FW (A Minor : Leave to Remove from Jurisdiction) with neutral citation [2017] EWFC 53

IMPORTANT NOTICEThe full judgment in this case was delivered in private. The judge has given leave for this redacted and anonymized 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 no person other than the persons named in this version of the judgment may be identified by name or location and that in particular the anonymity of the child and members of its family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.[2017] EWFC 53Case No XX 17 P 00646Date 17 th July 2017
IN THE FAMILY COURT
B e f o r e :
WILLIAM TYLER QC, SITTING AS A DEPUTY HIGH COURT JUDGE
Between
A MOTHERApplicantA FATHERRespondent
IN THE MATTER OF FW (A MINOR)
(LEAVE TO REMOVE FROM JURISDICTION)
B e t w e e n :
The applicant mother appeared in person for in personThe respondent father appeared in person for in personHearing Hearing dates: 13 th and 14 th July 2017Judgment date: 17 th July 2017
JUDGMENTWILLIAM TYLER QC:Introduction
[1]FW is 8 years old. He is an outgoing, markedly articulate, intelligent, companionable and resilient boy who greatly loves both of his parents.[2]His mother desperately wants the court’s permission for him to continue living with her in one of the United Arab Emirates, where they have been together for the last year.[3]His father no less desperately wants the court to refuse that permission so that FW, preferably with his mother, comes back to England where he lives.[4]As Mr

Justice Mostyn put it in NJ v OV [2014] EWHC 4130 (Fam):

“The choices are starkly binary. One or other parent will lose and will be bitterly disappointed. There is no scope for finding some comfortable middle ground.”
[5]One of FW’s parents (to borrow Mr Justice Hedley’s phrase in Re Y (Leave to Remove from the Jurisdiction [2004] 2 FLR 330) will be ‘dealt a crushing disappointment’.[6]It is for that reason - that is, that by the end of my judgment one of the two adults sitting before me will feel that their world has been, if not devastated, then certainly rendered a very much bleaker place - that I thank them both at the beginning rather than at the end for their behaviour during this trial. Both self-representing, each has behaved with restraint and courtesy, each has articulately and sensibly put their case, including in cross-examination to each other, and each has extended to the other the same politeness they have shown to the court, even when the subject matter of the questions and their answers has been painful or emotionally charged.

Background

[7]The parents’ relationship began in early 2008. The father is from [a city in the north-east of England], the mother from [the south of England], although she was living and studying in [another city in the north-east of England] at the time. FW was born in 2009. After FW’s birth, the father often stayed over at the mother’s house. They rented a home together in 2010 but separated in 2012.[8]Relations remained relatively cordial, communications remained very much open and FW, although he lived primarily with his mother, spent substantial periods of time with his father, staying overnight with him for two nights every week. Of the father’s role in FW’s life, the mother has said:
“He has remained involved, interested and enthusiastic about FW’s upbringing.”
[9]The mother finished university in [the north-east of England] and trained as a primary school teacher, achieving fully qualified status in June 2016. It was at this point that she started to look further afield than the north-east for a place in which to spend the next stage of her life. She does not have family in the north-east and described to me that many, if not virtually all, of her friends from university have moved out of the area. A particularly close friend of hers had shortly beforehand moved to work in the UAE and through and because of her the mother decided that she would like to do the same, taking FW with her.