England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE PRINCIPAL REGISTRY
FAMILY DIVISION
(HIS HONOUR JUDGE COLLINS CBE)

		Royal Courts of Justice Strand, London, WC2A 2LL
		11th December 2007

Lord Justice Thorpe:

1. The application before us today concerns the arrangements for the future upbringing of two children: C, who was born on 4 September 1999, and D, born on 25 May 2002. They are truly international children. Their father is French and their mother is German. The parents married in their twenties in the 1990s and the marriage broke down in the autumn of 2006 when they were still in their thirties.
2. The mother, who was the applicant in the court below, comes from an extremely affluent family who have very substantial business interests in her homeland. There she was educated, in the main, and there her early life was spent, albeit that the family has always maintained a holiday home in Switzerland. She completed her university education and worked for a time in one of the two family businesses before coming to London where, in partnership with one of her two sisters, she attempted to set up an upmarket clothing shop in Beauchamp Place. The venture failed and approximately two years after initiation it closed at considerable financial loss to both the sisters. Unfortunately, as well as losing money, they lost their intimate relationship as sisters for a number of years.
3. The father has a background which, although largely French, does have an English ingredient insofar as his parents are partially resident in London for tax reasons. He was employed in the city by a leading American bank at a very substantial salary until he quit to enter the world of pure research at Oxford. He is studying for a doctorate, and he has obviously done very well in his studies. There is every likelihood that he will complete his doctorate with dissertation and viva voce examination next year. Once that is behind him he will have many career choices, both in the sphere of pure medical research and, I suppose, in the world of high finance where he is self-evidently also qualified.
4. There have been proceedings following the breakdown of the marriage, both in relation to the children and in relation to money. Those proceedings have been sadly contentious, even bitter. The father is currently in receipt of a periodical payments order at the rate of £215,000 per annum. His claims have advanced beyond the stage of the FDR appointment. That failed to resolve the financial dispute, and the trial is fixed for hearing sometime next summer. The coexistence of those proceedings has hardly assisted the resolution of plans for the children's future.
5. The father issued an application for a joint residence order and shortly thereafter the mother issued an application for permission to return home with the children to the area from which she comes. Specifically she has sought to substantiate plans for a home on the outskirts of Düsseldorf and for the children to be entered into an international school, similarly on the outskirts of Düsseldorf. It seems that Düsseldorf is some 75 kilometres from Düren, which is the site of the two family businesses. It is the town where her father lives in proximity to the works and it is the town in which the mother grew up as a child.
6. The application led to statements, one way and the other, and of importance was the assessment of a CAFCASS officer, which involved a number of meetings with the children and, of course, with the parents. Her written report was dated 9 August and extended to some 18 pages. Her final paragraph was headed "Recommendation" and simply read:

"If the court is not persuaded to grant [mother] leave to remove [the daughters] from the jurisdiction then I would recommend a shared residence order with the current arrangements to continue."

That of course was a recommendation upon the father's application but there was no recommendation in relation to the key issue, which was the mother's application and how that should be determined.

7. However the recommendation was preceded by two paragraphs under the heading "Conclusion". There the CAFCASS officer certainly offered the judge a steer, for she said:

"For most of their lives, C and D have been accustomed to either living with both parents or spending significant periods of time with them. The ideal in many respects would be for this to continue and [the mother] remaining in this country would of course best meet this. If they stayed in London, the arrangements could continue as they are. This is of course predicated on both parents living in relatively close proximity to one another.

The court might share my view that the issue of removal from the jurisdiction is a complex one to address, particularly as the children have a strong and secure attachment to their father. While [mother] appears to have a coherent plan and seems to believe that she and the girls would have a better life in Germany she perhaps underestimates the emotional impact there might be on the girls of spending less time with their father and paternal relatives. Neither has she perhaps considered the other losses the girls would experience, for example, friendships and the positive aspects of their lifestyle in London. Furthermore, her plans are centred on her family with whom, at times, she has had a fraught relationship."

