ON APPEAL FROM MIDDLESBOROUGH COUNTY COURT
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE PATTEN
SIR MARK POTTER
| In the Matter of S (Children)
|- and -
Harvey Murray (instructed by Cooper Scott) for the Respondent
Hearing dates: 21st January 2011 and 23rd March 2011
Crown Copyright ©
Sir Mark Potter :
Introduction and Background
"49. In considering the overall picture – from the inception of the proceedings by way of mother's application for Residence Orders, to the forethought given by father in connection with his proposals to move to Canada with the children – I am inclined to err on the side of caution and believe that father's application to move the children should, at this time, be postponed in the knowledge that he can, at a suitable time in the future renew his efforts to have the children live with him.
50. This of course may not be the panacea to the current situation. Postponing matters can been seen as procrastination for, unless arrangements are made sometime in the future when the children's ages are such that … the involvement of the court [is no longer] necessary, the question of age, and understanding, in respect of C will become an issue, and circumstances not dissimilar to the present impasse will arise."
"57. That the court give due weight to the initial application of mother which resulted in the existing Order for Residence.
58. The status quo is satisfactory and in my opinion there is no overwhelming reason demanding a change to the existing arrangements.
59. Nevertheless, evidence may be given to the court that gives assurances as to the stability presently experienced by the children continuing if they were to move to Canada with their father. This is a matter upon which the court will make a judgment which is in the best interest of the children."
(1) a wish not to live with R.L. who was painted as a controlling personality with whom the mother, as well as life in the home, had changed for the worse;
(2) the "dull and depressing" English weather;
(3) a repeated preference for sporting opportunities in Canada;
(4) having missed Canada since having holidayed there.
The text stated that both boys had collaborated in the making of the letter and would like to go to court to express their feelings on the matter. In the event B spoke to the Judge in his room at the hearing, but C did not.
"(1) I have met with B and he has impressed me as an extremely thoughtful and articulate young man.
(2) He is clearly keen on going to Canada. He told me if he was not allowed to go to Canada he would be disappointed, as would C. B, would be angry towards Mum. He would be really upset and he thinks it would distract from his work.
(3) It would be difficult for him to overcome his disappointment. He has thought it through from every angle and it is better for all of us, for C, and my relationship with Mum.
(4) Obviously, I would miss Mum but technology would make things much easier to remain in close contact. I want to come back to see Mum at every opportunity.
(5) He says, sadly, that the dispute engendered by the proceedings has affected his relationship with his mother adversely and he is for saying that a bit of separation would do their relationship some good.
(6) He was telling me, to complete the picture as he did, in relation to the course that, at the moment, he was gliding because the course material is stuff he has already done.
(7) He did say that he had chosen the course, in effect, as a stop gap as he was so convinced that he is going to Canada.
(8) B says didn't know his Canadian family very well, but he sees that as a positive.
(9) B said he wouldn't want to go without C."
The judgment below
"9. I am satisfied that father did not, initially, give sufficient thought to the practical arrangements, accommodation, employment, health care, network of support, education, the sort of important bedrocks of any life wherever it may be pursued. I feel that that was in part due to the fact that he was returning to his roots and was confident that the family's practical needs could readily be met. And in part due to a lack of appreciation of the amount of detail which the court would require rather than being an indication of a careless, cavalier or neglectful attitude to practical arrangements to enable the transition to Canada to be successful.
10. Once he realised what was needed, he has provided the sort of evidence that might have been expected initially and he has provided evidence which has satisfied me that he has received a genuine job offer which will remain open until he is free to go to Canada. He has, I am satisfied, a secure home to go to. The plan is that father and the boys should live with sister, K, who mother, according to Mr Shiel, approves of as a person. The offer is of a home with them and the boys' paternal grandmother in accommodation which is suitable. I am also satisfied from the evidence that has been produced that the schools which have been earmarked for the boys are both of an appropriate standard and are geographically convenient to where it is intended that the boys should be living with their aunt and grandmother. I am also satisfied from the evidence that has been provided, that if B continues with his wish to attend the University of British Columbia, the school that has been identified for him in the Regina area, is one which would be likely, it seems to me, to give him enhanced prospects of getting into that university.
11. What is a sad feature of this case, of course, but inevitable, is that there remains a degree of hostility between these parents and a patent lack of trust between them, a lack of trust which it has to be recognised that father has done nothing to dispel. Father, I am satisfied, felt bitter, understandably, about his wife's affair, with her present boyfriend, but, he tells me, that he has now got over that. However I do not find that father's principal or primary motive was or is to hurt mother. But I am satisfied that he knew that it would and indeed knows that it does and I suspect that, whilst that not being his motive, it causes him no particular regret. As far as father's attitude towards the boys' wishes is concerned, clearly the boys have set their hearts on going to Canada, and perhaps it can be said that he has done nothing to manage, or control the boys' expectations.
