England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM WAKEFIELD COUNTY COURT
(HIS HONOUR JUDGE CLIFFE)

		Royal Courts of Justice Strand, London, WC2A 2LL
		8th February 2007

Lord Justice Thorpe:

1. On 8 September 2006 HHJ Cliffe in the Leeds County Court handed down a reserved judgment on the conclusion of a two-day trial of a mother's application for permission to relocate with the only child of the family to her home state of North Carolina. Her application had been issued on 22 March and the child in question is H, born on 5 January 2001, so she is now six years of age.
2. Her parents met via an Internet chat room in 1998. A relationship developed from that and in January 1999 the mother arrived in this country from the United States and moved in to live with the father. She did not settle here and the relationship was insecure. The birth of their only child did little to cement the relationship and the final separation occurred in January 2002, when the mother left to move in with Mr Walton, who is another Englishman that she had met through an Internet chat room sometime in 1997. After that they had maintained communication and a relationship developed between them in the latter part of 2001.
3. Following their cohabitation in January, they married in May 2002. Perhaps curiously, when they experienced difficulty in their relationship in March 2003 the mother temporarily separated from her husband and sought refuge with H's father for a period of about two weeks. However, that critical period has not been repeated and Mr and Mrs Walton have therefore been living together now for five years and their relationship appears secure.
4. However, the difficulties that the mother first experienced in settling in this jurisdiction have never resolved and in January 2006 she told the father of her plans to go home. In the following month he therefore issued an application under Section 8 of the Children Act 1989 for a prohibited steps order and coupled that with an application for residence. I have already recorded the mother's responsive application and during the preparation of the case it became plain that if her application to relocate failed she would make the best of things here. Consequentially, the father withdrew his application for residence and accordingly the only issue remaining was the very difficult issue of whether or not permission should be granted.
5. The mother's case was classically presented. She had a homesick instability and particularly she missed her twin sister, who is married but childless in North Carolina. The husband's response was the classic response that, over the course of the five years of H's life, a very secure contact pattern had developed. H travels every weekend the 200-odd miles from the Walton home in Yorkshire to the father's home in Bristol. The father has another partner and by that partner he has another daughter who is now approximately one year old. Also in the Bristol area are the paternal grandparents and they have a close attachment to H.
6. So, at the trial the judge heard evidence from Mr and Mrs Walton, from the father, and also from the paternal grandmother. The dismissal of the mother's application resulted in an application for permission and on 22^nd November I directed an oral hearing on notice with appeal to follow if permission is granted. That direction reflected a carefully prepared skeleton argument settled by Miss Eleanor Hamilton QC, who has a great deal of experience in family appeals and perhaps particularly in relocation appeals. We have heard her oral submissions today, implicitly granting her application for permission, since clearly this was a difficult case in the county court and remains a difficult case in this court.
7. Miss Hamilton has marshalled her attack on the judgment below under three main heads. She draws attention to a passage in paragraph 21 of the judgment, in which the judge said:

"This is not a case of a parent wanting to emigrate in order to re-marry or obtain a better job or care for a sick relative; it is a lifestyle change and indeed there is every reason to believe that the mother would be happier in the United States."

8. Miss Hamilton justifiably criticises that statement. Categorisation has been a key in the line of authorities that have developed since the seminal decision of this court in Poel v Poel in 1970, and some categorisation was attempted in the much more recent case of Payne v Payne [2001] 1 FLR 1052. The judge has not, in his categorisation, recognised one of the primary categories, namely the mother who seeks to return to her homeland, usually, as a result of the breakdown of a marriage or a relationship which has brought her within this jurisdiction. Cases that have been categorised as lifestyle change cases are cases in which either a single parent or a family, all of whose ties are with this jurisdiction, seeks to relocate, generally to a southern European jurisdiction, in search of a better quality of life. So, says Miss Hamilton, this is an absolutely fundamental error. The judge has failed to recognise that this is quite simply a natural desire to return to family and homeland. The judge has failed to recognise that H is half-American, and he has generally adopted a very parochial approach.
9. Her second criticism is of the judge's assessment of the mother as being unstable or impetuous, restless or unhappy. If, says Miss Hamilton, any of those characteristics are within her personality they are not relevant because overall she has demonstrated great strengths as a primary carer for H, not only in ensuring for her a secure home but also in building up the beneficial contact regime with the father. The judge should have looked to those strengths, which were the truly relevant ingredients of her personality, and not to have emphasised peripheral characteristics. This is not one of those cases, says Miss Hamilton, in which the stability that the mother has achieved for the child is in any way dependant upon the father's support or contribution. Her strength is her own and she has made it strength for her child.
10. The third criticism advanced by Miss Hamilton is in relation to the judge's assessment of the effect on the mother of refusal. The judge makes relative light of this very important consideration in paragraph 21 of his judgment, and she says that his assessment is simply in defiance of the evidence and of the history. Above all it is in defiance of the fathers concession that:

"She will be devastated if she is refused permission and that could have an impact on the child."

11. Those three criticisms have some foundation and have been very skilfully elaborated by Miss Hamilton. In relation to the first, the judge's erroneous categorisation of the case, I would myself put that in the context of the judgment overall in order to weight the impact of the criticism. Although the judge is validly criticised for an erroneous categorisation, overall it is perfectly apparent that he had understood all the essential elements of the history and of the present factors that bore upon his discretionary conclusion. He was perfectly well aware of the mother's American origins. He was perfectly well aware of her desire to return to the homeland. He made an assessment, having seen and heard her, that the real magnetic factor was her desire to be closer to her twin sister, rather than to the hometown as such and rather than any desire to have the support of her own mother.
12. It was open to the judge to make that assessment of the mother's motivation and, although that does not lead to a categorisation of this as a change of lifestyle case, it persuades me that it would not be principled to interfere with the judge's conclusion simply because he had made an erroneous categorisation.
13. There is of course an attraction in the way that Miss Hamilton has criticised the judge's assessment of the mother's personality. However, I would emphasise that the judge had carefully recorded in paragraph 17, the father's case to the effect that the mother's behaviour in the past had been erratic and impetuous, as the judge continued:

"He described her as 'never the most happy person' and he said that her own sister described the mother as a person who 'will maybe never be happy'."

14. So in paragraph 22 the judge was essentially accepting the father's case when he said:

"As far as the evidence of the mother's personal characteristics are concerned, I find that she is someone who is prone to impulsive behaviour, her two internet relationships and her movement between the father and Mr Walton are evidence of this. She is a restless person. She is not happy at the moment and is not a person who exudes happiness. Her sister's assessment of the mother, which I accept was given to the father, may well be accurate."

He went on to say that:

"Accordingly, he was entitled to have misgivings about whether the mother would truly settle into a happy and stable relationship with Mr Walton and the child in the United States."

15. In my judgment the judge was entitled to make that assessment of the mother's personality, particularly given the insight that was advanced by the father in his evidence. Nor can I accept Miss Hamilton's fall back position that it is essentially irrelevant or peripheral to the outcome, for the judge directly links his assessment to his estimation of the future and makes the point that those personality characteristics entitle him to misgivings about her capacity to settle securely in her homeland.
16. Miss Hamilton's third point that the judge has erroneously assessed the impact of refusal is one that undoubtedly has some validity. It is a fundamentally important part of the judge's task in deciding a finely balanced relocation case. It is often the most important single task that confronts the judge. Curiously in this case the father had made the concession which I have already cited. However seemingly the mother's solicitor's advocate did not seek to take the usual advantage of such a concession, for the judge records:

"The solicitor for the mother said that he shied away from the term devastated on the grounds that it is overused in this context. His judgment was sound."

17. It seems to me that it is difficult to see why, in final submission, great weight was not placed upon the concession, but all that is perhaps secondary since here the judge has made a very clear finding. In paragraph 21 he ultimately finds

"If the mother fails she will be distressed and unhappy in the short term but there is no evidence to support the view that she and Mr Walton will, as a result, provide reduced physical, educational and emotional support to the child in the medium and long term."

