England and Wales County Court (Family)

HHJ Watson :

1.                  The Applicant Father, seeks a shared residence order, and seeks to take S to California, USA for extended periods of time during the school holidays. Paternal Grandmother, seeks contact on alternate week ends , overnight from Saturday to Sunday with her granddaughter during which time she will facilitate skype contact with father in America. Mother does not oppose the principle of holiday contact in America but there is a dispute about the length of the stay. She does oppose a shared residence order preferring that S should reside with her under a sole residence order. Mother disputes the frequency of contact with paternal grandmother and the extended paternal family and suggests that contact once every three weeks is preferable because it allows mother quality time at week ends with her daughter particularly as she sometimes has to work overtime at week ends. She would initiate weekly skype contact on her smart phone so S did not miss out on indirect contact with her father.

2.                  The parties have been able to agree many aspects of the applications but have asked the court to resolve the outstanding issues.

3.                  After hearing evidence from mother and the CAFCASS officer the paternal grandmother has given clear instructions to her barrister Miss Popley that she wishes to put the past behind her and re build trusting relations with the maternal family. She recognises mother’s work commitments and agrees with mother’s proposal of three weekly visits to the grandmother’s home. In the spirit of compromise and co operation mother has also agreed that contact will end at 12 noon on Sunday when S will be collected from the Temple. A rift between grandmother and maternal grandfather has been resolved amicably having heard evidence from mother about the perception of the event through the grandfather’s eyes and he can now be fully involved in handovers as before.

4.                  I heard oral evidence from the cafcass officer, Ms Letisha Williams. She had not had any involvement with the family since her last report in September 2013 and told the court that she noticed a marked change in the attitude of mother towards contact, her general demeanour and attitude had changed and she agreed that things had moved on.

5.                  S was born on 3 December 2009 and is the child of Mother and Father who were a married couple at the time living in America although both were brought up in the UK. Father is a university Professor at a prestigious research institute in California. When the parties separated in 2009 Mother and S returned to this city to reside with the maternal grandparents. Mother and S remain living with maternal grandparents. The paternal family also live in the city a 5-10 minute drive from the maternal family home. Although mother drives she does not have a car and is reliant on her father to drive her. Paternal grandmother does not drive and she is dependant on others for lifts.

6.                  Unfortunately there was an incident between the maternal grandfather and paternal grandmother which resulted in an exchange of words on 8 February in front of S which has now been resolved between the parties in the interests of their joint grandchild.

7.                  S was just 3 months old when her parents separated and she returned to this city with her mother. The parties subsequently divorced and father has a fiancée and plans to marry and have a family. I have not been told that mother has any plans to remarry. Mother is, I understand, a qualified solicitor and works for the Law Society in an administrative capacity. She is on a temporary contract but hopes to secure permanent employment. She works 35 hours Monday to Friday and has normal holidays. Additionally she has been asked to do overtime at weekends whilst the Law Society is installing a new financial system. She told the court that she feels that she has to do the overtime in order to put herself in the best position to secure a permanent position. The court is sympathetic to that sentiment in the current job market

8.                  Since January the parties have moved away from the three weekly arrangement for contact with paternal grandmother agreed previously at court to a fortnightly pattern of visiting contact on a Saturday with handovers at a local Temple. Mother gave evidence that this was not working for her and S because mother has been working overtime and has not been able to spend time with her daughter because of the frequency of the contact arrangements. The paternal family are extensive and S has been able to spend time with them and has enjoyed that. The father has good quality skype contact with S. From the paternal side the fortnightly contact was working well but overnight would be preferable because it would allow skype contact at S’s bedtime which coincides with early mornings for father in America.

9.                  Father believes S is now ready to travel to the USA with paternal grandmother and other extended family members to enjoy contact in father’s home. Mother agrees that she is ready but is cautious about rushing things for S. She had a bad experience in India when she had taken S aged two for a holiday in India but although S was with her mother and grandmother she did not settle and cried at night and wanted to go home. Mother had to return to England early and S had been fine on her return. She is concerned that the longest S has been away from her is four nights over Christmas when S stayed with her father at the home of the paternal family and mother fears that she might become very distressed and homesick and would be a very long way from home. Father says that S is comfortable with him and that she can skype her mother daily or every other day. He is confident S would cope well and enjoy time in her father’s home.

