ON APPEAL FROM PORTSMOUTH COUNTY COURT
HIS HONOUR JUDGE MARSTON
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE TOULSON
LORD JUSTICE MUNBY
|In the matter of F (Child)|
The appellant father appeared in person
Hearing date : 3 October 2012
Crown Copyright ©
Lord Justice Munby :
The hearing before Judge Marston
"What is certain is that there are no particular risk issues beyond the emotional impact this dispute might be having upon P. That said, the school has commented that he is happier now, which accords with my impression, and P knows that whatever happens he has two caring, able and loving parents who both would be able to meet his needs in perhaps differing ways.
… P is settled [in] school in … where he is popular and making good progress but to return to a school in Spain, particularly one he already knows, is unlikely to be too disadvantageous to him, certainly in the longer term.
P is only 7 and his views are not likely to be determinant. He has said "fine in both places" but he expresses misgivings about the length of the school day and refers to his friends and grandparents in Spain. Of course, there are many children who are cared for after school in some form or other and for various lengths of time.
Whatever happens, the principle of contact is not in dispute but there is obviously distance and cost to consider in any contact arrangements which are likely to centre on the school holidays."
"Under the circumstances outlined I feel unable to make a clear recommendation in this finely balanced case in which I understand and acknowledge both parents' positions. I would respectfully suggest that this is a matter upon which a judgement by the court is necessary."
"What came through the CAFCASS Officer's evidence very strongly were a number of what I might describe as bullet points:-
(a) P was well looked after and happy here but he would be well looked after and happy in Spain;
(b) He was doing well in school here but it was highly likely that he would do well in school in Spain;
(c) That he didn't like the long days at school here;
(d) That he regarded himself as Spanish and that all of the family on both sides apart from his Father were in Spain and many of them were in Guadalajara;
(e) The CAFCASS Officer accepted both parties commitment to contact with the other parent and that they would deliver on that commitment;
(f) That the court is dealing with two decent people who want what is in P's best interest;
(g) That there is still a residual distrust between them because of the events around the breakdown of the relationship and the hearing in front of Mr Justice Holman."
"theme running through the evidence … that P was settled here. "He is fully integrated here". "He is happy, healthy, well cared for popular boy leading a normal life. He is not a sad boy in any way". His view was that the education that P would get would be better here particularly if in the future he could attend … Grammar School which was where they had agreed he would go. He is saying to the Court in effect if P stays with me you are betting on a certainty because I represent the status quo and the status quo works and it is currently producing this happy, well integrated little boy. However he also has to accept that historically the mother has been the main carer for the child up until September of last year."
He added: "His case was really contained in the sentence: "I ask this court to acknowledge that P's life is here"."
"What came out of the mother's evidence was that her proposal involved a return to P's roots, to the school that he was familiar with, to friends that he was familiar with and to an environment that he was familiar with. She further put forward the advantage that she would actually have more time available because of her working hours and school times in Spain to look after P. She also put forward the fact that P's maternal and paternal family would have much more relationship with him because he was in Spain and most of them were in Guadalajara in any event. And she pointed to the fact that she was already fostering these relationships. She was also able, because of the number of holidays she has, to put forward a contact schedule which was marginally more generous to the father than the father's contact schedule was to her. Although this is not a particularly decisive factor in this case, underlying all of this was her belief that she'd been the primary carer and that she should be the primary carer again and that P needed his mother. She expressed her respect for the father as a gentleman and as a figure in P's life."
Judge Marston's judgment
"Applying that law to this particular case it seems to me that this case has some unique features. Both of the parties are Spanish and the intention of both parties when coming to this country was to live in this country until the father's work had been completed. Both of the parties continue to regard themselves as Spanish and not only did they regard P as Spanish but he also is of that view. What is on offer from the mother is a return to the arrangements in terms of schooling, general location and so on in which P thrived for the first six years or so of his life. And finally it is highly likely that at some point if the father has residence of P he will return to Spain, either in 2013 when this contract finishes or sometime thereafter. Having heard the father I think it is more likely than not that he will go back in 2013 but I cannot be definitive about that. What I think I can find is that the father is, on the balance of probability, likely to return to Spain in 2013 to be nearer to P if he does not have residence of him."
"I need to look at what was going on previously, what is going on now, and what is proposed in the future. First I find that up until the separation in August last year the mother was the prime carer for P with the father making significant contributions to the care of his son. Secondly, that since August the father has been the primary carer but with the mother again making very significant contributions to P's welfare when she was able to visit him for contact or when he went to Spain for contact. The parties propose a shared residence order in the future with large amounts of time being spent with the non-resident parent and I have already accepted from both of them that they will happen regardless of the outcome of the case. It seems to me that at this moment in time there is not shared care arrangements simply because of where P is. The father has the majority of care. That seems to me to entitle me to look at the Payne guidelines and I make the following findings on them."
