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Re M (Children) [2016] EWCA Civ 1059

Appeal by a father against a decision to grant his former wife permission to relocate to Moscow with the parties’ two children.

This was an appeal by a father against a decision by HHJ Wallwork to grant his former wife permission to relocate to Moscow with the parties' two children.  The parties had met in Moscow and initially lived there, before relocating to London.  They are the parents of two girls, who by the time of this judgment were 10 and almost 12, and had separated in 2011, since which time they had been involved in what King LJ describes as "virtually unremitting litigation in relation to their living arrangements".

The mother's reasons for relocating were based on an offer of employment in Moscow, coupled with an opportunity to relocate the business that she was running with her new husband to Moscow.  The final hearing of her application to relocate had begun in March of 2016 but had overrun and had not concluded until July.  HHJ Wallwork had given his judgment granting the application to relocate the day after the parties made their closing submissions, aware that the children needed a decision to be made before the start of the new school year.

The father appealed on two grounds.  Firstly, it was argued on his behalf that the judge had attached too much weight to now-outdated case law, particularly the authorities prior to Payne v Payne and the confusion that had existed for a time as to whether there was a presumption in the Payne guidance in favour of allowing a 'new' family to relocate to pursue career opportunities because of the likely negative effects on the new family if permission was refused.  This confusion was laid to rest by the judgment in K v K (Relocation) (Shared Care Arrangement) [2011] EWCA Civ 793; [2013] 2 FLR 880.  That judgment had clarified that the only principle to be applied in relocation decisions is the welfare principle, an approach further confirmed by the President in Re F (Relocation) [2012] EWCA Civ 1364.  Whilst the impact on a 'new' family of permission to relocate being refused may have an impact on the children's welfare, this was simply one potential factor to consider and in no way did it amount to a presumption in favour of granting the application.

In this case, whilst the judge had referred to earlier case law, this did not mean that his judgment was tainted by the previous confusion that had existed.  The judge had specifically referred to the fact that the only determining factor in this decision was the children's welfare and he had analysed factors relating to the children's welfare effectively.

In making his attack on the judge's judgment, leading counsel for the father had argued that any deficiencies in the judge's judgment could not be saved by it being an ex tempore judgment as it was not truly ex tempore because the judge had had the four-month hiatus between March and July to work on his judgment.  King LJ observes that the judge in this position is to be criticised whatever he does because had he used the time available in the way suggested, he could be criticised for making his decision before having heard all of the evidence and final submissions.  In any event, having reminded herself of the two criteria set out by the President in Re F (Relocation) for considering the adequacy of a judgment, King LJ finds that the judgment is adequate in enabling the parties to understand why the decision was to grant the application and that it provides sufficient detail to enable the appellate court to determine whether it is sustainable.

The second ground of appeal was that the judge had not given sufficient consideration to whether the mother's stated reasons for relocating were bona fide.  In particular, the father had requested her to provide considerable financial disclosure about her business and its activities in the UK.  He complained that not only had she not provided all of the disclosure requested, but that the evidence of the independent social worker and the mother's oral evidence had made it apparent that she did not need to relocate because her business was struggling in the UK.  The Court of Appeal found the judge's approach to this issue was also beyond reproach.  He had at various times commented that he felt that he was conducting a financial remedy matter when the father's counsel had cross-examined the mother in detail about her business.  In any event, he found, correctly, that there was no requirement that the mother demonstrate economic necessity in order to succeed in her application; to do so would place the type of additional gloss on the test to be applied that was expressly rejected in K v K.  The judge had been entitled to conclude that the mother was entitled to pursue career opportunities overseas if this was consistent with the children's welfare needs, which included maintaining their relationship with their father.

The appeal was therefore dismissed.

Summary by Sally Gore, barrister, Fenners Chambers
_________________________________

Case No: B4/2016/2769
Neutral Citation Number: [2016] EWCA Civ 1059

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT (FAMILY DIVISION)
HIS HONOUR JUDGE WALLWORK
ZC1414P00526

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 01/11/2016


Before :

LORD JUSTICE UNDERHILL

and
LADY JUSTICE KING
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Between :

M (Children)
 
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -

Charles Geekie QC and Perican Tahir (instructed by Sears Tooth, Solicitors) for the Appellant
Deborah Eaton QC
and Nicholas Anderson (instructed by Withers LLP) for the Respondent

Hearing date : Wednesday 21 September 2016
- - - - - - - - - - - - - - - - - - - - -

Judgment
Lady Justice King :

1. This is an appeal from an order made by HHJ Wallwork on 22 July 2016 whereby he granted permission for the respondent mother (the mother) to relocate to Moscow with the two children of her marriage to the appellant (the father).

2. The issues central to the appeal are (i) whether the judge attributed too great a weight to the mother's relationship with her present husband (the step-father) at the expense of focusing upon the children's relationship with their father and other welfare issues and (ii) whether he failed sufficiently to analyse the evidence in the case, in particular evidence directed to establishing the mother's motivation in seeking permission to relocate.

Background

3. The father is a British man in his 60s; although educated in England he was born in Germany and, as his father was a diplomat, he lived variously in Greece, Austria and Spain as a child. As an adult the father has had a highly successful international business career with various multi-national companies, working from time to time in the UK, USA and the Middle-East. His current pattern is that he has a country home near Watford, to which he returns most week-ends, but his working life is spent in Dubai, Jeddah or Moscow. He spends approximately one third of his time in Moscow.

4. The Mother is a Ukrainian born Russian and is a joint Russian and British national. The mother currently lives near Leatherhead with the two children of the family and the step-father, to whom she was married in 2014.

