England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE BROMLEY COUNTY COURT
(His Honour Judge Mitchell)

		Royal Courts of Justice Strand London WC2A 2LL Monday, 17th June 2002

Monday, 17th June 2002

1. LORD JUSTICE THORPE: This is an application for permission to appeal an order made by His Honour Judge Mitchell in the Bromley County Court on 15th February 2002. By his judgment and order he refused the mother's application for permission to relocate to the Republic of Ireland. The application for permission was lodged some four days late and we have granted an extension.
2. This oral hearing was ordered on paper on 25th April. Mr Kearney, who appeared below, has criticised the judge in a number of respects. That which makes the most impression upon me is that the judge has failed to concentrate upon the kernel of the mother's case, namely that she was disabled from providing the children with the parenting that they deserved due to her state of isolation and depression in this jurisdiction. In her statement in support of her application dated 6th November, she had hardly brought the point out with clarity. She had only said in paragraph 21 that her morale and self-esteem were at an incredibly low ebb and that she did not think that she could continue any longer with herself and the children at the respondent's beck and call.
3. However, by the time she presented herself to the court welfare officer she specifically suggested that the children were suffering. As the welfare officer recorded it in paragraph 14:

"She fears that the children suffer from her current lack of state of low morale with her role reduced to that of child minder, and her lack of self-fulfilment undermines her ability to care for them optimally."

4. Seemingly the court welfare officer accepted that assessment because in paragraph 63 she said:

"She presents as an unhappy woman who has not been able to come to terms with the divorce, and this has clearly impacted on her parenting."

5. The judge, in a judgment which indicates the difficulty he felt in arriving at a conclusion, recorded the mother's difficulties clearly enough at page 2 in the second paragraph, at page 3 in the second paragraph, at page 4 in the first paragraph and again at page 11 in the first paragraph. But what the judge throughout concentrates on is recording the mother's emotional state. What he does not record or make any findings on is the extent to which the mother's emotional state impaired her ability to provide the best that she was able to provide for her children. So he has, in consequence, not focused upon the impact on the children of the primary carer being disabled from doing her best. Therefore, inevitably, he has perhaps not posed for himself ultimately the crucial question: was the paramount consideration of welfare better advanced by releasing the mother and so restoring her ability to do her best by her children, or was it best advanced by guaranteeing for the children the continuation of the status quo, which was what they expressly wished? So, arguably, the judge misdirected himself in his analysis and, thus, in the pursuit of his conclusion.
6. It is possible that the transcript of the oral evidence of the court welfare officer and indeed the oral evidence of the mother may shed some light on this issue. Mr Kearney, who appeared below, is anxious to bespeak those transcripts for the purposes of the appeal, and it seems to me that he must have the opportunity to do so.
7. I will say that the appeal should be heard as soon as practicable in my court, with two judges if three impracticable, and I will give it a time estimate of half a day.
Order: Application allowed as above. Costs to be costs in the appeal.