England and Wales Family Court Decisions (other Judges)

1.                   I am asked to make welfare decisions in respect of a 1-year old child named L. He was born on [   ] 2019. His parents cannot agree what is best for him. His mother, S, believes it is best for him to move to live with her close to her family in France and for his father, D, to have contact with him from that location. His father disagrees and says he should continue to live in England under a shared care arrangement between the parents.

2.                   To help me make the best decision for L I have read the papers filed in the case and heard live evidence from a number of witnesses. I have also listened to and read the submissions on behalf of both parents. Applications to relocate are always difficult to determine and this case has been no different. In this judgment I will explain the decision I have reached and the reasons for doing so. I will refer to the key features which have guided me in reaching my decision. I will not deal with every point placed before me, but I do bear all the evidence in mind. The parents have perhaps understandably overloaded me with detail but nonetheless I consider it important to provide a focused judgment so that my reasoning can be easily understood.

Legal Principles

4.                   There is within this judgment consideration of disputed events. To the extent I am required to make findings of fact I do so applying the civil standard asking myself whether the event is more likely than not to have occurred. It will be for the party raising the allegation to prove it and they will do so by demonstrating it is as being more likely than not. There is no burden on the other party to disprove the allegation. In considering the evidence I may reach the conclusion I have been told lies by one of the parties / witnesses. I will though approach with care the suggestion that this means they are lying in general. I will look to the circumstances and context of the lie and continue to approach the evidence with rigorous scrutiny. In doing so I will have regard to the authority of R v Lucas.

5.                   Finally, in assessing the credibility of each party I will likely gain limited insight from their demeanor in giving evidence. There are many reasons why a witness may give a good or bad impression which has nothing to do with the inherent genuineness of their evidence. Language issues; personality and anxiety may lead a witness to appear hesitant or lacking confidence in what they say notwithstanding the truth of their evidence. It is far more important for me to consider their evidence and assess its consistency and credibility when weighed against other evidence than to place weight on the manner of the giving of the evidence.

Brief Background

6.                   S is [ ] years of age and is a French national. D is [ ] years of age and is a Polish national. D has been living in England since 20[ ] and has a sister and niece here (he is currently living with them) whilst his wider family live in Poland. S moved to England in 20[ ] and her family continue to live in France. They met in [country x] in 20[  ] whilst on holiday. They quickly formed a strong emotional attachment and although S was at that time living and working in [country Y], she soon moved to London to live with D. In September 2018 S fell pregnant with L. In [ ] 2020 S and L moved out of their shared home with D.

7.                   The circumstances relating to the deterioration of their relationship will be considered within this judgment. It is however clear this was a relatively short relationship which commenced with promise for both parties but cooled over the period they lived together ending little more than two years after they had moved in together. But for L they would likely have moved on in their lives by now, but he acts as a bond between them and will continue to do so for the foreseeable future. Sadly, their relationship breakdown has left each of them somewhat bitter and antagonistic to the other. It is a sad feature of this case that these young intelligent adults have not been able to maintain the warmth and respect they held for each other when they conceived the idea of building a family together.

8.                   The extent of the distrust can be seen in the steps each took following separation. S left with little warning and D was fearful she would or had left the jurisdiction with L. High Court proceedings commenced, and Passport and Location Orders were obtained. In hindsight it is questionable whether any of this was actually necessary given S had simply moved to [   ] closer to her place of work. Having dealt with the urgent issues Moor J. transferred the case to this Court and gave necessary case management directions towards this final hearing. He also provided for interim contact at 2 hours per week supervised between L and D. I have subsequently extended these arrangements and contact is currently occurring each weekend on an overnight unsupervised basis. S accepts contact should continue on a regular unsupervised and overnight basis.

The Issues

9.                   Should I give permission for L to relocate permanently to France? Alternatively, should I delay this decision or refuse it altogether?

10.                If I refuse permission, then what should be the living arrangements for L? Should I make a shared care order in favour of both parents and if so on what basis? If not, then what should be the time L enjoys with D?

11.                If I give permission, then what should be the spending time order made in favour of D? What practical arrangements/orders should be made to support this outcome?

Analysis

12.                I received wide ranging written evidence in addition to live evidence from S, the maternal grandparents, Dr Andrews, D, and the CAFCASS Officer (Ms Barrett).

14.                In live evidence Ms Barrett expressed confidence as to S’s practical planning. Her concern was the impact on contact and she felt that an 8-weekly pattern of contact in the UK (as proposed by S) would be too irregular. She felt every 6 weeks would be better. She felt seeing the father once a month was not enough and expected there to be sharing of holidays in principle. She was concerned about the speed of the proposals and felt the contact needed time to bed in. She pointed out the move to France would come with challenges and that whilst she did not disagree with Dr Andrews she felt the move would not cure all the issues. On balance she accepted Dr Andrews’ insight with respect to S would be better than her own insight given their respective involvement. Having reflected on the evidence she considered that perhaps December was too far away and that some time in between would be better. Having considered the development in contact she considered there was a need for around 12 sessions of contact to bed the contact in. She did not consider findings with respect to the maternal family would have a material impact on her view. She considered the point made by D that were it to be the case that S was over-reacting in her response to the separation then it might be possible that matters would play out in a similar fashion when in France. This is why she wanted contact to bed in to give greater confidence. She noted D agreed that at heart S was a good mother. She did not place great weight on the fact S would experience a pay cut if in France as there was a broader quality of life to consider. She confirmed she did not view the incidents around dropping as being anything other than ‘clumsiness in an inexperienced parent’. As to L he had been well parented and had shown resilience. She had seen video clips which were positive and noted that S agreed D was a loving father and that L loved his father. She commented that she had written the report at a different stage and were she to have come in at this point then she would have been looking for 12 sessions of contact to embed the plans. She did not consider it appropriate to delay for 6 months due to Covid 19 issues. At the conclusion of her evidence she was readier to accept an earlier move and was no longer recommending a further addendum report.

