COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CAMBRIDGE COUNTY COURT
His Honour Judge Langan QC
London, WC2A 2LL
Tuesday 13 February 2001
B e f o r e :
LORD JUSTICE THORPE
LORD JUSTICE ROBERT WALKER
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Smith Bernal Reporting Limited, 190 Fleet Street
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Miss Joanna Hall (instructed by Hodge Jones & Allen, London, NW1 9LR for the Respondent)
Crown Copyright ©
LORD JUSTICE THORPE:
" due to the attitude of the wife, which clearly was that she did not want to remain in the marriage and had turned her back completely on the possibility of living other than in New Zealand."
" ... the mother's conduct at this stage was, as I believe she now recognises, of a most discreditable kind even if one makes every allowance for the aftermath of the Hague Convention proceedings and the stress of the flight from Auckland. What she did was bound to cause hurt and genuine anxiety to S's other parent ..."
"S is to have contact with the father on alternate weekends, from Thursday evening to Sunday afternoon, together with an additional period of seven days in every eight weeks. In fact, by agreement between the parties, the alternate weekend contact has been extended so that it starts on Wednesday evening. If my calculations are correct, what all this means is that, in every cycle of 56 days, S spends 23 nights with the father."
"The mother lives, as I have already stated, in a one-bedroom flat in Plumstead. Most of the units in the development are occupied by elderly people, so that the environment is not ideal for a mother who is bringing up a young child. The mother's job is in Borough High Street, London SE1. Apart from times when S is with the father, the mother and S leave home at 0730 on working days. The mother drives to a nursery some 10 to 15 minutes away, and leaves S there for the rest of the day. She continues her journey to work by car, walking, train and walking again, and is at work from 0900 to 1700. In the evening she makes the return journey, collecting S on the way, and they get home at about 1815."
"The mother has an intense dislike of life in London. She feels isolated and gets depressed. She does not like the area in which she lives. Last year her car was stolen, and crimes (including a rape) have been committed just outside her house. Such friends as she has live a considerable distance from Plumstead, although she does have two stepbrothers who live not too far away. Because of her working arrangements, and social difficulties (she does not have much chance to meet other young mothers), she is, in her own words, 'unable to facilitate S's need to meet other children to play with or do outside activities much'.
I have already mentioned the schedule of contact, as ordered by the court and extended by agreement of the parties. The point for pick-up and return is outside Redbridge underground station. The father is usually accompanied by the paternal grandmother. The mother unhappily feels unable to communicate with the other adults, which must make these occasions at best artificial, if not fraught. The mother did in evidence say that she realises that her 'attitude is exceptionally unhelpful'.
This is a case in which, as everyone involved has acknowledged, contact goes exceptionally well. S engages in a wide range of both day-to-day and leisure activities with the father and, when he is at work, with the paternal grandmother. It is clear that she is greatly loved by the father and by the other members of his family in the Newmarket area. Going home puts something of a blight on the last day of contact, and a good deal of evidence was given about S's reluctance to leave the father's car at the end of the journey back to London. I am sure that S finds the parting painful, but the evidence falls a long way short of demonstrating that she is in any way unhappy once she is securely back in the care of the mother. I accept what the mother says about S's settling down in her car within a couple of minutes after leaving the father and his family."
"Everyone describes S as a healthy, intelligent, lively and happy little girl. She is devoted to both her parents and they love her. She has a strong attachment to the paternal grandmother and, whilst she has seen comparatively little of the maternal grandmother over the past months, I am sure that she has been (and may again be) no less attached to that lady."
"When a marriage breaks up, a situation normally arises when the child of that marriage, instead of being in the joint custody of both parents, must of necessity become one who is in the custody of a single parent. Once that position has arisen and the custody is working well, this court should not lightly interfere with such reasonable way of life as is selected by that parent to whom custody has been rightly given. Any such interference may, as my lord has pointed out, produce considerable strains which would not only be unfair to the parent whose way of life is interfered with but also to any new marriage of that parent. In that way it might well in due course reflect on the welfare of the child. The way in which the parent who properly has custody of a child may choose in a reasonable manner to order his or her way of life is one of those things which the parent who has not been given custody may well have to bear, even though one has every sympathy with the latter on some of the results."
"But I emphasise once more that when one parent has been given custody it is a very strong thing for this court to make an order which will prevent the following of a chosen career by the parent who has custody."
