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Home > Judgments > 2009 archive

TG (Relocation) [2009] EWHC 3122 (Fam)

Private law children. An application by mother to relocate to a non Hague Convention country, Indonesia, together with father’s application for shared residence. Permission to relocate refused since mother’s proposals were incompatible with the child’s welfare. Shared residence ordered to reflect the reality of arrangements but over and above that the quality of the relationship between the father and the child, and his commitment.

The subject child is a boy T who is 2 ½ years old.  The mother is 38 years old and Indonesian having lived in London for 12 years. T's father is 30 years old and Italian, living in London. At the time of the application, when T was not at nursery, he was spending roughly an equal amount of time with both parents in their homes where he stayed and slept. The mother wished to return to live in Indonesia with T, a move which father contested. The father was prosecuting for the current living arrangements to be enshrined in a shared residence order.

Mr Stephen Bellamy QC sitting as a Deputy High Court Judge applied the welfare principle and followed the guidance set down in Payne v Payne [2001] EWCA 1 Civ 166 in refusing permission to relocate.

The mother's proposals for relocation were not reasonable. She was motivated by selfish objectives on her part considering the father's role in T's life. The mother's proposals were not well thought out or thoroughly researched, and in terms of contact arrangements were not practical and not in T's best interests.

Of further relevance was the mother's approach to father's role in T's life, her capricious behaviour in relation to contact with the father and his family, the manipulative techniques she employed and her lack of commitment to future contact to the father and the paternal family. The mother had failed lamentably to persuade that she could be trusted about what she said about future contact.

Given that Indonesia was a non Hague Convention country the mother's proposal regards providing enforceable security was not well thought out, well researched or practical in the circumstances.

The impact on T of relocation both in the short and long term would adversely impact on his overall welfare as recognised by the CAFCASS officer. The risk to T of the reduction in contact with his father, and his family in Italy, would outweigh any benefit he may gain from living in Indonesia with his mother and having more contact with his maternal family which he did not know. The relocation would not be in the welfare interests of T which are paramount.

The shared residence was entirely in T's best interests and welfare, given the quality of the relationship between the father and T and his commitment.

Alfred Procter, barrister, 1 Garden Court

____________________________

Case No: 2009 EWHC 3122(Fam)
 
IN THE HIGH COURT OF JUSTICE

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 4th November 2009

Before: MR. STEPHEN BELLAMY QC (Sitting as Deputy High Court Judge)

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Re: T.G. (Minor)

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Miss A. Bartholomew (instructed by Messrs Moss Beachley Mullem) for the Applicant Mother

Mr. G. Hopewell  (instructed by Traymans) for the Respondent Father

Hearing Dates 
24th  – 27th August 2009 and 8th October 2009

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JUDGMENT
(As Approved)

Mr STEPHEN BELLAMY QC:
1. These applications all brought under section 8 Children Act 1989 concern T.G. (T) a little boy who is now aged 2 ½ years old. Both his mother and father are currently restrained by undertakings not to remove T from the jurisdiction. Although not first in time both counsel said that the lead application is the mother's for permission to remove T from the jurisdiction to live in her native country of Indonesia. The other applications, which were issued in August 2008, are first the father's for a shared residence order and a prohibited steps order preventing the mother from removing T from the jurisdiction, followed by the mother's for a similar order preventing the father removing T to Italy.

2. The father opposes the mother's application to relocate. The mother opposes the father's application for shared residence whether she is granted permission to relocate T or not, and the discharge of any prohibited steps preventing her removing T, if she is granted permission to relocate.

3. This case is no different from contested applications to permanently relocate children from one jurisdiction to another; they are invariably difficult, with far reaching consequences for the child and the parents; parental emotions are often very high.  This case has however presented some additional difficulties relating to the mother's immigration status in the UK and therefore her entitlement to state benefits, the relevant law of Indonesia and the gradual development of the mother's case during the hearing. 

4. It was also beset with other problems. On the first day of the hearing, half a day of a two day hearing was lost because my trial bundle was incomplete. It was not available until just before 1pm. Secondly, a significant amount of the mother's evidence was produced late. On 13th August she was given permission by the District Judge to file a further statement by 18th September dealing only with matters which would be asked of her in chief. The further statement she was given permission to file containing her evidence in chief is dated 21St August, for a hearing starting on 24th August. No doubt this would be a time saving measure by the District Judge, but on analysis a great deal of this evidence should have been filed by her much earlier. Any application to admit other evidence was reserved to me by the District Judge. I have exercised my discretion to admit further evidence liberally in favour of the mother, allowing fairly extensive evidence in chief, the filing of expert evidence after the close of both parties' cases but before final submissions. Thirdly, the directions for expert evidence on Indonesian law was not complied with, when the mother's solicitors themselves decided the expert's requested fee was unreasonable, notwithstanding the court had certified that the cost was a proper and reasonable disbursement against their public funding certificates.  No correspondence seems to have been entered into with the Legal Services Commission to ascertain their view as to whether this sum requested was reasonable or not, nor were any further court directions sought on this matter.  It seems that all efforts to find such an expert thereafter were abandoned. The absence of this expert evidence was raised on the first day of the hearing as a significant omission for the mother's case, as stated I admitted it very late in the proceedings after mother's counsel herself quickly found an expert on Indonesian law. Fourthly, there were aspects of the mother's UK immigration status and entitlement to financial benefits that were not clear. This was important since it was a major part of her case to relocate that she had no current visa to remain in the UK and no entitlement to state benefits. The father rightly probed this aspect of her case during the hearing and it emerged that the bleak picture she had been sketching might not be so bleak as imagined. During the adjournment I therefore gave leave to both parties to once again jointly instruct the immigration and benefits expert to provide an addendum advice and gave directions for the parties' advocates to try and agree the accurate position regarding both her benefits and visa before the resumed hearing. This was done and a much more positive picture of her entitlements to a visa, permanent rights of residency in the UK and benefits has emerged. 

5. I should say that the causes of deficiencies in the presentation of the mother's case have troubled me. The causes are not clear and I have not received an explanation other than as set out. I will deal with my findings in this respect later.

6. I heard evidence from the mother, the father, the paternal grandmother, who came over from Italy especially for these proceedings, and Ms Frances O'Flynn, CAFCASS Child and Family Reporter. I have read evidence in six statements from the mother, three from the father, one from the paternal grandmother. I received two reports, a letter and manuscript notes from Ms O'Flynn, two reports and emails from Nadine Finch, the joint expert in immigration law and social benefits, and a report from Suhendra Asido, a lawyer who practices in Indonesian family law. I have read various letters and other documents. I have not taken into account the research done on behalf of 'Reunite' by Professor Freeman nor the article by Ms Claire Renton,  both of which appeared in my papers. That is not out of a lack of respect to them, but because in the absence of permission for this category of evidence to be called I decided I should ignore it. Since the evidence finished I have reread all the written documentation placed before the court and my own notebook.  Additionally, I have read various practice direction documents and the closing written submissions, my notes of the oral submissions and agreed notes of the hearing before District Judge Segal on 20 April 2009 and counsel's agreed note agreed at an advocates' meeting on 16th September. Aspects of this case were clearly tested out before me and also I tested out various submissions at the close of the proceedings.  Given the lack of court time for father's counsel to complete final oral submissions I gave him permission, without objection from mother's counsel, to submit any short written points he was unable to deal with, of which he took advantage. Given its peculiarities, this is a case that has very much remained firmly in my mind and I have a very clear recollection of it and my impression of the parties and witnesses.

7. The advantage I gained from this has been important in coming to my findings and decision, which as I said when I adjourned for judgment has been difficult and at times appeared finely balanced. The history, my findings of fact and decisions are based on all this evidence, and my impressions of the witnesses who gave evidence. In the end I must decide the future direction of T's life, on my assessment of the cold facts of the case as I find them, and with an unsentimental assessment of his welfare and his parents' ability to meet his future welfare needs, set in the context of the law and guidance of relocation authority. Therefore it is to the law that I first turn.

The Law
8.  All the applications under consideration engage the paramount welfare of T under Section 1[1], and the relevant provisions of the welfare checklist in Section 1(3), of the Children Act 1989.

9. I have been referred to a number of authorities setting out guidance and the approach to international relocation cases. All important international relocation authorities were considered extensively and authoritatively by the Court of Appeal consisting of the then President, Dame Elizabeth Butler-Sloss and Thorpe LJ in Payne -v- Payne [2001] EWCA (Civil) 166; [2001] 2 WLR 1826 and [2001] 1 FLR 1052) and it is unnecessary to refer to the earlier authorities unless they raise an aspect for guidance not dealt with in Payne.  This has not been urged on me and in my judgment earlier authorities do not arise in this case. I refer to the decision post Payne of Re G (Leave to Remove) [2008] 1 FLR 1587 in which the Court of Appeal confirmed that Payne continues to be good law and that the principles to be considered are as applicable to cases where there is shared residence of a child by parents. 

10. Sections 1(1) and sub-section (3) are so well known that I do not need to recite them but will refer to them as and when appropriate. In following the guidance laid down in Payne, I remind myself that at the end of the analysis it is T's welfare which is paramount. In setting out passages from Payne I do so not ignoring other aspects of the judgments but because these are perhaps the more important ones.