18. In the same paragraph there is to be seen a basis for that assessment. For Mr Walton is disabled and his ability to emigrate to the United States depends in part upon how the immigration authorities weigh his serious disabilities, disabilities that result from Air Force service and which are therefore the subject of veteran support here, but perhaps not in the United States.
19. So, the judge, having that factor in mind had earlier said:

"She will be very upset if permission to remove the child is refused but not, on the evidence, to the point of care of the child being compromised. It has, after all, been confirmed that if Mr Walton were turned down on medical grounds then the mother would remain in England and make the best of it. In other words, she would adapt to her disappointment and cope. I am satisfied that she would do the same in the event of this application being unsuccessful."

20. Thus unusually the judge had confirmation that if emigration proved impossible because of objections raised by the US authorities, the mother would make the best of things and cope. He was entitled therefore in my judgment to conclude that if emigration were frustrated by a refusal in the county court then the consequence would be the same.
21. Before concluding this judgment I would add that I draw from observations that the judge made of the mother's evidence, in paragraphs 11 and 12 of his judgment, that he was in a number of respects unimpressed by her assertions. In one instance he concluded that a description of her marital relationship was unduly complacent and advanced for the purpose of the court hearing. Four other instances to be found in paragraphs 11 and 12 suggest to me that the judge did not wholeheartedly trust the mother or trust the mother's evidence, in marked distinction to the great reliance that he clearly placed on the evidence of the father.
22. That is above all one of the functions of the trial process and a case, which may appear very strong on the written evidence, may assume a different complexion when the judge has had the opportunity of seeing the parties. So, although I recognise that this was an application that went to the judge with strong prospects of success, I conclude that he has, by his findings and assessments, sufficiently explained his reasons for refusing and I see no basis upon which this court could interfere in a principled manner. It follows that in my opinion the appeal that we have created by the grant of permission should be dismissed.
23. I would only add that the CAFCASS officer in the course of his written report, although suggesting to the judge that permission should be refused, did add perhaps by way of comfort, in paragraph 12.15:

"In my opinion Mrs Walton's residence in the United Kingdom need not be indefinite, the situation may change in the future at a time when H has an understanding of the issues and is able to express her views about her parents' respective wishes."

I would only echo that and observe that that time will not be long distant.

Lord Justice Thomas:

24. I agree.

Lord Justice Wall:

25. I also agree. The appeal has been advanced, as one would expect, with great skill by Miss Hamilton and I fully recognise as the judge did that these cases are deeply emotional and very difficult for the parties. He records the fact that all three principal protagonists found giving evidence to be an emotional ordeal. These cases are never easy. However, having read the judgment now, several times and listened carefully to everything Miss Hamilton has said, I have come to the very clear view that the order made by the judge was one which was plainly open to him on the evidence and as a matter of discretion and is one with which this court cannot properly interfere.
26. I take that view particularly because, in paragraph 8 of his judgment, the judge gives a detailed analysis of Payne v Payne, as well as referring to the other cases, and makes quite clear the basis upon which he is going to direct himself in approaching the evidence. Having set out the evidence with some considerable care, he then reaches his conclusions in paragraphs 21 to 23 of the judgment:

"21. Having heard the evidence, I conclude that the mother does have a genuine desire to go to the United States which arises from her homesickness and that the proposed practical arrangements in North Carolina for accommodation and schooling would be appropriate although it must be observed that the child will be placed initially with children whose educational development was lower than her own, simply by reason of the fact that children start school in the United States later than they do in England. This is not a case of a parent wanting to emigrate in order to re-marry or obtain a better job or care for a sick relative; it is a lifestyle change and there is indeed every reason to believe that the mother would be happier in the United States. Some of the reasons she gives, however, are unconvincing, for example, her assertions about anti-American feeling. It is clear to me that the real reason for the homesickness arises from the mother's desire to be close to her sister. She will be very upset if permission to remove the child is removed but not, on the evidence, to the point of the care of the child being compromised. It has, after all, been confirmed that if Mr Walton were turned down on medical grounds then the mother would remain in England and make the best of it. In other words, she would adapt to her disappointment and cope. I am satisfied that she will do the same in the event of this application being unsuccessful. Although great weight must be given to her wish to return home, I am not persuaded that this is a case where she will be left unable to care for the child properly, if leave to remove is refused. The solicitor for the mother said that he shied away from the term 'devastated' on the grounds that it is over-used in this context. His judgment was sound. If the mother fails she will be distressed and unhappy in the short-term but there is no evidence to support the view and she and Mr Walton will, as a result, provide reduced physical, educational and emotional support for the child in the medium and long term.

