S v Z [2012] EWHC 846 (Fam)

Case No SQ09P10272[2012] EWHC 846 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Venue BIRMINGHAM DISTRICT REGISTRY, Birmingham Family Courts
The Priory Courts
33 Bull Street
Venue BirminghamDate 9 th March 2012
B4 6DS
Before
MR JUSTICE HOLMAN
Between
H SApplicantK T ZRespondent
Tape Transcription of Marten Walsh Cherer Ltd.,1 st Floor, Quality House, 6-9 Quality Court, Chancery Lane, London WC2A 1HPTelephone No: 020 7067 2900. Fax No: 020 7831 6864
MISS E. ISAACS of counsel appeared for Applicant/MotherMR F. POWELL of counsel appeared for Respondent/Father
JUDGMENT
[1]This is an application by a mother for permission to take her child to live permanently in Tanzania. Both counsel have presented their client’s case with the utmost skill and sensitivity and I have been very grateful to them, as, I hope, are their respective clients.[2]The case concerns a child, J Z, who was born in England on 27th July 2005 and is now aged about six and a half. She is a British citizen. The lady and gentleman present in the courtroom are her birth mother and genetic father. The ethnicity of each of them and, therefore, of J is black African. Each parent was born and brought up in Africa.[3]The father, K Z, was born in Togo in 1973. He is now aged almost thirty nine. He first entered the United Kingdom in 2004. He remains a citizen of Togo but now has indefinite leave to remain here.[4]There is an issue as to the true identity of the mother. The father is adamant that she was, in truth, born in Tanzania in August 1974 and is now, therefore, aged thirty seven. She herself has changed her name during her lifetime and is now called H S. In 2010 she was granted British citizenship and I hold in my hand her current British passport, issued in July 2010. That states that she was born in Buyenzi, which is in Burundi, the neighbouring state to Tanzania, on 17th February 1987. On that basis she is now aged twenty five. A passport is not conclusive as to identity, but the Home Office may be assumed to make such enquiries as they reasonably can before granting citizenship and ascribing a date and place of birth to someone.[5]For the purpose of this case and the issues I have to decide, I treat the mother as being the person whose identity and characteristics are as described in that passport. I am, in any event, satisfied from the many visas and similar stamped entries in it that that is the passport she currently uses and will continue to use, and that that is the identity under which she will live and travel. At this point I now return, for all to see, the mother’s British passport to her.[6]Whatever her earlier identity and background, the mother also first entered the United Kingdom in 2004. The parents met in Birmingham in June 2004 and soon began to live together. In September 2004 they went through a Muslim religious ceremony of marriage but there was never any civil ceremony, and they are not regarded as ever having been married to each other in English law. J was born in July 2005 as I have said. Sadly, the relationship between the parents was soon in difficulties and J is unlikely to remember a time when her parents lived happily together.[7]Both parents have continued to live in the Birmingham area, but there have been many difficulties in relation to contact and considerable litigation before the courts.[8]Currently, the father lives in a one bedroomed council flat. He works part-time and is also studying as a student. He does have indefinite leave to remain and appears to be well settled here in Birmingham. In paragraph 9 of his statement, dated 10th January 2012, now at bundle page C172, he referred to a lady, L L, with whom he said he had “recently” “commenced a relationship.” He said that he had “very recently” learned that she has a son, Li, who was born on 4th September 2008, and that he is the father of that son. Paternity has, indeed, now been established by DNA tests. All that appears to be somewhat misleading. It is now quite clear from certain photographs which have been produced that the father had known of the existence of Li from the moment of his birth, and he was certainly handling and holding him in a loving and fatherly way within weeks of his birth.[9]Even more recently, on the first day of this hearing this week, the father has revealed for the first time that on 3rd December 2011 L L gave birth to another son, J (pronounced Jess) L Z, of whom also he is apparently the father. The father never told the CAFCASS officer, Miss Susan Paul, in October 2011 about the existence of Li or the imminent expected birth of J.[10]L L is also a citizen of Togo with indefinite leave to remain here. She apparently lives in Birmingham in a privately rented two bedroomed house, financed by housing benefit. The father says that his aim is to acquire council accommodation where he and L L can live together with Li and J. He says that J could live there with them too.[11]There has been no investigation into any of these facts, most of which have been so recently revealed. Neither I nor the CAFCASS officer have met L L. I know nothing about her or her children. I have no evidence as to the timescale within which the father might realistically establish a home with her and them. I have no idea how stable such an arrangement might be.[12]The father cares appropriately for J in short periods of contact, usually overnight but sometimes (as in early November 2011) of as much as ten days or so. I am quite prepared to assume that the father would also care appropriately for J for longer periods, as the mother offers and proposes (see below); but I cannot currently approach this case on the basis that now or in the foreseeable future J, who has always been well cared for by her mother, could realistically move to make her primary home with her father. Indeed, in recent months he has not reliably and consistently taken advantage of all his contact weekends.