The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.Case No FD03P1660[2004] EWHC 2572 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 10 November 2004
Before
THE HONOURABLE MRS JUSTICE BARON DBE
Between
EMMA RApplicantEDWARD RRespondentJudith Parker QC (instructed by Messrs Withers) for ApplicantBarry Singleton QC and Madeleine Reardon (instructed by Messrs Manches) for RespondentHearing Hearing dates: 26 October – 1 November 2004Judgment
[93]Miss Parker Q.C. also points to the case of Payne v Payne 2001 1 FLR 1052. In particular she lays emphasis on the passage at paragraph 19 of the Judgment of Thorpe LJ, in which he states “He adopted the same approach in the unreported case of Moodey v Field (13 February 1981) when he said: ‘The question therefore in each case is, is the proposed move a reasonable one from the point of view of the adults involved? If the answer is yes, then leave should only be refused if it is clearly shown beyond any doubt that the interests of the children and the interests of the custodial parent are incompatible.’” I also bear in mind the passage at page 1060 (g) in which Thorpe LJ states: “ In summary a review of the decisions of this court over the course of the last 30 years demonstrates that relocation cases have been consistently decided upon the application of the following two propositions:(a) the welfare of the child is the paramount consideration; and(b) refusing the primary carer’s reasonable proposals for the relocation of her family life is likely to impact detrimentally on the welfare of her dependent children. Therefore her application to relocate will be granted unless the court concludes that it is incompatible with the welfare of the children” I take fully into Account Articles 6 and 8 of the ECHR. At page 1065 Thorpe LJ states: “However there is a danger that if the regard which the court pays to the reasonable proposals of the primary carer were elevated into a legal presumption then there would be an obvious risk of the breach of the respondent’s rights not only under Art 8 but also his rights under Art 6 to a fair trial. To guard against the risk of too perfunctory an investigation resulting from too ready an assumption that the mother’s proposals are necessarily compatible with the child’s welfare I would suggest the following discipline as a prelude to conclusion: (a) Pose the question: is the mother’s application genuine in the sense that it is not motivated by some selfish desire to exclude the father from the child’s life? Then ask is the mother’s application realistic, by which I mean founded on practical proposals both well researched and investigated? If the application fails either of these tests refusal will inevitably follow. (b) If however the application passes these tests then there must be a careful appraisal of the father’s opposition: is it motivated by genuine concern for the future of the child’s welfare or is it driven by some ulterior motive? What would be the extent of the detriment to him and his future relationship with the child were the application granted? To what extent would that be offset by extension of the child’s relationships with the maternal family and homeland?(c) What would be the impact on the mother, either as the single parent or as a new wife, of a refusal of her realistic proposal?(d) The outcome of the second and third appraisals must then be brought into an overriding review of the child’s welfare as the paramount consideration, directed by the statutory checklist insofar as appropriate. This line of Authority has also been accepted as appropriate in cases where a mother wishes to travel to abroad with a new husband either because (i) he originates from that country or (ii) he has to be there for his work – see, for example, Re B 2003 2 FLR 1043. Neither of those concepts applies in this case.[94]Miss Parker also prayed in aid Re C a decision by Charles J in which he stated: “What I take from this guidance and my approach in law is that:(1) The welfare of these children is my paramount consideration. As in other cases where this is so I have to consider the short, medium and long-term welfare of the children.(2) I therefore have to consider the facts and competing considerations in this case and should not decide it by reference to the class or subclass of case into which it could be said to fall. As to this I accept the point made on behalf of the father that it can be said that there are a number of categories or classes of case within the broad description of applications made by maternal primary carers. Indeed, it seems to me that this appears from para [31] of the judgment of Thorpe LJ in Payne v Payne [2001] EWCA Civ 166, [2001] 2 WLR 1826, [2001] 1 FLR 1052.(3) There is no presumption that if the applicant establishes that the proposal to move abroad is reasonable permission to do so will be granted.(4) The question whether the proposal of the applicant is reasonable has a number of aspects both when it is considered from the viewpoint of the parent alone, or on a wider basis, and thus including the likely effect of the proposals on the welfare of the child(5) First, to be reasonable the application must be: (a) genuine and thus not motivated by an inappropriate selfish desire; and (b) practical. These are in effect conditions or hurdles the applicant has to show or cross to trigger the next stage of the assessment of whether the grant of the application would best promote the welfare of the child.(6) However, there are wider aspects to the issue whether the applicant’s proposal is reasonable which will vary from case to case and, in my judgment, will give rise to an assessment of the proposal from the viewpoints of the children and the adults involved.(7) As indicated by, for example: (a) paras [21], [26] and [27] of the judgment of Thorpe LJ in Payne v Payne [2001] EWCA Civ 166, [2001] 2 WLR 1826, [2001] 1 FLR 1052; (b) the approved passage from the judgment of Clarke LJ in Re S (A Child) (Residence