"there will be some. Inevitable it will be the difference between having your son with you on a day to day basis and having him on contact visits. No matter how extensive the contact is and how much you are able to communicate by e-mail, skype and the telephone, it is not the same. However the contact proposals either way seem to me to be sufficient to ensure that P has, in the circumstances of the separation, the best possible relationship with the other party. It is quite clear to me that there will be an extension of P's relationship with his maternal family in his homeland if he goes back to Spain. He is a Spaniard and his whole maternal family live either in Guadalajara or in other parts of Spain. I also find that there will be an extension of his relationship with other members of his paternal family. I have already accepted the mother's evidence that she will make P available for generous amounts of contact with the rest of the father's family."
"I have to say that I also think that the father will be similarly emotionally devastated. They will express their emotional loss in different ways because of their different personalities but neither of them, in my view, will collapse if P is with the other party. Their qualities of decentness, intelligence and fortitude, all of which I saw evidence of during the course of the proceedings, will make it possible for them to keep going, particularly as they have such strong commitments to their son and the contact regime here will be a relatively generous one."
"The ascertainable wishes and feeling of the child concerned in the light of his age and understanding. He is an intelligent boy who is functioning at a higher level than his chronological age but not a very much higher level. I am dealing with an 8-9 year old. Given what he said to the welfare CAFCASS Officer I think he would enjoy returning to Spain in some ways and seeing his grandparents and so on and also having some likely reduced time at school. But I am also of the view that he would be content if he was to live here. His wishes and feeling don't help me very much. His physical, emotional and educational are all being met by his father. They would be met by his mother. The likely effect on him of any change in circumstance because of the high quality of care he would get from his mother I don't think that he would be affected in any way by the change of circumstances save that he would on occasions miss his father in the same way as on occasions he misses his mother now. His age, sex, background and any characteristics of his which the court consider relevant. He is still quite young, his background is Spanish. Both of these have marginal relevance to the case. P has not suffered any harm by the separation of his parents save both of them are no longer available to him all the time [I say save that of course I accept that the breakdown of the relationship inevitably causes some harm to the child, it is a testimony to the parents in this case that he has been so relatively unaffected. I hope that that continues to be the case and I can trust these parties to behave as civilised human beings with their son's best interests at heart in the future]. Both parents are capable of meeting his needs; the rest of that section isn't relevant nor is the last part of the checklist."
"Balancing all of this up this is an incredibly evenly balanced case. However having heard the evidence of the two parties and the CAFCASS Officer and considering all the circumstances of the case I am driven to the conclusion that P should spend the majority of his time with his mother in Guadalajara in Spain. I say that for the following reasons:-
I weigh on the scales that by the nature of her job his mother will be marginally more available to him than his father. That she has been for the majority of his life the main carer for him and that he will be returning to his Spanish roots and into his extended Spanish family on both sides, whom it is obvious he enjoys seeing. See for examples his comments to the CAFCASS Officer. However he is being returned to a tried and tested care regime and there is absolutely no evidence whatsoever that he will be harmed by the change in the status quo. He is already bi-lingual; he has had his experience of being in England. No doubt he will miss his school friends but he is returning to a school and friends that only a couple of years ago he was attending and he has seen his compatriots on a number of occasions since he moved. Furthermore, and I know the father will find it difficult to accept this, it seems to me that he will have a better relationship with his father in many ways if regular contact takes place. I did get the impression from the father's evidence and from P's statement to the CAFCASS Officer that an awful lot of the time he spent with his father was either at school or being fed and doing homework and not so much of it was time for P and his father to have fun together or to have an opportunity to interact in what might be called downtime. This will be available to his father on contact. Furthermore because of the mother's work commitments as measured against the father's work commitments it will be possible for the mother to make P available for contact on a somewhat more generous basis than the father although I have already said that I accept that the father's contact proposals were also realistic."
"I thought they were both frank and straightforward. They both have really genuine fears which I understand but I also must return to the comment of Mr Moore on the first day of the case. Like him I got the impression of two very decent human beings who wanted what was best for P."
