TC and JC (Children: Relocation): The presently governing principles of relocation
|Mr Justice Mostyn|
The case concerned the mother's application to relocate the children to Australia, where she had previously abducted them there in 2011. (After the father made an application in Australia for their return, she eventually agreed and they came back to the UK. She then issued her relocation application.)
The case came before Mr Justice Mostyn, who set out the legal framework governing relocation applications. He began by referring to the leading cases, including Payne v Payne, K v K and Re F (A Child). From these he drew the following 'presently governing principles':
i) The only authentic principle to be applied when determining an application to relocate a child permanently overseas is that the welfare of the child is paramount and overbears all other considerations, however powerful and reasonable they might be.He then set out various other observations regarding relocation applications and concluded from them (at paragraph 18) that:
ii) The guidance given by the Court of Appeal as to the factors to be weighed in search of the welfare paramountcy, and which directs the exercise of the welfare discretion, is valuable. Such guidance helps the judge to identify which factors are likely to be the most important and the weight which should generally be attached to them, and, incidentally, promotes consistency in decision-making.
iii) The guidance is not confined to classic primary carer applications and may be utilised in other kinds of relocation cases if the judge thinks it helpful and appropriate to do so.
iv) The guidance suggests that the following questions be asked and answered (assuming that the applicant is the mother):
a) Is the mother's application genuine in the sense that it is not motivated by some selfish desire to exclude the father from the child's life?v) Since the circumstances in which such decisions have to be made vary infinitely and the judge in each case has to be free to decide whatever is in the best interests of the child, such guidance should not be applied rigidly as if it contains principles from which no departure is permitted.
b) Is the mother's application realistically founded on practical proposals both well researched and investigated?
c) What would be the impact on the mother, either as the single parent or as a new wife, of a refusal of her realistic proposal?
d) Is the father's opposition motivated by genuine concern for the future of the child's welfare or is it driven by some ulterior motive?
e) What would be the extent of the detriment to him and his future relationship with the child were the application granted?
f) To what extent would that detriment be offset by extension of the child's relationships with the maternal family and homeland?
vi) There is no legal principle, let alone some legal or evidential presumption, in favour of an application to relocate by a primary carer. The old statements which seem to favour applications to relocate made by primary carers are no more that a reflection of the reality of the human condition and the parent-child relationship.
vii) The hearing must not get mired in taxonomical arguments or preliminary skirmishes as to what label should be applied to the case by virtue of either the time spent with each of the parents or other aspects of the care arrangements.
"They explain irrefutably to my mind why presumptions have no place in a relocation application. I therefore start with a blank sheet. There is no presumption in favour of the applicant mother. My determination will involve a factual evaluation and a value judgment. I will ask myself and answer as best I can the questions in paragraph [(iv)] above but their answers will not be determinative or even necessarily tendentious (in the true sense of that word). They will merely be aids to my determination of the ultimate single question, which is, of course: what is in the best interests of these children?"He concluded that the decisive factor that moved him off the "knife edge" in favour of the mother's proposal was his finding that the impact of a refusal would bear far more heavily on the mother than the other way around (i.e. paragraph (iv) (c) above). However, he emphasised that his decision was "based from first to last on the interests of these children" and said (at paragraph 52):
"I must shut out my strong feelings for sympathy for the father at the high-handed, selfish and autocratic way he has been treated by the mother, and I must eschew any temptation to punish the mother for that conduct."Accordingly, the mother's relocation application was granted, although it transpired that the father was able himself to relocate to Australia, so he also ordered joint residence.
However, he finished with this message:
"Child abduction seldom, if ever, has a happy ending. It has rightly been described as a form of child abuse. The mother's conduct was abysmal. It was an act of deliberate cruelty to her husband, the father of her children. It was directly contrary to the interests of the children for them abruptly to have been removed from the society of their father. It has subjected them to two years of uncertainty while they have been taken across the world, back and forth. It has embroiled all members of the family in extensive litigation with days in court in both countries. It has brought the mother to the brink of bankruptcy. Yet it has not been until very recently that the mother has developed any self-awareness. Her attitude was "I did not abduct them; I just took them home". This is an all too common attitude but it is as misguided as it is futile. If the place to which the children are taken is a subscriber to the Hague Convention then the children will almost inevitably be returned with all the delay and heart-break that this case has demonstrated. Had the mother behaved correctly and made an application for relocation in 2011 then I expect it would likely have been granted, and all that trauma avoided."