Case No: B4 / 2010 / 2723 
Neutral Citation Number: [2011] EWCA Civ 72
IN THE COURT OF APPEAL  ( CIVIL DIVISION )
ON APPEAL FROM CHELMSFORD COUNTY COURT
(LOWER COURT No: CM10P00096)
(HER HONOUR JUDGE STAITE)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Friday 14th January 2011

LORD JUSTICE WILSON
and
LORD JUSTICE TOULSON

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IN THE MATTER OF C (A Child)

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Mr Michael Bailey (instructed by Hill and Abbott, Chelmsford) appeared on behalf of the Applicant mother.

The Respondent father did not attend and was not represented.

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Judgment

Lord Justice Wilson:

1.	A mother applies for permission to appeal against an order made by Her Honour Judge Staite in the Chelmsford County Court on 1 November 2010.  A direction was made for the application for permission to be presented, on a without notice basis, at a hearing which was later fixed for today.

2.	The judge's order was to refuse the mother's application for permission to remove the child of the parties, namely a girl, I, who was born on 24 April 2003 and is thus now aged seven, to Australia.  In that the mother very properly made clear that, were her application to be refused, she would elect not to go alone to Australia but to continue to reside in England in order to care for I (whom, for the sake of clarity, I had better call "the child"), no issue arose about any possible change of her residence to the home of the father.

3.	The basis of the mother's application was that she had recently married Mr D, who, although English by birth and upbringing, has lived in Australia for 23 years.  The mother argued that, in the light of their marriage, she should be allowed to take the child so that the three of them could reside together in the country in which Mr D has for so long been resident. 

4.	Mrs Nolan, a Cafcass officer, accepted that the argument was finely balanced but in the end recommended to the court that the mother's application should be granted.

5.	The judge conducted the hearing over three days in September and October 2010 prior to the handing down of her judgment on 1 November 2010.  Before her both the mother and the father were represented by counsel. 

6.	The mother is aged 47.  She and the child live in Wickford.  She works as a dispensing technician in a local shop.  By a marriage prior to her relationship with the father, she had two children, namely girls now aged 24 and 21.  The younger girl has recently herself given birth.  Both girls propose to continue to live in England.  Thus the mother's proposal was to put considerable distance not only between the child and the father but between herself and her two adult daughters and indeed her baby grandchild.  Also living in close proximity to her in Essex are a number of other relations, including her mother and a sister. 

7.	The father is aged 45.  He works as a sales manager and lives near Basildon.  He lives alone and has no child other than the child.  

8.	Mr D is aged 46, his previous marriage yielded no child and ended in divorce. Since 2005 he has been employed as a detective sergeant in the police force in South Australia.  As children, the mother and Mr D attended school together in England but they lost touch when he went to Australia or perhaps even before then.  

9.	The mother and the father met in 2001.  There was never any full cohabitation between them, still less marriage.  At that time the father was living in Bethnal Green.  From 2001 he visited the mother's home frequently and had sexual relations with her; but he seldom stayed overnight.  Occasionally she stayed overnight with him.  After the birth of the child, their relationship continued as before.  The father visited the mother's home on most weekday evenings after work but usually returned to his own home later.  Thus he saw the child frequently and developed a relationship with her.  Nevertheless, for about the first three years of her life, the mother was, as Mr Bailey on her behalf stresses, very much her primary carer.

10.	After the child had attained the age of about three, the father became more actively involved in her care; he looked after her on his own when the mother was working and helped the mother to look after her when she was not working. Before the judge there were issues between the parents as to the level of the father's involvement in the child's life, for example in relation to his attendance or otherwise at parent/teacher evenings.  Generally the judge found that the father's version, namely of a greater involvement in such respects, was accurate and that to some extent the mother had misled Mrs Nolan about the level of the father's involvement in the child's life.

11.	In December 2008 the mother and Mr D resumed contact by email and during the next months, albeit that they were living at opposite ends of the world, a relationship developed between them.  In September 2009 Mr D visited England and it was either then or shortly thereafter that he and the mother became engaged to be married.  The father was unaware of the relationship until 27 September 2009.  The judge was critical of the mother for not having informed him about it earlier; I do not fully understand that criticism in that the mother and Mr D had not actually met up again face-to-face until that very month.

