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 KINGSTON-UPON-HULL COUNTY COURT
(HIS HONOUR JUDGE DOWSE)

		Royal Courts of Justice Strand London, WC2A 2LL
		1 July 2004

1. LORD JUSTICE THORPE: The parties to this appeal are CF and MB. They married in 1996 and had two children, C, who was born in that year, and E, who was born in the following year. They are accordingly now nearly eight and six and a half respectively. The parents separated in 1998 and their marriage was dissolved in 2000. Shortly after its dissolution, the applicant met Mr F and they married in Australia at the beginning of 2003. In the interim, there were proceedings in the Kingston-upon-Hull County Court in relation to contact to the two girls, and there was a pattern of gradually increasing contact largely established by orders ultimately agreed at the door of the court.
2. On 12 August 2002 prior to her remarriage, the appellant made the formal application to move the two children from this jurisdiction to Australia. The mother has tangible connections. Both her mother and her brother live in Australia and she herself lived in Australia for a period of two years when she was in her 20s. I think she is now some 36 years of age. At the conclusion of that period she was frustrated in a desire to stay on since she could not at that time satisfy the immigration requirements.
3. The proceedings that flowed from the issue of the application on 12 August have been flawed by mishap for which the parties are in no way responsible and which they ill-deserved. The first CAFCASS report was prepared jointly by two officers. The lead officer then retired from the service and made it perfectly plain that she would not attend court to speak to her report even if she were subpoenaed to do so. The remaining officer then prepared a supplemental report in conjunction with another colleague. He did not see the children himself or make any profound fresh investigation and indeed said that he had rather a hazy recollection of the investigations which preceded the first report to which he had merely put his signature. Equally within the court process the arrangements for trial were frequently frustrated with the consequence that the application issued in the summer of 2002 took 18 months to come for trial, being heard over the course of three days just before Christmas 2003 by His Honour Judge Douse.
4. Having heard the evidence the judge reserved his judgment for a period of about five weeks, handing down on 28 January. He refused the mother's application and also permission to appeal and the application to this court was adjourned for oral hearing on notice with appeal to follow if permission granted. It is that hearing which we conduct today. A reading of the skeleton argument submitted by Mr Andrew McFarlane QC and leading junior counsel who appeared in the court below, demonstrated serious points for consideration, and we have effectively treated today's hearing as the hearing of an appeal rather than the hearing of a permission application.
5. The judge conducting the trial had a further difficulty, which seems to me to have been entirely the fault of the applicant wife. Obviously an important aspect of the overall picture was the existence of the applicant's family in Australia and the extent to which they were committed to the relocation and the extent to which they would be in a position to contribute to the life of the family after their arrival. In a case such as this, I would have expected that there would have been very full statements from both the applicant's mother and her brother, and that possibly arrangements would have been made for one or other of them to attend to testify. In the event, the only evidence from that source before the judge were some rather outdated letters exhibited to one of the wife's statements.
6. There can be no doubt at all of the care that the judge devoted to writing his reserved judgment. It extends to some 37 pages, and a number of the relevant factors were considered almost over-extensively. Certainly the judge gave careful attention to the relevant reported decisions in this court and cited from them equally extensively.
7. However, Mr McFarlane has advanced two basic criticisms of the judgment. His principal submission is that the judge failed in what the authorities identify as his primary task, to make a full and careful assessment of the consequence to the mother and her present husband of a refusal of the application, and then to set that in the scale against the inevitable detriment to children in cases such as this, namely the loss of the regular and frequent contact with the absent parent. Mr McFarlane emphasises that the mother's evidence of the consequence of refusal was clear and unqualified. She had said in paragraph 25 of her statement of 3 October 2003:

"I will be absolutely devastated if we cannot carry out our plans."

That self-assessment of her emotional state was then corroborated in the report of the CAFCASS officer who, in his report of 3 December 2003, in its penultimate paragraph, stated:

"We were very struck by the extent to which Mrs [F's] plans for her entire future rest on being allowed to go to Australia. We wonder how far she would be able to accept not being allowed to go there and how far she would blame Mr [B] for this."