5. The father's marriage to the mother was his third marriage.  He met the mother whilst he was living in Moscow in 2002, they thereafter lived together there until they relocated to Paris in July 2005. Their elder child, C, was born in Moscow on 18th October 2004 (nearly 12). The mother and father subsequently married in September 2005 and their younger daughter, M, was born in Paris on 21st January 2006 (10). In July 2006 the family moved to London where they have remained.

6. The children have British passports and, as they have Russian nationality, are entitled also to Russian passports. Both children are fluent in both spoken and written Russian

7. The parties separated in February of 2011 since when there has been virtually un-remitting litigation in relation to their living arrangements. It is undoubtedly the case that the protracted contact proceedings (judged by any standard) have been extraordinarily acrimonious. Each parent has made appalling allegations against the other. Despite the relentless litigation contact has taken place, although the mother has, on occasion, stopped particular visits taking place, one of which was Christmas 2014. That Christmas Eve the mother wrote what the judge described as a "disgraceful" e-mail to the father saying that the children did not need a relationship with him.

8. The mother was unrepresented in the long running contact dispute proceedings.  The mother now regrets not having been legally represented and it is obvious to me that, with the benefit of legal advice, the mother may well not have made some of her undoubtedly poor decisions in relation to the proceedings.   The proceedings were finally concluded by the making of an order by District Judge Simmons on 5th January 2015. The district judge made a child arrangements order formalising an earlier agreement by the parents granting the father alternate weekends stay and contact and extensive holiday contact during the school holidays. It is recorded on the face of the order that historic allegations made by the mother about the father were of no relevance to the making of the orders and that, in the court's view, the mother's behaviour over the Christmas holidays, mentioned above, had been "unacceptable". Provision was made for the father to have a period of contact to make up for the lost Christmas contact.

9. Whilst the extensive contact deemed to be in the children's best interest has, since January 2015, continued, the parents' appetite for litigation has, unhappily for these children, remained undiminished.

10. The children had been attending a prestigious school in central London. The mother and step-father, as the father had himself done sometime before, moved to live in the country. The mother erroneously believed that the children would be able to commute from their new home to school each day. This proved to be impossible.  The children were exhausted, unable to attend any after school activities and were doing their homework on their knees on the train in the evening.  It was against this miscalculation on the mother's part that the next round of litigation commenced by way of an application, dated the 21st July 2015, whereby the mother made an application to change the children's schools so that they could attend one closer to her home. Directions were made for the joint instruction of an independent social worker, and Miss Elena Sandrini was instructed to consider schooling arrangements for the children.  It was anticipated that a final hearing would take place before District Judge Simmons which would deal with this issue and review the child arrangements generally.

11. On 5th November 2015 the mother was offered the position of "director of development" with a company in Moscow. Within days of having received the offer, the father's solicitors were told of it and of the mother's desire to take it up. On 13th November 2015 the mother applied for permission to remove the children permanently from the jurisdiction to Russia. As matters evolved, the mother's case was that the business she runs with the step-father from England, but with a Russian client base, was in difficulties and her proposal was that she would take up her new job with the security it offered (salary, accommodation and school fees) allowing their UK business to relocate to Moscow where it would benefit by being a sub-contractor to her new Russian employers.

12. At a subsequent directions hearing the joint instructions to Miss Sandrini were expanded and she was asked to consider whether or not it was in the children's best interest to move to Russia. Permission was also given to instruct Ms Catherine Heath an expert report on Russian law in order to provide the court with information as to issues in relation to issues such as mirror orders and enforcement.

13. On the 18th December 2015 the father issued a cross-application seeking an order that the children live with him and continue to attend their London school or, alternatively, that they attend weekly boarding school in southern England.

14. The parties' positions changed again and at the commencement of the trial in March 2016 the mother's position was that, in the event that the judge refused her application to relocate, she would go to Russia in any event and that the children's base would therefore alter to being with the father in London, allowing them to continue to attend their London school. Whilst this meant that the issue in relation to which school the children should attend in the event that they did not move to Moscow no longer needed to be explored, it became necessary for evidence to be called as to the father's proposals for the care of the children in the event that he was to become their primary carer.

15. The mother gave her reason for her surprising decision (given that it was accepted that she had, throughout the lives of the children been their primary carer) that she was litigation weary and extremely distressed. She told the court that she had felt that if she were able to see the children on a regular basis but that they lived with their father, then he would have his wish in relation to the London school. Such an outcome she felt might ultimately be in the girls' interest because it would defuse much of the antagonism, pressure and disputes between the parties. The mother however changed her mind when, during the course of the trial, she heard evidence from two of the father's witnesses as to the proposed practical arrangements for the care of the girls when he was working.  In particular a Miss K, who is the father's "best friend and confidante", gave evidence. There is, in respect of Miss K, as the judge described in the judgment, a past history and the mother attributes the relationship that the father had, or has, with Miss K as being the cause of the breakdown of the marriage. Miss K accepted that there had at one point been a sexual relationship with the father although her evidence was that they were now just friends. Ms Sandrini expressed the view that the evidence of Miss K "must have been especially hurtful" to the mother and commented that whilst the evidence did not provide any information that assisted the progression of the case, it "perversely assisted the mother to reach a decision which was in the best interests of C and M" namely that if permission to relocate was refused then, whilst the step-father would still move to run their business in Russia, she would stay in the UK with the children.

16. Ms Sandrini in her report concluded that the mother's application to relocate should be refused because of what she perceived to be the uncertainty of the mother's plans and the children's need for stability.