11. In Payne Thorpe L.J. summarised the position as follows:  (a)  The welfare of the children is the paramount consideration. (b) Refusing the primary carer's reasonable proposals for the relocation of her family life is likely to impact on the welfare of her dependent children. Therefore, her application to relocate will be granted unless the court concludes that it is incompatible with the welfare of the children.

12. Having stressed that there is no legal presumption in favour of the reasonable proposal of the primary carer, Thorpe L.J. said this at para. 40:

"To guard against the risk of too perfunctory an investigation resulting from too ready an assumption that the Mother's proposals are necessarily compatible with the child's welfare, I would suggest the following discipline as a prelude to conclusion:  pose the question, 'Is the Mother's application genuine in the sense that it is not motivated by some selfish desire to exclude the father from the child's life?'  Then ask, 'Is the mother's application realistic?' by which I mean, founded on practical proposals, both well researched and investigated? 

If the application fails either of these tests, refusal will inevitably follow. If, however, the application passes these tests, then there must be a careful appraisal of the father's opposition. Is it motivated by genuine concern for the future of the children's welfare, or is it driven by some ulterior motive?  What would be the extent of the detriment to him and his future relationship with the child were the application granted?  To what extent would that be offset by extension of the child's relationships with the maternal family and homeland?  What would be the impact on the mother either as the single parent or as a new wife of a refusal of her realistic proposals? 

The outcome of the second and third appraisals must then be brought into an overriding view of the child's welfare as the paramount consideration, directed by the statutory checklist insofar as appropriate."

13.  The President in her judgment said this:

"In summary, I would suggest that the following considerations should be in the forefront of the mind of a Judge trying one of these difficult cases. They are not, and could not, be exclusive of the other important matters which arise in the individual case to be decided.   All the relevant factors need to be considered, including the points I make below, so far as they are relevant and weighed in the balances. The points I make are obvious, but in view of the arguments presented to us in this case, it may be worthwhile to repeat them.

[a] The welfare of the child is always paramount. 
[b] There is no presumption created by s13 [1][b] in favour of the applicant parent.
[c] The reasonable proposals of a parent with a residence order wishing to live abroad carry great weight. 
[d] Consequently the proposals have to be scrutinised with care and the court needs to be satisfied that there is a genuine motivation for the move and not the intention to bring contact to an end. 
[e] The effect on the applicant parent and the new family of the child of a refusal of leave is very important. 
[f] The effect upon the child of a denial of contact with the other parent and in some cases his family is very important. 
[g] The opportunity for continuing contact between the child and the parent left behind may be very significant."

14.  As is clear from Payne (see also Re. S [2001] EWCA (Civ) 847 Clarke L.J.), the guidance needs to be considered as appropriate in each individual case, and the correct weight attached to it.  Individual cases have their own particular relevant considerations and different aspects of the law applicable will impinge differently in different cases. Therefore, in considering any incompatibility between the interests of the child and the applicant parent, particular importance will attach to different matters as each individual case demands. Amongst these matters will be the effect on the relationship between the child and the remaining parent, and the other persons with whom the child has a relationship. Further, the arrangements and conditions in the country to which it is proposed the child should go, will be important matters to consider.

15.  Thorpe LJ also emphasised the need to consider the impact on the applicant, usually the mother, when he points out at paragraph 31 of his judgment, some of the considerations to be taken into account in the overall balancing exercise. The emotional and psychological well being of the primary carer being an important factor to which great weight must be given.

The History
16. The section is largely uncontroversial save where I have had to determine a factual dispute between the parents. 

17.  The mother is aged 38 years and came to this country from Indonesia first in 1996, and then again in 1997 on a student visa. She speaks English fluently and understands it very well. She studied Chinese literature at university and told me she speaks mandarin, as well as Indonesian. She has lived for the last twelve years in London.  I note that is for the majority of her adult life. Having arrived here on a student visa she did business studies at a West London college, then an IT course for about 3 years, and took dancing lessons. She has worked as a club hostess, a podium dancer, a secretary, and currently is employed in a restaurant. 

18. In 2003 (not 2001 as her statement said) she married an EU citizen from Italy. They separated in about 2006. She began divorce proceedings but as her husband did not acknowledge her petition she has not pursued these. She is therefore still married. Her husband still lives and works in London.

19. In 2005 at aged 25 years, T's father came to London to study music technology. Like the mother's husband he is Italian, although as far as I am aware they do not know each other. He finished his studies earlier this year. He does not work having been concerned with T and these proceedings ever since he finished his studies. It is unlikely he will return to Italy to pursue employment in music as he says the opportunities are much better here. He intends to work freelance from home.

20. T's parents met in July 2006 and started a relationship. They have never lived together. The relationship they formed was not a conventional one. The father has described it in his written evidence as a casual one; the mother in her oral evidence clearly attempted to create the distinct impression it was a purely sexual relationship to which she was not emotionally attached. If that was the impression she meant to convey I do not accept it and it is contrary to what she told Mrs O'Flynn, as set out in her written notes of her meeting with the mother at section C3b, where the mother reveals she did love the father but got "pissed of with him".  There was an emotional tie between them and the mother had been in love with the father. However, their relationship only lasted for a short time and ended during the pregnancy of T, but they continued to see each other periodically up to shortly before T's birth.  Whatever the nature of their relationship by then, the father was present at T's birth.  Further, his name is on the birth certificate and he shares parental responsibility for T jointly and equally with the mother.

21.  The mother has been somewhat itinerant living in different parts of North London. The father has always lived in Tottenham. The father would visit T regularly on a daily basis, save for periods and occasions when the mother would deny him contact either because she complained he was not giving her financial support for T or some other reason. The mother then moved to Tottenham nearer the father and he was able to spend longer periods with T and give more practical support to the mother.

22. A few months after T's birth, the mother returned to work and an Indonesian lady already living in London was employed to look after T as a nanny; the maternal family paid for her services. Several times a week the father would go to see T whilst the mother was at work. He told me he bathed, changed and played with him and learned a lot about caring for a baby. At times he would apparently be alone with T and the nanny away but the mother sometimes would not let T and the father spend time together alone and insisted he could only see T in the presence of the nanny. Her reasons for this are not discernible. 

23.  Then the nanny left, the reasons are neither clear nor relevant. The mother still needed someone to look after T when she was at work so she approached the father and they agreed he would do so. In her statement the mother's says because she no longer had the nanny, she could not work full time and therefore "changed" (B16b) her job to work as a waitress because the hours were flexible. During oral evidence she had said she "lost" her job as a secretary and went to work in the restaurant because the company she worked for closed. There is an obvious contradiction. 

24. From June 2008 therefore the father started to look after T 4 days a week, generally from 6.30 am until the mother returned home, usually about 7 pm but some times as late as 9 to 9.30pm. The father says he had no idea where she was working.

25.  By August 2008 arguments had developed between the parents and these included whether the paternal grandmother and great grandmother, who live near Milan, would be allowed to see T when they visited London in late August. The mother was reluctant to commit herself to whether or not she would allow them to see T or not, but the preponderance of her answers were that they could not. During these arguments the mother also would threaten the father that she would not let him see T, and that she would return to Indonesia taking T with her. I formed a view she was entirely capricious over the grandparents seeing T.

26. The culmination of these arguments came in an incident on 11th August that resulted in the father's face being scratched by the mother. I heard both parents' version of this event, I have read a transcript of what they said to each other recorded on the father's mobile phone and I have read a letter from the police. The mother said his telephone was old and did not have the facility to record and that he brought a tape recorder and camera with him to her house on purpose and threatened he would call the benefit fraud line and report her. I find the transcript has been produced from the father's mobile phone and is accurate.

27. The father says the prelude to this incident had been some text messages exchanged between him and the mother in which she had quite unexpectedly asked him to look after T that day and he had other arrangements. He says he let the mother know his difficulties. She did not like his response and informed him that if he did not look after T, as she demanded his family would not be able to see T when they visited London and that she would text the grandmother and tell her to cancel her flight. In light of those threats the father felt obliged to look after T.  He collected him and took him out and to his own home returning him to his mother's flat later that day.

28.  Some time during 11th August the mother says she telephoned the father to ensure he would have T at her home by 5pm but alleges the father was abusive towards her using swear words, calling her a fat pig, control freak and accused her of being manipulative and made "oinking" noises like a pig down the telephone; she says she was therefore really "worried" before going home and that "eventually he did bring T home" to her. The transcript starts with the mother arriving home and the father and T already in her flat. This is not what the mother says in her written evidence. She says the father "eventually' brought T home to her [B16d]. Further the transcript records the mother confirming she had had a good day, this is quite inconsistent with the abusive words she ascribed to the father earlier that day in a telephone call.  An argument developed, which does not show either parent in a very good light, but during it she pushed the father away and accidentally scratched his face. She says it was the father who called the police in her statement (B16d) but in her oral evidence contradicted this and said she called the police because the father was outside her bedroom window and constantly pressing her bell.  

29.  The father's version is that the mother started to push him out of her flat demanding he leave. She managed to get him out through the door without his shoes on or keys, and that whilst he was trying to retrieve and put his shoes on the mother was continuing to push him and then scratched his face. She ended up telling him he would not see T again. He described fairly extensive scratching to his face and demonstrated the area of his face covered by marks. He said whilst he was outside her flat trying to recover his keys. The mother called the police apparently alleging there was a stranger outside her flat and she was scared.