8. The case then proceeded to trial and the judge had the advantage of oral evidence from the CAFCASS officer, who testified first. Then, inevitably, there was the oral evidence of the parents, augmented by the evidence of one of the mother's two sisters, and there was also evidence from the paternal grandparents, a nanny; and a statement from a friend and former neighbour of the mother.
9. Each of the parents had the best possible representation at the trial. That is not surprising because obviously they can afford the best. So two highly regarded specialist firms of solicitors were involved and two eminent Queen's Counsel -- Mr Cobb, for the mother, and Mr Jackson, for the father. The judge had a considerable experience of the family because he had taken the interlocutory hearings and obviously he had the greatest assistance from counsel, who were able to examine and cross-examine the witnesses with great skill and then to make admirably clear submissions that set out for the judge their respective cases, each emphasising the strength of the points that went for him and equally emphasising the points of criticism mounted against the other case.
10. The judge then had the comparative luxury of a week in which to consider his decision and to express his conclusions in writing. The trial lasted three days, between 19 and 21 September, and judgment was handed down on 28 September. The judge decided the highly contentious issue in favour of the mother, granting her application to relocate. He also granted the father's application for a joint residence order, an issue that was hardly contested. He decided the level of contact following the children's removal. That was an important issue, since obviously it was his responsibility and intention to protect, as best he could, the very important relationship that the father had developed with the children following the separation. The making of a joint residence order was entirely appropriate, given the fact that the children were spending 41% of their time with their father under the generous contact arrangements that had been agreed.
11. Mr Jackson, at the end of the case, had sought to persuade the judge that in the event of the relocation application succeeding, his client should have more than half the holidays; but that submission the judge rejected in the final paragraph of his judgment.
12. An appellant's notice was filed in this court following a refusal of permission by the trial judge. There had been some issue as to how swiftly the move should be accomplished. The judge had decided, I think wisely, that there should be an opportunity for preparation and reflection, and he elected to open the way to removal only at the conclusion of the Michaelmas term. The appellant's notice is thought to have been filed about 18 October, and on 24 October I ordered an oral hearing on notice with appeal to follow if permission granted. It seems that the respondent's solicitors ordered transcripts of the oral evidence at about that date and it seems that they were swiftly produced, probably within some seven days of the request. Unfortunately there was then an interlude in which nice points of detailed correction were discussed between the solicitors and eventually conveyed to the transcribers. So instead of the transcripts being immediately made available and scrutinised for the preparation of the appeal, they were not available to counsel in their final approved form until, I think, 6 December.
13. Accordingly, the only skeleton in support of the appellant's notice is the skeleton settled by Mr Mostyn QC and Mrs Carew Pole as long ago as 12 October. The thrust of that skeleton is to suggest that the leading authority in this court, the case of Payne v Payne [2001] 1 FLR 1052, was now outdated and heavily criticised, both in this jurisdiction and beyond, by judges, practitioners and academics. The decision in Payne v Payne was, I think, available in February 2001, and in the skeleton argument it was suggested that it was antiquated, in that it reflected the view of a past age when joint residence orders would only be made in wholly exceptional circumstances. The essential complaint was that in modern times, when joint residence orders have become commonplace, judges were applying the principles in Payne v Payne, or some judges were applying the principles in Payne v Payne, which were predicated upon a status of sole residence order and sole primary carer. The skeleton, further emphasises two judgments at first instance, where judges of the Family Division have declined to follow the guidelines in Payne on the basis that the case before them was a case in which there was no clear primary carer.
14. That, in my judgment, would be an extremely difficult argument to advance in this court. Clearly this court is bound by the decision in Payne v Payne so long as there is not a self-evident social shift that requires its reconsideration. I am far from persuaded that there has been any social shift and would only emphasise that the decision in the influential case of D v D [2001] 1 FLR 495 was given some months earlier, on 20^th November 2000. In D v D, both the President and Hale LJ emphasised that joint residence orders were certainly not to be labelled as exceptional. That would be an unwarranted gloss on the statute. They were part of the menu of choice for trial judges, and where the circumstances suggested that form of order then it was an order that would be supported by this court. That shift from a position that obtained in the 1990s must have been well in the mind of this court, given that both in Payne and in D v D the presiding judge was the former President, Baroness Butler-Sloss. Furthermore, as Mr Cobb has pointed out in his skeleton argument, an analysis of the facts in Payne v Payne demonstrates that the father there, prior to the judgment in the county court, had been having the children at his home for much the same proportion of the year as the father in this case.
15. So the grounds within the appellant's notice, skilfully settled by counsel, opened with the first, that namely:

