F v M

On an interim application concerning children, the court must determine the least worst available option by applying the paramountcy principle and focusing on the children’s best interests. The court should not place a family in breach of the law of the country where it is living, particularly where that creates a real risk of prosecution or imprisonment. Where the evidence is incomplete and fact-finding is deferred, the court may proceed on reasonable interim assumptions, while avoiding findings on disputed allegations. The assessment must consider family unity, the children’s wishes and welfare, mental-health needs, education, immigration constraints and the practical consequences of each alternative.

The father applied for interim permission to relocate the parties’ three children from the United Arab Emirates to England after losing his employment and facing the loss of his right to remain there. The mother opposed relocation and proposed that the family remain in the UAE or move to Brazil while she pursued an English visa. The court had previously rejected the father’s ex parte application for draconian measures and had determined that the UAE was not the appropriate forum for deciding the family’s future. The central issue was which interim arrangement best served the children’s welfare in circumstances involving imminent immigration difficulties, possible family separation, mental-health concerns and the coronavirus pandemic.

1. Interim basis. The hearing was not a fact-finding hearing. The court therefore made no findings on allegations that the father had engineered his unemployment, that the mother had misused medication or alcohol, or that she had harmed the children. Those matters could be considered at the later hearing.
2. Lawfulness and welfare. The court would not adopt an arrangement requiring a British family to remain in breach of UAE law, given the possible consequences for the parents and children. The paramountcy principle required the court to identify the least worst option by assessing the children’s best interests.
3. Choice of destination. Remaining in the UAE was not shown to be practicable. Brazil was rejected because the family would be separated if the eldest child refused to go, there was inadequate evidence of mental-health support and schooling, the younger children did not wish to relocate there, and the pandemic created serious additional risks. The independent social worker’s evidence supported England as the appropriate destination if the children had to leave the UAE.
4. Order. Permission was granted to the father to bring the children to England. The mother was to live with the children in the father’s Surrey property, with the children spending substantially alternate weeks with each parent, subject to any agreement or further order. The parties were directed to co-operate with the mother’s visa application, testing arrangements and the children’s Brazilian passports, and were encouraged to mediate. The matter was to return for further consideration.

Not stated in the judgment. The decision was an interim first-instance determination, with the matter listed to return before Francis J.