MM (A Child : relocation) [2014] EWFC B176 (27 October 2014)

JUDGE PEARL:

1 This judgment concerns MM (“M”), who was born on 31 July 2013 and is thus 15 months old. His mother is LC, aged 33, and his father is SM, aged 33. The decision I am making concerns the mother’s application to relocate to South Africa and thus for permission that M can be permanently removed from the jurisdiction. The father strongly opposes the application.

Legal Framework

2 The decision will be made with the welfare of M as the paramount consideration. In particular, I have in mind the checklist of factors in s.1 of the Children Act 1989 and, in the circumstances of an application to relocate, the additional guidance in the case of Payne v Payne [2001] EWCA Civ 166. The definitive case which governs my approach is the case of Re F (Relocation) [2012] EWCA Civ 1364, which helpfully reminds me that there are no presumptions in favour of the parent who wishes to relocate and there are no set categories of case for which a result can be applied. The guidance in Payne v Payne is no more than that; indeed, it is the welfare of M which is my paramount consideration.

3 When evaluating disputed matters of fact I have applied the civil standard of proof, which is the balance of probabilities. I have in mind that witnesses lie for various reasons and the fact that they lie on one fact does not make them dishonest overall. Every disputed issue of fact has been considered on its own merits, taking into account any corroboration and the overall circumstances.

4 Cases such as this, where international relocation is concerned, are often difficult to determine, and this case has been no exception. The decision will have a huge impact on M because it will determine which country he lives in and how much time he will spend with each party, and his father in particular. The decision will have a devastating effect on one parent, whatever the outcome, even if the decision is finely balanced, because there are no half-measures.

Evidence I have considered and this hearing

5 In order to reach my decision I have been assisted by carefully prepared and comprehensive evidence prepared by both sides. The mother has filed four statements supported by voluminous exhibits and the father has filed five statements supported by equally comprehensive exhibits. I have heard oral evidence from the CAFCASS officer, Ms. Walton, and from both parents, and also brief oral evidence from the maternal grandmother.

6 The evidence in this case occupied two and a half days of the Court’s time from 13-17 October. Having completed evidence and oral submissions at 5.30 p.m. on 17 October, there was insufficient time for me to reflect on the evidence and deliver a judgment straight away. I am thus delivering this extempore judgment on 27 October, being the first opportunity to do so after the end of the case, taking into account my other court commitments. I record that both parents and their counsel are in court to hear the judgment. Also, both paternal grandparents are in court and the maternal grandmother is in court. Both parents were legally represented throughout these proceedings, including by experienced counsel at this final hearing.

Background

7 Both of the parents were born in South Africa and they are South African nationals. They each went to school in Cape Town, where they lived with their parents. They met in 1998, when they were aged 16, and were boyfriend and girlfriend after that. The father’s parents moved to the UK when he was about 18 but he decided to remain in South Africa and continued his relationship with the mother. The father’s sister initially went to England with her parents but has now returned to South Africa. The father’s parents remain working and living in the UK.

8 The relationship between the parents was not continuous and they had other relationships from time to time but in 2004 they were a couple and, as a couple, made the decision to move to the UK. At that stage they both perceived that they would have better opportunities in the UK. The mother trained as a radiologist in South Africa, and when she moved to the UK, was able to secure a job treating cancer patients at a private hospital in South West London. This has been secure work for her and she continues to work in the same hospital to this day.

9 Starting in about 2004 the father worked in customer relations in H Ltd, where he was well paid and successful. In 2006 the parties’ relationship came to an end. The mother then packed up and went to South Africa, with no intention to return. In 2008 however the parties were yet again in a relationship and the mother says that she was swept off her feet when they agreed to marry and she came to the UK to get married. The father accepts that the mother’s sole reason to return to the UK in 2008 was to marry him. The parties got married in a civil ceremony in October 2008 in the UK and then had further religious celebrations in South Africa in February 2009, which I understand was a large gathering, supported by their families and friends. In 2007 the father left H Ltd due to Visa difficulties but in 2008 those problems were resolved and he got a job in customer care for an up-market international online fashion retailer called NAP.

10 Sadly, the marriage was not happy or settled and it is not relevant for my decision today to delve into the causes of the deterioration of the marriage. The mother was keen to have a family and M was conceived in early December 2012 or thereabouts, when the parties were living together as a couple. The mother saved the news of her pregnancy to be announced on Christmas Day but the news came as a shock to the father, who reacted by walking out of the home and not returning for two hours. The father says that after the initial surprise he welcomed the pregnancy and he attended antenatal classes with the mother and attended the birth.

11 During the course of this final hearing the father has confirmed that, in about March 2013, namely when the mother was about three or four months pregnant, he started a relationship with a work colleague called Ms G. She is the mother of two boys, who were two and four in August 2013, so I assume they are now about three and five years old. The father did not disclose this relationship to the mother, either when it started or as it continued, and I will be noting that the first that the mother was aware of the father’s relationship with Ms G was 8 February 2014.

12 During 2013 both parents applied for and were granted permanent leave to remain in the UK. The father has told this Court that he formed the intention to live permanently with Ms G in about June 2013 but, of course, the mother knew nothing of this. M was born a healthy baby on 31 July 2013, about four and a half weeks before his due date. The father, as I have said, attended the birth. Mother and baby returned home to live with the father in the family flat. The parties’ relationship was not good and on 12 August 2013 they separated and they have not since cohabited. The mother says that this was the date that she realised the marriage was at an end.

13 The father did not tell the mother that immediately upon the separation he went to live with Ms G and her children. He told the mother that he had moved in with his parents, and the mother did not suspect otherwise. The mother agreed for M to spend time with the father every day. She was unaware that the father was not taking M to his parents’ home but instead to the home he was sharing with Ms G and her children. The father describes the early introduction of M to this family as being highly successful and says that he views this as his “blended family”. The maternal grandmother visited the mother in the UK after the birth and returned to her home in South Africa after that visit. The mother wanted to go to South Africa with M and the father agreed. Before she left, the father presented her with divorce papers, which she agreed to, and which he asked her to sign as a condition of her being given his blessing to go to South Africa with M. Of course, the mother’s agreement to this was made when she was still unaware that the father was already living with his new partner.

