English High Court: Dual UK-US citizen separated from husband granted permission to relocate to Boston with young daughters 

About this case:

• Citation:
  [2022] EWFC 60
• Judgment:
  External link
• Court:
  England and Wales High Court
• Judge:
  Mr David Rees QC

Applicant TR and respondent JM had two daughters together, aged six and four, and had lived together in London throughout their marriage. The couple had not divorced at the time the application was heard but it was observed that it was “very probable” that their marriage was at an end.

The application was heard by Family Court Judge Mr David Rees QC, with Deborah Eaton QC and Tadhgh Barwell O’Connor appearing for the applicant and Anita Guha for the respondent.

Higher earner

The parties first met in 2011 and married in the summer of 2014. The applicant first moved to the UK from the USA in 2005, having grown up in the Boston area. Both the parties’ children possessed British and American citizenship. The eldest child, VB, attended an independent school in London and the youngest, LB, a private nursery. It was noted that both parents had played an active role in the children’s parenting but there was a dispute as to which was the primary carer.

Both children were diagnosed with a heart condition from a young age for which they were in receipt of private medical treatment. It was noted that VB had mostly outgrown the condition and was on a small amount of medication, while LB remained on a higher dose.

Of the parties, the mother was the higher earner, with a salary of approximately £260,000 per annum and around £900,000 in savings, £350,000 of which albeit was earmarked to meet a potential liability to the US government. Medical evidence led by both parties demonstrated that they both suffered from some form of depression, with an expert witness for the mother stating that she considered her desire to return to the USA to be the longest standing issue, and it was submitted that any decision made would have a serious negative impact on at least one of the parties.

The mother’s proposal was that she would move with the children to a town just outside Boston. In respect of the children’s condition, their existing consultant had offered to make a referral to an identified consultant at Boston Children’s Hospital. A desire for the father to move with them to the USA was expressed, or for the children to spend 4-6 weeks per year with him over school holidays.

It was the respondent’s position that the UK was the children’s home, and he was critical of the feasibility of the relocation plan. In response to his proposal that the children remain in the UK, the applicant argued that it was not affordable for the parties to purchase two suitable properties in the local area and keep the children in their current school.

Long-held desire

In his decision, Judge Rees observed: “Having had the opportunity to hear the evidence of both parents I have been left in no doubt that the mother has a genuine and long-held desire to return to live in the USA, and to do so with the two children. I accept that this is not a case where the mother is seeking to remove the father from the children’s lives. The duration and consistency of her desire to return to the USA and her obvious wish for the father to continue to play an important role in the children’s lives make this clear.”

He continued: “I do not criticise either parent for their position. I do not consider that either has deliberately set out to frustrate or thwart the other. Sadly though, they have reached the point where their conflicting wishes and objectives for their and the children’s future have become mutually irreconcilable, are having a damaging effect on their own and each other’s mental health and risk placing in jeopardy the welfare of the children.”

Comparing the proposals put forward by the parties, Judge Rees said: “I consider that there is little to choose between the two proposals in terms of the material facilities that will be available for the children (by which I mean accommodation, education facilities, healthcare and the like). In my judgment this case turns upon the impact that the proposals will have on the children’s relationships with each of their parents.”

However, he went on to say: “The key factor in the present case is the likely effect that each proposal will have on the parents’ mental health, and the extent to which this impacts upon the welfare of the children and upon each parents’ ability to provide the love and support that these children require. In my view this is the issue which reveals the crucial differences between the parties’ proposals. I have formed the view that if the mother’s application is refused and I require her to remain here with the children, her mental well-being and her ability to parent the children will be greatly impaired.”

The judge concluded: “Both outcomes are far from ideal as, one way or another, a significant and adverse impact on health of one or other of the parents seems unavoidable. However, when looked at through the lens of the children’s welfare, I am satisfied that the mother’s proposal to relocate to the USA offers the better prospect of reducing the impact upon the children (so far as is possible) of their parents’ ill-health.”

Judge Rees therefore granted permission for the applicant to relocate the children to the USA and gave the parties until 1 July 2022 to attempt to reach an agreement as to contact arrangements.