The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.
Neutral Citation Number [2003] EWHC 596 (Fam)
Case No: FD02P00613
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
26 March 2003
Before :
THE HONOURABLE MR JUSTICE CHARLES
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Between :
IAN HAROLD C
Applicant
- and -
AGNES C
Respondent
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Judith PARKER Q.C. and Deborah EATON (instructed by Manches) for the Applicant
Michael NICHOLLS (instructed by Triggs Wilkinson Mann) for the Respondent
Hearing dates : 26/27/28 February, 2003
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HTML VERSION OF JUDGMENT
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Mr Justice Charles:
Introduction
- In this case the mother of two boys seeks permission to take them to live with her in Singapore. The boys are now aged just 11 and 8 and three quarters. The father of the two boys opposes the application. He has a cross application for a residence order. This application started as an application for defined contact but was amended to include an application for a residence order. The order in which the applications were made was that the father's application for defined contact was first, it was followed by the mother's application and the amendment to seek a residence order was then made.
- The mother and father were married in 1989 and they separated in May 1999 (when the boys were aged 7 and 5). The mother petitioned for divorce in July 2002 and a decree nisi is expected shortly.
- The mother and father met in 1987 in Singapore. Later that year the mother moved to this country and as I have said she married the father in 1989.
- The mother was born and brought up in Singapore and her parents and siblings still live in Singapore. The father is English and was brought up in this country. His family live here.
- The marriage was in England and since the marriage the family home has been in England. It follows that the children's home has been in England throughout their lives. They do not speak any dialect of Chinese.
- Both the boys are intelligent and able children who greatly impressed Dr Berelowitz. He is a consultant child and adolescent psychiatrist who prepared a report in connection with these proceedings and gave oral evidence. I pause to comment that I am grateful to him for his help. He had clearly thought carefully about the issues that arise in this case. He gave his evidence as an expert should.
- Prior to the involvement of Dr Berelowitz a Child and Family Reporter had been directed to see the family and write a report. She, too, gave evidence before me. I am also grateful to her for her assistance and comment that she, too, had clearly taken care in preparing her report and gave her evidence as a Child and Family Reporter should.
- Both Dr Berelowitz and the Child and Family Reporter helpfully set out what they had been told by the two boys.
- Dr Berelowitz confirmed in his evidence that in his view all the members of the family were giving him an open account of the issues and pressures as they saw them. In this he included the two boys and the manner in which they expressed themselves to him was part of what impressed him about them.
- I heard evidence from the mother and the father. This case raises very difficult issues for both of them, and in my judgment they were both doing their best to give an accurate account of relevant matters from their respective viewpoints.
- The respective accounts of the marriage given to Dr Berelowitz by the mother and father demonstrate that they both considered it to be an unhappy marriage from an early stage. Unsurprisingly the reasons they give for this differ. But the sad and common picture is one of an unhappy marriage and a difficult relationship between themselves but one in which, to their credit, they both developed close attachments to the children which each parent respectively and the children greatly value and enjoy.
- It is common ground that both parents love the children deeply.
- In his report Dr Berelowitz describes the children's attachment to each of their parents in the following terms:
"Assessment
1. The children's attachment to each of their parents.
Both children are clearly very closely attached to both parents. There is no doubt that their mother and father are the key attachment figures in their lives.
The difficulty for them and for us is to do with the way their attachments and their relationships with each parent have been affected by the marital breakdown. The children described these effects very clearly to me. I will simply summarise those effects below.
Firstly, they are very preoccupied with their mother's state of mind. Both boys are painfully aware of mother's low mood, and of her profound sense of being out of place in the United Kingdom. For both of them, a primary reason for moving to Singapore is to ensure the happiness of their mother.
Secondly, the children are dismayed with their father for having left the family home. Although they love him very much, this does not dilute their sense of having been betrayed by him. To some extent, they behave as though they are talking about very concrete facts rather than having a sense of going through a psychological process. For example they do not seem to have the notion that they have hurt feelings, and that these feelings might well change over time."
I accept that assessment.
- It is common ground that in this case difficult issues arise in determining what would best promote the welfare of the children. The causes for such difficulties include the breakdown of the marriage, the unhappy relationship between the parents during and after the marriage, the respective characters and emotions of the parents and, of course, the attachment that the boys have to their parents, the impact on them of the breakdown of the marriage (together with the problems and difficulties that have ensued) and the possible impact on them of a move to Singapore or the refusal of the mother's application.
- Difficulties of this kind are far from being unusual in cases of this type.
My approach in law
- The Court of Appeal have recently given guidance as to the approach to be adopted in cases such as this in Payne v Payne [2001] 1FLR 1052.
- At paragraph 27 of his judgment in the Payne, Thorpe LJ sets out the purpose and effect of guidance.
- This is a case which fits into the factual matrix referred to by Thorpe LJ in Payne and at paragraphs 31 and 32 of his judgment he says this:
[31] Logically and as a matter of experience the child cannot draw emotional and psychological security and stability from the dependency unless the primary carer herself is emotionally and psychologically stable and secure. The parent cannot give what she herself lacks. Although fathers as well as mothers provide primary care I have never myself encountered a relocation application brought by a father and for the purposes of this judgment I assume that relocation applications are only brought by maternal primary carers. The disintegration of a family unit is invariably emotionally and psychologically turbulent. The mother who emerges with the responsibility of making the home for the children may recover her sense of well-being simply by coping over a passage of time. But often the mother may be in need of external support, whether financial, emotional or social. Such support may be provided by a new partner who becomes stepfather to the child. The creation of a new family obviously draws the child into its quest for material and other fulfilment. Such cases have given rise to the strongest statements of the guidelines. Alternatively the disintegration of the family unit may leave the mother in a society to which she was carried by the impetus of family life before its failure. Commonly in that event she may feel isolated and driven to seek the support she lacks by returning to her homeland, her family and her friends. In the remarriage cases the motivation for relocation may well be to meet the stepfather's career needs or opportunities. In those cases refusal is likely to destabilise the new family emotionally as well as to penalise it financially. In the case of the isolated mother, to deny her the support of her family and a return to her roots may have an even greater psychological detriment and she may have no one who might share her distress or alleviate her depression. This factor is well illustrated by the mother's evidence in this case. As recorded in Miss Hall's note she said:
"Things happen and I think I can't stand it. I've got to go home. But then I see S and I calm down and I think I can't leave her .... I would give it a really good try to be a mother to S here but in my heart of hearts I think I would not be able to do it."
[32] Thus in most relocation cases the most crucial assessment and finding for the judge is likely to be the effect of the refusal of the application on the mother's future psychological and emotional stability.