14 Starting in October 2013 the father was seeing M on a regular basis by agreement every weekend. It was agreed that M could visit his father every Saturday and Sunday but not overnight, but I understand the father did not always take up both days of contact. The agreement was that the mother and M would leave on 7 November and return at the end of January. The father said he felt able to agree to this but when he went to the airport to say farewell to M he broke down because he was so distressed at the prospect of not seeing his son on a regular basis. The parents were in regular contact when the mother was in South Africa. The mother sent the father messages through her phone, including photographs and videos. They used Facetime for the baby, M, to interact with his father but the father says this was not always successful because the connection was poor.

15 On 1 January 2014 the father sent the mother an emotional email. It is a love letter and, whilst it does not go so far as to ask the mother to rekindle the marriage, it is infused with love and affection for the mother. I shall read out just a few of the sentences:

“It is a new year and a new start. I want to get a few things off my chest as I feel if I don’t and we continue to have this bitterness, spitefulness and anger the only person that will suffer is M whether intentionally or unintentionally.”

“I have the utmost respect for you and I ended things between us because we were both unhappy.”

“You deserve so much better than me. Yes, you have your flaws like all of us but you truly are a unique, old-fashioned soul that is so caring, warm and lovable when you allow someone in.”

“I am truly sorry for all the pain I put you through and not giving you all the support you needed during M’s pregnancy - I could have done better and since his birth things have changed and I have changed the priorities in my life.”

“You will always be my first love, and I will never love anyone with the same intenseness as we had. I miss everything about you.”

16 The mother returned to the UK on 21 January and returned to the family flat. She found the Sky subscription and internet had been disconnected and the sofa was gone. Unbeknown to her, the father continued to live with Ms G. They reached an agreement that the father would have M to visit for two consecutive days but not overnight every other weekend. The first full weekend of the new visiting contact was thus on 25 and 26 January and the second was scheduled for 8 and 9 February. Shortly before 8 February the maternal grandmother, who was at that stage in South Africa, informed the mother that she had been contacted by a woman in South Africa who claimed to have a child aged nine years who had been fathered by SM. When the father called to collect M on 8 February the mother confronted him with this information. An argument ensued and the mother went out towards the father’s car, which was parked in the street near the flat. She noticed a woman and two children in the car and approached. She asked the woman if she was the father’s girlfriend and she said that she was. The mother was devastated by this news.

17 M went on, however, to spend the day with his father as planned. The mother was highly distressed by the news that the father was in a relationship with another woman, as well as feeling upset by the revelation of the alleged further child in South Africa. She contacted her mother and made immediate plans to return to South Africa with M. The father returned M in the evening with the intention of returning the next morning for another day’s visit. Unbeknown to the father, the mother and M boarded a flight to South Africa in the evening of 8 February with a one-way ticket and most of M’s belongings but the mother did leave many of her clothes and possessions behind. The father turned up at the flat the next day and realised she had gone. He contacted the police and then solicitors.

18 This was a clear abduction and the father was successful in obtaining an order from a High Court Judge on 12 February for the return of M to the United Kingdom. The mother in fact returned in compliance with the order on 28 February 2014. She came back to the UK with her father to support her and was met by the tipstaff at the aircraft steps and later interviewed by the police under caution. No criminal charges have been pursued against the mother.

19 The matter came back before the Court on 3 March, when both parties were legally represented. The mother made it clear that she would seek the permission of the Court to permanently relocate to South Africa, and the father said he would not pursue his application for what was at that date was still described in these courts as a residence order. The father agreed to pay £500 per month as financial support for M, which he has maintained and I am told recently increased to £600 per month. The parties also agreed contact at a frequency of a whole day on Saturday or Sunday of each weekend. The father has not paid any spousal maintenance for the mother and she has now returned to work and has been working about 30 hours a week.

20 In about March 2014 Ms G became pregnant with the father’s child. The father did not disclose this to the mother or the Court until during a court hearing on 29 August 2014, and then only in answer to a direct question from myself as the Judge.

21 In April 2014 the father resigned his job at NAP citing that the strain of the court action made it impossible to carry on with such a demanding job. The father sought support through counselling, which I am told continues to this day.

22 Following a direction of the Judge, CAFCASS was instructed to advise on the issues before the Court, which were then contact and the application to remove. The matter came back to court on 21 May, when the parties agreed that the father should see M in addition to one day every weekend to an additional one day a week. I understand this started off as a Monday and is currently on a Thursday. Further decisions were deferred because the CAFCASS officer had not by then prepared or filed a report. The CAFCASS officer, Ms. Walton, reported on 28 May. She did not recommend overnight contact and said that in her view the decision on removal was finely balanced.

23 The matter first came before me as a Judge on 24 June, when I gave directions and listed a hearing on 29 August to consider contact, the father maintaining his position that M should stay with him overnight with immediate effect. In the mean time contact with the father has continued with a pattern of M spending time with his father on two separate days a week. The father has taken up all contact sessions save for two dates on 21 and 23 August. He did not provide the mother with any reason for not seeing M on those days but has now disclosed that he went on holiday to Thailand with Ms G and her children.

24 When the matter came back to court on 29 August I heard evidence from the CAFCASS officer and from both parents. I asked the father about his relationship with Ms G and it was at that stage and for the first time that the father disclosed to the mother and the Court that she was six months pregnant. On the issue of overnight visits the CAFCASS officer gave clear evidence that although overnight contact for a young baby could work when parents are in harmony with each other, in situations of conflict it is likely to be unsettling, and cited independent research to support her view that overnight visits should not start in the case of M until he is 18 months old if the parents are in agreement, and when he is two years old if they are not.

25 The father withdrew his application for overnight contact during the hearing on 29 August but reinstates that application at this hearing before me, saying that there should be overnight contact around Christmas 2014 in particular, and especially if the Court grants the mother’s application for relocation. Since the hearing on 29 August the CAFCASS officer has seen the father with M and the mother with M. She reported on her observations orally at the hearing before me this October. Ms. Walton has not met with Ms G or her children. The father says he understands that his child by Ms G is expected to be born in December and is expected to be a girl. I shall refer to this soon-to-be-born baby as M’s half-sister even though she has not yet been born. As to Ms G’s children, I shall describe them as M’s step-brothers as a shorthand description, despite the fact that Ms G and the father are not married.

