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M v F [2016] EWHC 3194 (Fam)

Mother’s application for permission to relocate her two children out of the jurisdiction to the state of Utah in the USA. The move was opposed by the father and the Children’s Guardian, but permitted by the court.

Background facts
The parties were in a relationship from 2007 to 2014 (with a brief separation in 2011 following an incident where the father was convicted of ABH against the mother). In late 2014 the F commenced a relationship with Ms X (who had four children, and a fifth with him) and in May 2015 the M met Mr Y (who lived in Utah) whom she later married (whilst he was visiting the UK) and with whom she was 12 weeks pregnant at the time of the final hearing. Following separation the parties' children, 'B' (six years) and 'C' (three years), continued to live with their mother. In April 2016 she issued her application for permission to relocate the children to live in Utah with Mr Y.

The law
Per K v K [2012] 2 FLR 880, Re F [2015] EWCA Civ 882 and Re C [2015] EWCA Civ 1305, the welfare of the children is the court's paramount consideration and the s 1(3) welfare checklist is to be applied. An 'overall comprehensive analysis' of the children's welfare is required with the court weighing up the relevant pros and cons of the children being relocated. There is a requirement to balance the Article 8 rights of the children against those of the parents and to ensure that any interference with such rights was proportionate. The considerations in Payne v Payne [2001] 1 FLR 1052 were merely a checklist of factors which may need to be weighed in the balance when determining which outcome would better serve the welfare of the child in question.

The evidence
The main factual dispute between the parents was the amount of contact the F had enjoyed with the children since separation and the reasons behind such contact being sporadic and low level. Preferring the mother's evidence, which included her oral evidence and contemporaneous social media and text messages between her, the father and the paternal grandmother 'D', the court found that there was no evidence of the M being in any way obstructive. Indeed, the court found on the evidence that the F's explanations as to why he had often failed to attend contact / request contact etc. were not entirely satisfactory. In making these findings, the court disagreed with the Children's Guardian who had considered the mother to be obstructive.

The Guardian's position was that if such findings were made however, there was a likelihood that her recommendation regarding relocation might well be different.

Applying the welfare checklist, the court held that the children were too young for their wishes and feelings to be ascertained but that it was likely that they would wish to be cared for primarily by their mother and have contact with their father. With regards to their physical, emotional and educational needs, they would be provided a home whether in the UK or in Utah, and there was no reason why the schools in Utah could not meet their needs. Whilst their emotional need to have a relationship with their father would not be so well met by relocation, contact could be maintained through Skype and their primary carer would be in a far happier situation (the same considerations applying to any change in their circumstances). They may have suffered some harm arising from the difficult relationship between their parents but the court did not think that the father's sporadic contact would be labelled as 'harm'). As to the capability of each parent to meet the children's needs the court found that the mother was more than able to meet all their needs; in contrast there was no real expectation that the F (with his partner and their five children) could care for the children.

With regard to the Payne factors the court found that the mother's application was genuine, and that the father's opposition was largely genuine in that he loved them, although he had 'not succeeded in translating that love into a real commitment to them' [38]. The court found that the M's application was realistic and sufficiently well thought-through. On balance the court was satisfied that whilst granting permission would be an interference in the F's Article 8 rights, it would be proportionate and necessary and in the interests of giving effect to the Article 8 rights of the children. Accordingly M's application was allowed. 

Summary by Esther Liu, barrister, 3PB
___________________________

This Judgment was delivered in private.  The Judge has given leave for this version of the Judgment to be published on condition that (irrespective of what is contained in the Judgment) in any published version of the Judgment the anonymity of the children must be strictly preserved.  All persons, including representatives of the media, must ensure that this condition is strictly complied with.  Failure to do so will be a contempt of court.

Case No: MB16P00439
Neutral Citation Number: [2016] EWHC 3194 (Fam)

THE FAMILY COURT AT MIDDLESBROUGH


Teesside Combined Court
Russell Street
Middlesbrough
TS1 2AE  

17th October 2016


B E F O R E:

MR JUSTICE BODEY

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M


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Compril Limited
Telephone: 01642 232324
Facsimile: 01642 244001
Denmark House
169-173 Stockton Street
Middlehaven
Middlesbrough
TS2 1BY
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Mr Anderson for the Applicant mother.
The Respondent, father, in person

Approved anonymised Judgment
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JUDGMENT
Mr Justice Bodey: 

A.   Introductory
1. This case concerns two children: a boy B who was born on [date stated] 2010, who is six; and a girl C, who was born on [date stated] 2013, who is three.  It is the mother's ("the mother's") application dated 11th April 2016 for permission to relocate the two children from this jurisdiction to the state of Utah in the USA.  The application is strongly opposed by the children's father ("the father"). 