"The current principles applicable in relocation cases need to be reviewed, as they place an impermissible gloss on the statute; wrongly prioritise one factor above all others (the impact of refusal on the primary carer); are out of step with modern views of the dynamics of family life and of the importance of co-parenting; are inconsistent with the approach taken in many overseas courts, both common-law and civil, and are the subject of serious public criticism, both popularly and by the legal community."

A submission to that effect, I recognise, might be open in an appeal to the House of Lords, but plainly not at this level; and accordingly I refused permission on that ground whilst granting the limited opportunity on the remaining grounds, 2 to 12.

16. That resulted in a letter from the appellant's solicitors, in which they somewhat retreated from an earlier stated intention to argue for permission on Ground 1 at this oral hearing, something that they were obviously entitled to do, given that the refusal had been only a paper refusal. However the letter of 16^th retreated to the extent of this statement:

"…on reflection [we] think that Ground 1 has perhaps been too strongly stated. In essence we would wish to argue that the current principles as enunciated in Payne v Payne have been much misunderstood and frequently misapplied by lower courts (inasmuch as they appear to deduce from these principles (a), the prioritisation of one factor above all others - the impact of refusal on the primary carer - and (b), the disregard of modern views on the importance of co-parenting), and therefore should be restated in such a way that future misapplications and misunderstandings do not occur."

