England and Wales Court of Appeal (Civil Division) Decisions

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URL: http://www.bailii.org/ew/cases/EWCA/Civ/1999/2039.html
Cite as: [1999] EWCA Civ 2039

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IN THE SUPREME COURT OF JUDICATURE PRO FORMA

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM COLCHESTER COUNTY COURT

(HIS HONOUR JUDGE BRANDT )

Royal Courts of Justice

Strand

London WC2

Friday, 30 July 1999

B e f o r e:

LORD JUSTICE THORPE

SIR OLIVER POPPLEWELL

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C & M (CHILDREN)

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(Computer Aided Transcript of the Palantype Notes of

Smith Bernal Reporting Limited, 180 Fleet Street,

London EC4A 2HD

Tel: 0171 421 4040

Official Shorthand Writers to the Court)

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MISS A HODES (Instructed by Sparling, Benham & Brough, 3 West Stockwell St., Colchester) appeared on behalf of the Father 1.

MR J WALTERS (Instructed by Powis & Co., Essex, CO15 1RU) appeared on behalf of Father 2.

MISS R DEGAL (Instructed by Messrs Hughes Powell, Essex, CO14 8ED) appeared on behalf of the Respondent

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J U D G M E N T

(As approved by the Court )

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©Crown Copyright

LORD JUSTICE THORPE: This appeal largely concerns a mother, M. O., who came to the United Kingdom from the Republic of Ireland in 1987. She is now 29 years of age. She married in this country on 21 January 1989 to P. C. and of that marriage there is one daughter, A., who is now 8 years of age. The parents separated in August 1992 and the marriage was dissolved by decree absolute pronounced on 14 September 1993.

The arrangements for A.'s care have been sensible and generous, at least from the year 1994 when A. commenced to spend three nights a week with her father, going to him on Thursday in the afternoon or early evening and remaining with him until Sunday evening. There was a slight expansion in that arrangement from 1997 when, in addition to those three nights, she also began to spend one evening with her father each week.

It was in late 1992 that the mother, as I shall call her, commenced a relationship with T. M. Of that relationship there was one child, another little girl, L., who is now 5 years of age. Again the mother developed sensible and generous arrangements for contact which were formalised at the beginning of this year to mirror the arrangements in place for A.

However, the mother has not been settled in Essex where all three homes are situated in relatively close proximity. Her heart was still in Ireland, more specifically in Cork, the city of her birth. On 9 July she issued an application for leave to remove both children permanently to the Republic.

Responsive applications were filed by both fathers: Mr C. on 13 August 1998, Mr M. on 3 February 1999, for residence orders.

Mr M.'s application was even brought on for an interim determination before His Honour Judge Brandt on 12 April. He, the judge, however decided the short term in favour of the mother, saying that L. should reside with her pending the hearing of the cross applications and that in that interim the father should have contact each Thursday evening until each Sunday evening.

The final hearing before Judge Brandt took place on 12 and 3 May and in preparation for that hearing the court welfare officer filed a report. I cite the report first in relation to A. The court welfare officer's conclusion was as follows:

"Bearing in mind the level of contact Mr C. and his family have had with A. I am of the view that she should not be permitted to leave the jurisdiction. I believe the best option for this child is for Miss O. to continue to live in England and give A. the advantage of having both her parents available to play a part in her life."

The welfare officer went on to say that if the mother did not feel able to accept that conclusion and returned alone to her homeland then the next best option would be for A.'s residence to go to her father providing firm and substantial arrangements for contact between the half-sisters were put in place.

The court welfare officer's report in relation to L. was very similarly expressed. She said:

"I am of the view that it would be in L.'s best interests to remain living in England with her mother, so that she can continue to benefit from the supportive relationship with her father. If Miss O. felt that she still wished to go to Ireland, I believe that it would be better for L. to reside with her father in England."

Plainly the judge had a difficult case on his hands in the light of that very clear recommendation from the court welfare officer.

Miss Degal, who has represented the mother at this appeal as she did in the court below, has presented the mother's case with conspicuous ability and persuasion. She emphasises that the judge regarded the decision as finely balanced and that the judge was extremely impressed by the mother's oral evidence. In that regard the judge said (at page 7 of his judgment):

"... she was a great deal more impressive than the picture that one formed of her simply on paper. She came across as intelligent, sensible and practical. In short, I found her in many ways an impressive witness."

No doubt it was that consideration which paved the judge's way to his ultimate conclusion that the mother's application for leave should be granted. He said that she might go on 1 September and that if issues of contact were not agreed in the light of his judgment he would decide them at a short hearing in early August.

Both fathers, however, sought permission to appeal and those applications were granted on paper and the appeal was directed in on this last day of term.

For the appellants Miss Hodes makes the running, representing Mr C., and Mr Walters representing Mr M. adopts her submissions.

The first point that is made in criticism of the judgment is that the judge applied the classic principle first enunciated in a decision of this court in Poel v Poel [1970] 1 WLR 1469 and subsequently expounded in very clear terms by Ormrod LJ in the reported case of Chamberlain v de la Mare [1983] 4 FLR at 434. The principle, as expressed by Ormrod LJ, can be summarised in his words at 442H:

"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."

Miss Hodes says that the judge was lulled into applying that principle to this case, failing to appreciate that the principle could not be applied in a case where there was not a custodial parent. The judge did say early in his judgment, and it is a passage that is not criticised, "taking a very broad and overall view one ought to treat the mother as the prime carer". Miss Degal says that that is a reflection of evidence which had been given to the effect that the mother did all the chores for the children during those weekdays when the girls were at home. However, at page 3 of his judgment the judge summarised all the evidence in this area by saying:

"So the care is very much shared at the moment although I have no doubt it is the mother's home that each of the children regard as home."

