Z (A Child)  EWHC 139 (Fam)
Application by mother for a residence order in respect of the parties' daughter and for permission to relocate her from UK to Australia. Applications granted. Payne v Payne (2001) and K v K (2011) considered.
Shortly after divorce proceedings began, an Australian mother ('M') applied in London for permission to relocate with her 6 year old daughter ('Z') to Australia. The Belgian father ('F'), who largely participated in proceedings through his lawyers in Belgium on account of a belief that he might be at risk of being imprisoned by reason of a port alert made in relation to him, did not accept that the court of England and Wales had jurisdiction.
After a holiday with her father in Belgium, F had not returned Z. Parallel proceedings for residence and return were commenced. Ultimately, an order was made for Z's return to the UK, and shortly afterwards HHJ Coates declared that the court of England and Wales was first seised, a declaration which was never appealed by F.
M proposed to go to Australia because her family lived there and she felt isolated in this country. She had job offers, and had found a school for Z. She proposed contact by Skype and direct contact in Australia and in England. F considered that if Z were allowed to go to Australia, he would not see her. He sought that she should return to Belgium. Through his lawyers' submissions to the court, he alleged court bias, and sought that the matter should be adjourned so that he could attend by video link.
Pauffley J refuted the allegation of bias. In rejecting the application for an adjournment, the judge noted the efforts that had been made to accommodate the father's request for video link, the extensive delay that had occurred since the application some 18 months earlier, and the encouragement that had been given to F throughout proceedings to engage and to accept the jurisdiction of the English court.
The judge considered without hesitation that Z's welfare needs would be satisfied by a residence order to her mother. She bore in mind the events surrounding Z's unlawful retention by F in Belgium, when police were involved in returning Z to her mother.
She considered the guidance in Payne v Payne, as further considered in K v K. She found that M's motivation was pure, that her proposals were realistic, and that M did not seek to defeat the relationship Z had with her father. She further considered that M would be shattered by a refusal of her application. She concluded that she was in no doubt as to where Z's best interests lay, and declared that Z would become habitually resident in Australia six weeks after her arrival there. Until the Australian court adopted jurisdiction, she declared that the English court would retain authority.
Summary by Gillon Cameron, barrister, 14 Gray's Inn Square
Neutral Citation Number:  EWHC 139 (Fam)
Case No: FD08P00257
IN THE HIGH COURT OF JUSTICE
Royal Courts of Justice
Strand, London, WC2A 2LL
MRS JUSTICE PAUFFLEY
Re Z (a child)
Miss Jacqueline Renton instructed by Oliver Fisher for the Applicant mother
The father did not appear and was not represented
Mr Jeremy Ford for the Children's Guardian, Sarah Vivian
Hearing dates: 30th and 31st January 2012
Copies of this version as handed down may be treated as authentic.
The judge hereby gives leave for it to be reported.
The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.
Mrs Justice Pauffley :
1. As long ago as 18th June 2010, the mother in these private law proceedings applied for permission to relocate with the only child of the family ("Z") to Australia. It has not been possible to confront that application until now because firstly in September 2010 the child was wrongfully retained in Belgium by her father and secondly, the process of registering and enforcing the return order made here on 15th September 2010 was not completed until a judgment of the Antwerp Appeal Court was delivered on 22nd June 2011.
2. Z was handed over to her mother – in what were undoubtedly highly stressful circumstances – on 1st July 2011. Since then, they have been living in London awaiting a determination of these proceedings.
3. In the period since August 2011, when he lost his English public funding certificate, the father has not been in London – either in person or by an advocate – to participate directly in the dispute. Instead, he has chosen to remain in Belgium. The pattern has been that either on the morning of a hearing or a day or two beforehand, the father's Belgian lawyers, Bert Beelen Advocaten, have written to the court outlining their client's position.
4. The consistent thread running through all of the father's communications with the court and with the child's Cafcass guardian is that he does not and will not accept the courts of England and Wales as having jurisdiction over matters of parental responsibility.
