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 HARROGATE COUNTY COURT
(HIS HONOUR JUDGE IBBOTSON)

		Royal Courts of Justice Strand London, WC2
		Tuesday, 25 January 2005

Tuesday, 25 January 2005

1. LORD JUSTICE THORPE: The appellant, CG, seeks to appeal the reserved decision of His Honour Judge Ibbotson sitting in the Harrogate County Court on 6 October 2004. CG is of Argentinian origin. The judge refused her application for permission to remove the two children of the family permanently from the jurisdiction. The children are twins, J and C, born on [a date in] 1999.
2. The outcome of this appeal is finely balanced. It has been extremely well argued on each side by Miss Eleanor Hamilton QC, for the appellant, and Mr Roger Bickerdike, for the respondent. With that short introduction, I turn to the chronology.
3. CG ("the mother") is 47 years of age. She arrived in this jurisdiction in the early 1980s. She married a UK citizen in 1982 but separated in 1988. She met CG ("the father") in 1991 and they married in 1994. I have already recorded the birth of their only children.
4. The mother and children visited the Argentine for ten weeks in early 2001, the year in which the marriage failed and the parties separated finally. The father left the matrimonial home in December, the children of course remaining with the mother. They were at that stage only some two and a half years of age. The father anticipated difficulty over contact when, in November 2001, he applied for a contact order in anticipation of an imminent separation and also for a prohibited steps order to prevent the mother from returning to her homeland with the children.
5. Initially the father's contact with the children was achieved consensually, and Miss Hamilton has emphasised that the father first had staying contact to the girls on 29 June 2002 when they were just under three years of age. The court made a contact order on 26 November 2002, and by that order set up a regime of afternoon contact every Wednesday, and staying contact of one night's duration on the majority of the weekends with a provision for a summer contact holiday. There was no such contact summer holiday in 2003, although, by agreement, the regime established by the order of 26 November 2002 was extended to alternate weekend staying contact in November 2003. In January 2004 the mother and the children paid a further visit to Argentina, this time five weeks in duration.
6. The father applied again for a prohibited steps order to prevent the removal of the children to Argentina on 11 March 2004. That application prompted a response from the mother, who, on 23 March, issued an application for leave to remove the children from the jurisdiction. The parties had been divorced absolutely in March 2003 and in August 2004 the father remarried. The application was heard, as the judgment itself records, in the Harrogate court on 13 and 14 September, when the evidence was concluded. On the following day closing submissions were heard in Scarborough, and the judge handed down his reserved judgment on 6 October. Whilst refusing the mother's application to remove, as well as her application for permission to appeal, the judge did grant an extension to allow her to apply to this court by 10 November. On that final day her notice of appeal was duly sealed and shortly thereafter I ordered that the application should be listed for oral hearing on notice with permission to follow. When the case was called this morning we granted the permission application and invited Miss Hamilton to argue the appeal.
7. Miss Hamilton criticised the judge in three principal respects. The judge found, having reviewed the history of contact, as follows:

"... I find that while mother's application is not motivated solely by a wish to prevent contact, a wish to be able to control and if necessary restrict contact forms a significant part of her motivation, having regard to the history surrounding contact."

8. Miss Hamilton sought to attack that finding, as well as a finding to the effect that the mother's commitment to continuing contact and to encouraging its development had to be questioned. Miss Hamilton pointed to the overall history and submitted that a mother who had volunteered staying contact to the twins at such a young age and who had subsequently participated in a conventional process of development leading to a nine-day staying summer holiday in 2004 was proof against such an assessment.
9. Her second submission was that the judge had plainly fallen into error when he held, as he did, that the mother's practical proposals for establishing a new life for herself in Argentina were unrealistic. His very words were:

"I have come to the conclusion that mother's plans are over-optimistic and insufficiently researched. The result is that I am unable to find that they are realistic. My observations are founded on mother's plans for providing an income rather than those which relate to her capital position."

10. However, Miss Hamilton's main attack on the judgment relates to the judge's assessment of what would be the impact on the mother of the dismissal of her application. The judge said, and I cite this passage in full because it lies at the heart of this appeal:

"I make the following findings. First of all, if permission is refused mother will be bitterly disappointed because she clearly wishes to go to Argentina. Secondly, despite her postnatal depression (to which I have already referred) mother is in my view resilient, as evidenced by her history since leaving Argentina to travel the world at the age of 22. I also bear in mind that she did not return to Argentina following the breakdown of her first marriage and that she has lived in the United Kingdom for most of her adult life.