30. I interject a past event at this stage. In his written evidence the father referred to the mother telling him some time in the past to prostitute himself or sell cocaine to produce money and she had connections to obtain the cocaine. In oral evidence the mother first denied she had said this, but then accepted she had said it but only in humour as a way he could produce some money. She denied she had connections from which he could obtain cocaine to sell drugs.

31. The police arrived but clearly having assessed the situation it was the mother they arrested. She was interviewed under caution and bailed to attend the police station.  In his oral evidence the father told me he did not want to press any charges. Later the mother was told in writing she did not have to surrender to her bail and there was insufficient evidence.  

32.    During cross-examination she admitted,  "of course I was giving as good as I got" during this argument.  She sought to minimise the father's injuries and to persuade me they were minor and accidentally caused. She admitted pushing the father first, claiming he pushed her back, at this point she added he had not provided any money from July to August 2008, and this had annoyed her. She said he was not "a responsible father". 

33. When she gave evidence about this incident she was unabashed, superficially convincing and appeared sincere, despite saying what was and I find is untrue. She has a disarming charm, but tested against the father's evidence, the contradictions in her evidence, the call to the police, her arrest and the transcript of the argument, I reject her evidence of this incident. I am satisfied that the father's evidence on this incident is more likely true and correct than the mother's. Apart from the above another reason for rejecting her evidence on this, is the view I have formed overall about her honesty, trustworthiness, and her reliability, which I will give later.

34. I find he and T were already there when she returned home.  There was no abusive language from the father in a telephone call before she went home. He did ask her if she had had a good day, and she said she had. She started to push him during their argument. She called the police and told them there was a stranger outside her flat knowing full well it was the father who wanted his keys. The police assessed the father as the victim.

35. I remained quite unconvinced by the mother's attempts to minimise the injuries and their accidental cause. I am quite satisfied she deliberately attacked him and scratched his face extensively. I am satisfied that on some earlier occasion she had in the pursuit of more money from him, told him to sell cocaine, that she had connections and to prostitute himself. The transcript of their conversation records:

Mother: Well I don't care where you get the money.
Father:  You asked me to deal in cocaine, to prostitute myself
Mother:  Yeah so? You've got no proof of that – what are you going to tell them.  
Father: Do you understand? You asked me to sell cocaine that you've got connections, do you understand that?

36.  The argument ended with the mother announcing, "You are not seeing T any more" a sentiment she has expressed several times to the father and has threatened him with taking T to live in Indonesia.

37. As a student it is not hard to imagine the father was impecunious and would find making regular financial contributions very difficult. The mother might very well have felt aggrieved about lack of financial support. The father says the mother was always complaining about money and would withhold or threaten to with hold contact unless he gave her money. I accept she acted this way.

38. At the end of August, the paternal grandmother and great grandmother were due to visit from Italy, but due to the mother's repeated threats they would not see T if they came, they cancelled their visit. The mother again denied she had said they could not see T and that she had never had a problem with his family. She said the only thing she had refused was for them to stay at her flat with the father. I do not accept her explanation.  I accept that the mother had sent text messages and told the father that his family would not be able to see T.

39. Shortly after the above incident on 19th August the father applied for joint residence and a prohibited steps orders preventing the mother from taking T out of this jurisdiction. He supported his application with statement, which exhibited the transcript referred to above.  On 20th August the Court on a without notice application made a prohibited steps order preventing T's removal from England and Wales and ordered interim contact once a week for two hours. 

40. The mother did not accept that interim contact order but returned to court seeking contact in a contact centre and a prohibited steps order preventing the father removing T to Italy. She made a statement dated 29th August. At paragraph 11 [B16d] she said: 

" I have no objection to that prohibited steps order being continued.  I accept that in the future maybe in 5 years or so that I may wish to return to my native country of Indonesia.  I have been here for 12 years but if I do go back I accept that I will have to make an application to the Court for an order to permanently remove T from the jurisdiction."

41.  This of course seemed to lay to rest any of her threats to remove T or plans to move to Indonesia for at least 5 years and to meet the father's and no doubt the court's concerns about this.  If that were not the intention she was playing a duplicitous game. A consent order was reached on 29th August (A13m-n).  Both mother and father agreed orders not to remove T from the jurisdiction, and that the father was to have contact each Wednesday for 2 hours, but not at a contact centre as sought by the mother.  This was a serious reduction in the contact he had been enjoying but apparently all that could be agreed. The matter was listed for conciliation on 27th October. 

42. Contact took place on 3rd September but at short notice the father had to go to Italy for three weeks. When he returned at the end of September and wanted to see T, the mother refused unless it took place at a contact centre. This meant that it would be some time before T saw his father, given the time it would take to organise a contact centre and was not in accordance with the consent order.

43. On 9th October the father issued two further applications one for a penal notice to be attached to the contact order, and the other once more for a prohibited steps order since he alleged the mother was again threatening him with removal of T to Indonesia.

44. On 27th October 2008 the Court ordered a report from CAFCASS on residence and contact and once a venue for handover had been identified, contact was by consent agreed at 2 hours weekly, on the basis it could be increased if it went well. There is no suggestion the mother wanted to relocate. The matter was adjourned to 27th February 2009.  

45. Then two days before Christmas on 23rd December 2008 the mother suddenly issued an application for permission to remove T to live in Indonesia. There would not appear to have been any warning. She did not support this application with any statement of evidence until 13th February 2009. The reason in the application for relocating was given at A/26 as:

" I am not a British national I am from Indonesia. T was born in this country and is an Italian …. (illegible) My immigration status is such that my visa and my right to remain in this jurisdiction ends in February 2009. It is a spousal visa and I am not certain that the visa will be extended because I am separated from the Respondent. (sic her husband) I therefore wish to return home to Indonesia and wish to apply for permanent removal of T from this jurisdiction. Permanent removal at this stage in T's life will allow him to commence his education in Indonesia." 

46. On 3rd February 2009 before she had filed any evidence in support of her relocation application the mother was interviewed Mrs O'Flynn and the application to relocate was discussed. Ms O'Flynn says the mother told her that she had "no option" but to relocate to Indonesia because her visa was expiring in February 2009, but if granted an extension, she would remain in the UK. Ms O'Flynn gained the understanding the mother could not work if her visa had expired. The mother acknowledged to Ms O'Flynn how important it was for T to have his father involved in his life but if she had to go to Indonesia she could offer T a better life there based on the practical, emotional and financial support available. Ms O'Flynn had seen the father who opposed T relocating to Indonesia in any circumstances and wanted T to live with him if the mother had no option but to leave.

47. On 13th February the mother made her first statement in support of relocation (B17-21) and unsigned copies were sent to Mrs O'Flynn. The statement said she wanted to go to Indonesia whether or not she obtained a visa extension.  Ms O'Flynn was clearly perplexed by the mother's change of mind. Due to computer problems she could not submit her report so wrote a letter instead to the Court (C1-3).  She expressed concern that in the past T's relationship with his father had been disrupted, mainly due to parental disputes, and made a recommendation for a shared residence order and mediation. She pointed out the important loss for T of his father and that frequent contact was "very important" for a child of this age and was not possible if he relocated to Indonesia. She raised the possibility of a change of residence to the father if the mother had no option but to leave, in which case he would be separated from his mother. She said the mother's position needed clarifying.

48.  Perhaps wisely, mother's own counsel, did not ask the mother in chief about her interview with Ms O'Flynn but the father's counsel did. The mother very clearly denied she had said she would remain in the UK if her visa were extended. She therefore put herself on a direct collision of evidence with Ms O'Flynn, which I have to resolve.

49.  When Ms O'Flynn gave oral evidence she confirmed and stood firm on what the mother had told her. When asked if she had made manuscript notes of her meeting she confirmed and agreed to send them to the court on return to her office. These notes (C3a-f) record that not only that if the visa issue were resolved she would stay but also disclose the mother's views about the father and son relationship. They record the mother as telling Ms O'Flynn that T loves his father who is a "fantastic dad" and he could visit T in Indonesia whenever he wanted. It went on to record the mother saying, " I don't know what I want or what I want to do! Love (sic father) ....was pissed off with him. Did love him but do now in a different way". The note records the mother informing Ms O'Flynn she had been affected by the absence of her father until she was in high school and did not want this for T. She records the mother as saying it would be hard for her to return to Indonesia as she had been in UK a long time.  

50.  I have no hesitation in accepting Ms O'Flynn's evidence and her notes over the mother's conflicting evidence. I accept that the mother was very clearly identifying to Ms O'Flynn that her primary motivation for wishing to return home was the imminent expiration of her visa; the very same reason she had advanced in her application. She very clearly told Ms O'Flynn she would not relocate if her visa extension were granted. But it is also clear from her meeting that notwithstanding what she had said about the support she would have in Indonesia and the better life she could give T there, the mother was very unsure and expressed ambivalent feelings about relocating and recognised the effect it would have on T and the father.  She importantly went on to tell Ms O'Flynn she would love a shared care arrangement with the father.

