It’s been quite a busy week in family law, with a few new judgments coming through in various different areas. We thought we’d focus on a case where the court has allowed a mother to relocate to Utah in the USA with her two young children, in the face of opposition to the move both from their father and from the children’s CAFCASS guardian.
The children’s guardian is appointed by the court to ensure that the children’s interests are fully considered independently from the viewpoints put forward about them by their parents. In this case, she is a CAFCASS officer [link to CAFCASS blog]. Sometimes, in more complex cases, a solicitor is appointed to represent the children, but not in this case. Guardians also have a strong safeguarding role and will act appropriately on any concerns they have about the safety and wellbeing of the children involved in the court proceedings.
In this case, the children were aged 6 and 3, a boy and a girl. Their mother and father are just 25 years old, and their relationship started when they were 16. The parents had another child, who had sadly died when just a toddler; soon afterwards, there was an incident where the father injured the mother quite severely, resulting in a conviction for ABH and a term of community service. After that, they got back together and had their little girl, but separated for good when she was about 18 months old. The mother has looked after the children ever since.
In May 2015, the mother met Mr Y, who is an American construction worker from Utah. They are married now, and she is 12 weeks pregnant with his baby. The judgment records that “they share the Mormon religion”. The mother wishes to move to Utah with her children to start her married life with Mr Y – he is unable permanently to move here because of problems getting a visa to do so. The father objected to his children being taken to live abroad, on the basis that it would be difficult for him to continue a relationship with them at such a distance, and because he felt it was not in their best interests to move.
The problem that the father faced was that the evidence showed he had not been consistent in his contact with the children since leaving the family home. Contact was sporadic at best, and lapsed for long periods of time. The paternal grandmother became involved, and the evidence indicated that she and the mother had worked together to help the children see their father, but this had not always been successful. During the trial, the father accepted that there had been periods when he had not attempted to make any arrangements to see his children but explained this in a number of ways: he wasn’t informed that they were with the paternal grandmother, or he was working, or he had commitments to his new partner and new baby, who was, for a period of time, very poorly.
The father’s more general explanation for the lack of contact between himself and the children was that the mother was obstructive. The mother’s case was that the father has not, unfortunately, committed himself to contact.
The interesting part of the case is that the experienced CAFCASS officer working on the case sided with the father, after meeting both the parents and the children and undertaking the other usual enquires. Her report said:
“I feel that the mother is not promoting the contact between the children and their father and this [the application to relocate the children] may be an attempt on her behalf to make it easier for her to take the children out of the country. In my view, this is not prioritising the needs of the children and instead is focusing on her own needs.”
The court made a full welfare analysis of the children’s position, as it is required to do by law. It also investigated the content of the CAFCASS officer’s report and cross-examined her on it. The guardian accepted that her recommendations had been made, to a great extent, where there was factual dispute between the parents, which is for the court to determine. On that basis, the CAFCASS officer had to agree that if the court came to a different conclusion about what was behind the father’s sporadic contact with the children, it would be likely to depart from her recommendation that the mother should not be permitted to take the children to Utah.
The court ordered that the mother should be permitted to move to Utah with the two children. The court felt, on the evidence, that the mother had generally been supportive of contact – in contrast to the CAFCASS officer’s position. The father’s case that she was obstructive was not made out. The court agreed that the potential benefits to the children of relocation outweighed the potential detriment, and departed from the recommendations of the CAFCASS officer for three different reasons, one of which was that she later accepted that matters of factual dispute are for the court, not the CAFCASS officer, to determine.
If you’ve any questions about relocating abroad with children, or any other family law matter, do give us a call on 01223 443333 and make an appointment to speak to Gail, Sue, Tricia, Adam or Simon.