17. Mr Geekie QC, on behalf of the father, unsurprisingly put his case on the basis that the position taken by the mother during the course of the trial, namely that she would go to Moscow come what may, was an unattractive tactical ploy on her part whereby she sought to blackmail the court into permitting her to relocate to Moscow. Mr Geekie criticises the judge's conclusion as to the mother's motivation which he (the judge) described as a "mid-way finding". The judge concluded that there was an element of "a fit of pique on behalf of the mother" and an endeavour to try to persuade the court that it would not be in the best interest of the girls to prevent her from going. He also concluded however that she was "weary" and that the litigation was "to put it colloquially, getting to her". The judge went on to say "this was clear from her presentation on the witness stand and in court and I do accept that the appearance of Miss K was something that very much pushed the mother to the edge. It is a mixed picture. As in so much I've heard in this case, in part it was tactical but I accept that the mother was genuine when she withdrew from that position".

18. In my judgment there can be no challenge to the judge's assessment of the mother's motivation which indeed ties in with the observation of Ms Sandrini that both parents were exhausted by the process and "overwhelmed by emotional and financial cost associated by their respective disclosures, comments and allegations about past events and length of process".

19. The trial was not concluded in March as had been anticipated. Mr Geekie tells the court that it was anticipated that the trial would be concluded on the Friday of that week. I find that surprising given that when the parties came to court on Friday, even without the mother's change of heart, the judge still had to hear the evidence from Ms Sandrini and closing submissions of counsel before even attempting to give any sort of a judgment. In any event, the matter was held over to July when the case was concluded. The judge gave his judgment the following day, conscious as he was of the urgent need for a decision to be made if the children were to have their future settled prior to the beginning of the next school year.

The children
 
20. Whilst the parents were the central players at the trial, the case was and is ultimately concerned only with the welfare of C and M. The independent social worker's assessment of the parents was however important.  She said this about the parents as parents:

"M and F are charming, ambitious, clever and determined individuals. I'm satisfied that both want what is best for their daughters and both are convinced that their respective proposal and position provides the best opportunity for C and M…

It is tragic but not withstanding F and M's significant resources (ability, time and finances) the distrust and antagonism between them has prevented them from talking to each other to discuss thoughts and proposals that would fundamentally alter the children's lives in the short, medium and possibly long terms. With the children welfare at the forefront, I hope that F and M will not deviate from their individually expressed position namely that the court process cannot continue and litigation should cease after the court's determination in March, regardless of outcome".

21. In her oral evidence Ms Sandrini said that she did not believe that the mother had tried to influence the girls adversely against their father, either recently or at any point in time. She saw the significant difficulties in contact leading up to District Judge Simmons's order in January 2015 as having being historical in the sense that, whilst there were still difficulties between the parents, there was a pattern of contact which works and which is respected by each of the parents.

22. Notwithstanding the desperate animosity between  himself and the mother, the father, as the judge recorded in his judgment, described the mother as "a devoted mother who's brought up the girls in a loving and disciplined way" he  said that he "did not doubt that she loves the children dearly". The judge described the children as "delightful, intelligent, articulate, well-mannered and clearly love each of their parents."

23. That is not to say that the children have been unaffected by the maelstrom created by their parents which circles them, as each have expressed their desire for their parents to stop arguing and reach an agreement about their future, this has been poignantly expressed by each of them in their prayer intercession book at their church. The girls have said that they wish to go to Moscow. Ms Sandrini rightly differentiated between the girls' ability to express a view in relation to, for example, which school they wished to attend in the UK from their ability to give a properly informed view about something as fundamental as moving to a different country. The judge (also rightly) gave no weight to anything the children had said to their mother about wanting to go to Moscow.

24. As is properly the case in applications to relocate to a different country, scrutiny of the mother's proposals for contact in the event that permission was granted was an important feature of the case. The mother's case was that, given the frequency with which the father visited Moscow (a country with which he was wholly familiar and had lived in previously), there was no reason that contact could not continue on the same basis, save that the alternate week-end stay contact would take place in Moscow rather than in the UK and with all the school holiday contact taking place in the UK. The father, she submitted, (and it is not disputed), was financially in a position to facilitate such contact and could, if he chose, buy a flat in Moscow.

25. The father rejected the mother's proposals. Various reasons were given by him including that he did not wish to buy real estate in Moscow in addition to that which he already owned in that city, and that he did not wish to be away from London at weekends, given his commitment as a reader at his church. Whilst not accepting that relocation was in the best interests of the girls, the father proposed that, in the event that permission was granted, he would prefer to have longer periods of time with the children in the school holidays and would see the girls in Moscow as and when he could when he was there on business.

26. Ms Sandrini highlighted that contact in a hotel or rented flat in Moscow was not as relaxed and homely as the contact which took place at the father's country home at present.

The judgment

27. In this case Mr Geekie suggests that the judgment was deficient in a number of ways in relation to both the judge's analysis of the evidence and of his interpretation of the law. In relation to the evidence, in broad terms, he says that the judge failed to tackle in sufficient detail certain issues but, most particularly, the extensive evidence filed and given orally in relation to the mother's financial affairs. In respect of the judge's interpretation of the law the submission is made that the judge allowed himself to slip into an inappropriate reliance upon historical authorities and, as a result, placed a disproportionate weight on the mother's relationship with her 'new' husband when conducting the welfare evaluation.

28. In determining whether these criticisms are made out it is necessary to put the judgment in context and to consider, albeit briefly, the state of the 'old' authorities in the light of  the more recent cases which have helpfully cleared out much of the misunderstanding and misinterpretation of the well-known older cases.

29. Evidence in this case was heard over 6 days. Whilst the trial was in two parts, the judge had neither heard the evidence of Miss Sandrini nor final submissions at the conclusion of the March hearing. The judge delivered his judgment less than 24 hours after the end of closing submissions at the conclusion of the July hearing. The pressure was intense, the children needed to know where they were going to be at the beginning of the new school year and it was almost inevitable, given the history of the matter, that, whatever the outcome, there would be an appeal which would need, if possible, to be accommodated in the limited time available. There could be no question of the judge reserving judgment over a number of days and of having the 'luxury' of refining his analysis and crafting his judgment.