15.                I deal with the grandparent’s evidence below. In summary they continued to support their daughter’s wish to return to France and offered their ongoing support. They denied the allegations made against them in their entirety. I also deal with Dr Andrews evidence below. He accepted that his understanding was based on what S had told him but commented that his report would not have been materially changed from speaking to D as his report was an assessment of his patient and this did not require a meeting with D. In any event he did not claim to be able to resolve the factual disputes between the parents and left that to the Court. Each parent gave evidence in line with their written evidence.

16.                I examine the evidence above through a series of issues raised by the parents.

The Maternal Family

17.                D made a series of allegations against the maternal family. He considered these points were relevant when answering the question as to whether relocation should be permitted as they were suggestive of the character of the family members; that these features questioned their role around L, and; raised issue as to their ability to support his ongoing role in L’s life were he to be relocated. D’s focus was on the grandfather as a controlling and abusive individual who leads a double life and had placed S in danger and would likely do the same with L. The grandmother was said to be under the control of the grandfather and was said to suffer with poor mental health whilst being somewhat domineering of S. Other family members were criticised to a lesser extent as to their conduct at family events. These allegations were sufficiently concerning for CAFCASS to suggest the need for further evidence. As a consequence, I received written and live evidence from both grandparents and a plethora of supporting documents and written information from family members and friends of the couple.

18.                Ultimately, I found this aspect of the case to be less helpful than it was presumed to be. I certainly make no findings and have fell far short of forming the impression that either grandparent (or to be clear any other related family members) is likely to be a harmful feature in L’s future life. With hindsight I consider the involvement of the family members in the proceedings has been counter-productive so far as D is concerned given that I foresee they have the capacity to act as a bridge between the parents, but this is now far less likely given their goodwill has been stretched to breaking point in defending these allegations.  Most importantly, I seriously question to what extent any of the allegations would have been central to my determinations even were they to have been established.

19.                I will though deal with this aspect in a proportionate manner setting out the basis for my rejection of this part of the case:

19.1       It is important to note D does not have first hand knowledge of many of the allegations raised. Rather he reports matters which have been told to him by S in the course of their relationship. In doing so he can gain some support from screenshot messaging which shows S criticising her parents (and father in particular). However, at the same time elsewhere in the evidence D asks me to have regard to S’s over exaggerated/over sensitive approach to issues which have arisen. As will be seen below I consider there is some merit in this point, but I find it surprising D has not reflected on his own arguments when reflecting on the likely truth of matters reported by S. In my assessment a healthy dose of caution was required but not applied.

19.2       The prime example is the allegation of physical assault on the grandmother by the grandfather. D can rely upon a message in which S made this claim. However, he has not balanced this in the light of S’s subsequent denial of such an event; the grandparent’s denial; the evidence of their lengthy and apparently happy relationship; the previous relationship he shared with them which demonstrated no obvious evidence of domestic abuse; the medical evidence which explained the propensity for the grandmother to bruise due to blood clotting medication; the lack of additional reports. Furthermore, in my assessment it is far from clear as to whether S’s report is pure supposition, as I am not persuaded on the evidence that she actually claimed to have witnessed an event justifying the label of domestic abuse. Rather at its highest she seems to have heard a loud and unusual argument between her parents, later saw bruises on her mother and jumped to the conclusion of an assault.

19.3       In considering the probative value of this allegation I question what real light this would have shed on my decision making even if established. I note that shortly after this (August 2019) D agreed with S to move to France to set up home there in proximity to the grandparents and utilising their support. He maintained this view until November 2019. I find it difficult to reconcile the current argument as to concern with the grandparents being in L’s life with the immediate planning to move close to them. Furthermore, part of D’s case is to suggest the grandparents can continue to support S with her remaining in England. This being the case I wonder what real relevance there is to these allegations.

19.4       I bear in mind D gives direct evidence of an alleged threat to kill from the grandfather. The background to this is relevant. As will be considered below D experienced a series of accidents with L when he was dropped or not properly supervised and fell. On the final (third) occasion S emotionally called her parents and the grandfather was placed on the phone. He spoke to D and either conditionally threatened him (“Don’t touch L, or I will come to London and kill you”) or cautioned him to be more careful with the child (“If you keep dropping L you will kill him”). I note there is said to have been very little if any lead into this statement and there is no further communication between the adults save that D messaged the grandfather asking him (the grandfather) if he had just threated to kill him (D). There was no response. However one approaches this conversation it needs to be understood in the context of a highly emotive situation in which the child appears to have been dropped; the mother is very emotional and the grandparents distant and unable to take a hands-on approach. Further there are important language (and likely cultural aspects) which impact on the understanding of the conversation. The grandfather told me his English was poor and D told me his French was poor. Elsewhere the pair appear to have significantly communicated using a google translate application. On this occasion the grandfather communicated in English and I consider this may have led to a crucial misunderstanding of the message being conveyed. Overall, I am not persuaded there was an actual threat to kill made although I am ready to accept D was concerned something of this sort was said. This is why he sought clarification although I note he appeared to be uncertain as to what was said in his questioning message. Importantly I do not consider the grandfather wished to convey to D his intention to kill him should he touch L again. My strong sense is he was wanting to impress upon D the perceived gravity of the situation. I am not impressed by D’s evidence that he believes the grandfather actually wishes to kill him. I consider this expression is more tactical in respect of his case than real.

19.5       D also alleges the grandfather made a cutting gesture to his own throat when collecting items from the shared property in February 2020. I do not make this finding. It is noteworthy this was not raised in the written evidence despite some considerable detail being provided as to complaints against the grandfather. I consider it unlikely the grandfather would have made such a threat in the presence of police officers running the risk of being seen. Again, there is the potential for misunderstanding during an emotional encounter.