26 Before I move on to the issues in this case, I would like to clarify that this Court has not conducted any investigation into the mother’s belief that the father has a nine-year-old child by another woman in South Africa. The father has given two different accounts of the sexual encounter which he says could have resulted in a child, and told the mother that he was hitherto unaware that there was a child, if indeed there is one. He says he has tried but failed to contact the woman to find out her circumstances and those of the child. I make no assumption for this judgment that there even is another child.

The evidence of the Parents

27 I now turn to the demeanour of the parents when giving evidence, plus an assessment of their honesty. The mother is described by the CAFCASS officer in her report in these terms.

“Ms. C has presented throughout my meetings with her as balanced, straightforward, sensible, a good, loving mother to M and recognises the importance of maintaining his bond with his father.”

I have watched the mother in court, listened to her evidence and I have heard her give evidence. I wholly echo this description. When giving her evidence the mother was level-headed and calm. She heard the news about Ms G being pregnant during the court hearing on 29 August but there was no dramatic reaction. She listened carefully to all the evidence and submissions and was obviously sad and sometimes tearful but never out of control. She has filed several witness statements for this court case and none of the factual information filed has been shown to be misleading or dishonest. I would describe her as someone who is self-aware, truthful and honest. She is a skilled medical professional and clearly intelligent.

28 The father sat and listened to the evidence in this case in rather a blank way and did not show obvious emotion. During his evidence, when considering separation from M in the past and contemplating the mother possibly moving to South Africa he became tearful and emotionally very distressed. The father says he is undergoing therapy at this time and I have no doubt that he has found these proceedings and the prospect of being separated from his son as extremely stressful. As with the mother, he is an intelligent person who has been successful in all his professional posts, including with his work at NAP.

29 The father said in his oral evidence that he has been dishonest and that he has not been a good husband. The father has admitted that he has told the mother untruths about his relationship with Ms G and did not tell her the truth when he said he was living with his parents, and that in addition he has filed evidence for this Court which is untruthful and misleading on the issue of his finances. He apologised to the mother and to the Court for his dishonesty.

30 On the issue of not telling the mother about his affair with Ms G, he says he did not reveal this because he was fearful that the mother would overreact and become emotional. He thus implies that he was protecting her. He described himself as someone who was avoiding the truth. The father has withheld financial information from the mother and her lawyers and in his written evidence presented to the Court has presented a picture of his finances which was wholly misleading. I made it clear to the parties from the start of this final hearing, and I reiterate now, that the issue of the father’s conduct, including his dishonesty, is only relevant to the outcome of the matter in so far as it affects the welfare of M, if it does at all. The mother’s counsel accepted this approach without hesitation and has not sought to persuade the Court otherwise. Whilst the nature and extent of the father’s dishonesty is clearly relevant to understand the whole history of this matter and to put the facts into context, it is my task to make the decision I am making based on the circumstances known at the date of this hearing and looking towards the future.

The Evidence of the CAFCASS Officer

31 The Court is grateful to Ms. Walton for the careful and balanced investigations and recommendations which she has conducted to assist the parties and the Court in this case. In her report dated 28 May she made sensible recommendations and I shall refer to her evidence on specific points where relevant when I consider and analyse the disputed matters. As to her oral evidence, she observed M and his father together as interacting very well and she reported no qualms about the father’s care of him. She said what she saw was very positive, sweet and fine. Equally, in her written evidence and having observed the mother with M again on 7 October, she has no concerns about the care which the mother gives to M. She said that the unintended effect of removal could be the marginalisation of the father from M’s life and although if M moves away this will interrupt the progress of attachment and makes the attachment vulnerable, it is not impossible for the attachment to be sustained. The father told her during his meeting that he could make the trip to South Africa two or three times a year but later sent her an email to correct this, saying he could only make the trip once a year. She did not fault the father for this. She commented that the mother had overestimated the ease of maintaining the father and son bond and attributed this to the strong emotional involvement that the mother has herself with moving to South Africa and in that respect is not critical of the mother. The CAFCASS officer very sensibly did not make a recommendation on the issue of removal and leaves that to the Court.

32 The CAFCASS officer was also most helpful in sharing with the Court her suggestion on post-relocation contact by suggesting that each parent could commit to three visits in a two-year cycle, which would amount usually to the mother travelling to England twice in one year and once in the next and the father travelling to South Africa twice in one year and once in the next. If this pattern were to be adopted, this would result in M seeing his father three times in a year, in addition to indirect contact by Skype and Facebook Messenger.

The Bond between the Father and M

33 The father has been committed to seeing M throughout his life and has always asked for more time with his son. Taking into account the evidence of Ms. Walton in direct observation and what the father says about his bond with his son, it is clear that he has a close level of attachment to M and this is a strong bond. The mother accepts without hesitation that M enjoys his time with his father and that the father is fully able to meet his needs through the visits to his father and his new family. I recognise at the outset that if M is to be removed form the jurisdiction, this bond is likely to be affected. I will consider later in my judgment the likely impact on M taking into account the facts of this case and the way in which the impact can be mitigated, if at all.

The Mother’s mental health

34 The issue of the mother’s mental health features strongly in the father’s initial statement for this Court, including his application without notice to the Court on 12 February. This is not maintained as an argument set out in the written skeleton prepared by counsel for the father and was not pursued in oral submissions on his behalf. However, when answering questions in his oral evidence, he said he does not withdraw his concerns and said he remains concerned that M was at risk of emotional harm from the mother.

