Case No: B4/2010/2708
Neutral Citation Number: [2011] EWCA Civ 529
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM OXFORD COUNTY COURT
(HIS HONOUR JUDGE CORRIE)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday, 17th March 2011

Before:

LORD JUSTICE MUMMERY
LORD JUSTICE HUGHES
and
LADY JUSTICE BLACK

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IN THE MATTER OF H (Children)

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The Appellant father appeared in person.

The Respondent did not appear and was not represented.

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Judgment

Lord Justice Hughes:

1.	In this case the judge granted mother’s application to relocate to her family home in Canada with the two children of the family, who are ten and nine.  Father seeks leave to appeal.  His potential grounds of appeal were professionally drafted, but he has appeared here without the assistance of a professional advocate and, if I may so, what he has said to us has put the case of himself and many other unhappily-described “left behind parents” as well as it possibly could be put.  These cases are always extremely difficult for judges, and they are often, as this one was, finely balanced. 

2.	This is a case in which the children enjoy a positively good relationship with their father and his new family which, as it happens, includes children of a similar age, and to whom they are close.  That is a relationship of the children which is bound to be greatly altered if they go to live in Canada.  It will not in any sense be extinguished, but it will certainly thereafter exist on a different level, and it follows that overall it will be of reduced benefit to them.

3.	Looking at the grounds of appeal, subject to one important consideration, I have to say however that I see no prospect of success in many of the complaints which are made.  First, so far as the complaint is made that the judge under-weighed some factors and/or over-weighed others, that is not I am afraid an argument which has any prospect of success; it is the judge’s function to weigh up nicely-balanced competing considerations.  It is not suggested that he left anything out or took into account anything that he should not have done.  

4.	At the forefront of his submissions Mr H put, understandably, the contention that the judge had erred in arriving without a proper factual basis at the conclusion that the likely effect upon mother -- and through her on the children -- of refusal of her application would be detrimental to the children.  It is true that mother had in her original witness statement done her best to foresee the possibility that she might fail in her application, and had asserted the hope that she would, whilst being saddened, be in the position to continue to support the children.  She had said similar things to the CAFCASS Officer in advance of the hearing.  The hearing, however, provided the opportunity for that to be investigated.  It was investigated by the judge, and his conclusion was that, whilst she was doing her best and could be relied upon to do her best, the reality was that a breaking point would be arrived at if mother were obliged to remain here, and that that would in the result have an adverse effect on the children.

5.	Anyone can understand father’s complaint that that was an extremely disappointing finding to him, but it is a finding which the judge is entitled to make.  Indeed, he was required to investigate the question; he would not have been doing his job if he had not.  Having heard mother’s evidence, he was clear in his conclusion; that is the purpose of a hearing of this kind, and I am afraid I do not think that there is any reasonable prospect of this court, without seeing the parties, upsetting that conclusion.  

6.	For the same reason, there is no prospect of success in the contention that the judge was wrong to reach a conclusion which was contrary to the one reached by the CAFCASS Officer in her pre-trial report.  It is trite law that the decision is for the judge and not for the Welfare Officer, and the judge provided clear and rational reasons why he differed from her.  They included what he had heard in the course of the hearing, which I have already dealt with, and they included also the fact that when she came to consider the question afresh in her evidence at the hearing the Welfare Officer expressed the view that if mother were required to remain here that would cause her significant distress, affecting her ability to parent her children.  So again there was a proper basis for the judge’s conclusion, and this court is in a position to interfere only when there is not.

7.	The single remaining point of possible importance which is raised by the Notice of Appeal in this, and in many other applications for permission, is the proper application of the decision of this court in Payne v Payne [2001] 1 FLR 1052.  In effect, two questions arising from that much-discussed decision arise from the proposed grounds of appeal.  

8.	First, was the judge led into inadvertent error about what Payne says; did he misunderstand it to mean that the impact of refusal on mother, and through her on the children, was an overriding factor which trumps all others?  Was that the effect of his (the judge’s) reference at paragraphs 12 and 26 of his judgment to particular extracts from Payne, which are found in paragraphs 26 and 32 of that decision?  Did the judge here, as a result, misdirect himself, when in fact Payne makes it abundantly clear that the only overriding factor in this, as in any other case about the upbringing of children, is that their welfare is paramount; and, if he did make this error, does it vitiate his decision?  