12. What I have to decide is what is in the best interests of these two boys. Even though their ages and educational circumstances are different, I treat them as a unit. That is what they want me to do, it is what the parents want me to do and it is what Mr Shiel wants me to do. I am satisfied that to do otherwise would cause real problems and would not be right."
"14. What makes this case unusual is the age of the children and the strength of their views and I have had particular regard to the views of the boys, expressed so vehemently in a joint letter, and also by B to me in person. I have been able to form my own view about B. C is clearly a sensible and intelligent boy, he is doing well at school and his mother described him as logical in his thinking. In addition to the views of the boys, I obviously have had to have appropriate regard to the effects on them and on all concerned of my refusing this application and of my granting it.
15. I met B and we talked in my room for some three quarters of an hour. I had in front of me the joint letter that the boys had composed. B impressed me as a mature thoughtful and articulate young man. He is a credit to both his parents, but more particularly it has to be said to his mother because she has been the primary carer of him. He told me that he had wanted to go and live in Canada, ever since he realised that he was Canadian. In his report, Mr Shiel has written that he found B's commitment to Canada somewhat wanting. I have to say that that was not my impression. I did not find B's commitment to going to Canada to be anything other than wholehearted, determined and convincing. He told me that he had thought things through from every angle and he was convinced that it would be better for all of them, for all members of the family, if I was to grant this application, without in any way suggesting that he did not love his mother. He said to me that he felt closer to his dad than his mum as he also thought, did C. It was because, as I interpreted what he was telling me, that they had more shared interests and also I suspect, due in no small part to the fact that whereas mother has had to deal with the day to day drudgery, if I can put it like that, time with father is probably viewed as more of fun time.
16. He says that if he was not allowed to go to Canada, he would be very disappointed. He would feel angry with his mother and he felt that C would too. He added:
"I'd be really upset and I feel that it would be difficult for me to overcome my disappointment. I think it would affect my work at school, and would distract me from it".
It would also, he thought, adversely affect his relationship with his mother. He said that he felt, and he expressed this with sadness, that the current dispute had already had a damaging effect on his relationship with his mother He felt that a bit of separation would do the relationship good."
(a) a concern that the continuity of their education would be temporarily disrupted;
(b) they might not settle as readily as the father believed they would;
(c) the family support network would not be as strong as it is in England or as the father believes it to be;
(d) that their relationship with their mother would be adversely affected by losing the advantage of the day-to-day care which she has provided for them. In this last respect the judge stated that it would be more of a loss to C, because of his younger age.
(a) It was something that B had wished to do for years and would assist him with his intention to go to the University of British Columbia and make his future in Canada;
(b) Both boys would approach their future with enthusiasm;
(c) They would not be entering the unknown, but rather going to a country and an area of the country with which they were familiar to live among blood relations and people and places known to their father and, to some extent, to themselves. On the other hand, if the application were refused, the judge was concerned their disappointment would be such that B might switch off and become disheartened and not do himself justice in his "A" levels.
(d) C, too, might become disheartened, dispirited and apathetic towards his schooling and he might, in his disappointment, become a difficult teenager. Although B only had 18 months' time to wait until he had finished his "A" levels, so far as C was concerned, if he were similarly required to wait, it would seem a "lifetime away". Further, if the application were refused, it could well be that the disappointment and resentment felt by the boys would permanently and irrevocably damage their relationship with their mother.
"20. The other fear that I have if I was to refuse the application would be the effect that it would have on their relationship with their mother. It could be, but obviously I am conscious that all will be done to prevent this happening, but it could be in their disappointment that the relationship with mother is permanently and irrevocably damaged. I should observe at this stage that their relationship with the gentleman with whom mother is living, is a lukewarm one.
21. The advantages of refusing the application would be the continuation of the status quo, they being looked after by their mother in a setting and in a routine with which they are familiar, and also having regular contact with their father as to date. This regime has clearly worked to date because they have been well brought up and done well at school. But this would only be an advantage to them if they were able to overcome their disappointment, able to put to one side all thoughts of living in Canada and able to continue as if nothing had happened. Given the strength of feeling expressed both in the boys' joint letter and by B directly to me, that would not be easy and the likely scale of their disappointment could have the unfortunate and long lasting repercussions to which I have referred.
22. For B to have to wait a further 18 months before being able to go off his own bat, and for C to have his wishes put on hold as it would appear to him for an endless period of time, could, in my judgment, demoralise them. Having given this matter considerable thought, I have come to the conclusion that the advantages of allowing this application outweigh the risks involved and therefore I ought to grant permission for the boys to be removed from the jurisdiction…."
The grounds of appeal
(a) The father had given no sufficient thought to the practical arrangements for accommodation, employment, health, network of support and education in respect of the children on taking up residence in Canada;
(b) He had involved both children in subterfuge in concealing from the mother his intentions to move with them to Canada;
(c) Neither child had any obvious or real connection with Canada and both were plainly influenced by the father;
(d) In the course of conversation with the CAFCASS officer C had disassociated himself from significant parts of the "joint" letter concerning their wishes and feelings;
(e) It was the view of the CAFCASS officer that there was no overwhelming reason demanding a change in the existing arrangements for the children, there being no positive objective reason or benefit to the children in leaving the jurisdiction other than their own beliefs that Canada might offer a better lifestyle.