35 The mother has suffered from depression for some years and is a long-term and current user of prescription antidepressants, including antidepressants which were prescribed for her during her pregnancy. The CAFCASS officer also noted that equally, “Despite her history of depression I have seen no evidence that Ms. C has any mental health difficulties nor has the health visitor and I do not consider the Court need take the matter further.” The Court has noted no evidence that the mother is anything other than a settled person and I observed at firsthand that there was no adverse or extreme reaction to the father’s disclosure on 29 August of the news of the pregnancy of Ms G. The mother remained calm and clear throughout lengthy and at times very tough and challenging cross-examination. The father said that when M was born he suffered from “baby jitters” and he was told by a doctor that this was worse because the mother had been taking antidepressants when pregnant. He has produced no evidence to support that this conversation took place and there is no note in M’s Red Book of any health concerns at the time of his birth. This Court has no concerns that the mother has any difficulties with mental health other than the long-term depression, which is under control through medication, and that the father’s fixed view on this matter is thus not supported by any evidence.

The Mother’s ability to provide a safe and secure home for M in South Africa

36 In this case the father has not challenged that the mother is able to provide a safe and secure home for M in South Africa or that the mother’s plans for caring for M are not well thought out. I can thus take this matter relatively briefly. The mother has a large extended family who live in Cape Town. Her parents are not wealthy but they are financially secure and their assets include a timeshare in the resort area of Durban, where they can use self-catering accommodation at good rates. If the mother moves to South Africa she will be able to live in a self-contained unit with M as part of her parents’ home. M will be able to go to a local nursery and then to school. Once the mother gets a job, which she undoubtedly will, she will have the benefit of medical insurance for herself and M. The mother is undoubtedly happy and comfortable to be with her parents and members of her large, extended family who live in Cape Town and its area. Whereas the mother’s career in London has not advanced, she is confident that she will be able to progress to senior positions in South Africa because of her experience in England. The mother has plans to advance her career and perhaps work in lecturing. Wages are lower in South Africa but so is the cost of living.

37 The practical benefit to the mother in moving to South Africa is predominantly the support she will get and the fact that she will be doing what she wants, namely pursuing her career and bringing up her child in her home country. The mother says she always told the father and they always agreed that they would return to South Africa to live and bring up any children. The father denies this. The mother has pension savings in South Africa and has a beneficial share in a family flat in South Africa, which is in her father’s name but to which she has made contributions. The father refers to the mother’s decision to give birth in London but I accept the mother’s explanation for this, namely that the decision was practical as in the UK she was entitled to use the National Health Service, whereas because she did not have a job in South Africa, she would have had to have paid for private medical care for the birth. I accept that the mother’s decision to obtain permanent leave to remain before M was born was not an indication of her intention to stay but a practical decision to increase options for herself and for M in the future. I have considered the evidence of the parties on this point and on balance I find it is likely that mother was expecting to return to South Africa to bring up her children. That decision, of course, is only a small part of the picture and is not of itself determinative of the matter. This is a mother who only came to the UK to marry and live with the father as a married couple and although she has friends in the UK, her main friendship base and all her family is still in South Africa.

38 The father says that the mother, if she is told to remain in this country, can return to South Africa with M when she wishes. He says he could care for M or she could take M with her. He also cites that the mother’s family are financially secure and can afford to visit her if the mother needs support. However, I do not consider that such a plan would provide the mother with anything close to the support she would get from being permanently in South Africa with her extended family.

39 Although the father has, in written evidence, cast doubt on the mental health of the maternal grandmother and the mother’s own sister, again, this is not an argument which has been pursued in the hearing before me and there is not a scrap of evidence to support these assertions.

40 The father discussed issues of crime in South Africa with the CAFCASS officer. The mother has lived nearly all her life in Cape Town and her parents have a house which is safe and secure. The father expressed no fears about crime and safety when he agreed to M, as a newborn, spending over two months in South Africa with his mother. I know that there are security concerns in some parts of South Africa but I am not satisfied that in the circumstances of this family they are relevant to the mother’s wish to move to live in that country.

41 The father and mother both came to the UK, as many young South Africans do, to get experience and to enjoy wider opportunities than they could experience in South Africa. However, on the evidence, the mother’s actual career opportunities are now better in South Africa than in London. There is no suggestion that the South African school system would offer M anything inferior to that which he could experience in England. M can decide when he gets older, as the parents themselves did, if he wants to pursue further education or career opportunities in the UK and will be well placed to do so as I understand that he will be entitled to a UK passport as well as a South African passport and, of course, his father will be living in the UK should he choose to remain here.

42 In summary, the move to South Africa in this case is well thought out by the mother in practical terms, and offers M greater security through his mother’s work and the family support that she will have in South Africa than he would by comparison with him remaining in the UK with his mother.

The Father’s financial circumstances

43 The father was dishonest to this Court when setting out his finances for these proceedings; he gave a misleading impression to the Court when he said that his holiday in Thailand was financed by Ms G’s family. He had, when he wrote that statement, paid his full share of this holiday, although he did say he hoped to have a contribution from Ms G’s family. The father received nearly £49,000 in pay from NAP after he resigned. He disclosed this receipt only on the Friday evening after close of business before the hearing before me was due to start on the Monday, and the documentation he has disclosed also shows that he transferred some of that money to a friend, and he admitted that he did this in an attempt to protect those funds so that he could spend it on legal fees for this court case. The father told the mother that he could not afford to pay for swimming lessons for M, a sum of £138, when he knew that this large capital sum was at his disposal, and he did not pay any spousal maintenance and only started to make maintenance payments for M when M was eight months old.

44 The mother is understandably concerned about the father’s dishonesty on these matters and the extent to which the father has maintained that he did not have money to cover extras for M has of course been a welfare issue. Although the father says that he has now told the truth on these matters, I make a finding that on the evidence the father cannot at this stage be trusted in financial matters. It is of course possible that the father will now change his ways but, for the Court to be confident that he will be truthful on matters of finance in future, he will have to demonstrate that he can disclose financial information openly and fully and he has no track record in this regard. The father has high earning potential. He was earning just under £100,000 immediately before he left NAP and he has turned down a job at S paying about £90,000. He has however accepted a job earning £55,000 per annum and chosen that work so that he can spend more time working at home and he says his new employers are family-friendly.

