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England and Wales Court of Appeal (Civil Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Y (Children), Re [2014] EWCA Civ 1287 (28 August 2014) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2014/1287.html Cite as: [2014] Fam Law 1680, [2014] EWCA Civ 1287, [2014] 3 FCR 483, [2015] 1 FLR 1350 |
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ON APPEAL FROM GLOUCESTER COUNTY COURT
(HIS HONOUR STEPHEN WADE sitting as a deputy Circuit Judge)
Strand London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE PATTEN
LORD JUSTICE RYDER
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IN THE MATTER OF: Y (CHILDREN) |
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Dr F Afzal (instructed by Direct Access) appeared on behalf of the Respondent
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Crown Copyright ©
"All the rest ... is guidance as to factors to be weighed in search of the welfare paramountcy."
and Black LJ said:
"141. ... the principle - the only authentic principle - that runs through the entire line of relocation authorities is that the welfare of the child is the court's paramount consideration. Everything that is considered by the court in reaching its determination is put into the balance with a view to measuring its impact on the child.
142. Whilst this is the only truly inescapable principle in the jurisprudence, that does not mean that everything else - the valuable guidance - can be ignored. It must be heeded ... but as guidance not as rigid principle or so as to dictate a particular outcome in a sphere of law where the facts of individual cases are so infinitely variable.
143. Furthermore, the effect of the guidance must not be overstated. Even where the case concerns a true primary carer, there is no presumption that the reasonable relocation plans of that carer will be facilitated unless there is some compelling reason to the contrary, nor any similar presumption however it may be expressed. Thorpe LJ said so in terms in Payne and it is not appropriate, therefore, to isolate other sentences from his judgment ... for re-elevation to a status akin to that of a determinative presumption."
"In both written and oral evidence it was made clear on numerous occasions that a refusal of this application carried a great risk of the family becoming fragmented and the siblings being separated and potentially the children being separated from their lifelong primary carer."
"But most of all it is [the wife]'s welfare that concerns me. She is unhappy and has almost the full burden on her own. She gets little or no respite and has little prospect of that changing. A refusal would be very damaging to her and indirectly this would be damaging to the welfare of the children. A move would be so much better for all of us but for [the wife] I feel it is a necessity."
That was the high point of his case in written evidence.
"Unfortunately, no matter what the outcome, someone is not going to be happy. As [the father] and I are the primary carers and are struggling so much already, I feel that to be denied the right to move to America would be detrimental to our family. I know [the mother] will be very unhappy of the boys moving away from her but I feel that over time that is something she can get used to. On the other hand, if [the father] and I have to stay here, time is not something that can fix our problems, we still won't have the support that we so greatly need with having three small children to look after and that will inevitably have a negative impact on the children."
"At times during our chat [A] appeared very close to tears. This situation is having a stressful impact on him, although it doesn't appear any of the adults are putting pressure on him ... However, a few were real and big concerns, such as 'he won't see mum as much, moving house again, worried about calling mum due to the time difference, won't see his friends' ... 'scared', but if the courts do not allow the move to America that 'daddy might not go with us'."
"[The father] has concerns that his wife [her name], main carer to [the children], has struggled to settle in the UK. She feels isolated and has no support network."
"There is a possibility (I hope remote) that being forced to remain here would put such a strain on [his wife] that she would want to return to the USA anyway. This would be catastrophic for all of the children."