"It is always difficult in these cases when marriages break up where a wife who, as this one is, is very isolated in this country feels the need to return to her own family and her own country; and, although Mr Swift has argued persuasively for the test which was suggested in the case of Poel v Poel  1 WLR 1469, the test which is often put on the basis of whether it is reasonable for the mother to return to her own country with the child, I myself doubt whether it provides a satisfactory answer to this question. The fundamental question is what is in the best interest of the child; and once it has been decided with so young a child as this that there really is no option so far as care and control are concerned, then one has to look realistically at the mother's position and ask oneself the question: where is she going to have the best chance of bringing up this child reasonably well? To that question the only possible answer in this case is Hong Kong. It is true that it means cutting the child off to a large extent - almost wholly perhaps - from the father; but that is one of the risks which have to be run in cases of this kind. If it is wholly unreasonable, as I think it is in this case, to require the mother to remain in England, assuming even the court ought to put her in the position of choosing between staying very unhappily and uncomfortably in England and going home to her own country, then I still think the answer is that where she can best bring up this child is the proper solution to this case."
"The question therefore in each case is, is the proposed move a reasonable one from the point of view of the adults involved? If the answer is yes, then leave should only be refused if it is clearly shown beyond any doubt that the interests of the children and the interests of the custodial parent are incompatible."
"The reason why the court should not interfere with the reasonable decision of the custodial parent, assuming, as this case does, that the custodial parent is still going to be responsible for the children, is, as I have said, the almost inevitable bitterness which such an interference by the court is likely to produce. Consequently, in ordinary sensible human terms the court should not do something which is, prima facie, unreasonable unless there is some compelling reason to the contrary. That I believe to be the correct approach."
"I sympathise and understand, where a lay person such as a father is concerned, the difficulty of reconciliation with the concept of such a separation being in the paramount interests of the child in the long term, but the long-term interests of the child revolve around establishing, as Griffiths LJ (as he then was) said in Chamberlain, a sound, secure family unit in which the child should go forward and develop. If that can be supported by contact with the father, that is an immense advantage, but, if it cannot, then that is no reason for diverting one's concentration from the central and paramount issue in the case."
".... the authorities and the law dictate the hard and difficult decision which must be made once it is established that the custodial parent genuinely desires to emigrate and, in circumstances in which there is nothing adverse to be found in the conditions to be expected, those authorities are quite clear in the course that the court must take, whatever the hardship and distress that may result."
"I also accept that this line of authority shows that where the custodial parent herself, it was the mother in all those cases, has a genuine and reasonable desire to emigrate then the court should hesitate long before refusing permission to take the children."
(a) the welfare of the child is the paramount consideration; and
(b) refusing the primary carer's reasonable proposals for the relocation of her family life is likely to impact detrimentally on the welfare of her dependent children. Therefore her application to relocate will be granted unless the court concludes that it is incompatible with the welfare of the children.
The Value of the Guidance
(a) the applicant is invariably the mother and the primary carer;
(b) generally the motivation for the move arises out of her remarriage or her urge to return home; and
(c) the father's opposition is commonly founded on a resultant reduction in contact and influence.
The Foundation of the Guidance
"Things happen and I think I can't stand it. I've got to go home. But then I see S and I calm down and I think I can't leave her .... I would give it a really good try to be a mother to S here but in my heart of hearts I think I would not be able to do it."
The Impact of Statutory Reform
"1. Everyone lawfully within the territory of a state shall, within that territory, have the right to liberty of movement and freedom to choose his residence.
2. Everybody shall be free to leave any country, including his own.
3. No restrictions shall be placed on the exercise of these rights other than such as are in accordance with law and are necessary in a democratic society in the interests of national security or public safety, for the maintenance of public order, for the prevention of crime, for the protection of health and morals, or for the protection of the rights and freedom of others."
(a) Pose the question: is the mother's application genuine in the sense that it is not motivated by some selfish desire to exclude the father from the child's life. Then ask is the mother's application realistic, by which I mean founded on practical proposals both well researched and investigated? If the application fails either of these tests refusal will inevitably follow.
(b) If however the application passes these tests then there must be a careful appraisal of the father's opposition: is it motivated by genuine concern for the future of the child's welfare or is it driven by some ulterior motive? What would be the extent of the detriment to him and his future relationship with the child were the application granted? To what extent would that be offset by extension of the child's relationships with the maternal family and homeland?
(c) What would be the impact on the mother, either as the single parent or as a new wife, of a refusal of her realistic proposal?
(d) The outcome of the second and third appraisals must then be brought into an overriding review of the child's welfare as the paramount consideration, directed by the statutory checklist insofar as appropriate.