5. The father's other theme, consistently but quite wrongly maintained throughout the seven months since the Antwerp Appeal Court judgment, is that he would be at risk of some criminal or civil sanction were he to come to this country; and thus he has not appeared. Nothing said on the face of court orders or in correspondence by the mother's reputable Solicitors has made the slightest difference. The father's stated belief is that the existence of a port alert and passport order somehow places him in jeopardy of losing his liberty if he comes to England. The consequence for the hearing is obvious and very unusual against a background of hotly contested court conflict across two jurisdictions throughout almost all of the last four years. More poignantly, the father has not had face to face contact with Z – who would love to see him other than via a computer screen – at any time during the past seven months.
6. Z was born on 14th December 2005 so that she is 6 years old. Her mother is an Australian woman. Z's father is Belgian. The parents were married in Australia in December 2005, a fortnight or so before Z was born. The family relocated to Belgium in March 2006. Throughout the remainder of their short marriage which was in serious difficulties by the autumn of 2007, they lived in London, Belgium and Belfast. Scant perusal of the chronology reveals they were never settled in one place for very long.
7. It is unnecessary for present purposes to relate each and every event since the parents' dispute began four years ago now. There is a detailed chronology within the papers and, in addition, Miss Jacqueline Renton's admirable Skeleton Arguments recount the various incidents of note. What follows is an essential framework so as to give an appropriate context to my decisions.
8. In January 2008, the mother began divorce proceedings in London. Almost simultaneously, she issued an application for residence and for permission to permanently relocate to Australia dated 23rd January 2008. In February of the same year, the father started an application under the Hague Convention seeking Z's summary return to Belgium, claiming the mother had wrongly removed her from that jurisdiction on 21st October 2007.
9. On 30th June 2008, Parker J found – having heard oral evidence, in English, from both parties – that Z had been habitually resident in England and Wales since 23rd July 2007. Accordingly, the mother's action in bringing Z here on 21st October was found to have been lawful and the application for summary return to Belgium was dismissed.
10. The father appealed but there was an adjournment to provide time for mediation. During the course of negotiations, the mother indicated she would no longer pursue her application to relocate; she proposed a shared residence order on the basis that Z would regularly spend weekends and half of her school holidays with the father in Belgium and England. The mother's offer was subject to the father accepting that any future litigation would be in this country rather than Belgium.
11. The attempt at mediation did not succeed. The father's appeal was pursued but dismissed by the Court of Appeal on 30th July 2009. On 3rd August 2009, the mother withdrew her application to relocate, but her residence application remained extant thereafter and throughout the course of these proceedings. The father's Petition to the House of Lords was rejected on 18th December 2009.
12. On 15th June 2010, the father issued an application for shared residence. At a subsequent conciliation appointment, the mother made clear that her plans had changed; she wished, after all, to permanently relocate with Z to Australia.
13. Pursuant to an order made on 17th June 2010, Z travelled to Belgium in August for what was to have been a three and a half week holiday with her father. She should have been back in London by 9th September. When she was not returned the mother began the lengthy and, at times, frustrating exercise of requesting the Belgian courts to recognise and enforce the Annex II Certificates issued in this court pursuant to the provisions of Brussels II revised.
14. There were then two almost parallel sets of proceedings in Belgium. The father brought an application in the Mechelen Court (equivalent to a County Court here) in which he obtained an ex parte residence order. The mother was the applicant in the Antwerp Court (equivalent to the English High Court) in which Brussels II revised registration and enforcement were sought.
15. The father told the judge in Mechelen that Z had been living with him in Belgium and attending Primary School there since 2008. Although, later, the judge made clear he had been misled at the ex parte hearing, unaware as he was of the existence of English court orders, he did not discharge the order but adjourned pending the outcome of the mother's application for recognition and enforcement in Antwerp.
16. On 14th March 2011, the first instance Antwerp Court refused to recognise and enforce the order of the English court in part at least because of the existence of the Mechelen order.
17. On 16th May 2011, the mother successfully applied for the Mechelen order to be annulled or set aside.
18. On 22nd June 2011, the Antwerp Appeal Court overturned the first instance decision and, accordingly, recognised and enforced the 15th September 2010 return order. For five days or so thereafter, the father and Z went into hiding because he would not accept the decision. Eventually and only after police involvement, Z was handed over to her mother at a police station in extraordinarily distressing circumstances. Z and her mother came back to London on 1st July.