2. The mother has been represented by her solicitor, Mr Adamson, and the father has represented himself.  The CAFCASS officer is Mrs Anne McCourt who has reported on the issue by a report dated 13th September 2016.  I have read the court bundle from cover to cover. 


B.   Background
3. The background can be shortly stated for these purposes.  I will, however, need to set out in a little detail, as best I can because the evidence is not entirely clear, the sequence of the father's contact to the children thus far. 

4. Both the mother and the father are now aged 25.  Both have parental responsibility in respect of both children.  Both children were born here and have been brought up in this country to date. 

5. In 2007, the parties began their relationship when they were both aged 16.  They began to live together in 2008.  In 2009, the mother gave birth to their son, A, but, unhappily, he died in July 2011.  On 26th August 2010, B was born. 

6. Shortly before that, on 1st August 2011, when the parties had been out drinking (one can readily imagine, to help drown their grief following the recent death of A), there was a violent argument between them.  The precise details do not matter but the mother was quite badly injured.  On [a later date], the father pleaded guilty to an offence of Actual Bodily Harm in respect of the incident.  He was sentenced to perform a period of community service.  This, he did, and he also underwent an anger management course.  Sometime after that violent incident, the parties were reconciled and they lived together for a further three years or so.  The mother became pregnant again and, in due course, gave birth to C on 18th February 2013.  In September 2014, the relationship finally broke down.  The father left the family home and shortly got together with his current partner, Ms X.  He left the children in the care of the mother.  At that time, Ms X had four children aged from 6 down to 2. 

7. The mother of B and C has clearly been their primary carer since the parties separated in September 2014 and previously. 

8. Initially, after that separation in September 2014, the father had contact for the first week, comprising twice at tea times and one Friday overnight.  That then became, for the next three weeks, only on a Friday.  Thereafter, the father did not come and there was a gap of many weeks, according to the mother. 

9. By the spring of 2015, it is the mother's case that the father had 'lost interest' in contact.  It was in May 2015 that she met Mr Y, now aged 21, an American citizen and a construction worker who lives in America and to whom she is now married.  It is in order to join him and take up married life with him that she wishes now to move with the children to the United States.  She is 12 weeks pregnant.  Both she and Mr Y share the Mormon religion. 

10. In the summer of 2015, the mother says in her statement that the father's contact was resumed at once a week, essentially, it seems, overnights on Fridays.  According to the mother, however, B, who was by now aged five, began to express reluctance at going to contact with the father because he, B, told the mother that he was being bullied by one of the father's now partner's children.  His anxiety was seemingly compounded when, whilst in the father's care during contact, one of a number of newly-born puppies died in some way and it appears that the father may have levelled what B perceived to be some blame in his, B's, direction. 

11. Accordingly, the mother says that in October 2015, B stopped going to contact with the father.  C went on her own for two or three visits overnight after that; but then, according to the mother, that too ground to a halt when the father stopped coming to collect C.  About a month previously, on 7th September 2015, the father's partner, Ms X, gave birth to their son, Z.  He was born very prematurely.  He had a hole in the heart and was very poorly.  The father says that he took up a lot of their time and energy. 

12. From about October or November 2015 until Christmas 2015, there was almost no contact between the father and the children.  It occurred once or twice.  The mother says that she asked the father at least to telephone them, but he did not do so. 

13. Prior to Christmas 2015, social media messages were exchanged between the mother and the paternal grandmother, D, in which they discussed when the father (and D herself) could see the children over Christmas 2015.  It was agreed between the mother and D, that D would have the children for two hours on Boxing Day when the father would also be able to see them.  However, a contemporaneous message from D to the mother makes it clear that the father did not turn up at D's house to see the children.  He accepts that he did not do so and had gone out with his mates on both Christmas day and Boxing Day.  He says that D did not tell him of the arrangement.  The result was that the children did not see their father at all over Christmas 2015 as the mother had planned for him to do. 