Order
Condition) [2001] EWCA Civ 847, [2001] 3 FCR 154; (c) the order of the factors listed by the President in Payne v Payne; and (d) the point that Payne v Payne read as a whole indicates what will usually be the most important consideration, the guidance in Payne v Payne is not limited to directing the court to the factors to be taken into account but indicates the weight to be given(i) to various factors, and thus(ii) to the reasons for their relevance and importance in determining what will best promote the welfare of the relevant child in the circumstances of the case. (8) The reason for giving great weight to the reasonable proposal of an applicant who is the primary carer is the desirability of promoting happiness and stability in the home and the likely detrimental impact on the primary carer and thus the children if the proposal cannot be implemented (see, for example, para [26](b) and the first two sentences of para [31] of the judgment of Thorpe LJ in Payne v Payne). (9) If the court concludes that a refusal of the application will be likely to have a detrimental impact on the care that the primary carer will give then the guidance in Payne v Payne indicates that that harm will usually outweigh the likelihood of harm flowing from other effects of the proposed move. This is based on a recognition of the importance of stability and happiness in the home. (10) In many cases the opposition to a move is based on the harm that it is alleged will be likely to flow from a reduction in contact with the non-custodial parent. Payne v Payne indicates that usually the harm that is likely to flow from a reduction in contact will not found a conclusion that the welfare of the child would be best promoted by refusing an application by the primary or custodial parent to take the child abroad. (11) However, Payne v Payne makes it clear that it is only giving guidance and that the competing considerations between a reasonable proposal for a move and a reasonable objection thereto must be carefully considered and weighed. This judgmental exercise will involve an assessment of the likely effect of the available possibilities and gives rise to issues of degree which have to be assessed having regard to the circumstances of the case. In particular, the court will have to consider the manner in which the competing welfare factors apply in the case before it and thus, for example, the manner in which the reasons for promoting (a) stability in the home, and (b) contact apply in that case. Further factors are likely to include the circumstances in which the child or children came to be living with one parent rather than the other, the ages of the children, their connection with the countries involved, and the ability of the family to maintain contact after a move. I was referred to a number of other Authorities but the summaries as set out above encapsulate the Law. I take all these dicta into account and intend to apply them to the facts of this case. I have also taken Miss Parker Q.Cs written opening submissions setting out her interpretation of the Law fully into account. If leave to remove were granted then I am of the clear view that it will be for a French court to oversee any future problems. My reasons for so stating are confirmed by the cases of Re A (Foreign Contact Order: Jurisdiction) [2004] 1 FLR 641 and Re G (Foreign Contact Order: Enforcement) [2004] 1 FLR 378. Leave permanently to remove is a final order. Once the children move to France (a) enforcement of the English order will pass to the French court; (b) any fresh proceedings will be in France, the country of the children’s habitual residence per the Family Law Act 1986 s.2 & s.3. I also consider that Brussels II will make this inevitable. Conclusion 93). I have set out my findings of fact. Consequently, balancing the needs of the Mother with the needs of the children, I find as follows: a) The children need stability and must be able to move freely between both parents. b) I do not consider that this mother currently has the emotional stability to make a life in Paris. c) I consider that she needs to undertake the psychotherapy recommended by Dr Brener and in London. It is his professional opinion that this will take at least 12 – 18 months. I do not consider that it should take place in Paris, as I am not convinced that the Mother truly accepts that she needs help. Having seen her demeanour in Court, heard her evidence and assessing the history of this case, I consider that her motivation will not be great once she has attained her perceived goal. d) Once in Paris, the children will lose the valuable safety