Northern Ireland

Introduction

Relocation cases give rise to the ‘hardest of dilemmas’ⁱ declared Humphreys J on opening the present proceedings, because as in this instance both the child’s mother and father are well-motivated and loving parents who wish nothing but the best outcome for their child.

Two applications were being brought before the court under Article 8 of the Children (Northern Ireland) Order 1995: an application for a Joint Residence Order brought by the father; and an application for a Specific Issue Order permitting the mother to relocate to the USA with Tom, their 11-year-old son.

Background

The mother and father began a relationship in 2007 and Tom was born in 2009. The parents parted in 2011, at which time a Residence Order was made in favour of the mother with the father having regular twice-weekly contact, including additional overnight stays and some extra-curricular activities.

The mother married a US citizen in 2019 and gave birth to a son in August 2019. She expressed the firm view that relocation to the USA would be to Tom’s benefit as he would enjoy greater opportunities both in terms of education and lifestyle. The mother also stressed that Tom had always lived with her and she believed he would wish to continue to be part of that family life. The father had been in a long-term relationship with his current partner since 2016 with whom he now had a baby daughter. He was concerned about the potential impact of a move to the USA, including the loss of friendship and family ties as well as the paternal relationship.

The legal principles

Humphreys J explained that Article 3 of the 1995 Order required the court, when considering any application relating to the upbringing of a child, to treat the child’s welfare as the paramount consideration while Article 3(3) contained the ‘welfare checklist’, to which the court was to have particular regard. He advised that the Court of Appeal had reviewed many of the relevant authorities in SH v Rⁱⁱ and concluded that the only legal principle in play was that of welfare paramountcy. He noted that distinctions had been made between cases where the applicant for relocation is a primary carer and those where the care of a child has been shared, which derived principally from the English authorities of Payne v Payneⁱⁱⁱ and MK v CK^iv. However, as Morgan LCJ commented in SH:

The effect of the guidance should not be overstated even where the case concerned a true primary carer. There was no presumption that the reasonable relocation plans of the carer will be facilitated unless there is some compelling reason to the contrary.

The court had concluded:

In this jurisdiction we agree with the learned trial judge that in relocation cases the court should focus on the welfare of the child as the paramount consideration.

The mother’s case

It was the mother’s case, as she repeatedly stressed, that she was the primary carer for Tom and had been since she left the father in 2011. She painted a picture of a happy, emotional, tactile boy who enjoys football, kickboxing, videogames and his friends. It was particularly clear that Tom enjoyed good relationships with members of both his immediate and extended families. She had made it clear that if the court determined that Tom should not relocate to the USA, she would move there on a permanent basis with her husband and her second son Joseph.

Tom’s primary school teachers advised that he struggled at times to maintain concentration and suggested that he might benefit from some further assessment. He had some symptoms of Attention deficit hyperactivity disorder (ADHD) but no diagnosis had yet been made. It was part of the mother’s case that treatment plans for ADHD are much better in the USA than in Northern Ireland. She was concerned that neither the Court Children’s Officer (CCO) nor the Official Solicitor had been able to discuss with Tom the impact of her relocating to the USA without him. When faced with questions on this subject, Tom avoided answering or diverted to a different subject matter.

Humphreys J noted that there had been recent disagreements and difficulties between Tom’s parents. One such concerned the selection of a school for Tom next year: the mother preferring a grammar school and the father a secondary school. In the event the father had completed the online application and chose the secondary school. The judge also noted that the present case had been listed for a hearing commencing on 15 April and it came as no small surprise to the court to discover that the mother, her husband, Tom and Joseph were booked on flights to the USA on 20 April. The mother had revealed that she had sold household furniture, had fully packed up the property and suggested to Tom that he could purchase sweets for his school friends as he would be leaving soon. Humphreys J referred to evidence that Tom enjoyed a very strong bond with his maternal grandmother who, it had been suggested, would also move to the USA. However, as he pointed out, the grandmother had no entry visa and it would be at least three years before her daughter could become a naturalised citizen and be in a position to apply for one.

In cross-examination the mother accepted that her husband was her only link to the USA. She had no other family or friends there and had only visited on one occasion. She accepted that Tom enjoyed a strong family network in Northern Ireland, which extended not only to his maternal grandmother but also to his paternal grandparents, aunts, uncles and cousins. It was suggested to her that the motivation for relocation was largely financial in that her husband would enjoy more lucrative employment and she would therefore benefit from enhanced security and a better standard of life. The mother’s response was that her husband had been unable to identify potential employment in Northern Ireland that would give him a comparable level of income and security. Other options were put to her such as staying in Northern Ireland with or without her husband or her husband working in England, but none had found favour with the mother.