12.	On becoming aware of the relationship the father immediately secured a prohibited steps order against the mother's removal of the child to Australia. This appears to have had a provocative effect on the mother out of all reasonable proportion.  Although by then the father had not been given parental responsibility, he had rights, in particular to be heard before any substantial change of the child's residence was made.  But the mother does not seem, even now, to be able to acknowledge that fact. So, even though prior to September 2009 the relationship between the parents had not been particularly good, it degenerated sharply thereafter.

13.	With the court's permission the mother took the child to Australia for a holiday in March 2010.  It was supposed to be for four weeks but, as a result of the volcanic ash from Iceland, their return was delayed for three weeks.  The judge found that the mother had not promoted contact by telephone between the child and the father during those seven weeks as often as might reasonably have been expected.

14.	In June 2010 Mrs Nolan conducted her inquiries.  She observed the child reacting happily both to the mother and, separately, to the father.  The child told her that she was both a bit happy and a bit sad about the possibility of moving to Australia; that she had enjoyed the trip to Australia; but that in her view the best outcome would be for Mr D to come to live with them in England.  Mrs Nolan recorded the proposals which the mother was making, and would later put before the judge, for the father's contact with the child in the event of  a move to Australia, namely that she would bring the child to England each Christmas so that she could stay for two weeks with the father; that, in lieu of continued payment of child maintenance, the father should fund his own travel to and from Australia once a year, presumably in about June/July, in order to spend two weeks with her there; and that electronic communications between them should operate during the intervals.  As the judge was to observe, there was little concentration in Mrs Nolan's report about the mother's attitude towards the father and in particular towards his continued contact with the child.

15.	The mother and Mr D were married in Thailand in August 2010.  Before the judge oral evidence was given by the mother, by one of her daughters, by Mr D, by the father and, by telephone, by Mrs Nolan.  The father made a good impression on the judge.  She found him to be genuine and open and found that, contrary to the evidence of the mother, he had always been committed to the child and had strong feelings for her.  The judge found that his opposition to the mother's proposals stemmed not from spite but from a fear that, were the child to move to Australia, he would not be able to maintain a meaningful relationship with her.

16.	The judge was less impressed by the attitude of the mother.  The judge found that she was a good mother and that her primary motivation in wishing to go to Australia was not to thwart the father but to live with her new husband. Today Mr Bailey says that that important finding was incorporated in parenthesis in the judge's judgment, which indicates that a lesser value was attributed to it than should have been attributed to it: I cannot ascribe any particular significance to the fact of the parenthesis.  The judge also found that the practical arrangements which the mother would be likely to make for the child in Australia would be satisfactory for her.  But she made what appear at first sight to be crucial negative findings about the mother's attitude towards the father, in particular towards his future role in the life of the child.  The judge found that the mother had given no thought to the impact of the move upon the child's relationship with the father.  She observed that she did not trust the mother to do anything which would portray the father in a positive light to the child.  She found that the mother had absolutely no interest in promoting the father's relationship with the child and was far keener that Mr D should step into the father's shoes.  She considered that the mother strongly disliked the father and that her dislike bordered on hatred; and indeed, in that Mr D had himself given evidence that the mother disliked the father intensely and hated him, one would have thought that the judge's findings in that regard could hardly be controversial. 

17.	The judge found that Mr D presented his evidence in a straightforward manner and that he would be able to find work in England if permission to relocate were refused and that he was therefore to decide that the marriage could continue only in a home in England.  Mr D had indeed said in evidence that, in the event of a refusal, he would return to live in England and that, although it would be a bit of a strain, he and the mother would cope.  He had added however that they might move to a distant part of England.  The judge found that last comment to be of concern because she was not persuaded that Mr D's employment prospects, or any other bona fide factor, would be likely to demand a move far away from the father and, for that matter, from so many members of the mother's own family.  In line, however, with Mr D's evidence the judge found that, although the mother would be bitterly disappointed by a refusal, she would, with his love and support, be able to regroup in England, where all her roots were.