"… on the basis of your finding that the father was the primary carer, it is not the primary carer who is seeking to relocate the child: it is the supporting parent (for want of a better phrase). So I would submit that there is some interest in the fact that Payne does not actually apply to this particular set of circumstances. But strangely, perhaps, if you look at the K v K situation, which was dealing with a shared residence matter, that does not apply either because we are not in a shared care situation in relation to P because the court has found that the father was having primary care of the child, certainly since August of last year."
Ms Renton submitted that "what you have done in your judgment is considered Payne guidance, considered K v K and ultimately applied the welfare checklist anyway." Refusing permission, Judge Marston said:
"I found that this was a case in which I could consider the Payne guidelines. I worked my way through the Payne guidelines. I then looked at the issues of the child's best interests and applied the welfare checklist. This is, as I pointed out, a highly unusual set of circumstances and factual background. I do not think it has any general application and it seems to me that I followed the law in as much as I understood it."
However he granted a stay until this court had determined whether or not to grant permission.
i) as a matter of law in his application of Payne v Payne and K v K;
ii) in his evaluation of the facts, in particular (A) in failing to give adequate weight to (a) the fact that it had been a joint parental decision that P should come to and be educated in this country, (b) the desirability of maintaining the child's status quo, (c) the plans and wishes of the primary carer – in this case the father, and (d) the mother's conduct and Holman J's assessment of her, (B) in giving disproportionate weight to the fact of the shorter school day in Spain, (C) in relation to contact and what the father calls the mother's negating of contact, and (D) in basing his decision upon speculations as to the father's future plans.
"So, willy-nilly, by dint of the circumstances and by reason of the mother's decision to return to Spain without him, father has become the primary carer of this boy. That is the actual position as it was when this case came before the judge. Nonetheless the judge seems to have treated the mother as the primary carer and to have applied Payne v Payne  EWCA Civ 166 on the basis that her emotional needs have to be accommodated and so forth.
I am not sure that that is the right approach and if on the contrary father is accepted to be the primary carer then his concerns should weigh if not more then at least equally to those of the mother. So I am not at all convinced that the judge approached the case in the right way. Ultimately of course it is a question of what is in the best interests of the boy. That is always a discretionary matter and it is difficult to appeal an exercise of discretion, but I do feel that this unusual case does require reconsideration and I give permission to appeal accordingly."
Ward LJ also ordered a stay until the appeal had been heard.
The father's case
The mother's response
"that the only principle to be applied when determining an application to remove a child permanently from the jurisdiction was that the welfare of the child was paramount and overbore all other considerations however powerful and reasonable they might be; that guidance given by the Court of Appeal as to factors to be weighed in search of the welfare paramountcy and which directed the exercise of the welfare discretion was valuable in so far as it helped judges to identify which factors were likely to be the most important and the weight which should generally be attached to them and promoted consistency in decision-making; but that (per Moore-Bick and Black LJJ), since the circumstances in which such decisions had to be made varied infinitely and the judge in each case had to be free to decide whatever was in the best interests of the child, such guidance should not be applied rigidly as if it contained principles from which no departure were permitted".
I need quote only what Thorpe LJ said (paragraph ):
"… the only principle to be extracted from Payne v Payne is the paramountcy principle. All the rest, whether in paragraphs 40 and 41 of my judgment or in paragraphs 85 and 86 of the President's judgment is guidance as to factors to be weighed in search of the welfare paramountcy."
"… the survival of the authority of Poel into this century … depends crucially upon the primacy of the applicant's care … The judgments in Poel consider only the position of the primary carer … Payne does not anywhere consider what should be the court's approach to an application where there is no primary carer."
"In summary a review of the decisions of this court over the course of the last thirty years demonstrates that relocation cases have been consistently decided upon the application of the following two propositions:
(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."
That is plainly a reference to the Poel line of authorities. He added (paragraph ):
"Thus in most relocation cases the most crucial assessment and finding for the judge is likely to be the effect of the refusal of the application on the mother's future psychological and emotional stability."
"However there is a danger that if the regard which the court pays to the reasonable proposals of the primary carer were elevated into a legal presumption then there would be an obvious risk of the breach of the respondent's rights not only under Article 8 but also his rights under Article 6 to a fair trial. To guard against the risk of too perfunctory an investigation resulting from too ready an assumption that the mother's proposals are necessarily compatible with the child's welfare I would suggest the following discipline as a prelude to conclusion:
(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."
"In suggesting such a discipline I would not wish to be thought to have diminished the importance that this court has consistently attached to the emotional and psychological well-being of the primary carer. In any evaluation of the welfare of the child as the paramount consideration great weight must be given to this factor."
That, likewise, is a reference back to Poel.