The mother’s husband gave evidence of a lucrative job offer in the USA, substantiated by documentary evidence. He maintained that his lack of professional qualifications in Northern Ireland meant that any employment opportunities in this jurisdiction would entail a considerable drop in income if he stayed here with his wife and family.

Given that Tom’s welfare was of central importance to the court, Humphreys J took the view that it was entirely appropriate to explore the mother’s views on matters such as testing, vaccinations and medical treatment. Accordingly, she was challenged about a text message she had sent in December 2020 stating: ‘I do not want Tom to get tested. I do not believe in Covid. The temperature check affects your third eye and pineal gland.’

In cross-examination she confirmed this view, seemingly acquired from the internet, that the centre of one’s brain could be affected by an infrared temperature check. She also raised an issue regarding the father’s use of drugs. He responded by admitting to using cannabis on an infrequent basis, often associated with poker evenings when he played cards with friends but not in Tom’s presence nor while Tom was on his property.

The father’s case

The father was born in Northern Ireland, had worked in the family business since leaving school and had been with his partner for some five years and since January 2020 was father to their baby daughter. He had a modest income from the family business and also had two investment properties. His own parents, his sisters and their children had all played important parts in Tom’s life, and he had a close relationship with his maternal grandmother. Prior to Covid-19, Tom had regularly attended a gym to develop his kickboxing skills with a core group of friends.

The father took particular issue with the assertion that the mother was the primary carer, claiming that he had always maintained a close relationship with Tom since his birth and it was his case that the quality of time together was more important than the number of hours spent with each parent. In relation to the choice of school, he explained that his discussions with the primary school teachers had led to a preference being expressed for the secondary school to which Tom had now applied. As regards the drugs issue, he stated that he was both ashamed and disappointed with himself and would not be using cannabis again but emphasised that he had never used drugs in Tom’s presence. In relation to the proposed future contact arrangements, he considered it was a lot to expect Tom to travel six or eight times a year across the Atlantic, adding that if Tom wanted to go he would support him in that decision but his son had never expressed such an opinion.

The court also heard evidence from the father’s partner who described her feeling of devastation that Tom had been put in a position to choose not only between his parents but also between his siblings. In relation to the use of cannabis, she said it was something that she firmly disapproved of and that she believed the father when he stated that he would not be using it again.

Other evidence

The court had the benefit of reports from the appointed CCO recounting her interviews with both parents, with Tom’s GP and his class teacher. Tom had clearly expressed the view that he would much prefer things to remain as they were but if his mother was to relocate to the USA he would prefer to stay in Northern Ireland. He would visit his mother when he was off school, particularly during the summer holidays. His final comment to the CCO was, ‘I just wish nothing would happen … really unfair like I just wish everyone would just stay here.’

The CCO stressed that the whole of Tom’s life experience has been in Northern Ireland where his friends, immediate and extended families all reside. It was apparent that during the course of the interviews Tom did not articulate to the CCO the potential impact of the loss or diminution of his relationship with his mother in the event of her relocation without him. Essentially this was because Tom chose not to engage on that subject. She concluded that the decision made by the mother to move to the USA was predominantly about her needs rather than Tom’s. The court also received two reports from the Official Solicitor’s office which similarly concluded that a relocation to the USA would not be to Tom’s overall benefit.

Humphreys J drew attention to the fact that existing travel arrangements during the Covid pandemic did not permit an individual to travel to the USA with a child unless that child was a permanent resident of the USA. This would necessarily present complications for Tom and his father in the short term.

Consideration

Humphreys J applied the welfare checklist then, having considered the issue holistically, concluded that Tom’s welfare would be best served by his remaining in Northern Ireland for the following principal reasons:

Neither Tom nor his mother had any established links to the USA. They had visited only once on holiday.

Held

Relocation application dismissed. Joint Residence Order issued prohibiting the removal of Tom from the UK without the permission of both parents or the leave of the court. Contact arrangements adjourned for two weeks to permit the parties an opportunity to reach agreement.

Comment

Such cases may indeed give rise to the ‘hardest of dilemmas’ but they do so with increasing frequency. As family breakdown and serial parenting have become an accepted aspect of modern life in western society, so this double dilemma – of which faultless parent is to be denied the opportunity to maintain a cherished bond with their child and which parent the child has to sacrifice – is being repeatedly brought before the courts. The paralysing effect of such a choice on the child concerned is very evident in this case. It is heartening to see the views and the rights of the child being given such respectful attention, even if the omission of any reference to international Conventions and related cases is rather surprising.