"It is still early, but I believe we will both start to miss each other as we are not accustomed to being separate for a long period of time"
"If keeping us together is the best thing to do, I am not even considering returning to England, so the only logical outcome I see is to allow C to leave and move with our father to Canada."
"C has made no such fuss – he does not want to be drawn into any conversation about Canada. When he realised how upset I was with the decision he said "don't think about it Mum – that's what I do."
In dealing with C's subsequent behaviour, the mother states that:
"Following the submission of the Appeal, C did not display any negative behaviour or say anything negative about the turn of events. He just continued to be a happy boy and indeed immersed himself in his schoolwork as if no change was on the horizon. The further few months before a final decision was made appeared to be a relief to him and he visibly relaxed. In my opinion these are not the reactions of a bitterly disappointed boy whose dreams had been delayed."
This state of mind is also reflected in his school reports (see further below).
"19…..C is not making any preparations to leave his home. In fact he removed books and toys that he had kept at his father's and brought them home to his own room here. C talks about summer holidays, weekends at Dad's, homework and school. He wants life to carry on as normal. He's recently taken up a new hobby and started to become a collector of old pennies…. I submit these are not the actions of a child anticipating moving on to another country."
"20. C is enjoying school and working hard and has not changed at all in that regard. He is conscientious and does his homework when required. C is proud of the fact that he has 100% attendance. In fact he was insistent that his CAFCASS interviews did not interfere with his attendance record or a forthcoming German test. He never mentions the possibility of going to school in Canada and obviously is committed to Stainthorpe School."
"39. In conclusion C is a very special boy. He is thoughtful, funny, kind and considerate. It is no surprise to me that he took the decision to effectively not choose between his parents, as I believe this is a decision that would have had a significant psychological effect upon him. It is however my view that C wishes to remain with me at his home in Stainthorp. I do not question that he loves his brother but at present I do not believe he misses him significantly.
B and C are two very different boys with a significant age gap of 4½ years. B is nearing the end of his secondary education about to enter University life; C is just beginning his secondary education. B I believe is now old enough to make his own decisions, and that is why I do not pursue an Appeal in regard to B. C however is only 12 years old and very different to his brother and I believe that it is in the best interests of C that he remains in my care. He will maintain contact with his brother by email, skype and the like and will also have direct contact with him when I do. I did not want to separate my sons but the reality of the matter is that they are now separated and I believe that this has not been detrimental to C and I believe it is in the best interests of C that he remains with me in my care."
"55. It hardly demands comment that this has been, and continues to be, an extremely difficult matter which has provoked emotion on the part of those persons involved…
56. To all intents and appearances C endures his situation with the fortitude that can be expected from a twelve year old boy. Without seeking to be emphatic he is, as has been indicated previously, the proverbial "piggy in the middle.
57. The difference in ages between C and his brother B is not huge but conversely it is not an age gap which can be called close. Their present ages are such that B will, in all probability, be seeking his own way. He is the more mature of the boys and has the prospect of senior school, university and girlfriends. Whilst it is a world that might not be totally unknown to C the possibility exists that the gap and experiences between the brothers will widen. The principle that siblings should be together whenever possible is recognised, however, in this instance there has been something of a fait accompli.
58. C has indicated that he does not miss his brother although he has the wisdom to acknowledge that this could change in the future.
59. Sibling relationships are important and if C were to go to Canada he would be re-united with B; however, that reunification could be somewhat transitory.
60. Juxtapose the sibling relationship [with] the parental bond and, whilst there is no suggestion whatsoever that father cannot meet C's needs, his mother, because she has been the main carer, has been able to demonstrate her ability in this respect.
61. There is every indication that C is settled at school and the prognosis, educationally is excellent. He experiences stability within his mother's home. His developmental needs appear to be met and it is difficult to be explicit as to what benefits C would gain should he go to live in Canada…
Having considered the relevant elements of the welfare checklist and the "no order" principle, I recommend:
66. I am inclined to believe that there is no overpowering reason why C should not remain in his mother's care. He is the "piggy in the middle" and does not, in common with so many other children who find themselves in similar circumstances, wish to be drawn deeper into his parents' dispute, nor does he wish to make abundantly clear his wishes for fear of offending either his mother or father.
67. His loyalty is torn and the expectation that he might make a decision has proven to be a course he does not wish to take. It is important that C does not feel that he had to make a decision between his mother and his father. He expects someone else to make the "right decision" on his behalf.
68. It could be said that he has chosen to "sit on the fence" and that from his point of view, this is a sensible decision. The pressure upon children when a marriage has broken down is quite sufficient and making a decision in the present circumstances is something C has decided to avoid."
Lord Justice Patten :
Lord Justice Lloyd :