Mr McFarlane accepts that the judge had noted in his judgment at paragraph 54 the mother's evidence. But, says Mr McFarlane, from his conclusions is absent any assessment of the impact of refusal upon her. There is really little more than the brief statement on the penultimate page of judgment:

"In refusing this application I recognise that there will be an initial serious impact upon the Mother and Mr [F] but I believe this will turn to disappointment which can be managed."

8. Mr McFarlane in the course of a skilful review of the authorities drew our attention to the decision in Lonslow v Hennig [1986] 2 FLR 378. On the facts, there are a number of obvious similarities between that case and this, and equally the trial judge had said in refusing the mother's application for relocation to New Zealand:

"... even though the mother [would] be greatly disappointed at the loss of this wonderful adventure, it will be accepted when she realises how much harm the departure would or might cause the children."

In assessing that passage and its sufficiency Dillon LJ in his judgment said:

"I read that, however, as a hope for the future rather than a finding of fact..."

9. Mr McFarlane's second critical submission is of the way the judge dealt with the evidence as to future contact. Here, says Mr McFarlane, the mother advanced clear, conventional proposals, the affordability of which was not in dispute. There was, therefore, no basis for the judge's conclusion that they were impractical and would not materialise.
10. Miss Eleanor Hamilton QC advocating the case for the father, advances a general submission that the authorities considered by the judge, and particularly the familiar decisions of this court in Payne v Payne [2001] 1 FLR 1052 and in Re B; Re S (Removal from the Jurisdiction) [2003] 2 FLR 1043, concentrate judicial attention on the familiar scenarios of the mother who seeks to return to her homeland after the failure of a marriage to a British citizen, or the mother who is pulled abroad by remarriage to a stepfather who is magnetically drawn abroad either by his roots or by his employment.
11. Thus, submits Miss Hamilton, the time has come for this court to recognise a new category of case which she labels the "lifestyle choice case". She says that with the evident shrinking of the globe, circuit judges will become more and more accustomed to hearing relocation cases in which the only imperative for the relocation is the desire of either the single mother or the mother and her new partner to move elsewhere where they conceive that the grass grows greener. For this new category of case, says Miss Hamilton, the principles enunciated in the two Court of Appeal cases that I have already cited will not run. Thus Miss Hamilton makes the persuasive submission that this is a case in which there were no driven needs for relocation and in which the judge expressed grave concerns as to future contact. Those two features in combination, says Miss Hamilton, carry this case into the relatively narrow minority, she suggests about 10 per cent, where the relocation application has to be refused.
12. In expressing my conclusions on these submissions, I would like to record at once that this is a difficult case which has been very skilfully argued on each side. We have not found the resolution of the case either easy or self-evident. Plainly, in the trial court the outcome was finely balanced and the judge's conclusion could never be said to be plainly wrong. However, in my judgment, the path which he took to his conclusion is not free from error and misdirection. I identify first, what I believe to be an error of principle which emerges in paragraph 30 of his judgment when he is considering contact in the event of permission granted. He said:

"A general point of forensic interest of contact was thrown up during the course of this case. If, as in this case, there have been Orders by consent with regard to contact, and which have been complied with by the primary carer facilitating contact, may the Court look to see whether the failure to make any question or offer of additional contact may cause concern for future arrangements."

The judge answered that question in paragraph 32, saying:

"The failure to make an offer of additional contact can, in my judgment, entitle a Court to look and see whether it believes that proposed arrangements are likely to be adhered to in the sense of the strength of genuine motivation by the providing carer to adhere to the proposed arrangements. [The CAFCASS officer] expressed surprise that there had been no offer of additional contact. The court is entitled to consider this in the light of any findings it may make both as to respect for Court orders, adherence to orders by consent, offers of additional contact if any and my findings with respect to the credit and credibility of the primary carer and/or her new partner."