51.  Three days after seeing Ms O'Flynn on 6th February 2009 the mother through solicitors applied for a further five year permit to remain in the UK.  

52. The mother's first statement in support of relocation was to say the least flimsy and consisted of 7 short paragraphs. It was no surprise that Ms O'Flynn sought greater clarity and detail and the court must have agreed with her, for on 23rd February 2009 DJ Cushing ordered the mother to file her evidence in support by 3rd April 2009. Father was to respond 14 days later.  She ordered more extensive contact to the father to include staying contact from Thursday morning to Friday evening, one and a half days of visiting contact, and extended the CAFCASS remit to include a report on the adequacy of mother's plans for leave to remove.  Expert evidence was ordered in relation to [i] mother's immigration status, her ability to work and claim benefits and [ii] Indonesian family law and the enforceability of any English contact order in Indonesia by 18th May. She certified that the cost of obtaining such an expert was a reasonable and necessary expense on the parties' public funding certificates.

53.  In March 2009 T spent a week with his father in Italy visiting the paternal family. The parents also agreed to extend the contact regime ordered by DJ Cushing so that the father had staying contact each week from 9am on a Tuesday to 6pm on Thursday; this change was eventually incorporated into an order of 20th April 2009. The father's contact was restored to levels nearer to those he had enjoyed before the proceedings started and he was looking after T for about three and a half days a week and sometimes more depending on the mother's commitments.

54. In attempted compliance with DJ Cushing's order, approximately two weeks after she should have filed it and just before another court hearing on 20th April, the mother served on the father an undated statement [B22-24] but without any of the exhibits in support of her application to relocate. The exhibits referred to in the statement did not accompany it and were not served until nearly one month later on 14th May and comprised numerous pages and supporting documents for her extended visa application, and one short letter from one of her brothers saying he will support her and T's daily needs and T's education in Indonesia but without any detail of his means to do so. In summary of her statement she says:

a. she had applied for a new visa;
b. she would live in her mother's house before moving with T at some future date to a flat owned by her mother but bought by her parents for her; the flat was currently rented out to tenants;
c. that her extended family would supply both pastoral and financial support to her;
d. that contact for the father would be difficult but he could visit them in Indonesia and, when older, T could travel to England to see his father during school holidays; that they could speak and see each other over the internet "as and when" T wished to use the internet via a Skype connection. She acknowledged a "mirror order" might be necessary for which her brother would pay. 

55. The order of 20th April is at A36. The contact ordered on 23rd February was varied so that the father had increased contact from 9am Tuesday to at 6pm Thursday, instead of Thursday at 8am to Friday at 5pm.

56. The day after the hearing before DJ Segal T was collected by his father and went to stay with him in accordance with the order until Thursday evening. On Thursday in the early morning an incident occurred which the father referred briefly to his July statement. He was asked for greater detail during his oral evidence.

57. What happened is that whilst T was with him, the father received a text from mother saying she was going to pick T during Thursday. The father telephoned her to find out what time but the mother said she was too busy and could not give him a time. The mother told me she had a day off on Thursday and wanted T back early so she could spend time with him. However, before collecting T from the father she learnt she could not have the day off and had to work. The mother said she therefore sent a text message to the father but knew he had not received it because her mobile phone told her it had not been delivered.  In a confusing piece of evidence she said she had to get from the father's house in Tottenham to her work in Colindale by 11 am but bizarrely via Liverpool Street, Oxford Circus and Harlesden. She did not explain this very clearly except to say she had made arrangements to hand over T at Oxford Circus to her friend (I believe called Carla) to look after whilst she was at work.  Why she had to do this and not simply leave T with his father was not satisfactorily explained. So at 6.30am she arrived unexpectedly and unannounced at the father's home.  When the father opened his door T was in his arms dressed only in a nappy. What follows was all very unhappily in front of T.  The father asked her why she had turned up so early; she replied, somewhat tersely and knowing he had not received her text message,  'check your mobile'. The mother went on to say she wanted to see where T had been staying but the father would not let her into the house. Later she admitted she knew this house well because the father had always lived there. The father said when she arrived the mother was in an agitated state and started screaming at him. He described her as out of control, hysterical and aggressive. She forced her way into his home, pushing him whilst he had T in his arms saying she wanted to see where T slept, which he said was quite reasonable but it was not reasonable to behave in the way she did. Once in the house he said she became even worse when she saw his girlfriend there.  She grabbed T left dressed only in his nappy, stood out on the street and called the police. 

58.  The mother admitted she was upset. She says the father slapped her, but immediately said he would deny this. I do not accept he did. She said his girlfriend was present and then added without prompting "she must have thought I was a bitter person". I cannot think why she would say this unless the mother knew her behaviour was unreasonable and out of control. 

59. Mother's counsel put to the father, no doubt on instructions, that he had 'engineered' the whole situation; he denied this. Nothing could be further from the truth; the whole incident had occurred because of the mother. I do not suggest she had engineered it but it is symptomatic her unpredictable and unreasonable behaviour at times.

60. The father was very restrained giving evidence about this incident, as he was in much of his evidence, which was critical of the mother. He said he was not saying she was not a good mother, that he knew she would find it difficult if his girlfriend was there but said the mother must remember there are three lives involved, not just two, and that T was involved and very upset by her behaviour.  

61. I find that the father's evidence of this incident, corroborated at times by the mother's own evidence is true. Her behaviour was quite bizarre even when she arrived and before she saw the girlfriend, and there was no reason why T's contact should have been curtailed at all and certainly not in such an unpleasant emotionally charged fashion by her. She has offered no understandable explanation as to why in the end she removed T so abruptly and handed him over to a friend to look after. I can quite understand why she herself made the comment that the girlfriend must have thought she was bitter. Her action in grabbing T and taking him outside in just a nappy was extraordinary and was driven by her emotional state. Her entire behaviour that morning was totally inconsiderate of the T's needs.  The entire situation was of her own making and the scene she created was very disturbing and upsetting for T, the father and his girlfriend, as the father has recounted. 

62. This incident well illustrates more general points made by the father that at times the mother behaves unpredictably and irrationally, constantly changes arrangements for T's care, uses contact to suit herself, and as a cheap form of baby sitting for her own convenience. He says and I so find she is at times quite content for anyone to look after T so long as it fits in with her own needs. He says it has made him lose trust and confidence in her in relation to contact arrangements, a reaction I fully understand and I accept as genuine. Moreover he says that even in this jurisdiction contact can be disrupted and unworkable when she behaves in this fashion and he has great fears that it does not bode well for the future if T were removed from the jurisdiction. 

63. Subsequently, the date is not clear, T started to attend a nursery for three days a week. The father says she did this without consulting him. She says she did consult him.  I find she did not consult the father, and unilaterally started T at nursery; she was only informing the father this was happening. This change affected the father's contact by slightly reducing it.   The father mentions this event but characteristically without really complaining.

64. Returning to the court process on 13th July the father made a detailed statement (B83-242) in opposition to the relocation. On 29th July the mother made another short statement (B59-70) concerning a playgroup in Indonesia and exhibited some photographs of the outside of the maternal grandmother's home and said that there was no public funding available to cover the $4000 fee to pay the expert on Indonesian law. The father also made a statement on 31st July and the mother was given permission to file a statement containing the substance of her evidence in chief. She provided a statement dated 21st August that contained detail and documents going to the substance of her application to relocate.

65.  On 6th August the Court accepted an undertaking from the mother, which she signed and lodged on 11th August that she would not remove T from this jurisdiction until she had obtained an order in Indonesia to mirror any order made in this country and ordered the hearing remain fixed for 13th August. At no time has she sought release from this undertaking.

66. On 13th August the applications came before District Judge Robinson who ordered the application to be transferred to the High Court and heard by myself on 24th August. It must have been clear to everyone that the mother's case was not comprehensively set out in her written evidence by this time and permission was granted to the mother to file a statement by 18th August dealing only with her matters she would otherwise be asked in her evidence in chief. She made her statement on 21stAugust.

The Paternal Grandmother
67.  I heard form the paternal grandmother. She had made a statement. (B71-4) She says she would be able to help financially by contributing £200 per month towards T's expenses in London. She accepted the condition, that they live near the father and that she would pay direct to a landlord, was not a condition at all and she would not seek to impose such conditions; her offer came without conditions. She referred to cancelling her visit in August 2008 to see T because of difficulties between the parents.  When T came to Italy she said he had a wonderful time and remarked upon the special bond with is father. She said if T did move to Indonesia he would lose his Italian heritage but she would provide the sum promised to mother so that the father could use it towards his expenses in travelling to Indonesia. She said she already used a web cam to speak to T and her son once or twice a week. She expanded on her extended family and the accommodation available should T come to visit Italy.

68. The grandmother was a young looking woman, delightfully straightforward and honest. She impressed me. She told the court that she and her husband were embarked on an adoption process and hoped to have an adopted child before too long.