- To my mind an important point in the judgments in Payne is that both the President and Thorpe LJ make it clear that the reasoning and approach in Poel v Poel [1970] 1 WLR 1469, and thus the existence of a genuine and reasonable wish of the custodial parent to move outside the United Kingdom, does not create a presumption in favour of permission for such a move being given (see paragraphs 40 and 25).
- In paragraphs 26, 40, 41 and 42 Thorpe LJ gives the following guidance:
[26] In summary a review of the decisions of this court over the course of the last thirty years demonstrates that relocation cases have been consistently decided upon the application of the following two propositions:
(a) the welfare of the child is the paramount consideration; and
(b) refusing the primary carer's reasonable proposals for the relocation of her family life is likely to impact detrimentally on the welfare of her dependent children. Therefore her application to relocate will be granted unless the court concludes that it is incompatible with the welfare of the children.
[40] However there is a danger that if the regard which the court pays to the reasonable proposals of the primary carer were elevated into a legal presumption then there would be an obvious risk of the breach of the respondent's rights not only under Article 8 but also his rights under Article 6 to a fair trial. To guard against the risk of too perfunctory an investigation resulting from too ready an assumption that the mother's proposals are necessarily compatible with the child's welfare I would suggest the following discipline as a prelude to conclusion:
(a) Pose the question: is the mother's application genuine in the sense that it is not motivated by some selfish desire to exclude the father from the child's life. Then ask is the mother's application realistic, by which I mean founded on practical proposals both well researched and investigated? If the application fails either of these tests refusal will inevitably follow.
(b) If however the application passes these tests then there must be a careful appraisal of the father's opposition: is it motivated by genuine concern for the future of the child's welfare or is it driven by some ulterior motive? What would be the extent of the detriment to him and his future relationship with the child were the application granted? To what extent would that be offset by extension of the child's relationships with the maternal family and homeland?
(c) What would be the impact on the mother, either as the single parent or as a new wife, of a refusal of her realistic proposal?
(d) The outcome of the second and third appraisals must then be brought into an overriding review of the child's welfare as the paramount consideration, directed by the statutory checklist insofar as appropriate.
[41] In suggesting such a discipline I would not wish to be thought to have diminished the importance that this court has consistently attached to the emotional and psychological well-being of the primary carer. In any evaluation of the welfare of the child as the paramount consideration great weight must be given to this factor.
Cross Applications
[42] In very many cases the mother's application to relocate provokes a cross application by the father for a variation of the residence order in his favour. Such cross applications may be largely tactical to enable the strategist to cross examine along the lines of: what will you do if your application is refused? If the mother responds by saying that she will remain with the child then the cross examiner feels that he has demonstrated that the impact of refusal upon the mother would not be that significant. If on the other hand she says that she herself will go nevertheless then the cross examiner feels that he has demonstrated that the mother is shallow, or uncaring or self-centred. But experienced family judges are well used to tactics and will readily distinguish between the cross application that has some pre-existing foundation and one that is purely tactical. There are probably dangers in compartmentalising the two applications. As far as possible they should be tried and decided together. The judge in the end must evaluate comparatively each option for the child, one against another. Often that will mean evaluating a home with mother in this jurisdiction, against a home with mother wherever she seeks to go, against a home in this jurisdiction with father. Then in explaining his first choice the judge will inevitably be delivering judgment on both applications.
- In his concurring judgment Robert Walker LJ records that Poel still has continuing authority in the manner explained by the President and Thorpe LJ.
- At paragraphs 85 and 86 of her judgment the President gives the following guidance:
[85] In summary I would suggest that the following considerations should be in the forefront of the mind of a judge trying one of these difficult cases. They are not and could not be exclusive of the other important matters which arise in the individual case to be decided. All the relevant factors need to be considered, including the points I make below, so far as they are relevant, and weighed in the balance. The points I make are obvious but in view of the arguments presented to us in this case, it may be worthwhile to repeat them.
(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.
(c) The reasonable proposals of the parent with a residence order wishing to live abroad carry great weight.
(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 and the new family of the child of a refusal of leave 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.
[86] All the above observations have been made on the premise that the question of residence is not a live issue. If, however, there is a real dispute as to which parent should be granted a residence order, and the decision as to which parent is the more suitable is finely balanced, the future plans of each parent for the child are clearly relevant. If one parent intends to set up home in another country and remove the child from school, surroundings and the other parent and his family, it may in some cases be an important factor to weigh in the balance. But in a case where the decision as to residence is clear as the judge in this case clearly thought it was, the plans for removal from the jurisdiction would not be likely to be significant in the decision over residence. The mother in this case already had a residence order and the judge`s decision on residence was not an issue before this Court.
- It is also instructive to look at the summary of the position given by Clarke LJ in Re S (a child)(residence order) No 1 [2001] 3 FCR 154 at paragraph 37 which is approved by the President in Re S (a child)(residence order) No 2 [2003] 1 FCR 138. When considering cases where a condition is sought to be imposed on where a principal carer is to live with a child within the United Kingdom, and this class of case, Clarke LJ says:
"--------------- The principal carer will ordinarily by entitled to move to wherever he or she wishes. However in the Payne v Payne class of case the application will ordinarily be granted unless the court concludes that it is incompatible with the welfare of the child. ---------------------
- What I take from this guidance and my approach in law in is that:
(1) The welfare of these children is my paramount consideration. As in other cases where this is so I have to consider the short, medium and long term welfare of the children.
(2) I therefore have to consider the facts and competing considerations in this case and should not decide it by reference to the class or sub class of case into which it could be said to fall. As to this I accept the point made on behalf of the father that it can be said that there are a number of categories or classes of case within the broad description of applications made by maternal primary carers. Indeed it seems to me that this appears from paragraph 31 of the judgment of Thorpe LJ in Payne.
(3) There is no presumption that if the applicant establishes that the proposal to move abroad is reasonable permission to do so will be granted.
(4) The question whether the proposal of the applicant is reasonable has a number of aspects both when it is considered from the view point of the parent alone, or on a wider basis, and thus including the likely effect of the proposals on the welfare of the child.
(5) Firstly to be reasonable the application must be (a) genuine and thus not motivated by an inappropriate selfish desire, and (b) practical. These are in effect conditions or hurdles the applicant has to show or cross to trigger the next stage of the assessment of whether the grant of the application would best promote the welfare of the child.
(6) However there are wider aspects to the issue whether the applicant's proposal is reasonable which will vary from case to case and in my judgment will give rise to an assessment of the proposal from the viewpoints of the children and the adults involved.