19.6       I reject the notion of the grandfather exercising a controlling and coercive relationship over the grandmother. Both grandparents deny the same and whilst there are potted messages from S complaining about her father these seem to me to be insubstantial and entirely consistent with unexceptional family stresses from time to time. My assessment of the evidence in contrast suggests the grandmother exercises a real level of independence and has been free to travel to be with her daughter for extended periods and has her own commercial interests. There simply is no evidence of such an abusive relationship and a significant amount of surrounding evidence to the contrary. Again, I question what light it would shed on this case in any event given there appears to be no question as to the intended continuing role of the grandparents in the life of Lwhatever outcome is reached. Importantly, the Court must seek to consider the grandparents in their role as grandparents and as I made it clear to D it is entirely possible that they have a complex and at times difficult relationship without this in any way compromising their role as caring and attentive grandparents to L.

19.7       I am asked to, but I am not at all impressed with being asked to reflect on parenting attitudes from decades ago or the actions of S when a 7-year-old child. A measure of the lack of proportionality in these allegations is that I was asked to reflect on S throwing scissors at her brother when aged 7 (she admits she did); of her falling off a motorbike when about 10, and; of the grandfather allegedly transporting his own children in the boot of his car many years ago. I simply cannot understand on what basis any of these matters could have relevance to L. For the avoidance of doubt D has no first-hand knowledge of any of these matters and is dependent not only on S’s reporting but also the accuracy of her memory of events from her childhood. I consider it entirely possible that each of the incidents have a kernel of truth, but the detail has been lost over time. It may be on an occasion the grandfather drove his children out of car seats, but this may have come to be part of a nostalgic recollection of childhood in which an exciting element loses its appropriate relevance. In any event this tells me nothing at all about the likelihood of the grandfather transporting L in the boot of a car. On my assessment of S, I consider it beyond belief she would allow L to be treated in a reckless way by any third party let alone her parents - I have the same view of D. My assessment of these grandparents is that, as with many grandparents, the quirks of their own parenting is unlikely to have particular bearing on the approach they take to their grandchildren.

19.8       Beyond this I fall into detail which will have no bearing on my determination of the case. There are complaints made as to the manner in which the maternal family engaged at social events. However, the resolution of these issues, which are likely to be surrounded by different cultural norms in any event, will not help me resolve whether L should relocate to France or not or the basis under which he should share his time with either parent.

19.9       Importantly, having been asked to consider the likely role of the grandparents I have reached a clear conclusion that they are very fond of their grandchild and would do all within their power to meet his needs. I have no doubt that whether this is in the UK or France they will continue to want to be part of his life and will be part of his life. There is no reason to expect S to supervise the time they spend with L. Were L to relocate to France then they would provide such support and assistance as was available to them. I should say I have not been asked to examine the paternal family in any detail but have little doubt they equally would want the best for L and there is good evidence of both the paternal aunt and grandfather making themselves available to help.

19.10    The complicating feature is the discomfort D now feels when being asked to consider being housed by the maternal family were he to visit France. Unsurprisingly he considers this is not something he would wish to do. However, in my assessment sadly he has only himself to blame if he has undermined this relationship by the allegations he has chosen to make and pursue.

The parent’s roles caring for L

20.                The parents disagree as to their respective roles in caring for L. This can be seen to be a precursor to the disagreement as to whether shared care would effectively mirror the pre-existing arrangements prior to the proceedings or not. Having considered the evidence, I am unclear whether there is in reality very much room for disagreement and I note the following:

20.1       It is agreed the parents took a conventional approach to caring for L immediately following his birth with D having a short period of paternity leave (2-weeks) and S taking a more extended (albeit not lengthy 4-month) maternity leave. During this period, I find it likely S undertook the majority of care as she might be expected to do given D had returned to work. However, I find it likely D did help out on return from work.

21.                The Court has not been asked to make findings of fact against either parent in this case and this case does not engage Practice Direction 12J concerning issues of domestic abuse. Whilst it is clear the parents have a different view as to how and why the relationship deteriorated I can see no purpose in seeking to analyse this feature of the case beyond noting the following:

21.1       Each parent accept the other has a significant role to play in L’s life going forward. Each will have significant unsupervised overnight time with him. In this context it would not make sense to spend time finely analysing occasions on which errors occurred.

21.2       Whilst I note the occasions on which D ‘dropped’ L I agree these can be viewed as nothing more than clumsiness in the case of an inexperienced father. They say nothing as to his inherent care for his son or his ability to be part of his life without oversight. In fact these events will in all likelihood mean he is a more cautious care giver than the alternative. I say no more.

21.3       Each of the parents have had occasion to inform social services of their concerns as to the other. Yet on my assessment there is very little of merit to investigate. My sense is of over sensitivity to an extent and a degree of ‘tit for tat’ reporting. As with the CAFCASS officer I can find no material features which particularly bear on my decision making. Rather I consider these are inherently competent and loving parents who need to get on with parenting L and focusing less on ensuring their case is properly balanced in the files of the local authority. I fear they have come to abdicate their role as parents to the local authority and I can only hope the ending of proceedings will cause them to reset their approach to each other as separated parents.

The circumstances surrounding separation

22.                Once again, I consider this can be dealt with briefly. It is quite clear the parents had separated and were looking to slowly untangle their financial affairs surrounding their joint rented property whilst living there together. This came to an end on S abruptly leaving with L. Having heard the evidence I am satisfied that this was on balance managed rather poorly leading to a heightened level of distrust between the parents. Lying behind this decision was a perception on the part of S that Dwould unilaterally remove D to Poland (for a planned trip) and she was I find concerned as to what would then happen. However, I also find that D was on balance unlikely to remove L although he expressed himself in such a manner as was not likely to dampen S’s concerns. These disagreements became subsumed into the deepening level of distrust between the parents over broader issues and, I find, marked distinctions in their character and approach to life.

