England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE NEWCASTLE UPON
TYNE CROWN COURT
FAMILY DIVISION
(His Honour Judge Carr)

		Royal Courts of Justice Strand London WC2
		Monday, 9th July 2001

1. LORD JUSTICE THORPE: This is a troubling case, which has been proceeding in the Newcastle District Registry of the Family Division before deputy High Court judges (particularly Judge Paling and Judge Carr), and the Official Solicitor has come into the case for the children.
2. The children of the marriage are three in number: T, who is 17; A, who is 15; and D, who is 9. After the separation, there came a time when there was a sibling split, with T going to his father and A and D remaining with their mother. Judge Paling had a difficult case to decide when the mother sought permission to remove the two younger children permanently from the jurisdiction to enable her and her present husband to live in Norway. The judge granted the application, but to no avail as far as A was concerned since he immediately decamped to his father and has remained with him in the North-East ever since. So in consequence the split became one between the two older boys of 15 and 17 with father and the younger boy, D, with mother.
3. The father's application was launched some three months after Judge Paling's order. It was an application for a residence order in respect of D in order to reunite the three boys under one roof. He had one very strong card, which was that D was saying to the Official Solicitor loud and clear (not only in Norway, but also in England) that he wanted to come home. Obviously, all his roots and ties are in the North-East. He had lived there for eight years as against a mere ten months in Norway by the time the case came for trial on 20th February 2001. So the judge was faced with a very difficult problem. It was obviously a finely balanced case: should he accept that the order made by Judge Paling had not worked out or should he maintain the status quo?
4. The judge gave full weight to the wishes of D, as recorded by all those to whom he had spoken. But he had to gauge how profound were D's feelings, and whether those feelings were consistent with his words. He had to take into account that there was a professional view that D's words did not really match the reality, and that he was being prompted by his father to rebel against the regime with his mother. The judge, whose job it was to get to the heart of this case, concluded that the father had encouraged D to think that the trip to Norway was purely temporary, and that he had in consequence, albeit inadvertently, created a significant emotional disturbance for D over a period of time. He criticised the father for his inability to be constructive and supportive of the residence order to the mother. He pointed out that there had been not only an objective review by the Official Solicitor but also by three court welfare officers, all four of whom had recommended that D's best interests were served by a residence order in favour of his mother.
5. He paid due regard to section 1(3) of the Children Act requiring him to take account of D's wishes and feelings. But he found that D's wishes and feelings, as expressed, did not reflect the true position on the ground. (That is to be found at page 15 of his judgment.) He then made what are fundamental findings in relation to the parents, saying:

"I am satisfied, as between the mother and the father, that the father is overbearing, is a person who is extremely determined to fulfil his own agenda - which is to have all three boys back living with him - and that he is prepared to, inadvertently, cause distress to [D] in order to ensure that that agenda is fulfilled."

6. He held that, were he to make the residence order in favour of the father, he doubted that the father would facilitate contact.
7. He made crucial findings (at page 17) to the effect that D is better off with his mother, whatever his feelings might be. He also said, in relation to the capability of each of the parents to meet D's needs:

"... I have no hesitation in concluding that the mother has that capability which the father does not have."

8. He said, in conclusion, that the father had deliberately influenced D, whether he had done it expressly or whether he had done it impliedly. He said that he had had to say hard things about the father. He recognised the father's love for D, but he was of the view that the father had never succeeded in adjusting to the breakdown of the family.
9. He did, in his review of the relevant circumstances, have regard to the inter-relationship between the three boys, but he adopted the Official Solicitor's view (set out in paragraph 120 of the report) that the three had not been together for three years and that the two older boys were already maturing into young men and would naturally pursue their own independence. So I cannot see that the judge has left out of account relevant matters or brought into account irrelevancy.
10. Mr C says that he has not sufficiently reflected the Article 8 and Article 14 rights, particularly D's right to respect for family life. I do not think that the advent of the Human Rights Act has had any particular impact on situations such as exist here. The judge had to set D's welfare first and foremost. He had to set welfare above wishes. If there was a conflict between the respect to family life of one member and the respect to family life of another member, he had to put D first. The judge may have been wrong in his assessment of the case, but it cannot be said that he took a line that differed from that of the Official Solicitor representing D. He came to the conclusion that, on the facts of this case and on his assessment of the personalities of the parents, D's welfare was best served by maintaining the present arrangement.
11. Mr C has during his submissions referred several times to the boys "voting with their feet", and there may be an element of that in this case. It may be that there will come a time when D, of his own determined wish as a developing adolescent, returns to the North-East. But that is nothing to the point. What the judge had to decide was what was best for D in February 2001. He reached a clear conclusion, which he fully explained, and that conclusion was based upon his fundamental assessment of the parents in the case. There is no basis upon which this court could interfere. That is the province of the trial judge.
12. For all those reasons, this application for permission is dismissed.
Order: application for permission to appeal dismissed; copy of transcript of this judgment to be provided to the applicant at public expense.