I also find that the damage to her, if her application is refused, will be a sense of isolation resulting from her having relatively few friends in the United Kingdom. That feeling, coupled with her disappointment, will be distressing for her, and it seems to me that it would not be so distressing as to cause her actual, emotional, or psychological damage. I find that she will adapt to the situation because she has the strength of character to do so. There is no evidence before me to suggest that psychiatric damage will be caused if this application is refused."

That, says Miss Hamilton, succinctly, is the plainest evidence of a judge applying the wrong test. It was not incumbent upon the mother to prove that the refusal of the application would cause psychiatric damage. The question was: what would be the impact on her sense of well-being and her capacity to transmit that sense of well-being to the children through her day-to-day parenting and her daily relationship with the children.

11. Mr Bickerdike has presented his case with a full and expert skeleton argument, all of which has been supplemented by his submissions to us today. In relation to Miss Hamilton's first assault, he makes the telling point that nowhere in her grounds of appeal, or in her skeleton argument, is there any hint of criticism of the judge's findings in relation to contact and motivation. In relation to the second assault on judgment he emphasises that the CAFCASS officer in his oral evidence had expressed serious concerns, given that he had at an early interview emphasised to the mother the importance of presenting a well-researched case, and she had seemingly ignored his warning. Mr Bickerdike robustly pursued the submission that her plans were essentially unrealistic and, furthermore, were unsubstantiated evidentially. He says that the judge was perfectly entitled to arrive at the conclusions he expressed.
12. As to Miss Hamilton's principal submission, Mr Bickerdike says that the judge properly recognised the disappointment and distress as a consequence of refusal. In a passage immediately preceding that which I have cited, the judge turned expressly to consider the impact on mother of refusal and the effect on her emotional, psychological and physical welfare. Furthermore, the judge had been properly directed by Mr Bickerdike (who had appeared below) to the decision of this court in Payne v Payne [2001] EWCA Civ 166, and in particular the judge's attention had been drawn to paragraph 41 of the judgment when applying the discipline suggested in paragraph 40. Mr Bickerdike also advances the submission that, in any case where a judge has made an adverse finding as to the applicant's motivation, that finding must be duly reflected in the assessment of the impact of refusal on her emotional state.
13. Finally, Mr Bickerdike says that should this court be against him on the primary question, then the proper consequence must be remission for retrial, given that this was a case in which the judge had clearly had misgivings as to the mother's motivation at the conclusion of a two and a half day hearing.
14. Miss Hamilton in her reply distinguishes this case from the decision in B (Children) [2004] EWCA Civ 956, in which the court held that, in a case involving a judicial misdirection in the assessment of impact and clear judicial findings contrary to the application, the proper course was to order retrial.
15. Those, then, are the rival submissions. I will endeavour briefly to state my conclusions on them. Mr Bickerdike is, in my judgment, entitled to arrest Miss Hamilton's criticisms of the judge's finding in relation to the mother's motivation by pointing out the absence of any reliance in the notice of appeal. He makes the fair point that had he had warning of such a criticism he might well have sought transcripts of evidence to demonstrate its weakness. I therefore take the judge's finding as it stands: nevertheless I am in no doubt that we are entitled to put it into the wider context of the judgment as a whole.
16. The judge was not finding that the mother's motivation was to defeat or extinguish contact between the father and the children by putting the distance of continents between them. What he was expressly finding is that she had a significant desire to control and, if necessary, restrict contact. Plainly the judge did not go on to find that that desire was likely to achieve its objective for, at a later stage of his judgment, he recorded the CAFCASS officer's evidence that in his opinion it would be the mother's intention to make the children available to father if she went to Argentina. Equally indicative is the judge's analysis of the detriment that would flow from a grant of the application. He listed three factors including the distance involved and "... the reduction in contact between children and father". That analysis shows plainly that the judge proceeded on the basis that the mother's proposals for future contact would be honoured, but would, of course, have the consequential effect of reducing the frequency of contact. Put in that context, the finding is one of limited consequence.
17. On the issue of practicalities, Miss Hamilton's criticisms are to me entirely convincing. I think I can explain that conclusion simply. Under financial arrangements set by the court, the mother was at the time in receipt of monthly payments of £1,100 from the father: £500 a month was for her own periodical payments; £300 a month was by way of periodical payments to each child. The mother's proposal was that after an initial six-month settling in period in the Argentine she would forego her own periodical payments which would have the consequence of putting £6,000 per annum into the father's pocket to fund future contact arrangements. She would be left with £600 per month for the children. That she would supplement by deriving income from an investment capital of approximately £100,000 which would result to her upon a sale of a relatively valuable home in Yorkshire and the purchase of an equivalent home at local prices in Buenos Aires. She further says that she had recently obtained an international diploma in anatomy, physiology and massage, which would enable her to set up a private practice in Buenos Aires offering complementary therapies. The judge was clearly suspicious of the potential of such a practice. He said in relation to her qualification that there was no evidence that the qualification was internationally recognised. He even commented - presumably critically - that the qualification had not been produced in evidence. That approach to me seems unduly cautious. It could be said with equal force that there was not a scrap of evidence that the delivery of complementary therapies was a regulated activity in the Argentine. Equally, I doubt the validity of the judge's conclusion that she had fallen short by producing

