for the mother, both in Russia and in England. Secondly, it casts a striking light on the quality of the mother's Russian support network.

Evidence of the Independent Social Worker

[90]Ms Susan Leifer is a very experienced social worker, having worked for local authorities and as a Children's Guardian for 40 years. She interviewed each parent twice and also saw them at home with Daniel. She visited the paternal grandmother and aunt and spoke with the maternal grandmother and Mr K on Skype. She also had telephone conversations with the local authority social worker, the mother's GP, the father's GP, Daniel's nursery teacher and his health visitor. Her report is dated 31 October and she gave evidence at the hearing.

[91]In her report, Ms Leifer describes Daniel as "thriving". She advises, and I accept, that he is comfortable in the care of both parents. The parents have formed a warm attachment with him and both want to prioritise his needs. She saw very little difference in the quality of the parenting and the nature of the relationships. She says that the father has committed to continue the routines and healthy choices made by the mother in Daniel's earlier life.

[92]Ms Leifer describes the family backgrounds on both sides in a complimentary way, while acknowledging that it is harder for her to assess the mother's side of the family. She says that there is a strong sense that Daniel belongs and is greatly valued in both families. She describes the paternal grandmother and aunt as impressive in their understanding of the issues. She does not consider that the mother's brother is likely to be an intrusive figure, saying that the mother would be protective if he became bothersome.

[93]Speaking of support for the mother in England, Ms Leifer notes that the social worker’s report in July expressly hoped that the father's family would provide this support, but that "This has not happened since that date and there has been a mutual lack of trust as events have unfolded and [the father's] family have realised that [the mother] wishes to remove Daniel from their life. I think that if [the mother] stayed in this country, it would be fairly easy to repair the relationship so that she was able to benefit from their support." She further observes:

"If [the mother] remains in England, I feel confident that [the father] would be available with practical support."

[94]Ms Leifer's conclusions are that:

"It is my view that Daniel's best interests would be served by a plan which enables him to continue to enjoy his good relationships with both parents."

She considers that Daniel would be disrupted by a move to Russia and that the maternal family support system appears not quite as strong and accessible as the paternal network. "Daniel would experience the significant loss of his father and his paternal extended family were he to be removed from the UK. I am not saying that his mother's love and care and her support system are not adequate as far as I am able to judge from such a distance, but I do not think that I should minimise the loss for this little boy."

[95]Ms Leifer’s report ends in this way:

"A Child Arrangements Order in the UK setting out shared responsibility and living arrangements might be the best way to guarantee for Daniel that he is able to maintain an ongoing and strong relationship with both parents. This could only be achieved by the mother remaining in this country. If the mother stays in this country, I believe that she will need help with a job, rent, and her immigration status in the context of divorce, the latter of which will need immediate specialist advice. Also she will need help and support with trying to achieve emotional and psychological comfort. It is possible that with the anchor of Daniel here, she could, in time, achieve a good life and happiness."

[96]In the event that Daniel moves to Moscow, Ms Leifer recommends contact at least three times a year, all in the UK, on the basis that the father told her that he could not go to Russia.

[97]Giving evidence, Ms Leifer said that her primary objective was to preserve for Daniel an ongoing relationship with both parents. This was at the head of his hierarchy of needs, with the promotion of his dual culture coming after that. The quality of the father's support network tipped the balance. At one point she said that Daniel's relationship with his father and paternal family would be lost if he moved to Moscow; when questioned about this, she said that the relationship would lose its regularity and intensity.

[98]Ms Leifer was instructed by the parties with the permission of the court. I am not sure why it was thought appropriate to commission an independent social work report as opposed to a report from a serving CAFCASS officer. As can be seen from Ms Leifer’s CV, she has no significant experience of international relocation in private law cases. At the end of her evidence she explained that she had only previously advised in one such case. She has had no previous dealings with cases involving Russia, nor of "mirror orders". She was not aware, and the parties had not made her aware, of the reciprocal obligations under the Hague Convention 1996.