[10]The mother broached the subject with the father. There is dispute as to whether his immediate reaction was a refusal to allow such a course. Suffice it to say that fairly quickly he inclined to the view that it would be a beneficial experience for FW to spend some time in the UAE and he gave his permission for the mother to take FW there. The initial agreement between the parents was that the mother and FW would live there for a one-year period[11]The father took FW and the mother to the airport to see them off in August 2016. The mother had acquired and took up a teaching post in a private British curriculum school in the UAE. The father flew out to visit in September 2016. At that point he was actively considering relocating to live and work in the UAE for as long as FW was there. Ultimately he decided not to do so, the difficulties involved, both professionally and socially, making such a course on closer analysis unattractive.[12]In the 10 months during which FW has been away from England, his father has flown to the UAE and back on three separate occasions, staying either at the mother’s flat or, when accompanied by his current partner, in a nearby hotel, and FW has returned to England for periods in the school holidays on four occasions, including his current presence here.[13]In the early part of this year, the mother decided that she would like to stay with FW in the UAE for longer than the originally agreed 12 months. She raised it with the father. His initial reaction was that he thought he might agree to a further year. However, he broached this topic with then seven-year-old FW and reports that FW’s immediate and vehement response was that he did not like living in the UAE and that he wanted to return to England. This was enough to convince the father that FW should not remain in the UAE for any period beyond that originally agreed.[14]There followed an uncharacteristic but significant breakdown in the parents’ relations with each other. I have seen WhatsApp messages between them in March 2017, which amply demonstrate the depths to which the situation sank. I have also heard a covertly recorded telephone call between the parents which took place on the day of the first directions hearing before me on 22nd June 2017. I hesitate to describe the contents of that call as a ‘conversation’: it was really no more than two adults in overt disagreement, angrily talking over each other.[15]The mother tells me that she recognised that their dispute was insoluble and that their interactions were becoming toxic and so she decided to put the matter into the hands of the court. On 28th April 2017 she made an application for a child arrangements order.[16]Various directions were made at the point of initial allocation and gatekeeping by the Designated Family Judge for [the area of this court]. The case was listed to be heard by me for directions on 22nd June 2017. On that occasion, the father was at court, the mother attended by video-link from the UAE. They were, and are, both litigants in person. I explored with the parents whether there was any prospect in the successful diversion of the case from court and if any form of alternative dispute resolution might yield a consensual, and so inherently better, outcome. It was clear, however, that there was a single irreconcilable difference of principle between the parents, which required a third party decision. It was also apparent that there was a degree of urgency as decisions have to be made in time for FW to be enrolled at the right school and otherwise prepared for the upcoming new school year. I made a series of directions aimed at preparing the case for a final hearing in fairly short order and coinciding with a planned return by the mother and FW to England. I directed that their return be brought slightly forward, this allowing for a targeted piece of work with FW by a Family Court Adviser from Cafcass in order that I could be fully informed as to his wishes and feelings. I did not direct a full section 7 report as time did not allow for this and I did not consider that I would have been remotely hampered by the absence of an analysis of the fairly straightforward issues in the case.[17]As it turned out, despite the clearest of orders and the plainest of communications with HMCTS staff, the order was not served on Cafcass, and so the work with FW did not take place when planned on Monday of last week. I am enormously grateful to Cafcass for the extremely responsible way in which they reacted to their belated knowledge of my order of 22nd June. Senior management ensured that Ms X, Family Court Adviser, was immediately identified and made available and, at extremely short notice, she was able to undertake the work I had sought.

