E (Relocation - choice between various options within and without the jurisdiction) [2022] EWFC B22 (04 October 2022)

IN THE CHESTER FAMILY COURT

Case No: CH21P00065

Hearing Room No. 1

Trident House

Little St John Street

Chester

CH1 1SN

Tuesday, 4^th October 2022

Before:

DISTRICT JUDGE SANDERSON

B E T W E E N:

and

MISS WREN (of Exchange Chambers) appeared on behalf of the Applicant Mother AB

MRS PORTER-PHILIPS (of Unit Chambers) appeared on behalf of the Respondent Father CD

JUDGMENT (Approved)

This Transcript is Crown Copyright. It may not be reproduced in whole or in part, other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved.

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

DISTRICT JUDGE SANDERSON:

Introduction

The Court is concerned with E, a little girl born on X, and who is now five years old. Her Mother is AB and her father is CD. AB has been assisted during the course of these proceedings by a Spanish interpreter. During the course of these proceedings three applications have been made to the Court, first in time, from CD for a prohibited steps order to prevent the respondent AB from removing the child from the jurisdiction. Part of that application also raised the question of contact arrangements between CD and the child. A further application was then issued by AB for permission to relocate outside the jurisdiction of this Court - that is, outside England and Wales.

The first hearing took place on 17 May 2021. It is now October 2022. Whilst the delay is regrettable and can be put down to a combination of delays as a result of Covid and various case management issues, the delay has had the benefit of allowing matters to settle to a position whereby contact has moved from an initial order of supervised contact only in a contact centre for CD, to a position where contact is now taking place between E and CD without supervisory restriction. The long-term contact arrangements between E and CD have had to be put on hold pending the determination by the Court of the application by AB to relocate to Spain or in the alternative Tenerife or, in alternative to that, Scotland where she and E currently reside.

That application is opposed by CD who is of the view that E and AB should return to living in the northwest of England. The matter of the relocation is the principal dispute which the Court is required to resolve at the outcome of this two-day hearing. The Court had the benefit of hearing oral evidence from both parents and the Cafcass officer Cathy Case. I have also had placed before me a comprehensive bundle of documents containing applications, various statements in support from both parties, together with a considerable amount documentation attached to those witness statements.

Both parties were represented by counsel; Mrs Porter-Philips for CD and Miss Wren for AB. At the end of the evidence, I heard representations from them on behalf of both parties. I confirm that I have taken all these matters into consideration in reaching my judgment. At the conclusion of the last hearing, I refused the AB’s application and now give my reasons for so doing.

I will emphasise two important matters at the beginning of this my judgment. Firstly, it is E’s welfare which is the Court’s paramount consideration, not CD’s, not AB’s but E’s. In deciding this matter, I have had particular regard to those matters set out at section 1(3) of the Children Act often referred as the Welfare Checklist. Secondly, and perhaps more importantly, it is obvious and plain to see that E is loved in equal measure by both her parents. Sadly, the parents are not able to agree the crucial question as to where E is to live; what is not contentious is that she should live with AB.

Background

By way of very brief background, the Court first became concerned with E as a result of an application sent to the Court in May 2021 by CD for an urgent without notice prohibited steps order to prevent AB from removing E from the jurisdiction. On 5 May 2021, CD returned home from work to find that the AB had left the property without warning and had taken E with her together with her clothes, toys, passport and other items. CD feared that AB, a Spanish national, would take E to live with her relatives in either Melilla in Spain or Tenerife, one of the Canary Islands.

The Court made a without notice prohibited steps order on 18 May 2021. The matter subsequently returned to the Court on notice to AB. At the hearing on 23 June 2021, AB lodged an application seeking permission to relocate with E to Spain. AB raised allegations of domestic violence. She was directed to prepare a schedule of allegations. At that hearing, indirect and direct supervised contact was agreed in the interim, AB confirming that she was not opposed to direct contact taking place as long as it was safe.

At a Dispute Resolution Appointment on 28 July 2021, the Court considered the AB’s schedule of allegations and CD’s replies and determined that the allegations were not a bar to direct contact and that a fact-finding hearing was not necessary. Provision was made for supervised contact at a contact centre progressing to unsupervised contact as could be agreed. A Section 7 report was commissioned. At a hearing in January 2022, the Court and the parties considered the Section 7 report. The report concluded that it was not in E’s best interests to relocate to Spain.