30. Mr Geekie, somewhat tentatively, suggested that this was not in the true sense, an ex tempore judgment, given the time available to the judge to write some of the judgment between the first and second part of the hearing. The difficulty with such a submission, no matter how cautiously put, is that in such circumstances the luckless judge is criticised whatever he does; if he part writes the judgment between hearings he is open to the suggestion that he had made up his mind before the evidence was complete and submissions made, if he does not he is criticised for failing to take the opportunity to make a start on the judgment.

31. Miss Eaton QC on behalf of the mother, when dealing with Mr Geekie's  submission that the judge's judgment had neglected to take into account a number of relevant factors and was not saved by its ex tempore character, says that such a submission needs to be set against the recent observations of the President, Sir James Munby,  who is acutely conscious of the pressures on  judges and she relies on his observations in  Re F ( Children)  [2016] EWCA Civ 546

"22. Like any judgment, the judgment of the Deputy Judge has to be read as a whole, and having regard to its context and structure. The task facing a judge is not to pass an examination, or to prepare a detailed legal or factual analysis of all the evidence and submissions he has heard. Essentially, the judicial task is twofold: to enable the parties to understand why they have won or lost; and to provide sufficient detail and analysis to enable an appellate court to decide whether or not the judgment is sustainable. The judge need not slavishly restate either the facts, the arguments or the law. To adopt the striking metaphor of Mostyn J in SP v EB and KP [2014] EWHC 3964 (Fam), [2016] 1 FLR 228, para 29, there is no need for the judge to "incant mechanically" passages from the authorities, the evidence or the submissions, as if he were "a pilot going through the pre-flight checklist."

23. The task of this court is to decide the appeal applying the principles set out in the classic speech of Lord Hoffmann in Piglowska v Piglowski [1999] 1 WLR 1360. I confine myself to one short passage (at 1372):

"The exigencies of daily court room life are such that reasons for judgment will always be capable of having been better expressed. This is particularly true of an unreserved judgment such as the judge gave in this case … These reasons should be read on the assumption that, unless he has demonstrated the contrary, the judge knew how he should perform his functions and which matters he should take into account. This is particularly true when the matters in question are so well known as those specified in section 25(2) [of the Matrimonial Causes Act 1973]. An appellate court should resist the temptation to subvert the principle that they should not substitute their own discretion for that of the judge by a narrow textual analysis which enables them to claim that he misdirected himself."

It is not the function of an appellate court to strive by tortuous mental gymnastics to find error in the decision under review when in truth there has been none. The concern of the court ought to be substance not semantics. To adopt Lord Hoffmann's phrase, the court must be wary of becoming embroiled in "narrow textual analysis".

24. In the present case it is important also to bear in mind that the Deputy Judge was giving an ex tempore judgment at the end of a hearing which had occupied only one day, and in the presence of the parties who had been present throughout the hearing and who had heard both Mr Power's evidence and counsel's submissions – all of which must have been fresh in their minds as they listened to the judgment being delivered."

32. I agree that the proper approach to this judgment should be by reference to those criteria namely:

(i) does the judgment enable the parties to understand why they have won or lost; and

(ii) does it provide sufficient detail and analysis to enable an    appellate court to decide whether or not the judgment is sustainable?

33. This is a case in which a very experienced judge was conducting a welfare analysis, having seen and heard evidence over 6 days and with the benefit of an independent social worker to provide significant additional material. Whilst such immersion in the case by a judge of many years standing does not render him immune from error, nevertheless, in my judgment no matter what perceived imperfections there may be consequent upon the necessity of producing the judgment so quickly, this judgment more than adequately achieves those two key objectives. In deference to the father and respect to Mr Geekie's elegant skeleton argument, notwithstanding my view, I will deal with his major complaints later in this judgment.

The Law
34. There is only one principle in relocation cases and that is that the welfare of the child is paramount; there are no presumptions and any guidance is exactly that, guidance, and, as such, designed to be of assistance (or not) depending on the circumstances of the case. It is unnecessary and inappropriate to trawl through the myriad of authorities in relation to relocation cases; after all in how many different ways is it necessary or helpful for it to be said that the welfare of the child is the paramount consideration?

35. After a period of uncertainty as to how the so called Payne guidance (Payne v Payne [2001] EWCA Civ 166; [2001] 1 FLR 1052) should be applied in relocation cases, the matter has been clarified in K v K (Relocation) (Shared Care Arrangement) [2011] EWCA Civ 793; [2013] 2 FLR 880 and thereafter re-emphasised by the President in Re F (Relocation) [2012] EWCA Civ 1364. The judge,  having cited  parts of  K v K, reminded himself that  the  Payne guidance is not a presumption but that "that does not mean that Payne v Payne is not helpful in terms of the guidance that it does provide"

36. K v K tracks the law back as far as Poel v Poel   [1970] 1 WLR 1469.  For the purposes of his argument of Mr Geekie  traces  through to more recent authorities the observations made in the well-known passage from the judgment of Griffiths LJ from  Chamberlain v de la Mere (1983) 4 FLR 434 where he said:

"The welfare of young children is best served by bringing them up in a happy secure family atmosphere. When, after divorce, the parent who has custody of the children remarries, those children then join and become members of a new family and it is the happiness and security of that new family on which their welfare will depend….. If a step-father for the purposes of his career, is required to live elsewhere the natural thing would be that he will wish to take his family, which now includes his step-children, with him, and if the court refuses to allow him to take the step-children with him he is faced with the alternative of going and leaving the family behind which is a very disruptive state of affairs and likely to be damaging to those step-children, or alternatively he may gave to throw up his career prospects and remain in this country. If he has to do that he would be less than human if he did not feel a sense of frustration and, do what he may, that may well spill over into a sense of resentment against the step-children who have so interfered with his future career prospects. If that happens it must reflect upon the happiness and possibly even the stability of this second marriage. It was to that effect that the court was pointing in the decisions of Poel v Poel [1970] 1 WLR 1469 and  Nash v Nash [ 1973] 2 All ER 704 and it was stressing that it was a factor that had to be given great weight when weighing up the various factors that arise when a judge has to decide whether or not to give leave to take the children out of the jurisdiction."