19. On 21st September 2011, Her Honour Judge Coates, sitting as a Deputy High Court Judge, declared that the courts of England and Wales were first seised; and also that the child had been habitually resident here since 23rd January 2008, relying upon the findings of Parker J (which determined that Z had been habitually resident here since 23rd July 2007). At no stage, has the father sought to appeal those declarations.
20. On 15th November 2011, the father's appeal of the Mechelen Court's decision (discharging its earlier residence order in his favour) was dismissed by the Court of Appeal in Antwerp on the basis that the Belgian Court did not have jurisdiction.
21. There is no suggestion from any quarter that there are extant proceedings in Belgium either in relation to the jurisdiction issue or welfare questions affecting Z.
The parties' positions
22. The mother's position is straightforward. She wishes to take Z to live in Australia because that is where all of her family now live. She feels isolated in this country and wants to return to the country which she regards as home so that she can be supported by her relatives and friends. She considers that in Australia she will be able to find a good job and build a successful life for herself and Z.
23. If permission is given, in the first instance she would live with the maternal grandfather in the Brisbane family home. She has two job offers which are still open to her in PR and marketing; and she is a qualified nurse in Australia should she need a fall back position. Z would be enrolled in a State School and start to attend there at about the end of February.
24. The mother's proposals for contact fall into two categories – Skype sessions which she suggests should be on two occasions each week, for up to two hours, so longer than the current arrangement; and direct contact, under supervision, in Australia and England the precise arrangements to be made at some stage in the future.
25. The father is opposed to the relocation application but, as before, when the application for a holiday in Australia was under consideration – it is quite a challenge to decipher the underlying basis of his opposition.
26. The letter from Bert Beelen Advocaten, received by my clerk at about 9.50am on the first day of the hearing, 30th January, draws attention to the father's difficulty in funding representation, to the measures which are seen as a bar upon the father in travelling to London to participate at the hearing or for contact and there are suggestions that the decision taken by the Appeal Court in Belgium was improperly influenced by a Belgian politician as well as repeated claims that the mother has misled and lied to the courts. In addition, it is suggested that I have been partial in the my decision making, that I have been influenced by personal emotions; that no innocent, impartial bystander is allowed to be present at a hearing of this kind and that accordingly, I should recuse myself from the case. The letter ends with the assertion that the father would be prejudiced if the hearing fixed for 30th and 31st January were to proceed "without the possibility" of being able to represent himself in person. Beelen Advocaten ends the letter by suggesting the "sole solution... left to respect his (the father's) defence is by way of a video link" and they argue for an adjournment on the basis that there would be no prejudice to the mother because there is no urgency. The father is, according to the letter, trying to defend his daughter's right to grow up between both parents.
27. The father's 27th January email to Ms Vivian, Z's Cafcass guardian, which extends to 8 pages or so of typescript is more focussed upon welfare issues – because Ms Vivian invited answers to a series of questions. However, that is not to say the father's message is exclusively confined to 'best interests' issues because, as before, he is not able to withhold commentary upon jurisdiction or his grievances with the decisions taken both here and in the courts of Belgium. The father reiterates that he does not recognise the jurisdiction of this court to decide Z's future. Since July 2011, he has indicated an intention to pursue a remedy in the European Court of Human Rights [I note, however, that to date no supporting documents have emerged]. He suggests shared residency between two countries is "logistically impossible" and proposes Z should be brought up in Belgium with contact to her mother both in England and Australia. The father says Z could continue her living routine in Belgium, with friends, paternal family and where her environment is calm, cultural, green and in the central hub of Europe. Belgium is, says the father, one of the best places for children to grow up according to a recent UNICEF report.
28. In response to the mother's application to relocate, the father makes extensive reference to her historic concession that she would abandon the application to live in Australia, suggesting her current stance is an indicator that she no longer accords priority to Z's welfare. He says he sees the application as "nothing more than .... a 'lawful' instrument to kidnap Z and alienate the relation(ship) between daughter and father ...". The father refers to all those occasions when, according to him, the mother has misled, lied and deceived him and suggests that when Z is sent to Australia it will be the end of contact. Then, he reverts to his assertions about habitual residence, saying that since she was 3 months old, Z has been domiciled and living in Belgium.
