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 CANTERBURY COUNTY COURT
(HER HONOUR JUDGE ANDREWS)

		Royal Courts of Justice Strand London, WC2
		19 February 2004

1. LORD JUSTICE THORPE: This is Mr Howling's application for permission to appeal and also for a stay of an order made by His Honour Judge Andrews sitting in the Canterbury County Court on 30 January 2004. The issue before the judge on that day was whether she should grant the father's application for a residence order in respect of the younger child of the family, E, who is 11 years of age. The only other child is T, who is 16. Both children have lived with their mother in Kent throughout their lives and since the separation of their parents in the 1990s: so on the face of it the prospects for an application for a radical variation which would have the consequence of separating the two children were not particularly good. However, the case had been fully investigated by a CAFCASS officer who obviously gave a lot of time and thought to a difficult case and reached the conclusion that there were special circumstances that would justify a separation of the brothers, and the even more important conclusion that E's emotional investment in making the move was such that there would be real risks in refusing it.
2. The only evidence before Judge Andrew was the evidence of the parents and the evidence of the CAFCASS officer, who all testified. The judge gave an extempore judgment between 3.00 pm and 5.00 pm and explained fully why she adopted the court welfare officer's recommendation (expressed clearly from the witness box, if only tentatively in her written report) to make the move. The application for permission was not lodged until 13 February, which was a mere seven days before the implementation of the order fixed for tomorrow, 20 February.
3. When the papers were put before me on the 17th it was manifest that unless an oral hearing were arranged today there might be a denial of justice to the applicant mother. I, in considering the papers on the 17th, was handicapped by the absence of a transcript and in substitution an extremely poor note of judgment. This morning Mr Howling, who has come into the case to advocate the applications, has supplied a skeleton argument which is a full and comprehensive presentation of his case, and he has also furnished a 32-page transcript of the extempore judgment. I have not had an opportunity to read that transcript but I have invited Mr Howling to make his submissions, specifically drawing attention to anything in the transcript which he deems worthy of criticism. Mr Howling has sensibly abandoned the grounds of appeal which are incorporated within the notice of application. They are not persuasive grounds and Mr Howling has substituted three bullet points that he wishes me to consider. First, he says that the judge inadequately considered the impact of separation on both boys; secondly, she inadequately considered the risk that the orders for contact, following E's move to Northern Ireland, would be illusory, since the father had such a record of breach and contempt that his client was entitled to place no trust at all in the court's orders. Thirdly, he says that too much weight was placed on the views of the just 11-year old child who has below average intellectual attainment. He couples with that submission the suggestion that the CAFCASS officer was at fault for not explaining the reasons for E's wish to move. As pendants to those submissions Mr Howling criticises the judge's decision to order the move during the current half-term holidays. Finally, he asked me to look at fresh evidence from his client.
4. I can take those submissions quite shortly. They seem to be at odds with the unapproved transcript. As to the separation point, the judge recited and implicitly adopted the view of the CAFCASS officer that there would be no particular problem about a decision which split the brothers partly because of her assessment that the relationship between them was often fraught. The judge reverted to this topic later in her judgment. In the circumstances, it seems to me vain to suggest that this was a consideration to which the judge did not attach sufficient importance.
5. As to the suggestion that the orders for contact were hardly worth the paper written on, that submission is not consistent with the judge's finding. The judge found (at page 23):

"There is no reason to believe that father will not finance any contact visits if E goes to live with him. There is no reason to believe, since he volunteers it, that he will not submit to an order in relation to fees, travelling expenses, telephones and so on. There is no evidence to suggest that either boy will be emotionally damaged by being apart from the other..."

The judge who saw and heard the father trusted him implicitly as a man of his word, and that was essentially an issue for the trial judge's assessment.

6. As to the suggestion that the court placed too much weight on the views of an 11-year old, it is to be noted that the welfare officer gave a considerable amount of time to the assessment of E and she was plain that he was an intelligent and articulate boy. It was not for her to seek to explain the reasons for E's determination. His drive to move was essentially emotional and may not even have been reasoned in his own mind. Obviously decisions of the intellect require rational reasoning; that is not a requirement for emotional orientation.
7. As to the pendant points the timing of the move is, above all, a matter for the trial judge. She might have chosen the end of this term, she might have chosen the end of the school year. She chose the half-term. That was essentially a matter for her.
8. The endeavour to introduce fresh evidence, Mr Howling accepts, is unprincipled, but he asked me to look at it compassionately. I have therefore read a recently written report from the Head of Department at the Irish school. Nothing in that report begins to impact on the judge's conclusion and reasoning.
9. There is also rather a sad letter from E, which is only indicative of the huge emotional pressure and turmoil that is the inevitable outcome of years of parental hostility and dispute, settled not by negotiation or mediation but by judicially imposed solution. I would draw the inference that the sooner the judge's order is implemented the better. Nothing could be worse for E than for this court to grant either permission or a stay and thus to return to the melting pot things which were clearly decided on 30 January.
10. For all those reasons these applications are refused.
(Applications refused; no order for costs).