17. Mr Mostyn, at the very end of his submissions, came to address this point. That he had left it to the end is perhaps a reflection of the difficulties that confronted him in advancing it. A decision of this court stands and requires no correction, so long as the principles enunciated remain good. He was not suggesting that Payne v Payne had been wrongly decided and should therefore be revisited. He was only suggesting that it was being widely misunderstood. That does not seem to me to be an issue that can be in an individual case. In the individual case, all that is in issue is whether the judge has correctly or incorrectly understood and applied the principles. Mr Mostyn sought to contend that there was amongst the practitioners some sort of general perception that district judges at conciliation appointments are applying unfair pressure on respondents to relocation applications. My Lord, Wall LJ, quite properly stopped that line of submission and it is important, I think, to emphasise that applications for permission in this area are commonplace and in view of the importance that the decision has both for the children and for their emotionally distraught parents, we not infrequently grant some sort of oral hearing, generally on notice and generally with appeal to follow.
18. The volume of such applications and hearings is not inconsiderable and only a proportion of those reach the specialist law reports. I see almost all those cases and I certainly have no impression that the principles in Payne are being misunderstood and misapplied. Very often the trial takes place before a circuit judge who may not be a specialist in international family law and may have nothing but a private law ticket to equip him for the task, but cases in which we have had to intervene on the grounds of misdirection are infrequent. Sometimes this court has intervened and allowed an appeal. Sometimes this court has had no hesitation in upholding the decision below as a decision that particularly fell for the judge, who had had the advantage of seeing and hearing the oral evidence and who in the end had had to apply a very difficult balance of a number of competing factors.
19. These cases are particularly traumatic for the parties, since each of them conceives so much as being at stake. They are very, very difficult cases for the trial judges. Often the balance is very fine between grant and refusal. The judge is only too aware of how heavily invested each of the parents is in the outcome for which they contend. The judges are very well aware of how profoundly the decision will affect the future lives of the children and how difficult it will be for the disappointed parent to adjust to the outcome. Despite the difficulties that these cases present, certainly from the perspective of this court, the principles enunciated in Payne v Payne are well understood and have been of evident assistance to trial judges in the difficult task that they perform. That is all that I need to say about the submission with which Mr Mostyn concluded.
20. Perhaps surprisingly Mr Mostyn opened his case by saying that the arrival of the transcripts had revealed that the judge had been guilty of making findings that were directly contrary to the oral evidence. That submission was perhaps forewarned in the grounds to the extent that in grounds 10 and 11 the judge's evaluation of the CAFCASS officer's contribution was strongly criticised, as was his explanation for departing from her advice. Mr Mostyn, having received the transcript last week had prepared very detailed arguments in which he cited, in relation to the evidence of the CAFCASS officer, some 14 or more passages which we had had no opportunity of considering in advance. We had no anticipation that the presentation of this application would depart so radically from what the skeleton argument had led us to expect, and it is unfortunate, given that the transcripts were available at the end of October, that this presentation was not the subject of a supplemental skeleton, so that we would have had the opportunity to analyse all these various passages and then to weigh them against the manner in which the judge dealt with the CAFCASS officer's contribution.
21. There is no doubt that Mr Mostyn's many citations establish that the welfare officer in her oral evidence was expanding on her written report and in some respects fortifying the advice that she was offering the judge. The highlight that Mr Mostyn strongly emphasises comes at the end of Mr Jackson's questioning of the welfare officer when, at page 260, Mr Jackson put to her this leading question:

"Q But in sum…your assessment, as I understand your evidence and your report, is that the losses to the children in a move outweigh the gains?"

A Yes, I think that would be a fair summary."

22. The judge principally dealt with the CAFCASS officer's contribution in paragraph 9 of his judgment when he said:

"[The CAFCASS officer] did not make a clear recommendation, one way or the other. This does not seem to me to be significant in itself. The task of the … officer in a case like this is to furnish the court with as much information as possible and to evaluate that information to enable the court to make its decision. But she clearly saw the potential for the loss to the children exceeding the benefits and she thought that the mother had underestimated the difficulties for the children of a move to Germany. However, she had not considered the wider implications of the friendship the father made in Sardinia. Nobody was aware of this until the father was cross-examined. The Cafcass officer's reservations are to be considered in the context of the whole of the evidence."

In the following paragraph he said:

"I shall have to consider all these issues in what is a difficult balancing exercise. The case for the mother and father was put forcefully and attractively by Mr Cobb and Mr Jackson respectively and there is substance in both cases."

23. Taking those two paragraphs together, the judge's categorisation of the CAFCASS officer as not making a clear recommendation one way or the other is, I think, clearly a reference back to her written report. However as he then recited or summarised her oral evidence in a manner that I conclude was not inadequate or unfair. Of course if you take the single question and answer which I have cited, it could be said to be understated. But taking her evidence as a whole, she was essentially pointing to potential for loss exceeding benefits, since the consequences of the removal are essentially unascertainable, other than by trial and outcome.
24. The judge's brief emphasis on the evidence that she had not heard as to the father's new relationship is criticised by Mr Mostyn, and I well understand the criticism, but it is answered by the judge's following sentence, that the CAFCASS officer's reservations have to be considered in the context of the whole of the evidence. There were many things that were revealed to the judge during the course of the three days that had not been revealed to the CAFCASS officer in the course of her investigations. Whereas the judge's choice of the father's new-found relationship may have been the most significant revelation, it was certainly not the only one. That was, in my opinion, Mr Mostyn's most substantial ground of application.
25. He next criticised the judge for the significance that he had attached to the father's recent relationship with the lady that he met in Sardinia. The evidence, however, was perfectly sufficient to raise all sorts of questions in the judge's mind as to the range of potential developments for the father's future, not only in the father's work life but also in his intimate life, his life of relationship and attachment. The extent to which the holiday friendship, the casual holiday meeting, had developed in the very short space of time between his return from Sardinia and the trial was by no means insignificant or insubstantial, and I am quite satisfied that the judge gave it proper weight and relevance.
26. The next criticism advanced by Mr Mostyn was as to the mother's disaffection with London and what would be the consequence to her of the refusal of the application. The judge dealt with this succinctly in paragraph 15 of his judgment, when he said:

