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Re M-K (A Child) [2006] EWCA Civ 1013

Mother’s appeal against refusal to relocate to Brazil allowed.

Re M-K (A Child)
[2006] EWCA Civ 1013

Court of Appeal (21 June 2006)

Mother's appeal against refusal to relocate to Brazil allowed.

This case concerned a child, born in March 2004, of a Brazilian mother and an English father who had cohabited since March 2003. The relationship between the mother and father broke down in early 2005: in April, the mother sought the father's assent, which was not given, for her return to Brazil with the child; and, in May, the father applied for parental responsibility, a prohibited steps order preventing the child's removal from the jurisdiction, a residence order, and alternatively contact orders.

At a hearing in December 2005, at which a CAFCASS report on the issue of overnight contact was considered, staying contact was agreed to commence straight after Christmas and thereafter weekly; the question of relocation, and the father's application for a residence order, remained to be determined.

The trial took place over four days in January 2006 and, having adjourned to 24 February for oral submissions from counsel, the judge delivered her judgment on that day, refusing the mother's application to relocate and making a shared residence order on the basis that the majority of the child's time would be spent with the mother.

The mother appealed, calling into question a number of the grounds on which the judge had refused the application, namely: (1) the judge was not satisfied with the degree of evidential support for the mother's practical proposals for supporting herself and her child in Brazil; (2) the judge concluded that the mother had given deliberately misleading evidence to the court as to her qualification and her capacity to practise in Brazil as a lawyer; the judge's adverse findings as to the mother's credibility then infected the judge's assessment of the evidence given by the mother on other important questions, such as her commitment to maintaining the child's relationship with her father and with her English heritage; and (3) the judge also rejected the evidence of the mother to the effect that her emotional and psychological well-being would be shattered by the refusal of the application; the judge seemingly drew support from the contribution of the CAFCASS officer in coming to these adverse conclusions which were the foundation of her ultimate order.

The court analysed the judgment given by judge, and a number of documents and transcripts that had been before the judge.

Held, allowing the appeal, that the judge had given the mother insufficient opportunity to explain apparent inconsistencies in her written statement, and had then unreasonably drawn adverse findings concerning her credibility; further, the judge's conclusion regarding the effect on the mother if the application were refused was based on views apparently expressed by the CAFCASS officer which were, in fact, not expressed.

Having concluded that the judge's decision could not stand, based on consideration of the three key aspects set out in Payne v Payne [2001] EWCA Civ 166, the court rejected the option of remitting the case for a full re-trial, preferring instead to grant in principle the mother's application to relocate. The court directed that both parties should file evidence as to their proposals to ensure that the conditions required to precede the implementation of this grant in principle were met, and considered it vital that strong orders concerning contact should be make, in the UK and in Brazil, to ensure that the father's anxieties as to the possible future erosion of his relationship with the child, and of her relationship with her English heritage, were dispelled.

Read the full text of the judgment

Digest prepared by Peter Smith