(7) As indicated by for example (a) paragraphs 21, 26 and 27 of the judgment of Thorpe LJ in Payne, (b) the approved passage from the judgment of Clarke LJ in Re S (No 1), (c) the order of the factors listed by the President in Payne and (d) the point that Payne read as a whole indicates what will usually be the most important consideration, the guidance in Payne is not limited to directing the court to the factors to be taken into account but indicates the weight to be given (i) to various factors, and thus (ii) to the reasons for their relevance and importance in determining what will best promote the welfare of the relevant child in the circumstances of the case.
(8) The reason for giving great weight to the reasonable proposal of an applicant who is the primary carer is the desirability of promoting happiness and stability in the home and the likely detrimental impact on the primary carer and thus the children if the proposal cannot be implemented (see for example paragraph 26(b) and the first two sentences of paragraph 31 of the judgment of Thorpe LJ in Payne).
(9) If the court concludes that a refusal of the application will be likely to have a detrimental impact on the care that the primary carer will give then the guidance in Payne indicates that that harm will usually outweigh the likelihood of harm flowing from other effects of the proposed move. This is based on a recognition of the importance of stability and happiness in the home.
(10) In many cases the opposition to a move is based on the harm that it is alleged will be likely to flow from a reduction in contact with the non custodial parent. Payne indicates that usually the harm that is likely to flow from a reduction in contact will not found a conclusion that the welfare of the child would be best promoted by refusing an application by the primary or custodial parent to take the child abroad.
(11) However Payne makes it clear that it is only giving guidance and that the competing considerations between a reasonable proposal for a move and a reasonable objection thereto must be carefully considered and weighed. This judgmental exercise will involve an assessment of the likely effect of the available possibilities and gives rise to issues of degree which have to be assessed having regard to the circumstances of the case. In particular the court will have to consider the manner in which the competing welfare factors apply in the case before it and thus, for example, the manner in which the reasons for promoting (a) stability in the home, and (b) contact apply in that case. Further factors are likely to include the circumstances in which the child or children came to be living with one parent rather than the other, the ages of the children, their connection with the countries involved, and the ability of the family to maintain contact after a move.
The father's application for a residence order
- When the father left the matrimonial home he accepted that the two boys (who were then aged 7 and 5) should reside with their mother. He accepted in argument that the boys should continue to reside with their mother if she remains in this country on the basis that they would have regular and extensive contact with him. This would include periods when the boys lived with him for staying contact during the school holidays and for any periods during term time that the mother was in Singapore. Thus the father does not at present pursue his application for a residence order.
- I note that in his statement the father says that he would seek a residence order if the mother were to seek to move a long way from him in this country or he was refused substantial contact. But it was to my mind correctly accepted in argument that these were future questions as would be the issues that would arise if the mother's application was refused and she decided to go to Singapore alone.
- In this context the father's counsel accepted that the matters the father relies on in respect of the difficulties that exist in the present arrangements relating to residence, contact and the family circumstances generally to found his argument that if the mother moves to Singapore she will not (or probably will not) promote, and seek to preserve, his attachment to, and contact with, the boys, do not at present found a conclusion that in any event the boys should be moved to live with him.
- In my judgment this was a realistic acceptance that the existing unhappiness at the mother's home of herself, and as a consequence of the two boys, coupled with the problems the father points to over contact and the attitude of the mother towards him and his girlfriend do not found such a move.
- From the time the father left the matrimonial home it is apparent that he has understandably been very keen to have extensive contact and participation in the lives of the boys and the mother rightly accepts that he is, and has always been, a good father to the boys, albeit that she asserts that at times he lacks insight into their feelings.
- The issue whether the father would have liked the boys to live with him after the marriage broke down and he left the matrimonial home was not gone into before me. But the father's acceptance of the position that the boys should live with their mother if she remains in this country is a practical recognition by him of the not uncommon situation following the breakdown of the marriage of committed parents that children of similar ages to these boys should remain living with their mother. Here factors that point in favour of that conclusion are, and were, the lifestyle and respective roles of the parents flowing from the fact that during the marriage the father went out to work and the mother stayed at home and looked after the children. The father also accepts that the mother is and has been a good mother to the boys albeit that he asserts that she is and has been volatile and quick tempered with them.
- Recently the father has sold his business and has more time available but, in my view correctly, this did not prompt him to argue for a change of residence if the mother remains here. I pause to comment that:
(a) this sale has had the result that a substantial sum is available for division between the parents in the ancillary relief proceedings and, before they are decided, to fund the purchase of homes for them both here and in Singapore, and
(b) the father has a consultancy to his old business which will not take up much of his time and although in the longer term he will be likely to return to work to produce an income (and I suspect because he would want to), at present the mother and father have funds and time available to be flexible in their arrangements relating to the boys.
Some general points about the boys
- They are bright boys who are a credit to their parents and themselves.
- The older child has recently gained a place at a well known and highly regarded school and he can take up that place this September or in two years time. At that time the younger boy will be in the position that the older one is now and therefore if he gains a place at the same school (and there is a very good prospect that he would) the boys could move together, or the younger one could stay for an extra two years at his prep school. If the boys stay in England the present plan is that both boys should stay at their present prep school for the next two years.
- Thus in two years time there would be a natural break in their education. In saying that I am not implying that by reference to its timing alone a change of schooling now would be particularly disruptive and I accept that it can be said that now is also an appropriate time to effect a change.
- The boys have interests and talents in, amongst other things, sport and music. They have a number of friends in this country. Notwithstanding the fact that their mother is Singaporian and they have visited Singapore regularly this country is their home. It is clear that they will have to make large adjustments if they move to live in Singapore and their reaction to the changes they will have to face if they do so are uncertain.
- As appears from, for example, the report and evidence of Dr Berelowitz the boys have understandably been affected deeply by the breakdown of the marriage and its consequences, and at present they are very upset. They feel their mother's unhappiness keenly and are desperate to see her happier than she is now. They express and feel anger towards the father and his girlfriend. They show an understanding of what they would lose if they moved to Singapore but this is inevitably limited and naturally they cannot predict with certainty how they will react to the changes such a move would involve.
- The boys have not yet been able to accept that the separation of their parents is permanent and in my view this must a factor in their anger with their father and his girlfriend. Notwithstanding this anger I accept and find that when they are with the father alone and together with his girlfriend and her daughter they have a good time. As I have said they have a strong attachment to their father. In my judgment this attachment is clearly important to them and its continuation is important to their short, medium and long term welfare.
- The boys have always lived with their mother and since their father left the matrimonial home they have lived there with her. They are still quite young and their home is with their mother notwithstanding their extensive attachment to and contact with their father.
