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FOURTH
SECTION
DECISION
Application no. 41767/11
J.A.T. and J.B.T.
against the United
Kingdom
The
European Court of Human Rights (Fourth Section), sitting on
21 February 2012 as a Chamber composed of:
Lech Garlicki, President,
David
Thór Björgvinsson,
Nicolas Bratza,
Päivi
Hirvelä,
George Nicolaou,
Zdravka
Kalaydjieva,
Vincent A. De Gaetano, judges,
and
Lawrence Early, Section
Registrar,
Having
regard to the above application lodged on 27 June 2011,
Having
regard to the decision of the President to grant the applicants
anonymity pursuant to Rule 47 § 3 of the Rules of Court,
Having
deliberated, decides as follows:
THE FACTS
- The
applicants, J.A.T. and J.B.T., are British nationals who were born in
2007 and 1975 respectively. The first applicant lives in South Africa
and the second applicant, who is the father of the first applicant,
lives in Kent. They are represented before the Court by Ms N. Mole of
the Aire Centre, a non-governmental organisation based in London.
A. The circumstances of the case
- The
facts of the case, as submitted by the applicants, may be summarised
as follows.
- The
second applicant married a South African national (“the
mother”) in February 2001. In 2007 the first applicant (their
only child) was born. The second applicant separated from the mother
in July 2009 and their divorce was finalised in September 2010.
- Following
the separation, the second applicant and the mother established a
fully-shared care arrangement. The first applicant spent equal
amounts of time (three and a half days per week) with each parent and
major events were celebrated jointly.
- On
15 December 2009 the mother applied to a District Court for
permission to relocate to South Africa with the first applicant. The
second applicant opposed the application.
- On
25 March 2010 the District Court asked the Children and Family Court
Advisory and Support Service (“CAFCASS”) to prepare a
report on the question of relocation. The CAFCASS officer filed her
report on 10 October 2010.
- The
report indicated that the motivation for the mother’s return to
South Africa was disputed. The second applicant believed that the
principal motivation for the mother’s return to South Africa
was her desire to pursue a new relationship. He was concerned about
the emotional harm that separation would cause to the first
applicant. He also expressed concerns that the mother’s plans
appeared to be somewhat vague. The mother accepted that she had a new
boyfriend (“X”) in South Africa with whom she hoped to
develop a relationship on her return. However, she claimed that she
had no support network in the United Kingdom and no employment
prospects. As a consequence, she was unable to fund an acceptable
lifestyle for herself and the first applicant. She believed that in
South Africa she would have the support of her family and friends,
who could also assist her in finding work.
- The
CAFCASS officer noted that the first applicant would likely
experience feelings of loss and bereavement were he to relocate to
South Africa and she suspected that he would regress severely, with
the added danger of behavioural problems at home and at school.
However, she believed that the good foundation he had gained from his
parents should offer a reasonably good prognosis for recovery and the
ability to adapt. She concluded:
“Mrs [T] has set out her plans for herself and [J]
in South Africa. These are attuned to [J’s] needs and appear
reasonable. In my opinion, there are areas of uncertainty, i.e.
settled living arrangements, her ability to earn and provide an
appropriate lifestyle, especially within a privatised system, and
child care arrangements (apart from nursery). Mr [T] asserts that Mrs
[T] is deeply committed to her relationship with [X] that her need to
be with him will override her consideration of [J’s] needs. If
this is true, this raises considerable concern. Mr [T] does not
accept that Mrs [T] is unable to fund herself or obtain a good home
should she remain in the U.K. He regards her as a resourceful and
talented individual. He states that she has the ability to have
frequent access to her friends and family in South Africa.
Recommendation
In my opinion, [J] should not be removed from the
jurisdiction unless there is a cogent reason for such a removal. The
viability of such a move will have to be established by the Court.”
- The
relevant legal test with regard to international relocation was set
out in Payne v. Payne [2001] 1 FLR 1052, in which the Court
of Appeal noted that such cases had consistently been decided upon
the application of two propositions: that the welfare of the child
was of paramount consideration and that refusing the primary carer’s
reasonable proposals for relocation was likely to impact
detrimentally on the welfare of her dependent children. Prior to
reaching a conclusion, the court had to ask whether the mother’s
application was genuine and realistic. If it was, the court had to
ask whether the father’s proposal was motivated by a genuine
concern for the child’s well-being or by some ulterior motive.
