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 FAMILY DIVISION
TRURO DISTRICT REGISTRY
(HIS HONOUR JUDGE VINCENT)

		Royal Courts of Justice Strand London, WC2
		8th March 2006

1. LORD JUSTICE THORPE: On 14 November 2005, HHJ Vincent sitting in the Truro County Court had to decide quite a difficult case brought by the mother of a nine year old male child born on 30 May 1996, to remove the child permanently to Turkey. The judge considered the application with care and came to the unchallengeable decision that the departure would not be in the child's best interests. Accordingly, he refused the mother's application. However, there was a much more modest alternative application for permission to send the child on a two-week summer holiday to Slovakia to be with his maternal grandmother and maternal first cousin. He was not a stranger to their homeland, nor to them as family members. He has in the past visited Slovakia with his mother and, as the respondent has told us this morning, the experience was a brilliant one for the child. He had three and a half weeks of very happy holiday and he gets on very well with his first cousin and also, of course, with his grandmother.
2. Now there is an interesting point of law which has not been explored in the court below, nor is it necessary for us to explore it, as to whether the framework of the Children Act 1989 and in particular, section 13, allows a foreign holiday for a child if the primary carer simply arranges all the travel and relies on others to care for the child throughout the journey and the resultant holiday. So it is to the mother's credit that the application was brought, as it were out of abundant caution, and no attempt was made to rely on the available argument that it was not necessary for her to seek to the permission of the court. Mr Naish has presented his submissions on the basis that we proceed on the assumption that judicial consent is required in the absence of agreement. Certainly there is no agreement. We have heard from the father, explaining eloquently that he much welcomes the prospect of a Slovakian holiday this summer for the child, providing it is a holiday that he shares with his mother. His anxiety is that the child is too young and that there are inevitable risks in an unaccompanied journey involving a change of plane in Prague, particularly given that the child does not speak the local language.
3. So now I turn to the appeal. The decision of the 14 November was immediately challenged by a notice of application of 23 November, supported by a persuasive skeleton argument that Mr Naish had settled on 21 November. His attack is persuasive because the judge expressed his reason for refusing a two-week unaccompanied summer holiday in Slovakia in 2006 in a single paragraph of his judgment. I have some sympathy for HHJ Vincent because the subsidiary issue only arose contingently upon the refusal of the primary application and, since it was by comparison a very slender issue, I can well understand why he should have dealt with it briefly, but the problem with the paragraph is that he considers essentially only factors negative to the application and does not bring into account factors positive to the application. All he said is:


"Mr S does not trust the mother. He thinks that if [the child] leaves the country to go to Slovakia that might be the last he sees of him, put bluntly. I have not seen enough of this mother to know one way or the other. It is a continuing concern. I am additionally concerned by the fact that the application for removal to Slovakia was made only very recently when viewed in the context of this application overall. The application at least has been issued in the recent past and the juxtaposition of this hearing, the hearing of the permanent removal application and then that application causes me just a modicum of concern. It is sufficient concern when coupled with the fact that [the child] would be going to stay with grandparents who speak, as I understand it, not a word of English and he not a word of Slovak, to lead me to the view that I should not grant that permission and I therefore do not."

4. Now there are difficulties with that paragraph. In the first place, the criticism of the recent issue of the application is, in my judgment, unfounded. This is a mother who is in receipt of public funding and there were obvious cost savings in bringing the contingent issue to the judge at the same moment as the primary issue. Indeed, had those acting for her not taken that convenient course, they might have been open to criticism for wasting public funds. Secondly, in founding himself solely on the question of trust, the judge has not brought into the reckoning the reality that Slovakia is a jurisdiction that has acceded to the Hague Convention, as has Turkey, the other jurisdiction that was the source of the judge's concern. I also would observe that he has looked at the balancing exercise very much through adult eyes. He has looked to the concerns of the father, the trustworthiness of the mother; there does not seem to have been much regard to the outcome through the eyes of the child. He was a child who had had previous happy experiences, happy holidays in Slovakia. He was a child who needed to be kept in regular contact with his Slovakian heritage. The court welfare officer had supported the programme, providing it was limited to two weeks.
5. None of these positives are brought into the balancing exercise and I would unhesitatingly confirm Mr Naish's primary submission, that the decision is not sufficiently reasoned. The judge has either failed to take into account relevant positive factors or alternatively has overemphasised negative factors and accordingly, his decision cannot be upheld. Mr Naish has asked us to substitute our discretion for his and not to remit the case. That has led to some relatively unstructured exchanges between the court, Mr Naish for the mother and Mr S in person.
6. It is quite clear from those exchanges first that the father's current concern is not that the child will be removed and secreted away somewhere in Turkey. His concern is that the child is too young for quite a complicated unaccompanied journey and furthermore that even in the good care of his maternal extended family he would be at risk of harm, since he would be unable to communicate if any emergency befell him. On the other side, we have sought to explore why the child cannot have the additional benefit of his mother's presence on his next visit to Slovakia. After all, that has been the pattern in the past. It is a well-proven success recipe. Why on earth cannot the mother make herself available for two weeks in the summer? The answer to that from her, through Mr Naish, is that she has a responsible job and that because of the illness or pregnancy of a co-worker, she cannot take time off this summer.
7. Well, that does not convince Mr S and it certainly leaves doubts in my mind. So I believe that the proper outcome is to grant permission, to allow the appeal, and to make an order which is permissive only from the summer of 2007. Now that conclusion is founded on recent instruction to Mr Naish that the mother has reconsidered her plans for 2006 and is herself thinking of deferring the first unaccompanied visit to the summer of 2007. That is a material shift in her position given that by summer 2007, the child will be something like 11 and a quarter and thus better able to cope with the anxieties of an unaccompanied flight.
8. Now I would wish to make a plea to the appellant to reconsider her arrangements for 2006. I simply think that if she approaches her employer and says this is a family problem, I have a responsibility as a mother which must take priority over my responsibility as an employee, I really want to take my son to Slovakia this year, the court has not permitted me to send him on his own, the only response that I can make as a parent is to say to you that I have got to have two weeks this summer. That would allow the child to have the great advantage of a Slovakian holiday with his mother in 2006 which would all the better prepare him for the first occasion when an unaccompanied holiday becomes a practicality endorsed by the court.
9. So in short, I would propose that the consent sought by the mother should be deferred in operation to the summer of 2007.
10. LADY JUSTICE SMITH: I agree and have nothing further to add.

Order: Appeal allowed.