The cost of the Father’s travel to South Africa for visits

45 On behalf of the father, the mother was criticised for what he says was an unrealistically low estimate of the cost of travel to and from South Africa included by the mother in her evidence. On the eve of the final hearing he instructed his counsel to provide an estimate of each holiday for him to visit South Africa and he put the cost of each trip to be something in the range of £10,000 for each visit. That information was first included in a position statement on his behalf and then incorporated in a sworn statement on his behalf. This costing is based on the expense of him paying for Ms G and her two children, as well as the new baby, to travel on direct flights to South Africa at peak periods with the children, and the cost of accommodation for himself, Ms G and four children, M of course joining them in South Africa. Firstly, I do not consider that it was fair for the mother to be criticised in any way for not costing out his journeys to South Africa in the way which has now been advanced by the father. However, she readily agrees that it would be for the benefit of M for him to see his stepbrothers and half-sister in South Africa.

46 However, there are good reasons for me to find that the father has exaggerated this cost. Flights, even direct ones, can be found at a good price if they are booked several months in advance. That is a question of planning. The father’s costings make no allowance for the fact that the trip would also be a family holiday, and I was unimpressed with the father’s verbal evidence on this matter when he said it would not be a holiday if they returned to South Africa every year and there is no Disneyland in South Africa. If the father intends to expend money in addition on trips to the US or, as he did in August 2014, to Thailand, I can easily see that a sensible holiday budget would be exceeded, but that calculation does not put the welfare of M at the centre of the father’s thinking. There would be every reason for him, in my judgment, to value holidays in South Africa above those to other destinations. South Africa is the father’s original home and he has all his extended family apart from his parents living in South Africa, so it would be a visit of general benefit to himself and his family.

47 As to the costs of the holiday in South Africa, the mother’s family have offered to find low-cost, good quality self-catering timeshare accommodation for him in the holiday destination areas of Durban using their timeshare credits. The father has not taken this offer into account. Instead, he has only contemplated staying in accommodation which he can purchase on an arm’s length basis. Taking all the evidence into account, I find the father has presented an unduly negative and, I would say, inflated view of the cost of his visits to South Africa. I believe that the father will be able to fund a family holiday to South Africa at least once a year and in addition could travel alone or perhaps just with the new baby on one other occasion. The model proposed by the CAFCASS officer of three times in two years appears to me to be possible and affordable for the father.

The image which the Father says the Mother is likely to portray of him

48 On behalf of the father, it is said that the mother portrays a highly negative image of him which will have significant consequences, firstly, that this is an indication that she is unlikely to promote contact in the future and, secondly, that if M is moved to South Africa he will grow up with a negative view of his father which will be damaging to him. The mother was cross-examined vigorously on the issue of her criticisms. The mother said, “He walked out on me and a two-week-old baby and I am sorry I cannot praise him for that,” and when a list of her criticisms was put to her she said, “He hasn’t given me the best two years and it is hard to be flowers and daisies and hearts.” The mother described the father as “a user”, and said the things she has found out, including information conveyed during the 48 hours before she gave evidence, had, in her words “knocked her out”. When considering the lack of spousal support she has received from the father, she said the children in the father’s house have everything they want and she is struggling financially. I have referred to her hurt and upset when discovering the large cash sum he received from NAP and the fact that the father refused to fund swimming lessons for M in the sum of £138.

49 The father’s criticisms of the mother through his statements have been detailed and persistent and he has presented an untruthful and incomplete picture of his financial circumstances to this Court. It must be recalled that the father’s initial application to the Court was for M to be removed from the care of the mother and for a residence order in his favour, and this was founded on his belief that the mother was an unsafe parent. The mother’s criticisms of the father as set out in her written material were, I find, a necessary part of the litigation process and part of her case in presenting a complete and balanced picture for the Court. In her words, she said, “I have to say what he did and how I felt about it.”

50 Having said that the written criticisms were necessary, I have to judge if her continuing criticisms are likely to infuse the view that M will have of his father. In this regard, I take into account also the negative view that the maternal grandmother has of the father.

51 Mrs. SC was called to the witness stand specifically to answer questions about her view of the father. The maternal grandmother investigated information she heard about the father having possibly fathered another child and passed this information on to the mother. It is clear that the maternal grandmother and the maternal grandfather supported the mother when she travelled to South Africa on 8 February. Mrs SC was defensive when asked about her view of the father, repeatedly stating that she was “disappointed” with his behaviour, and in this way I formed the view that she was carefully avoiding giving her true views to the Court lest she would damage her daughter’s case. She also said to the Court, “I don’t bear grudges and I don’t badmouth people.” She said, `said, “I would never ever badmouth Mr. M to his son.” When asked as to the cause of the breakdown of the marriage and how this would be explained to M, she said she would leave that to L to tell him.

52 It is my judgment, having seen and heard Mrs. SC give evidence, that she was telling the truth when she said she would not badmouth Mr. M. I also formed the view that she is a mature woman who understands it would be wrong to induce her grandson to think badly of his own father. The mother herself presents to me as a person who is child-focused and sensitive to the needs of M, and the CAFCASS officer has formed a very positive view of her also. When the mother went to South Africa in November, the marriage was already at an end. In these circumstances the mother kept in touch with the father, sending him texts and cute photos of M and promoting Facetime interactions. Even since the hurtful revelations about Ms G, the mother has persisted with these small exchanges. For example, she even took a picture of the father and M together and described this as them being cute together.

53 When giving her evidence, the mother spoke with genuine emotion and was crying when she said she didn’t ask for this to happen, an emotion which I found was genuine. As with the maternal grandmother, I have had to consider if the mother is capable of keeping her adult feelings of hurt away from M and to promote a positive view of the father to M. Having considered the mother’s evidence and taking into account the intelligent and balanced way she presented herself in court, I am satisfied that the mother is more than capable of making good any promise not to denigrate the father to M. I believe that she is capable of promoting a positive image of the father to M but I do add this for consideration.

54 The father has apologised to the mother at this hearing for his past behaviour. The apology sounded fulsome to me. It is now down to the father to make good and demonstrate to the mother and M that he can be trusted on matters of money and he can be trusted to be honest about his home circumstances. If he turns over a new leaf, it is obvious that it will be easier for the mother to praise him to M in the future.

The issue of promoting contact

55 The father said that the mother’s negative image means that the mother will not promote contact and that promised contact will not take place. The mother has been fully compliant with all agreements and court orders as far as contact is concerned and returned to the jurisdiction in compliance with the order of the High Court. She agreed to the father seeing M daily, even after he left her when M was two weeks old. When in South Africa she kept in touch, as I have already described. This track record is, in my judgment, a good indication that she will comply with visiting arrangements in the future.