29. There is repetition of the assertion that because of the port alert and passport order, the father has been obstructed from coming to the UK for contact; and he suggests that I do not wish for "personal contact" to occur.
30. In response to a question about the father's contact proposals, he contends that Z would benefit greatly from living in Belgium. The father refers to the education system there which is of a very high standard and the fact that students are not required to pay tuition fees. The father says that Z was a happy child when she lived in Belgium. She really enjoyed her school in the nearby town where she had many friends and could easily reintegrate within the Belgian education system. Z, says the father, loved playing in her grandmother's large garden where she would play on the trampoline and was growing vegetables. She also enjoyed riding her bicycle along the canal towpaths.
31. In response to Ms Vivian's question relating to the future of contact if Z were to be living in Australia, the father suggests there would be no possibility of him seeing her until she attained an age to take her own initiatives. He does not trust in anything the mother, her family or the English court declares: "Given the past it would be bluntly naïve to do so". The father does not believe the hostility between himself and the mother will disappear and given the history, it is he says "impossible to further trust". He suggests contact, both quantitatively and qualitatively would never be like it would be between Belgium and England. All the ingredients are there, he says for this case to become another negative statistic. Removing Z to Australia would result in her growing up without her father. The father is becoming "really saddened and depressed" at the notion of his only daughter forced to grow up without the opportunity of being close to both her parents – something he contends will be made impossible by the "distance and history in this case".
32. The father ends his email to Ms Vivian by saying he and Z love each other dearly and Z loves her mother dearly too.
Recusal on the basis of alleged bias
33. I turn next to consider a number of issues raised by the father through his lawyer and take first the recusal request on the basis of alleged bias. The legal test for establishing bias is objective rather than subjective. It is necessary to consider all the circumstances bearing on the suggestion that the judge could be biased and then decide whether a "fair minded and informed observer adopting a balanced approach would conclude there was a real possibility that the tribunal was biased".
34. Beelen Advocaten's claim is that during the course of judicial liaison in February and March 2011 between myself and Justice Mahieu of the Antwerp court, I made comments from which it was apparent to him that a "position was already taken … to send Z to Australia when she (entered) England". It is said that Justice Mahieu declared as much in front of both parties' lawyers.
35. I have a clear recollection of my conversations with the judge and the circumstances which led up to them. The relevant background, reflected in a series of English court orders, is that the Belgian court had been seised of the application for registration and enforcement since mid September 2010 and had first listed a hearing in the week commencing 25th October 2010. There had been hearings at which oral evidence had been heard on the question of habitual residence. On 6th December, because no decision had issued, a request was made for judicial liaison via the Office of Lord Justice Thorpe so as to ensure the process was completed expeditiously. Judgments given by Parker J, the Court of Appeal and the decision of the House of Lords denying the father's petition were translated and sent to the Belgian court. The request for judicial liaison to bring about timely resolution was repeated on 27th January 2011 and, because the court in Antwerp had requested it, a CAFCASS officer was asked to report upon the suitability for a child of the mother's accommodation.
36. But still there was no decision and the hearing dates for the welfare dispute to be tried in England were put back not once but on four or five occasions. Over the weekend of 19th / 20th February 2011, I was on standby to receive a call from Justice Mahieu. He had my home number, I did not have his. He called at 7.40 am on Monday 21st February by which time I was already on the train to London. He was given my telephone number in the Royal Courts of Justice but I received no call. On 8th March, as the order that day relates, I rang Justice Mahieu and was informed by him that the judgment should be delivered by 14th March 2011.