The Law

[18]The single authentic principle of law which governs my task is that I am mandated to ensure that FW’s welfare remains my paramount consideration (s.1(1)(a) CA 1989). In the words of Hedley J, FW’s welfare ‘is the lodestar by which the court at the end of the day is guided.’ As such, his welfare ‘overbears all other considerations, however powerful and reasonable they may be’ (In re Y (Leave to Remove from Jurisdiction) [2004] 2 FLR 330, para. 16). In the process of deciding which of the various options for FW best promotes his welfare I must have regard to the checklist of factors at s.1(3) CA 1989.[19]It is a self-evident proposition that in any case in which the court’s decision is to be reached simply and solely with reference to the child’s best interests, that case must be determined according to its own unique set of facts. I am very well aware of the guidance, more or less applicable depending on the individual case, given by the House of Lords and the Court of Appeal in cases spanning the last four decades.[20]In order to assist the parents in their preparation for and presentation of this case, I directed them to the summary of the current state of the law in relation to relocation, useful and succinct in equal measure, set out by Cobb J in Re AZ (Child) (Relocation to Poland) [2016] EWFC 8, from which I borrow this:
“13. The authority on which both counsel specifically relied was Re F [2015] (above) from which I extract the following significant passages. Ryder LJ in Re F (A Child) (Relocation) [2015] EWCA Civ 882, [2017] 1 FLR 979 at [28] and [30] said this: “[28] Given the agreement of the parties to an holistic approach to the court’s welfare analysis, I need to set out what that involves. The re-crafting of section 8 orders from residence and contact into child arrangements orders has inter alia the benefit of emphasising, absent adverse circumstances and welfare conclusions, the equality of parental responsibility that each parent has. Parents are to be expected to exercise their autonomy and to respect the autonomy of their children by entering into arrangements that plan for their children’s long term welfare by providing for a meaningful relationship between each adult and each child. [30] Where there is more than one proposal before the court, a welfare analysis of each proposal will be necessary. That is neither a new approach nor is it an option. A welfare analysis is a requirement in any decision about a child’s upbringing. The sophistication of that analysis will depend on the facts of the case. Each realistic option for the welfare of a child should be validly considered on its own internal merits (i.e. an analysis of the welfare factors relating to each option should be undertaken). That prevents one option (often in a relocation case the proposals from the absent or ‘left behind’ parent) from being side-lined in a linear analysis. Not only is it necessary to consider both parents’ proposals on their own merits and by reference to what the child has to say but it is also necessary to consider the options side by side in a comparative evaluation. A proposal that may have some but no particular merit on its own may still be better than the only other alternative which is worse”. 14. McFarlane LJ indicated the use of ‘holistic’ (“the ‘h’ word” as he described it [51]) in recent Court of Appeal authorities (adopted by counsel in their arguments in Re F) was not intended to be a term of art or designed to change the law, but was simply used to describe: “‘the old-fashioned welfare balancing exercise’, in which each and every relevant factor relating to a child's welfare is weighed, one against the other, to determine which of a range of options best meets the requirement to afford paramount consideration to the welfare of the child. The overall balancing exercise is ‘holistic' in that it requires the court to look at the factors relating to a child's welfare as a whole; as opposed to a ‘linear’ approach which only considers individual components in isolation” [48] He added that in a case of international relocation: “... [T]he factors that must be given due consideration and appropriate weight on either side of the scales of the welfare balance may be such as to require an analysis of some sophistication and complexity. However, whatever the issue before the court, the task is the same; the court must weigh up all of the relevant factors, look at the case as a whole, and determine the course that best meets the need to afford paramount consideration to the child's welfare. That is what, and that is all, that I intended to convey by the short phrase ‘global, holistic evaluation’”. [50]” “[28] Given the agreement of the parties to an holistic approach to the court’s welfare analysis, I need to set out what that involves. The re-crafting of section 8 orders from residence and contact into child arrangements orders has inter alia the benefit of emphasising, absent adverse circumstances and welfare conclusions, the equality of parental responsibility that each parent has. Parents are to be expected to exercise their autonomy and to respect the autonomy of their children by entering into arrangements that plan for their children’s long term welfare by providing for a meaningful relationship between each adult and each child. [30] Where there is more than one proposal before the court, a welfare analysis of each proposal will be necessary. That is neither a new approach nor is it an option. A welfare analysis is a requirement in any decision about a child’s upbringing. The sophistication of that analysis will depend on the facts of the case. Each realistic option for the welfare of a child should be validly considered on its own internal merits (i.e. an analysis of the welfare factors relating to each option should be undertaken). That prevents one option (often in a relocation case the proposals from the absent or ‘left behind’ parent) from being side-lined in a linear analysis. Not only is it necessary to consider both parents’ proposals on their own merits and by reference to what the child has to say but it is also necessary to consider the options side by side in a comparative evaluation. A proposal that may have some but no particular merit on its own may still be better than the only other alternative which is worse”. “‘the old-fashioned welfare balancing exercise’, in which each and every relevant factor relating to a child's welfare is weighed, one against the other, to determine which of a range of options best meets the requirement to afford paramount consideration to the welfare of the child. The overall balancing exercise is ‘holistic' in that it requires the court to look at the factors relating to a child's welfare as a whole; as opposed to a ‘linear’ approach which only considers individual components in isolation” [48] “... [T]he factors that must be given due consideration and appropriate weight on either side of the scales of the welfare balance may be such as to require an analysis of some sophistication and complexity. However, whatever the issue before the court, the task is the same; the court must weigh up all of the relevant factors, look at the case as a whole, and determine the course that best meets the need to afford paramount consideration to the child's welfare. That is what, and that is all, that I intended to convey by the short phrase ‘global, holistic evaluation’”. [50]”