[99]As it is, both parties’ closing submissions contained strictures about Ms Leifer's enquiries and process of reasoning. On behalf of the father, it is said that she failed to consider the mother's issues with anger, to the point that further assessment might be required if Daniel was placed in her care. But much the greater degree of critical comment comes from Mr Jarman on behalf of the father. He submits that Ms Leifer's reporting suffers from these shortcomings:• There is an overemphasis on reporting the views of the parties as opposed to offering professional analysis.

• The father's deceit of the mother has not been taken into account.

• The mother's former position as primary carer was not understood or considered.

• There is no comment on the relative significance of the parties' drug use, the reason given being that their drug tests were not yet to hand.

• Little or no weight was given to the father's psychological history and his reliance on antidepressant medication.

• No real thought has been given to the practical obstacles facing the mother in England. The suggestion that the father could assist her by helping her find accommodation and sharing his benefits, is unrealistic.

• Given the background, the likelihood of the father's family providing meaningful support for the mother is over-optimistic.

• The impact on the mother of a refusal of her application has been glossed over.

• The father's assertion that he could not travel to Moscow was taken at face value.

• Ms Leifer assumed, echoing the father, that if the mother's application was refused, Daniel could never safely visit Moscow in future. No consideration was given to the detrimental consequences of that extreme, if improbable, state of affairs, which in nay case overlooks the fact that Daniel had been back to Moscow three times before the breakdown and once since.

• No real thought had been given to the contact arrangements following a move to Moscow.

• All other considerations took second place in Ms Leifer’s mind to the preservation for Daniel of a relationship with both parents.

[100]I will assess these criticisms in the course of my own analysis.

Analysis

[101]Prominent features of the welfare checklist in this case are Daniel's feelings, his background, his needs and his parents' capacity to meet them, and the effect of a change in his circumstances. A further consideration is the powers of the court.

[102]Daniel's feelings are captured in his father's description: "he is enjoying life".

[103]Daniel's background is as a child of a transnational marriage with a strong heritage and cultural identity in each country. Neither heritage has presumptive precedence.

[104]Daniel’s physical and educational needs will be met, whatever course is taken. His emotional need is for a fulfilling childhood with meaningful relationships with both parents and with his wider family on both sides, so that he grows up with direction in life and a proper experience of his dual heritage.

[105]As to parental capacity, it is important to have regard to short and long term aspects of the question. In the short term, both parents have broadly equal capacity to meet Daniel's needs. However, my assessment is that there is a distinct difference between them in terms of their capacity to meet his longer term needs. Having reflected on the history, and observed each parent giving evidence, I find that the mother is very much the more dynamic, energetic and insightful individual. This is seen from her career progression and social network. The fact that she was in command of Daniel's arrangements for the first two years of his life is not entirely due to geography, but also to the fact that she is the more competent and dependable individual. Her outbursts of anger, which she charitably characterises as "emotion", have been born of frustration at the father’s relative passivity, no doubt partly arising from his very difficult experiences in detention. The father’s evidence conveyed the sense that Daniel's birth had given meaning to his life and he spoke of taking training courses in order to get back to work and give himself some "forward direction". It is to be hoped that he will succeed in this, but as stated above, I think it unlikely that he will get far when he has the alternative of staying at home with Daniel full-time or part-time.

[106]In contrast, the mother is not someone who lacks "forward direction”. She would, I find, show Daniel an example of energetic self-reliance, offering him a wider field of possibilities for his future than he would receive in the father's care or in shared care in England. This is epitomised in a small way by the fact that she has gained a good grasp of English in a short time, to the extent that she was able to give evidence in English with little help from the interpreter, while the father has never made any effort to learn Russian, simply saying that he is not interested. I do not draw from this the conclusion that Daniel must therefore remain in England, because English is the only language that both parents speak. Instead, I see it as casting light on their relative qualities and abilities.