Finally, the court had to consider the impact on the mother of
refusal before conducting an overriding review of the child’s
welfare. The test in Payne
has been widely applied since the date of the judgment. However, in
the case of Re Y (Leave to Remove from
Jurisdiction) [2004] 2 FLR 330 a High
Court Judge held that a case in which there was an equal shared care
arrangement fell outside the ambit of Payne.
He decided the case solely on the welfare checklist contained in
section 1(3) of the 1989 Act and this decision was affirmed by the
Court of Appeal in MK v. CK
[2011] EWCA Civ 793.
- On
5 November 2010 a District Judge granted the mother permission to
relocate with the first applicant to South Africa. The judge noted
that in the present case there was no clear-cut primary carer.
However, she observed that both parents had new partners and that the
relationship between them had been becoming more strained. She
further observed that while each parent had equal custody, the second
applicant had largely left it to the mother to make important
decisions, for example concerning the choice of nursery school for
the first applicant. Consequently, the judge found it probable that
the terms of the shared care arrangement would change in future even
if the first applicant and the mother were to remain in the United
Kingdom. The judge therefore distinguished the case of Re Y and
gave weight to the factors in Payne.
- With
regard to the questions posed in Payne, the judge considered
that both parents were motivated by genuine rather than improper
concerns. Although the judge noted that the mother’s plans were
“fluid” and that there was an absence of any definite
plans, she considered her application to have been researched and
investigated. The judge accepted that relocation would have a huge
impact on the second applicant, but stated that it was clear that the
mother would be devastated if her application were to be refused, and
that her distress would impact negatively on the first applicant. The
judge also accepted that her distress would make it hard for her to
obtain employment and improve her life.
- Finally,
the judge considered the first applicant’s welfare as directed
by the welfare checklist. Although she noted that the case was very
finely balanced, she concluded that the balance of the first
applicant’s interests lay with relocation. In reaching this
conclusion, she noted that she had considered the Article 8
interference with the second applicant’s rights but considered
it justified and proportionate.
- With
regard to contact, the judge ordered that the first applicant was to
be brought to the United Kingdom at least twice per year and the
mother was to make the first applicant available for contact up to a
maximum of ten periods per year in South Africa. Contact was to
include one month’s staying contact in the summer and up to
half nursery or school holidays either in South Africa or elsewhere.
- Counsel
for the second applicant advised him that any appeal against this
decision would have slim prospects of success. Nevertheless, the
second applicant appealed to the Family Division of the High Court.
The High Court could only overturn the findings of the District Judge
if it considered them to be “plainly wrong” or if the
judge had approached the matter in a plainly incorrect way. As the
High Court did not consider the findings of the District Judge to
fall into either of these categories, it dismissed the second
applicant’s appeal in a decision dated 21 January 2011.
- The
mother and the first applicant moved to South Africa in March 2011.
The second applicant submits that they currently live in a one-room
bedsit with no internet connection. As a consequence, the second
applicant can only communicate with the first applicant through SKYPE
when he visits his grandparents. The first applicant is attending a
day care centre five days a week and the mother remains unemployed.
- In
July 2011 the mother brought the first applicant to the United
Kingdom, where he spent one month with the second applicant.
B. Relevant domestic law and practice
- The
principle statutory provision in cases concerning the care of
children is the Children’s Act 1989 (“the 1989 Act”).
Section 1 of the 1989 Act sets out the welfare checklist. The welfare
checklist provides that when a court determines any question with
respect to the upbringing of a child, the child’s welfare shall
be its paramount consideration. In particular, the court shall have
regard to the following factors:
“(a) the ascertainable wishes and
feelings of the child concerned (considered in the light of his age
and understanding);
(b) his physical, emotional and educational
needs;
(c) the likely effect on him of any change in
his circumstances;
(d) his age, sex, background and any
characteristics of his which the court considers relevant;
(e) any harm which he has suffered or is at
risk of suffering;
(f) how capable each of his parents, and any
other person in relation to whom the court considers the question to
be relevant, is of meeting his needs;
(g) the range of powers available to the
court under this Act in the proceedings in question.”