AB did not accept the recommendations of the report and the matter was listed for a final hearing commencing 18 May 2022. Unfortunately, that hearing was not effective. AB applied for and was granted an adjournment, and she sought a direction for an addendum Section 7 report to consider alternative proposals to relocate to Tenerife or in the alternative to stay in Scotland. There was a direction that AB was to set out her proposals in the event that the Court refused her application. The addendum Section 7 report concluded that relocation to any of the areas suggested by AB was not in the best welfare interests of E and that a return to Ellesmere Port or the northwest of England would be the best option for her.

The Law

How does the Court approach applications such as this in relation to removal from the jurisdiction? The legal framework is agreed as between the parties as follows.

It is agreed that the overriding principle is that the welfare of the child is the Court’s paramount consideration pursuant to section 1(1) of the Children Act 1989. That has reference to the Welfare Checklist and the Welfare Checklist contains matters as follows:

“(a) the ascertainable wishes and feelings of the child concerned;

(b) the child’s physical, emotional and educational needs;

(d) the child’s age, sex, background and any characteristics which will be relevant to the Court’s decision;

(e) any harm which the child has suffered or is at risk of suffering;

(f) the capability of the child’s parents meeting the child’s needs;

(g) the powers available to the Court in the given proceedings”.

In Re F (A Child)[2015](International Relocation Cases) [2015] EWCA Civ 882, it is stated that the Court must consider the Welfare Checklist and undertake a global, holistic evaluation. The lead case on internal relocations, the principles in respect of external relocations being the same, is contained in Re C (Internal Relocation) [2017] 1FLR 103, which highlights that there was no difference in basic approach as between external and internal relocation. The decision in either case hinged, ultimately, on the welfare of the child. The wishes, feelings and interests of the parents and the likely impact of the decision on each of them were of great importance but in the context of evaluating and determining the welfare of the child. In either type of case, a judge was likely to find helpful some or all of the considerations referred to in the case of Payne v Payne [2001] 1FLR 1052 but not as a prescriptive blueprint rather and merely as a checklist to the sort of factors that would or might need to be weighed in the balance when determining which decision would better serve the welfare of the child.

The guidance in the case of Payne v Payne is as follows:

“(a) The welfare of the child is always paramount.

(b) There is no presumption created by section 13(1)(b) in favour of the applicant parent.

(d) Consequently the proposals have to be scrutinised with care and the court needs to be satisfied that there is a genuine motivation for the move and not the intention to bring contact between the child and the other parent to an end.

(e) The effect upon the applicant parent of a refusal of permission is very important.

(f) The effect upon the child of the denial of contact with the other parent and in some cases his family is very important.

(g) The opportunity for continuing contact between the child and the parent left behind may be very significant”.

In summary, it was submitted to me that the correct approach in relation to relocation cases can be summarised as follows:

(a) there are no presumptions in cases governed by section 1 of the Children Act.

(b) The only authentic principle is that the welfare of the child is the Court’s paramount consideration.

(c) The evaluation of where the child’s best welfare interests lie is to be determined having regard to the Welfare Checklist.

(d) The status quo raises no presumption. It is no more than a factor that the Court has had to regard, namely the likely effect of them of any changes in circumstances.

(e) In conducting an evaluation in where the best interests of the children lie in cases of this nature and evaluating the Welfare Checklist, the guidance in Payne v Payne does not create a principle in law but is guidance that must be heeded.

(f) The questions posed in Payne v Payne are not exhaustive and the Court should apply them with flexibility.

Evidence of the Mother

I first heard evidence from AB. I will not set out her evidence in full in this judgment as it is contained within the written statements in the Court bundle. However, matters of which AB told me at the hearing and which she asked me to take into consideration can be summarised as follows.

She did not wish to pursue relocation to Melilla. This is a town where AB’s mother and her sister reside. The main reason she gave for abandoning that part of the application was mainly the getting to Melilla was complex, involved a minimum of two flights, various airports and was generally more complicated than travelling to Tenerife.

She did, however, wish to relocate to Tenerife; this being her first choice, if I can put it in those terms. Travel is more convenient and there are more private schools which she can access for employment without the need to take exams. The main attraction of Tenerife is that her brother and his family live there.