I do not know where the judge found any genesis for what he labelled as "a point of forensic interest". I have never heard any previous expression of this point of principle and I do not believe in its existence or its validity. There may be many cases in which the primary carer lays upon the court the responsibility to set the boundaries and to assess what arrangements for contact are best likely to promote the welfare of the children. The parent who elects that path and who scrupulously observes the boundaries set by the court is not, in my judgment, necessarily or automatically to be criticised for a failure to propose or offer additional contact beyond that which the court has ordered. It must depend entirely on the facts and circumstances of each case. I do not understand in the circumstances of this case, where the mother had never been in breach of any previous order of the court, the surprise expressed by the CAFCASS officer that there had been no offer of additional contact. Both his stance and the resulting stance of the judge seem to me to a degree expressly, and perhaps to a further degree implicitly, to criticise the mother in an unwarranted way.

13. I am equally concerned at a criticism that the judge expressed and then developed at some length in his judgment from paragraph 55 onwards. In paragraph 55 he recorded that at the end of the mother's evidence he had asked her a hypothetical question: what if, after relocation, the children should fail to settle?" To that the mother gave no answer (or no satisfactory answer) and the judge developed his assessment of that failure over the course of almost three pages of judgment. He was perhaps encouraged so to do by the CAFCASS officer who had been asked to assess the mother's response to the hypothetical question, and said:

"I was surprised by the inability of the Mother to answer this question."

And further:

"I would have to wonder whether her capacity to act in the best interests of the children is or has been compromised."

That seems to me to build a large edifice on a slight foundation. Lawyers and judges are fond of hypothetical questions, but lay people sometimes find them confusing. It seems to me that the mother's reaction to that question simply did not warrant the criticisms which it attracted, or the inferences which the CAFCASS officer and the judge drew.

14. However, I now come to what I regard as being the principal flaw in the judge's path to conclusion. It is the point taken by Mr McFarlane as his first criticism. The report in Payne v Payne, as it appears in the Family Law Reports (and as no doubt it was handed down at the stage of judgment) is, in retrospect, unhelpful in its layout. Paragraph 40, which the judge cited in full, offers for trial judges a discipline as a prelude to conclusion in relocation cases. It contains 4 stages labelled (a)-(d). Subparagraph (c) reads:

"What would be the impact on the mother, either as the single parent or as a new wife, of a refusal of her realistic proposal?"

But in the following paragraph, paragraph 41, this important addendum to paragraph 40(c):

"In suggesting such a discipline I would not wish to be thought to have diminished the importance that this court has consistently attached to the emotional and psychological well-being of the primary carer. In any evaluation of the welfare of the child as the paramount consideration great weight must be given to this factor."

It is, I think, easy for a judge to read paragraph 40 and think that that is the totality of the definition of the discipline. But it is important to understand that paragraph 41 is as much a part of the discipline as if it had been expressed in paragraph 40(c).