- In my view it is clear that the boys (and their parents) need to move on and that a continuation of the existing situation and attitudes with the likely escalation in the problems and emotional strain that will put on all members of the family will not promote the welfare of the boys.
- However the family could move on without the mother going to Singapore with the boys albeit that a move to Singapore would be a more defined watershed than changes in this country.
The mother's case in brief
- Central to the mother's case are her assertions that (a) she has remained here because of the marriage and her hopes of a reconciliation, (b) she feels a "fish out of water" in England, and (c) she wants to go home so that she can be near her family and be in the country where she was brought up, and where she would again live close to her parents and siblings and amongst many Singaporians with a Chinese background.
- This can be a very natural reaction and unsurprisingly her counsel points to, and relies, on paragraph 31 of the judgment of Thorpe LJ in Payne which I have cited earlier. The two sentences beginning with the word "Alternatively" apply directly to this mother, however the parts which relate to a stepfather do not. I pause to comment that (a) the existence of a new partner for a mother and thus a stepfather who has a reasonable need to move abroad is clearly a very relevant factor when it exists, and (b) the comments of Thorpe LJ in paragraph 31 on an isolated mother are also relevant.
- The mother says that she feels that (a) if she moves to Singapore she will be able to move on and provide the boys with a stable and happy home in which she will be able to give of her best in bringing up the boys, (b) if she stays here she will not be able to give of her best to the boys and (c) if she moves to Singapore she will be able to promote a positive image of the father and the boys' attachment to, and contact with him, although naturally that contact would be reduced.
The father's case in brief
- The father's main point is that he asserts that if the mother moves to Singapore she will, or will be likely to, undermine his existing attachment and contact with the boys and he will not be able at that distance to maintain and promote them. He argues that the disadvantages and harm that would flow from this outweigh the advantages that would flow from the move.
- He also argues that the mother has (a) underestimated the difficulties the boys will have in coping with the changes the move will involve and its widespread implications for their day to day life and development, and (b) overestimated the benefits of a move to Singapore in respect of her own happiness and the stability of her home.
- He also raises some points about the schooling available in Singapore. There remained a little uncertainty as to the availability of places at the preferred school in Singapore. The father raised points as to the quality of that school, or the alternative proposed, as compared to what is available in England and a point on security based on the school brochure and the reaction to events flowing from the recent terrorist attacks on the World Trade Centre and a club in Bali. In my judgment these points carry no real weight as free standing points in the assessment of the competing factors because:
(a) I am satisfied that the boys will obtain appropriate school places in Singapore.
(b) Although the point on security was not supported by any other evidence of a particular risk at the school in Singapore I accept that in the present world climate it is prudent for such a school to take precautions and as a school it would be more vulnerable to a terrorist attack than a school in this country. But it does not seem to me that that risk provides a persuasive reason for refusing the application and if that risk was to be weighted other unquantifiable security risks would have to be taken into account and, for example, comparisons would have to be made between the risk of the boys being caught up in a terrorist attack in public locations in England and Singapore, and
(c) in my view the comparison between the education and facilities offered by the competing schools and their effect on the future prospects of these bright boys do not found free standing reasons for refusing the application in respect of them. Rather that comparison is properly considered as part of the changes that the boys will have to face on a move to Singapore.
Discussion
The need for change
- Dr Berelowitz found this to be a difficult case, said that there was no clear answer and did not make any firm recommendation as to what would best promote the welfare of the boys. The Child and Family Reporter also did not make a recommendation. Both pointed to relevant factors and in particular set out what they had been told by the boys and their views of the boys.
- It appears that between the time that the boys saw the Child and Family Reporter and Dr Berelowitz their antagonism (and certainly their antagonism as expressed) towards the father's girlfriend had increased. They expressed views to Dr Berelowitz about the father and his relationship with his girlfriend which were hostile to the father and his girlfriend and, for example, told Dr Berelowitz that if the girlfriend was not around, or their father was not seeing her, they would not want to go to Singapore.
- Dr Berelowitz said, and I accept, that the most important thing now for the promotion of the welfare of the boys is an improvement in the mother's happiness and mood. He also said that the least worst option would be for the children to remain here and the father to be more accommodating to the wishes and feelings of the mother and the children in respect of his relationship with his girlfriend, but as I understood him (and indeed to my mind he confirmed when answering questions I put to him) this was on the basis that it was accompanied by a significant improvement in the mood of the mother.
- On any view the result of this application will bring about a change. In my judgment the likely effects of that change and in particular its likely effect on the mother is the most crucial question on this application. In paragraph 32 of his judgment in Payne Thorpe LJ indicates that in most relocation cases the most crucial consideration is likely to be the effect on the mother of a refusal of the application. But in my judgment in this case the crucial assessment extends to a consideration of the likely effect of the grant of the application and thus in the context of the judgment of Thorpe LJ in Payne the force of the points in paragraph 31 of his judgment.
- I accept that in her evidence the mother was being truthful when she asserted that she now feels out of place in this country. It is also clear that she has made this well known to the boys (see the extract from Dr Berelowitz's report cited earlier), but in my judgment she is exaggerating when as her counsel put it she has always felt a fish out of water in this country. The mother did not emphasise this point in her written or oral evidence and concentrated on her feeling of being out of place now and since the father left the matrimonial home.
Influence
- I pause at this stage to comment and set out my conclusion that the mother has both expressly and by her general behaviour made her feelings clear to the boys and has often made little or no attempt to shelter them from those feelings as to both her general mood and her feelings about the father and his girlfriend. To my mind this is clearly reflected in what the boys told Dr Berelowitz.
- Naturally I accept as Dr Berelowitz pointed out that there are other influences on the boys and, in part, many of the things they said to him are based thereon and their own views. Also in my opinion it is inevitable that both the mother and the father will influence the views of the boys. Indeed as good parents they should be doing this. Further I accept that it is very difficult for a parent to hide his or her mood and feelings from a child. But in my view, in particular (a) what the boys said to Dr Berelowitz about the father's girlfriend, and (b) the point made by Dr Berelowitz, which I accept, that the boys have not yet been able to accept that the separation of their parents is permanent, are based substantially on things the mother has said and done which have reflected her hostility towards the father and his girlfriend and her wish for a reconciliation. In my view that hostility and that wish of the mother have fluctuated, and the boys have been influenced both directly by what the mother has said to them and in their hearing about such matters and by her general attitude and mood.
