Thursday, February 16, 2012

Z (A child): Relocation after MK v CK

Z (A child) [2012] EWHC 139 (Fam) is, to my knowledge, the first reported relocation case since MK v CK [2011] EWCA Civ 793.

To briefly recap, in MK v CK it was made clear that the only principle to be drawn from Payne v Payne [2001] 1 FLR 1052 - which had skewed relocation decisions for ten years - was the paramountcy principle - everything else was guidance.

Returning to Z (A child) :

The facts: This case comes with a lot of 'baggage', primarily related to the father wrongfully retaining the child in Belgium. Whilst this does have a bearing upon Mrs Justice Pauffley's decision, it is not central, and I shall therefore concentrate on the essential facts, which can be stated briefly:

1. The child Z was born in December 2005, and is therefore now aged six.

2. That month, the parents married in Australia.

3. The family relocated to Belgium in March 2006, although by the autumn of 2007 they lived in London, Belgium and Belfast.

4. In January 2008, the mother began divorce proceedings in London, and shortly thereafter applied for residence and permission to relocate to Australia, where all of her family reside.

5. The mother proposed contact via Skype and direct supervised contact in England and Australia, on dates to be arranged.

6. The father, who resides in his home country of Belgium, opposed the application and sought shared residence (which he later conceded was not a logical possibility), but neither appeared nor was represented in court, erroneously claiming that he would be at risk of some criminal or civil sanction were he to come to this country.

The father also requested that Mrs Justice Pauffley be recused for alleged bias, and that the case be adjourned so that he could take part by video link. I will not deal with these requests in detail, save to say that they were both refused.

Held: Mrs Justice Pauffley decided (at paragraph 49), "without hesitation, that Z's welfare needs would be most appropriately satisfied by a residence order in favour of the mother", saying (at paragraph 52) that: "The notion that Z should be removed from her mother and placed with her father in Belgium is unthinkable."

She then set out the law on relocation, in the light of MK v CK (referred to as 'K v K'), at paragraph 53, i.e. simply that Z's welfare was her paramount consideration.

Having done that, she set out the mother's motivation and practical proposals, at paragraphs 54 to 61, concluding that: "the mother does not seek this move so as to defeat the relationship Z has with her father or for any other sinister or selfish reason" (paragraph 60) and that her proposals were: "thoroughly well-developed and properly detailed" (paragraph 61).

Turning to the father's opposition, Mrs Justice Pauffley found (at paragraph 66) that: "the mother who is already and understandably in a fragile state would be utterly shattered by a refusal of her application".

She then considered the other welfare factors, finding (at paragraph 70): "that the father is more focussed upon his own selfish needs that those of his daughter", that "very considerable harm" had been caused by the father abducting Z to Belgium (paragraph 71) and, as to the likely effect upon Z of the proposed change in her circumstances, that "the most beneficial effect of the change for Z will be the relaxing and emotionally secure surroundings created for her by the maternal family", the impact of which for the mother and also for Z "cannot be overstated" (paragraphs 72 and 73).

In the circumstances, Mrs Justice Pauffley was in "in no doubt as to where and with whom Z's best interests lie", and accordingly both of the mother's applications succeeded (paragraph 74). Interestingly, so as to avoid any possibility of future argument about jurisdiction, she declared that Z would become habitually resident in Australia six weeks after her arrival there, and that until the Australian court becomes the sole jurisdiction for deciding welfare issues, the English court would retain its authority.

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