DO & BO (Temprorary Relocation to China), Re, Court of Appeal - Family Division, April 12, 2017, [2017] EWHC 858 (Fam)

Resolution Date:April 12, 2017
Issuing Organization:Family Division
Actores:DO & BO (Temprorary Relocation to China), Re
 
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Case No: TR15P00155

Neutral Citation Number: [2017] EWHC 858 (Fam)

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

IN THE MATTER OF THE CHILDREN ACT 1989

AND IN THE MATTER OF DO AND BO (TEMPRORARY RELOCATION TO CHINA)

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 12th April 2017

Before :

THE HONOURABLE MR JUSTICE BAKER

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Between :

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Christopher Naish (instructed by Stephen Scown LLP) for the Applicant mother

Christopher Hames QC (instructed by John Boyle Solicitors Ltd) for the First Respondent father

Elizabeth Ingham (instructed by Family Law Company) for the children by their guardian

Hearing dates: 7th, 8th and 14th February 2017

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IMPORTANT NOTICE

This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment no person other than the advocates or the solicitors instructing them and other persons named in this version of the judgment may be identified by name or location and that in particular the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

JudgmentMR JUSTICE BAKER :

  1. The principal issue considered in this judgment is whether the court should grant permission to a mother to take her two sons to China for a holiday.

    Background

  2. The two boys are D, born 22 September 2008 and therefore now aged 8 ½, and B, born 25 November 2011 and therefore now aged 6. Their father is aged 74. He has dual UK and Australian nationality. He has been married before and has five adult children from his first marriage. During his first marriage, he lived with his family in Australia for several years. Some of his children still live in that country. He has been involved in property management in the south west of England but alleges that he has no beneficial interest in any of the properties he manages, asserting that they are owned by his sons.

  3. The mother is aged 41. She is a Chinese national but has recently acquired a British passport. The parties met in 2001 when the mother was studying in England. They started a relationship but from an early stage it was characterised by allegations of violence and abuse. The police have been contacted on a number of occasions. In 2007, the parties married and in 2008 the mother gave birth to their first child, D. In 2009, the parties separated and the mother spent a period in a refuge with D. Social services became involved as a result of ongoing allegations of domestic violence and after an incident when D fell downstairs. According to the local authority, the parties did not co-operate with social services and as a result a child protection conference was convened and D made subject of a child protection plan. The father applied for a prohibited steps order to prevent the mother removing D to China.

  4. Subsequently the parties reconciled and travelled to China together on a number of occasions with D. In 2011, the mother gave birth to their second son, B. In 2013, the mother travelled to China with both boys to visit members of the extended family. The father went out to meet them and the family returned together. The parties' relationship remained volatile and in July 2014 their GP referred the family to social services. On this occasion, both boys were made subject to child protection plans. In August 2014, however, the family travelled to Australia together (according to the father with the intention of exploring the possibility of emigrating) and in December of that year the father took the children back to Australia for a holiday. The following year, the relationship finally broke down. At that point, the boys were living with their father. The mother made a complaint to the police alleging that the father had raped and assaulted her during their marriage. The father was arrested, interviewed and bailed on condition that he did not communicate with the mother save in relation to contact with the children. In the event, the police decided to take no further action in respect of these allegations.

  5. On 13th March 2015, the mother issued proceedings seeking a prohibited steps order preventing the father from removing the children from the jurisdiction. An ex parte order was made. On 8th May 2015, the father filed an application for a child arrangements order and permission to remove the children to Australia permanently and also to take them to that country for one month during the school summer holidays. At the FHDRA hearing on 15th May, District Judge Thomas ordered a s7 report from social services on the issues of residence and contact and listed the matter for an interim hearing to consider the issues of the proposed holiday and the mother's interim contact. On 18th June, Deputy District Judge Rutherford refused the application for permission to take the children on holiday to Australia and made an order defining contact between the mother and children - during school terms, on Mondays, Wednesdays and Fridays after school and staying contact on alternate weekends from Friday evening to Sunday evening, and in school holidays all day on Mondays, Wednesdays and Fridays and alternate weekends from Friday to Monday.

  6. The s.7 report by social worker Ms Rawlings was filed on 25th June 2015. She listed the large number of complaints made by both parties to the police, social services and other agencies over ten years. The report concluded that

    ``the chronic parental conflict will continue to place D and B at further risk of emotional harm. Despite periods of child protection planning, the situation has remained one of ongoing conflict between the parents with both focusing their energies on the other's deficits rather than the children's needs ... I consider that the children are aware and affected by the history of parental conflict between [the parents] ... There are no concerns in relation to the care provided to the children in their father's house or when they are having contact with their mother in her home.''

    She made the following recommendation:

    ``If the parents were able to focus on the children, rather than the adult issues and conflict, the local authority would be suggesting a shared care arrangement. However, [for] a shared care arrangement to be successful there needs to be a level of co-operation and flexibility between the adults and an ability to be led by the needs of the children as they grow and mature. The local authority are not confident that either parent is able to manage this form of arrangement and therefore consider that the children should remain in the care of the father, with specific contact to include overnight stays with their mother.''

  7. On 29th June 2015, the father filed a petition for divorce. Those proceedings remain outstanding - the parties are still married.

  8. On 14th October 2015, the mother applied for permission to take the children temporarily to China for the forthcoming Christmas holiday. That application was withdrawn but on 5th November the mother filed a further application seeking permission to remove the children for 21 days each year for a holiday in China. In her notice of application, she indicated that in return she would agree to the father being able to take the children to Australia for 21 days each year. On 11th November the father applied for a prohibited steps order to prevent the mother taking the children to China. On 24th November, the case was reallocated to me for further directions. The first hearing before me took place on 22nd January 2016 at which I joined the children as parties and appointed a r16.4 guardian, gave directions for further statements and a further s7 report from the social worker Ms Rawlings, and gave permission to the parties (with appropriate directions) to instruct an expert in Chinese law to provide an opinion addressing (a) the legal remedies, if any, available to the father and the English court should the children be retained in China, whether under Chinese domestic law or by enforcing or ``mirroring'' of an English order and (b) whether, if the mother renounced her Chinese nationality she will be able to remain in China and retain the children there after the expiry of any visa.

  9. Ms Rawlings filed her further report on 10th February 2016. In her conclusion, she noted that at the time of her first report she had considered that the father was able to provide the children with more consistent care as the mother was often presenting as obstructive and agitated. She now reported, however, that the father's presentation ``had changed dramatically with him becoming increasingly irrational and fixed on past and present issues which has impacted on his ability to keep the children as his central focus''. She therefore recommended that the children should reside with their mother with contact, including overnight stays, with the father.

  10. In March 2016, the mother made further allegations of harassment against the father. As a result, he was arrested by the police, interviewed and bailed. He then spent just under 4 weeks in Australia, during which time the children stayed with the mother. Following his return to this country, the father was charged with harassment. As a result of these developments, it was agreed that the final hearing of the various applications under the Children Act, listed for 11th May, should be adjourned until 19th July. At that hearing, I made a lengthy order including (a) an interim child arrangements order under which the children would live with their mother (b) an order that the mother make the children available to spend time with the...

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