18. Section
13 of the 1989 Act concerns the removal of a child from the
jurisdiction. It provides that where a residence order is in force
with respect to a child, no person may remove him from the United
Kingdom without either the written consent of every person who has
parental responsibility for the child or the leave of the Court.
19. With
regard to the question of relocation, the foundation of the current
case-law is the case of Poel v. Poel
[1970] 1 WLR 1469. In that case Lord Justice Sachs stated that:
“When a marriage breaks up, then a situation
normally arises when the child of that marriage, instead of being in
the joint custody of both parents, must of necessity become one who
is in the custody of a single parent. Once that position has arisen
and the custody is working well, this court should not lightly
interfere with such reasonable way of life as is selected by that
parent to whom custody has been rightly given. Any such interference
may, as Winn LJ has pointed out, produce considerable strains which
would be unfair not only to the parent whose way of life is
interfered with but also to any new marriage of that parent. In that
way it might well in due course reflect on the welfare of the child.
The way in which the parent who properly has custody of a child may
choose in a reasonable manner to order his or her way of life is one
of those things which the parent who has not been given custody may
well have to bear, even though one has every sympathy with the latter
on some of the results.”
20. Following
the adoption of the 1989 Act the approach in Poel
was reiterated in Payne v. Payne [2001] 1 FLR 1052.
Lord Justice Thorpe stated that:
“In summary a review of the
decisions of this court over the course of the last 30 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.”
... ... ...
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 a 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 relationship 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.
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.”
21. Later
on in the judgment the President summed up the position as follows:
“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 133(1)(b) of the Children Act
1989 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 significant.”
22. The
test in Payne
has been widely applied since the date of the judgment. However, in
the case of Re Y (Leave to Remove from
Jurisdiction) [2004] 2 FLR 330 a High
Court Judge held that the facts of a case in which there was an equal
shared care arrangement fell outside the ambit of well-settled
authorities. He therefore decided the case solely on the welfare
checklist contained in section 1(3) of the 1989 Act. This decision
was affirmed by the Court of Appeal in MK
v. CK [2011] EWCA Civ 793, in which Lord
Justice Thorpe categorically stated that Payne
was based on the premise that the applicant was the primary carer and
that it in no way set out the approach the court should take where
there was no primary carer. In such cases the court stated that the
judge should exercise his discretion to grant or refuse by applying
the welfare checklist contained in section 1(3) of the 1989 Act.
Nevertheless, Lord Justice Thorpe considered the test in Payne
to be of continuing relevance in relocation cases. However, Lady
Justice Black and Lord Justice Moore-Bick appeared to suggest that
the test in Payne
was “guidance” rather than principles of law from which
no departure was permitted. They further suggested that the welfare
of the child should overbear all other considerations, however
powerful or reasonable they might be.
C. Relevant international law and practice
- The
United Nations Convention on the Rights of the Child provides as
follows:
“Article 9
1. States Parties shall ensure that a child
shall not be separated from his or her parents against their will,
except when competent authorities subject to judicial review
determine, in accordance with applicable law and procedures, that
such separation is necessary for the best interests of the child.
Such determination may be necessary in a particular case such as one
involving abuse or neglect of the child by the parents, or one where
the parents are living separately and a decision must be made as to
the child’s place of residence.
2. In any proceedings pursuant to paragraph 1
of the present article, all interested parties shall be given an
opportunity to participate in the proceedings and make their views
known.
3. States Parties shall respect the right of
the child who is separated from one or both parents to maintain
personal relations and direct contact with both parents on a regular
basis, except if it is contrary to the child’s best interests.
... ... ...
Article 10
... ... ...
2. A child whose parents reside in different
States shall have the right to maintain on a regular basis, save in
exceptional circumstances personal relations and direct contacts with
both parents. Towards that end and in accordance with the obligation
of States Parties under article 9, paragraph 1, States Parties shall
respect the right of the child and his or her parents to leave any
country, including their own, and to enter their own country. The
right to leave any country shall be subject only to such restrictions
as are prescribed by law and which are necessary to protect the
national security, public order (ordre public), public health or
morals or the rights and freedoms of others and are consistent with
the other rights recognized in the present Convention.