She confirmed that her mother would still support her in Tenerife but that mainly it would be her brother providing support as the brother had indicated that she and E could reside in his three-bedroom property with his family until such time as she was able to gain employment and afford to pay for her own accommodation. AB’s brother and his wife live in the property together with their young child. The plan would be for E to have her own bedroom and for AB to sleep in the living accommodation downstairs.

AB indicated that upon arrival in Tenerife, she would be able to work either in government schools or private schools there. To teach in public schools, that is a government school, AB would have to pass an exam known as the ‘Oposiciones’, albeit that the examination is only run every two years and that the next opportunity she would have to pass that examination would be June 2024. The plan would be for E to attend private school, which would cost approximately €100 a month with a canteen fee of €157 a month. AB said that she would gain the assistance of her parents and other family members with that cost.

She was not able to provide the Court today with evidence of jobs that she had applied for, mainly, she says, because if she enquired about a job then there would be an expectation that she would attend an interview and, therefore, she could not make any application until the Court had made its decision. However, she told me she thought it would be easy to get a job as she speaks English and that many schools were trying to become bilingual.

As far as the anticipated cost of flights were concerned, that being a major concern for CD, when asked whether or not she would be able to give any commitment to financially supporting E’s travel, she replied, “Of course. If I need any help, I will ask, and it will be given to me”. AB was of the view that Tenerife was the best option for E because she does not have a support network here, and that if AB was to go to work, she would have someone who would take care of E. She emphasised that this had been a hard year for her and that she needed the support of her family - there being a particular lack of support around the family home in Ellesmere Port.

AB also told me that prior to the relationship breakdown, she and CD discussed relocating to Tenerife but that because of the relationship breakdown those plans came to nothing. It is AB’s position that if the Court did not agree with a relocation to Tenerife, then her next preferred option would be remain in Scotland where she currently lives. In support of that, she told me that there are employment opportunities in Scotland. She was offered a course teaching Spanish for four weeks in the summer and is now in the middle of teaching a six-week course which involved two hours work per week. She indicated the possibility of more full-time work at the college she is currently working for as it intended to include Spanish in the curriculum. She is paid £13.16 per hour for this work.

She also told me that she has lived in a refuge in Scotland since moving there, and it appears that this is a self-contained flat for her and E. She indicated that she will have to move out of the refuge whatever the decision of the Court and that she would be assisted by the state with a transition. She was aware of an ability to apply for a council house, and she told me that she thought that would take about two to three months. As far as support is concerned, she confirmed that E was now in primary school following on from pre-school and that she was happy and doing well and had many friends. AB confirmed that she had two particular friends, mothers of children at E’s school.

As far as travel is concerned, when asked about travel from where she lives to CD’s property, she indicated that it took her about four and a half hours. Asked how E coped with the travel, AB replied that it was not too bad but that it was “not a nice way to live”, and it is not what AB wants for E, particularly given that it happens every two weeks. AB indicated that if she remained in Scotland then it should be CD who should perhaps consider moving closer in order to shorten the distance.

As far as money and resources are concerned, AB confirmed that she had an account with £5,600 in it but that she did not have that money anymore, but that CD had offered to support her financially if she moved back to this area with the rent for rented accommodation for a set period of time. She indicated that although she did not want to move back, if she had to she would prefer to live in Manchester as there were job opportunities as a teacher, a Spanish community, a Spanish consulate and handy for the airport and also not far from CD’s home and would, therefore, reduce travel. She indicated that living in Manchester would benefit everyone as no one would have to spend much time travelling.

In cross-examination, AB confirmed that E loved her dad and that she accepted that he loved her too. She confirmed that he was an important part of E’s life and that he was as equally important to her as she was. When AB was asked whether removing E to live in a refuge in Scotland and having no direct contact with her CD from May to September 2021 was emotionally harmful for E, she replied that she was protecting herself and E from physical and emotional harm. She accepted that her GP records did not disclose any physical abuse from CD and indeed her direct evidence to me was that “he never physically hurt me”, but she did confirm that he physically chastised E.

She acknowledged that living in Tenerife would involve a lot of travelling compared to living near Manchester which she said, “would benefit all of those because we do not want to spend a long time travelling”. She confirmed that she was committed to sharing the cost of travel, anticipating that three times a year she would travel with E to bring her to England and that she would cover the cost. She acknowledged that a move to Tenerife would result in E going from seeing CD every other weekend to just three times a year, albeit for more prolonged periods.

