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Leave to remove from jurisdiction: Re P (Children) [2014] EWCA Civ 852

Date:8 JUL 2014
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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.

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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.
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