56 The mother has set out a detailed and realistic plan for future contact. She can commit to one visit to the UK annually but told me that once she is employed and has reviewed her finances she may be able to come up to twice and adopts the cycle of three times in two years as suggested by CAFCASS. She says she will make time to visit the UK even if she cannot afford to travel if the father can afford to pay. She says that M can see his father and such members of his extended family who travel with him to South Africa once or twice a year and has set out what I consider to be good plans for self-catering accommodation to be available for visits in the Durban area at a good price for the father.

57 When M goes to school, his time off school will be relatively limited, only a month in December and then for two weeks over Easter and two other one‑week breaks. These holidays are shorter than those enjoyed by English children. The mother agrees to share and alternate Christmas and Easter breaks. I also comment that when M goes to school the mother has made it clear that the father will be welcome to visit and see M on a daily basis even when M is attending his school. I believe that the mother is telling the truth that these are her intentions and, taking into account my view that she is well intentioned, I find it is likely she will not seek to prevent, undermine or obstruct planned proposals for contact.

The emotional impact of removal of the Father

58 It is the father’s case he will be devastated and find it extremely difficult to cope if M moves to South Africa. I have no doubt that it is the case. When giving his evidence he was almost unable to even think about M moving away and was genuinely tearful when thinking about this. I have already noted his upset when M went to South Africa , by agreement, in November 2013. In his evidence the father has noted the support he has in this country and he told me he was thinking about not only his parents but Ms G when he wrote about that. He has the benefit of a new job, which he has selected to be family friendly. His life will be enhanced by the birth of the new baby. Both of the father’s parents live in the UK and have been supportive of him through these difficulties. The father is by no means isolated and is moving on with his life and is already engaging with counselling. Taking into account the support the father has access to, I find that the father will have every opportunity to manage his distress should M be removed, and thus the impact on him and his ability to get on with his life and thus the impact on M of his distress will be reduced as much as possible.

The quality of the mother’s life should she remain in the UK

59 The mother says that if she is refused permission to remove M, she will be devastated but will “get on with it”. The mother has developed successful strategies to cope with her depression and she is clearly a person who is able to cope. The mother has found that her career has stagnated in the UK but in South Africa she can see a way forward for advancement. I have found, on the evidence, the mother never intended to stay in the UK to bring up children and her feelings of disappointment will therefore in my judgment be pervasive and heightened by the knowledge that living in the UK, she is unsupported by any family. She would be living away from her home country and unable to share with her family the everyday happinesses of family life. This was described on her behalf as a feeling that she would be imprisoned, and I do not think that would be an exaggeration.

60 In my judgment, the mother has no good reason to remain in London for either family or career reasons. She never wanted to live here with children and now her marriage is at an end she does not want to stay. When the parties’ relationship ended in 2006 she voted with her feet and went home, and this is what she wants to do now. She was not happy when living with the father and the marriage crumbled during the pregnancy. When comparing life for the mother in Cape Town and London I find that, as regards career, support and family overall, the indicators are that it would be far happier and more settled for her in South Africa than in England.

The impact of the move on M

61 In this case the impact of the move on M will be that he will be isolated from the love and friendship of his stepbrothers. M has been seeing his stepbrothers since he was a newborn, and I have no reason to believe that he has not formed a bond with them. The effect on Ms G’s children will be that they will miss M. Taking into account that the new baby is to be born before Christmas, he will meet the new baby but is unlikely to form a close bond with her if he leaves for South Africa in the New Year. The loss for M and his half-sister will be the opportunity to grow up with each other, which will involve long-term damage which will affect both of them throughout their childhood and into their life as adults. I have already made a finding that the father is able to meet the welfare needs of M when he visits but I am invited on behalf of the mother to find that the father lacks insight into wider parenting issues.

62 The CAFCASS officer in her report gives a brief summary of an incident in April when the father made a referral to Social Services, and I will quote from her description.

“Mr. M made a referral to Social Services in April this year when the parents did not agree on M’s care following a bout of diarrhoea. During the referral Mr. M mentioned his concern regarding Ms. C using a teething necklace on M. Children’s Services contacted Ms. C and requested she stop using the necklace, which she tells me she did. She tells me that following the referral the police made an evening visit to her home, and checked a sleeping M, including undressing him. No concerns were identified and the case was closed.”

63 The father showed no insight into M’s needs as a newborn when he introduced him to new people and sought to integrate him into his blended family without telling the mother what he was doing. The father has heard the advice of the CAFCASS officer on the issue of overnight contact, not only at the hearing on 29 August, but also heard that she has not changed that advice during this hearing before me. Despite this, he persists with his request for overnight contact at Christmas 2014. I have also considered the mother’s parenting in the wider context. I level no criticism at the mother for using a teething necklace. This is a recognised way of comforting a child who is teething, but they are not considered safe and appropriate by everyone. The fact is, as soon as the mother was advised by a professional at Social Services not to use the necklace, she stopped using it. She listened to good advice and acted on that advice. Overall, the mother emerges from this event and the criticism by the father in a positive light. Despite her forming a reasonable view that the necklace was safe, she stopped using it immediately she received professional advice that she should.

64 I have considered the circumstances of the abduction. This was not child‑focused and the mother should not have taken him away as she did. M, I understand, had a cold at the time and this is likely to have made travelling more difficult for him. However, this was a one-off incident where she lacked judgment. It was an impulsive reaction to sudden, unexpected, distressing news about the father’s circumstances. It was something that was wrong, but impulsive behaviour is not part of a pattern of the mother’s behaviour and the mother has expressed her proper regret for what happened. I make a finding on the evidence that, despite the abduction, the mother does not present an ongoing risk to M by possible impulsive or inappropriate behaviour.