[13]Before she ever came to England in 2004 the mother had met in Tanzania a man called M K R. He is now aged forty five. He is a citizen of Tanzania and was born and brought up there and lives there now. The father claims that the mother and Mr R had actually already married in Tanzania before the mother first came to England in 2004. They both deny that and there is no reliable evidence of it. I accept that in the period 2004 to 2008 Mr R did communicate by ’phone and e-mail with the mother and a relationship did develop between them, although they never met between those years.[14]Meantime, Mr R fathered a daughter in Tanzani, Y K, who was born in May 2005 and is, therefore, just a couple of months older than J. Y lives with her mother near to Mr R’s home and he sees her very regularly indeed, usually daily.[15]I am satisfied that in September 2008 the mother and Mr R married in a form of Muslim religious ceremony in Tanzania and that that marriage was later registered as a civil Tanzanian marriage in September 2010. In short, since 2008 and certainly since 2010 Mr R and the mother have been married to each other.[16]Mr R is present at this hearing and has given oral evidence to me. This is also the first occasion on which Mr R and the father have encountered each other. I found Mr R to be an impressive witness. He struck me as a mature, balanced, decent, honest and honourable man upon whom I can rely. Mr Frederick Powell, who has represented the father with the utmost sensitivity, skill and wisdom, expressly said that he has not felt able to submit to the contrary.[17]Mr R has also produced quite considerable documentary evidence about his own circumstances. This, together with his reliable oral evidence, satisfies me that he is a secure and successful businessman of reasonable prosperity. He owns and runs, and has done for many years, an established business which imports used vehicles from South Korea into Tanzania and imports new and used auto spare parts. His business is profitable and he says that his profit is of the order of ten thousand US dollars per month. He owns a property which he rents out and a distribution track which generates profit. He owns a farm which does not produce income but does supply the food for himself and his family. He owns a fine, four bedroomed house in a part of Dar-es-Salaam which was built for him and of which I have seen the original plans and many photographs. It does have a mortgage of about twenty five thousand US dollars, but it is worth about one hundred and eighty seven thousand five hundred US dollars so there is an equity in it of about one hundred and fifty thousand US dollars.[18]The mother is currently pregnant with a child by Mr R (to whom I will now refer as her husband). The baby was conceived while the mother was in Tanzania during August 2011 and is due in early May 2012, i.e. in about two months time. The mother would very much have liked to have given birth to that baby in Tanzania, although she has very recently been advised that the date of birth is now so close and her condition is such that it would no longer be safe or wise for her to fly to Tanzania before the birth. So, inevitably now that baby will actually be born here in England.[19]The mother had already applied in May 2011 (before, indeed, she became pregnant) for permission to relocate J to Tanzania, where she wishes to live with her husband.[20]I am quite satisfied of the following matters.[21]First, there is a genuine marriage and a genuine relationship of mutual love and affection between the mother and her husband which will, of course, be further cemented by the imminent birth of their joint child.[22]Second, the husband cannot realistically leave Tanzania so as to live with his wife here in England. There are many reasons for that. He has no right to live here. He is deeply connected to Tanzania, not only by his birth, upbringing and citizenship, but also by his business and home there and his other family members there. These include his own daughter, Y, whom he sees almost daily, and his own mother who currently lives with him but will move back to her own home nearby. It is, therefore, neither practical, possible nor reasonable to contemplate the husband moving from Tanzania to live in England (nor has the father suggested that he could or should do so).[23]Third, it is not realistic to contemplate that now or into the foreseeable future J makes her primary home with anyone other than her mother. She has always been cared for by her mother. Her mother cares for her very well. She is well bonded with, and attached to, her mother, and in the observation of the child and family reporter, Miss Susan Paul, she is a “bubbly, bright and confident child” and “most definitely a well adjusted and emotionally well balanced child.” That is not to suggest that she is not also well attached to her father. She is, although she has spent much less time actually living with him than with her mother. But, as I have already described, the father’s own current circumstances are fluid and his future much more speculative than the well planned and clearly evidenced proposals of the mother and her husband. The development of the father’s recently revealed relationship with L L and his children by her, and whether, when or where they will live together is very unclear indeed.[24]Fourth, if J is not permitted to relocate to Tanzania, her mother will be in the almost impossible position of conflict between her commitments and attachment to J and her commitments and attachment to her husband, compounded by the birth of her husband’s baby. The welfare of J is the paramount consideration, but I must have some regard, too, to the right and need of that baby also to grow up in a relationship with his or her father if that is achievable. Despite what the mother said in paragraph 11 of her statement, signed on 31st January 2012 and now at bundle page C187, the mother simply could not bring herself during her oral evidence to contemplate what decision she would make if I refused permission for J to relocate to Tanzania.[25]How, then, should I approach this hardest of dilemmas?