23.                I have considered what D and S say about these events. I am persuaded D simply wanted the opportunity to be able to take L to see the paternal family for an important family event. L had frequently travelled with S to France and he could identify no distinction with L travelling to Poland. I find S’s feelings were complicated by the recent clumsiness shown by D in his handling of L; their collapsing relationship and increasing distrust, and; some limited poor health shown by L at the time. In her generally anxious state I find S came to form an unnecessary and over concerned view as to what would happen if Lwent to Poland. She felt unable to manage this with D through conversation in situ and left the property. She viewed it as a developing emergency when the objective circumstances suggested otherwise

24.                It would have been far better for S to have signaled her intention to leave or for her to have communicated her intention in a more open fashion having left. However, notwithstanding this it is quite clear she had no intention to leave the jurisdiction. Rather as can be seen she simply relocated closer to her workplace both to make her daily life easier but also reflective of the lower costs of living in that area. It seems to me there was enough information available to D to realise that Swas not seeking to abduct L. Indeed, after she had left D travelled to Poland for a few days and on his return,  he saw S at their shared property.  On my assessment of the evidence the pointers suggesting an intention to abduct were not plain to see and I sense the applications made were more ‘shots across the bow’ on the part of D than reflective of a real fear of intention to abduct.

25.                However, this period is not indicative of sensible adult engagement from either direction and sadly has simply added to an environment in which distrust has built. As noted above this has led to complications around contact and reports to social services - all of which I believe could have been avoided if both parents had sought to engage responsibly at the outset of the proceedings. I consider this distrust continues to this date notwithstanding progress is now being made in issues such as contact. My sense is the repairing of their relationship as separated parents with a shared interest in L will require some time.

Financial circumstances

26.                The parent’s financial situation is far from unique. They chose to live together not only in London but in an expensive part of West London. As one of the most expensive places to live in the world this came with obvious financial consequence. They then decided to build a family together with the obvious impact on increased costs and strained resources. Over this same period whilst S’s career path was positive, D’s appears to have been less so placing stress on their finances. This stress was I find exacerbated by their personalities and approaches to life. Both parents point to their differing cultural and personal styles and I accept this evidence. I find S became increasingly frustrated by D’s inability to support the family to the level required. I do not blame D for this and I note he was working throughout, but I do consider this was a further area of conflict. It is quite clear that housing was a significant cost for the family and by the time of their separation the combination of housing and child care costs was eating a large proportion of their net monthly income.

28.                I bear in mind D’s contrasting projected budget on the basis of both parents living in [ town outside London ]. Under this projection D identifies a modest surplus of about £130pm between the couple on the assumption he pays £450pm in support. I will return to this below but note it is a tight approach to budgeting and makes no obvious allowance for either party to visit their families overseas.

29.                I note the parties’ evidence as to costs of travelling to France for contact. S suggests these costs could be substantially minimised by D accepting what she suggests is an offer from her family to provide both transportation from the airport and accommodation during the trip. In response Dcontends it is not reasonable to expect him to be dependent on the maternal family or S and he submits the costs for a weekend would be close to £330 per trip plus food/entertainment during the trip. S has accepted that she would not be entitled to seek the £350pm maintenance in addition to expecting D to travel although she holds open the need for actual support should his finances improve - a point he accepts.

30.                Before concluding these financial observations, I also make the following observation. D’s figures are based on a gross salary of £35,000 with a prospect of commission of up to £10,000. His budget does not allow for the commission and (as calculated during the hearing) I estimate that if fully earned this would enhance income by at least £400 (if not £500) per month. In contrast S puts her net income at about £2,400 per month in England. This point was not challenged. Her estimate of net income in France (£ equivalent) was about £1700pm.

S’s mental health

31.                I received evidence from S’s treating psychiatrist at her request. He was not a single joint expert and I bear this in mind when considering the weight, I should attach to his evidence. There is within his report many matters reported by S which are not agreed by D and which fall to me to determine if required.

32.                I do though consider his evidence both helpful and important with respect to S’s mental health, presentation, future prognosis and the impact if any upon her caring duties for L. He has provided ongoing and regular care over the last few months and has professional insight as to the impact of this process upon her. He details her being invariably tearful and anxious following contact. She does not present with evidence of a depressive illness or disorientation and she is functioning within normal range. She does not present with any risk factors. He has diagnosed an acute stress reaction precipitated by the breakdown of her relationship aligned with the massive readjustment arising out of this. Her position is exacerbated by the continuing uncertainty surrounding the Court process and the lack of certainty as to her future plans. The expert considers her presentation will likely fully resolve if she is given the opportunity make her own choices as to where she lives. In his evidence he pointed out the impact of continuing uncertainty and it is clear to me that resolution of these proceedings (whatever the outcome) has the potential to lead to improvement in S’s presentation although I appreciate the nature of the outcome may itself complicate the prognosis. Elsewhere he reports S feeling isolated and lacking in support in England. He considers it is vital that her mental health is maintained so that she can continue to provide consistent care for L and is concerned that were she forced to remain in this jurisdiction then the consequent resentment and disappointment will undoubtedly affect her mental health to the detriment of L, and likely to the further detriment of her relationship with D.

S’s Practical Plans in France

33.                It is clear to me the practical planning is clear and sensible and on balance, insofar as S is concerned, likely to work successfully. Her plan is to return close to family in an area of France with which she is familiar. As a French citizen she will likely fit back into this society with relative ease. This is assisted by the support that her parents offer as to housing and general support. I have no doubt that nursery and schooling provision is readily available and that issues such as medical care would be to hand if required. An issue though arose as to her employment planning. S is currently employed by a well-known international brand within marketing and there is the option for her to relocate to France. At the moment she is working from home as a result of Covid 19 and this is likely to continue for certainly the short foreseeable future (next 6 months). The issue with this employment relocating to France is the significant travel times required to the French office (2 hours in each direction). This led S to inform me that she no longer planned to maintain this employment on relocation.