14. From the missed contact on Boxing Day 2015 through until 30th April 2016, as per a handwritten schedule prepared by or on behalf of the mother, there was no contact.  This would be a period of about four months.  The father accepted this in evidence.  He explained it, in effect, by saying that he had been working on and off. 

15. During that period of time and, more specifically, between 19th and 28th January 2016, the mother visited Mr Y in Utah without the children.  On 11th April 2016, the mother's solicitors issued her application as mentioned at the outset of this judgement.  It was preceded by a letter from them to the father dated 18th March 2016, requesting his consent to the children being relocated to the United States.  The father received it but did not reply. 

16. On 30th April, D took the children to the cinema with the father.  On 5th May 2016, the parties were at court for a directions hearing.  The following day the father rang B's school to request a meeting and one was fixed for 11th May 2016.  The mother says and the father accepted in cross-examination, that this was the first time he had ever been to the school.  On 8th May 2016, the children went to the father's for tea. 

17. On 11th May 2016, he had the meeting at school.  The school reports on it by a letter dated 16th September 2016 which states that the mother was informed of the meeting by the school and was happy for the father to receive a school report.  The letter says that the mother engages with the school on a regular basis. 

18. The CAFCASS officer, Mrs McCourt, spoke to Ms T, Parent Support Advisor at the school, who describes the children as "lovely children".  Ms T referred to the mother engaging well with the school and to the father having presented in a very positive manner and being clearly very concerned about the children and their achievements when she met with him (which seems to have been on 11th May 2016).  Ms T spoke of the mother having presented a negative image of the father as being a father having no interest in the children or their achievements.  She, Ms T, also spoke of the children having a genetic medical issue which causes them to have some problems with their coordination, for which the school provides support. 

19. On 16th May 2016, there was going to be contact but it was cancelled by D.  On 15th June 2016, D had the children for four hours during which the father was present. 

20. On 17th June 2016, Mr Y came to England for three months staying with the mother and the two children until 17th September 2016.  That is the only period of time that he and the children have been together thus far, although they Skype on a very regular basis.  It was during that period of time, that the mother became pregnant.  I accept her evidence, in spite of some confusion by her as to the duration of her pregnancy, that Mr Y is the father of her unborn child. 

21. On 25th June 2016, D again had the children for four hours and the father was present.  On 1st July 2016, planned contact was cancelled by the mother because the children were unwell. 

22. On 6th August 2016, the mother and Mr Y were married in this country.  B and C were at the wedding.

23. The father accepts he was not working over the summer of 2016, but he did not ask to see the children.  He did not see them until 28th August 2016, right at the end of the school holiday, when he had them for the afternoon and then, again, on 30th August 2016, when he had them overnight.  Following that contact, B returned to the mother with nasty bruising on his back.  She took a photograph of it which is in the bundle.  The father says that there had been some rough play between all the children on the trampoline.  Notwithstanding those injuries to B, when the father asked the mother if he could collect C from her nursery on Wednesdays and Fridays, the mother agreed.  She told him that C came out of the nursery at around 11.30am.  The mother says, and the father accepts, that he failed to collect C on five such occasions, namely 21st, 23rd, 28th and 30th September and 5th October 2016.  The mother was telephoned by the nursery on these occasions and collected C herself (which she would otherwise have been doing anyway).  The father explained in evidence that his nan had been ill on the first of these occasions and had died on the second of them.  Thereafter, he said he felt that he had 'blown it' (Mr Adamson's expression) and he did not collect C again nor tell the mother.

24. I have, as I say, set out the past contact arrangements in a little detail because the reasons for contact not having been more frequent and more consistent are in issue as between the parties.  It is clear from the synopsis above that it has been very sporadic.  It is the father's case that this is because the mother has been obstructive; whereas it is the mother's case that it is because the father has not committed himself to contact and has just come and gone as it has pleased him with no routine or consistency.  I will state my conclusions on this issue below.


C.   The Applicable Law
25. The modern approach emerges from K v K [2012] 2 FLR 880; Re F [2015] EWCA Civ 882 and Re C [2015] EWCA Civ 1305.  It is abundantly clear that the welfare of each child respectively is the court's paramount consideration when deciding about relocation.  Also, that the welfare checklist in Section 1(3) of the Children Act 1989 is to be applied.  Lord Justice McFarlane referred in Re F to the need for an 'overall comprehensive analysis of the child's welfare seen as a whole, having regard in particular to the circumstances as set out in the relevant welfare checklist'.  The court must weigh up all of the relevant factors; all of the 'pros' and 'cons' of the children's being relocated. 