[26]Every case of this general kind is unique and each requires a very fact specific decision. By statute, the welfare of J must be, and is, my paramount consideration. I must and do have regard to all the circumstances and, in particular, to all the matters listed in section 1(3) of the Children Act 1989, of which I have expressly reminded myself at this point during the course of preparing this judgment.[27]The famous decision of Poel v Poel [1970] 1WLR 1469 roughly coincided with the outset of my own career as a family lawyer and I have been steeped in the evolving authorities of the High Court and the Court of Appeal ever since, although no case has ever been considered by the House of Lords or, now, the Supreme Court. From the authorities I draw only the important filters or pre-conditions described by Thorpe LJ in paragraph 40(a) of his judgment in Payne v Payne [2001] EWCA (Civ) 166, [2001] Fam 473, in which he stressed that the applicant’s application must be genuine in the sense that it is not motivated by some selfish desire to exclude the other parent from the child’s life; and that it must be realistic, that is, well founded on practical proposals which are both well researched and investigated.[28]I am absolutely satisfied that the present application does satisfy both those essential filters or pre-conditions. The mother’s application is motivated by a genuine desire to lead a normal married life with her husband with whom she is in a genuine, loving and marital relationship, and whose child she is carrying. Her application is totally realistic since it involves relocating to a secure and established home and environment, which she already knows well and which, indeed, J herself has visited on, I think, three occasions.[29]I give no primacy to the mother’s application and do not adopt any approach which creates some presumption in her favour by attaching weight to the emotional or psychological impact upon the mother, or any consequential impact upon the child of refusing permission. Those factors do, nevertheless, have to be considered as part of the overall balance.[30]The father said that he had never been to Tanzania but he can imagine it as he has “a whole picture of Africa”, even though Togo is some thousands of miles from Tanzania. He wants a future for his daughter, and in his view she has a far brighter future here than there. I do not accept that on the facts of this case.[31]The circumstances of the husband, Mr R, are such as to offer a good future for J in Tanzania. His own success demonstrates that a person can thrive and prosper and make a good life and career in Tanzania. If J spends the remainder of her childhood primarily living in the husband’s home and environment in Dar-es-Salaam, it will, of course, be very different from one spent here in Birmingham; but her future here would be one dependent on living with a mother who would be alone and relatively unsupported, with two dependent children, and dependent on state benefits, supplemented, no doubt, by funds from her husband but with negligible financial contributions from the father. In terms of stability, comfort and material prosperity, J would experience at least as good and probably a better lifestyle in Tanzania.[32]J is a bright child who is achieving well at her school in Birmingham. She is fluent in both English and Swahili. The mother proposes that she should attend the English-based Dar-es-Salaam Independent School, whose curriculum is described in exhibited documents. On behalf of the father, Mr Powell rightly stressed the inaccuracies in a document now at bundle page C85 which not only refers to Mr R as J’s father (although he had described himself on the registration form as her guardian), but uses the masculine “his” rather than the feminine “her” in relation to J. So, submits Mr Powell, that hardly inspires confidence in, at any rate, the English literacy at that school. On the other hand, the husband’s own sister, Zena, was formerly a student at that school. She now lives in Birmingham and is a person for whom the father has respect.[33]My overall impression of the mother and the husband is that each of them has a strong desire to achieve the best for J and any children of their own, and I do have a confidence that the mother would not risk J’s education and would ensure that J received a good, modern, English-based education in Dar-es-Salaam, which the husband is fortunate enough to be able to pay for and afford.[34]The potential significant disadvantage for J from a move to Tanzania is the effect upon her contact and relationship with her father. This is undoubtedly a cardinal factor and consideration in this case. She is now aged six and a half and does know her father well. He himself has not always been reliable and consistent in taking up contact, and it was established that in the last four months or so he has missed, by cancelling at short notice, about as many weekend contacts as he has availed himself of. His reasons are not always convincing. So, in my view, regularity and quality of contact in the future is as important as frequency.[35]The mother offers and proposes that, as well as frequent indirect contact by all available modern means, she and her husband will pay for J to travel to England twice a year and spend six weeks with her father every summer, and three weeks every Christmas period; that is, lengthy holiday periods, roughly evenly spaced in each year, so that J would live with her father at least every six months.[36]The really serious issue in relation to contact is whether the mother can be trusted to do as she says. The father says that he does not trust her. Mr Powell rightly points to the time in summer 2010 when the mother was given permission to take J to America but ended up in Tanzania. He points also to the finding of McFarlane J in paragraph 16 of his judgment, dated 23rd May 2011, now at bundle page B60, where he referred to:
“A potential for this mother to be less than straightforward in what she says to the father and… to the court and a lady who is capable of manipulating matters to her own advantage, irrespective of the responsibilities and rights of the father and the fact that there are pending court proceedings.”