Co-parenting of M

65 I have thought about the ability of the parents to co-operate with each other, and this includes thinking about the issues of mistrust between them. Both parents, I am told, recently attended A&E together with M. The mother describes trying to make small-talk with the father when waiting and the father just ignoring her. This I find is a truthful account of that encounter. After that the father went back to the mother’s flat with her and was holding M, who was comfortable in his arms, but even so, he refused to cross the threshold to settle him inside and insisted on a handover outside the flat. The mother sends the father text messages about M and shares happy moments as they occur and on the evidence this is not usually reciprocated by the father. The parents have a contact book, which I have seen. The father now embraces this but he was slow to use it at first. The father deeply resents and is highly sensitive to any information about M’s routine which he considers to be the mother giving him instructions on what to do. The father’s reaction to such things is an overreaction and is bound to make the mother nervous that he will not follow routines and go his own way on issues of care, which could be unsettling for M as a young baby.

66 The mother has every reason not to trust the father. He has been apologetic for past errors but his lack of disclosure and his dishonesty have infused these proceedings right up to this final hearing before me. Whereas the mother’s conduct since the abduction has demonstrated that she can be trusted, the father has failed to demonstrate a pattern of conduct which shows that he can be trusted. Furthermore, the mother is entitled to be concerned that even at this final hearing the father has not withdrawn his allegations about her mental health. Whereas this lack of trust is mainly an issue between parents as adults, it has been so pervasive that it is something which does affect the ability of the father as a parent. This is because these betrayals and lies inevitably make the mother wary of whether the father is telling the truth, and that affects the ability of the father as a co-parent.

67 I am sorry to have to conclude that father is the overwhelming cause of the difficulties that the parents have encountered on issues of co-parenting, and this has been mainly caused by him being difficult to trust but also, to a lesser degree, to issues of insight, of which I have just given examples. These are matters which do not have an impact on the decision on whether M should be brought up in South Africa because the father does not make an application that M should instead live with him full-time, but it does affect issues of contact at this time and may continue to affect contact in the future.

The effect of relocation

68 It is submitted on behalf of the father that the effect of a move will be to significantly weaken the bond between father and son and marginalise the father from M’s life. It is said on his behalf that no amount of post‑relocation contact can mitigate this, even if the Court accepts the mother’s contact proposals at their highest. Further, and crucially, it is said on behalf of the father that the amount of contact will be much less due to the costs involved. I have made clear findings of fact that the father has failed to disclose important financial resources. He has good earning capacity; also, he has failed to take into account savings which can be made to facilitate contact by planning air travel in advance, and he has thus exaggerated the cost of travel. Even so, I do of course recognise that the cost of travel between the UK and South Africa will be significant for both parties. On the evidence, the parents will be able to manage for the father to see M twice a year and possibly more frequently. Contact can also be boosted by Facetime and Skype contact.

69 I am keenly aware that when a child leaves the jurisdiction he will in future have a less direct experience of the parent left behind, and this is likely to affect the bond between child and parent. The CAFCASS officer in this case put this in a nutshell by describing this as unintended marginalisation. I have been invited on behalf of the father to consider the research on the issue of relocation conducted by Dr. Marilyn Freeman for the Reunite Research Unit in 2009 funded by the Ministry of Justice, and the conclusions of that research are not challenged by either party. The research focuses on the difficulties inherent in these cases and, when considering contact, describes this as a horrible cycle which sadly in many cases tails off over time.

70 However, every case must be decided on its own facts and in my judgment the father’s case is overstated when it is said that no amount of contact in this case can mitigate the position. The father is committed to M and I have no reason to believe he will not continue to be so in the future. I have made clear findings which are supported by the evidence that the mother is likely to support contact. I have made findings supported by the evidence that the mother and the maternal grandmother will be able to promote a positive image of the father to M and will in fact do so. The evidence of the Ms. Walton, whilst recognising the risks, says that marginalisation is not inevitable. I would say that in this case there is a realistic prospect of M having a meaningful relationship with his father even if he relocates. That relationship however would never replicate the close and loving weekly personal interaction with his father which he is likely to enjoy if he remains in the UK and will be compounded by growing up separated from his half-sister and stepbrothers.

Analysis

71 The findings I have made in this matter can all now be related to the issue to be decided in the light of all the circumstances and I am guided by the welfare checklist. M is too young for his wishes and feelings to be ascertained. However, any child is entitled to know that the Court has taken as a base assumption that he is entitled to have a happy, close relationship with both of his parents and to enjoy the love and support of both of them as he grows up. M shows every sign of being a normal child, whose physical, emotional and educational needs are those of any baby. He is likely to have been affected by the stresses between his parents, including him moving between homes as a newborn.

72 I have considered the evidence and made a clear finding that the mother and maternal grandmother are capable of promoting a positive image of the father to M and are likely to do so, and thus he will not be harmed in this way. I have thought about the effect on M of a change in his circumstances. If he moves to South Africa, he will return to a familiar environment with his mother, who is his main carer, and he will spend time with his grandparents and members of the mother’s extended family, with whom he is familiar. The move is not likely to be traumatic but he will suffer the immediate loss of seeing his father, which is currently twice a week, and the loss of spending time with his stepbrothers. Over a period of time this is likely to make him feel sad, and as he grows up he will be aware that he is not growing up alongside his step-sister.

73 The mother is a capable and competent mother and I find she has the ability to protect and support M through his feelings of immediate loss and indeed through his feelings of long-term loss. The father has a strong and loving bond with his son. His fears that the bond can be damaged are not discounted but I have found on the evidence that they can be managed and have every chance of being mitigated. The father is having good contact with M at this time, meaning not only frequent, but also a successful and happy experience for both of them. The mother has offered in addition daily visits over Christmas and before removal, which will enhance that bond.

74 I have found that the plans for visits between South Africa and the UK for up to three times a year, and more likely up to twice a year, are practically possible and affordable. The father and Ms G will have to make plans in advance but I expect the mother will co-operate with that, because she has made it plain that she considers this to be the way forward as far as keeping costs down and making planned decisions in advance is concerned. After removal, the loss to M due to separation can be further mitigated by regular contact by Facetime and Skype. When the father visits South Africa and when the mother visits the UK, he will be able to rekindle the existing close bond he has with his father, and I have found on the evidence it is not inevitable that the bond will be lost.