9.	Second, is Payne good law?  Now the second question is, as I know Mr H recognises, not open to anybody in this court.  It might, if it genuinely arises on the facts of their case, give rise to an application to appeal such a case further to the Supreme Court.  It has to be remembered that the enormous strain of proceedings, to which Mr H understandably referred in what he said to us, will for somebody, if that happens, be enormously prolonged.  However, the question is whether it arises in this case.

10.	My clear conclusion is that however persuasively father’s case has been put, and it has, this is not an appeal which has realistic prospects of success upon either of those two questions.  The reasons are these.  

11.	As to the first question, I agree that Payne does not make the impact of refusal on the applicant parent an overriding factor.  What it does is correctly to identify the only overriding factor as the paramountcy of the welfare of the children.  That is the statutory test under section 1(1) of the Children Act 1989.  The impact of refusal on the applicant, and through her on the children, is therefore but one factor.  It is, however, a factor of great importance, inevitably, because the applicant is the primary carer of the children, and if her ability to parent will be affected it will have a direct adverse effect upon them.  However, so also of great importance is the impact of a grant of permission to relocate on the relationship between the children and the other parent; for that, see particularly the carefully balanced statement of those two factors in the judgments in Payne v Payne, especially in that of the President, Dame Elizabeth Butler-Sloss at paragraph 85.

12.	Leaving aside the case where the application fails for want of bona fides, or for want of practicality, neither of which is this case, then in some cases the former factor will tip the balance, because the impact on the children of their primary carer’s ability to parent is likely to be greater than the impact on them of altering the type of contact with the other parent.  In other cases the correct answer will be that, both parents having chosen to make their home here with the children, the interests of those children make it reasonable to expect both of them to remain within the jurisdiction, and thus within such geographical range of each other as to enable the children to maintain their relationships with both of them, so far as that is possible now that they no longer live together.

13.	Payne itself was a clear case of the former consideration tipping the balance.  It may possibly be that it can be tempting for first instance courts to misunderstand Payne and to assume too easily that once the former factor applies, it is, absent want of bona fides or practicality, more or less the end of the matter.  But that is not how I read Payne.  

14.	Even, however, if that is right, the judge clearly did not make the mistake of misreading Payne in this way.  He correctly directed himself that the welfare of the children was the only overriding consideration.  He relied on Payne for the correct proposition that precisely because the welfare of the children is paramount, the impact on their primary carer of the decision that he had to make may well turn out to be the tipping factor.  He by no means ignored the impact on the relationship which the children have with father.  What he had to do was to make a frankly agonising decision on the relative importance of those two factors to the welfare of the children.  He weighed them up in a manner which, for the reasons I have tried to explain, is not open to criticism.  He correctly considered also, as subsidiary factors, the children’s apparent wish to go, qualified as it inevitably was by uncertainty and by the fact that they were in the middle of a disagreement, and also the potential benefits to them of becoming a part of mother’s extended family.

15.	It follows as to the second question that I am clear that even if father were to be successful in persuading the court to revisit Payne, and to replace it with a more explicit statement that all factors are of potentially equal weight, though not necessarily equally weighed in the end, I am afraid unable to see that it would on the facts of this case provide him with a reasonable prospect of success in reversing this judge’s careful balancing of the considerations.

16.	For those reasons, despite Mr H’s persuasive submissions, plainly made from the heart as well as from the law, this is an application I am afraid which I would refuse.

Lady Justice Black: 

17.	Like my Lord, Lord Justice Hughes, I would like to pay tribute to the father’s submissions, in which he has said powerfully all that could possibly be said in support of permission being granted to appeal.  I understand that he is here because of his love of his children and his profound concern for their welfare.  However, I agree with all that my Lord has already said and with his conclusion that permission to appeal has to be refused.

Lord Justice Mummery:

18.	I agree with both judgment, and in particular I would agree with what my Lord has said about the application of the case of Payne.  

Order:  Application refused.