26. I refer to the judgment of Lady Justice Black in Re C at paragraphs 50 to 61.  There, she speaks between paragraphs 58 and 61 of the need for a balancing of the Article 8 rights of both of the parents and of the children; as did Vos LJ at paragraph 84.  He there referred to the need for a consideration of the proportionality of any proposed interference with any of the Article 8 rights engaged.  At paragraph 85(i) he describes the considerations referred to in the now old case of Payne v Payne [2001] 1 FLR 1052 as being merely a checklist of the sort of factors which will or may need to be weighed in the balance when determining which outcome would better serve the welfare of the child in question.


D.   The Welfare Checklist
27. As to the children's ascertainable wishes and feelings, it is clear that they are not of an age to understand or to be able to weigh up the question of where they might best be brought up.  It may safely be assumed that they would wish to continue to be cared for primarily by their mother and would want to see as much as possible of their father. 

28. As to the children's physical, emotional and educational needs, they clearly need a home: but this is available to them in either country.  I accept the mother's evidence although it is not well evidenced independently, that the mother and Mr Y have Mr Y's mother's consent to the use of his late grandmother's house in Utah, of which the mother has produced a photograph in the bundle.  She has also produced a letter from the relevant Education Department in the USA dated 9th May 2016, which demonstrates that, whilst places could not be guaranteed, the children would be enrolled once it was shown that they had moved into an address in the district.  There is no reason to think that schools in the United States could not support the children with their medical difficulty in the same way as the current school does. 

29. The children's emotional needs would, in a perfect world, best be met by a civil relationship between the parents within which they could enjoy the society of each parent.  But unhappily no such civil relationship exists.  If the mother relocated to the United States, then their emotional needs could be met through regular Skype contact and annual visits, although this would clearly be a much less satisfactory arrangement for them.  On the other hand, if they did relocate, they would have the emotional advantage of being cared for by a mother who was comfortable and satisfied in the new married life which she wishes to make for herself. 

30. As to the likely effect on the children of any change in their circumstances (and I can take both children together) the same points fall to be made.  If they relocated, their relationship with their father would be eroded, but their primary carer would be in a happier and more contented frame of mind with her husband, which would benefit children. 

31. As to the age, sex, background and characteristics of each child, I cannot see that anything needs to be said, save that importantly the children's background thus far has been as English children attending an English school/nursery.  The father says that C, being female, would be treated in an inferior way in Utah and perhaps within the Mormon religion, but there is no evidence at all of this and I cannot just assume it to be so. 

32. As to any harm which either of the children has suffered or is at risk of suffering, I daresay that they have suffered harm from the impression which they will be very likely to have formed of the very difficult relationship between their parents.  It is likely that the inconsistency of the father's contact with them has caused them disappointments (although they will not yet, I suspect, be of an age that this should be regarded as sufficiently serious to be called 'harm'). 

33. As to the capability of each of the parents to meet the children's respective needs, it is clear that the mother can do so well.  The school report of B's school, dated the 12th May 2016, refers to B's attendance being at 94% and to his being a popular member of the class with many friends.  It is said that he appears to enjoy school and that, academically, he is making significant progress in all areas of his development.  He is described as a hard worker and keen to engage in the learning process.  The writer, Ms T, goes onto say:

"… The mother engages well with the school and has attended parents' evenings.  B speaks openly and positively about home with no concerns from the school.  Due to his medical needs, staff monitor him closely.  Staff in school observe the mother to have a loving and warm relationship with him and are really pleased with the progress which he has made this year." 

34. C's nursery reported on 16th May 2016 that the child's attendance and punctuality are similarly good.  She attends in a clean school uniform each day and has good relationships with all the adults.  She plays well with the other children and has a caring nature towards them.  Her attitude to learning is good.  She is always keen to participate in activities in the nursery.  The report goes on:

"C's mother is approachable and shows interest in what C has been doing at the nursery … C is a happy and friendly member of the nursery class.  She enjoys nursery and participates in all activities with energy and enthusiasm." 

35. Those school reports are testament to the quality of the love and care which the mother has been giving to the children.  There is no serious suggestion that the father and Ms X could care for the two children on top of the five children in their household; but there is no reason why they should not look after them adequately for contact, subject, in view of the recent injuries to B, to their being properly supervised. 