37. This in turn was incorporated as an important feature by Dame Elizabeth Butler-Sloss P in  Payne  as was summarised by Black LJ in  K V K

"[125] She analysed the guidance to be derived from the earlier cases. In paragraph 83, she focused on the impact on a child's welfare of the frustration of reasonable plans made for relocation, culminating in the observation that:

"If the arrangements are sensible and the proposals are genuinely important to the applicant parent and the effect of refusal of the application would be seriously adverse to the new family, e.g. mother and child, or the mother, stepfather and child, then this would be, as Griffiths LJ said, a factor that had to be given great weight when weighing up the various factors in the balancing exercise."

[126]In paragraph 84, she turned to the other considerations that would be relevant in the following terms:

"84. The strength of the relationship with the other parent, usually the father, and the paternal family will be a highly relevant factor, see MH v GP (Child: Emigration) [1995] 2 FLR 106. The ability of the other parent to continue contact with the child and the financial implications need to be explored….."

38. Black LJ,  looking back over what is now nearly 40 years of jurisprudence in this area of family, [140] came  to a number of conclusions in her judgment in K v K:

"[141] The first point that is quite clear is that, as I have said already, the principle - the only authentic principle - that runs through the entire line of relocation authorities is that the welfare of the child is the court's paramount consideration. Everything that is considered by the court in reaching its determination is put into the balance with a view to measuring its impact on the child.

[142]
Whilst this is the only truly inescapable principle in the jurisprudence, that does not mean that everything else - the valuable guidance - can be ignored. It must be heeded for all the reasons that Moore-Bick LJ gives but as guidance not as rigid principle or so as to dictate a particular outcome in a sphere of law where the facts of individual cases are so infinitely variable. 

[143]
Furthermore, the effect of the guidance must not be overstated. Even where the case concerns a true primary carer, there is no presumption that the reasonable relocation plans of that carer will be facilitated unless there is some compelling reason to the contrary, nor any similar presumption however it may be expressed.  Thorpe LJ said so in terms in Payne and it is not appropriate, therefore, to isolate other sentences from his judgment, such as the final sentence of paragraph 26 ("Therefore her application to relocate will be granted unless the court concludes that it is incompatible with the welfare of the children") for re-elevation to a status akin to that of a determinative presumption. It is doubly inappropriate when one bears in mind that the judgments in Payne must be read as a whole, with proper weight given to what the then President said. She said that she wished to reformulate the principles since they may have been expressed from time to time in too rigid terms with the word 'presumption' over-emphasising one element of the approach (paragraph 82) whereas the criteria in s 1 Children Act govern the application (paragraph 83) and there is no presumption in favour of the applicant (paragraph 84). Dame Elizabeth referred, of course, to the effect on the parent with residence (paragraphs 83 and 84) but she also stressed that the relationship with the other parent is highly relevant and that there are many other factors which may arise in an individual case (paragraph 84). I detect in her discussion of the factors and in her summary at paragraph 85 no weighting in favour of any particular factor. She said that the reasonable proposals of the parent with a residence order wishing to live abroad carry "great weight" whereas the effect on the child of denying contact with the other parent is "very important" but I do not infer from that phraseology any loading in favour of the reasonable proposals as opposed to the effect of the loss of contact.

[144]
Payne v Payne therefore identifies a number of factors which will or may be relevant in a relocation case, explains their importance to the welfare of the child, and suggests helpful disciplines to ensure that the proper matters are considered in reaching a decision but it does not dictate the outcome of a case."

39. In  Re F ( Relocation)  [2012] EWCA Civ 1364; [2013] 1 FLR 645,  Munby LJ ( as he then was)  said:

" [37] …..There can be no presumptions in a case governed by section 1 of the Children Act 1989. From beginning to end the child's welfare is paramount, and the evaluation of where the child's best interests truly lie is to be determined having regard to the 'welfare checklist' in section 1(3)."

40. It follows therefore that the impact on the newly constituted family, if permission to relocate was refused, was a matter which the judge could and should take into account in conducting his welfare evaluation; indeed it was a matter of concern to Ms Sandrini, who said in her oral evidence that " I certainly do not think it would be right for a husband and wife to be separated" . Mr Geekie accepts that, whilst it is against the thrust of his submission, the older authorities remain good law in  that  the remarriage of an applicant and the obvious need in the interests of the children for the new family to be nurtured, in order to provide stability for the children, continues to be an important consideration.

41. Miss Eaton referred the judge to Lord Griffith's judgment in Chamberlain v de la Mere  which he set out in full, she also referred him to the following  part of the judgment  of Thorpe LJ in Re B; Re S  [2003] 2 FLR  1043. 

"The mother's attachment and commitment to a man whose employment requires him to live in another jurisdiction may be a decisive factor in the determination of a relocation application. 

HHJ Wallwork interposed in his judgment at this point to say:

"I pause then to say that in my view in this case, there is not a requirement, but I will deal with the position of (the step-father) in due course."

He then continued to quote from the same paragraph of  Re B; Re S

"That does not entail putting the needs and interests of an adult before the welfare of the children.  Rather the welfare of the children cannot be achieved unless the new family has the ordinary opportunity to pursue its goals and to make its choices without unreasonable restriction."