The mother’s case

[21]The mother’s proposal is that she be given permission to remain in the UAE with FW for three more years. Ideally she would like the flexibility of being able to decide, when the time comes, whether to stay even beyond that. However, in her oral evidence to me, she acknowledged that it is important that the father knows both that his son is eventually to return to England and when he is to do so. Fixing that latter date at three years hence will coincide with the point at which FW is set to move from middle to secondary school.[22]The mother’s rationale is relatively simply stated. She takes the view that she can offer FW a materially better life in the UAE, that she can more quickly obtain qualifications and progress in her career than would be the case in England, to FW’s ultimate advantage, and that, with a continuation of the commitment to travel and contact which has been demonstrable to date, the relationship between FW and his father need not suffer in any way.[23]As to her employment, the mother has completed a full school year teaching in a private school in the UAE. She has now obtained a new job, a significant promotion, she says, in a different primary school. The job carries extra responsibilities in the area of special educational needs. It is also relatively well-paid and comes with the joint benefits of a housing allowance and a discount on school fees. Thus, the mother’s plan, if she is allowed to stay in the UAE, is that she and FW will move to a larger home, a newly-built flat in a well-serviced complex of which she has provided the particulars. They will share the flat with the mother’s best friend, FW’s (so-called) ‘Auntie [name]’ and a hired nanny-cum-housekeeper. In September this year, the mother and FW will start together at their new school. The mother, who provides details of this school, writes this of it in her second statement:
“[10] [The named] school is a reputable British private school that serves the expat community in [the UAE]. The school provides education in line with the British National Curriculum; thus when [FW] returns to the UK for high school he will have sat all relevant exams and have no gaps in curricular knowledge. The school offers many extracurricular opportunities and specialist subjects such as Arabic and swimming.”
[24]Not only is the mother’s new job a step up the teaching ladder, but she intends to couple it with a further postgraduate qualification, the ‘National Award for Special Educational Needs Coordinator’, which, she tells me, is accredited and recognised in the UK and will help her in finding good employment when back in England.[25]Of life in the UAE, the mother tells me that both she and FW are extremely happy. She says that, although it took a few months to build, FW has a very strong friendship group among the local expatriate community and that he is forever either playing at friends’ homes or entertaining them at his. She too benefits hugely, she tells me, from a close-knit and supportive community the like of which she has never before experienced.[26]The mother describes FW having ‘a consistent and steady routine in [the UAE]’, with plenty of time for swimming in the pool at their apartment, soft play areas, role play, theme and water parks, cultural trips, beach visits etc. She tells me that she undertakes the bulk of the parenting duties, although she retains the services of a woman who, in addition to housekeeping tasks will watch and play with FW at times when, for example, he is at the swimming pool while his mother is at the gym (also situated in the apartment complex). To the criticism the father makes that it would be better if FW could rely on his parents alone rather than an employee for childcare, the mother makes the point that his parents’ study and employment have always combined to necessitate some extra childcare, previously breakfast and after-school clubs. She further points to the real advantages which will accrue when she and FW are at the same school, in that they will travel together and see each other at school and she will have the opportunity to engage with his teachers, and to watch those various activities, matches, assemblies etc., normally not accessible to a parent who teaches in a different school to that attended by their child.[27]The mother was very much prepared to acknowledge that her proposals will come at some cost to the father, that he would very much like to see more of FW and in particular that he would like to play a greater role in FW’s routine life. However, she was at pains to express a whole-hearted commitment to contact, saying, ‘FW should maintain a close and meaningful relationship with his father.’ Subject only to the father’s work commitments, she would be happy that FW spend virtually all of the school holidays with him in England and that he, the father, visit them in the UAE whenever he would like to and is able to. She describes this arrangement as FW residing with her in the term-time and with the father in the holidays and has produced a careful parenting plan setting out her detailed proposals.[28]The United Arab UAEs not being a signatory to the Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”), I explored with both parents the questions of enforcement of this court’s orders and the risks of wrongful retention or abduction of FW at some point in the future. The mother, when I asked her, was visibly shocked at the notion that anyone might consider that she would not comply with an order of the English court. She immediately agreed that she would do whatever was required by an order, now or at any stage in the future and that she absolutely agreed that the courts of England and Wales will retain jurisdiction over questions relating to FW’s upbringing. She told me that she could not contemplate putting herself in the position of being, effectively, a fugitive from the courts of her home country, where all of her family still live. The father, when asked, did not consider this an even remotely likely occurrence.[29]A factor which somewhat complicates the balancing exercise in due course to be undertaken is the detail of the mother’s contingency plans.[30]First, she says that, if I order her to return FW to live in England, she does not currently know if she will be able to come back with him, given the facts of the good job and a flat in the UAE set against the absence of current employment or accommodation in England. Thus, it might not be anything approaching shared care to which FW were returning, but something more akin simply to the mirror of the current situation.[31]Secondly, she told me that, if she did return with FW to live in England, it would certainly not be the [north-east city] region in which they settled. She told me that she has virtually no friends left in [the city] or the north-east: they have all moved back south. She was visibly very upset when contemplating the prospect of somehow being forced to return to live in [the north-east]; she would feel trapped and alone. Rather, she would move to live with her parents in [the home counties]. Of course being such a distance from his father would significantly impact on FW’s chances to have direct face-to-face contact with him in the term-time.