34.                Fortunately (as with D) she is both intelligent and resourceful and she has, it seems, a good career track record. She has been able to identify an alternative employment which is very close to where she would wish to live, and it is the income from this (which would amount to a pay cut) upon which she bases her budget. I accept she has a job offer in such regard but note this is open for acceptance through to the end of September. In contrast her current employer is contractually entitled to 3 months’ notice and S is hopeful, but cannot confirm, whether they would accept a shorter period. Finally, S has an opportunity to work within her brother’s hotel if the other options (or as yet alternatives) are not pursued.

35.                My assessment of this point is as follows. It is not my role to make findings as to an actual employment post that will be taken (if Srelocates) but rather the likelihood of the practical plans being successfully implemented. No Court can guarantee a planned move will be completed with all aspects being replicated in line with the statement evidence. What is more important is for the Court to evaluate the underlying robustness of the plans and to an extent the ability of the plans to weather unexpected hitches. In this regard I consider the limited debate around employment to be a ‘red herring’. My assessment is that S has the qualities to find equivalent employment in this general geographical area whether with the identified employer or with a yet unidentified employer. She has shown an ability not only to obtain a job offer but to keep it open for her over an extended period. My assessment is that this is because she is more than qualified for the post and in accepting a lower salary offers a great deal to a potential employer. I have no reason to believe this could not be replicated were she required to look elsewhere. As such it appears to me the planning is pragmatic and robust.

Relocation and stifling the paternal role

36.                I am clear the planning in this regard is not engineered to limit D’s relationship with L although it may of course have that indirect impact if not properly managed. I have reached this conclusion in the light of the pre-existing intention of the parents to relocate to France. Whilst they disagree as to the timing of this agreement it is clear that by August 2019 they had agreed to move to France to live and work. This agreement remained in place until November 2019 when D expressed an unwillingness to move in the light of a deteriorating relationship with the maternal family. Prior to this time, it is clear the maternal family were providing significant support to assist the parents in their relocation plans. I do not need to detail the nature of the plans, but the grandfather was offering work premises from which to establish a business as part of this plan. I consider it highly likely the issue of relocation was raised between the parents prior to August 2019 and that the agreement in that month was the culmination of consideration on the part of both S and D. The evidence suggests that S had always had in mind a wish to return to France and the evidence makes clear she retained this wish when D changed his mind. I consider it likely her pregnancy and the birth of L exacerbated her wish to return home. I am not of the view that S is now promoting the move with a wish to limit D’s relationship. I consider her plans are genuine and focused on what she considers is best for both her and L. I bear in mind the relatively slow development of contact and the impression that recent progress may have been tactical and reflective of the CAFCASS analysis. I tend to the view that S has realised that she needs to bite the bullet and make progress with contact to enhance her case, but this does not mean this is the only motive. On balance I consider she appreciates the importance of D in L’s life notwithstanding her criticisms of him.

37.                Realistically it is difficult to balance the prospects for an improved parental relationship were S to be granted permission (and therefore happier but distant from D) against her being refused based on his opposition (and being resentful but closer). D worries the distance/jurisdictional change and opportunity/lack of genuine support will cause contact to wither. This is an understandable concern which I respect. The last 8 months have not been a positive advert for parental co-operation after all. However, to an extent each has failed to properly approach the need for co-operation and their future prospects may be significantly enhanced by a different and more considerate approach on both sides. I am certainly not of the view that either parent is implacably hostile to the other. It may be the reality of the outcome (whatever it is) means the parents have to acknowledge this is the only outcome they have and that the outcome is what they have to work with and this may engender a willingness to work together more positively. It may be relocated in France S developed a greater openness to D’s role. It may be isolated in England she becomes less receptive to his role in L’s life.

38.                I bear in mind D’s observations as to potential obstacles in accessing justice in the event of difficulties arising if in France. I consider I do have to proceed on the basis the French system provides an equivalently satisfactory route for D to enforce his contact rights in the event of disagreement. Ultimately there are real uncertainties as to the future, but these are not solely related to permission to relocate being granted.

Welfare Analysis

39.                In considering L’s wishes and feelings I obviously bear in mind his tender age and the inability of L to express intelligible wishes and feelings. In the case of a child of his age one is left to speculate on a reasoned basis in such regard but should be cautious as to applying any significant weight to the factor. Nonetheless I accept the evidence of the CAFCASS officer, of S and D, and indeed of all the witnesses who appeared before me that L is a happy and settled boy who has coped well with the significant changes experienced by him in the recent past. Despite their differences both parents speak positively of the bond the other has with L and I accept this is an important and positive feature for L. In making this point I do though recognise that factually S has assumed the role of principal carer and that L’s resilience has to be seen in the light of her consistent role in caring for him. I consider it fair and appropriate to factor in an assumed wish on L’s part to maintain a positive and meaningful relationship with both parents. In this case the presumption of welfare gain from maintained relationship can only be viewed through the opportunity for direct access to further the relationship L has with both parents.