42. Mr Geekie argued that in referring back to and quoting from Re B; Re S, which judgment had in itself incorporated the passage from the judgement of Griffiths LJ from Chamberlain v de la Mere (1983) 4 FLR 434, the judge had allowed himself to be infected by an old-fashioned and outdated approach and had consequently given undue emphasis to the relationship between the mother and step-father at the expense of the children's relationship with their father.

Grounds of Appeal

43. Mr Geekie's complaint in this regard forms Ground 1 of the grounds of appeal which says: "The judge's legal analysis focussed on the dicta in Payne v Payne and upon cases prior to Payne. This led the judge into error. He wrongly attributed too great a weight to the [mother's] relationship with her husband at the expense of focus upon the children's relationship with their father and other welfare issues."

44. In my judgment that is not the case. The judge did not allow himself to be constrained by the Payne guidance nor did he approach the case on the basis that, because the step-father would go to Moscow whatever the outcome of the case, that it led to any sort of a presumption in favour of allowing the mother's application to relocate. The judge specifically reminded himself that any  sort of presumption was incorrect although commented, in accordance with both  K v K and Re F ( Relocation), that that did not mean that the Payne guidance was not helpful [44].

45. The judge's judgment was, throughout, couched in the language of "welfare" and in the very early stages of the judgment he referred to the welfare checklist. Whilst the judge did not, until requested to do so specifically, deal with each heading under the welfare checklist, he was under no obligation to do so ( H v H (Residence Order: Leave to remove from the jurisdiction) [1995] 1 FLR 529) and it is easy to see that all its component parts were woven into the judgment.

46. The judge rightly regarded the mother's relationship with her husband as an important feature of the case; the evidence was that it was very much a positive feature in the life of the girls, not only it was clear that the step-father gives companionship and support to their mother, but they themselves have a valuable relationship with him. 

47. Ms Sandrini also attached importance to the relationship. Her concluded view in relation to the proposed relocation can be seen in the transcript of evidence. She said:

" To relocate… would make a lot of sense once there is an established business and then it is clear that the  parents (sic) will be working in Russia and absolutely they should be together. If that was the situation that was being presented today and I was giving a view on that today, I would say "Yes", it makes sense, the parents (sic) should be together, it is clear there is security in Russia and it is clear that that can go ahead and, yes, the father can travel to see the girls and the girls, of course, can have holidays with the father and if he is given the additional time that he has requested which I think makes sense…. They would have a significant amount of time with their father which could be anywhere really. I just think at the moment there are too many uncertainties….. and that is why I cannot support the application at this time, but I can totally see the merit of that application if there was certainty at the other end."

48. Following the decision in K v K, it is unlikely that it will be necessary or helpful to refer in any detail to the 'pre Payne' cases. The judge's bald reference to the earlier cases (which themselves emphasise that the best interests of the children are paramount) cannot however be interpreted as an indication that the judge was approaching the case from some sort of antediluvian gender-based perspective. Indeed in the present case the judge was wholly contemporary in his thinking expressing the view that,  providing the welfare of the children was not compromised, the mother as well as the father and step-father was entitled to career and business aspirations.

49.  In my judgment a ground that depends on showing that the judge attributed excessive weight to the relationship between the mother and step-father at the expense of the children's welfare is not made out.  The judge was throughout conscious of the importance of the children's relationship with their father, dealing specifically with the impact on the change in contact and the extent to which it would be deleterious to their welfare.

50. By Ground 2 Mr Geekie submits that the judge failed sufficiently to assess the evidence that "ran counter to his conclusion" that the mother's motives were bona fide. In order to make good his submission the ground of appeal as drafted highlights two aspects of the case:

i) "The judge failed properly to scrutinise the financial material or M's business case for work to be done in Moscow…. The judge simply accepted the mother's protestations, overlooking the complete absence of documentary support.

ii) The judge failed to "record, analyse or reach conclusions upon a very substantial body of evidence which ran counter to the judge's conclusion that the mother's motives were bona fide".

51. The judge, as he was entitled to, made it clear that he would not be dealing with each and every issue, nor every dispute of fact which had arisen; rather certain themes had, in his judgment, emerged and he said that he would deal only with such matters as he regarded as pertinent to the issue which he had to determine. Such an approach wholly accords with The President's observations in Re F (Children) referred to above.

Financial Issues
52. The mother set out her original case in support of her application to relocate in a statement dated 8th January 2016. She described having been offered a position of director of development with a company in Moscow. She said that she was keen to take up the offer given the difficulties she and her husband were experiencing with their UK business. The following paragraphs then describe difficulties which she said the UK business was suffering, in part, due to the trade sanctions with Russia. The mother spoke of redundancies, loss of major clients and of having had to cease taking her salary for the time being. The best outcome she said would be for the UK business to be relocated to Moscow where their customers are based. She herself would take up her employment with a Russian company but, meanwhile, she had been in discussions with them about engaging the UK business as a sub-contractor for some of their work. The statement of the step-father further explains the difficulties which it was said the UK business had encountered and how he regarded the job offer as a "vital life line" to grow the business in Moscow. Failing that, he anticipated closing the UK business in London over the next 18 months.

53. The father did not accept that the situation facing the UK business was anything like as serious as that described within those statements. He therefore made an application for financial disclosure from the mother to support her contentions. The father made an application, heard before HHJ Toulson QC, on 25th February 2016, for an order that the mother should respond to a questionnaire which had been drafted on his behalf. That questionnaire was similar to the type of questionnaire found in financial remedy cases. The amount of material sought, and ordered to be produced, was substantial. Although not extending quite to the level of detail found in so called "big money" cases, responding to the questionnaire presented a formidable task and one which, in my judgment, should never ordinarily be regarded as proportionate or appropriate in an application of this type; only a combination of animosity and the ability to fund exorbitant costs on the father's part could have led to such a level of interrogation having been sought.