- During the course of her oral evidence the mother accepted that she had said some hostile things about the father and his girlfriend and demonstrated that she is, and has been, confused and upset about the father's commitment to his local church, Christian teaching and the relationship between the father and his girlfriend. To my mind this is reflected in things said by the boys to Dr Berelowitz about the father and his girlfriend. Equally it seems to me that the fact that the mother finds such matters coupled with the breakdown of the marriage and her situation generally confusing and upsetting is an understandable emotional and psychological reaction.
- In her oral evidence the mother said that when she lost control it was difficult to be sensitive too. This was said in the context of it being asserted that at times she had not been sensitive to the feelings of the boys. This response by the mother was plainly a correct and honest answer, and in my judgment it accords with the character of the mother as demonstrated by her evidence as a whole (and indeed the remainder of the evidence). From that it is apparent that she is emotional, she can be volatile, she often speaks loudly, dramatically and forcefully and she regularly wears her heart on her sleeve.
- At present and for some time the mother has been suffering from a turmoil of conflicting emotions. She is very upset and angry as a result of the breakdown of the marriage and the situation she finds herself in.
- The father demonstrated in his evidence that he can control the outward expression of his emotions better than the mother can (and this accords with the remainder of the evidence). This of course does not mean that he is not and has not been upset and angry in connection with the breakdown of the marriage, his decision to leave home and contact. I accept that he has been.
- However in coping with the unhappiness caused by the breakdown of the marriage and the difficulties there have been over contact, the father has been able to enjoy the benefits that flow from (a) the fact that he has continued to work, (b) the relationships he has with his girlfriend, his friends and colleagues at work, at the church and elsewhere, and (c) the fact that he is living in the country of his birth where his family live.
Contact and related incidents
- The father asserted that the mother has not acquitted herself well as to contact and in this context asserted that the past is the best indicator of the future. He pointed to a number of incidents relating to the behaviour of the mother concerning contact in which he asserted that the mother had behaved unreasonably.
- I accept that it is difficult to isolate or ring fence these incidents not least because they are demonstrations of, for example, (a) the mother's attitude to the father and his girlfriend and thus the important point as to whether the mother can move on and accept that the marriage is over and promote the relationship between the boys and their father on that basis, and (b) the difficulties the mother has had when parting with the boys and whether these would continue if she was in Singapore and whether they would possibly lead to the mother being very upset at the airport or being unable to put the boys (or one of them) on the aeroplane. I return to these points.
- The incidents relating to contact relied on by the father include (a) demands that his girlfriend should not be present, (b) outbursts relating to contact and when the mother was leaving for Singapore without the boys which must have been very upsetting for all concerned, (c) demands to change periods spent in Singapore coupled on one occasion with an accepted lie that the mother had bought tickets when she had not done so and (d) last minute demands to change trips to Singapore and on one occasion to take the children out of school early for such a trip. There are some disputes of fact on the statements concerning these incidents that were not the subject of oral evidence and I am not able to resolve.
- In my view the incidents as such are not particularly out of the ordinary and could well only be a demonstration of the difficulties and frustrations flowing from the unhappy marriage, the characters of the mother and the father and the situations they now respectively find themselves in rather than a good indicator of the future behaviour of the mother in connection with the boys' relationship with their father.
- Further it must be remembered that the father has not been prevented by the mother from enjoying extensive contact and that his girlfriend has taken part in it. Indeed the father does not assert that there were any real difficulties in respect of the extensive contact that was agreed until about the Spring of 2001 and this forms part of the father's case relating to the mother's motivation.
Motivation
- It was argued that (a) a change in the attitude of the mother as to contact after she realised that a reconciliation was not possible, (b) the second paragraph of a letter from the mother's solicitor's dated 13 March 2002, (c) a comment of the younger son to Dr Berelowitz to the effect that if the father made a wrong move they would be in Singapore and (d) more generally what the boys said about the father and his girlfriend to Dr Berelowitz were in every objective sense worrying and thus as I understood it indicated that the mother had been, and was being, primarily motivated by her anger with the father, and a desire to get back at him or to persuade him to act as she wanted or demanded. This indication also flows from paragraphs 34, 39 and 77 of the father's statement.
- I pause to comment that in my judgment correctly it was not put to the mother that her present application was not genuine because her motive for making it was her anger with the father and her wish to get back at him and not her belief that the welfare of the boys would be promoted if she moved with them to Singapore.
- The purpose of this argument on motivation was however to support the father's assertions that if the mother moves to Singapore she will, or will be likely to, undermine his existing attachment and contact with the boys and he will not be able at that distance to maintain and promote them and that the past is the best indicator of the future.
Conclusions on (i) contact and related incidents and (ii) motivation
- In my judgment the incidents relating to contact and outburst the father pointed to were founded on the following:
(1) The clash of personalities of the parents including the clash between the outward calmness and firmness of the father and the volatility of the mother.
(2) The understandable emotional reaction of the mother to the father's relationship with his girlfriend and his attitude to a reconciliation when the mother was hoping for a reconciliation (or at least was doing so from time to time).
(3) The general stance of the father as to contact.
- As to paragraph 67(1) I comment as follows:
(a) The mother says that she has always felt overshadowed and under pressure from the father.
(b) I do not accept that this has always been the case and in my view she has been and is able to give as good as she gets in arguments and has taken an active and influential part in family decisions made by her and the father.
(c) However I do accept that since the father left the matrimonial home the mother has been emotionally insecure and has felt isolated, abandoned and under pressure from the father. Further in my judgment the father's relationship with his girlfriend and his attitude to contact has exacerbated these feelings and the father has failed to recognise the extent of these problems (or if he has to convey his recognition thereof to the mother expressly or by what he sought by way of contact -- see further paragraphs 69 and 70 below).
- As to paragraph 67(2) I comment as follows:
(a) Albeit that the father says that he separated from the mother because of their irreconcilable differences, and told the mother this, it is unclear to me when and how the father made it clear to the mother that a reconciliation was not a realistic option and that she should abandon it as a possibility. Naturally I accept that the father may have been making it clear to the mother that he did not want to reconcile prior to the time that he asserts she recognised this. This was not gone into in the oral evidence and the written evidence indicates that there is a dispute as to whether for a period after he left the matrimonial home the father gave the mother grounds to reasonably believe that a reconciliation was a possibility. I cannot resolve that dispute on the evidence I heard.
(b) The argument of the father and his chronology as to the commencement of difficulties relating to contact dates the mother's realisation or acceptance that he did not wish to reconcile at about the Spring of 2001. He does this by reference to paragraph 4 of the mother's first statement and this accords with a letter written by the mother's solicitors at the beginning of March 2001 in which the mother asserts that the marriage had irretrievably broken down.