[107]Likewise, the support that Mr K offers to the mother might be seen as providing the answer to her otherwise unpromising financial situation in England, given that she clearly cannot expect any significant assistance from the father. However, in my assessment, support given by Mr K in England and in Russia are two very different things. Support in England would amount to a safety net, substituting for the state benefits to which she is not entitled, while support in Russia would be a springboard, enabling her to achieve what she is capable of.

[108]I have no doubt about the mother's belief in the importance of Daniel's relationship with his father. The father himself said "she's not the sort of person who would not let me see Daniel". The mother described feeling badly about avoiding the father after her return from holiday in May, explaining that she was scared that they would argue and that he would take Daniel. While that decision was wrong, more significance attaches to the fact that she kept to her undertaking and brought Daniel back to England, even though her circumstances here were very difficult indeed. The mother gave convincing evidence that she would bring Daniel to England for contact, even though she would feel “a little scared”.

[109]The father does not have the same instinctive belief in the importance to Daniel of time spent with the mother. Having achieved an unprecedented amount of time with Daniel after the separation, he has for the past six months refused her requests to be able to see and speak to him on Skype. He explained this by saying that if Daniel was going back to Russia, he did not want “his time" to be interrupted. He has also said that he would not feel able to travel to Russia to see Daniel due to fears for his own safety. I accept that the circumstances in which he last left Moscow were distressing, but there is no objective reason why he should not be able to travel there safely, perhaps once a year, and he should be capable of overcoming his reservations for Daniel's sake.

[110]Further to this, the father's attempt to portray himself as a significant, even primary, carer in the past is of concern. His present application is to become Daniel's main carer. Only failing that does he propose equal shared care. His reason was that "I have strong feelings that with two people and a child in the middle, someone should have sole responsibility." The father is to be commended for speaking his mind, but I have reservations about his ability to collaborate effectively with the mother under any form of long-term shared care arrangement in England.

[111]Likewise, I am doubtful about the ability of the paternal family to compensate for these difficulties. They are devoted to Daniel, but their involvement in his life up to the age of two was really quite limited. Despite their good intentions, they have been passive since then, engaging only with the father, who lives 30 miles away while the mother has been living around the corner. The mother said that she would accept support from them in future but was nearly sure that they would not in fact provide it. I see no sign that the father and his family have the empathetic skills that would be necessary to provide the mother with the level of support that she would need if she remained in England.

[112]As to motivation, I do not doubt the sincerity with which all family members have presented their point of view, although their positions are naturally influenced by their own feelings and needs.

[113]In considering the likely effect of a change in circumstances, one must look at the realistic options for Daniel’s future. On the one hand, there is the mother's proposal to move to Moscow. On the other hand, there would be an arrangement in England under which Daniel would live with both of his parents in some way. It does not, however, follow that there would continue to be an equal division of his time in the longer term. Given the parenting history and the parents' personalities, that arrangement is in my view unlikely to be in his interests once he reaches school age, even if the parents by then lived close to each other. I therefore consider that there is a degree of uncertainty about the arrangements, whichever country Daniel is to live in.

[114]In the short term, much the greatest loss to Daniel is entailed in a move to Moscow. He would experience the loss of his regular time with his father and the disruption accompanying the move. As the mother said to Ms Leifer, if she had stayed in Russia in May, Daniel would not have grieved the loss of his father, but now it will be hard for him. However, I consider that he would adapt to his new circumstances. While the amount of time that he has spent with his father and paternal family since June has strengthened these relationships to the point that Daniel would miss them, it also means that they have reached the stage where they can be sustained by means of regular contact.

