England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LUTON COUNTY COURT
(Her Honour Judge Pearce)

		Royal Courts of Justice Strand London WC2 Tuesday, 25th June 2002

1. LORD JUSTICE THORPE: The father appeared last Thursday as a litigant in person seeking permission to appeal the judgment and order of Her Honour Judge Pearce sitting in the Luton County Court on 7th May. I, as a single judge, ordered an emergency hearing of the application on notice, with appeal to follow if permission granted. It is in those circumstances that we are able to sit today to hear Mr. Twomey for the applicant and Miss Espley for the respondent on what are well balanced submissions, both in attack and in support of the judgment below.
2. It is not necessary to record the litigation history between these parents in divorce proceedings that encompassed both ancillary relief and contested applications for residence. Her Honour Judge Pearce seemingly settled the status post divorce with an order that she made in the summer of 1999, and ancillary relief was seemingly settled by an order of the District Judge in January 2000.
3. At some stage the parties entered into a consent order which bound the mother, as primary carer, to reside within the Letchworth area to maintain continuity of home and school for the three children of the family, who are respectively H, born on 24th October 1991, P, born on 26th January 1993, and the youngest, born on 22nd August 1994. The mother was able to achieve continuity at home for them by buying out the father's share in the final matrimonial home.
4. These are working parents. The mother is a fully qualified nurse. The father has been in employment until relatively recently. As a consequence of his loss of employment he has been unable to maintain payments for the children. It seems that, since the order of 1999, which resulted from a contested trial, both parties have acted in person, the father because, until his recent loss of employment, he was above the financial limits for public funding, the mother however managing to obtain a certificate and representation by her present solicitors from 29th April 2002.
5. To go back a little way in the story, certainly the mother sought release from the consensual restriction confining her to the Letchworth area, first, on the basis that it was an unwarranted cloud that was blighting her life in the event that the father had chosen his independent home in close, and for her too close, proximity.
6. Before that case was tried she introduced a new dimension. She formed a relationship with a Mr. W who lived in Lincolnshire. She aspired to move with the children to share his home in Gainsborough. That was the case that was the subject of directions given by His Honour Judge Hamilton on 19th November 2001. His order was a conventional one, providing for the mother's evidence in support of her application, the father's in response, and the court welfare officer to have the last word. Paragraph 4 provided for a final hearing before a circuit judge, with a three day time estimate commencing on 7th May. This timetable went badly awry. The mother provided her evidence within due time but the father was two months late in filing his response. The court welfare officer was not informed of the direction and only learned of it from the father some ten days after the date fixed for her report. Accordingly, she did not interview the family members until March. In particular, I record that she had a meeting with the children on 19th March. In her report of 30th April she reported in paragraphs 12 to 15 inclusive their troubled view and no less troubled feelings at the prospect of moving from a home and school area that had become so familiar. P, when asked about the prospective move, said that he found it difficult to think about it. He said: "It kind of makes me feel sad and about to cry." Subsequently he said that if his mother were to move he wondered if he could stay with his father during the week and see his mother at weekends. His sister H specifically regarded the mother's talk of moving as unreal. She said that she did not think that her mother would move "as she would have told us if she was going to." Her final comment was the familiar one, that she wished her parents could still live together. Her final assessment of the prospect of her mother moving was that she would never move so long as the family cat was alive because the cat was old and needed to stay in the same house.
7. That report was provided to the father as litigant in person on 1st May, a matter of but two or three working days before the fixture. Unfortunately, the father had conceived that it was fit for him to adopt an extremely contentious response to the court welfare family reporter's request for a meeting. He had insisted on tape recording the meeting. He had cross-examined the reporter as to her method of working. He even tried to bring a McKenzie friend to the meeting. In a sense, he had been his own worst enemy, nor had he done his case much good by the tone of the statement which he filed on 22nd February.