10.              Mother has agreed a progressive plan for holiday contact in America which builds from 7 days at Easter in the USA to 3 weeks in the Summer holidays and 10 days at Christmas. Father is agreeable to this staged approach but requests 7 consecutive nights at Easter and 10 nights at Christmas. From 2015 all parties are agreed that contact should be for 6 weeks in the summer and 1 week in the UK for both Christmas and Easter or Spring Break which is the American equivalent. In 2016 4 weeks in the USA over the summer, two weeks at Christmas in the USA and 1 week at Easter in the UK. The arrangements will then alternate as in 2015 and 2016.

11.              Ms Williams was rather concerned that 6 weeks might be too much for S and would have preferred a shared school holiday arrangement.

12.              In my judgment the arrangements are carefully thought through and are reasonable arrangement for a child whose parents live on different continents and who will have to travel significant distances long haul. She needs to have extended periods of time to settle into her father’s home and to enjoy family life with him. Father works in education and has the advantage of extended academic holidays whereas mother works regular full time hours. The agreed arrangements maximise the time S can spend with her father during school holidays when otherwise her mother is working. I am satisfied that both parents have agreed what will meet S’s needs and meet her best interests.

13.              The parties reflected overnight on the views of CAFCASS and mother and agreed that S will be returned to her mother’s care in good time to allow 4 full days for S to recover from the flight and get ready for the return to school.

14.              In any proceedings in which any question with respect to the upbringing of a child arises the child’s welfare shall be the court’s paramount consideration.

15.              Child development research referred to in the CAFCASS report of Ms Williams reminds the court and the parties that “ children are more likely to attain their psychological potential when they are able to develop and maintain meaningful relationships with both their parents, whether the two parents live together or not” ( Kelly and Lamb 2003).

16.              It is important for S to have the opportunity to develop her relationship with her father.

17.              S is described as a well adjusted and happy child when in the care of either parent. It is a credit to her mother that S is such a happy and well adjusted child and can go happily to stay with her paternal family. It is also a credit to the care she receives from her father and paternal grandmother that she can settle so well with them and return happily to her mother at the end of contact. S attends nursery and the nursery staff confirm that she is an emotionally attuned and well adjusted child.

18.              Having regard to the welfare checklist I have no doubt that S’s wishes and feelings would be to maintain the strong and healthy relationships she has with all the important people in her life. I have to have regard to her circumstances as a much loved child who has two extended families and a father who lives and works in the USA. Both parents are able to meet her physical, emotional and educational needs and she has no special characteristics which mean she should be treated differently from any other 4 year old. Travelling to America will be a very dramatic change in her circumstances but her parents have agreed that she will be accompanied by a familiar adult, her father or grandmother or paternal aunt in future years and there is no reason to doubt that her father will provide her with a suitable bedroom and toys to stimulate and amuse her. S is a child who is used to speaking to her father by skype and will adjust to speaking to her mother in the same way. There are no welfare considerations and either parent is well able to meet her needs.

19.              Mother is bound to be anxious, that is normal, but this for S is an adventure, an opportunity and a natural development of the bond she has with her father. Mother will remain pivotal in the care of her daughter. It is agreed that S is habitually resident in England and that she is well integrated into the community and will be attending a primary school in this city. S has always been in the care of her mother and the arrangements which provide for the time S spends with her father are intended to promote her relationship with her father but not to undermine her relationship with her mother. Both her parents are equally important for S’s emotional well being.

20.              Father seeks a shared residence order so that he has a greater input in the decision making process and that the importance of his role in S’s life is recognised by her mother. He believes that her dual residence status will give her long term benefits both in the UK and USA in relation to education and life chances.

21.              Mother resists this saying that residence should reflect the reality of the situation. To use the words cited in the skeleton argument of Ms Buxton on behalf of mother the court order should reflect the underlying reality of where the children live their lives. She sees no reason to change the residence status from the current interim residence order. She is willing to keep father informed and has promised to send him a monthly newsletter. S resides in the UK. Her home is in the UK and when she goes to America it is for a holiday with her father. Mother could foresee difficulties with a “shared residence order” because she had encountered problems with the interim residence order. When pressed to say who she had shown the order to she said the health visitor, nursery and the Indian Embassy when applying for a visa. She suggested that she had encountered problems because the order was an interim residence order.