- On 23-25 March 2010, more than fifty judges and other
experts from Argentina, Australia, Brazil, Canada, France, Egypt,
Germany, India, Mexico, New Zealand, Pakistan, Spain, United Kingdom
and the United States of America, including experts from the
Hague Conference on Private International Law and the International
Centre for Missing and Exploited Children, met in Washington, D.C. to
discuss cross-border family relocation. The principles agreed on are
known as the Washington Declaration on International Family
Relocation. The Washington Declaration provides that:
“Factors Relevant to Decisions on International
Relocation
3. In all applications concerning
international relocation the best interests of the child should be
the paramount (primary) consideration. Therefore, determinations
should be made without any presumptions for or against relocation.
4. In order to identify more clearly cases in
which relocation should be granted or refused, and to promote a more
uniform approach internationally, the exercise of judicial discretion
should be guided in particular, but not exclusively, by the following
factors listed in no order of priority. The weight to be given to any
one factor will vary from case to case:
i) the right of the child separated from one
parent to maintain personal relations and direct contact with both
parents on a regular basis in a manner consistent with the child’s
development, except if the contact is contrary to the child’s
best interest;
ii) the views of the child having regard to
the child’s age and maturity;
iii) the parties’ proposals for the
practical arrangements for relocation, including accommodation,
schooling and employment;
iv) where relevant to the determination of
the outcome, the reasons for seeking or opposing the relocation;
v) any history of family violence or abuse,
whether physical or psychological;
vi) the history of the family and
particularly the continuity and quality of past and current care and
contact arrangements;
vii) pre-existing custody and access
determinations;
viii) the impact of grant or refusal on the
child, in the context of his or her extended family, education and
social life, and on the parties;
ix) the nature of the inter-parental
relationship and the commitment of the applicant to support and
facilitate the relationship between the child and the respondent
after the relocation;
x) whether the parties’ proposals for
contact after relocation are realistic, having particular regard to
the cost to the family and the burden to the child;
xi) the enforceability of contact provisions
ordered as a condition of relocation in the State of destination;
xii) issues of mobility for family members;
and
xiii) any other circumstances deemed to be
relevant by the judge.”
COMPLAINT
- The
applicants complained under Article 8 of the Convention that the
granting of leave to the mother to remove the first applicant from
the jurisdiction infringed their right to respect for their family
and private life. In particular, they submitted that the English law
on relocation in force at the time and applied to them did not permit
appropriate weight to be given to the gravity of the interference
with either of their rights under Article 8 of the Convention.
THE LAW
- The
applicants complained that the decision to grant the mother
permission to relocate to South Africa with the first applicant
violated their right to respect for their family and private life
under Article 8 of the Convention.
- Article
8 of the Convention provides as follows:
“1. Everyone has the right to respect
for his private and family life, his home and his correspondence.
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
- The
Court observes that the second applicant did not seek permission to
appeal to the Court of Appeal against the decision of the High Court
as he did not consider that such an appeal would have had any
prospect of success. The Court has on occasion found that where an
applicant is advised by counsel that an appeal offers no prospects of
success, that appeal does not constitute an effective remedy (see
Selvanayagam v. the United Kingdom (dec.), no. 57981/00, 12
December 2002; see also H. v. the United Kingdom, cited above;
and McFeeley and others v. the United Kingdom, no. 8317/78,
Commission decision of 15 May 1980, Decisions and Reports (DR) 20, p.
44). Equally, an applicant cannot be regarded as having failed to
exhaust domestic remedies if he or she can show, by providing
relevant domestic case-law or any other suitable evidence, that an
available remedy which he or she has not used was bound to fail
(Kleyn and Others v. the Netherlands [GC], nos. 39343/98,
39651/98, 43147/98 and 46664/99, § 156, ECHR 2003 VI; Salah
Sheekh v. the Netherlands, no. 1948/04, §§ 121 et seq.,
ECHR 2007 ... (extracts)). That being said, the Court has
consistently held that mere doubts as to the prospects of success of
national remedies do not absolve an applicant from the obligation to
exhaust those remedies (see, inter alia, Pellegrini v.
Italy (dec.), no. 77363/01, 26 May 2005; MPP Golub v. Ukraine
(dec.), no. 6778/05, 18 October 2005; and Milosevic v. the
Netherlands (dec.), no. 77631/01, 19 March 2002). However, in the
present case the Court does not have to take a stand on the
exhaustion of domestic remedies as it finds the complaint under
Article 8 to be inadmissible for the reasons set out below.