(c) In any event it is clear on the evidence that (i) after March 2001 when the mother said that she accepted that the marriage had broken down irretrievably and indicated that she would issue proceedings for divorce, and (ii) after she had issued such proceedings in 2002, the mother has returned from time to time to raising the possibility of a reconciliation, and indeed did so very recently.
(d) It was not asserted that the father was unaware that both before and after he had made it clear that he did not want a reconciliation (or this became clear and was recognised by the mother) that at least from time to time the mother hoped for and sought a reconciliation. Indeed, and notwithstanding the March 2001 letter referred to above, in paragraph 35 of his statement the father says that he believes that the mother has only recently started to accept that the marriage is over and she has not given herself time to readjust to her life here.
(e) I proceed on the basis (but without deciding because I did not hear sufficient evidence on the point) that the father's relationship with his girlfriend developed after he had left the matrimonial home (and I note that this accords with what the boys told Dr Berelowitz).
(f) However the father accepts and asserts in paragraph 77 of his statement that his relationship with his girlfriend developed shortly after he told the mother of his wish to separate due to their irreconcilable differences and the letter from his solicitors dated 25 March 2002 asserts that it has lasted three years (this is clearly an approximate figure and the father left the matrimonial home in May 1999 which is less than three years before the letter).
(g) It follows that the father accepts and asserts that (i) his relationship with his girlfriend developed shortly after he left the matrimonial home, and (ii) it was in existence during the period leading up to the date put on the change in the mother's attitude to contact by the father (i.e. the Spring of 2001) and thereafter when the father knew that the mother (however unrealistically) was still hoping from time to time for a reconciliation.
- As to paragraph 67(3), in my judgment the father demonstrated during his oral evidence that he can be rigid and insensitive in respect of issues relating to contact and although I accept that at times he has altered his position and been flexible in circumstances that were inconvenient to him in my judgment he has overall presented a fairly firm and rigid stance and largely got what he wanted by way of contact. For example during his oral evidence his immediate reactions included the following:
(a) if the mother went to Singapore it would be difficult for him to go there for contact because of part time commitments with his church,
(b) if the mother's application was refused that day to day there would be no problems because, as I understood him, he had had the children before when the mother was away and she could take them to Singapore during parts of school holidays,
(c) there was no real problem about him attending matches when the mother was also present because other separated parents did this, and
(d) there was no real problem about him collecting the boys from home each day to take them to school or later doing this on a reduced basis. This was in line with the dispute in correspondence concerning taking and collecting the boys to and from school which preceded the father's application for a defined contact order (which extended to wider issues) and was the first application to the court.
As to (c) I should add that I accept that the father acknowledges that if the mother went to live in Singapore without the boys that this would cause day to day and potentially far reaching and long lasting problems and, as I understood it, his reaction that there would not be day to day problems if the application was refused was on the basis that the mother remained here and the living arrangements and contact were along the lines he had suggested in correspondence.
- I have prefaced the above examples by stating that they were immediate reactions and I accept that on further questioning, and through his counsel, the father recognised that if her application was refused the mother and he would have to make changes in an attempt to alleviate her present unhappiness.
- Further I accept that the father's case is that the mother asked him to take the children to school each day and thus that this was agreed and later reduced by agreement. Thus I accept that it was probably not easy for the father to identify that such an arrangement alone and together with his stance on attending things like matches and very regular telephone calls was likely (i) to be putting pressure on the mother and (ii) to be causing confusion in the minds of the boys as to whether or not their parents would return to living together. Further I appreciate that the father and the boys enjoyed the morning school run and the father thought that the boys benefited from it, and that a reduced level of taking and collecting the boys to and from school was agreed in the correspondence between the solicitors and incorporated in an agreed order made in September 2002.
- However in my judgment the father's stance on the school run, attendance at functions and the making of very regular telephone calls (i) did not best promote the welfare of the boys, and (ii) showed a marked lack of insight and understanding by the father particularly in the context of his position that the relationship with the mother was over, and she therefore had to build an independent life for herself and provide a home for the boys in this country and she should accept his relationship with his girlfriend. Further in my judgment the mother's view that this stance was oppressive and unreasonable was well within the range of natural human reactions of a mother in her position.
- Returning to the points recorded in paragraph 64 under the sub-heading motivation:
(a) In the circumstances of this case in my view a change in attitude by the mother after a realisation by her that reconciliation was no longer realistic or a decision by her to abandon it would be reasonable because it would reflect the need for both parents to set about setting up their homes on that basis. As I have mentioned for the purpose of this submission the change is put at the Spring of 2001 by the father but it is not clear to me when or how the father made it clear that a reconciliation was not going to take place and in any event it is clear that thereafter the mother continued at least from time to time to hope for a reconciliation. In my judgment it is thus not possible to draw a clear line by reference to the mother's realisation that a reconciliation was not possible albeit that I accept that from about the spring of 2001 the chronology and correspondence show that problems concerning contact increased. Further I accept that in her statement the mother asserts that it was at that time it became clear that the father did not wish to reconcile and she started to think seriously about returning to Singapore. However it seems to me that that is a natural and logical progression of thought which could reasonably be based on the reasons advanced by the mother.
(b) To my mind the letter of 13 March 2002 also reflects a natural progression of thought that could be so based on such reasons, rather than on spite or anger with the father and a wish to get back at him or for reasons that are overly selfish or self indulgent.
(c) As appears earlier I accept that a significant cause of the comment of the younger son that is relied on and the comments made by both boys about their father and his girlfriend is the conduct and influence of the mother flowing from her anger and hurt and her wish for a reconciliation. This is an important point and I return to it.
- In my judgment the father sought to make too much of the mother's conduct in respect of contact and her outbursts and in making them gave insufficient regard to the problems the mother had, his contribution towards them, and his part in the difficulties that have arisen.
- Thus in my judgment the father's stance that looked at generally he has throughout behaved reasonably and with insight and sensitivity in respect of contact and the matters of which he complains is incorrect.
- That is not to say that I condone the outbursts of the mother some of which have been fairly extreme or all her demands and conduct in respect of the disputes that have arisen over contact and schooling. Indeed I do not and I note that in her oral evidence and, albeit to a lesser extent, in her statements that the mother accepted that her volatility and outbursts against the father and his girlfriend have not promoted the welfare of the boys.
- In my judgment both parents must share the responsibility for the causes of the disputes and conflict that have arisen and still exist over contact and the mother's outbursts. I say responsibility rather than blame because I am very conscious of the emotions that are involved and thus of the problems that both parents and the boys faced and the difficulties this causes in looking at issues dispassionately and objectively. For the same reasons in the above discussion I am commenting on the conduct of the parents rather than criticising it.
