Recently, a judge has shared the letter he had written to two brothers aged 8 and 11 after making his decision on whether the children should continue living in London, or relocate with their mother to Somerset.
Ms D v Mr D [2020]
Background
The case involved the mother and father of two children who had separated and divorced in 2017. The father also had a 19-year-old son from a previous relationship.
As part of the divorce financial settlement, the mother was awarded £500,000 to buy a property close to the children’s school and to reduce some of her debts. The mother discharged her debts, but later claimed she did not have sufficient funds leftover to purchase a suitable property in London and instead moved into rented accommodation in the area.
An application for a Child Arrangements Order was also made to determine where the children should live. There had been repeated involvement of social services and various reports made to the police due to the acrimonious relationship between the parties.
At a hearing in 2018, the judge made the decision that the children should live with both parents equally on alternate weeks in their homes in London and during school holidays. A Prohibited Steps Order was also made preventing the mother from relocating with the children to Somerset where she was from.
In 2020, the mother purchased a property in Somerset while retaining her rental property in London, dividing her time between her two homes. The mother had also registered the children for sports and activities in Somerset for when they spent time there. The father made an application to the court in December 2021 for a further Prohibited Steps Order, and for a Child Arrangements Order to change the existing arrangements for the children to live with him and spend time with the mother. The mother then filed her own application for a Child Arrangements Order and Specific Issue Order for the children to relocate and live with her in Somerset and spend time with the father.
Children’s wishes and feelings
A Cafcass Officer spoke to the children when preparing a report for the proceedings with their recommendations to the court. The eldest child told Cafcass they would prefer to go to school in Somerset, but that the mother had told him there was a lot of crime near his proposed secondary school in London. The eldest child also said he wanted to move to Somerset as he has friends and family there, but if he stayed in London, he would like his parents to listen to him and to stop arguing as he was frustrated by “all this crap that is going on”.
The youngest child said the proposed school in Somerset was a better school, and when asked why by Cafcass he said as the teachers were kinder but was unable to express how he knew this having only had a short visit to the school.
In the report prepared by Cafcass prior to the hearing, it was recommended that the court should grant the mother permission to relocate with the children and that they should spend time with the father every other weekend alternating between London and Somerset as well as half of the school holidays. The father disagreed with the Cafcass recommendation and felt that the lengthy journeys to Somerset every fortnight were not in the children’s best interests.
When the Cafcass officer was questioned on her report at a final hearing, she had concerns that the children may have said things to her that they felt they should say, and that they made strange comments about the father without prompting. The Cafcass officer believed the children had been influenced around the negative feelings about the eldest’s secondary school, and by the amount of time they had already spent in Somerset including their social activities.
The Cafcass officer said in her evidence she also had concerns that the children, particularly the eldest child, might blame the father if they could not relocate. The recommendation contained in the report for the children to relocate was on the basis that the mother maintains, supports and actively prioritises the children’s relationship with their father, but Cafcass said if the mother could not do this and is unable to separate her own views from the children’s, then the relocation would not be recommended.
Outcome
The judge considered that the children were at risk of emotional harm if they did not continue a full and meaningful relationship with their father, as well as their relationship with their half-brother. The judge felt that the mother’s views of the father made it difficult to accept that she would be able to prioritise the children’s relationship with their father and promote his involvement if they were to relocate 170 miles away, and that the father could be frozen out of the children’s lives.
While the judge accepted the children had expressed the view they wanted to move to Somerset, he felt this was subject to the mother’s influence and was not their true ascertainable wishes and feelings. The judge put some weight on the children’s wish to move but this was limited as they had not appreciated how this would diminish their relationship with their father. The judge also felt fortnightly trips between London and Somerset was tiring for the children, and the eldest in particular would need his energy when starting secondary education and exams.
The judge concluded that the current shared care arrangements for the children should continue with them spending equal time with both parties in London, and that Somerset should be a place for holidays. The judge hoped that this distinction would assist the parents in improving their relationship and urged them to work together on their communication with each other for the children.
The judge also wrote a short letter to the children to explain how he had taken their views and needs into consideration when reaching his decision. In the letter, the judge acknowledged the children’s frustration with their parents arguing and assured them that he had told Mum and Dad to stop “the crap”. A copy of which can be found via the following link: Judge sends letter to young brothers in custody row – BBC News
For those interested in the legal details the full judgment is available on the British and Irish Legal Information Institute site here – https://www.bailii.org/ew/cases/EWFC/HCJ/2022/164.html
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