- It
is clear that the applicants had established a family life with each
other and that the removal of the first applicant from the
jurisdiction amounted to an interference with their right to respect
for their family life. However, it is equally clear that the mother’s
relocation to South Africa with the first applicant was authorised by
the domestic courts and pursued the legitimate aim of protecting her
rights and freedoms. The principal issue to be determined is
therefore whether the interference was “necessary in a
democratic society”.
- The
Court reiterates that the question whether an interference was
“necessary in a democratic society” requires
consideration whether, in light of the case as a whole, the reasons
adduced to justify the measures were “relevant and sufficient”
and whether the decision-making process was fair and afforded due
respect to the applicants’ rights under Article 8 of the
Convention (K. and T. v. Finland [GC], no. 25702/94, §
154, ECHR 2001 VII).
- In
considering the reasons adduced to justify the measures, and in
assessing the decision-making process, the Court will give due
account to the fact that the national authorities had the benefit of
direct contact with all of the persons concerned. It is not the Court
‘s task to substitute itself for the domestic authorities in
the exercise of their responsibilities regarding custody and access
issues (see, amongst many authorities, T.P. and K.M. v. the United
Kingdom [GC], no. 28945/95, §§ 71-72, ECHR 2001 V
(extracts) and R.K. and A.K. v. the United Kingdom, no. 38000/05, §
34, 30 September 2008). Indeed, the Court recognises that decisions
concerning international relocation raise difficult questions for
decision-makers because they involve a delicate balancing exercise
between the rights of each parent and the rights of the child and any
decision made will almost certainly constitute a significant
interference with the rights of at least one of the parties.
Consequently, the domestic authorities enjoy a wide margin of
appreciation when conducting such a balancing exercise and the Court
will only interfere with a domestic decision in the circumstances
indicated at paragraph 29, above: where the reasons given are not
relevant and sufficient, or where the decision-making process is not
fair or fails to afford due respect to the rights of all of the
parties.
- In
its current state English law gives great weight to the reasonable
proposals of the primary carer. However, it is clear from the
comments of Lord Justice Thorpe in Payne that there is no legal
presumption that his or her wishes will be granted. Rather, the test
in Payne not only requires the domestic courts to consider the
Article 8 rights of the non-applicant parent, but it also requires
that they prioritise the best interests of the child. Consequently,
it could not be said that the test in Payne does not afford due
respect to the rights of the child or the rights of the non-applicant
parent.
- The
Court recalls that in the present case the District Judge gave weight
to the factors established by the Court of Appeal in Payne despite
the non-existence of a primary carer. She did so because she did not
accept that the shared care arrangement could continue indefinitely
as both parents had new partners and there had recently been some
deterioration in the relationship between them. In making such an
assessment the District Judge had the benefit of first-hand contact
with both parents and it would not, therefore, be appropriate for the
Court to carry out its own assessment of the evidence. It therefore
accepts that the District Judge was entitled to reach this
conclusion.
- Moreover,
the Court does not consider that the manner in which the District
Judge applied the test in Payne can be criticised. She properly
considered the wishes of the applicant mother and the impact refusal
of the application would have on her; she considered and prioritised
the best interests of the first applicant; and she considered the
proportionality of the interference with the second applicant’s
rights which would result from the removal of the first applicant
from the jurisdiction. In reaching her conclusions the District Judge
took full account of the CAFCASS report. She accepted that the first
applicant’s relocation to South Africa would be likely to have
a negative impact on both him and the second applicant, but she
concluded that in the circumstances of the case, and in view of the
expert evidence available, that relocation would still be in the
first applicant’s best interests.
- Consequently,
the Court considers that the reasons given by the District Judge for
granting the mother’s request were relevant and sufficient and
her conclusions were within the margin of appreciation of the
Contracting State. Likewise, the decision-making process was fair and
afforded due respect to the rights of the applicants.
- The
foregoing conclusions are sufficient to enable the Court to conclude
that the applicants’ complaints under Article 8 of the
Convention are manifestly ill-founded and therefore inadmissible.
For these reasons, the Court unanimously
Declares the application inadmissible.
Lawrence Early Lech Garlicki
Registrar President