The father’s case

[32]The father agreed to FW’s move to the UAE on a particular and limited basis: that, absent further agreement, FW would remain for one year only. This, the father thought, would provide him with a valuable and enjoyable life experience. Now that there is a proposal to extend the single year to four, he feels cheated. His objections can conveniently be divided into two categories: those relating to the diminution in FW’s life of his relationship with him, inherent, he says, in FW’s remaining in the UAE, and those which underpin why he says FW’s life in the UAE simply does not accord with his best interests.[33]The father asserts that he has always played an important role in FW’s life, that he co-parented him when he lived with the mother and that he saw FW frequently and regularly after separation. He asserts that it was only after a degree of persuasion that he agreed to FW’s initial move to the UAE. He gave serious consideration to moving out to the Emirates himself for the 12-month period, but in the end did not think it was practicable.[34]Although he agrees that he has managed to see FW a significant number of times since August last year, he complains that the inevitable gaps in between FW’s visits to England or his to the UAE act to the detriment of their relationship. The father wants to immerse himself in FW’s day-to-day life; he yearns to play sports with him, to take him to school, to be part of all of the routine parts of FW’s life, and so to be present for that continuous series of all-but-imperceptible, shared individual events and human interactions which, in combination come to create the fully-fleshed parent-child relationship. He also complains that Skype (or other electronic contact) is a poor substitute, especially for a child of FW’s age, for whom there are so many other distractions which can push electronic contact with his father down the list of chosen pastimes. In particular, the father relied on a period in March of this year when, at the height of the parental disharmony, and in the context of other, particularly hurtful matters having been raised in the course of arguments, the following WhatsApp exchanges took place: Mother Father I will never ever obstruct your contact However I will no longer facilitate it. I never did in your eyes anyway He has a phone, call it, I’ll tell him to answer You really are unbelievably selfish Just transfer the money you owe me I told u, we don’t talk anymore, keep your opinions to yourself We have our disagreement but I did think you were better than this Do u honestly not realise y I stopped communication with u. I told u, it was upsetting anxiety causing, it was based on accusations and u couldn’t hear anything but your own pain. Seriously u need to reflect- I’ve not tried to do u wrong. I want to cause u no pain. I preferred it when we were friends. and: I don’t think we should communicate any more. You can contact FW without me involved. I will see you on the 26th in London, I will pick him up from [the city in the north-east]. And if u believe forcing me to fuck up pursuit of happiness and success will benefit your long term relationship with FW then so be it You will never be forgiven All about you It’s not about you its about FW After what u said to me earlier I will no longer be talking to u unless completely necessary[35]The father says that this refusal by the mother to ‘facilitate’ contact during that turbulent and acrimonious period suggests that she cannot be trusted wholeheartedly to promote contact - as she assures me she will - once the case leaves the forensic arena.[36]The father challenges more generally the notion that living in the UAE is a profitable experience for FW. He points to the fact that another school change is now on the cards, and asks why it is not better for that to take place by FW’s readmission to an English school. He asserts that FW is left for long periods of time being cared for by an employee, rather than a parent, and whose first language is not English. He considers that the expatriate lifestyle in the UAE is artificial and that longstanding exposure to it normalises the flaws he considers are inherent in civil society in the UAEs, the censorship, human rights abuses and general culture of servitude by which construction and domestic workers are very poorly treated.[37]Perhaps most important to the father’s case is his assertion that FW does not want to continue to live in the UAE. The father states that FW does not like his nanny and that he revealed in a conversation between the two of them his true views:
“During nonUAEprobed discussions with [my] son about staying in [the UAE] for one further year, [FW] explicitly stated that he did not want to stay in [the UAE] and wished to return to England, stating to [me] that, ‘Mummy clearly said it would only be for one year, and I don’t want that to change.’”
[38]The father’s proposal is that I direct that FW be returned to England. He proposes that, if the mother returns as well, and if, whether voluntarily or as a result of an order, she lives in the area [of the city in the north-easy], FW should share his time equally between his parents. In the event that the mother chooses to stay in the UAE, the father proposes, effectively, the reverse of what the mother has suggested, that is that FW live with him in the term-time and spend the bulk of the school holidays with his mother in the UAE. In the event that the mother return to England but live with FW in [the home counties] (or somewhere else in the south of the country) the father would see as much of FW as he could, including, he thinks, at weekends in term-time, whether in the north-east or wherever FW lives. In this circumstance the father would also give real consideration to a move so that he could live closer to FW.

The child

[39]I have already in this judgment described FW as ‘an outgoing, markedly articulate, intelligent, companionable and resilient boy who greatly loves both of his parents’.[40]At my request, albeit somewhat hurriedly due to the failure of HMCTS to serve the relevant order on Cafcass, Ms X, a Family Court Adviser was made available to speak to FW, this taking place last Wednesday, the day before the hearing started. Ms X found FW to be confident and eloquent; accordingly a single session with him was enough, she was clear, to ascertain his views, wishes and feelings.[41]Both by talking to him and by using various worksheets, Ms X determined that FW sees himself as having two homes, one in the UAE with his mother and one in England with his father.[42]Of life in the UAE he spoke of enjoying hanging out with his friends, visiting a local waterpark and using the swimming pool on the top floor of his apartment. He likes the heat in the UAE and enjoys school there.[43]He made a point of telling Ms X that he likes England as well and of the things he does here.[44]Notably, his first wish, when asked, was to be able to teleport. Clearly he would like to be able to spend time with both parents more easily. As to his current state of mind, he circled the ‘nervous’ face, pausing, seeming sad and looking downwards as he did so. He did so ‘because I don’t know what will happen or what I should do.’ He said, ‘It’s quite stressful,’ that he feels ‘pressured’ because he does not know what to do, and stated that there are ‘good things in [the UAE] and good things in England and this is why it’s hard to choose.’ Ms X reassured him that the responsibility for choosing where he should live was not his.[45]I note in passing that the mother in particular was very upset when she learned the extent to which FW felt this pressure and sense of responsibility. She entirely accepted that she and the father ought better to have protected him from this. Discussion General observations