When asked whether or not she agreed that trying to see CD three times a year would have a significant impact on E, AB’s reply was that she could not answer that, but it would obviously have an impact but she did not know how big that impact would be. She confirmed that contact had been going well and that E was happy going to contact with CD and confirmed that there had recently been an extended period of contact, which was only initially meant to be for one week but ended up being two weeks because E contracted Covid.

She confirmed that, on her proposal, E would have her own bedroom in Tenerife. She confirmed her intention for E to attend a fee-paying school, which would incur an annual cost of approximately €2,700. She confirmed this would be a bilingual school where 40% of the curriculum would be in English and that E would also attend additional English lessons. She acknowledged E’s British and Spanish heritage, confirming that she was proud of E’s dual heritage.

In relation to Scotland, she confirmed that she would have to move out of the refuge that she currently resides in; that she had been able to make friends, those being other people in the refuge and the mothers of other children at E’s school; that she had secured income via Universal Credit and that she had established an ability to work in the United Kingdom. On behalf of CD, it was put to her that the real disadvantage in relation to living in Scotland was the travel and that this was not sustainable; AB replied that was true.

When it was put to her that to move to the northwest of England, perhaps Manchester, would be an obvious solution, she agreed that travel would be shorter and more beneficial emotionally, financially and psychologically and that E could continue to live with her and see CD regularly; that both parents could be involved in her education; that she had the benefit of being able to take up employment and that she will be able to integrate into any local Spanish community. She was more sceptical about the offer of help and assistance from the paternal family, it being firmly her view that they have not been supportive of her. She confirmed in cross‑examination that she was aware of CD’s offer to assist in the short‑term financially with regards to rent.

Finally, she confirmed that when she sought help to flee the family home because of domestic violence, she was given three options in terms of a refuge, two being in England and one in Scotland, and that she decided to Scotland as this gave her an opportunity to live in an apartment alone with E. She says that she is thankful that she went to Scotland.

Evidence of the Father

I next heard from CD. Again, his evidence is contained in his witness statements, and I do not propose to rehearse that in this judgment. He confirmed that contact had gone well and progressed from no contact between May and September 2021 to supervised and then non-supervised contact. He told me that he had an amazing relationship with E but confirmed that communication between him and AB was difficult and that they were now using an app called AppClose, which is assisting them. He confirmed his willingness to provide some financial support to AB and E to assist their return to this area, being able to provide £2,000 now by way of a loan from his sister, together with various items of household equipment such as a freezer, washing machine, television, dining table and chairs. He said that his friends and family would provide other items.

In cross-examination, it was put to him that control and financial control is a ‘big issue’ for AB. Initially, CD did not seem to appreciate this, but he confirmed that he had no desire to control where she lived and that perhaps references he made during the hearing for him not wanting AB to live in certain areas of Manchester was more out of concern for the particular type of area rather than the geographic location. He seemed to accept when it was put to him that £2,000 may not be sufficient for AB to obtain private rented accommodation given that he could not stand as a guarantor, nor could he provide six months’ rent in whatever area she chose to live.

He indicated that there were unlikely to be any monies due to AB by way of financial settlement in the divorce arising out of the sale of the former matrimonial home, which he said was in negative equity. When asked whether or not AB should move back to Manchester, AB confirmed that if she could afford it and had the ability to look after herself and E, then he had no concerns about Manchester. He confirmed that prior to the relationship breakdown, a decision had been made to move to Tenerife. He was to find a job and AB was to work as a teacher. He confirmed under cross‑examination that these plans came to an end when AB revealed that extra school fees were payable; that the government schools were bad, and they could not afford the private schools.

He doubted whether the option of AB living with her brother on a long-term basis was a realistic option but conceded that it was a nice family home, and that Tenerife was not just a tourist place but had schools and infrastructure and opportunities for AB and E. It was put to him that there would be real advantages to AB if she was able to live in Tenerife: being financially independent; working around school hours; having the support of her family. CD accepted it would be the case for AB but that it would not be in E’s interests.

CD was asked about indirect contact via Zoom and other face-to-face media should the Court accede to the AB’s request. CD was of the view that this was not a good form of communication. He described Zoom calls as being ‘painful’. He confirmed that he had tried to be more creative on Zoom calls, for example, reading and painting, but that E’s attention span was very limited in the light of the fact that she was only five years old and that she soon lost interest in those activities.