[115]If Daniel moves to Moscow, his mother will become his sole carer. No adverse comment has been made about her plans for him, which are practical and realistic. She is capable of organising accommodation, schooling and contact. She would also be in a position to achieve her personal goals in a way that she could not in England. Having come here in the mistaken belief that she and the father could make a fulfilling life together, the mother would feel trapped and isolated if she was forced to remain here for the rest of Daniel's childhood after such a short and unsuccessful attempt to live as a family. Until the parents' separation, there was a common assumption on both sides of the family that the natural consequence of a breakdown in the relationship would be the return of the mother and Daniel to Russia. That assumption only fell apart as a result of unexpected events in June that reversed the established pattern. To require the mother to remain in England for at least the next 15 years would leave her with a justifiable sense of bitterness that is not in Daniel's interests.

[116]The effect on the father of Daniel moving to Moscow would be one of extreme disappointment and sadness in the short term. He has stepped up to the opportunity offered by the mother's arrest and he would grieve the loss of his new closeness to his son. In the longer term, however, I consider that the father would reassess his situation. If he is to be in a position to set an example for Daniel and even to support him financially, he needs to regain control over his life and maximise his chances of rebuilding his situation, in particular by getting a job. This is not likely to happen if he is relying on Daniel to give meaning to his life, when it is Daniel who should be relying on him.

[117]The paternal family would be particularly distressed at Daniel's departure from England. They have already experienced the tragic loss of one family member. They are in a position to support the father in his disappointment, even though they are unable to support both parents. They are in a good position to welcome Daniel back to England for visits and to play an important part in his life in future.

[118]The powers of the court extend internationally under the 1996 Convention, providing for recognition, registration and enforcement. There can be no guarantee that a order for contact will be complied with, but I consider the treaty powers to be a significant reinforcement to the already robust probability that the mother will honour her obligations.

[119]When the court has expert professional advice, it must have reasons to depart from it. I therefore return to the evidence of Ms Leifer. In circumstances where a professional witness has been selected by the parties it is unfortunate that she should face criticism from both sides. Nonetheless, I myself had significant reservations about Ms Leifer's assessment, despite the careful and sympathetic approach that she has taken. My concern arises to a significant extent from her unfamiliarity with relocation cases. Her assessment seems to have been heavily influenced by a perception, shared by the father and his family, that Russia would be a difficult and even dangerous place for Daniel to grow up in, and that if he lived there, he would move beyond their reach. Moreover, and leaving aside the international dimensions, I found that Ms Leifer’s investigation did not illuminate or draw appropriate conclusions from the past parenting history, the parents’ very different qualities and abilities, and the consequences of all that for Daniel’s future. I am also unconvinced by her ready optimism that the mother's practical difficulties in England would be resolved and that a rapprochement between the mother and the father and the father's family would be likely. I further and centrally consider that Ms Leifer has focused unduly upon Daniel's ‘here and now’, prioritising the preservation of something recently achieved, rather than considering the significance of the past arrangements and looking at the realistic prospects for his long term future.

[120]In the result, and I hope with some understanding for the position that Ms Leifer has been placed in, the outcome cannot be determined by her assessment. Nor can I accept Ms Webb’s final submission that a further professional assessment should be commissioned. The available information is quite sufficient for the court to reach a conclusion.

Conclusion

[121]Although the outcome of these cross-applications was not evident from reading the papers, the process of hearing the evidence and reflecting upon it has brought me to a clear conclusion. This is that is in Daniel's best interests for the mother's relocation application to be granted. The undoubted short-term disadvantages are outweighed by the long-term advantages identified above. His mother will resume her role as his primary carer and will be able to return to her own country. To refuse her application would be to convert what has been a short-term arrangement into a long-term compromise that would ultimately please no one and would not be the best way of meeting Daniel's needs.

[122]This outcome will be a blow to the father and his family. I hope that with time the father will come to see it as an opportunity to re-establish himself so that he can have significant influence and input into Daniel's future from a poisiton of greater strength. The order allowing the mother to take Daniel to Russia will also require her to return him to England for regular periods so that he continues to have a meaningful experience of his English family and background throughout his childhood. I will also provide for visits by the father to Russia, should he choose to make them.