Discussion

[46]I begin with one or two general observations and findings.[47]First, I absolutely accept that each parent is motivated by the best of intentions. The mother, while she is driven to improve herself, her employment prospects, her lifestyle and, in the longer term, her financial status, is impelled in all of these endeavours by an ultimate desire to provide well for FW. She genuinely believes that the best outcome for FW for the time being is to remain living in the UAE. Equally the father, although no doubt FW’s return to England would be more convenient for him, is motivated principally by a genuinely held belief that it would be better for FW to be back in England and closer to his father.[48]Secondly, I observe that FW is extremely lucky in having two parents who are motivated to do the best by him and who have so much to offer him. Both, as well as being doting parents, are also intelligent, hard-working and responsible adults. FW currently has a very good relationship with each of his parents, both of whom in turn entirely accept the qualities and importance in FW’s life of the other parent.[49]Thirdly, and arising out of the preceding two paragraphs, in the mother’s desire to remain in the UAE I do not discern any constituent intention, whether explicit or more subtly embedded in her psyche, of wanting to distance FW from his father. Equally, although the mother has perhaps felt it to be so during some of the parents’ less dignified recent exchanges, I do not detect in the father’s opposition any sense of his seeking to exert control over his ex-partner.[50]Fourthly, FW is a well-adjusted and resilient child. All I have heard and read about him suggests that his parents have done a pretty good job thus far in bringing him up. Indeed, until the unpleasantness of the last few months, his childhood seems to have been remarkably devoid of any of the common repercussions of having separated parents. It is a great shame that he feels now in the fray and even more so that he considers himself to bear the weight of making a decision - ultimately in his eyes between two parents whom he loves - which is not, on any view, for him to take.[51]I turn to consider the various factors contained in the checklist at s.1(3) CA 1989.

Ascertainable wishes and feelings

[52]FW loves both of his parents. He also currently feels torn between them. He is aware of the fact that they are in dispute and that his mother wants him to live with her in the UAE and his father wants him to live in England. It seems to me likely that FW’s own views are likely to vary, depending on where and with whom he is. For example, it came out in the evidence that when in the car with both of his parents on their way from the station a few days ago, he said for both to hear that he likes living in the UAE, whereas the father describes him the next day, when alone with him, expressing a preference for living in England. No doubt when he is participating in his favourite activities in the UAE, he feels a preference for being there and would say so to anyone who asked.[53]I was impressed with the evidence of Ms X. I did not ask her to undertake any detailed analysis of the case; and she did not. I did ask her to meet with FW and to ascertain his wishes and feelings. This she did, to my mind with diligence and professionalism. She described FW very much considering himself to have two homes. He expressed no negative thoughts in relation to either of them, and I accept Ms X’s professional opinion that there was no evidence of his having been coached, coerced or otherwise directly influenced by either parent.[54]In short, I do not accept the father’s proposition that FW has any particular objection to continuing to live with his mother in the UAE.[55]It is unfortunate that FW currently feels the emotional impact of these proceedings and the inappropriate burden of making a decision. He will learn very quickly that the proceedings are over and that there is no decision left for him to make.

Physical, emotional and educational needs; age, sex, background, relevant characteristics

[56]The father has been concerned that FW’s fitness level has dropped and that he has put on weight since being in the UAE. The mother disagrees, producing evidence from a general practitioner to the effect that FW’s weight falls appropriately on a centile chart to reflect his age and birth weight. I do not regard this as a significant matter. This question aside, FW does not have any particular or unusual physical needs which would not be more than amply met in the care of either of his parents and whether in England or the UAE.[57]His emotional needs too are no different to those of any boy of his age. In particular he needs to know and to have a full chance to experience the love of and his close affinity to each of his parents.[58]As to education, FW is clearly a very bright child. He will benefit from attending a school which can challenge and stimulate his young mind. In pure educational terms, I do not consider I can or should seek to adjudicate as between that available in the UAE, those the father has researched in [the north-east], or those - currently unascertained - which might be available if FW were to live in [the home counties].