- In my judgment the actions and statements of the mother relating to contact, her statements to the effect that she is considering going to Singapore and this application are not primarily motivated by spite, or by her anger with the father and a wish to get back at him, or reasons that are overly selfish or self indulgent. Rather in my judgment they are in all the circumstances of this case an understandable and genuine expression of the emotional insecurity and turmoil she has experienced since the breakdown of the marriage and in particular as she has come to realise that reconciliation is not a realistic option.
- Further in my judgment the reasons advanced by the mother for her application are a genuine expression of her feelings and what she believes will best promote her happiness in the future and through that her ability to do her best for the boys. Thus in my judgment the mother is genuine in her belief that what she proposes will best promote the welfare of the boys.
- However this of course does not mean that she is right and difficult points remain as to whether her predictions as to the effects of her moving to Singapore with the boys or those of the father are correct. As to those issues I naturally accept that the behaviour of the mother in respect of contact and her outbursts that the father has complained of and the reasons for them are factors to be taken into account.
- In this context in my judgment the mother was correct to accept that her volatility and outbursts have not promoted the welfare of the boys. In my view she thereby correctly accepted that parts of her behaviour which in my judgment are based on her character and emotional reactions has had this result. Her acceptance of this was however limited both as to the parts of her behaviour that had had this effect and the harm or potential harm that such conduct had caused and would cause if it continued. For example, to my mind she made unrealistic and incorrect assertions that she did not regard the relationship of the father with his girlfriend as an issue or a continuing issue. This was unrealistic and incorrect because in my judgment she has clearly been hurt, upset and confused by this and at least at times continues to be so. Further as I have already said in my judgment by what she has said and by her conduct she has made the boys well aware that this is the case and more generally of her anger with the father. Thus important issues are whether in the future she can avoid repeating such behaviour and promote the attachment and relationship between the father and the boys.
- I add that it follows from the conclusions set out above that, as I have already mentioned, in my judgment the father was right not to put to the mother that her application was not genuine because it was motivated by spite, anger and a wish to get back at the father or an overly selfish or self indulgent reason albeit that some of his arguments on motivation shaded into such an assertion. Accordingly in my view the mother passes the first hurdle referred to in paragraph (5) of my approach at law.
Reasoning and Conclusions
- I should record that in my judgment the father is also genuine in his belief and assertion that a refusal of the mother's application for permission to go to live in Singapore with the boys will best promote their welfare.
- It was accepted by both sides at the Bar that this is not an easy case. I agree. A main part of the difficulty is that it turns on a prediction of the mother's emotional and psychological reactions against the background of my conclusions that, in all the circumstances, (i) her reactions thus far have been an understandable and genuine expression of the emotional insecurity and turmoil she has experienced since the breakdown of the marriage and in particular as she has come to realise that reconciliation is not a realistic option and (ii) both parents share the responsibility for the causes of the disputes and conflict that have arisen and still exist over contact and the mother's outbursts.
- In my view as a process of reasoning it assists to ask which of the possible solutions would be likely to best promote the welfare of the boys (the best solution) and which of them is likely to be the most damaging to the short, medium and long term welfare of the boys (the worst result).
- I agree with Dr Berelowitz that the best solution would be for the boys to remain in this country living with the mother on the basis that changes are made that make the mother and the boys happier. In my judgment the changes would have to be such as to make the mother content to stay and make a home for the boys here. Dr Berelowitz was also of the view that the father and the mother would have to address and change the present perceptions of the boys of his relationship with his girlfriend. I agree.
- To my mind it is clear that it would not be easy to effect such changes and for the mother and father to address the present perceptions of the boys about his relationship with his girlfriend.
- The best course would therefore involve a refusal of the mother's application and the making of difficult changes.
- Further if the best course was embarked upon it would trigger the risk of the worst result which in my judgment would arise if the mother's application was refused and she decided that she had to return to Singapore without the boys. When asked about this Dr Berelowitz replied in his engaging manner that he "could not get his head round it". In my judgment amongst the uncertainties in this case it is reasonably clear that this would be the worst result. My reasons for this view include the following:
(a) the home of the boys is and has been with their mother and they feel her present unhappiness keenly,
(b) if the mother felt she had to go and live in Singapore the boys would miss her greatly and there is little doubt that in the short term they would be very upset, and would feel her distress at leaving them keenly and deeply, and
(c) there would also be a real prospect that (i) the upset of the boys would not be short term, and they would blame the father for forcing the mother to go to Singapore without them and thus for depriving them of their home with her, (ii) the boys would feel guilt for the unhappiness of their mother (iii) there would be significant problems at and in respect of contact both in this country and in Singapore and (iv) the boys' anger towards the father's girlfriend would increase and for these or other reasons the relationship between the father and the boys would deteriorate with the consequence that they would not have a secure and happy home with him in this country.
- Although the mother did not rule of the possibility of her deciding to go to Singapore leaving the boys here in my judgment it is unlikely that she would do so because of her love for, and commitment to, her sons and the fact that they are the most important and central people in her life.
- A further point that seems to me to be clearer than most in this case is that the best chance of achieving the changes that would have to be made to achieve the best solution would be if it was a course that the mother agreed to take or try voluntarily. At present, the mother does not agree to do this and it follows that if one applies the progression of reasoning set out above (and as I have mentioned earlier) that the essential competing considerations are between the likely effects of (a) a move by the mother with the boys to Singapore, and (b) the mother staying here against a background of her application having been refused and in that sense because she has been compelled to do so if she is to continue to live with the boys.
- On my analysis if the prospects of making the changes required to make the best solution work were reasonably good I would agree with the father that a move by the mother with the boys to Singapore would not be the solution that would best promote the welfare of the boys because:
(a) It would reduce the contact they have enjoyed with their father.
(b) It would introduce significant changes in their day to day lives which may cause them difficulties, these include changes in respect of schooling, activities, friends, weather and language and they may find it difficult to adapt with the consequence that this causes difficulties and unhappiness for them and the mother.
(c) I agree that the mother may have overestimated the benefits she will obtain from returning to Singapore and the support she will receive there from her family and the environment.
(d) I also agree that in Singapore the mother will face a number of the difficulties both practical and emotional that she faces here in rebuilding her life. The practical ones include providing herself with consuming interests through work or otherwise whilst at the same time ensuring that she has the time available to care for the boys and indeed she is likely to receive more help from the father here than she is from her family in Singapore in assisting her in this aim. The emotional difficulties relate to the breakdown of the marriage and her attitude to the father.
(e) The mother has now been away from Singapore for a long time, and her old friends and acquaintances will be busy with their own lives as will her siblings which will make it more difficult for the mother to build relationships and make friends. Also her parents do not speak English which will naturally make it difficult for them to build a relationship with the boys quickly.
