All your resources at your fingertips.Learn More
Family Division, Holman J
Removal from jurisdiction - Mother applied for permission to relocate with her child to Tanzania to live with her new husband - Father lived in UK, was in a new relationship and had two further children - Whether a relocation was in the child's best interests
9 March 2012
The African parents had a 6-year-old child together but were no longer in a relationship. The mother was a British citizen and the father had been granted indefinite leave to remain. The father was in a new relationship and had two further children while the mother had also commenced a new relationship and was married. She was now expecting a child with her husband and sought permission to relocate with the child to Tanzania. The child had always been cared for well by the mother and while the father had regular contact including overnight stays with the child, he had recently not been consistent in maintaining contact. The mother's husband was a successful business man in Tanzania and owned his own home. He could not realistically move from Tanzania to the UK not least because he would have no right to live here and because he had a close connection with Tanzania where he also had a daughter who he saw on an almost daily basis. The mother proposed in addition to frequent indirect contact that she and her husband would pay for the child to travel to England twice a year and spend 6 weeks with the father every summer and 3 weeks at Christmas. The child's wishes and feelings were difficult to ascertain and she had given conflicting reports to the Cafcass officer. Her report advised against allowing the mother's application but during oral evidence the Cafcass officer said that she had not been required to consider an application to relocate before and that the decision was a very fine one.
Held - granting the mother permission to relocate -
(1) The welfare of the child was the paramount consideration having regard to all the matters listed in s 1(3) of the Children Act 1989. The material and physical advantages of a move to Tanzania were at least equal to, and probably greater than, any such advantages of living in England. Her educational needs were likely to be as well met in either country and the important need for a continuing good and loving relationship with her father could be met by the shared residence proposals of the mother and her husband. Consideration was also had to the disadvantage of the child living in a situation where her mother and half sibling were effectively kept for much of the year away from their husband and father respectively. That was not to create any primacy for the mother's application but balancing all the factors it was clearly in the overall best interests of the child herself to allow the mother's application (see paras , , ).
(2) Applying the important filters in Payne v Payne the application had to be genuine in the sense that it was not motivated by some selfish desire to exclude the other parents from the child's life. It had to be realistic, well founded on practical proposals which were both well researched and investigated. The mother's application satisfied those conditions and was motivated by a genuine desire to lead a normal married life with her husband with whom she had a genuine and loving marital relationship. It was realistic since it involved relocating to a secure and established home environment which she knew well (see paras , ).
(3) The child's wishes and feelings were an important factor to take into consideration. In this situation the child's age and level of understanding were very relevant and the issues surrounding the advantages and disadvantages of a move were far too complex and sophisticated for her to be able fully to grasp or evaluate. It was not surprising that she expressed a preference for present certainties than for a less clear or certain alternative. As such her views were not a factor of decisive weight (see para ).
Order your copy today and get the Autumn Supplement