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S v G [2015] EWFC 4, High Court, Jackson J, 14.1.15
Both parents sought orders that their son, 2 ½ yo, should live with them & M sought permission to relocate to Moscow. M was Russian and F British. The child had dual nationality and had spent a year in Russia and the remainder of his life in England. Permission was granted to M to relocate.
Jackson J took his lead from Hedley J as set out in S v T (Permission to Relocate to Russia) [2012] EWHC 4023 (but not because it was another case involving Russia) in which he said:
“4. Transnational parenting is an increasing phenomenon in the experience of family jurisprudence in England and Wales. It is important to remember that it is brought about by the choice of the parties concerned. It is necessary to recognize that transnational parenting brings a very high price to either of both in the event of a relationship breaking up. It is a fact, certainly in my experience, that the impact upon breaking up is devastating upon one parent or the other and sometimes both. But a system of private law in which responsibility is very firmly placed with parents – and the court interferes really only at their request – depends upon the court assuming that parties that go into transnational parenting agreements go in with their eyes wide open, fully alert to the consequences of it going wrong. Of course that is a somewhat artificial assumption, but it is one necessary to be made in transnational parenting is to be accommodated within the philosophy of Parts I and II of the Children Act 1989. Accordingly, the undoubted grave impact on parents will really only weigh with the court if and insofar as that impact has its effect on the child with whom the court is concerned.
5. The parties have helpfully drawn my attention to three key cases in the Court of Appeal which now govern this area of the law. They are Payne, K v K (Relocation: Shared Care Arrangement) [2011] EWCA Civ 793 and Re F (Relocation) [2012] EWC CIV 1364. In my judgment these cases establish he following propositions. First, that the child’s welfare remains the court’s paramount consideration as prescribed by s 1(1) of the Children Act 1989. Secondly, in discharging the obligation to make the child’s welfare paramount, the court is to have regard to the checklist applicable in s 1(3) of that Act. Thirdly, in furtherance to the views of Black LJ in K v K and Munby LJ in Re F, the court should not categorise cases in accordance with the concepts of primary or shared care, but should use the facts of the case and the answers arrived at in consideration of the checklist to describe the arrangements for care on the ground as they may have been, as they are at date of the hearing and as the parties intended them to remain had it not been for the question of relocation.
6. However, the cases also establish that there are certain issues which are specific to an application for permission to relocate permanently, an application which has its own distinctive and far-reaching consequences. Amongst those issues are principally these:
(1) To scrutinize the proposals of the applicant bearing in mind that in a going home case that may be a less arduous undertaking than if it is an entirely new venture.
(2) To scrutinize the motives of the applicant in making the application and, in particular, considering whether or not a significant motivation is to exclude the other parent from the life of the child.
(3) To scrutinize the motives of the left behind parent who objects, in particular to check that the reasons for the objection are truly child-centred and are not simply part of an adult battle about rights.
(4) The court must scrutinize the impact of relocation upon the left behind parent and his or her extended family whilst of course recognizing that relocation may bring benefits in terms of widening the network of extended family by including the proposed country of return.
(5) The court should scrutinize the impact on the applicant of the order being refused or on the respondent of the order being granted, but, for the reasons I have given, this impact will be relevant generally only insofar as it impacts on the child.”
At different times both parents had had full-time care of the child, the mother for longer, then the F for a period of time after M assaulted him following an argument. F used cannabis which at times reduced his active participation in family life and his motivation to support the family by working and continued to use up till the hearing, whilst denying it. The relationship had been volatile, with arguments in front of the child but it was M who used violence. The court found her behaviour to be unacceptable but a feature of the relationship rather than a more general concern. M would be likely to be allowed to remain in the UK but subject to lengthy procedures before her position was secure. She would be unlikely to be able to work full-time or achieve a significant income. M would have financial support from a cousin, whether she lived in England or Russia. She would be much more likely to thrive & play to her obvious strengths in Russia. M had realistic proposals for returning and caring for the child in Russia and this was not in issue. M would have little support from F’s family if she remained in the UK and did not have much other support. The ISW recommended that the child should remain in the UK, but Jackson J did not feel able to accept the recommendation. Although generally very experienced, she was not experienced in relation to relocation cases and had placed to much emphasis on the immediate impact on the child of separating from his F and F’s family, rather than weighing that against the longer-term issues.