"The mother has no family in this country except the children. Although it was suggested that she had a wide circle of friends in London, I accept her evidence that this is not the case. While she has many acquaintances, there is nobody with whom she can have a close relationship of the kind she craves. I accept her evidence that she spends many hours on the phone each week to [her sister and her best friend]. Although, as Mr Jackson pointed out, she brightened up when she told me she had had a few dates, there was no suggestion that any of them were any more than that. Notwithstanding Mr Jackson's scepticism, I thought the mother had a bleak personal life in London, sustained only by the children."

27. Mr Mostyn's attack on that seems to me to amount to no more than reliance on numerous passages, both in Mr Jackson's cross-examination of the mother and his final submissions, in which he had suggested to her, and then to the judge, that her evidence of isolation in London was either unrealistic or contrived. Of course the judge might have so found if he had derived little confidence from the mother's performance in the witness box, but that was not his impression or his conclusion and I can see nothing in this paragraph that merits the smallest criticism. Mr Mostyn has suggested that it is self-centred in that there is reference to what she needs, what she craves. I can see nothing wrong in that. Clearly if she is starved of close and intimate relationship in London, she is unlikely to be at ease or content with her life. He suggests that it was all self-presentation to advance her case. If that had been the judge's conclusion then no doubt her application would have failed. All these issues are for the judge and the judge made clear findings.
28. Mr Mostyn then suggested that the plans advanced by the mother for relocation to Germany need to be critically examined under six heads: improvement of her social life; quality of life; reintegration with her family; the taking up of work; the promotion of the children's German heritage; and the arrangements that she has made for their entry into the American International School. I do not intend to deal with these submissions in the detail in which they were advanced. Time and again Mr Mostyn makes the points that Mr Jackson made below, which might have found favour with the judge, but which did not.
29. The judge was more than satisfied that her proposals were reasonable, sensible, genuine, and realistic. These are the adjectives that the judge has chosen to describe her plans. He has, equally, commended her as an open and frank witness. It is of course easy to suggest that things may not turn out in Germany as she hopes, as she expects, as she has painted; but all that was for the judge to assess and he was plain in saying that:

"It seems to be eminently reasonable that the mother should seek some satisfaction away from her domestic life also. She is able to be flexible in the circumstances and her approach seems to me to be a reasonable one."

30. It is, overall, a judgment which has impressed me as being both succinct and comprehensive. That is perhaps more easily achieved in a reserved written judgment. It also impresses me as being essentially fair. The judge clearly respected the cases advanced by each of the parents. He commended the father's opposition as sincerely and genuinely based on his desire to play a full part in the lives of the children. He was perfectly satisfied that the proposals advanced by the mother were of such substance and regularity that there was no appreciable risk of the essential nature and quality of the bond between father and children being lost or diminished.
31. Finally I would emphasise that, as the judge had said in paragraph 10, there was substance in both cases. Plainly the judge might have adopted Mr Jackson's analysis of motivation, Mr Jackson's analysis of the likely consequences of granting the application. Plainly he might have attached more significance to the CAFCASS officer's assessment. But that was not how he viewed the case. Were this court to interfere, on the basis that the judge had swum against the tide of the oral evidence or had otherwise arrived at a conclusion that was unsustainable, we would be ignoring the very clear warnings against the substitution of the judgment of this court for the judgment of the trial judge in whom the responsibility is vested.
32. So for all those reasons I would refuse the application for permission.