The likely effect of any change in his circumstances

[59]If FW remains living with his mother he will soon move to live in a new flat and he will enrol in a new school to begin in September. I do not consider that the new flat will cause anything other than the most fleeting disruption: rather more likely it will be the source of significant excitement. While moving school can be a difficult experience, I have heard nothing to suggest that FW would not take this in his stride. I am struck by the mother’s description first of how much more closely she could be involved in his education were they together, studying and teaching, at the same school, and secondly how excited she says he is by this prospect.[60]The other significant change of circumstances which this eventuality will bring is knowledge of the altered longevity of the placement. On the mother’s case, FW will know that he is to stay in the UAE for another three years. While I do not consider that he is unhappy in the UAE per se, FW would know that this is an outcome which his father does not want, which is likely to trouble him. He will also know that he, FW, will be consigned to a further prolonged period of repeatedly travelling from England to the Middle East.[61]If FW were to return to England to live in the [north-east city] area, either his mother would return with him or she would not. The father’s view is that if she were to remain in the UAE, FW, after a brief unsettled period, would not mind her absence. I disagree. Although FW’s father has always played a very important role in FW’s life, it is his mother with whom he has primarily lived since separation and so with whom he has lived consistently since he was born. I consider that to leave her care would probably be profoundly unsettling and very possibly damaging for FW. However I agree with the father when he predicts as unlikely the prospect of the mother remaining in the UAE if FW were to leave. Notwithstanding how difficult it would be for her, emotionally, financially, and practically I think it very much more likely that she would find a way to return herself at the same time or shortly thereafter.[62]However, if the mother were to leave the UAE to live in the [north-east city] area, this too would, in my view, have an impact on FW. Notwithstanding her obvious abilities, her optimistic and impressively ambitious personality, as I consider it to be, the emotional impact on the mother of being forced to leave the UAE would be very considerable. Moreover, for her also to have to live in the [north-east city] area when she so passionately does not want to do so, would significantly compound the effect of this. I think it likely that she would find it very difficult indeed to resettle in [the north-east city] in those circumstances. From FW’s point of view, it is also relevant that there is currently no accommodation and no employment waiting in [the north-east city]. While I am sure that the mother would in fairly short order seek to attend to these matters, I judge that she is entirely correct when she says that she could match neither the quality of her prospective accommodation nor the status or remuneration of her upcoming employment in the UAE.[63]I agree with the mother that an unplanned move, in those particular circumstances, is likely to be significantly disruptive. I further consider that the mother finding herself in such a situation would be likely to affect her own emotional functioning to a degree which would impact adversely on FW. Moreover, while I discerned some very positive indicators for the parents’ relationship with each other in the warm acknowledgments while in court of each other’s many positive attributes, I consider it unlikely that anything other than unbridled resentment would characterise the mother’s view of the father if, effectively, she were forced back to England and back to the north-east.[64]Of course on the other side of the balance, a significant positive consequence of a move back to England and to [the north-east city] in particular would be that FW could see very much more of his father and on a far more regular basis.[65]The third scenario is that the mother return with FW to England but that she live in a place of her choosing, most probably [the home counties]. In this circumstance many of the negative consequences of the move as set out above would still probably follow. There is no job, home or school currently available. Time spent by FW with his father would increase, although to a rather lesser extent as I do not consider it viable that very much contact at all could take place in the school term-time simply due to the logistics.

Harm or likely harm

[66]Although it has not been raised before me, in any case involving a contested relocation to a country which is not a signatory to the Hague Convention it is incumbent on the court to consider the possibility of the child being wrongly retained in a country and effectively beyond the reach of the orders of this court. Were this to come to pass, it would undoubtedly cause FW very significant harm. In the current case, however, I do not consider this to be even the slightest risk. The mother is British, has strong ties to England (all members of her family living here) and evinces no intention whatever to abandon her longer-term life here. The very fact that it was she who applied to this court for an order demonstrates that she will submit to the court’s decision, whatever it may be. That the father agrees that there is no appreciable risk provides further support for the notion that this is not a case in which the possibility of retention of the child or non-compliance with orders of this court arises.[67]FW has hitherto been well protected from any negative aspects of his parents’ separation. That he has inadvertently been drawn into the current dispute is disappointing. I hope that this problem can be nipped quickly in the bud before any harm is caused, certain in the knowledge that prolonged exposure of a child to parental disagreement, especially when the child feels in some way responsible for the outcome, is a sure-fire way to cause harm.[68]Would any of the options before me expose FW to the risk of harm?[69]I consider first whether there is a risk of harm inherent in what the father would say is the diminution in his relationship with FW corollary to their living 4,500 miles apart. I acknowledge how difficult the father finds the enforced absence caused by these arrangements. However I note that, apart from a hiatus when relations between the parents were at their worst, indirect contact has continued with great frequency. Perhaps more significantly I note that it has been possible for there to have been a very high level of visits, both FW to the UK (four in eleven months) and the father to the UAE (three in eleven months). This is testament to the efforts of the father and to the good faith of the mother. It is also the reason, I have no doubt, for FW’s relationship with his father being as close as it is. For these reasons, I do not consider that the geographic hurdles to seeing his father are positively harmful.[70]Another possible source of harm would be the situation to which FW would be exposed if he returned to live in [the north-east city]. As I have indicated, although I think it unlikely to arise, a scenario by which FW ceased to live with his mother would, I consider, be harmful to him. For the reasons I have set out above, I consider that the mother’s being forced to return to the north-east would, due to the impact on FW of his mother’s emotional state, in combination with their markedly changed circumstances and the unplanned move to school and accommodation currently unsourced, would expose FW to the risk of harm.