22.              I am quite satisfied on the evidence I heard that it was not the interim residence order that caused difficulties for mother but her decision to take S out of the jurisdiction of the court to India without first obtaining the written consent of father. The interim residence order made 29 July 2011 at D33 in the bundle was unambiguous in its terms when a residence order is in force no person may remove the child from the UK without the written consent of every person with PR for the child. Father only learnt that she had taken S to India, not once but twice, when the child’s medical records were produced and references seen to vaccinations and foreign travel advice. I accept his evidence that he was not consulted and it is not disputed that written consent was not sought but in my judgment neither was he told about the trip.

23.              Mother has recently obtained a smart phone with skype facilities but notwithstanding much correspondence about mother’s lack of access to the internet and inability to skype at earlier hearings she did not tell father. It was only at court that she offered skype contact with father. Sadly this does not give the court confidence that she would actively promote contact by different means if not prompted by a court order.

24.              On the other hand the court must put into the balance the spirit of co operation and compromise between all parties that has emerged at and during the course of this the final hearing, which is a positive indicator for the future.

25.              I have been referred to the case of Re D 2006 FLR 1006 which is a case illustrating that a shared residence order was appropriate where children would be spending significant amounts of time in the UK and USA. Another case where a shared residence order was made across jurisdictions is Mv H 2008 1 FLR 1400.

26.              I remind myself that I have to have regard to S’s short, medium and long term well being. There has recently been a significant shift in case law in favour of shared residence and this trend is likely to continue when the Children and Families bill becomes law.

27.              For S I can summarise the advantages as underlining the importance of the role of each of her parents in her life. Promoting co operation between the parents. Reinforcing the importance of contact with the other parent. Ensuring that all important decisions in her life are taken jointly. In short emphasising that both parents are equal in the eyes of the law. Mother does not agree with such a course because it is, she says, unnecessary and does not reflect the reality of the child’s life.

28.              In my judgment the advantages for S outweigh the disadvantages. S will be spending significant time in America in the sole care of her father who will be making all the day to day decisions for her whilst she resides with him, just as mother does now and will continue to do in the future. Mother has not always involved father in important decisions for S and that needs to change. School and visa applications are just examples of important decisions coming up. S will have two homes; one with her mother and one with her father. She will also spend time at the home of her paternal grandmother. The shared residence order is a reminder that S has two parents and that each needs to consult the other about matters concerning their daughter.

29.              Now that I have resolved the issue of residence I need to consider what arrangements should be in place to ensure she maintains a secure and stable home life with her mother in the UK as well as her father in the USA.

30.              It is agreed that S will go to school from her mother’s home and that her mother’s role is pivotal. During term time it will be mother who establishes the daily routines and organises her out of school activities. Contact with the paternal family is important and needs to be promoted but there has to be a balance between her home life with her mother and her contact with her paternal family. I accept mother’s evidence that the fortnightly contact has greatly impacted on her precious week end time with her daughter and now that overnight contact has been agreed for paternal grandmother it is possible for grandmother to have good quality contact but less frequently.

31.              Contact for Grandmother will take place every three weeks by agreement and will be from 11 on Saturday to 12 noon on Sunday. Grandmother will collect S from her home on Saturday and mother will pick her up from Temple on Sunday.

32.              Mother will facilitate weekly skype chats between S and her father which will take place on Saturday at a mutually convenient time and will be in addition to the skype communication when with the paternal family.

33.              I can see no reason why Easter contact in 2014 should not be for 7 consecutive nights in the USA which will allow S to recover from her long haul flight, settle into routines at her father’s home before making the return journey. S will be returned to her mother immediately upon her return.

34.              Similarly there is very good reason to make the contact at Christmas a reasonable period but 10 consecutive nights in the USA will not give S (aged just 5 in December 2014) sufficient time to recuperate from the excitement of the Christmas term and I direct that she should spend 9 consecutive nights but S must return to her mother in good time to settle before the start of the new school term. As she gets older she will be better able to cope with less recuperation time. I remind myself of mother’s evidence that she did not settle well in India aged 2.

35.              S is very fortunate to have parents who love her deeply and wish only to do what is best for her. She is also fortunate to be well integrated into loving extended families on both sides. The adults should remember that she is a 4 year old child and she needs to be given support whilst she settles into her new routines and all the adults should be sensitive to her wishes and feelings and co operate with each other in making these arrangements work.

36.              The Court, if asked, will make orders, but the people best placed to make decisions for S are her parents. These proceedings started when S was less than one year old. The court has made a shared residence order so both parents can now take responsibility for making the important decisions for their daughter in the future.