40.                Turning to L’s needs I repeat a real need for a maintained relationship with both parents to meet L’s emotional needs. I accept the evidence of the CAFCASS officer of the importance of quality over simple regularity whilst at the same time accepting her point that overly lengthy gaps between contact periods is likely to diminish the quality of the contact and the relationship between L and his non-resident parent. I accept that a scheme based on an opportunity for monthly contact would not meet his needs for contact and that the most preferable scheme would likely be based around some sharing of weekends, but I do not rule out a three weekly scheme as meeting his needs where this involved extended contact on each occasion and is supplemented by regular video contact and holiday stays. I will return to these points in the comparative analysis below as to the realities of each option. I consider his needs are strongly associated with his parent’s wellbeing and on the facts his mother’s emotional wellbeing in particular. In is plain that L’s overall development will be likely stifled if his parents are themselves struggling to cope with life’s challenges. I accept the observations of Dr Andrews as to the impact on S of her acute anxiety and the need for clarity as to the future. However, aside from this I accept there is a non-clinical point to be considered arising out of the impact on either parent of feeling isolated in their community. This is plainly not a good foundation from which the child will travel out into the community and is to be avoided if this can be safely and fairly done. I acknowledge the stress this is occasioning for each of the parents. I consider it important for both that there is clarity as to the future so that they can come to terms with the planning and start to engage as to making that future work for L.

41.                L’s needs are also associated with his parent’s financial stability. I have to have regard to his broad needs including physical needs being properly met. On the information available to me it is clear that day to day life has been a financial struggle for a period of time and this has only been exacerbated since their separation. I can readily accept that this issue will have a general and continuing impact into the foreseeable future and has the tendency to colour each parent’s perception as to the quality of their life. This in turn has the potential to impact on L both directly and indirectly both through the impact on his lifestyle and by reason of the indirect impact on his parent’s general wellbeing. Under this heading I also consider the importance to L of his parents finding a way to communicate in a civil and co-operative fashion. Their distrust and opposition to each other may appear to them to have been kept from L but over time this will become more obvious to him, however hard they work to avoid this being the case. I consider there is a high premium for L in finding a long-term solution which is workable and can be managed by both parents successfully. If such an outcome can be found and the parents can accept it then I consider L has a real chance to be spared the damaging experience of witnessing his parents continuing hostility.

42.                L’s personal characteristics are important. I have had regard to his age and the impact this has on my consideration of the appropriate pattern of time with both parents. Elsewhere I consider there is sense in attempting to settle L’s plans at this time pre-school at a time when he has additional flexibility and has not yet set down overly fixed emotional roots to any particular locality. A further point of particular importance is L’s cultural heritage. I agree with the CAFCASS officer as to the importance of ensuring the value of L’s Polish heritage is both recognised and accepted. On the evidence there is little doubt his French heritage is being properly supported by the maternal family and were he to move then this would only be enhanced. However, whether he moves or not (and particularly were he to relocate) then it would be crucial for him to have the opportunity to experience his Polish heritage. It is plain to me that this will best be established through the time he spends with his father and through him with his wider family. It is important he has the chance to spend time in Poland and experience the customs and events that come with that part of his heritage. It seems to me that so long as L can experience consistent and significant time with his father then this aspect of his needs can be met. In material terms it is less relevant from where he travels to spend time with his father than that he does travel to see his father.

43.                This case places particular emphasis on the impact on L of a change in circumstances. First as to the impact of a change to live with both parents on a shared care basis and second the impact on him of moving to France. I accept the evidence of the CAFCASS officer that he has shown resilience in the light of the changes to date. I note the views of the CAFCASS officer that at this stage it would not be appropriate for there to be a further change to a shared care arrangement and that L’s welfare can be properly met through spending time with his father. I would have to be persuaded that this change is in L’s welfare interests rather than those of either parent. The presumption in favour of each parent having a role in L’s life is not a presumption in favour of any particular form of living arrangement. It is clear the proposed move to France will amount to a significant change for L. However, given his age many aspects of the move are unlikely to have a lasting negative effect upon him. For a child of his age moving to France will I sense have no greater resonance than a move within his home country (whether short or long). His lived experience is relatively narrow around his mother’s care, a point particularly reinforced during this lock down period. The real change takes one once again back to the contact arrangements. Again, I make the point that the crucial factor in my assessment is the likely enduring nature of contact were L to be permitted to move rather than the simple fact that the move would be geographically large. In considering this point I engage with both the attitudes of the parents but also the practical capacity of the parents to maintain contact in any event. The evidence suggests to me there is both a commitment and capacity to maintain contact from whatever base is chosen. Each option has pro’s and con’s as I will note below.

44.                I note the need to have regard to issues of safety. I have dealt with this elsewhere within my judgment and consider it is sufficient to note that I can identify no real safety issues that should influence my decision making.

45.                It is important to reflect on the capacity of each parent to meet L’s needs. In simple terms this does not appear to be in real dispute with each parent acknowledging the other loves L and is committed to him. Further through their positions in accepting the other will have significant time in L’s life they must accept the other has the capacity to meet his needs whilst caring for him. The CAFCASS officer supports such an assessment. Elsewhere in this judgment I bear in mind the potential for each parents’ capacity to be affected by extrinsic factors such as financial struggle and impacted mental health. Importantly I find the parents have the ability to make contact work. I recognise the criticisms of S’s approach to contact but in doing so accept she has shown commitment to now progressing contact and I judge her position as to continuing to support contact were she to relocate is not an empty promise. My judgment is that the process of contact will not be entirely straightforward given their recent history but in reality, the issues that have arisen between the parents are objectively limited in nature and are capable of being put to one side. From a settled position I consider they can each move forward positively and will do so given the chance.

Comparative analysis

46.                D proposes a shared care arrangement in England but failing this he argues for L to remain in this jurisdiction whilst having regular contact arrangements based around weekends and sometime in the week. He expressed this as amounting to 10 days per month ((i) 2 weekends at three days per weekend per month plus (ii) 1 day during the week each week). His proposal would be to move closer to S so that this could practically work and has suggested making financial payments to provide support. He suggests the maternal family could provide the equivalent support to S that they would provide to her in France to further support her. This would amount to paying her the rent on the property that she would otherwise live in rent free were she to relocate.