He confirmed that he would not be able to go and stay in Tenerife. When the Court asked him whether or not he would be able to afford the six flights a year he would have to take, either taking E to or collecting her from contact, he said he did not know how he would afford it, but that “someone will find it for me”. He conceded that if AB and E remained in the United Kingdom, he would not object to AB having the lion’s share of the school holidays. He indicated that he would not be keen on a four-week summer holiday for E with AB but conceded that if that was what he had to do then that is what he would have to do. He did not agree that remaining in Scotland was the best option. He raised concerns about the travel, the length of travel and also AB being able to continue to fund the contact.

Cafcass

I next heard evidence from the Cafcass officer, Kathy Case. She produced a Section 7 report dated 6 January 2022, which considered who E should live with and whether AB should be allowed to move to Melilla with AB. The report contained a firm recommendation that E remained in the United Kingdom. She also completed an addendum Section 7 report at the request of the Court dated 27 July 2022. This was as a result of AB at the previous hearing indicating that she was considering options that included her and E relocating to Tenerife or Scotland. The firm conclusion of that report was that, again, E should not relocate to Tenerife or Scotland, and indeed, should move back into the jurisdiction of this Court to the northwest of England.

At the beginning of her evidence she indicated that she had considered the statements filed by the parties but that there was nothing in the light of this in her recommendation that she wished to change. When cross-examined by Miss Wren on behalf of AB, she confirmed her concerns with regard to the financial difficulties that would ensue with relation to Tenerife. She agreed that an aspiration to be financially independent was the right aspiration if it could be achieved, but she could see no evidence upon which to form a view that it was likely to happen. She agreed that if the Court were not to allow AB to relocate with E, then the preponderance of holidays should be with AB, but again she expressed some concern as to the cost of fares at holiday time.

She pointed to the unknowns in relation to AB’s housing when she has to move out of the refuge in Scotland and E’s schooling. She acknowledged AB’s support network in Scotland. She confirmed that the exact whereabouts of AB’s relocation to the northwest was a matter for her, and she was of the view that if the AB had become settled in Scotland, then there was no reason why she could not do that in the northwest of England.

In cross-examination from Mrs Porter-Philips on behalf of CD, she confirmed that the welfare of E was her primary concern. She was concerned that E’s relationship with CD had already been disrupted and was also concerned that AB could not see that there was any harm in removing herself and E to Scotland with there being no contact with CD for a significant time. She indicated that this was a major concern for her. She pointed out that E’s relationship with CD had now been re‑established and that this was a “lovely relationship” and that they were happy in the company of each other.

She was of the view that E now needs stability which can be achieved by AB and E moving back to this area. She observed that she had not seen any evidence identifying what positions AB could apply for in Tenerife, and she also saw no evidence as to how schooling and housing costs could be met by AB. She also expressed a concern as to whether or not AB would be able to sustain long distance contact, particularly being able to pay for that contact.

As far as contact with CD was concerned, she expressed her own concern that on AB’s proposal contact would shift from every other weekend to three times a year. It was her view that E is too little to be able to manage these gaps for as long as they would need to be in Tenerife. It was her view that E needed physical contact with CD to maintain the relationship properly. She agreed with CD that Zoom contact was very difficult with children as young as E.

As far as balancing the Scotland/England options, it was her view that this case pointed to the general uncertainty surrounding housing, schooling and accommodation both in the northwest of England and in Scotland. She shared the view put to her by counsel for CD that with regard to a support network in the northwest of England, the Court could have some confidence that as AB had been able to form a support network in Scotland through parents of children at E’s school and others, that it would be likely that she would be able to do the same here. She pointed to the great benefit of not having to travel great distances between here and Scotland, and that that would be a great benefit to E and that it outweighed the other perceived benefits of staying in Scotland. Finally, in response to an inquiry from the Court, she confirmed that her recommendations were based entirely on the presumption that AB would be dependent upon the state for housing and income needs.

I turn, therefore, to my conclusions. AB has presented a range of options for her living arrangements with E. Her preference is to move to Tenerife to live with her brother and his family. If the Court does not permit that, then she wishes to remain in Scotland and has set out her reasons why she does not wish to return to the local area if the Court refuses her applications. I have heard the evidence in this matter, and I have paid particular regard to what I have been told by AB.

