The Court of
Appeal has allowed the appeal of a mother seeking to relocate with her two
children, aged 3 and 2 years old, to
Germany. Both parents are German nationals who were
born and raised there but who now reside in England. The children visit their
extended family in Germany
every year and speak both German and English.
The parties had
never been married but both have parental responsibility for the
children. The father is in full time employment as a consultant
orthopaedic surgeon. The mother is professionally qualified as an architect and
has previously worked on large projects
in London. She
is currently not working, rather being engaged in full time child care.
The mother had
moved to the North West from London after starting a relationship with the
father. She had contended before the judge at first instance that both during
the relationship and since its breakdown, she felt emotionally and financially
controlled by the father. Her evidence was that the father had always used his
status and wealth to belittle her. There was evidence that the mother had
previously told her GP that the father was emotionally abusive towards her and
that he frequently told her that she was ‘only an architect’. The feelings held
by the mother were deep seated and she had sought counseling in relation to
this in the past. When the relationship ended she abruptly left the matrimonial
home and went into a refuge with the children stating that the father had
spoken to her in a threatening manner.
In accordance
with the criteria in Payne v Payne [2001] 1 FLR 1052, it had been argued that the judge should consider the effect
on the mother of her application being dismissed. She already had her own home in Germany and
proposed to move back there to start a new life with a degree of independence
from the father. She had consistently allowed contact in England and
proposed to continue to promote generous contact if allowed to relocate.
After hearing
oral evidence over several days, HHJ Roddy accepted that the mother genuinely
perceived herself as being controlled by the father. However, the mother’s
application for leave to remove the children was dismissed following the judge’s
finding that the mother’s proposed move was motivated to restrict contact
between the father and the children. HHJ Roddy’s had concluded in her judgment:
‘[8]
… I am satisfied that the mother's primary objective for relocation is to limit
the involvement of the father in the lives of the children. It is the
mother who wishes to control the father's relationship with the children and
not the father exercising control over the mother. Living in Germany with
the children I am satisfied that the mother perceives that she would be the
parent with control. Maintaining the father's relationship through contact is
not high on her list of priorities.’
On appeal, it
was contended on behalf of the mother that since the proposed move was back to Germany, the
first instance judge should have considered the prospect of contact
successfully taking place with reference to the Brussels II Revised
Regulation. It was further contended that given the mother had always allowed
contact as per court orders, the judge was wrong to find that the mother’s
motivation was to stop or restrict contact.
On behalf of
the father, it was submitted that the trial judge had heard all the oral
evidence over several days and was in a unique position to assess all of the
evidence; the Court of Appeal should be cautious in interfering with the
findings the judge had come to. Further, it was argued that whilst the
Court of Appeal had before it the transcript of the mother’s evidence,
the trial judge had also been entitled to rely on the evidence of the
father.
This was not a
case in which the parties disagreed about the applicable domestic law. An
agreed note described the development of the law from Payne
v Payne [2001] 1 FLR 1052, through K
v K (Relocation: Shared Care Arrangement)
[2011] EWCA Civ 793, [2012] 2 FLR 880, to Re F (Relocation)
[2012] EWCA Civ 1364, [2013] 1 FLR 645.
In hearing the
appeal, Lord Justice Ryder accepted the
submission on behalf of the mother that the import of Brussels II Revised as an
instrument governing the applicability, recognition and enforcement of
matrimonial orders across EU Member States,
was not given sufficient emphasis. However, the appeal would not have
been allowed on that issue alone.
Whilst
recognising the trial judge’s unique ability to hear the oral evidence of the
parties, Lord Justice Ryder, Lord Justice Kitchin and Sir Stanley Burton ruled
that there had been no basis for the trial judge’s finding that the mother had
been motivated to stop contact. The transcript of evidence of the mother did
not support the conclusion reached by the judge.
Indeed, the
judge had been entitled to rely on the evidence of the father. However, on the
question of mother's motivation to relocate so as to interfere with the
father’s relationship with the children,
the mother’s evidence was key.There
was nothing in the judgment that justified the finding on motivation and
nowhere had particulars justifying such a finding been provided to the Court of
Appeal, whether from a transcript of the father's evidence or otherwise.
The trial judge had
been very critical of the mother for the manner in which she left the
matrimonial home, and that fed into a fundamental value judgment reached by the
judge, namely that in wanting to relocate to Germany the mother's real
motivation was to interfere with the children's relationship with their father
by restricting contact.
The
mother had also been criticised by HHJ Roddy for a risk assessment response of
the MARAC, who considered her circumstances were such that they held her to be
at ‘high risk’. Lord Justice Ryder ruled that this was not the mother's
fault, save in one respect:
‘[11] … Her worries
had been consistently and appropriately reported and recorded until she
revealed her perception that father had used words which appeared to be a
threat to do something serious to himself and the children, the context being a
then recent tragedy where a father had killed himself and his children. Father
denied using those words. Mother was equally clear in evidence that she
should not have expressed her fear in the way that she had, but nevertheless it
was a fear that she genuinely held.’
The Court of
Appeal then went on to examine contact itself:
‘[12]
… With respect to the judge, she elided a motivation to limit contact to the
terms of agreed court orders with a motivation to limit the involvement of the
father by relocating to Germany.
There is a clear difference. There was some evidence to support the
former, and no evidence beyond inferences derived out of the judge's criticism
of the nature of the relationship breakdown to support the latter. Mother
had not refused contact or breached a court order. Orders had been
obtained by consent and had been complied with. They were relatively
generous to father, given the need for the children to have quality time with
each parent. The transcript of evidence demonstrates that mother had
proposed a contact arrangement of one day a week and three out of four weekends
during negotiations that were cross examined upon at the hearing. She had
on occasion offered more contact, albeit it is said she would have known that
father could not take up that additional contact because of his
employment. The one example of contact restriction which was valid arises
out of the circumstances of the relationship breakdown. Staying contact
did not immediately commence and there was a period of disruption and then
visiting contact for which it may have been appropriate to criticise mother as
not being sufficiently supportive of the relationship between the children and
their father.’
The Court of
Appeal concluded that the mother’s motivation became the dominant question for
the judge. It was submitted on behalf of the father that there were other
reasons for the judge dismissing the mother’s application. Lord Justice Ryder
considered that the emphasis on the question of motivation within the judgment
indicated that it was not peripheral in the judge's mind to the question being
decided. The Court of Appeal concluded that both parents firmly want to retain
their relationship with their children and a standard or quality of life for
themselves and children that on the facts is achievable.
In terms of the
mother’s proposals to relocate generally, Ryder LJ stated that a relatively
superficial view was taken of accommodation that was available in Germany
and also a superficial view of the financial needs and obligations of the
parties to each other and the employment prospects of the mother in Germany. The nature and extent of the relationship of
each parent and the children, was also relatively superficially addressed.
Those
questions, alongside other welfare factors will now need to be re-explored
without what became the dominant decisive question of motivation. The mother’s
application has been remitted for a re-hearing before a different circuit
judge.
Zimran Samuel
represented the Appellant instructed by Christopher Fairhurst of Stephensons
Solicitors LLP. The Respondent was represented by Karl Rowley QC
and Ms Christine Bispham.