The CAFCASS Evidence
69. Ms O'Flynn gave oral evidence besides her reports. Her oral evidence contrasted with the content of her report significantly. She accepted in her evidence that she may have misunderstood the father's stance towards relocation and this had had influenced her report because she had not seen his statement. She further remarked that there were more resources available to the mother and that her options were not as restricted as she had been led to believe. In this she was clearly referring to immigration and benefit entitlements. Her second report leaned towards permission being granted, but she had not seen the father's written evidence when she filed her report and felt he had been resigned to T leaving for Indonesia. Having seen more evidence and thought about it, her oral evidence leaned the other way against relocation. Broadly her concluded opinion was that if T relocated to Indonesia at his age he would loose an important, significant relationship with his father who would not be part of his future development and was such an important loss that it outweighed any benefits of relocating. Current contact between T and his parents was a crucially important part of his life and he was firmly attached to both. At his age however, T was at risk of losing his bond with either parent because of the relatively short time his parents' had had direct involvement in his life.

70. She recognised that the father had been involved in T's life from the outset and on a very regular basis save for times when this had been disrupted, and remarked on the unusually strong bond T had with his father. She was very concerned that this would be lost if he went to Indonesia.

71. She said that by July the mother's plans were not as clear as she would have liked but had since then seen the mother's latest statement which provided more detail. She was aware the mother was saying she wanted to go to Indonesia regardless of her visa status, but his had not always been the case. She was adamant the mother had said in February she would stay if her visa were extended. In answer to a question from Miss Bartholomew she said she had no recollection of the mother saying she would stay if she won the lottery.

72. When asked about the better standard of living, and the material advantages she agreed they may be better for the mother in Indonesia but more important factors were present such as T's need for his father, and that these material advantages did not outweigh the advantages of having a proper relationship with his father.

73. She rightly drew attention to T's diverse cultural heritage. She reminded me that relationships with extended family members are important in enabling children to identify positively with both sides of heir heritage and if he lived in a different country from one of his parents his opportunity for such relationships are significantly reduced.

74. In relation to contact she said that a child of T's age needed regular and frequent contact to his absent parent and this could not be provided from Indonesia. That contact routine for him was crucially important and the loss of it would be a serious one for T.  There would be a fundamental change in the father and son relationship for T if he moved to Indonesia. She said indirect contact was not meaningless but can be very difficult for children to engage in this type of contact and was not the same as seeing their absent parent. 

75. When asked about the mother being genuine, she did seem to question her genuineness, saying it would be a release for the mother from the tensions which existed between her and father.

76. If her application was refused she said she could not say how it would exactly impact on the mother but she added she would be disappointed and distressed but she would want to get over this. It would be difficult for a while and her cooperation might suffer. She commented the mother had been in difficult circumstances in the past and used her resources to move on. Her commitment to T would result in her making the best of the circumstances. She said her disappointment at refusal did not mean it was in T's best interests to relocate. Overall the inference from her evidence was that this would have not have more than a short term impact on the mother.

77. She was very much in favour of shared residence if T remained in London.

Evidence of Foreign Law
78. I admitted the expert evidence of Indonesian law notwithstanding the close of evidence and the parties' cases. I summarise the salient points from the report.

79. There are two types of order that the Courts in Indonesia may make; the first in a law suit inter partes and the second on a request made ex parte where there is a non-dispute. The expert advises the second would be more applicable because the mother would be making the application and agreeing to an order and would invite the father to make a joint application.

80. However there is first an obstacle for the father to overcome. That is his status in Indonesian law since the father of a child born out of wedlock is not recognised and he has no rights; all rights vest in the mother.  The father would therefore have to take separate proceedings himself to establish his status as a legal father of T. There are two ways he could seek to establish this status, which would depend on him making a separate application. The expert describes the first as so complex and probably unachievable; the second is to seek to acknowledged T before the Court which would then if granted create a civil relationship between them. There appears however, to be some uncertainty and doubt as to whether the Indonesian courts would recognise the father as the legal father of T and place his name on T's 'Indonesian' birth certificate.  T does not have an Indonesian birth certificate. Further, whether the father would be able to participate in the process involved, provide the necessary evidence and finance on the evidence is very doubtful. The father and the mother would need to travel to Indonesia to be 'interrogated and interviewed", witnesses and evidence would be required to establish T's paternity, but the nature of this evidence is unclear.

81. Further if established as the 'legal father' both the mother and father would have to go through mediation in Indonesia to solve any dispute. Only if an agreement were reached would the Indonesian court legalise their agreement. If the mother failed to comply with any order (sic a contact order) the father can ask the Indonesian court to warn the mother and proceed to execute its previous decision.

82. Indonesia is not a party to the Hague Convention. An English order would not be recognised in Indonesia. The expert's report raises as many questions as it attempts to answer and the legal situation is far from straight forward.  Problems exist in recognising the father as T's father and if achieved further proceedings to obtain an enforceable order which would encompass contact.  The entire process would take a considerable period of time; Ms Bartholomew suggested a total of 6 months, the father a longer unknown period.  Even if an order is achievable, problems of enforcement are also seemingly protracted. The entire process sounds expensive. Although I have no estimate it is abundantly apparent that neither mother nor father has any spare financial resources to pay for these legal proceedings other than the mother's brother. Overall, the entire process seems to involve a number of imponderables and unknowns which will cost money and time to resolve and may not result in an order which gives this father any measure of security that he will be able to continue to see his son.

Immigration and Benefits Evidence
83. I have read the reports of the expert Nadine Finch and the counsels' agreed note about the mother's immigration and benefits entitlement. I have also read letters from her immigration solicitors. They have pointed out in two letters dated 26th August 2009 (D9 and D11) that the mother is entitled to an extension of her right of residence whilst she remains married to her husband and was only 4 days short of five years residence to acquire a permanent right to reside in the UK and there is nothing preventing her applying for permanent residency subject to evidence from her husband that he is exercising Treaty rights in the UK. They seem to agree with Ms Finch. The mother's evidence is that her husband lives in Acton and is working in Chiswick. Again I summarise the position.

84. A person is subject to immigration control in several situations, but the pertinent point here being that a spouse of an EEA national is not. All the evidence points to the mother remaining the spouse of an EEA national, who is exercising his rights in the UK and is a 'worker' within the meaning of the legislation. She would therefore appear likely to have a legal right to reside in the UK. As such she has an entitlement to child benefit, housing benefit, council tax benefit, income support, tax credits and job seeker's allowance. Some of those are subject to means and personal situation. Even if she were to become divorced from her husband Ms Finch's opinion is that she would still be likely to retain her right of residence and therefore access to those benefits.  Further, if she obtained a permanent right to reside the whole panoply of benefits if appropriate to her situation would become available to her in her own right and not be dependant on her spouse position.

85. The basic position in relation to the mother is that [i] her immigration status is far more favourable than she assumed. Not only would it appear likely she is entitled to the extension of her last visa which expired in February 2009, but with 5 extra days residence in all likelihood she would be entitled to permanent residency in the UK. She would in those circumstances not be subject to immigration controls; [ii] she has not claimed financial benefits in the past, or been refused benefits to which she was entitled, and therefore would have been financially better off; [iii] with an extension of her old visa, a fortiori with a permanent right to reside in the UK, she would be entitled to the wider range of benefits for people not subject to immigration control.
Impressions of the Witnesses

86. Both mother and father deeply love T. They are very contrasting characters. It was difficult to envisage what commonality brought them together in the first place. The mother is a much more assertive, extrovert and emotional person than the father. She is a strong character, feisty and the dominant one of the parents. The evidence made me wonder how emotional stable she is. She is clearly intelligent and hard working. She has lived a more varied life than the father, but then she is several years older. The father was distinctly quiet and unassertive. I agree with Mr Hopewell who wrote in his written submissions:

"He is without being rude to him not the most forceful of characters and the Court may take the view that he was rather overwhelmed by the more forceful personality of the mother. The difference in their personality and temperament could not be more apparent."

87. One other aspect stood out and that was the father was more focused on T's needs and feelings than was the mother, who preponderantly saw matters through her own eyes and needs and not those of T. I have no doubt as to her love and commitment to T, and that she wishes to act in his best interests, but she sees his welfare as inseparable from her own desires and needs and believes what is good for her is good for him. I did not detect in the mother the degree of empathy displayed by the father to the situation. I would not wish to give the impression however that this is universal, constant trait in the mother; I accept that she has mulled over in her own mind the difficulties for T in separating him from his "fantastic dad" with whom he "loves being with" (Ms O'Flynn C/3a and b) by living in Indonesia, but in my judgment this achieved only low priority in the mother's scheme of things when balanced against her own wishes and feelings.  

88. Having heard them give evidence, not just generally but on specific incidents, I also formed a view about their reliability, trustworthiness and sincerity. The mother can appear very persuasive when giving evidence, and possesses a charm but she also has a hard and selfish streak to her personality. I found some of her past behaviour, particularly in relation to T's time with his father, capricious and suited to her's not T's interests.  She can erupt into great anger and her emotions can overwhelm her. Overall she was not a reliable witness and not one I felt I could trust.  I was left wondering how sincere some of her answers were and I found myself questioning her expressed intentions. The father was completely without guile. At one point in his evidence he hesitated before answering and muttered that he did not want to say hurtful things about the mother. He impressed me as reliable, straightforward and honest. He is very committed to T, many fathers in his position would have walked away, and I believe the mother has tried his patience on several occasions and her behaviour in August 2008 was for him the final straw. When asked about contact if his son was living in Indonesia, he became very emotional, said he did not know if he could "cope with it emotionally". I accept that as certainly as an emotion of the moment whether it would prevail over his undoubted commitment to his son's long term welfare, I do not know.

