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Family Law

The leading authority on all aspects of family law

18 JAN 2016

Re B (Children) [2015] EWCA Civ 1302

Re B (Children) [2015] EWCA Civ 1302
(Court of Appeal, Longmore, McFarlane LJJ, Henderson J, 21 December 2015)

Private law children – Relocation – Application to relocate to UAE - Evaluation of risk posed by mother – Adequacy of protection available

The father’s appeal from a decision permitting the mother to relocate to UAE with the children was dismissed.


When the unmarried parents of the two children, aged 13 and 11, separated a shared residence order was put in place. The mother’s new partner was based in Abu Dhabi and the mother and children had visited him there on a number of occasions with the father’s consent.

Prior to her marriage the mother applied under s 8 of the Children Act 1989 for permission to relocate to Abu Dhabi with the children. The father opposed the application. A jointly instructed expert reported that although the parents had been unmarried the father’s parental rights would be respected by the courts in the UAE to the extent that any rights reflected in an English court order could be enforced there. The mother was granted permission to relocate subject to a requirement for the parties to enter into a formal agreement regarding childcare arrangements which was to be approved by the relevant Sharia authorities, endorsed by the relevant court in Abu Dhabi and made into a lawful order in a manner that would permit future applications for enforcement.

When the father’s lawyer contacted an expert in UAW family law she advised that the Abu Dhabi court would not recognise any parental rights of an unmarried father and that the concept of the proposed agreement being enforceable in Abu Dhabi was misconceived. When the matter returned to court the previous expert accepted the revised advice and therefore, the judge reconsidered his earlier decision and gave further judgment.

The mother was granted permission to remove the children from the jurisdiction on the conditions that: the children were made wards of court during their minority or until further order; the mother’s partner was to execute a second charge of £250,000 on a property owned by him in London to be forfeited in the event of a breach of the arrangements for the children. The father appealed.

The appeal was dismissed. The law on penalties did not apply to stipulations for payment of money upon the happening of a specified event other than a breach of a contractual duty owed by the contemplated payor to the contemplated payee. Any fear that the charge might have been unenforceable as a penalty had been understandable but misplaced. Since the mother’s partner had agreed to the charge after taking independent legal advice there was no good reason why a court of equity should relieve him from the obligation even assuming the principles of relief from forfeiture might potentially be engaged.

The use of wardship was not justified where it might serve to confuse the issue of jurisdiction in the future, when that issue should be clear and where the continued status of wardship might be seen to be an exorbitant jurisdictional claim. In the circumstances of the present case the need for the use of wardship was questionable and added nothing to the court’s powers over and above those arising from a child arrangements order. Continuing wardship status would cause ambiguity as to whether the English court had ongoing jurisdiction when as a matter of international law ordinarily it would not. The wardship order would be replaced by a child arrangements order.

The judge had been entirely seized of the relative importance of and full detail of every relevant factor in the case. He conducted a thorough welfare analysis. It was not open to the appeal court to accept the father’s submission that the original welfare balance had been wrong and unsustainable.

The father’s submission with regard to the European Convention did not add anything to his case. Relocation of the children was plainly an interference with his Art 8 right to family life and the rights of all family members were engaged. The legal position of the father under the UAE law was a relevant factor but was not a trump card. The judge had been alive to the risks of the mother not adhering to the court order but had nevertheless come to the conclusion that it was otherwise in the children’s best interests to move.

The judge had not been in error in considering the charge as an enforceable security against future compliance by the mother and her partner. The judge had further considered that the children’s strong attachment to the father and the premium that they would put upon requiring the mother to maintain that relationship added to the strength of the provisions of the order. The appeal was dismissed. The order would be altered replacing the wardship order with a child arrangements order and making clear that there had to be recourse to the court before a breach could trigger implementation of the charge on the London property.


Case No: B4/2015/2039

Neutral Citation Number: [2015] EWCA Civ 1302

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE, FAMILY DIVISION

HHJ Glenn Brasse

ZC14P00103

Royal Courts of Justice

Strand, London, WC2A 2LL

 

Date: 21/12/2015

Before  :

LORD JUSTICE LONGMORE

LORD JUSTICE MCFARLANE

and

MR JUSTICE HENDERSON

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Re: B

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Mr  Charles Hale QC (instructed by Kingsley Napley Llp) for the Appellant

Mr Alex  Verdan QC (instructed by Levison Meltzer Pigott) for the Respondent

Hearing date: 27th October 2015

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 Judgment

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