net of having their father close at hand and in the same city. I am not convinced that the French family would contact the Father in the case of an emergency. e) If the children move to France, then their contact with their Father will be affected adversely because (i) they will lose mid-week contact; (ii) they will be very tired on “English” weekends - although Eurostar and/or a flight to Southampton are possible, such journeys will be very lengthy for children of their ages and(iii) they will not see their father in his natural home environment on French weekends. It is also likely that the children will see much less of both sets of grandparents. Currently they see their maternal grandparents once a week and their paternal grandparents about once a fortnight. Even if Mrs Bloomfield were to go to Paris, the children would not see their paternal grandparents or their maternal grandfather as often. f) The Mother’s current plans have not been sufficiently or carefully considered because the Mother has simply assumed that life will improve once she arrives in Paris. I do not agree. The nursery school is a practical example of her failure to make basic arrangements. She has simply assumed that matters can or will be organised. g) I am of the view that, on the balance of probabilities, if she were to move to Paris and given the history of this case she would soon become disillusioned. If she had an emotional crisis, then she would wish to move again to such place as she then thought would provide for her needs. h) The relationship with her French family has not been tested under crisis. A telephone call, once a week for an hour with her aunt, Marie-Christine, is not sufficient to convince me that this lady has sufficient reserves and understanding to deal with the Mother’s needs. Furthermore, I consider that the same applies to Fabienne. I am not convinced that her French family is as close to the Mother as she asserts. I note that she has only visited them on 3 to 4 occasions since the separation in July 2003. Their support was not a feature of any moment when she thought that Los Angeles was to be her new home. i) The children were not brought up to speak French. This indicates to me that the Mother did not consider their French roots a vital part of their identity whilst the marriage was in being. She has started to speak to them now in French and this should continue so that they do become bilingual. j) The free choice of Mrs Bloomfield as her support in France convinces me that that both the Mother and Mrs Bloomfield can have a co-operative and supportive relationship in London if they so desire. k) There is a realistic fear that the Mother will not find Paris to her liking. l) Although it is not central to my decision French Law will apply once the children are considered to be habitually resident in France. This, of itself, is not directly relevant but it does mean that the Mother’s assurances that this Court can retain jurisdiction are ineffective. m) I am not convinced that, with her current emotional problems, the Mother will be able to make friends in Paris or find an essential support network outside her family (which itself may be insufficient/ineffective to deal with her emotional needs). n) The Mother needs to prove that she has the emotional resilience to make a network of friends for herself and the children in London. o) The Father’s concerns are genuine and his objection is not motivated by a desire to punish the Mother. His worries about her instability and the possibility that Paris will not work out are founded in reality. p) The Father considers her to be impulsive and passionate by nature, with a tendency to act on whim. I accept that his view is correct. 94). For all these reasons I reject the Mother’s application to for leave to remove the children to live in Paris on a permanent basis. 95). She is the children’s main carer and so I grant an order for residence in her favour. I have considered that oral and written submissions on behalf of the Father that there should be no order. In a case as fraught as this, that would not be sensible. Moreover, I do not consider that a joint residence order marks the Mother’s role in this case. 96). Contact will continue as now – save that, subject to further submissions of Counsel, from January 2005, the weekend contact will end on Monday morning, rather than Sunday night. The Father will deliver A to nursery and bring C home to her Mother (or to nursery if she attending in the mornings by then). If the parties cannot agree timings then I will stipulate them. 97). If Dr Brener is correct the Mother will find this decision difficult to accept. I hope that she will appreciate that it is not motivated by any wish to “punish” her – as Miss Parker Q.C. submitted the Mother would see it. My decision is based on the needs of the children as I perceive them. I am sure that, if therapy is successful, then she will emerge as a stronger and better person. More importantly, she will be a stronger and better mother. I am sure that she will find that she is able to enjoy her life far more, when she is not sapped by the emotional problems that currently beset her. I am sure that flight is not the answer to her current problems because, in reality, the grass is never greener on the other side.