"The one, the more common and in some ways the more obvious, is where the child is clearly living with one parent, and it is that parent that wishes to leave the jurisdiction, for whatever reason. The other, and much less common state of affairs, is where that does not exist and either there is a real issue about where the child should live, or there is in place an arrangement which demonstrates that the child's home is equally with both parents. In those circumstances, which are the ones that apply in this case, many of the factors to which the court drew attention in Payne v Payne … whilst relevant may carry less weight than otherwise they commonly do."
"… the effect of the guidance must not be overstated. Even where the case concerns a true primary carer, there is no presumption that the reasonable relocation plans of that carer will be facilitated unless there is some compelling reason to the contrary, nor any similar presumption however it may be expressed. Thorpe LJ said so in terms in Payne and it is not appropriate, therefore, to isolate other sentences from his judgment, such as the final sentence of paragraph 26 ("Therefore her application to relocate will be granted unless the court concludes that it is incompatible with the welfare of the children") for re-elevation to a status akin to that of a determinative presumption."
There can be no presumptions in a case governed by section 1 of the Children Act 1989. From beginning to end the child's welfare is paramount, and the evaluation of where the child's best interests truly lie is to be determined having regard to the 'welfare checklist' in section 1(3).
"Where each is providing a more or less equal proportion and one seeks to relocate externally then I am clear that the approach which I suggested in paragraph 40 in Payne v Payne should not be utilised. The judge should rather exercise his discretion to grant or refuse by applying the statutory checklist in section 1(3) of the Children Act 1989."
"Where my reasoning and that of Thorpe LJ diverge is … in particular in relation to the treatment of Payne v Payne. Thorpe LJ considers that Payne should not be applied in circumstances such as the present and that the judge should instead have applied the dicta of Hedley J in Re Y. For my part, as will become apparent, I would not put Payne so completely to one side."
"The first point that is quite clear is that … the principle – the only authentic principle – that runs through the entire line of relocation authorities is that the welfare of the child is the court's paramount consideration. Everything that is considered by the court in reaching its determination is put into the balance with a view to measuring its impact on the child.
Whilst this is the only truly inescapable principle in the jurisprudence, that does not mean that everything else – the valuable guidance – can be ignored. It must be heeded … but as guidance not as rigid principle or so as to dictate a particular outcome in a sphere of law where the facts of individual cases are so infinitely variable."
"Payne therefore identifies a number of factors which will or may be relevant in a relocation case, explains their importance to the welfare of the child, and suggests helpful disciplines to ensure that the proper matters are considered in reaching a decision but it does not dictate the outcome of a case. I do not see Hedley J's decision in Re Y as representative of a different line of authority from Payne, applicable where the child's care is shared between the parents as opposed to undertaken by one primary carer; I see it as a decision within the framework of which Payne is part. It exemplifies how the weight attached to the relevant factors alters depending upon the facts of the case."
"Accordingly, I would not expect to find cases bogged down with arguments as to whether the time spent with each of the parents or other aspects of the care arrangements are such as to make the case "a Payne case" or "a Re Y case", nor would I expect preliminary skirmishes over the label to be applied to the child's arrangements with a view to a parent having a shared residence order in his or her armoury for deployment in the event of a relocation application. The ways in which parents provide for the care of their children are, and should be, infinitely varied. In the best of cases they are flexible and responsive to the needs of the children over time. When a relocation application falls to be determined, all of the facts need to be considered."
"Guidance of the kind provided in Payne v Payne is, of course, very valuable both in ensuring that judges identify what are likely to be the most important factors to be taken into account and the weight that should generally be attached to them. It also plays a valuable role in promoting consistency in decision-making. However, the circumstances in which these difficult decisions have to be made vary infinitely and the judge in each case must be free to weigh up the individual factors and make whatever decision he or she considers to be in the best interests of the child."
"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",
as one where the court might decline to accede to an application by the custodial parent. Similarly, he relied upon the decision of this court in Re B (Residence Order: Status Quo)  1 FLR 368, 371, where Thorpe LJ said that "The overwhelming importance for securing [the child's] future was plainly the status quo." These cases do not set out principles of law, though they do identify factors which may be of importance in particular cases.
"I would not expect to find cases bogged down with arguments as to whether the time spent with each of the parents or other aspects of the care arrangements are such as to make the case "a Payne case" or "a Re Y case", nor would I expect preliminary skirmishes over the label to be applied to the child's arrangements with a view to a parent having a shared residence order in his or her armoury for deployment in the event of a relocation application."
I endorse every word of that and wish to express my emphatic agreement with it.
Lord Justice Toulson :
Lord Justice Pill :