15. Here, the judge has noted the mother's self-assessment of the emotional impact of refusal. But he has not referred to the CAFCASS officer's validation of that self-assessment and he has not himself made any independent assessment. It is seemingly no more than a recognition of the case as stated in her written evidence and then comes only at the very conclusion of judgment the belief or, as Dillon LJ expressed it, the hope, that devastation would turn to disappointment. So, in my judgment, Mr McFarlane makes good his principal criticism.
16. Before coming to consequences I only want to add a word on Miss Hamilton's elegant and original submission that the courts are identifying some new category, namely the "lifestyle choice" case. Mr Macfarlane's answer to that submission is, in my judgment, completely convincing. First of all, he points out that the Court of Appeal in Lonslow v Hennig considered precisely a lifestyle choice situation and without hesitation applied the principles that had been developed by this court in Poel v Poel [1970] 1 WLR 1469 and extended subsequently in the decisions of Moody v Field and Chamberlain v de la Mare [1982] 4 FLR 434. Further, he points to the judgment of Charles LJ in Re C [2003] 1 FLR 1066, in which the judge in paragraph 24(2) clearly deprecates the development of sub-classes of case to which some different approach or principle would be applied.
17. I accept Mr McFarlane's submissions without hesitation. There is but one standard to be applied to all these cases. Obviously each case is fact-dependent. What is unvarying is the principles that must be applied to these facts in order to determine the outcome. The applicant's explanation for fundamental relocation is the core of every case. The judge must assess it and bring that assessment into the balances that paragraph 40(a) and (c) require.
18. I now turn to the consequences. The judge made a number of adverse findings against the mother and Mr F. It would in all the circumstances, in my judgment, be unprincipled for this court simply to impose a different outcome and grant the application refused in the court below. We have not seen and heard the witnesses. We have not even had a transcript or note of any of the oral evidence. In these cases the oral evidence is infinitely more influential than the written evidence or the paper reports. The judge had oral evidence from the parties and also from the CAFCASS officer.
19. The only principled disposal is to return this case for retrial. I reach that conclusion with very great regret. I regret the financial burden that that imposes on the parties. No one in this case is publicly-funded. I am particularly regretful, given that they have been ill-served by the system in the court of trial in the past. I also regret the consequences, since the continuation of such highly charged adversarial proceedings can only have an adverse impact on the prospects of the adults resuming the sort of moderate and civilised relationship that characterised the regulation of contact in the earlier history. But there is no other course. The only slight compensation that we can make is to request the Liaison Judge for the North-Eastern circuit to take responsibility for the directions for the retrial. I would hope that it would be possible for the retrial to be listed before a judge of the Family Division without undue delay. If that is not a realistic possibility, then the case must be listed before the designated judge in the county court. First, this case deserves a judge with specialist commitment and experience of international family law cases; second, a judge with that experience should be able to complete the trial at least within the course of a single day. That is the disposal that I would propose. I would grant permission and allow the appeal but order a retrial.
20. LORD JUSTICE MAY: I agree that this appeal should be allowed for the reasons given by Thorpe LJ, whose account of the facts and circumstances I gratefully adopt. I agree, with the same regret, that the only proper disposal is to order a retrial.
21. This is an appeal which has caused me great concern. The court is, as in all cases such as this, concerned with the welfare of the children. That is the paramount consideration. Any divorce predicates difficulties in the relationships of the parties. Questions of residence of children sometimes, and contact with them more frequently, can also cause difficulties. It is commonplace that such difficulties as arise have a propensity for affecting adversely the welfare of the children of a dissolved marriage.
22. My concerns in the present case can be expressed shortly in general terms. First, I have the strongest impression from the evidence which we have and the judge's judgment, that all three principal adults - the children's mother, their father and their mother's present husband - are genuinely concerned for the welfare of these two children, and have done their genuine best to promote their welfare in the past and intend to continue to do so.
23. In saying this, I venture to read behind the details of some of the friction and disagreement which the judge considered to see these more as the exaggerated product of adversarial litigation than as typical of the real people whose concern it is. My concern, then, is that the process of this litigation may itself not have been conducive to the children's welfare.
24. My second concern has been that the decision which the court has to make in this case is, I think, finely balanced. South Australia is a very long way from the north of England. The current successful and beneficial frequent contact between the children and their father is bound to be affected if the children live in Australia, and there must be questions whether differently constructed contact between the children in Australia and their father in England may be practical and satisfactory or, by contrast, impractical and detrimental.
25. On the other side of the balance, is a real and genuine aspiration of the mother and her husband to make a new life in Adelaide which nevertheless may not have some of the forensic strengths which have been regarded as persuasive in other cases. I have no doubt but that the mother would be devastated if she cannot go to Australia with the children and that this would be likely to be detrimental to the welfare of the children themselves. Equally, I have no doubt but that the father would be devastated if the children do go to Australia. That, too, may have a detrimental effect on the children's welfare and the necessary radical change in their contact with him is an obvious detriment to their welfare which may well not be alleviated by alternative arrangements.
26. These concerns are not the only matters which the court who deals with the retrial will need to consider, but they illustrate my view that the balance is fine. It is the court's function to determine where the balance should fall. But the fact that litigation has to continue is my further concern.
27. LORD JUSTICE SCOTT BAKER: I agree that this appeal must be allowed for the reasons given by my Lords.
(Appeal allowed; no order for costs).