The Present Appeal
"I form the opinion that she is a woman who means what she says, and will adhere to it."
"Finally, the effect on the mother of being forced to stay in England would, in my judgment, be devastating. Having read and (at length) heard her evidence, I have no doubt that her unhappiness, sense of isolation and depression would be exacerbated to a degree which could well be damaging to S."
"S's welfare is, of course, the paramount consideration. If any single factor which leads to the decision of this case is more important than any other, it is that S's future happiness will be best assured by her being brought up in a place in which the mother is not just content, but happy. This, as much as the balancing exercise which I have had to perform, must lead to my making an order permitting the mother to remove S permanently from England and Wales to New Zealand."
"I will endeavour to apply these principles to the situation which I have to consider. I will first set out the mother's proposals. I will then examine these proposals with a view to deciding whether they can be said to be reasonable. I will then set out, and make findings about, the father's objections. Finally, I will balance the objections against the proposals and what may be said in support of the proposals and, taking the welfare of S as the paramount consideration, decide whether the mother has made good her case."
(a) An analysis of the judgment reveals no misdirection or error of law.
(b) The judge carried out an impeccable investigation of the relevant facts and circumstances as a prelude to clear findings on the mother's reliability, both as a parent and as a witness, as well as upon her proposals and the impact of their rejection both on her and on S.
(c) The judge's discretionary choice of the option least damaging to S's welfare is not open to challenge in this court.
"The judge was bound by the New Zealand court's findings of fact in the Hague Convention proceedings by the doctrine of res judicata."
"The notes were circulated by Mr Hunt among his colleagues who were unable to attend the seminar as an item of interest. I myself have circulated similar notes I have made at other seminars, for example about Islamic family law."
"Whilst it is a presumptively child centred jurisdiction, it is not straightforwardly so."
Lord Justice Robert Walker:
Dame Elizabeth Butler-Sloss, P:
"I am very firmly of opinion that the child`s happiness is directly dependent not only upon the health and happiness of his own mother but upon her freedom from the very likely repercussions of an adverse character, which would result affecting her relations with her new husband and her ability to look after her family peacefully and in a psychological frame of ease, from the refusal of the permission to take this boy to New Zealand which I think quite clearly his welfare dictates."
"When a marriage breaks up, a situation normally arises when the child of that marriage, instead of being in the joint custody of both parents, must of necessity become one who is in the custody of a single parent. Once that position has arisen and the custody is working well, this court should not lightly interfere with such reasonable way of life as is selected by that parent to whom custody has been rightly given. Any such interference may, as my Lord has pointed out, produce considerable strains which would not only be unfair to the parent whose way of life is interfered with but also to any new marriage of that parent. In that way it might well in due course reflect on the welfare of the child. The way in which the parent who properly has custody of a child may choose in a reasonable manner to order his or her way of life is one of those things which the parent who has not been given custody may well have to bear, even though one has every sympathy with the latter on some of the results."
"What Sachs LJ was saying, I think, is that if the court interferes with the way of life which the custodial parent is proposing to adopt so that he or she and the new spouse are compelled to adopt a manner of life which they do not want, and reasonably do not want, the likelihood is that the frustrations and bitterness which would result from such an interference with any adult whose career is at stake would be bound to overflow on to the children.
In the present type of case I believe that the true balancing exercise must take into account the effect on the children of seriously interfering with the life of the custodial parent.
In my own judgment in (Moody v Field, 13 February 1981), the facts of which were not altogether dissimilar from this case, I tried to summarize the position in these words:
`the question therefore in each case is, is the proposed move a reasonable one from the point of view of the adults involved? If the answer is yes, then leave should only be refused if it is clearly shown beyond any doubt that the interests of the children and the interests of the custodial parent are incompatible. One might postulate a situation where a boy or girl is well settled in a boarding school, or something of that kind, and it could be said to be very disadvantageous to upset the situation and move the child into a very different educational system. I merely take that as an example. Short of something like that, the court in principle should not interfere with the reasonable decision of the custodial parent.`
The reason why the court should not interfere with the reasonable decision of the custodial parent, assuming, as this case does, that the custodial parent is still going to be responsible for the children, is, as I have said, the almost inevitable bitterness which such an interference by the court is likely to produce. Consequently, in ordinary sensible human terms the court should not do something which is, prima facie, unreasonable unless there is some compelling reason to the contrary."
"…..it may well be that Sachs LJ did not have that speech in the forefront of his mind as we all have. I think he might perhaps have expressed his view slightly differently, making it specifically clear that his judgment was based on the interests of the children which was the paramount consideration."