Capability of parents to meet his needs

[71]At one level, there is no doubt but that both parents are capable of meeting FW’s needs. Both are devoted, financially stable and emotionally attuned to him.[72]The mother has demonstrated over the years that she can amply provide for all of his needs. I was initially troubled by the tone of her WhatsApp exchanges with the father set out above and whether she could be trusted to ensure that ongoing contact with FW’s father be afforded the prominence it requires. Having heard evidence in relation to that period, I am satisfied that she will continue to promote contact and that, despite the heat of those various exchanges, she never in fact prevented contact between FW and his father.[73]The father remains slightly more untested, at least over prolonged periods. Despite his case having being reduced to writing in a lengthy statement and the subject of considerable oral evidence, I remain unable to accept that the father would be in a position to assume the full time care of FW. There are a number of examples in England both before and after FW’s leaving for the UAE, in which the father has been unable entirely to prioritise arrangements for FW over his own work or other commitments, and occasions in the UAE on which he has seen somewhat less of FW than would have been possible, juggling, it seems, a holiday with his partner with opportunities to see his son.[74]The father’s opposition to the mother’s proposal that he have prolonged periods of time with FW in the school holidays was expressed thus:
“The suggestion that FW resides in [the UAE] with his mother during the school terms and with the father during her school holidays has difficult implications for the father. It would massively impact his work life. The mother proposes their son be with the father for long chunks three times a year in up to month long blocks, which suits her school holiday leave. As a [father’s occupation redacted] this would be near impossible to sustain continued employment due to the time away from work being much more than annual leave and holiday pay would permit.”
This is not consistent with the father’s suggestion that he could care for FW alone, if needs be, with the assistance of his support network of family and partner.[75]Taken together, I do not consider the father’s primary proposals to be fully thought through or entirely realistic.

Conclusion

[76]Considering, as I have done, the welfare checklist and its implications in relation to each of the various options before the court has essentially allowed for their evaluation as against each other.[77]In relation to the father’s proposal that FW move back to [the north-east city], I am struck by the fact that, while FW would see very much more of his father, this would come at a cost. The possibility of his mother not following, distant though it is, would prove very difficult indeed for FW. Even if she did follow, it would be a mother with her dreams crushed and forced, to her mind, into a prison, long distant from family and friends elsewhere in England and even further from the life she wanted for herself and FW in the UAE. She would not be in a position to offer FW a home to anywhere near the same standard as he enjoys in the UAE and her employment prospects would, I agree with her, be significantly stunted in comparison to what they would be in the UAE. This would not ultimately be to FW’s advantage.[78]The scenario whereby the mother return to England with FW but live where she chooses, viz.[the home counties], is in many ways the worst of both worlds. Not only are many of the negative aspects of the first scenario realised, but the amount of time which the father could in fact spend with FW would be significantly curtailed in school term-time due to the logistics of getting from [the home counties] to [the north-east city].[79]The third scenario, whereby FW remain in the UAE with his mother for the next three years offers him the chance of happiness with each of his parents. He would live in the UAE, where, I find, he is happy, and where he currently enjoys a high standard of living and a high quality education. He would continue to be able to see his father electronically as often as he chooses and to spend considerable periods of time with his father in both the UAE and, very importantly, England.[80]It is undoubtedly a loss both to FW and to his father that the distance makes it impossible for them to see each other on a more routine basis. This, however, is, in my view, significantly mitigated by the frequency, quantity and quality of the time they do spend together.[81]I have carefully considered each of the competing possible outcomes for FW both internally and as against one another. Recalling throughout that FW’s welfare is my paramount consideration, and while acknowledging that none of the options is free from problems, still less perfect, I consider that the option which most clearly accords with FW’s best interests is that he continue to live with his mother in the UAE in the term-time, spending as much time with him as his father’s commitments allow, in the UAE during term-time or shorter school holidays and in England in the main school holidays.

Order

[82]By way of specific issue order I give the mother permission to remain living with FW outside the jurisdiction of the courts of England and Wales and specifically in the UAE until the end of his primary education in the summer of 2020.[83]I make a child arrangements order whereby FW live with his mother in the UAE during the school term-time and whereby he live with his father in England for such periods in the school holidays as the father chooses (subject to his reassuring the mother that appropriate childcare is available) and that the mother make FW available to spend time with his father in the UAE at such other times as the parties agree. The order will record the parties’ agreement in relation to Christmas and FW’s birthday and as to indirect contact.[84]I will record in the order the mother’s unequivocal agreement that the courts of England and Wales will retain jurisdiction in relation to all questions relating to where and with whom FW should live and spend time as arise during or at the point of the conclusion of the period of permission to live in the UAE. I will also record the mother’s agreement that she will not take FW to live in any other country without the prior written agreement of the father or order of this court.[85]Unless the parents agree separately in writing, they shall each be responsible for their own flight and other travel costs and shall split those attributable to FW equally. (I note that the father does not pay any child maintenance to the mother for FW and that she accepts that this deficit is fairly reflected by his significant travel costs.)

Cited in 1 later judgment