8. The mother's new solicitors had to cope with a fundamental development. As reported to the court welfare officer by the mother at interview in March, her relationship with Mr. W had come to an end, with the consequence that she was now proposing, not a move to Gainsborough but a move to Linton in Cambridgeshire where she would be close to her parents. The solicitors quite rightly perceived the need to get this on the record, and managed to prepare a statement which the mother signed on 3rd May. There is a letter on their file which demonstrates that they attempted to serve it by post on the father on that day. But of course 3rd May was a Friday. The 6th May was a bank holiday and the case was to start on the 7th. On 7th May the father was represented by a McKenzie friend who sought an adjournment on the ground that the father was not fit to come to court. He had obtained a perfectly ordinary GP chit which would have been sufficient to sign him off work, in addition to which he produced a letter from his general practitioner, the gist of which was that he was suffering from stress and was not fit to litigate for a period of about a fortnight, but was nonetheless fit to care for his children. At its conclusion the letter offered further clarification of the patient's disability.
9. Having heard the application the judge refused it. We do not have a transcript of her reasons for refusal, but it is plain from her substantive judgment that she regarded the doctor's letter as being inadequate, particularly set against the known facts as to the father's movements over the week preceding the trial. However, she said that she would adjourn for 24 hours if that would bring him to court. Apparently his McKenzie friend took instructions on the telephone and returned to inform the judge that the father would not be there on the following day. Accordingly, the judge proceeded to hear oral evidence from the court welfare officer, and on the same day gave an ex tempore judgment which runs to some 35 pages.
10. Mr. Twomey for the father has come into the case at a late stage, since those instructing him have only obtained public funding on Friday last. He has filed a characteristically comprehensive and effective skeleton argument in which he advances a number of propositions. The proposition which for me is the least persuasive is the proposition that this mother, as an applicant, faced a real hurdle in seeking her release from the condition consensually attached to her residence order. He refers to the case of Payne v Payne and suggests that the sorts of considerations that apply to international relocation have some resonance in applications to relocate within the jurisdiction. I say that that is unpersuasive because the tenor of authority is plain. The holder of a residence order is free to choose the area within which parental responsibility and caring functions will be discharged. The court is not to circumscribe that choice save in the most exceptional circumstances. Here, all the mother was seeking to do was to move from Letchworth to Linton. She had extremely cogent reasons for making that move, namely proximity to her parents, to whom the children were manifestly attached and who would be able to aid her with child care to enable her to earn the income, made even more essential by the father's loss of employment.
11. Nonetheless, in weighing that case the judge had to have due regard to the father's opposition and to his endeavour to provide continuity of care in the familiar locality and at the familiar schools. She also had to have regard to the important factor of the childrens' wishes and feelings.
12. Mr. Twomey's submissions have greater force for me in relation to the issue of whether or not the judge should have proceeded at all on 7th May, given the letter from the general practitioner and given the general practitioner's offer to expand his opinion if that were required. Another factor that plainly bore on the discretionary exercise whether or not to adjourn was the late arrival of the mother's latest case, only recorded in her statement of 3rd May, which was amplified by an exhibit running to some one hundred pages, which had only become available on the morning of trial itself in its complete form. Unfortunately, the father's McKenzie friend did not advert to this consideration at all in advancing his application. He rested solely on the issue of medical unfitness.
13. Without being over-critical, I consider that the judge should have seen the need to explore whether the father had had due notice of the application that the mother sought to advance by her last revision, and whether he had had proper opportunity to respond to it.
14. But the other aspect of Mr. Twomey's submission that I also find more persuasive is his complaint about the judge's order varying, by reduction, the father's contact of staying access on three weekends out of four, plus visiting access on the fourth weekend. The judge's order accepted the mother's submission that the childrens' development required them to have more free time to pursue their own friendships and activities, and that that requirement required reflection in a more conventional division of the weekends equally between the two households. The mother's case in relation to that is again advanced ultimately in her statement of 3rd May between paragraphs 12 and 16. The judge did not have the father's answer to that evidence, some of which was obviously contentious, since she asserted that the children were not profiting from the erratic lifestyle which the father offered at his home during the weekends.
15. How did the judge deal with these aspects when she came to give her judgment? Between pages 24 and 25 she sought to carry out the balancing exercise in determining whether or not the mother should succeed in her application to relocate. At the end of that exercise she said:

"I find that the change would be beneficial to the children in all respects."

16. The problem with that conclusion is that it is not preceded by any acknowledgement of the disbenefits to the children flowing from loss of proximity to father's home, nor does the exercise anywhere refer to the wishes and feelings of the children. Likewise at paragraph 28 she comes to the welfare checklist. She says in relation to that:

"I have considered all the other matters referred to in the welfare checklist."

17. That assertion seems to me to be belied by the fact that nowhere does she make any express reference to the wishes and feelings of the children. In precisely the same way, at pages 31 and 32 she considers the future issue of contact or the issue of future contact post relocation. In reaching the conclusion that the mother's proposal for alternate weekends was a responsible and considered decision to which she should accede, again, perhaps most fatally, the judge nowhere considered the wishes and feelings of the children.
18. What then are we to do with this application? The application for permission succeeds. What then of the appeal that follows? It is not an easy decision. One thing that is apparent is that the judge could and should have taken the opportunity to sever the issue of contact, even if she was persuaded that the father's cross application for residence was so hopeless as to require no further adjournment. On the issue of contact important decisions had to be taken. Such decisions could not be taken, in my view, on the evidence of one parent alone (to which the other parent had had no opportunity to respond) and, above all, could not be taken without proper consideration of the wishes and feelings of the children.
19. What then of the application for relocation and the rival application for residence? I have to acknowledge that this was a judge who had acquired a great deal of experience of this family over the course of three or four years of litigation, throughout most of which the parents had been in person. I have to acknowledge that the father's case had been marred by the tone of his written statements, and even more perhaps by the stance that he had adopted in his communication with the court welfare officer. I have to acknowledge that the mother's application to move the modest distance to Linton, for the excellent reasons advanced, was an application that had outstanding prospects of success. But, in the end, I have reached the conclusion that there must be a retrial. There must be a retrial on the issue of contact in any event. The more difficult question is whether there should be a retrial on the cross applications as well. My reluctant conclusion that there must be is founded on these factors. First, I am unhappy about the judge's decision to proceed relatively summarily on 7th May, given the late arrival of the mother's real case and the absence of investigation as to whether the father had received that case and had had an opportunity to respond to it. If that were all, I would not accede to the unattractive prospects of a retrial. Had the judge then proceeded to conduct the necessary balancing exercise, both in relation to the cross applications and the contact application without misdirection or omission, I would say that the result must stand. It is for me the combination of possible injustice to the father resulting from the summary nature of the proceedings, coupled with the perception that the subsequent discharge of the judicial function was flawed by the failure to concentrate sufficiently upon and to weigh up the disturbing report from the court welfare officer as to the extent of the childrens' confusion and disturbance at the prospect of a move. In fairness to the judge, I suspect that her concentration on that important consideration was diverted or deflected by the oral evidence of the court welfare officer. We do not have a transcript of that, but we do have a note taken by the mother's solicitor. The note records Miss Espley for the mother asking the question: Do the children express concern regarding their move to Linton? The answer is, no. My concern regarding that exchange is obvious. In the first place, the reporter had not spoken to the children since 19th March. It must be doubtful as to whether their exchange on that date relates to a move to Linton or rather to the prospect of an unspecified move in general. Putting that aside, whether the conversation of 19th March was in relation to a specific or an unspecific move, the answers given were answers which inevitably had to lead to profound concern. I do not understand how the family reporter could have seemingly said that the children were expressing no concern. In fairness to the reporter, it has to be borne in mind that this is not a transcript. It is only a solicitor's note. It may not do justice to the exchange.
20. It is with reluctance that I have reached the conclusion that the order of 7th May must be set aside. The minimum standards of fairness and justice may not have been achieved on that occasion, nor may the judge's essential task have been comprehensively completed. It is always with reluctance that this court sets aside an order and directs a retrial. Such a direction inevitably results in delay, additional expense, additional demands on court resources and extended stress for the family. It is particularly worrying in this case, given the fact that the mother has identified a prospective purchase in Linton and identified a prospective sale in Letchworth. Furthermore, she has made arrangements for the children to move school in September. All the undesirable consequences of retrial must, as far as possible, be mitigated. We must give such directions as are necessary to ensure the swift progress towards retrial and we must ensure that, as far as is consistent with the demands of other cases, an expedited hearing in the Luton or some adjoining county court is guaranteed. That is my judgment on this appeal.
21. MR. JUSTICE WALL: I agree with the result proposed by my Lord. I do so with an equal if not greater degree of reluctance.
22. The mother's statement for the purposes of this application (that is her first statement dated 29th November 2001) identifies the issues which require resolution. The first of those is the application by her for the removal of the restriction on her moving house. Secondly, she lists the question of whether or not the children should live with their father. Thirdly, there is the question, as it then stood, of the children developing a proper relationship with her then partner, Mr. W, and, fourthly, the question of schools for the children should she move away from Letchworth.
23. The statement itself is couched in moderate and sensible language. It is significant that it is met by the father with a document of some 164 paragraphs, the language of which is immoderate in the extreme. It begins with an attack on the CAFCASS Family and Child Reporter who, he says, is only part time and a former probation officer. He continues:

"[Her] recommendation should be discounted due to Mrs Turner's unreasonable prejudice against the best interests of our children."

24. Later on, when dealing with the question of contact and the mother's wish to re-think the issue of contact, he says her statement provides:

"prima facie evidence that A intends to destroy the close relationship between E, P, H and myself. "

25. Later on:

"More importantly, I would ask the court to do its utmost to ensure that A or her parents ... do not indulge in questioning of or retribution against E, P and H. Our children have told me that they continue to be questioned by A or her parents for information about me and punished for talking to me or expressing views which do not conform with A's wishes. In fact, I have had to omit a great deal of evidence from this statement to protect E, P and H because our children are very frightened of questioning and repercussions from A and her parents, to the extent that they become physically ill. I have had to bring their symptoms to the attention of our children's GP on several occasions."

26. The statement goes on in this vein, giving a clear insight into the attitude of the father.
27. The inaccuracy of the passages I have cited from the father's statement is indicated by the fact that, when the court reporter was talking to the children and discussing with them conversations they had had with her father, the court reporter asked one of the children if she had spoken to her mother about it. She had not. She said she had not because:

"Dad told me not to tell her what he had said. If she knows he might be taken to the police."

28. In my judgment, anxiety about the father is increased by the fact that, when the children were discussing the matter with the CAFCASS officer, they reported sleeping in the same room as him when they went on staying contact and sometimes in the same bed.
29. In all the circumstances, it seems to me, reading the papers, that the mother's case for residence is an overwhelmingly strong one, and the father's application to overturn it is unlikely to succeed. If that had been the only issue in the case, I would have had no hesitation in refusing permission to appeal. However, it is not the only issue in the case. One has the issue of contact. One has the issue of removal. Like my Lord, I would take the view that where a single parent, (as this mother now is) supporting herself by her own labours as a nurse, wishes to move a short distance and obtain other accommodation, no doubt less expensive, to be near her parents; and when she has been in a position to find schools for the children, that is not something that this court or any court would wish to stand in the way of. However, I have to acknowledge here, as my Lord has acknowledged, the difficulties which relate, firstly, to the judge's refusal of the adjournment; secondly, the late presentation of the mother's evidence and, thirdly, the fact that, to my mind quite inexplicably, this very experienced circuit judge failed to address what was the most important aspect of the welfare checklist in relation to the move, namely the wishes and feelings of the children, ascertained, as they clearly had been, and indeed as they were clearly expressed. These factors together lead to a conclusion that, as in every case, justice must not only be done but must be seen to be done. The father can legitimately feel here that he has not had the opportunity fully to put his case to the court, and that the court has not addressed the arguments he wished to put before it. I regard this as unfortunate because, like my Lord, had the judge addressed the welfare checklist in her judgment and had she weighed up all the factors in relation to the move in the light of the childrens' express wishes, it might have been difficult to interfere with that decision, notwithstanding the late change of plan and the refusal of an adjournment. Like my Lord, I am driven to the conclusion that there has to be a rehearing. Clearly that rehearing must be undertaken as swiftly as possible. This court will do what it can to ensure that that occurs. There is also the question of precisely how the wishes and feelings of the children are to be placed before the court. Like my Lord, I would grant permission to appeal. Permission to appeal having been granted, I allow the appeal and substitute the order that he has proposed.
Order: Application for permission to appeal allowed; appeal allowed; order of 7th May set aside; retrial ordered.