The Father's Case
89. The father had maintained his application for a joint residence order. This is supported by Ms O'Flynn. He strongly opposes T going to live in Indonesia and has said T could live with him if the mother felt she had to return. There is a very strong attachment between father and son. It was described as special. He spent an unusually large amount of time with T whilst mother was working often half or more than half the week. He refers to all the activities he and T do together such as swimming, play groups, parks, and museums.

90. He questions the mother's motives and her changes of mind. He describes the mother as at times unpredictable, irrational, hysterical, and aggressive; further that she changes contact to suit herself, disrupting the contact routine so that it can become quite unworkable. He says she makes unilateral decisions without consultation with him and when for T's sake they should work together and not impose solutions on the other. He says the mother just expects him to agree with her changes over contact and gives him no alternative; if he does not she threatens him that he and his family will not see T. I accept his descriptions of her and her threats to stop all contact. He observes that she has behaved in this way whilst they have both lived near each other in North London and despite court orders. He says he no longer trusts her, lacks any confidence she will honour her promises, and draws the conclusion that her past behaviour does not bode well for any future contact from Indonesia.

91. He criticises the contact she proposes as insufficient and unrealistic and contain not even the bare minimum of any shared travel costs between Europe and Indonesia, knowing he has no money. This fuels his concerns about future contact and that she would exclude him from T's life once she leaves this country. He says the mother did not pursue an expert on Indonesian law for the hearing and is concerned about the enforceability of any contact order made in England in his favour. Now that an expert's report has been made available it is much more complex procedure than he had been led to believe and full of imponderables. Any order even if ultimately made to provide for contact could be a long time away.

92. He says her family could support her financially in this country as well as offering to do so in Indonesia and that his own mother had offered an extra £200 per month support. He says she has expensive taste and always overspends.

93. Since the father could not comment really at all on life in Indonesia of which he has no knowledge, he has concentrated on aspects of life here and how the mother's position is exaggerated by her, but he still questions matters of accommodation, schooling and care arrangements for T if the mother works because she has been accustomed to leaving T's care to others whilst working.  He objects to T being brought up a Muslim not because he wants him to be a Christian but that he wants T to chose for himself later in life and sees this choice being taken away.  

94. Overall, he argues that the mother's plans and proposals are not reasonable, ill thought out and poorly researched and do not amount to the thorough exploration of matters required and she has not properly investigated accommodation, benefits, employment and educational facilities here.

The Mother's Case
95. The mother opposes a joint residence order regardless of where T lives and seeks permission to remove T to live in Indonesia. She compares life here unfavourably with the life she could enjoy in Indonesia. She felt stressed living here, her accommodation was cramped and she shared some facilities with others. Her financial situation had worsened since she lost her job as a secretary/personal assistant and she is struggling financially. She has had difficulty finding a suitable job because her visa was expiring. She said her life would be a total mess if permission were not granted.

96. Initially the mother proposes to live with the maternal grandmother in a four bedroom villa. The maternal grandmother is about 69 to 70 years old. (only at the submissions hearing when an interim removal for a holiday was mooted was it revealed she was in the final stages of Parkinsons disease). I have been shown photographs of its outside and as far as I can see appears suitable for T and his mother. After settling there she and T would move into a two bedroom flat her parents' bought. When that would be is not clear since her evidence was that the existing tenancy had recently been extended. No written evidence of this tenancy or information as to whether she could obtain possession of it. In her final statement she has Exhibit at AW2 a letter from her brother, which reads " actually we are preparing a house for our beloved sister and her son just one block from our house".  The letter also implies that she and T could live in their house. The mother made no reference to this whatever in her evidence. I am left wondering what her true future plans are for accommodation, if a house is being prepared for her.

97. T would attend a bilingual nursery where both Indonesian and English are taught for three days a week. When older T would go to a private Islamic school, which I am informed teaches children of different nationalities. Her brother would finance the fees for both the nursery and the private school.

98. The mother will depend for financial support from her family, until she finds employment, which she intends to do as soon as she has settled down.  In reality the financial support is her brother who lives in Hong Kong. I am unable to assess whether this financial support is affordable or sustainable since no detailed information has been provided as to the family's income, financial needs and resources. She is very optimistic at finding employment; particularly with   American companies. She has not produced any documentary evidence to support this optimism, or the jobs and salaries she might expect and has no actual job offers.

99. The mother's proposals for contact have developed and changed during the hearing and even during final submissions. She had told Ms O'Flynn that she recognised contact would be difficult. Her first proposal was that the father could visit Indonesia and he and T could "spend time" together. She also proposed that when he wished T could speak and see his father over the internet using a Skype connection.  She told me she did not think T should have contact without her. No proposal or offer was forth coming from her as to how the father was going to afford to travel to Indonesia or afford accommodation. She later offered the father accommodation in her or a relatives' family home.  (The father I believe recognised the implications of this and rightly rejected the offer.) Only after the paternal grandmother had given evidence that the £200 per month offered was free of conditions did the mother suggest that this should be used by the father to help meet his expenses. During her evidence she said she was prepared to consider the father taking T on a holiday within Indonesia provided there were safeguards, but did not specify what these safeguards were. When asked about contact outside Indonesia she looked a little alarmed and clearly had not even thought about such contact. She objected to it until T was much older and only when T could travel here without her. She thought T was too young to stay with his father without her.

100.  Ms Bartholomew set out the mother's final proposals for contact at her paragraphs 27 and 28 of her closing written submissions.  Then, during her oral submissions offered contact during the Indonesian school holidays for up to one month in Italy and the UK. This was both surprising and contradicted the mother's oral evidence. This proposal involved the mother, or possibly the father, travelling with T, because he could not be unaccompanied until he was 6 years old, in four one-way flights unless she stayed in Europe.  Alternatively, the father would engage in four one-way flights for each contact period. This proposal was not put forward in evidence and therefore neither explored not tested.

101. The mother has proposed obtaining mirror orders and that she would not remove T until these were in place. Initially she said this would take one month, then three months and latterly six months. 

Discussion
102. Applications to relocate have far reaching implications for children and their families. This one is no different. What is being proposed is a completely different way of life and environment for T that will mould and influence his development and outlook for the rest of his life. The mother's application to relocate had a very slow start before it suddenly speeded up in the month before the final hearing and it did not stop in its development even after the close of evidence. Ms Bartholomew asked me at the close of evidence for permission to instruct an expert on Indonesian law which I declined pointing out she had the permission since February 2009 and if she could find anyone I would consider an application to admit the evidence late. She did and I admitted it but it does not make the situation easier but more complex. I allowed for the admission of further information from the expert on immigration and benefit entitlements. Overall the mother's case and her evidence did not approach the detail and maturity expected in opposed applications of this kind until very late in the court process. It was still being added to in major ways the during final submissions when Ms Bartholomew put forward submissions on contact, mirror orders and the mother remaining in the UK until the outcome of her visa was known; two of those submissions were not in accordance with the mother's own evidence. But these matters I refer to are only symptomatic of this mother's relocation application, which has proceeded, in a rather piecemeal fashion.

103. She even asked for an interim permission to take T to Indonesia because the maternal grandmother was in the final stages of Parkinson's disease. This unfortunate fact was unknown by the father and it had not been disclosed during the hearing therefore any implications for T were not explored. I declined to hear an application for interim removal during final submissions and said it would have to be on notice.

104. First, the application itself was issued the day before Christmas Eve. There was no supporting evidence from the mother for over two months. Even when there was, the mother's statement contained only a bare outline of her case and showed little of the reasonable, realistic and practical proposals that were well researched and investigated as required by the well known guidance in Payne.

105. At the first directions appointment the court ordered the mother to file a statement in support by 3rd April. She did not do so until the day before the next directions appointment on 20th April. When served on the father it was without any of its exhibits; they were not served until about one month later. They consisted in any event mainly of the mother's application for her visa to be extended. Again the information set out within the body of the statement was a poor effort at addressing the relevant evidential requirements. When the father made a detailed statement on 13th July 2009 the mother's proposals still lacked the clarity and detail required. Then just over two weeks before the final hearing the mother provided evidence which went someway towards meeting the evidential burden upon her. Even after this, on the day the final hearing should have taken place, she was given permission to file a statement of her evidence in chief by 18th August. That statement dated 21st August contained further detail. Once he had knowledge of the application it must have been a very anxious and insecure time for the father, who knew nothing about the detail of the proposals. It must have been a despairing father who had to then deal with a deluge of information in the last two to three weeks before the hearing. He has done so without complaint. Nevertheless, as the case developed these matters started to make more sense as the character and personalities of the parents and their behaviour were revealed.

106. The mother submits her reasons are genuine and sincere. She says she is not motivated by a desire to restrict the father's role in T's life. It was her uncertain immigration status that motivated her application coupled with her desire to return to Indonesia and a better lifestyle there, which she regarded as beneficial to herself and T, compared with what was on offer to them in the UK. She may be correct in terms of material benefits, but that is not the entire case as was pointed out by Mrs O'Flynn.