36. That completes the welfare checklist.  It is helpful next to reflect on certain of the factors mentioned in Payne v Payne, not as being principles or presumptions but as being part of evaluating the welfare of the children.  The first question is whether the mother's application is genuine in the sense of it is not being motivated by a selfish desire to exclude the father from the children's life. 

37. Having seen and heard the mother and considered all the evidence which I have read, I am satisfied and I find that her application is genuinely motivated by a wish to join her husband in the United States and to raise her family of three (as it will be) there.  I am not persuaded that she is going to these lengths and to this expense (she is not legally aided) for the purpose of diminishing the father's role in the children's lives.  I accept that she believes that children should grow up knowing their natural father and knowing their paternal family, as she told me. 

38. Then there is the question of whether the father's opposition is motivated by a genuine concern for the future of the children's welfare, or whether it is driven by some ulterior motive.  As to this, I am less sure of the situation.  I accept that the father loves his children; but he has not succeeded in translating that love into a real commitment to them as the chronology of contact shows and as I find.  Nevertheless, I consider that he has a genuine wish to see them more regularly than a relocation to the United States would permit and I do not find that he is just being wilfully obstructive in order to make the mother's life more difficult. 

39. Next, as to whether the mother's application is realistic, meaning founded on practical proposals, well researched and investigated.  I find that it is.  She has clearly thought about all aspects of the move and was well on top of all necessary information when she was asked about it in the witness box.  She has made all the usual enquiries that are made in these cases about accommodation, schooling, health care, visas and so forth.  She has budgeted and has satisfied herself that living in the United States on Mr Y's income of $30,000 a year or so net, is doable (allowing for necessary expenditure on schooling, health insurance and their religious tithe).  It seems to me that she would have more money to live on, or at any rate no less, than in her current situation whereby in this country she is on state benefits of £9,600 per annum, net of having her housing paid.  So I am satisfied that that particular aspect of the children's welfare referred to by Lord Justice Thorpe in the case of Payne, is satisfied.  The other matters suggested in Payne v Payne as being relevant to children's welfare have already been dealt with under the heading of the welfare checklist. 


E.   The Children's Guardian
40. Having recorded her interviews with each of the parents, Mrs McCourt then deals with her meeting with the children at the mother's home address in July 2016.  She notes that the children had only met Mr Y for the first time over the summer of 2016 and that C was referring to him as "daddy" within two weeks of their meeting him.  She feels that the situation around a move to America would be confusing for the children and that they are too young to comprehend the full implications of such a move.  Pausing there, when I questioned the mother as I did, effectively on behalf of the father (as he had no lawyer to cross-examine on his behalf) I asked her about C speaking of Mr Y as "daddy".  She told me that C normally calls Mr Y "daddy Tim" and that they are very well aware that the natural father is their real father.  Sometimes, she said, C calls Mr Y "Tim" and sometimes "daddy Tim."  She was not happy, she told me, on learning that Mrs McCourt had heard C calling Mr Y, "daddy."  She told me that she has never said that her husband, Mr Y, is the children's father.  She said that she herself calls him by his first name "Tim" and that she would discourage the children calling him "daddy."  I accept what the mother says about that. 

41. Reverting to Mrs McCourt, she considers that the children need the opportunity of having ongoing relationships with both of their parents.  She notes that both of the parents want to have such relationships with the children and to spend regular time with them.  In reaching a conclusion about why the father's contact has been so sporadic, she says this at paragraphs 39 to 41 of her report:

"It is my view that the father would value the opportunity to spend time with B and C on a regular weekly basis.  However to date this has not happened for two main reasons.  [The father's] youngest child has suffered health problems from birth and spent time in hospital which resulted in [the father] focusing his attention on this child and taking the opportunity to see B and C, when they spend time with their paternal grandmother [D].  On other occasions when the father was in a position to see B and C, the mother would inform him that the children did not wish to spend time with him.  In my view the children are too young to make such decisions for themselves and, with some encouragement from their mother, they would enjoy spending time with their father and his family.  I feel that the mother is not promoting the contact between the children and their father and this [the application to relocate the children] may be an attempt on her behalf to make it easier for her to take the children out of the country.  In my view, this is not prioritising the needs of the children and instead is focusing on her own needs." 

42. In the result, Mrs McCourt's recommendation to the court is that permission to relocate the children should be refused.