"22. As far as the evidence of the mother's personal characteristics are concerned, I find that she is someone who is prone to impulsive behaviour, her two Internet relationships and her movement between the father and Mr Walton, are evidence of this. She is a restless person. She is not happy at the moment and is not a person who exudes happiness. Her sister's assessment of the mother, which I accept was given to the father, may well be accurate. Of course there can never be a guarantee about the permanence of any relationship but on the evidence the court is entitled to have misgivings about whether the mother could truly settle into a happy and stable relationship with Mr Walton and the child in the United States. As against that, the relationship between the child and her father is an extremely close one and he has shown great commitment to maintaining it. That relationship would inevitably be different if the child moved to the United States and that would cause him considerable anguish but he is genuine when he says he believes it would also be contrary to the interest of the child. I am satisfied that the paternal grandmother and the child are very devoted to each other. Furthermore, the child is now fascinated by the development of her baby half sister and given their respective ages, it is not surprising that this should be so. But if confirmation were needed it comes from the evidence of the father and Mrs Nicholas. If the child were to move to the United States it would to a significant extent remove her from her father, paternal grandmother, from Mrs Nicholas and her two step brothers and also, very importantly, from the life of her sister, the very problem that now so occupies the mother.

"23. Turning then for a moment to the checklist, in my judgment, Mr Barrett was right not to try to elicit the views of a five-year old child, she is simply too young to express any meaningful view on a complex set of circumstances such as the one facing this court. Anything that the child might have said to the mother must be disregarded. All the physical and educational needs of this child are well provided for by both parties and that will continue to be the case whether she remains here or removes to the United States but it is the proposed change to live in the United States, which would almost certainly have an adverse emotional impact on the child, given the overall circumstances and that tips the balance against such a move. The danger is that the full impact would only become truly evident when the child got to the United States but it is clear that at the present time, in England, she is a child who is happy and settled and developing well. She has an unusually close and loving bond with her father, paternal grandmother and baby sister. They are all a very important part of her life and regular face-to-face contact is vital for the child to maintain those relationships and I am satisfied that it would be detrimental to the child to disturb those relationships. The increase in contact with the maternal family would be no substitute. The mother's genuine desire to return to her hometown has prevented her from properly appreciating what the child would lose by that and so whilst giving great weight to the mother's wishes and her proposals for the child, they are, in my judgment in this case, outweighed by the adverse consequences for the child if she does move. It is, of course, the child's interests that must come first and in those circumstances the application must be dismissed."

27. After that the judge went on to consider the question of continuing contact. In my judgment that analysis contained in those paragraphs makes the appropriate findings and follows the guidelines in Payne v Payne. Of course it is always possible, even in a reserved judgment by an experienced circuit judge, to pick holes and to make the odd criticism, but in my view the essential thrust of what the judge decided is fully and appropriately set out in those paragraphs. His assessments of the parents are, in my view, ones which were fully open to him and do not fall into the category of crystal ball-gazing. Having made those assessments the judge had to balance what he twice describes in the judgment, both when he is reciting Payne v Payne and when he is giving his conclusions, as the great weight which must be given to the effect on the mother on a refusal.
28. He then goes on, in my view appropriately, to balance that against the paramount interests of the child in the overall context, and in this case it is striking that there is a powerful body of support in England on the paternal side for the child, which not only includes a half sister and two step brothers, but a clearly devoted paternal grandmother. Having conducted that balance the judge comes to a discretionary conclusion which in my judgment it would be unprincipled for this court to seek to overturn.
29. Ably therefore as the case has been argued, I am satisfied that the judge reached a conclusion which cannot be properly be criticised and I took would grant permission, but dismiss the appeal.

Order: Application granted. Appeal dismissed.