47.                In contrast S seeks to relocate to France and have contact established around that location. Were she not to move then I sense there is less dispute as to what the arrangements would look like. However, she argues the financial and emotional consequences of remaining would be damaging for L. If she were to move, then she supports the notion of contact every other weekend with her being responsible for the third session of contact and thus every 6 weeks (travelling to the UK). She proposes there be some sharing of holiday time with holidays being shared by the time L is in full time school. She notes that in France this would amount to D having up to 8 weeks per year of extended contact.

48.                The advantages of D’s proposal are the simpler and more predictable in that they require the least change. They would leave the matter within this jurisdiction were issues to arise and it might be said this would perhaps be more likely to encourage compliance. D’s plan would permit contact on at least a fortnightly basis with the potential for midweek contact as per the CAFCASS report. Compared to other options this might be thought to have the better chance of preserving cultural ties as L’s Polish family would be closer to him.

49.                The advantages of S’s proposal is that it appears overall to be the most financially stable and addresses the concern around the impact on L of his mother suffering sustained poor mental health and a sense of isolation. It would place him at the centre of one side of his family and this would be a very stable foundation from which to develop. It might be thought such an outcome might cause S to be more accepting of contact arrangements. It is the case that this outcome reflects the plans the parents had for L prior to their separation and so can undoubtedly be recognised as having objective benefit for L.

50.                The downsides to each option can be seen in the positives of the other option. The key issue around relocation is the potential impact this will have on the relationship between L and his father. The central downside of not relocating is the potential impact this will have on S and thus directly or indirectly on L.

Conclusions

51.                I have reached the conclusion it is in L’s welfare interests for S to be given permission to relocate. I do not intend to make a shared care order but rather will provide for L to spend time with his father in line with the paragraphs below. My conclusions are based on the following:

51.1    I consider there is a very strong association between L’s emotional stability and that of his mother. In my assessment both the medical evidence of Dr Andrews and the wider evidence of her sense of isolation in this jurisdiction points to a real concern were permission to be refused. I formed the strong impression on both reading the evidence but also in assessing the live evidence that S is significantly impacted by her enforced location in this jurisdiction. I consider it likely she would continue to remain highly distressed as to this state of affairs and particularly having regard to the perceived duration of this position given L’s tender age.

51.2    Whilst I consider there would be a degree of amelioration due to there being certainty as to the future nonetheless I do not consider this would significantly reduce the impact upon her of refusal. I judge it is likely this impact will have a significant impact on her wellbeing and this will have a material and negative impact upon L.

51.3    I am further of the view that there is a heightened likelihood of ongoing parental animosity in such circumstances. I judge S is likely to feel deeply resentful towards D in being the obstacle that refuses her return home, and this will I consider deepen the distrust between them with a likely impact on D’s relationship with L. This will be exacerbated by the fact of the previous agreement to relocate. I am therefore of the view that contact will in all likelihood be made more difficult rather than easier in such circumstances

51.4    In reaching this conclusion I have regard to the longstanding wish of S to return home and the parental planning in such regard as noted within this judgment. It is appropriate to have regard to the fact that this international couple formed their relationship outside the jurisdiction and then developed their plans in the knowledge that they were making life plans with a partner who remained strongly associated to another jurisdiction. In such circumstances I can expect they must have had regard to the potential for their partner to wish to return home and particularly so were their relationship to founder. This is particularly so in the case of S who only travelled to England to live with D and having regard to the relatively short length of the relationship.

51.5    I also take account of the financial impact of refusal to relocate. It is clear to me the financial reality of living in the UK is having an additional impact on L’s home life. I simply do not see this improving in the foreseeable future whether or not D offers support. I accept Sis left in significant deficit as a result of these commitment even after the support offered by D. This factor further feeds into the sense of anxiety and resentment mentioned above. This is plainly relevant and important for L in setting his quality of life and in ascertaining the meeting of his physical needs. But it also touches upon the emotional impact upon S of having to make such a scenario work on a continuing basis. Contrasted with relocation there are many drawbacks to continuing to reside in England. I am in no doubt the general quality of life for L will be vastly improved if relocation is permitted.

51.6    This is a case in which the parents have only managed by bringing in outside support, whether family or contracted help, this places a further financial burden on the family for the foreseeable future. I accept that on relocation these issues will be substantially alleviated. I am in no doubt the previous planning around moving to France had such issues in mind.

51.7    I agree with the CAFCASS officer that L’s welfare requires his primary care with his mother to be maintained. I can see no obvious benefit of establishing a shared care arrangement for him although I fully accept the benefits of enhanced time with his father. The consequence is that it will S who in reality bears the central burden of making this difficult financial situation work. In reality it will be her who has to juggle the long days and the child care around work commitments. I consider in her fragile emotional state this is not a risk the Court should be taking when there is an alternative workable solution which meets L’s needs.

51.8    For the reasons given above I have reached the balanced decision that relocation in fact offers the best opportunity for a co-operative parental relationship on which to build contact. I consider the difficulties that arise out of these proceedings are capable of being put to one side by the family members - who I assess as child focused and of sufficient maturity to put to one side the criticisms which have been levelled against them. Whilst I accept the relationship D has with the maternal grandparents will likely never have the warmth it once had I am satisfied they are willing and able to be supportive of contact.

51.9    But I am very mindful of the need for L to retain a relationship with D and this factor might of itself be sufficient to outweigh all the points I have made above. However, on my assessment it is possible for L to retain a meaningful relationship with his father post relocation.