F.   Discussion
43. As I have said, an important question is as to why the father's contact has been so irregular.  It turns on the disputed evidence of the mother and father as to whether the mother was difficult about contact or whether the father was uncommitted.  Some assistance can be found, however, from the contemporaneous social messages in the bundle which I have considered in detail.  They have shed some light on the dynamic between the mother and the father as it existed via D, who acted as an intermediary.  I do not see obstructiveness on the mother's part in these messages.  When she was asked things by D about the children, she can be seen replying, for the most part, civilly and reasonably and, again, for the most part, essentially agreeing to what was being requested of her. 

44. Pausing there, there is one place where the mother appears to be being difficult which is at 'miscellaneous 51 and 52' of the bundle.  There, one sees a reference to the father's messages being expressly ignored.  However, the mother was adamant that these were not her messages in response to the father's queries.  She told me that the messages in question, as shown by their colour, required an iPhone and that she has never had an iPhone.  I therefore called for the father's phone, from which it would be apparent to what destination his messages were being sent when they were seemingly being ignored.  It transpired however that his phone is currently in pawn in a local pawn shop.  We lost about half a day whilst efforts were made to retrieve the mobile phone from the pawn shop.  At one point the father was going to retrieve it and bring it to court, but for some ill-explained reason that did not actually happen.  Short of adjourning this hearing for his phone to be retrieved and for any such expertise to be employed as would be necessary to ascertain where he was sending the messages and whether it was the mother who was replying (which nobody asked me to do and which would scarcely be proportionate) I am quite unable to resolve this issue.  The only safe, indeed the only available course, is to put it wholly out of mind which I have done.  I do not consider that, in the grand scheme of things, the point is ultimately anything approaching pivotal. 

45. Reverting to the social media exchanges, I do not see unmet requests for contact amongst them of the type which I would expect from a father who was pushing the mother, via his mother D, for more contact in a proactive way.  I do not see comments to the mother from D along the lines that '… [the father] wants such and such contact', or '…[the father] thinks that you are not being reasonable'.  The sequence of contact (above) itself confirms this impression obtained from the social media exchanges: long gaps when the father was not seeking contact and, as I find, not phoning nor sending cards or gifts (although he told me he would be storing up cards and gifts up until he next saw the children).  He accepts that he has never attended a parent day at school and has only been to the school the once, immediately after the first directions hearing in respect of the mother's application.  He does not support the children, although he says that he buys things for them when they are with him.  It is established on clear evidence that he failed to make any arrangements to see the children over Christmas 2015 and did not, in the event, see them at all.  Whilst he may have good reason for not collecting C from the nursery on the first two occasions (as agreed in September 2016) due to his nan's death, there is no adequate explanation for his going back on the agreement, at least not without telling D and/or the school and getting them so to inform the mother. 

46. I do accept that it would have been a stressful time for the father and Ms X when Z was born so prematurely in September 2015 and was very poorly; but there are ways and means of dealing with other aspects of one's life like seeing one's other children (which need not be very time-consuming) if one is sufficiently committed to doing so.  Mrs McCourt accepted this when I asked her some questions about her report and she accepted that her first suggested explanation for the father's sporadic contact (cited at para 41 above) was not, in fact, a particularly persuasive one. 

47. Other aspects of Mrs McCourt's report which would justify my departing from her recommendation might be summarised briefly as follows:

(1)  Whilst she expressed concern in the witness box regarding the financial arrangements as they would be in the United States of America, she agreed that she had not gone through this aspect with the mother in any depth.  On the other hand, I was satisfied, having heard the mother in evidence, that whilst she and Mr Y will not be over well off in the United States, their financial situation there should be viable. 

(2)  Mrs McCourt did not see or speak to D, the paternal grandmother.  This was a pity.  D has been a key figure in the dynamics of the relationship between the mother and the father and as a go-between in respect of contact.  She would have a very clear impression as to why contact has been so sporadic.  Indeed, she made her views quite clear in writing on social media to the effect that it is sometimes down to her son's disorganisation and lack of consistency: see, for example, 'miscellaneous bundle' page 37 and page 39.  At the first of these reference points, D refers to the father (her son) as 'a nightmare'.  She accepts (I paraphrase) that he has had a lot on his hands with baby Z:

"… but I have told him over and over to make time for B and C … I could shake him sometimes, I really could." 

Then again at 'miscellaneous' 39, responding to the mother's expressing her annoyance with the father because he had not stuck to arrangements, D replied:

"… he can't have it all his way when he isn't being consistent.  He is lucky you are so understanding." 