On behalf of AB, it was submitted that whilst there was an acceptance that she is faced with a Cafcass report which does not support her desire to relocate, that Cafcass had got the balance wrong. I consider the impact a refusal will have on AB as the primary carer, and I bear in mind AB’s allegations with regard to domestic violence and the reasons why she felt that she had to flee the matrimonial home to Scotland. I am asked to accept that the choice of Scotland was made out of ignorance with regards to jurisdiction rather than any deliberate choice on her part. I was reminded that although she did not promote contact with CD for a significant period, contact is now taking place and has progressed.

On her behalf, it was submitted that to go and live with her Spanish family is in the welfare interests of E, and that such a move would make up for the huge disadvantage AB currently feels in being unable to make a new life for herself in the United Kingdom where she does not feel supported, and that is part of the motivation behind this application. AB, it was submitted, feels isolated here, friendless and just wants to be able to live independently with her family as support.

With regards to the plans themselves, Miss Wren submitted that it is difficult for AB to put concrete plans before the Court in that the permission of the Court is first needed before proper transitional plans can be made. I was reminded of the short to medium-term measures AB has put in place with regard to accommodation and was told that the anticipated school fees of approximately €2,500 a year is something that AB could afford with the support of her family. If the Court refused the application to relocate to Tenerife, then as far as staying in Scotland is concerned, it was submitted on behalf of AB that she has made some connections in Scotland, gaining some employment and some support, and that the thought of relocating back to England was a frightening prospect for AB.

Accepting that relocation would affect E’s relationship with her father, AB proposes that E has the long school holidays with CD.

Discussion & Decision

However, standing back and looking at all the circumstances of this case in a holistic way, the Court cannot endorse a permanent removal from the jurisdiction, whether this is to be Tenerife or Scotland, and I come to that conclusion for the following reasons.

As stated initially, the welfare of E is my paramount consideration, and it is through the lens of the Welfare Checklist that the Court looks at this application. E is too young to express directly her wishes and feelings. What I do know is that E loves both her parents and they both love her in equal measure. Her contact with CD has been supervised at times and observed by Cafcass, who conclude she has a ‘lovely relationship’ with CD who she now sees regularly and that this contact is of a good quality. The Court can be safe, therefore, in concluding that E would want to spend as much time with each parent as possible.

The Cafcass recommendation is based partly on a conclusion that that is indeed what she needs at this stage in her life. The Cafcass officer agreed with CD’s view that contact via FaceTime or Zoom was far from ideal and would do little to preserve the bond that has now been so well re-established. As submitted on behalf of CD, it is safe for the Court to assume that E would wish this bond to continue throughout her minority and beyond.

What the Court cannot be confident about is AB’s willingness to preserve this bond given her move to Scotland, the significant period of time that E did not see CD and, of particular concern, the apparent failure of AB to identify any real harm that this would have caused E in the severing of this relationship with CD, albeit thankfully that it has now been re-established. However, I have to observe that has only come about through significant Court involvement and intervention.

As the Cafcass officer states, AB does not believe she has caused any harm or suffering to E by removing her from her home and CD with little, if any, preparation or planning. It is worrying that AB made no plans at all for E to maintain any contact with CD. The Court cannot be confident, given the background, that the AB’s enthusiasm for contact would remain. I bear in mind the fact that E has dual nationality and has English and Spanish heritage and that she has a right for both these to be promoted. However, as submitted by Mrs Porter-Philips on behalf of CD, the Court needs to look at how this would be maintained.

AB’s plans to move to Tenerife are, in my judgment, shrouded in uncertainty. There is uncertainty as to AB’s employment prospects, housing and E’s education. AB’s proposals quite simply do not provide the Court with any reassurances as to E’s welfare in Tenerife. Undoubtedly, AB will have both emotional and financial support from her family, but there is absolutely no detail before the Court as to precisely what that means in terms of finances.

There is uncertainty as to how often the parties will be able to afford even a minimum level of direct contact. When I asked CD how he would be able to afford flights to Tenerife to return E from contact, he replied with words to the effect that he did not know how he would be able to afford it, but that someone would find the money for him. That can be a little more than an aspiration as far as the Court is concerned. Equally, there is no evidence that AB has the means to finance face-to-face contact.