37. My sole purpose in speaking with him was to ascertain the date of the judgment. To that end I asked whether he had received in translation the English judgments and documents requested. He said he had. Justice Mahieu was interested to seek my confirmation of the mother's intentions and, in particular, whether or not she wished to relocate to Australia. I replied that, as I understood it, she did wish to proceed with that application. I made no comment of any kind about the likely outcome – of that I am in no doubt. At that stage, I had no idea as to the way in which I would decide welfare issues or even if relocation was to be pursued. I had not read, in any detail, the evidence. My overriding focus during the course of the short discussion was to elicit a likely date for Justice Mahieu's judgment. I could not have predicted, still less made a comment about, the way in which the relocation issue would be decided.
38. Accordingly, the suggestion that I should recuse myself on the basis of perceived bias is rejected. It has no basis in reality. Applying the legal test, of the fair minded and informed observer adopting a balanced approach, I conclude there is and could not be the remotest possibility of bias.
The application for an adjournment
39. The second matter for decision is as to whether I should have adjourned the hearing to await the participation of the father via a video link. The suggestion of so doing was made, as I've already said, in an email at 9.50 am on 30th January. Later on that day, attempts were made to enable the father to participate via a telephone conference call on 31st January, the final day of the hearing. That arrangement, in my view, was the best that could have been achieved given the lateness of the application for remote access and the pressing need to resolve the welfare proceedings in a timely fashion.
40. The only practical means of ensuring translation for the father, if he had genuinely required it, was to require his Belgian lawyers to arrange for an interpreter to be present. My directions were duly sent by email to Beelen Advocaten at 14.01 on 30th January. Mr Gilfillan of Oliver Fisher, the mother's solicitors, was responsible to making contact. His polite, constructive and helpful message relates that he had tried unsuccessfully to reach Beelen Advocaten over the telephone at about 12.20. A later message was sent by Mr Gilfillan identifying the 'phone number which could have been used by the father to participate.
41. The response to those emails came at 09.48 on 31st January. Beelen Advocaten said it was impossible for them, within the timeframe, to establish the telephone conference, prepare and present their position. The notice was too short. Arranging for an interpreter was unattainable and, in any event, the English courts should provide a free translator in accordance with ECHR law. Beelen Advocaten reiterated the request for adjournment, for a video link and a translator. The message ended by saying that if those submissions were rejected, that could form a proper and valid basis for an application for permission to appeal to the Court of Appeal.
42. I rejected the application for an adjournment and now provide my reasons for so doing. Delay in children's cases is prejudicial to the welfare of children generally. Z has been in the middle of court conflict for two-thirds of her life. This final hearing has already been adjourned on numerous occasions because of the delay in attaining registration and enforcement in Belgium. The mother's application dates back to June 2010. The date was set for this hearing as long ago as 21st September 2011, more than four months ago.
43. The father has been given every encouragement and opportunity to engage with the process. He refuses to accept this court has jurisdiction to decide matters of parental responsibility, continuing to believe – notwithstanding the decision of the Antwerp Appeal Court that disputes about Z's future should be resolved in Belgium.
44. It is nonsense to contend that there is any impediment upon the father travelling to London. On 6th July last year, when he had the distinct advantage of representation by Mr Michael Gration – Counsel with specialist knowledge and expertise in the field of child abduction – the application for removal of the port alert and passport order was first raised. I clearly recall the content of my discussion with Mr Gration. I pointed out that the port alert was designed to do nothing more than act as a 'trip wire' alerting the court and the mother's lawyers of the father's presence in the jurisdiction. If he had arrived here, then the passport order would have resulted in confiscation of the father's travel document. It would have been restored to him at the port of embarkation. Mr Gration understood me perfectly and did not demur. All of those comments, I am sure, would have been relayed back to the father by his English lawyers.
45. But the matter was taken beyond argument by the preamble to Judge Coates' order of 21st September 2011 and in several letters from Mr Gilfillan of Oliver Fisher both before and since. The father is not a fugitive from justice as in Polanski v. Conde Nast Publications Ltd  1WLR 637, the case relied upon by Beelen Advocaten. Nor does he face arrest or any other dire consequence if he were to come to London. He has had every opportunity to participate in accordance with his Article 6 rights. I surmise he has not done so because he utterly rejects the authority of the English court to make decisions about Z and does not wish therefore to take any step which might be construed as submitting to the jurisdiction.