Lady Justice Arden DBE:

33. I agree. I would also refuse the application.

Lord Justice Wall:

34. I also agree. In my judgment, the judge was right to describe this case, in the paragraph of his judgment cited by Thorpe LJ, as "a difficult balancing exercise". He was also right to find that there was indeed substance in both the cases of the mother and the father.. The corollary of those propositions, however, seems to me obvious. This was the exercise of a judicial discretion, applied to facts as found by the judge, based on his assessment of the parties and applying well-established principles of law.
35. The first question one has to ask oneself, therefore, is did he get the law right? He set out the law clearly in paragraph 11 of his judgment:

"The principal authorities including the welfare checklist set out in section 1 of the Children Act 1989 and Article 8 of the European Convention on Human Rights and Fundamental Freedoms were cited by Baron J. in her judgment in R v R (leave to remove) [2004] EWHC 2572 (Fam) at paragraphs 91 and 92. I hope I may be allowed to treat those paragraphs as read into this judgment without setting them out in extenso. I pay particular regard to the whole judgment of Thorpe LJ in P v P [2001] EWCA Civ 166, while not ignoring the summary at para 85 of the decision by Dame Elizabeth Butler-Sloss P, which Mr Jackson invited me to focus on."

36. That paragraph itself involves substantial citation from previous authority, including paragraph 85 of the judgment of the then President in Payne v Payne:

"In summary I would suggest that the following considerations should be in the forefront of the mind of a judge trying one of these difficult cases. They are not and could not be exclusive of the other important matters which arise in the individual case to be decided. All the relevant factors need to be considered, including the points I make below, so far as they are relevant, and weighed in the balance. The points I make are obvious but in view of the arguments presented to us in this case, it may be worthwhile to repeat them.

(a) The welfare of the child is always paramount.

(b) There is no presumption created by section 13(1)(b) in favour of the applicant parent.

(c) The reasonable proposals of the parent with a residence order wishing to live abroad carry great weight.

(d) Consequently the proposals have to be scrutinised with care and the court needs to be satisfied that there is a genuine motivation for the move and not the intention to bring contact between the child and the other parent to an end.

(e) The effect upon the applicant parent and the new family of the child of a refusal of leave is very important.

(f) The effect upon the child of the denial of contact with the other parent and in some cases his family is very important.

(g) The opportunity for continuing contact between the child and the parent left behind may be very significant."

37. The first two of the seven principles enunciated by the President were that the welfare of the children in question is always paramount -- that, the judge plainly took on board -- and secondly there was no presumption created by section 13(1)(b) in favour of the applicant parent. That, in my judgment, is also something which in my view the judge plainly followed.
38. The criticism that the judge failed to deal adequately with the evidence of the CAFCASS reporting officer (the CRO), is not, in my judgment, sustainable. The CRO herself was acute to point out to the judge that it was for him to determine questions of credibility and motivation; and in paragraph 9 of the judgment, which my Lord has read, the judge, in my view, adequately deals with the CRO's reservations. Indeed, the judge could of course have gone on, as my Lord has observed, and pointed to many other aspects of the evidence of which the CAFCASS officer was unaware. However, in my judgment paragraph 9 is a perfectly adequate way of dealing with the matter.
39. Credibility – self-evidently - was essentially for the judge, as were findings of fact. I feel bound to say that the more Mr Mostyn took us to the evidence, the more it seemed to me that the citations simply reinforced the judge's conclusions and demonstrated that he had a concise and clear view of the case overall. In these circumstances, I am frankly of the view that this is an unarguable application, and I thus have no hesitation in agreeing with Thorpe and Arden LJJ that the application for permission to appeal should be refused.

Order: Application refused