Court rejects bid to move to New York with children

Children|December 23rd 2015

The French-born mother of two teenagers should not be given permission to relocate with them to New York, the Court of Appeal has ruled.

In the latest round of a lengthy legal dispute, the mother had initially been refused permission in July to move to the American city from London with the two boys, aged 14 and 16, but she was subsequently granted permission to appeal. Her eldest son, E, who is now 16, was also granted permission to appeal. He had previously been made a party to the proceedings as the former couple’s dispute continued.

Both parents are French nationals. They originally met in 1991 and eventually married in 1997. Shortly afterwards they returned to Paris and the two children were born in the French capital.

In 2001 the family moved again, this time to London, where they have remained ever since, with the youngsters attending school and growing up the city.

The parents separated as long ago as 2005 and the mother moved with the two children into a rented flat.

The following year, the parents reached an amicable shared residence agreement, which saw the children spending “four or five nights a fortnight” with their father and the rest of the time with their mother. In the Court of Appeal, Mr Justice Peter Jackson noted that the children “have moved comfortably between both households while regarding the mother’s home as their primary home.” The father was very involved in his sons’ lives.

They reached a settlement in 2007 and the mother became financially successful. Despite this the father continued to pay her £112,000 per year in maintenance, with an additional £44,000 for the two children.

Finally, in November 2013, the father reduced his maintenance payments to the mother to £48,000 per year and applied to reduce his obligations still further under the terms of the original settlement.

Then in March last year, the mother left her £200,000 per annum job in disputed circumstances. The father claimed she had made herself unemployed while she insisted that she had tried – unsuccessfully – to negotiate a higher salary to compensate for the lower maintenance payments. She told the father that she would not be able to continue living in London if he did not pay the full amount.

The father’s application to reduce the maintenance payments was approved on a temporary basis but a final decision was adjourned till January, to allow a decision on the mother’s separate application to relocate to the United States.

The mother took the boys to New York, apparently for a holiday, but then told them during the flight out that they were actually going to look at schools in preparation for a planned move.

Back in the UK, she launched a formal application for permission to relocate, arguing that she could not afford to continue living in London now that the father had cut her maintenance payments. She believed that she would have a better chance of finding new work and business success in New York, and claimed that the father had no real need to reduce the maintenance.

The father countered by arguing that the children were settled in their schools and should be allowed to remain there until they were old enough to go to university. If they were allowed to move to New York, the children would no longer see him as regularly as they currently did and the mother would have no more day-to-day childcare support from him.

A judge, describing the decision as “very finely balanced” concluded that the mother’s move would expose the two boys to disruption and uncertainly to little real benefit.

She appealed, arguing that the judge had not given due weight to the views expressed by the children – they had said they wished the move to go ahead, and that he had been wrong to make a ruling regarding a child over the age of 16.

But the Court of Appeal concluded that the earlier judge’s ruling had been correct. Consequently, the Court would make no order in relation to the older boy, and thereby oblige the family to reach their own, mutually acceptable decisions on the matter. The mother would be forbidden from taking the younger boy with her if her move went ahead but it was noted that this prohibition would expire once he passed his 16th birthday – he was then 15 years of age.

Mr Justice Peter Jackson included some forthright comments on the family’s courtroom confrontations.

“This family appeal strongly demonstrates the damage that is caused when separated parents fail to take the opportunity to resolve their differences. Instead of finding its own solutions, this family, which has every other advantage, has engaged in two years of litigation that has caused great unhappiness, not least to two teenage children.”

He continued:

“Aside from the emotional cost and general waste of life, the financial cost has been staggering. The parents have so far expended £850,000 on legal costs …The proceedings are yet another example of why the Family Court repeatedly attempts to divert parties into mediated solutions that allow them to keep control of their own affairs. The court is there to resolve disagreements that cannot be resolved in any other way but, as has been said before, it is not a third parent.”

Read H (Mother) v C (Father) here.

Author: Stowe Family Law

Comments(6)

  1. Luke says:

    ====
    “A judge, describing the decision as “very finely balanced” concluded that the mother’s move would expose the two boys to disruption and uncertainly to little real benefit.”
    ====
    .
    No, it’s NOT finely balanced – it’s an open and shut case – there is no suggestion that the 14 year old is adamant that leaving their father permanently to go to France is preferable – despite clear pressure from the mother with regard to schools. So he obviously shouldn’t be separated from his father, the mother has no case at all.
    .
    The courts came to the right decision but took up £850,000 in legal costs ! So maybe there was method in the judicial madness after all…

  2. Claire finn says:

    What do you imagine a court’s decision would be to a mother seeking to relocate to a European city with the children when the father has already relocated to North America and only sees his children 2-3 times a year. The children living in a different European City would not make much of a material difference in the father’s ability to visit them or vice versa.

    • Marilyn Stowe says:

      Dear Claire
      The court is concerned only with the children’s welfare. If the father doesn’t object there’s no problem, he would simply give his consent. Even if he did object if she applied to leave the jurisdiction with the children, (just taking them without a court order or his consent would be an abduction) he would have to show how it wasn’t in their best interests. Potentially he’d argue if they are relocating they should come and live with him. So then it could become a straight choice between mother and father both relocating and the court applies the welfare test and the appropriate factors. What is in the children’s best interests? Also are they old enough to express a view?
      The best, cheapest and most sensible thing to do in such a situation is a negotiation/mediation but only if mother is first satisfied that relocating the children is indeed in their best interests. Another European city will presumably involve a change of language as well as home, school, friends, lifestyle, culture. Too many factors in fact to consider in a short answer.
      Regards
      Marilyn

      • Luke says:

        I appreciate that you can’t give too much advice on the back of a blog post Marilyn but I am a bit surprised by your response (but I’m not a lawyer – so I’m definitely NOT saying you’re wrong !).
        .
        If the father has ALREADY relocated to North America how can it significantly affect him whether he occasionally visits the children in England or another European country ? How can he realistically claim a change of residency if he has already left ?
        .
        Obviously there may be circumstances we are not aware of but given the information we have unless these unknown circumstances are very strong indeed then as a lay person I cannot see a reason why this should be stopped even if the father does object.
        .
        BTW, Happy New Year – and Happy New Year to Cameron too if he is doing the admin on this 🙂

      • Claire says:

        Thanks Marilyn for your reply!
        I’m inclined to agree with Luke here – but I’m not a lawyer either. Negotiation doesn’t seem possible at the moment and the mother is applying to the court to lift a previous order not to leave the jurisdiction that was brought by the father who then left himself. One of his objections is the schools/friends/family etc but he has a history of objecting/removing the children from schools and the extended family is his family. The mother is from the antipodes. His main objection seems to be that he doesn’t know anything about the mother’s new partner. It seems strange that he can move countries/continents and move in with a new partner but retain a veto over the mother’s new life.
        If cooperation and negotiation don’t seem successful can the mother apply for sole guardianship and does this automatically encompass the right to relocate? She is still weighing the pros and cons of a move carefully but part of that process involves applying to English/bilingual schools that require either both parents signature or proof of sole guardianship.

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