107. Many people in foreign jurisdictions may have the desire to return to the place of their birth. In the context of this case I accept this mother has found life in England difficult at times since T was born. I therefore was sympathetic to her application and seemingly natural and understandable desire to return even after so many years in London to Indonesia. Nevertheless, as her own evidence unfolded I found myself troubled by aspects of her desires, behaviour and motivations. Her case was not assisted by her own evidence in August 2008 when she had clearly stated to the court that she was not intending to return to Indonesia except perhaps several years in the future and her statements to Mrs O'Flynn that she would stay if her immigration status was satisfactorily resolved. 

108. I therefore posed several questions to answer based upon the evidence:

a. Why did the mother change her mind in just over 12 weeks from August to December 2008?  She offers no adequate explanation in her evidence.
b. Why has the mother changed her mind that she would remain if her visa were granted to leaving even if it is?  In evidence she denied she had, which I have rejected, and she offers no explanation.
c. Why was it that the detailed evidence required was only filed in the last three to four weeks before the final hearing in support of an application which had been issued in early December some eight months previously?  I find she had not fully thought about her case and had not properly investigated it, and then found herself having to do so very late in the court process.
d. Why did she terminate the father's contact so early in the morning the day after she had entered into a consent order?  There was no acceptable reason from her.
e. Why did she not leave T with his father that Thursday in April 2009 instead of going to the lengths she did to have him looked after by a friend. I tried hard to understand her evidence on this, but her explanations for these questions are either non-existent or not convincing. There was no acceptable reason.
f. Is her application:

i. an adverse reaction to the father's applications and the on-going court process; I find the answer is an affirmative one.
ii. the carrying out of previously expressed threats to the father during their disputes that he would not see T again and she would take him to live in Indonesia; I regret to say that it is. 
iii. generated by no more than a perceived opportunity that she fixed on, namely her expiring visa; the answer is yes.
iv. reasonable, properly researched and investigated; It certainly was not for several months after she made it and even at the end this was still the case. So the answer is no.

109. The answers I have come to are based on all the evidence and my impressions formed of the mother and the father. In coming to these conclusions I have accepted the father's evidence of their arguments, the mother's threats to prevent the father and his family seeing T, and her threats to take T to live in Indonesia. When confronted by the father's August applications, the mother confirmed to the court that she had no objection to the prohibited steps order continuing, and no future intention of leaving for Indonesia with T at least for five years, but, notwithstanding this was a father who had been looking after his son 3 to 4 days a week, she demanded contact take place as infrequently as only once a week and in a contact centre. There was no justifiable reason for this. She then agreed to an order for unsupervised contact once a week, but by October again unjustifiably revived her demand for a contact centre to supervise the father's contact. She offers no acceptable explanations. Through counsel the father points to the visa explanation in the mother's application to relocate and the information she gave to Ms O'Flynn in February 2009. He submits her visa motive is ill advised and misguided because if she had properly investigated it, she would have known her position was and is far more favourable and positive than she was advancing.  He accepts the mother has a desire for her homeland and family but submits this has suddenly taken on a pre-eminence it did not previously have and was rushed into without her thinking through the consequences, particularly its effect on his relationship and contact with T. Additionally the father criticises the inadequacy of her contact proposals saying they demonstrate such a lack of thought that the inference to be drawn is that the mother has no commitment, is indifferent to his relationship and future contact with T.  He submits her contact proposals were cobbled together and by way of a late submission only of mother's counsel. He concludes that her relocation is a selfish one to exclude the father.

110. It has become apparent to me that the mother is a woman who likes her own way. The mother likes to make decisions about T without consultation with the father.  She does not care or see the need to explain herself. She expects the father to comply and if he does not she threatens to withhold contact. She does not think too deeply about the impact her decisions and actions have on others, especially when her own needs and emotions are involved. The father is very different, a comparatively quiet and uncomplaining man who likes peace and tranquillity. I was surprised he did not complain more about having to deal with the mother's case in the way he had to, but there was a small piece of his evidence that reflects both his general approach to these matters and reveals he does not like to say hurtful things about his son's mother, either because he respects her position as such and does not feel it helps. This tells me something about his applications in August 2008 and his opposition to this relocation application, for only when he sees no other way to guard his son's welfare, did he really stand up to her. He felt forced to make those applications and he genuinely does oppose the mother's application not through spite or illicit motive but because of his son's welfare.

111. In my judgment of the evidence and the impression of the witnesses the mother has sought in the past to control contact to the father, and in August last year to his family. She has sought to control it at times to suit her own needs and desires without thought for its consequences on T and his father. I accept what the father has said about her using contact to suit her own work and social life agenda, such as dancing classes and the threats to withhold it. As I have found she sees herself in control of all decisions about T's life without reference to the father's opinions and does not see the need to consult him. She does not like it when the father does try to assert his views about T.

112. I was quite unimpressed by the mother's evidence and lack of any acceptable explanation for her change of mind between August and December as to her intentions to relocate. On the evidence and impressions I am clear that by December when she realised her visa was expiring, she jumped on this opportunity as a launch pad to justify a return to Indonesia without waiting for the five year period to which she had previously committed to herself. This I find in the absence of any acceptable explanation was a reaction to the proceedings brought by the father and an antipathy towards him and his desire to exert some influence in T's life and development, which she did not want out of her sole control. This is despite what she said to Ms O'Flynn about shared care; that I believe was driven by her own needs for T's physical care.

113. When she informed Ms O'Flynn that if her visa were extended she would stay, she swept aside the other reasons and motivations she now advances in favour of remaining here. She has not adequately explained why she did this and now seeks to revive them.

114. In my judgment the analysis brought to this case by the father is correct. I find her motives have been driven by her own needs and not T's. She is selfishly motivated. I find her main motivation was and has been a combination of her adverse reaction to the father's applications and the on-going court process; the carrying out of previously expressed threats to the father that he and his family would not see T again and she would take him to live in Indonesia.   She does not of course admit to these reasons and neither they nor her ill thought out and poorly investigated visa reason would have been acceptable as the basis for her relocating. She has therefore sought to build a case on a return to her homeland and family, reasons, which for a foreign national are easily made, but which in February she swept aside in favour of remaining. I do not accept these reasons as the driving motivation behind her application.

115. One very important factor is the impact a refusal of leave may have on the mother and I have borne this very much in my mind as I listened to her evidence.  I agree with Ms O'Flynn evidence that she will be disappointed and distressed. This will have an immediate effect but she has the personality and strength of character, and will act in T's interests, to overcome these negative emotions. She claims to be depressed living in London but produced no medical evidence of this. It never featured in her application or statements.  I do not accept this mother would be so affected by a refusal as to adversely impact on T's welfare.

116. I accepted that the mother was entitled to supplement her case by the addition of these reasons and motivations before and during the final hearing and if genuine that I must deal with those as part of my overall balancing exercise. She has said she wants to return to have the financial, emotional and practical support of her family who will assist her in T's care and upbringing, where she can seek work, and she added orally that she wanted to meet someone and get married. It is after all her homeland. She says she has friends here but does not feel they can give her the emotional support her family could; that she misses her family and Indonesia. Overall she and T could have a better quality of life there. Generally, I can quite understand those reasons but from the analysis above I do not accept these as really genuinely motivating this mother over and above the other reasons I have found do motivate her. She has presented a case, which in part involved a comparison between her status and standard of living in the UK with that in Indonesia but without properly or fully claiming or investigating her status and entitlements to extra finances through benefits.

117. If I acceded to the relocation both his life and contact would change drastically for T.  I am sure he would miss his father and be confused as to why he was not seeing him. He has a dual heritage and culture. Both sides need to be fostered. He would quickly lose the Italian side if living in Indonesia. His relationship with his father and paternal family could only be maintained by contact not just in Indonesia but by contact in Europe. At his age I am told he cannot travel unaccompanied and an adult would have to travel with him. This would involve either mother or father making four flights for each contact or two if the mother did the transportation and remained in Europe during the contact period. None of the practicalities of this was investigated adequately during the hearing because the mother ruled out contact in Europe. The expenses involved were not examined and I have serious doubts they could be met. The mother has not offered any financial contribution.

118. This mother is not very concerned at T maintaining a relationship with his father and would do little to make it work. I do not accept she would facilitate trouble free contact.  I detected no commitment or sincerity in her contact proposals and I believe she would be awkward and difficult over contact between T and his father. There is the past history of T's contact being disrupted not just simply by parental dispute but by the mother's unnecessary interference and capricious and emotional behaviour which as the father described was at times out of control.  She had not paid this "very important" (per the President in Payne) factor much attention before launching her application and only began to seriously address it and its practical implications during evidence.  The shifts, which have occurred in her contact position during the hearing, are to improve her chances of relocating T to Indonesia, and not out of a concern that a father and son relationship is maintained. The relationship he has built up has been built up by regular and frequent contact would be lost as explained by Ms O'Flynn. I doubt it would have taken place at the level it did if it had not suited this mother.

119. I therefore accept the father's argument that given the difficulties she has caused over contact in London it would be even more difficult with thousands of miles between them. Direct contact would either not happen or be fraught with problems. Additionally, I not am satisfied that there is the money available to finance a reasonable and sustainable amount of contact. The mother had no proposals to how contact could be financed save for the paternal grandmother's offer of £200 per month support.