Without more detailed financial information, there has to be a risk of either AB or CD not being in a position to support direct contact and E, therefore, being at risk of not being able to travel back to the United Kingdom at the very time when the Cafcass officer emphasises the importance of her relationship with CD. At best, E’s contact with CD would change from being every other weekend to three times a year, albeit for prolonged periods and, as I say, for financial reasons there is no certainty or surety that E would be able to visit CD and there is a risk to that contact. Even with the contact that AB proposes, the relationship between E and CD will be massively depleted. This is not, in my judgment, in her best welfare interests.

I contrast this with the preferred scenario of AB, if the Court were to refuse her request, namely that she would move back to Manchester or the Manchester area where she would have the benefit of a Spanish community, family visits here and in Spain and continued financial assistance which AB says is available from her family. In the circumstances that this family find themselves in at the moment, looking holistically at all the circumstances, E’s heritage, the stage in her life, I conclude that this is best met by her parents parenting her jointly here.

The impact of change of residence on the main carer is important and something that the Court should look at when carrying out its broad analysis. I entirely accept that there will be benefits to AB of moving to Tenerife, but I cannot ignore the impact that this would have on E and such a consideration does not, in my judgment, trump the welfare considerations that the Court has to bear in mind. A move to Spain is, as I say, shrouded by uncertainty.

The Cafcass officer told me that she thought this was a right and proper aspiration, but there was no evidence that this was a realistic option in terms of the overall welfare assessment of E. However, what the Court does know and what the Court takes into consideration is that AB is able to work here; that there are job opportunities that she has already taken advantage of, and she has established an ability to work in the United Kingdom. In any event, she will have the benefit of state support with regard to housing and income, which will not be available to her in Tenerife.

AB is currently on receipt of Universal Credit and living in a refuge in Scotland, but again there is uncertainty as to where AB will be placed in the near future and where E will go to school. I am told that she may be able to be placed in Local Authority housing within two to three months, but again there is no evidence of this. There is no evidence that she would be able to stay in the same area where she currently resides. What I do know is that AB will have to move in the near future in any event.

She has said that the travel between Scotland and England is unsustainable and again that gives the Court concerns with regards to the stability of contact. There is a very firm recommendation from the Cafcass officer that removal to Tenerife or remaining in Scotland should not be sanctioned. I accept that the parties did discuss moving there as a family, but AB’s proposal is very different to the proposal where E would live there with both parents. The Cafcass officer confirmed to me today that she stood by her recommendations and the reasons she outlines in her report. This is after consideration of the parties’ evidence, and it has not been submitted to me that there is anything unfair, improper or indeed missing from the Cafcass report and its analysis.

It is put to me that Cafcass got the balance wrong. The Cafcass recommendation that E’s welfare is better cared for in the northwest of England is based on the Cafcass officer’s knowledge that AB would be dependent on the state living here or in Scotland. I find no reason to disagree with the conclusion of the Cafcass officer. In my judgment, she has produced a well-balanced and recent report, as is the addendum. Therefore, stepping back and looking at this case, there are no realistic proposals that the Court can rely on as far as relocation is concerned, there are just so many uncertainties.

AB has had 18 months to furnish the Court with the type of information that is needed but has not been able to do so. As far as stability and security are concerned in relation to E, the Court knows of the financial certainties that the state will provide in relation are providing housing and income. As previously stated, and on the AB’s own evidence, travel between here and Scotland is not sustainable in the long term. I know that this decision will be disappointing for AB, but I place on record the fact that CD has offered to assist AB with the short-term cost of accommodation and support, and that this support will be available to her wherever she wishes to relocate in the northwest, including Manchester.

Conscious of E’s dual heritage, I see no reason why, once AB is firmly re‑established in this area, she cannot take extended holidays with her family in Spain or Tenerife or indeed anywhere else they would wish to meet, and one would hope that CD would be supportive of that.

For these reasons therefore, AB’s application to relocate is refused.

End of Judgment

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	England and Wales Family Court Decisions (other Judges)
You are here: BAILII >> Databases >> England and Wales Family Court Decisions (other Judges) >> E (Relocation - choice between various options within and without the jurisdiction) [2022] EWFC B22 (04 October 2022) URL: http://www.bailii.org/ew/cases/EWFC/OJ/2022/B22.html Cite as: [2022] EWFC B22

England and Wales Family Court Decisions (other Judges)