46. Fortunately, in the circumstances, the father provided a very detailed response to Ms Vivian's request for information in his 27th January email. The contents, taken together with Beelen Advocaten's letter of 30th January leave no room for doubt about the father's position.
The substantive applications: residence, shared residence and relocation
The residence question
47. I turn now to the substantive applications: first in time is that of the mother for a residence order, dated 23rd January 2008. Secondly, there is the father's dated 15th June 2010 seeking shared residence. The mother's application to relocate followed just three days later. As a matter of logic, the residence issue is the first for decision. As for 'shared residence' the father conceded in his email to Ms Vivian, that he does not consider it a logistical possibility. That would not be the end of the matter though if, on a considered assessment of Z's welfare interests it emerged that an order sharing residence would be in her best interests.
48. None of the various factors which guide me in the residence question suggest a shared order would be appropriate in this instance. The parents are as polarised in their opposition to one another about residence as it is possible to be. Neither has any trust in the other. Moreover, this is not one of those cases where such acrimony surrounds the contact arrangements that sharing the responsibility of residence might improve the dynamics between hostile parents.
49. In relation to the residence question – disputed as it is by the contents of the father's email to Ms Vivian – I have decided, without hesitation, that Z's welfare needs would be most appropriately satisfied by a residence order in favour of the mother.
50. I read with interest the account provided by the father of how Z was looked after in Belgium between August 2010 and June 2011. On one level her needs were met. She was loved, cared for and she received education as well as social opportunities. All the signs are – from what Z has told Ms Vivian – that her relationships with her father and paternal grandmother are important and they are significant people in her life.
51. However, the reality of what happened in September 2010 when Z was unlawfully retained in Belgium cannot be overlooked or swept to one side. Against a background of what had been harmonious, consensual weekend contact occurring as it did via Eurostar travel between the two countries the father perpetrated a great wrong when he unilaterally flouted residence and contact arrangements ratified by court orders. Z was used to being looked after by her mother. Throughout her life and particularly since the parental separation, the mother was responsible for meeting all of Z's physical, emotional and developmental needs. By his actions in abducting her as he did, the father suddenly and without warning put an actual and emotional distance between Z and her mother from which they have both struggled to recover. For Z, it must have been enormously confusing and very distressing to be separated from her mother for so long. Settling her back into life with her mother was onerous given the length of time she had been away and Z's relative youth at the time she was abducted. For the mother, it is no exaggeration to say the consequences have been utterly devastating; and there have been understandable repercussions for her emotional well-being.
52. The notion that Z should be removed from her mother and placed with her father in Belgium is unthinkable. To unsettle, destabilise and disorientate a child once in the manner the father did was harmful enough. Contemplating any repeat would be manifestly contrary to Z's welfare needs.
Relocation: law and guidance
53. I turn now to consider the application to relocate against the legal framework provided by the guidance in Payne v. Payne  EWCA Civ 166 as recently further considered in the case of K v K  EWCA Civ 793. I am indebted to Miss Renton for the very full analysis of the jurisprudence contained within her Skeleton Argument as well as Mr Ford's more wide ranging discussion of the relevant authorities in a dispute of this kind. It is sufficient to say that the guidance as well as the evolution of the law is well known to me. Z's welfare is my paramount consideration. In order to exercise my discretion appropriately there are a number of relevant considerations – none of which, of necessity, takes priority or precedence over any other – and it is to those that I now turn.
The mother's motivation
54. It is important to examine the mother's motivation for seeking to relocate. Is it genuine in the sense that it is not driven by some selfish desire to exclude the father from the child's life? Even cursory examination of the impulses which have led the mother to make her application enable me to conclude her motivation is pure. She is an Australian woman who came to Europe when married to the father because of his difficulty in finding work in Australia. When the marriage came to an end and at a time when contact arrangements were relatively uncontroversial, the mother first indicated she would wish to return with Z to Australia. She said then, and now repeats, that she has become increasingly isolated in the UK. Whereas once she had a brother living in London, now she is the only member of her very large family here. But my assessment is and must be more than cursory. To that end I heard oral evidence from the mother so as to test some of my preliminary conclusions. In the result, I was confirmed in my preliminary views.