120. This is an application to relocate to a non Hague Convention country. The mother gave an undertaking she would not attempt to leave the UK until a mirror order was in place. She was right to do so.  Indonesian orders, which could be enforced, would go someway to reducing serious concerns for contact, but I am not persuaded that this will be an easy process; it appears complex, prolonged and potentially expensive. Ms Bartholomew accepted that the expert's advice raised "a few issues which on the face of it complicate matters such as the need for the father to acknowledge T." As aspects of the expert's advice on Indonesian law were explored it became clear that the situation was more complicated than I think Ms Bartholomew had understood; perhaps this was the reason she increased the time span for resolving these to six months. This time estimate became no more than informed guess work and I am not sure that orders would be obtained, if at all, even in that period. The father would first have to be recognised as such before any orders can be made. It seems that both parents would have to go to Indonesia ahead of any orders being made. Some form of mediation process, which might in this case be easy for the mother to engage in because it would help with her leaving the UK, may be required before orders are made. But all of this would cost both time and money, which I am not satisfied is available to this family, or to T in terms of the time it would take. Even at the end of the process I am not clear what orders the Indonesian courts might be prepared to make, and if made and not complied with how long it would take to enforce them, or what powers of variation the courts there would have.  If this expert advice had been obtained when it should, some of these issues could perhaps have been resolved before trial. 
 
121. All of these matters concerning contact should have been at the forefront of the mother's thinking and proposals; they were not as Ms Bartholomew conceded orally in submissions. When, I queried with her the mother's approach to her contact proposals she said: "the mother's mind had been dominated by how much better life for T would be in Indonesia rather than the contact he would have with his father." That was a very telling submission about the mother's actual approach and attitude to a factor the guidance in Payne, Ms O'Flynn, and I considered, of such great importance to T's welfare and the order being sought. She should have presented a plan which was not so ill-considered and which would give the father, and the court, some measure of confidence that their relationship would be maintained albeit in a very different way than that which would be the case if T remained living in England.

122. Ms O'Flynn advised the court on the contact that would be in T's best interests at his age and stage of development. I agree with her advice and recommendations. Naturally, contact from Indonesia however, could not begin to approach that level of frequency but it is a useful but not decisive comparative to consider against the sort of contact from Indonesia which might meet T's welfare needs. Over and above this, I accept the welfare views and opinions of Ms O'Flynn as to the consequences of the kind of contact proposed for T if in Indonesia and her views on T's best interests. The whole special nature of the father and son relationship, which currently exists, would change fundamentally and regrettably for the worse. T needs the regularity and frequency Ms O'Flynn referred to because he is of an age and stage of development where that would easily be lost to him in the medium to long term. In my view it is premature to separate him from his father by such a distance where a meaningful relationship could not be maintained. No persuasive reasons for not accepting Ms O'Flynn's welfare recommendations have been advanced.

123. It is clear I have not formed a favourable impression of the mother in several ways set out above.  However, despite the criticisms I have made of her I believe she would try to do her best for T but her lack of clarity about these matters makes me question how well she actually has thought about her proposals. In some respects she has not adequately seen the problems involved. Her unreliable evidence, inconsistencies, contradictions and shifts in position have led me gradually to the view that I cannot trust her. I could not accept at face value her reasons for relocating. I found the father honest, child focused and with T's best interests to the forefront of his mind in ways I did not find in the mother. He was a reliable historian.

Overall Conclusions
124. Despite these and other short comings in her evidence and case I have to nevertheless, consider her application in the context of the law, in particular section 1 Children Act and the approach set out in Payne and balance all the competing factors. In conclusion, I do not consider that the mother's proposals are reasonable, neither are they a proportionate response to her situation here and that which it would be in Indonesia, if relocation were permitted. There is no presumption in favour of the primary carer's reasonable proposals.  Although T has had his main base with his mother his care has been effectively shared by the father, mother and to some extent others. Her position as primary carer is only marginal compared with the time he has spent in his father's care, indeed at times he spent more time in his father's care than his mother's. Although I have said the mother is only marginally T's primary carer I have not let that factor influence my decision; if I had considered it in T's welfare to live with her in Indonesia I would have granted permission.

125. She is motivated by selfish objectives on her part concerning the father's role in T's life. Further, I do not consider her proposals well thought out or thoroughly researched and so far as contact is concerned I am not satisfied they are practical and in T's best interests. I consider her proposals overall are incompatible with T's welfare.

126. T would in the short term find the changes involved confusing. He would lose the benefits he currently has, and the opportunity to continue to build a strong and valuable relationship with his father that will be of value in his own childhood and adult life and for which the mother can provide no substitute. On my assessment of the evidence there is one constant in the mother's thinking, namely a desire to rid herself as much as possible of the father's influence in her and T's life.

127. Although the contact proposals have concerned me greatly and been influential they are by no means a decisive part in my decision. That has been made on an assessment of motivation, the guidance of Payne including T's overall welfare. This includes the mother's approach to the father's role in T's life, her capricious behaviour in relation to contact to the father and his family, the manipulative techniques she employed, and her lack of commitment to future contact to the father and paternal family. The mother has failed lamentably to persuade me I can trust what she says about future contact.

128. If I had granted permission, I consider some form of enforceable security essential in this case. In the context of a relocation application this is important where the English order is not recognised or enforceable in the foreign jurisdiction, where that country is not a party to the Hague Convention and where the obtaining of orders is complex and their outcome unknown. There are a series of processes to go through from the acknowledgment of the father as the legal father, to some form of mirror order and then enforcement issues to consider. From Europe this may be very difficult to achieve.  The time involved in this process will be such that T's life will have moved on and the welfare considerations may be very different than the present. The mother has failed to persuade me that this aspect of her proposal is either well thought out or well researched or practical in the circumstances. 

129. I also in the particular circumstances of this case accept that the impact on T would both in the short and long term adversely impact on his overall welfare as recognised by Ms O'Flynn.  I accept the importance of this evidence and have attached important weight to it.  The risk to him of the reduction in his contact with his father, and his family in Italy, would outweigh any benefit he may gain from living in Indonesia with his mother and having more contact with his maternal family whom he does not know. Without minimising their significance the family consists of one brother and his family and a grandmother who is in the final stages of Parkinsons and sadly may only be a temporary person in T's life. That would be a loss to him, on top of the loss he would feel of his father.

130. In all the circumstances of this case I do not consider relocation to Indonesia would be in the welfare interests of T which are paramount. I refuse the mother's application to permanently remove T to live in Indonesia.
 
131.  As to the shared residence application the mother opposed this regardless of whether permission was granted or not for T to relocate to Indonesia. I can understand her submission if T were relocated to Indonesia that a shared residence order might not be appropriate, but do not understand it in the context of him remaining in London. Mother's avowal of no shared residence order is in contrast to what she had told Ms O'Flynn that she would "love a shared care arrangement", even though I believe she was thinking of practical shared care. It was submitted one should not be made if T remained in London because the mother had been his primary carer and that he had only started to share care after June 2008. That in itself is not an answer to the application. Primary care does not in itself justify a shared residence order not being made; the issue is decided on paramount welfare and the welfare checklist.  As to the father's care compared with the mother's, even if it were measured in terms of time I would not in the circumstances of this case regard the mother as more than marginally T's primary carer. The father, in the time the nanny was in place, spent as much quality time with T as did the mother who was working full time. Once she had left the father was looking after T for more time than the mother. There was a break in father's care caused by the parents' disagreement about contact and the court process but by early Spring 2009 the father's care was back to levels previously experienced by T. It has only reduced slightly by virtue of mother placing T in a nursery. Over and above those time factors it is the quality of the relationship between father and T and his commitment, which needs to be acknowledged. If T remains living in London, Ms O'Flynn recommended such an order would be entirely in T's best interests and welfare. The reasons advanced against do not amount to adequate reasons to disagree with that recommendation and indeed I fully agree with it. The ability of the parents as parents are not in doubt, T's needs are reflected currently in the several days a week he spends with his father as well as his mother. The continuance of those needs and the continued building of his attachment and relationships with them needs to continue along the lines of the routine he has currently. That is, when he is not at nursery he spends about an equal amount of time with both parents in their own homes where he stays and sleeps. All the nursery/school holidays should be shared equally. The father when he obtains work says this will be freelance and based on his home, he is therefore very well able to practically care for T. The mother has work outside the home and it is not so easy for her. I do not intend to be specific at this stage as to the precise times and days of the week and would expect the parents to be able to agree the days he attends nursery and therefore the days when he should be with one or the other. If they cannot agree then the court will have to define the times and days. Further, a refusal of such an order would not reflect the actual position of T's life in London.

132. I therefore make a shared residence order to the mother and the father on such terms as to times and days in accordance with the above. I should point out that again that the father and mother have joint and equal parental responsibility for T even without the joint residence order I have made.  It is incumbent on both of them to consult the other on matters of importance in T's life and reach an accord if possible.  It is not for either of them to unilaterally impose a situation on the other. That is a legal reality, which the mother in particular needs to absorb as well as observe.

133. As to the mother's application for temporary leave to take T to Indonesia that will have to be the subject of an application and considered if appropriate in the light of this judgment, any appropriate safeguards, and T's paramount welfare, unless agreed between the parties.

Stephen Bellamy QC