"... no evidence of business conditions or of demand for her services or of her ability to provide them on a commercial basis".

That could be said of almost any individual proposing to embark upon any self-employed practice with only the foundation of the essential qualification. I do not see what sort of evidence the judge expected her to produce. Inevitably her future earnings as a self-employeed therapist were doubtful and would remain doubtful until the point was put to the test. But, even more significant than my misgivings as to the judge's over-cautious analysis of the mother's evidence, is the reality that she could perfectly well achieve the same level of income, comparatively speaking, without working at all. The combination of the £600 per month for the children, together with the yield on an investment fund of £100,000, would leave her not much, if any, short, on the income that she enjoyed under the current periodical payments order. It seems that the judge, in labelling her evidence as unrealistic, had either overlooked or not properly taken into account the extent to which her investment capital was available to supplement the child periodical payments.

18. I would add that any realistic future assessment of the financial needs and resources of the wife and children in Argentina would almost certainly require a reassessment of the father's contribution. The mother in her first statement had referred in most general terms to her plans for schooling. The father in his response had urged the importance of bilingual education and, in her evidence in reply, the mother had particularised a bilingual school, St Martins, where the children would be admitted at an annual fee of £1,200 each. Obviously bilinguality is what these children require. Since the father is pointing up that requirement, on ordinary principles he would meet or contribute to the financial consequences. So in relation to the judge's assessment of this relatively significant aspect of the case, I am persuaded by Miss Hamilton that he has reached a conclusion that is in conflict with the facts.
19. I turn, then, to the major question: has the judge properly directed himself in assessing the impact of refusal on the mother? I have considerable sympathy for the judge in this respect, since in her evidence in writing, both in her first statement at paragraphs 12 and 14 and in her second statement at paragraphs 2 to 5, the mother only pointed out the factors that seemed to draw her magnetically back to Buenos Aires. Nowhere does she express what would be for her the emotional impact of refusal. Likewise in her conversation with the CAFCASS officer both in paragraph 6 and in paragraph 10(e) the reporting officer only records her good reasons for wishing to return home. Again she does not seem to have expressed to him the emotional impact that she would anticipate from refusal. We do not have a transcript of her oral evidence, but it may be that it was characterised by the same degree of reticence.
20. Recent appeals to this court have demonstrated that the judge's assessment of this very important factor has been hampered by an absence of clear evidence from the applicant as to what would be the emotional consequence of refusal. I well understand the dilemma for an applicant. To say too little risks that the judge does not sufficiently concentrate on the point: to say too much is perhaps to forfeit the judge's sympathy and to lead him to the conclusion that the mother is over-egging the pudding.
21. However, all that said, I am concerned that the judge appears to say, in the passage that I have cited in full, that the mother fails because she has not established that the consequence of refusal would be psychiatric damage. Furthermore, all that he seems to envisage is initial disappointment leading to distress. Both those reactions could be characterised as transient, particularly since the judge has assessed the mother, on somewhat slender evidence, as resilient and has also found that she will adapt to her situation because she has the strength of character to do so. The obvious inference of that finding is that he was anticipating the emotional reaction as short-term.
22. Dillon LJ in Lonslow v Hennig [1986] 2 FLR 378 pointed out in relation to a judicial finding that "... 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", was not a finding of fact but the expression of a judicial hope for the future.
23. In my opinion, into that category falls the judge's statement that she would adapt to refusal because she has the strength of character so to do. My conclusions are fortified by a final relevant passage when the judge said:

"If, on the other hand, permission is refused, they will be living with mother who will be bitterly disappointed. If mother is unhappy it is possible that this will affect the children adversely. I therefore have to balance the harm which will result from a move against the harm which may result if the children stay in this country. If they remain here and are affected by mother's unhappiness - and I find that mother will do her best not to let that happen - they will at least have the consolation of seeing their father as at present."

24. In relation to that passage again the judge's finding that the mother would do her best to avoid transference of unhappiness is, as Dillon LJ pointed out in the earlier case, not a finding but an expression of judicial hope. Furthermore, it seems to me that the judge has significantly understated the position when he said that it was possible that the mother's unhappiness would affect the children adversely. The balance of authority in this area shows that almost inevitable is the transference of unhappiness from primary carer to child.
25. Before leaving this point, I add that on the other side of the equation the judge seems to over-estimate the father's case when, in addition to two factors of distance and reduction in contact that I have already cited, he added a third consideration, namely:

"... the potential threat to the children's ability to speak English and thus to continue to communicate easily with father."

That seems to me unrealistic, given that these children had been from their earliest utterances brought up bilingually. The security of their English at the age of nearly five and a half is obvious. They are of an age to join in all modern forms of communication from South America to England, both oral and written, and they will be having regular contact with their father. In addition, he is properly anxious to ensure that their education will be in a completely bilingual school. So on this principal area of attack I also find for Miss Hamilton, although I have already expressed my understanding of the judge's approach, given the way in which the case was presented.

26. What, then, is the consequence? I do not think that the judge's findings against the applicant are anywhere near as strong as those in Re B (already cited). Put in their proper context, the judge's finding as to the mother's motivation is relatively discrete and not so unusual, in a parent with a tendency to over-protection, as to be the source of continuing concern.
27. The prospect of retrial is extremely unattractive, given that these parties are not publicly-funded. They have already experienced a two-and-a-half-day trial and now a one-day appeal. If this issue were relitigated in full, there would be considerable further expense. Looking at this case in terms of categorisation, it is the plainest case for a relocation application. The father has recognised that by seeking a prohibited steps order before the parties had even separated. The mother has nursed the hope and intention of returning home ever since separation. To remit for retrial the primary issue seems to me unwarranted, despite Mr Bickerdike's submissions. What the parties have to focus on is the consequences once that primary issue is put out of the arena. There needs to be a very clear definition of the contact order, certainly in the first 12 months and perhaps the first 24 months after removal. That order needs to be very clearly written in this jurisdiction and there needs to be an investigation of ways and means of achieving a mirror order in Buenos Aires. The children's enrolment in the school and the funding of their education in the school needs to be very clearly established. The arrangements for a cessation of the mother's periodical payments within a set period after removal needs to be the subject of a clear order. Perhaps the only area that is easily determined is the cost of travel, given that the mother's proposal to forego her periodical payments and thus produce an annual fund of £6,000 seems to put that potential issue to rest. I would simply direct that the permission to relocate is not to be implemented until all these consequential issues have been clearly established either by negotiation, mediation or order, and that the date of departure must be left undetermined until all the detail has been fixed. If the date of determination is not agreed, or if any of the consequential details are not agreed, they must be decided by a judge of the Harrogate County Court. In conclusion I would grant permission, allow the appeal, grant the mother's application for permission in principle but direct that all consequential issues be remitted to the Harrogate County Court, unless agreed.
28. LADY JUSTICE SMITH: I agree with my Lord that the appeal should be allowed for the reasons given by him. I also agree with the course of action that he has proposed.

(Application granted; appeal allowed; all consequential issues be remitted to the Harrogate County Court, unless agreed; no reporting restrictions).