[37]I accept unreservedly those observations and, indeed, if the mother was for some reason seeking to live on her own in Tanzania, I would be very heavily influenced by them. But she is not, and I, unlike McFarlane J, have had the advantage of assessing also the husband, Mr R. I will not repeat what I have already said about him. I do consider that he is responsible, reliable and worthy of trust.[38]Miss Elizabeth Isaacs, on behalf of the mother, has submitted a draft order which has evolved during the course of the hearing and which contains detailed proposals for shared residence, in Tanzania during school term times and the short Easter school holidays, and in England for the bulk of the school summer and Christmas holidays. The travel will be funded by Mr R, including provision of a considerable prior float of over six thousand US dollars.[39]I cannot say that I am sure, in the sense of beyond reasonable doubt, that the trips to England would all happen as promised; but if decisions of this kind in relation to children required a court to be sure, many children and their parents would be denied many very reasonable and proper opportunities. I am, however, confident to a high degree that the promised visits to England would happen.[40]I turn, next, to the very important factor of J’s wishes and feelings, which have to be considered in the light of her age and understanding. I accept that she has said different things to each of her parents, and the father himself has said that he expects that she wishes to please them both. She was seen by the child and family reporter, Miss Paul, about five months ago in mid-October 2011 and her report is now at bundle pages D5 to 13.[41]J did tell Miss Paul that she wanted to live in Birmingham and would be “happy, happy, happy, happy” if she lived in Birmingham full time. She said also that if her mother goes to live in Tanzania she would be happy to remain in Birmingham with her father. Earlier, however, she had said (see paragraph 21) that she would like to live in Tanzania and also that she would be a little bit happy and a little bit sad if she had to live in Tanzania. Revealingly, however, she told Miss Paul (see paragraph 18) that she liked Tanzania but, “Daddy tells me it has bad food and is a dirty place.”[42]Miss Paul has not, in fact, seen J in the company of either parent, or been able to assess her interaction with either of them. Her conclusions appear to be influenced by a perception (see paragraphs 49 and 51) that if J went to Tanzania she could only see her father at best once a year. As I have already described, that is not the reality. The overall recommendation of Miss Paul at paragraph 55 is that:
“J’s wishes and feelings are taken into consideration and she is not removed from the jurisdiction.”
[43]Miss Paul said in her oral evidence that she had never previously considered or investigated an application for permission to remove a child abroad and that her opinion “was a very fine one really.” J had changed her mind from preferring to go to Tanzania, to preferring to remain in Birmingham during the course of their meeting at the CAFCASS offices.[44]In my view, this is a situation in which the child’s age and level of understanding is very relevant. The issues surrounding, and the advantages and disadvantages of, a move are far too complex and sophisticated for her to be able fully to grasp or to evaluate. It is not surprising that she expresses a preference for present certainties (her current school, friends and environment) than for a less clear or certain alternative. Miss Paul appeared to regard the wishes and feelings that J expressed to her (albeit they were mixed and perhaps coloured by negative comments from the father about Tanzania) as decisive. In my view, they are not a factor of decisive weight.[45]This is, in my view, a case in which the child must, in any event, continue to make her primary home with her mother. The material and physical advantages of a move to Tanzania are at least equal to, and probably greater than, any such advantages of remaining in England. Her educational needs are likely to be as well met in either country. Her very important need for a continuing good and loving relationship with her father can be met by the shared residence proposals of the mother and her husband, which I am satisfied they will carry out as promised. Her wishes and feelings may tend to favour remaining here, but they are not decisive.[46]I must consider, also, the disadvantage to J of living in a situation in which her own mother, and, indeed, shortly her own half sibling, are effectively being kept for much of the year far away from their husband and father respectively. That is not to create any primacy for the mother’s application, still less any presumption in her favour. But, balancing all these factors, I am of the clear view that it is in the overall best interests of J herself to allow the mother’s application in the terms the mother has already proposed.[47]Those terms themselves have been the subject of detailed negotiation and consensual drafting between Miss Isaacs and Mr Powell, on the footing that I was willing in principle to give the mother permission to move to Tanzania. I hope that the terms themselves are self explanatory.[48]Insofar as I am disagreeing with the child and family reporter, Miss Paul, the main points of difference are: first, that I, unlike her, have had the advantage of meeting and hearing from Mr R; second, it is established that J can and will visit England for significant periods, not merely once a year, as Miss Paul thought, but twice a year; third, I cannot regard the wishes and feelings of J, expressed on a single occasion to Miss Paul, as being of so decisive weight as she did.[49]For those reasons, I will make an order in the terms of the draft.