"The welfare of young children is best served by bringing them up in a happy, secure family atmosphere. When, after divorce, the parent who has custody of the children remarries, those children then join and become members of a new family and it is the happiness and security of that family on which their welfare will depend. However painful it may be for the other parent that parent has got to grasp and appreciate that fact. If a step-father, for the purposes of his career, is required to live elsewhere the natural thing would be that he will wish to take his family, which now includes his step-children, with him, and if the court refuses to allow him to take the step-children with him he is faced with the alternative of going and leaving the family behind which is a very disruptive state of affairs and likely to be very damaging to those step-children or alternatively he may have to throw up his career prospects and remaining this country. If he has to do that he would be less than human if he did not feel a sense of frustration and, do what he may, that may well spill over into a sense of resentment against the step-children who have so interfered with his future career prospects. If that happens it must reflect upon the happiness and possibly even the stability of this second marriage. It is to that effect that the court was pointing in the decisions of Poel v Poel and Nash v Nash and it was stressing that it was a factor that had to be given great weight when weighing up the various factors that arise when a judge has to decide whether or not to give leave to take children out of the jurisdiction."
74. Belton v Belton  2 FLR343 was an application by a mother to remove a child of two to New Zealand with her new husband, a New Zealander. This Court allowed an appeal against the decision of the trial judge to adjourn the decision whether to give leave for two and half years, until the child reached the age of five and gave leave to remove permanently. Purchas LJ said at page 346:
"….in carrying out the exercise of assessing what was in the interest of A as a paramount consideration, the judge omitted what to my mind was a crucial factor. That factor was the stability of the new family unit in which A was to grow up, the tensions that might be created in it during the ensuing 2 years or so, and the effect that that would necessarily have on A – of great gravity if the union in fact broke up under those stresses and still of considerable gravity if that union came under tensions which would almost certainly arise if the plans to go to New Zealand were frustrated."
"I sympathise and understand, where a lay person such as the father is concerned, the difficulty of reconciliation with the concept of such a separation being in the paramount interests of the child in the long term, but the long term interests of the child revolve round establishing, as Griffiths LJ (as he then was) said in Chamberlain, a sound, secure family unit in which the child should go forward and develop. If that can be supported by contact with the father, that is an immense advantage, but, if it cannot, then there is no reason for diverting one`s concentration from the central and paramount issue in the case.
I have therefore come to the conclusion that the learned judge erred in law in two ways: (1) in providing for this excessive adjournment on a matter which required immediate decision and was of critical importance to all the family; and (2) that he misapplied the authorities and the law which dictate the hard and difficult decision which must be made once it is established that the custodial parent genuinely desires to emigrate and, in circumstances in which there is nothing adverse to be found in the conditions to be expected, those authorities are quite clear in the course the court must take, whatever the hardship and distress that may result."
"….in approaching the first question, whether or not there should be leave for permanent removal, I apply the principles which have stood largely unchanged since the decision of the Court of Appeal in Poel v Poel. In the later case of Chamberlain v de la Mare a strong Court of Appeal stated that, in considering whether to give leave, the welfare of the child was the first and paramount consideration, but that leave should not be withheld unless the interests of the children and those of the custodial parent were clearly shown to be incompatible.
That statement of principle creates a presumption in favour of the reasonable application of the custodial parent, but in weighing whether the reasonable application is or is not incompatible with the welfare of D, I have to assess the importance of the relationship between D and his father, not only as it is but as it should develop. The relationship with the father is the doorway through which D relates to other members of the family, particularly his half-sister L, his paternal grandmother, and his paternal first cousins. That is the crux of this case."
"……these applications for leave are always difficult cases that require very profound investigation and judgment. But not a lot is to be gained by seeking support from past decisions, however superficially similar the factual matrix may appear to be. In my judgment, the approach that the court must adopt in these cases has not evolved or developed in any way since the decision of this court in Poel v Poel."
(a) The welfare of the child is always paramount.
(b) There is no presumption created by section 13(1)(b) in favour of the applicant parent.
(c) The reasonable proposals of the parent with a residence order wishing to live abroad carry great weight.
(d) Consequently the proposals have to be scrutinised with care and the court needs to be satisfied that there is a genuine motivation for the move and not the intention to bring contact between the child and the other parent to an end.
(e) The effect upon the applicant parent and the new family of the child of a refusal of leave is very important.
(f) The effect upon the child of the denial of contact with the other parent and in some cases his family is very important.
(g) The opportunity for continuing contact between the child and the parent left behind may be very significant.