I accept that these comments are in the nature of hearsay; but they were said right at the very time and I see no reason to consider that they reflect anything other than D's genuine experience of trying to act as a go-between on contact. 

(3)  Mrs McCourt's second suggested explanation for the unsatisfactory contact (cited by me at paragraph 42 above) was that the mother had effectively been difficult about the father seeing the children.  That, however, as she accepted when I asked her some questions, depends on disputed factual issues between the parties.  Such issues must be a matter for the court to determine, having heard and assessed all the evidence, and not a matter for the CAFCASS officer to determine.

48. Speaking generally, there is clearly a spectrum as between on the one hand (a) a respondent who has been having good consistent quality contact which would be lost or eroded to the detriment of the children if the applicant were to be allowed to relocate, and on the other hand (b) a respondent whose contact is either non-existent or irregular and inconsistent, having the potential of causing frictions and frustrations which would be likely to rub off detrimentally on the children.  In the second such situation, the benefits of a proposed relocation may weigh more heavily in the balance than in the first such situation. 

49. Having seen and heard the mother and the father and read all the papers, I am satisfied that the father has not been as committed to contact and nowhere near as proactive about it as he might have been.  If he had been, I find it would have happened much more regularly and more consistently.  There are, I accept, some inconsistencies in the mother's evidence as to the sequence of contact, which I have tried to set out above; but, by and large, I accept her case that she has been generally speaking willing to agree that contact which the father asked for via D.  I accept her evidence that she would want her children to know their father and their paternal family.  Where the evidence of the father and the mother differs, I therefore prefer the mother's.  This finding clearly has an impact on Mrs McCourt's recommendation.  She agreed with me that if I were to find the facts in the way that I have done, then there would be a likelihood that her recommendation about relocation would or could have been different.


G.  Conclusion
50. In the last analysis, the pros and cons here are, as they generally are in relocation cases, essentially as follows.  As to the pros, the mother would be able to live where she wants to live and with her husband, by whom she is pregnant, and with whom she wishes to make her life.  Looked at in isolation (and that is emphatically not the way to look at it), this would be better for the children than if the mother were to have to continue to live in England, kept away from her husband by virtue of what she would regard as the father's unreasonable opposition to her wish to move and make a new life.  As always in these cases, the degree of the mother's contentment, or not, with her own life, will be likely to bear on the best interests of the children.  As to the cons, any relocation would inevitably cause a very considerable erosion in the amount of contact which the children would be able to have with their father and the ease with which they would be able to see him, as compared with if the parties were still living in the same town, as they do at the present time.  The children would also have to move from a familiar environment and adapt to a new school/nursery in a different education system.

51. Carrying out this balance and by reason of the findings which I have made as to the essentially irregular and sporadic nature of the father's contact, I have come to the conclusion that the pros of relocating are weightier than the cons.  I accept Mr Adamson's submission when he described as 'idealised' Mrs McCourt's hopes for future contact if the mother and the children continued to live in this country.  Based on the history and track-record of the case, those hopes are less likely to be fulfilled than likely to be fulfilled.  I pay due respect to Mrs McCourt's opinion.  She has been 14 years a social worker, out of which she has been five years, a Children's Guardian.  However, on this occasion, for the reasons set out above, I consider I can properly depart from her recommendation and, indeed, should do in the best interests of the children.  Her opinion was formed on a basis in her mind that this case involves, in effect, a difficult and obstructive mother; whereas having heard all the evidence and seeing the parties cross-examined (and having cross-examined the mother myself on the father's behalf), I have differed from that particular conclusion. 

52. I am conscious that the mother said that one possibility, if relocation was refused, would be that Mr Y might see his way to relocating here; but she told me of the likely visa difficulties.  In any event, it would be putting her and Mr Y into a situation which is not how they wish to plan their lives and it would be happening for the advantages of contact, when contact looks likely on the history to revert to being irregular and unreliable, once the focus of this application has been taken away.  I am satisfied, looking at the Article 8 rights of all involved that a relocation, although it would be an interference with the father's rights, would be proportionate and necessary and in the interests of giving effect to the Article 8 rights of the children.  For these various reasons and on the basis of the undertakings and conditions which were discussed during the course of the hearing, I do therefore propose to allow this application so that the mother's relocation of the children can go ahead.