54. Mr Geekie heavily criticises the mother for her failure to disclose and sets out in considerable detail both the deficiencies in that disclosure and the way in which additional information trickled in during the course of the hearing. Ms Eaton QC, on behalf of the mother, rightly noted that the order having been made on 25th February, the mother had only 10 working days to produce the documentation prior to the trial commencing on the 14th March. Having said that, it was undoubtedly the case that the mother put her case in respect of the vulnerability of the UK business considerably lower to the independent social worker and in her oral evidence at trial than she had in her statement in support of her application. In her oral evidence the mother said,

"I never said that it's economic necessity. I never said that I'm getting bankrupt. I said it's economic opportunity, which is very different to economic necessity, as far as I can see that."

55. The independent social worker for her part said as follows,

"5.12 (35.2) M's statements in support of her application to relocate, suggest that the principal motivating factor is to prevent her company from risking bankruptcy and to enable the company to expand and flourish. However, during the course of the assessment, especially during the recent visit to Moscow (when M spoke enthusiastically and emotionally about her strong link with Moscow and her wish to be close to her friends) it became evident that her decision to move from London to Moscow was motivated by a strong emotional desire to return home, to live in a beautiful luxurious house and start afresh with [her husband], C and M but I do not question the importance to M and [her husband] to have the opportunity to resurrect their business."

56. A significant portion of time was spent during the course of the trial in cross-examination of the mother in relation to her financial affairs. Mr Geekie submits that her evidence was wholly unsatisfactory; that the court received late disclosure about significant matters, that the evidence produced did not tally with the information in her statements and that she had not only singularly failed to established that it was an economic necessity to relocate to Moscow, but that the presentation of the material was, on every level, dissembling. It is not surprising that the judge protested both during the course of the trial and in his judgment that at times it felt like he was conducting a financial remedy case. The judge put the matter in context in this way:

"39. The issue of the business decision to relocate has given rise to a substantial amount of enquiry as the mother's means and at times the case has begun to resemble a financial remedy dispute. The issue is, however, relevant because it does pertain to the reasons behind the mother's wish to relocate. The mother maintains that, in addition to the business reasons, there are a number of personal reasons why she would wish to move to Moscow and those I will return to in due course."

57. The judge moved on to consider the financial position in broad terms when considering "was the application sincere" or, as it has been phrased throughout this appeal, what was her motivation for making the application? In relation to the job offer from the Russian company the judge held that, although the genuineness of the offer had been challenged, it was, and is, a genuine offer. The judge, having set out the mother's plan and the proposed link as between her UK business and the Russian company, went on to consider the challenge of Mr Geekie. The judge noted (para [54]) that Mr Geekie had challenged the financial position of the mother and that the thrust of this challenge related "very much to the question of whether this move to Moscow is necessary."

58. The judge concluded in relation to the 'necessity' for the mother to move to  Moscow for economic reasons that "it would appear on the face of what Mr Geekie has produced, that there was no immediate issue, but I can accept the position vis-à-vis the effect the Rouble has potentially had on business and business potential."

59. The judge then importantly says (at para [57]) "that all of that gives rise to the question of whether the mother needs to demonstrate necessity". The judge did not believe that to be the case. He found that notwithstanding what was generally accepted to be the mother's tendency to impulsive decisions that:

"the move to Moscow is to pursue legitimate business objectives. I have indicated that I accept that those business objectives relate, firstly to the mother's employment and secondly, to the setting up of a branch, effectively, of an established business with a view to transfer in that part of the business to Moscow."

60. The judge put the mother's position in the context of modern family life. He notes that the father frequently leaves the country to travel to Moscow (where he spends a third of his time), that he is highly successful in business and is able to enjoy his time with the girls without him being prevented from taking advantage of business opportunities. The judge by way of example noted that when there was discussion about whether the children should return to the mother on Sunday evening or be left at school by him on Monday mornings, the father's response was that he would wish to take them to school on a Monday morning, save on those occasions when he would be flying to Dubai or elsewhere, in which case they would be returned to their mother on Sunday night. The judge went on:

"59. If the application were not allowed, it has been observed that it seems that [the step-father] would still go to Moscow, the father would still be able to pursue his business interests but the mother would be left at home not able to pursue what I would regard as legitimate career and professional aspirations. In so saying, I'm mindful that the welfare of the children is paramount, but, if the mother as primary carer, is able to pursue legitimate career objectives, providing that that is not inconsistent with the welfare of the girls, which of course, includes preservation of their relationship with their father, then, in my findings she should not be prevented from doing so."

61. In my judgment, the judge was right to conclude that the mother did not have to satisfy the court that on the balance of probabilities that it was "necessary" for her to relocate. To do so would be to put exactly the sort of impermissible gloss on the welfare principle that  K v K has so carefully dismantled.

62. It follows in those circumstances that the judge needed to do no more than he did in his judgment in relation to this highly contentious aspect of the case. It is undoubtedly the case that the judge did not analyse in detail the mass of financial information and analysis put before him, neither did he specifically deal with the sharp criticisms made in relation to the quality of the mother's disclosure. The judge however accepted that on the face of what Mr Geekie had produced, there was no immediate necessity for the removal of the UK business to Moscow, but also accepted the potential difficulties the business faced and the genuine and reasonable business reasons for moving.

