L v M

In determining family jurisdiction and welfare issues, the court must assess disputed evidence in its full factual and relational context. Inaccuracies or lies do not necessarily undermine a witness’s credibility; their significance depends on the circumstances in which they occurred and whether they relate materially to the issues. Findings of fact are made on the balance of probabilities, with the burden resting on the party asserting the relevant matter. A parent who has moved children abroad without the other parent’s consent may need to pursue the ordinary application for permission to remove, rather than rely on a forum conveniens argument.

The proceedings concerned two children whose father had taken them to Country A in 2012 without the mother’s knowledge or consent. The mother had been separated from the children for over five years after the father took her to Country A in 2007 and returned to England without her, retaining her travel documents. After the mother returned to England, she obtained protective orders in the County Court. The father then applied under the inherent jurisdiction for the proceedings to be transferred to Country A and for the children to return there.

The father conceded that the children were habitually resident in England and accepted that he should originally have sought permission to remove them. He withdrew the forum conveniens application. The court nevertheless gave judgment concerning the factual background, the children’s relationship with their mother, contact, and future directions.

1. Jurisdiction and procedural course. The father conceded that the children were habitually resident in England and that he should have sought permission before moving them permanently to Country A. His application to stay or transfer the proceedings on forum conveniens grounds was effectively withdrawn. The appropriate future issue was an application for leave to remove the children from the jurisdiction.
2. Findings of fact. Applying the balance of probabilities, the court accepted the mother’s account that the father had taken her to Country A knowing that her visa had expired, retained her passport and travel documents, and failed, apart from limited efforts in 2008, to facilitate her return or maintain her relationship with the children. The mother’s delay in returning did not demonstrate disinterest. It reflected her dependence on others, limited resources, family dynamics and the imbalance of power between the parties.
3. Credibility. In accordance with R v Lucas (1981) QB 720, inaccuracies in the mother’s visa application and divorce pleadings had to be assessed in context. They arose against the background of her anxiety and desire to reunite with her children and did not undermine the reliability of her evidence as a whole.
4. Children’s welfare and contact. The children had been physically well cared for, principally within the paternal family, but there were serious concerns about their emotional understanding of their mother and the apparent suppression of discussion about her. The court had regard to the principles in Re B (a child) [2009] UKSC 5. Sensitive work with an experienced High Court Cafcass guardian was required to assist in restoring the children’s relationship with their mother. Reasonable contact was to be arranged in consultation with Cafcass, with further directions leading to determination of the father’s application for leave to remove.

This was a first-instance decision. The judgment records that protective proceedings were initially issued in the County Court and that Mrs Justice King subsequently ordered their transfer to the High Court. The present court determined the preliminary jurisdictional and factual issues and gave directions for the future applications.