55. It is noteworthy that the maternal grandmother died last year – a factor which, undoubtedly, has magnified for the mother the physical distance which now separates her from the family. When she was answering questions about the numbers of her relatives in Australia, the mother broke down in tears. I did not doubt for a moment her sincerity when she said how difficult she finds the absence of her family's moral, physical and financial support, living as she does on the other side of the world from them. Those problems of isolation must have been intensified by all of the legal procedures both here and in Belgium throughout the past 18 months or so.
56. Overriding almost everything else for the mother is the desire to be in a situation in which she feels truly safe. As she described, in London currently she does not enjoy a sense of security. She worries that Z might again be abducted. If she "loses sight of her in the street for one moment," the mother "starts to panic". Those who need to know of Z's situation at her school are on alert; and the mother is a great deal "more wary and on edge" than she was. In Brisbane she would have the enormous advantage of many family members to help and support her and, maybe for the first time in a very long while, she would be able to relax.
57. As part of the scrutiny of motivation, I have to consider whether, in truth, the mother is seeking to exclude the father from Z's life. Three distinct sectors of the evidence are of great assistance in reaching a conclusion. First, there is the mother's direct testimony – that she "would encourage (contact) under supervision, absolutely". Z, she said, "would love to see her father." The mother would be happy for the order to recite the court's intention in terms of future direct contact both in Australia and in the UK – the mother indicating she would bring Z here once a year if that was convenient for the father.
58. Then there is the evidence about the voluntary extensions to the Skype contact as ordered by me. If the terms of my direction had been strictly adhered to, Skype contact would have ended after 20 minutes on each occasion and conversation would only have been in English. The mother has been relaxed about allowing far longer conversations of up to 2 hours and Flemish has been spoken as well because as the mother says, it's very good for Z to speak two languages.
59. But there is other more subtle information about the mother's reaction to the contact issue which comes from Z's responses to Ms Vivian when discussing her father. Ms Vivian reports that Z's wishes and feelings generally seemed to her to be "very balanced, very understandable and not particularly influenced by her mother: this, … in the light of the conflict between her parents and the history of the proceedings, is pleasing to see especially in relation to Z's ongoing and future emotional wellbeing".
60. Thus, and with conviction, I am able to conclude that the mother does not seek this move so as to defeat the relationship Z has with her father or for any other sinister or selfish reason. The mother is ready, willing and keen for Z to see her father. Her only precondition is that the circumstances are so devised as to avoid the risk of further abduction.
61. I turn then, briefly, to consider the mother's practical proposals. They are thoroughly well-developed and properly detailed. There is nothing vague or unattainable about them. I am sure the plan is a realistic one both for the mother herself and for Z.
The father's opposition
62. Next I consider the father's opposition and his underlying motivation. I have already summarised and therefore do not repeat what the father has had to say about relocation. The essence of it is that he wants Z to live with him in Belgium, rejects the jurisdiction of the English court, clearly disagrees with the decision of the Appeal Court in Antwerp and forecasts the bleakest of consequences for his relationship with Z if she goes to Australia.
63. The paradox is that the biggest perceived obstacle to face to face contact, namely the father's dogged but erroneous belief about arrest if he arrived in England, would be removed if Z was living in Australia. So I find it impossible to accept, as the father suggests, that relocation would mark the end of his ability to maintain a relationship with Z. Clearly, Skype contact has worked not just whilst Z has been living in London but also when she was in Australia over Christmas. Broadly, when the father resists the temptation to seek to undermine the mother or influence Z, Skype contact has worked well. There is no reason to believe it will not be equally successful in Australia or that the mother would not positively encourage that and other forms of contact as she does now.
64. It is also material that the father is no stranger to Australia. He has worked there, admittedly some years ago now, so arranging for suitably arranged direct contact should not pose any particular problems either for him or the mother. As she said in evidence, "He is freelance. There's the possibility that he could come out to Australia as he has in the past. When we were together he was able to be there for six months at a time."