63.  Mr Geekie's cross-examination of the mother was intended to go to both the facts and the mother's credibility – at the end of the day no matter how impulsive the mother is capable of being, the judge was entitled to conclude, as did Miss Sandrini, that her motivation for relocating was reasonable and genuine and the application was not made with a view to fracturing the children's relationship with their father                               

Discussion
64. Reverting then to consider whether the judge's judgment enables the parents to know why they have won or lost and whether there is sufficient detail and analysis to enable this court to see whether the judgment is sustainable, to decide whether the judgments have achieved these objectives it is worth looking in broad terms at just what the judge's judgment tells the reader:

i) That the mother is the primary carer and that the children should remain living with her but that the relationship with both parents must be preserved [33] [36]

ii) That the children speak and write Russian, The judge considered that culturally the girls would fit in 'quite quickly'. The girls have said they wish to go, although undue emphasis was not placed on this.

iii) Central to the father's case was the 'bona fides' of the mother. The judge found the mother to be impulsive and that her ill-judged position at the March hearing (that she would go to Moscow without the girls) stemmed from mixed motivation which she was unable to sustain once the evidence from Miss K had been given.

iv) Having heard and seen the witnesses the judge concluded that, whilst there was no immediate financial 'necessity' or 'requirement' for the mother and step-father to relocate to Russia, the mother's job offer was genuine and it was the catalyst for the other plans in respect of the UK business. He found that the step-father would in any event go to Moscow and that the separation between mother and step-father which would result was not tactical but was a plan which had been in place for some time, but that the focus in March had been on the mother's position as it then was, namely that she would go without the children.  If the mother is forced to remain in this country that plan, the judge found, would proceed forcing a de facto separation between her and the step-father.

v) The welfare of the children is paramount but, if the mother as primary carer is able to pursue legitimate career objectives then, providing it is not inconsistent with the welfare of the girls, she should be entitled to pursue it.

vi) The maternal grandparents lived close by in England and were moving to Moscow. Whilst part of the picture, that relationship was not so important to the girls as to be a magnetic factor.

vii) Whilst the email sent by the mother at Christmas 2014 was 'disgraceful' the father had on the other hand acted provocatively and fuelled antagonism.

viii) The arrangements for the move are fully choate. This was not a new business but the moving of operations to Moscow where the core business is. The judge was satisfied that the parties had carried out investigations and the mother's confidence in the venture was reasonable. The judge took into account the father's personal view that, notwithstanding that he is married to the mother, the step-father might find himself with visa difficulties in Moscow, given that he is from Kuwait.

ix) Despite all the difficulties, litigation and issues which have continued to 'rumble away' the father has had contact in the way originally ordered for well over a year.

x) The father's relationship with the girls must be preserved. The father spends a considerable amount of time in Russia and all the parties have more than adequate funds to facilitate frequent contact. This, the judge said, is one of those rare cases where frequency of contact need not be unduly affected. The father knows Moscow well so he knows places to go to enjoy time with the girls.  He will continue to have contact in England at his home in the holidays and his contact time will be extended in the summer. Contact will not be exactly the same but the judge was satisfied that the relationship with the father need not be damaged and can clearly be continued unabated [91].

xi) The judge considered and put in place 'insurance' in the form of a charge of £600,000 on the mother's house.

65. In my judgment the judge carried out a proper welfare evaluation and concluded that it was in the best interests of the children to relocate. Whilst the judge did not reach the same conclusion as Miss Sandrini, her concern was in relation to what she regarded as the uncertainty surrounding the proposed move which she would, according to her oral evidence, have otherwise recommended. The judge was entitled to conclude, having heard the evidence, that the plans were sufficiently choate and to grant the application notwithstanding Miss Sandrini's reservations.

Insurance
66. The final ground of appeal relates to the safeguards put in place by the judge to secure appropriate contact for the father. The safeguarding provision made by the judge was in conventional terms, although the amount of money secured reflects the wealth of the parties. The mother was ordered to execute a charge in favour of the father on her home in Leatherhead in order to secure £600,000. The judge further ordered that :

Any breach of the terms of the order made under the Children Act 1989 dated 22 July 2016, or any application to vary the order made under the Children Act 19889 in this or any other jurisdiction such as shall constitute, in the finding of this court, an attempt to defeat the spirit or intention of the order under the Children Act 1989 on the part of the mother, except where welfare so requires, shall be a trigger for this court to consider the exercise of the charge in whole or in part."

67. The report prepared by Ms Heath in relation to Russian law highlights a number of potential difficulties for the father in the event that the mother undermines the contact arrangements notwithstanding that The Hague Convention 1996 came into force as between Russia on the UK on 1 June 2013. The judge accepted that "any sanction from the court in Russia is, perhaps, not the most likely way of enforcing orders".

68. Mr Geekie submits that the father remains vulnerable to breach and that that, in itself, should have weighed heavily against granting the order for relocation. If the mere fact that a 'left behind' parent was vulnerable to breach of contact arrangements meant that an application to relocate should inevitably fail, then, it seems to me, relocation would only rarely be permitted. Such vulnerability would in reality be present to a far greater extent in cases where the families involved are of modest or of no means. In such a case a parent might have a 'mirror order' (if they could afford to obtain one) in a country with an exemplary welfare based jurisdiction well known for their respect of the Hague Convention principles, but that would be of absolutely no comfort to a left behind parent who cannot afford a budget air fare to the country concerned and, even if he could, cannot speak the language or afford a lawyer or even a court fee.

69. Security is but part of the overall picture. The judge made the order for security having concluded that the mother would continue to adhere to the contact arrangements and, knowing that the opinion of the girls, in the event that the mother did try to restrict their contact they would 'vote with their feet' and create a 'rebellion' in order to ensure they were able to see him, not an unrealistic assessment given that their father would routinely be in the city in which the girls will live.

70. In my judgment the judge's decision that it was in the best interests of the girls to relocate to Moscow with their mother and step-father had necessarily involved him having concluded that extensive contact would take place.  He was thereafter entitled to make the order putting in place such safeguards, imperfect though they may be, which might be felt to offer comfort on the one hand to the father and, on the other, to act as a deterrent to the mother, in the event that she sought to undermine the contact order.

Lord Justice Underhill :

71. I agree.