By Alexandra Goldrein, solicitor in the Family Law team
The primary issue in this case was mother’s application to relocate with her 21-month-old daughter from England, to her native homeland of Slovakia.
Central to that issue was PD12J, under which:
"Controlling behaviour means an act or pattern of acts designed to make a person subordinate and/or dependent by isolating them from sources of support, exploiting their resources and capacities for personal gain, depriving them of the means needed for independence, resistance and escape and regulating their everyday behaviour."
The central facts were:
- Father was twice the age of mother, who had been working as a waitress in London for five years. She had moved to England from Slovakia without completing her further education. She sought out new opportunities as she had family in London.
- The child was an only child, 21 months old, of her mother, and father. He was a British Algerian of Muslim faith.
- The parents met in England and fell in love. They had a religious wedding at which mother converted to Islam, having come from a Christian background.
- Father wanted his daughter to remain in England; it was mother’s plan to remain in England if the child were ordered to remain here.
- Mother longed to be able to return to Slovakia with the child where most of her family were. She and the child would have accommodation at her parents' house and benefit from their emotional and financial support. She regarded it as very important that the child has contact with the father. She would support her daughter to speak English. She practised the Islamic faith herself. She would be happy for her daughter to learn about Islam from the father, and for him to take the child to Algeria to see his family there, when the child is a little older.
- The child’s maternal grandmother clearly loved her granddaughter.
- The maternal grandmother and her husband lived about 45 minutes east of an airport that has direct flights twice a week to Luton Airport.
- The father had a good and caring relationship with the child. The father loved the child and there was no evidence that he had ever harmed her, or during contact exposed her to any risk of harm. The mother acknowledged that, she had honoured contact arrangements and had agreed to increase contact to the father.
Findings of fact:
The father alleged that there had been a wrongful retention of the child in Slovakia, which Poole J found not to be the case. The father’s argument was based on a dishonest written statement by the Father. “It is quite evident that the father misled the court”.
Further there were cross-allegations, which formed the subject matter of findings-of-fact.
The allegations of mother against father were of violent and controlling behaviour, which the court found proved.
The allegations of the father against the mother were to malign the mother as an aggressive, even violent woman, rendered even more unstable by severe depression. He further alleged controlling behaviour, that the mother had attempted suicide, shaken the baby and threatened to kill the baby.
Poole J found the mother’s allegations proved, but rejected all the father’s allegations, finding that he had been substantially dishonest.
Poole J also made the following finding: “The father sought to exert control over the mother during their relationship.” The judge summarised the position thus in the context of PD12J:
“…The father's conduct, including acts of violence, had contributed to the mother's vulnerability, and he then exploited that vulnerability to seek to control her actions and behaviour to suit him.”
The relevant law:
“Welfare” is the paramount consideration. Everything that is considered by the court in reaching its determination is put into the balance with a view to measuring the impact on the child: Re F (International Relocation)  EWCA Civ 882.
What is required is a balancing exercise in which each option is evaluated to the degree of detail necessary to analyse and weigh its own internal positives and negatives and each option is then considered, side by side, against the competing option; Re F [ibid].
The parents’ plans must be scrutinised and evaluated by reference to the proportionality of the relationship between the child and the father; international relocation cases engage Articles 6 and 8 of European Convention; and see also section1(2a) and 1 (2B) of the CA 1989 inserted by the Children and Families Act 2014.
PD12J required the Court to ensure that any order for contact would not expose the child to an unmanageable risk of harm.
The court acceded to the mother’s application for the child to live with her in Slovakia, with regular contact to father, which she would particularly seek to facilitate.
The risk of harm to the child was from the father’s abuse of the mother, in the context of contact providing an opportunity for the father to seek to exercise control,
In contrast to the social isolation and impecuniosity which mother would suffer in England, in Slovakia, she would live with her parents, in the town where she grew up, with suitable accommodation provided at no charge to her. A move to Slovakia would have a positive effect on her own mental health.
The greater separation between the parties that relocation would create would help to protect the mother from the harm caused by the father's controlling behaviour. This lowers the risk of harm to A and would be of benefit to her.
Further welfare factors were:
- Since she knew her family in Slovakia, the move for this young child would be comfortable.
- The child was confident in the father’s company; he was crucial to her welfare.
- There should be regular video contract.
- The father would ensure that she learnt of the Muslim faith, and equally critically,
- Mother must commit to continuing to help her daughter to speak English.
“104. The effects of the father's past domestic abuse compounded by his dishonest evidence about that abuse and his lack of insight into the effects of his conduct on the mother, mean that there would be a significant detriment to A's welfare should the mother not be permitted to relocate. There would be a risk of harm to A were the mother to remain in England. In contrast there would be significant benefits to A from allowing relocation to Slovakia where her mother will be liberated from the worse aspects of the abusive relationship with the father and will have the loving support of her parents and wider family and community….”