In my opinion Miss Hodes is perfectly correct in her submission that the classic approach directed by the two authorities to which I have referred is to be applied only in those cases where there is a relatively clear definition of roles between the parents into primary carer or custodial parent and secondary carer or contact parent. This was not such a case. Plainly the arrangements between the parents which had evolved consensually and naturally were very close indeed to equality, certainly close to equality of time, if not close to equality of labour.

The same point can really be put alternatively by a recognition that in a case in which the children are so reliant upon a division of their lives between two adjacent homes the child's sense of security is heavily dependent on the ready availability of each of those homes. In that situation it is very easy to see that however strong may be the mother's internal desire to return to her homeland, such a plan is almost certain to impact adversely on the child's sense of security and thereby on the child's welfare. Although I have every respect for the judge's discretionary determination and the care that he brought to this trial, for my part I do not think he had sufficient regard to that distinction.

The second criticism of his judgment is that he seems to have sought escape from that reality by suggesting that this well established status quo was on the verge of evaporation. He said within his judgment, first:

"I do not think she will continue to be as accommodating as she is."

That, of course, was the mother to whom he referred. Then he said:

"... I believe she would be entitled to say, ´This is all very well but the fathers have all the fun time...'"

And later:

"I think that this mother will be entitled to say very soon that this pattern just cannot continue."

There are real difficulties in supporting that judicial approach. It seems not to have been founded on any clear evidence, although Miss Degal says that it was a reasonable inference for him to draw from evidence that had been read. But if that was the judge's shrewd suspicion it does seem to me that it was incumbent upon him to voice his concerns to the court welfare officer who afterall had made the investigation at ground level and who was available to the judge, albeit only at the outset of the case.

It leads me to an allied and major difficulty and that is the basis for the judge's rejection of the court welfare officer's recommendation. Bearing in mind that it was an unusually clear and strong recommendation it manifestly required very clear judicial reason for its rejection. The judge seems to have done no more than, having spelt out his conviction that the voluntary arrangements would not endure, criticised the welfare officer in this way:

"We are not looking at the present situation as one that is lasting into eternity and, with respect to Mrs Ould, I do not think she applied her mind to this aspect of the case when saying, as she did, that she thought the present situation was what ought to continue. I do not think it can in any event, ..."

That quotation only reinforces my prior observation that it really was for the judge to give the court welfare officer an opportunity of responding to his contrary view as to the likely future development. Beyond that the judge really says nothing in relation to the court welfare officer's contribution other than to acknowledge that he was rejecting it. But that rejection was completely unexplained. He simply said:

"I am conscious that I have reached a different conclusion to that which a highly experienced and highly capable welfare officer has reached."

Finally, I have some misgiving as to the judge's self-direction as to the principles derived from the authorities. Although he nowhere refers to any of the long line of cases that have been decided in this court and in the Family Division over the last 30 years, he does refer to them collectively as a stream and he refers to them critically, saying that a number of cases are extremely hard to apply on the basis that leave has been given too readily and in disregard of the bond between a child and the opposing parent. He went on to say that he could distinguish the case before him on the facts as though that line of cases which he found unpalatable obstructed his intended determination. But, of course, they were to the opposite effect and I am left in doubt as to whether he had the precedent guidance clearly sorted out in his approach to the ultimate question.

So, for all those reasons, I conclude that this is a flawed discretionary exercise and that it is incumbent upon this court to exercise the discretion afresh. It seems to me that there is abundant material available to enable us to do so and it would be of advantage to nobody to remit this case for rehearing. As well as all the material before the judge we have received a very recent report compiled by the social services department of the Essex County Council for a child protection conference which has been convened recently to determine whether or not these two girls should be registered on the child protection register. In fairness to the mother, all the matters investigated by the reporter have arisen since the date of judgment in the court below. It is perfectly obvious that a possibility is that all this trouble is reactive to the outcome in the court below and is expressive of the two fathers' distress at the likelihood of losing their daily contact with the girls. But there are real concerns arising out of what both girls have expressed independently to an experienced social worker, endeavouring to peel off the outer layers to arrive at the children's true wishes and feelings. Both have expressed real distress at the prospect of losing the relationship with their natural fathers and with the extended families which they share not through their common parent but by association with the stepfather's family.

So all the material available to this court makes it very clear to me that the order made in the court below granting leave must be set aside and the mother's application of 9 July 1998 must be refused.

What will be the consequence time alone will tell. The mother said to the court welfare officer that if her application for leave was refused she would remain. She said the reverse to the judge in the witness box. He decided the case against the possibility that the mother might return to the Republic on her own. He doubted whether in the last resort she would do so. It is perfectly obvious that he would have urged her not to do so. For my part, I very much hope that she will think long and hard before taking such a far reaching step. These children have developed expectations of childhood which are derived from what their parents have provided for them to date and that generous sharing is very much in the interests of these children. Parenting is not forever and it does often require sacrifices and I would very much hope that the mother would consider how important it is to these children to have both parents available to them all the time, particularly whilst they are as young and as vulnerable as they are.

I appreciate that the rejection of this application can only come to her as a bitter disappointment, but I would very much hope that she will adjust to that and see how important it is to put the interests of these children first.

SIR OLIVER POPPLEWELL: I agree.

Order: Appeal allowed; no order as to costs save legal aid taxation of all parties' costs. ( This order does not form part of the approved judgment )