Impact upon the mother of refusal
65. Next I ponder the likely impact upon the mother of a refusal. She said in evidence that if the application were refused she would find it "quite difficult for a whole array of reasons." I have already touched upon the mother's insecurities arising out the abduction and say no more about them now. It is though material that she has had to seek medical treatment to deal with the psychological consequences of her separation from Z and the ordeal of securing her return. She takes medication from time to time to help her sleep. She receives counselling and reports that she is "more emotional about things" than once she was.
66. In my assessment, the mother who is already and understandably in a fragile state would be utterly shattered by a refusal of her application. She is and has been completely worn down by the demands of keeping Z's life on a happy and even keel whilst at the same time confronting this court conflict. The strain showed when in evidence she thought about all those who love and care for her in Australia. There would be real potential for deterioration in the mother's mental well-being if she were unsuccessful. An adverse decision would make no sense at all, given the factual circumstances of this case.
67. The mother has shown great patience, fortitude and some resilience whilst the legal processes between this country and Belgium were pending. I doubt that she would be able to emotionally endure a further period in which she was denied the opportunity to move back to Australia.
Other welfare factors
68. Now I turn to consider other welfare factors including, quite obviously, Z's ascertainable wishes and feelings judged in the light of her age and understanding. She is just a little over six years old and, as Ms Vivian's report makes clear was not able to confirm which parent she wished to live with. Z is undecided about moving to Australia offering what Ms Vivian considered to be entirely age appropriate and understandable views about wanting to go as well as not. She worries 'a bit' about not seeing her Dad if she moves to Australia and will miss her best friend L. The mother has provided reassurance that they will travel back to England to visit and for contact and has been positive about encouraging Z's friends and father to visit Australia. Z seemed confident, according to Ms Vivian that her mother would be true to her word.
69. It is important also to consider the ability of the mother to meet Z's needs particularly given the 11 months or so of their enforced separation. Ms Vivian reports that Z related well to the mother in her presence and seemed happy and comfortable in her home. Ms Vivian concluded, arising out of the content of Z's age appropriate and emotionally well-balanced discussion with her that the mother is able to meet not just her day to day needs but also her more complex and psychological requirements.
70. The signs are, I'm sorry to say, that the father is more focussed upon his own selfish needs that those of his daughter. His obsession with the jurisdiction issue would seem to have dominated his actions throughout and to the detriment, quite obviously, of Z. In the aftermath of the Antwerp Appeal Court judgment, the father behaved in an extremely bizarre and distressing way when he took Z into hiding. He made the process of handover extraordinarily difficult when, surely, it was his responsibility as a parent to subordinate his own anguish for the sake of his child.
71. I say no more about the very considerable harm caused by the father's actions when he abducted Z from this country and away from her mother save that there is not the slightest hint – in anything said by or on behalf of the father – to suggest that he regrets what he did. His capacity for reflection upon the hurt and distress he inflicted would seem to be severely compromised.
72. Lastly in this list of welfare factors, I turn to consider the likely effect upon Z of the proposed change to her circumstances. She was, of course, in Australia just a month or so ago so the move would not be to somewhere that was unfamiliar or to an environment in which she or her mother are strangers. For the mother it would be a very welcome return to her home, her family and her cultural heritage. Z will miss her friends in London, particularly L. But at her age, she will rapidly make new friends; she will easily adjust to new routines and the different lifestyle. However, in all probability, the most beneficial effect of the change for Z will be the relaxing and emotionally secure surroundings created for her by the maternal family.
The impact of that for the mother and also for Z cannot be overstated.
73. I altogether understand why Ms Vivian felt unable to make a definitive recommendation. Despite her very best and numerous efforts, the father was unresponsive to requests that they might discuss Z's future from his perspective. His only contact with Ms Vivian has been by email. With that caveat, Ms Vivian observes that the mother's proposals appear consistent with Z's best interests and also that the arrangements for her future care need to be settled sooner rather than later.
74. In the result, I am in no doubt as to where and with whom Z's best interests lie. The mother's residence and relocation applications should undoubtedly succeed. I propose to declare that Z will become habitually resident in Australia six weeks after her arrival there. Until the Australian court becomes the sole jurisdiction for deciding welfare issues, the English court will retain its authority. Those declarations are made so as to avoid any possibility of future argument about jurisdiction.