51.10  I have considered the evidence of the CAFCASS officer with care and have formed the view that a combination of (1) three weekly ‘term time’ contact; (2) regular video contact, and; (3) extended holiday contact will enable the relationship to be successfully maintained. I consider the contact which will best meet L’s needs will have the following features:

            a)      There should be regular contact every three weeks between Friday and Sunday. This should be overnight and unsupervised. This should alternate between contact in France and in England. On my calculation there should be two contacts between each main holiday (see below). This will require each parent to undertake 5 trips per annum under this heading. The contact should be planned to be for the whole of the Friday with either S or D being expected to travel either early on that day or on the preceding day. This is manageable as it will impinge on their working responsibilities to a relatively limited extent.

            b)      D shall be entitled to extend the contact on the occasions he visits France if he chooses to do so and gives at least 14 days’ notice of this intention. In such cases the contact shall include the Thursday from at least 12 noon through the Friday (6pm - subject to agreement).

            c)      In addition, there should be contact each holiday - there are 5 identified holidays per annum occurring in around February; April; July-August; October and December each year. In principle these should be shared equally. It is a matter for D whether these extended contacts should be undertaken in France, England or indeed with appropriate notice in Poland. Although there are 5 periods the summer is an extended period of 8 weeks and subject to alternative agreement should be shared in portions of 2 weeks (x4). This means there are 6 extended periods each year, I expect each parent to be responsible for 3 with D travelling to France on three occasions to collect and return and S three occasions in England. Taken with (a) above this means there will be the need for D/S to travel on 11 occasions per annum (as for the extended periods there will be a journey both at the start and end of contact - if the parent does not remain in the jurisdiction to which L is delivered).  I accept the pure costs of travel can be kept to a low level with appropriate advance booking.

            d)      For the purposes of this Order I act as if L was at school and experiencing the holiday system which would then apply. This is summarised in S’s statement. I use the language of ‘term time’ to mean the period between what will in due course be the school vacations.

            e)      This will mean 16 periods of direct contact each year with 10 weekends of 3 days and 6 periods of a full week, being 1 week in each of the 4 shorter holidays and 2 periods of 2 weeks (in summer). In total this amounts to 86 days per annum or on average 7 days per month. If D elects to extend his visits to France, then this might increase to 91 days per annum or 7-8 days per month. This falls modestly short of the 10 days per month sought by D but is sufficient to maintain a strong and meaningful bond between D and L.

            f)      In addition, there should be video contact each week at the weekend when not with D (and I would hope over time and by agreement flexible contact by telephone/messaging and video as this becomes more relevant for L).

                            g)      I consider this is affordable on the evidence I have received. It is in line with the suggestions of both parties as to a three-week schedule of responsibility. My assessment of D’s finances is that he can afford this from the £4,200 per annum which he will not have to pay in child maintenance in all likelihood supplemented by some additional commission earnings. I consider S will have the ability to meet her share of the costs from the savings she makes from relocation (see C60).

                            h)      In terms of extended contact, I consider it is not necessary to wait until L is of school age to commence holiday sharing. The parents intend L to spend regular full weekends with his father and I can identify no reason to believe he would not be able to spend a week with him at Christmas and in February 2021. I consider by summer 2021 there will be no reason to believe he cannot spend a fortnight with his father on two occasions (but with S for the fortnight period in between).

                            i)       I can see no reason why L should not spend time in Poland (although I imagine the parties will want the contact regime to bed in first). My assessment is that L will be able to travel to Poland at Christmas 2020 or thereafter. As is often the case there is a need for fore notice of such an intention and I consider D should give S at least one month’s notice of periods when D will not be staying with him in England. On such occasions he should provide her with details of where he will be and contact information.

j)       As to timing I consider there is no good reason to delay the move beyond the end of September and on the evidence good reasons to permit a move by that date. I certainly do not consider there is a need to delay proceedings for further consideration and assessment. On the evidence available I am satisfied I am in a position to determine all issues. CAFCASS pointed to the need for S to deal with the allegations with respect to her family. I have considered and dealt with those points. CAFCASS considered there was a need for contact to imbed. In my judgment there has and will be sufficient imbedding by the end of September. I can see no material change that will occur in the further 4-8 weeks that follows thereafter. In contrast it is possible much will be lost by delay including a valuable job opportunity.

k)      As to Christmas it seems to me this should be shared between the parents. The parents were still together in 2019 and so this will be the first year apart. On balance Christmas day should be with S (alternating thereafter).

51.11  My assessment is the above regime can work and with co-operation will work. It will be a matter for D as to whether he takes S up on the offers made as to accommodation, but I consider this can be financed in any event.

52.          I have therefore decided:

                a)      I should give S permission to relocate to France permanently;

                b)      She should be entitled to leave by 27 September 2020;

                c)      There will be a contact order as per the paragraphs above. I expect there to be one contact in France prior to late October/November (i.e. one of the two ‘term time contacts’ referred to above) and for there to be one week with D in England in the equivalent two-week period that would occur were L at school (the Oct/Nov holiday). Thereafter matters will alternate with the next weekend in France and then in England prior to Christmas. Christmas will require D to collect from France (as an alternate to the October holiday). Contact (both ‘term time’ and ‘holidays’) will alternate thereafter.

                d)      I agree that pending relocation D should have a full weekend each weekend (Friday to Sunday) as suggested by S in her closing submissions.

53.          I intend to hand this judgment down on 25 September 2020 at 2pm. I do not require the parties to attend on this occasion. The hearing will be a short mention hearing. I do though require the parties to take the following steps:

                a)      By 4pm on 16 September 2020 I require from the parties by email any corrections to this judgment and any appropriate requests for clarification. I intend to deal with these (if necessary) by 4pm on 17 September 2020.

                b)      By 4pm on 22 September 2020 I require a draft order for my approval. I will make this Order when handing down on 25 September 2020.

54.          This is my judgment. I can only urge these intelligent parents to attempt to put to one side their history and focus on their undoubted love for their son. They want the best for him and now is the opportunity to make that happen. I wish them both and most particularly L the best for the future.

His Honour Judge Willans