75 M will suffer harm if his parents cannot agree on issues of his parenting or contact and this, sadly, is a risk which exists whether he stays in the UK or moves to South Africa. On the issue of co-parenting and co-operation, I have made findings about the father’s contact which I trust the father will accept as constructive criticism. I consider that the father must work positively on issues of trust between him and the mother so that trust can develop in the future. This is something that both parents must work on but predominantly the father needs to recognise the impact his behaviour has had on the mother.

76 I have taken into account the capability of the parents as carers. The mother is a good mother and the father’s criticisms and concerns about her parenting are not supported by evidence. The mother is already and will continue to be the main carer for M. I have made clear findings on the evidence that the mother’s prospects of happiness and access to support and career advancement are better for her in South Africa than the United Kingdom. I have dealt with issues of safety in South Africa, and in my judgment the fortunes of M and thus his happiness are closely in line with those of his mother, and it is not supportive of his welfare for him to be living in a home where his mother feels, and in fact would be, trapped and at a disadvantage should she remain in the United Kingdom. Put simply, the mother’s parenting will be at its best in South Africa and that is something from which M will undoubtedly benefit. However, if she remains in the UK she will be at a significant disadvantage as a parent. The father is well able to meet the needs of M for visits and, despite the comments I have made about his insight and the poor decisions he has made in the past, they are not matters which weigh against the father in the balance when deciding the application to remove. However, in my judgment in this case the positive benefits of a move to South Africa outweigh the losses he will suffer when he moves. In these circumstances, I have decided to grant the mother’s application.

77 Therefore, having considered all the evidence, and taking into account the balancing exercise which I have summarised, I have made the decision that I will give permission for M to be permanently removed from this jurisdiction so that he can live with his mother in South Africa.

Further Matters

78 I am now going to consider two short additional matters which I would like to comment on before I move on to consider the father’s application to the High Court supported by a statement dated12 February 2014. The father says he was very concerned about M’s safety and wellbeing and seeks his immediate return. He paints a colourful picture of the mother being erratic and paranoid and implies she could be depressed and suicidal, which was in total conflict to the praise he had given to her on 1 January. He says that he saw M every day after the birth but failed to tell the Judge that he lied to the mother about who M was seeing at the time. He mentions his new partner but fails to tell the Court that the first the mother knew about her was on 8 February. He does not mention that they argued on 8 February, when the mother confronted him with the allegation he had hidden from her the possible existence of another child in South Africa. He talks about threats to remove M to South Africa but in this Court has failed to provide evidence that the mother ever made a threat. Rather, she has said she wanted to move to South Africa, which is not a true threat. I am satisfied that at the time that the father signed this statement on 12 February he could easily have checked that M and the mother were safe and well in the mother’s family home in South Africa, where she was staying and where she had been staying with his agreement for about two months until about two weeks before his application to the Court. When judges make orders without notice they rely on the evidence of one side only, and there is a clear duty on the applicant to set out all facts and matters in an open and honest way, and in my judgment this statement falls far short of that standard.

79 Secondly, I would like to comment that I was slightly concerned to note that the otherwise excellent CAFCASS analysis gave prominence to the case of Payne, and in fact, she only cited that that case as guidance on the issue in these relocation cases. By doing this, Ms. Walton could have led herself into error by failing to fully consider the up-to-date case law which is better expressed by the decision in Re F. This did not, in this particular case, in any way undermine the advice which Ms. Walton gave to this Court, especially because she did not make any recommendations on the issue of relocation.

Issues of contact

80 Counsel for both parents have at my request set out their positions on contact in advance of this judgment and I make the following indications. On the issue of overnight contact before relocation, I have heard the evidence of both parties on this and consider the evidence of CAFCASS at this hearing before me and in August. I do not consider that the welfare of M will be promoted in this case by having overnight contact before he leaves. He is happy and settled with the current pattern of visiting contact. I have made findings that the issues of trust between the parents need to heal but the mother is not yet in a position to trust the father. The lack of trust will heighten anxieties if I order overnight contact against the mother’s wishes and against her judgment as soon as Christmas 2014, and will unfortunately enhance the risk of that contact not being successful and not being a happy and settled experience for M.

81 On the issue of moving to overnight contact on forthcoming visits to South Africa by his father, I have considered the mother’s evidence on this and I consider the mother’s plans as set out in writing to be well thought out and invite the father to agree those plans. On the issue of the pattern of visiting contact for the future, I consider the plans advanced by the mother to be sensible and I invite the father to agree to those plans. On the issue of daily contact by Skype or Facetime contact, this is raised by the father as his suggestion. I indicate that I believe that this is likely to be too much for a child of this age and instead would invite the father to accept the contact every other day, which the mother suggests, and, for the benefit of M, to adopt a discipline of calls being before 7 o’clock South African time, which I appreciate will be before 5 or 6 pm English time depending on the time of year.

Further orders and undertakings

82 On the issue of a mirror order, I do not think this is strictly necessary. The mother made a rash and unwise decision on 8 February and I believe she is unlikely to repeat that mistake. I believe that the mother can be trusted and that it will be sufficient for her that contact arrangements be incorporated into an English court order. South Africa is a Hague Convention country where judges can be relied upon to read English and understand the terms of any order I make or any written agreement between the parties. However, for the peace of mind of the father, and taking into account there was an abduction in this case, the mother offers that she will pay half the costs of a mirror order if this is what the father still wants, and that is an approach which I consider to be entirely reasonable. I will not make an order requiring the mother to pay the full cost of such an application.

83 It has also been suggested on behalf of the mother, and I consider this to be sensible, that both parties should prepare an undertaking for this Court requiring them not to denigrate the other and not to allow others in their family to denigrate the other in front of M. This will be a helpful discipline taking into account the very severe and strong criticisms which have been made by both parents against the other during the course of this very difficult litigation. That is the end of the judgment.

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	England and Wales Family Court Decisions (other Judges)
You are here: BAILII >> Databases >> England and Wales Family Court Decisions (other Judges) >> MM (A Child : relocation) [2014] EWFC B176 (27 October 2014) URL: http://www.bailii.org/ew/cases/EWFC/OJ/2014/B176.html Cite as: [2014] EWFC B176

England and Wales Family Court Decisions (other Judges)