(f) In short I agree that there are real risks that the mother has (i) underestimated the difficulties the boys will have in coping with the changes the move will involve and its widespread implications for their day to day life and development, and (ii) overestimated the benefits of a move to Singapore in respect of her own happiness and the stability of her home.
- Further I would agree with the father that if it was more likely than not that the mother would consciously or unconsciously undermine the relationship the boys have with their father if she moved to Singapore with them his arguments that time is a great healer, that until recently and perhaps not until the hearing has the mother recognised that reconciliation is not a possibility and stated that the existence of the father's relationship is not of real significance to her and that the chances of the mother becoming happier if her application was refused (and she was in that sense compelled to stay here) are powerful factors in favour of the conclusion that the mother's application should be refused.
- Having regard to (a) the conclusions I have reached on the incidents relating to contact and the mother's outbursts raised by the father and her motivation and (b) her evidence in general, I have reached the conclusion that it is most unlikely that if she moves to Singapore the mother will deliberately and actively seek to undermine the relationship the boys have with their father. In the short term I have little doubt that the mother would feel released from considerable burdens, would thus be much happier and would seek to promote contact and the relationship between the boys and their father as she says she would. In the longer term I am of the view that the mother was not paying lip service to the point that she recognises that if she undermined the relationship between the boys and their father this would be harmful to them and could result in her relationship with the boys being damaged.
- The greater risk that the mother will undermine the relationship between the boys and their father is that she will do so as a product of her emotional and volatile personality if after a move to Singapore she does not become happier and perhaps even if she does. However if the mother becomes happier I am of the view that my conclusions on her motivation for making this application and her evidence in general found the result that it is unlikely that this will happen.
- The problems are more acute if the mother does not become significantly happier in Singapore. In my view they are not that then the mother may actively and consciously denigrate the father or seek to criticise him but that she will not be able to conceal her continuing unhappiness and her view that the father has been the main cause of it and further or alternatively her continuing hostility to him and his girlfriend. A further risk factor is the attitude of the mother's family in Singapore and as to this she said that they did not speak of the father in Singapore. To my mind if this continued it would constitute a negative influence. Also there is as Dr Berelowitz put it the worry that having regard to her attachment to the boys and her difficulties in parting from them the mother may find parting from them when they are due to come to England extremely difficult and her distress will be communicated to, or appreciated by, the boys (and in particular the younger one) and may lead to them being distressed as well and asserting that they do not want to go to England or have contact with his father.
- This scenario is similar to one in which the negative influences I have found that the mother has had on the boys and the product of her emotional turmoil since the father left the matrimonial home and more particularly since about the Spring of 2001 would continue to exist. It is also one in which problems that the father asserts he can only effectively combat if the mother and the boys remain in this country would exist.
- That introduces a comparison between the chances that as the father has put it history will repeat itself if (a) the mother goes to Singapore, or (b) she remains here.
- Although as appears above I accept that there are risks that the mother will not become significantly happier if she moves to Singapore and thus that the problems referred to above will occur and result in harm to the welfare of the boys overall I am of the view that there is a reasonable prospect (i) that the mother will become significantly happier in Singapore, and thus (ii) that either those problems will not arise at all, or they will be limited, and thus will not have any detrimental effect on the boys' views of their father and their relationship with him in the changed circumstances of them living in Singapore. If that prospect materialises:
(a) the boys will have a stable and happier home, and
(b) although contact between the boys and their father will be reduced and his relationship with them will change in my judgment the existing strong attachment between the father and the boys means that there is a very good prospect that a strong relationship between them will be maintained and will grow.
- In contrast in my judgment unless the mother agrees that she should stay here the prospect of such problems continuing and existing in this country are high. Put another way in my judgment the father's argument that history will repeat itself is far more compelling if I was refuse the mother's application.
- The relevant history which began before the father left the matrimonial home has produced a situation of conflict and emotion in which the boys are very unhappy. In my judgment the prospects of that situation being significantly improved if I refuse the mother's application, and in that sense she is compelled to stay here, are poor and significantly worse than the prospects of the mother becoming much happier in Singapore.
- Further in my judgment if I was to refuse the application, and in that sense the mother was compelled to stay here, the prospects of the mother becoming significantly happier or of the father being able through extensive contact or otherwise effectively to improve the situation and ameliorate the unhappiness of the boys and the harm that is being done to their welfare is poor. In reaching this view I have taken into account the proposals for changes made by the father in correspondence and in argument. This is because the nature of, and the reasons for, the underlying problems and emotions that have caused the mother to genuinely believe that the best interests of the boys will be promoted by her moving with them to Singapore are such that unless the mother agrees that changes in the arrangements if she was to remain in this country have a reasonable prospect of enabling her to move on and to reduce her existing emotional turmoil and unhappiness the chances that they will have this effect are poor.
- Thus in my judgment unless the mother agrees to it the chances of achieving the best solution are poor.
Conclusion
- It follows that in my judgment there is a reasonable prospect that the mother will not consciously or unconsciously undermine the relationship the boys have with their father if she moves to Singapore and that unless the mother agrees to remain here the result that is most likely to best promote the welfare of the boys is that they go to live with their mother in Singapore.
- I have not reached this conclusion on the basis that the mother's proposals are merely not incompatible with the welfare of the boys or on the basis that it accords with the usual result. Rather, in what I accept is a difficult case I have reached my conclusion on the basis that unless the mother agrees to stay in this country and make her home here the grant of permission for her to take the boys to live in Singapore with her is likely to best promote the welfare of the boys.
- However given the uncertainties in predicting the future as to how the mother will react, the central importance of that issue and what I would regard as being the best solution if it had a reasonable prospect of success I would invite the mother to consider carefully in the light of her reactions at the hearing and the points made herein whether she should agree to stay here on the basis that she believes that with changes agreed with the father there is a reasonable prospect that she will become much happier and thus able to provide a happy and stable home for the boys in this country. In my view this would be the best solution but there is only a reasonable prospect of achieving it if the mother agrees to embark on this course and is not forced to do so by her application being refused or otherwise.
Miscellaneous
- The mother offered an undertaking to seek and obtain a "mirror order" in Singapore. I have not seen the terms of the proposed undertaking but I am granting her application on the basis that such an undertaking will be given and it incorporates in round terms the contact offered by the mother if her application was granted. I accept that it is reasonable for the father to seek such an undertaking but I have not placed any weight on the existence of "mirror orders" in Singapore in assessing how the mother is likely to behave and react and thus in reaching my conclusion.
