A father has won his appeal against a court order allowing his estranged wife to take their three children to live in Germany.
The couple had married in 2010 and separated in 2015. The father was British; the mother was German with extended family in Germany. They had three children aged between one and five years old.
Divorce proceedings had not yet been concluded. An officer from CAFCASS, the organisation that protects the interests of children in family disputes, reported that the father resented the mother because she did not work despite having trained as an engineer.
The mother had made allegations of three incidents of domestic violence, and although there was insufficient evidence they had really taken place, it was clear she was occasionally afraid of the father.
There was a vague plan for the whole family to relocate to Germany, where the mother would work and the father would remain at home with the children. The officer stated that the children had a good relationship with their father, and recommended refusing the application because it would adversely impact that relationship, even though without the relocation they would be exposed to continued conflict between the parents.
The judge granted the application but deferred the relocation for 12 months to allow time for the divorce proceedings to continue, or for the plan for both parents to relocate to go ahead.
The father appealed and submitted that the judge had placed disproportionate weight on the dysfunctional relationship and had given no basis for departing from the CAFCASS officer’s advice.
The Court of Appeal found in favour of the father. It held that the CAFCASS officer’s evidence had been clear: the adverse impact of the loss of the relationship with the father would outweigh the adverse impact of the conflict between the parents.
There was an absence of a clear welfare assessment. The order would lead either to a similar level of conflict in Germany if both parents relocated, or to the estrangement of the children from their father.
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Case featured:
Father wins appeal against his wife taking children abroad
RE E (CHILDREN) (2017)
CA (Civ Div) (McFarlane LJ, Ryder LJ) 15/03/2017