[123]I will therefore make a child arrangements order providing for the current arrangements to continue until the mother and Daniel leave England. I will grant permission to the mother to remove Daniel on a date to be fixed in the light of further submissions. I will hear from the parties on the question of contact and will consider whether the order should be registered in Russia and, if so, whether this should take place before Daniel's departure.

[124][Following further submissions the following order was made.] _________________ IT BEING NOTED THAT:

[1]The Russian Federation and the United Kingdom are signatories to the Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children (“The Hague Convention 1996”).

[2]Article 23 of The Hague Convention 1996 provides that this order shall be recognised in the Russian Federation by operation of the laws of the Russian Federation.

[3]Article 26 of The Hague Convention 1996 provides that this Order comes into force immediately upon the date that it is made and is therefore enforceable in the jurisdiction of England and Wales from this same date and shall upon the request of the mother or the father be declared enforceable in the Russian Federation.

[4]Article 27 of The Hague Convention 1996 provides that there shall be no review of the merits of this order.

IT IS ORDERED THAT:

[1]The child Daniel shall live with the applicant mother.

[2]There be permission to the mother to remove the child Daniel permanently from the jurisdiction of England and Wales to the jurisdiction of the Russian Federation on or about 8 February 2015.

[3]The arrangements provided for in the order dated 12 August 2014 shall remain in full force pending the removal of the child pursuant to paragraph 2 above.

[4]Upon the removal of the child from the jurisdiction of England and Wales the order dated 12 August 2014 shall be discharged.

[5]Unless the parents otherwise agree in writing, the mother shall make Daniel available to spend time with the respondent father as follows: In England: - For 2 weeks in December each year. Until Daniel starts full time education, this should include Christmas Day and the two adjoining days, and he should return to Russia by no later than 30 December. - For 2 weeks in July 2015 and for 3 weeks in July or August in subsequent years. - Once Daniel is in full time education such contact will take place for the same duration and during his school holidays. In Russia: - For 1 week in April in each year. - For one further week during October in each year, if the father notifies the mother no later than 30 June each year that he wishes to take this up. There shall be such additional or different contact both in Russia and in England as the parents may agree, taking into account Daniel’s need to maintain his relationship with his father and paternal family, and his circumstances as he grows older.

[6]Unless the parents otherwise agree in writing, the following arrangements shall apply: - The mother shall deliver the child to and collect Daniel from England for all contact that takes place in England. - Until the end of 2016, the mother shall bear the cost of the two return flights for herself and Daniel. - From 2017, each party shall each bear the travel costs of one return trip to England for the mother and Daniel, the mother paying for the July trip and the father paying for the December trip. - The mother shall bear her other personal costs of the trips to England. - The father shall bear his own costs of all contact in Russia. - The parents shall agree the dates for contact for the following 12 months by 1st February in each year.

[7]The parent with whom Daniel is living or staying shall make him available for Skype calls with the other parent each Wednesday and Sunday at times to be agreed.

[8]The parents shall assist Daniel to send and receive written communications to his father and paternal family.

[9]The mother shall send email bulletins to the father in English every six weeks, describing Daniel’s progress and any events that were notable for him since the last bulletin.

[10]At the end of each holiday with Daniel, the father shall send an email bulletin to the mother, describing any notable events that occurred during the holiday.

[11]The father shall forthwith return the child’s passport to the mother and the mother shall ensure that Daniel’s passport is kept up to date and valid for international travel with any requisite visa throughout his minority.

[12]The mother shall promptly take any steps that are required from time to time to enable the father to obtain visas to visit Daniel in Russia.

[13]The mother shall at her own expense apply to the appropriate court of the Russian Federation for this to be declared enforceable or registered for the purpose of enforcement. The father shall cooperate in any way that is necessary to achieve this. The other terms of this order shall continue to have effect while the process (which is estimated to take 2-3 months) is carried out.

[14]No order for costs. Dated: 14 January 2015