18.	Among his various submissions this morning Mr Bailey criticises the finding of the mother's likely bitter disappointment as an inadequate application of the guidance given by Thorpe LJ to judges in the case of Payne v Payne [2001] 1 FLR 1052.  In particular, says Mr Bailey, the judge did not go on to consider the effect of a refusal on the mothers' relationship with the father.  The problem about that argument is that the judge found that, even if the mother was granted her wish to go to Australia, she was so negatively motivated towards the father as to have serious consequences for their relationship.  Thus the regrettable fact that the mother would harbour ill-feelings towards the father was, as it were, a neutral factor in that it would attend the grant of permission to move to Australia as much as a refusal for such permission.  

19.	In my view the crucial findings of the judge were as follows:

"If she were permitted to live in Australia, I find that [Mr D] would assume the role of [the child's] father and that, within a short time, [the child's] relationship with her father would be of little value. In my judgment the mother's attitude towards the father combined with the limited direct contact would not permit a relationship between the father and [the child] to be sustained.  To lose the significant relationship which she has with her father would not, as I find, be in [the child's] present or future interests and would be inimical to her welfare."

The judge recognised that she was departing from the recommendation of Mrs Nolan but considered that, unlike herself who had heard evidence over three days, Mrs Nolan had been unable to perceive the strength of the mother's dislike of the father and the impact thereof on his future relationship with the child in the event of a move to Australia.  She also found, no doubt by reference to the account of the mother which the judge had not altogether accepted, that Mrs Nolan had underestimated the strength of the past and present relationship between the child and the father.

20.	So how does Mr Bailey put the mother's proposed appeal?  His predecessor drafted the skeleton argument very hurriedly and I would certainly not hold against him any unfortunate use of words in that skeleton.  Nevertheless it is helpful for us to remind ourselves that this court would never interfere with a decision of this character on the basis articulated by Mr Bailey's predecessor, namely that "there was more than a possibility that the Court of Appeal would exercise the discretion in a different way".  This court is firm that the discretion is primarily vested in the judge rather than in itself and that its function is one of (handicapped) review.  Certainly however Mr Bailey's predecessor was correct to refer in that skeleton to the leading decision of the House of Lords in that regard, namely G v G (Minors: Custody Appeal) [1985] 1 WLR 647.  

21.	Mr Bailey's predecessor sought to bolster the proposed appeal with fresh evidence and he was obviously preparing to ask us for permission to adduce it. Today, upon inquiry, Mr Bailey has indicated that he does not abandon the aspiration to put this fresh evidence before us and so, in that we had already read it de bene esse, it is appropriate that I should briefly refer to it.  It takes the form of two written statements, one by the mother and one by Mr D, dated 8 December 2010.  It appears that shortly following the judge's decision they went to Australia, without the child; and the contents of their statements, which may well have been signed in Australia, bear all the hallmarks of having been drafted by the mother and Mr D themselves when there.  The statements are testament to the extreme level of upset caused in particular to the mother by the judge's decision.  But there are some very arresting passages, particularly in the statement of the mother.  She says for example that she has wondered what she did in order to make the judge "dislike [her] that much".  The mother might wish to argue (but such would not be fit for inclusion in a further statement in any event) that the judge had entirely failed to identify where the true interests of the child lay; but to accuse the judge of having reached a decision by reference to “dislike” of her is entirely to fail to understand the nature of the exercise upon which the judge was engaged.  In her statement the mother proceeds to deny hating the father but to accept disliking him and she states that the dislike arose on the day on which he obtained the prohibited steps order.  That is why I ventured the observation that the mother still fails to acknowledge that the father was entitled to a voice in relation to future arrangements for the child.  The mother proceeds to complain that the judge's decision has put the child under the control of the court and thus that she herself is under that control and that the lives of herself and Mr D are no longer their own.  Again these feelings, genuinely held and articulated in emotional terms, fail to recognise the need in a civilised state for parents who disagree to have access to an independent arbiter.  Finally she complains that the decision disables her from being the mother when she wants to be both to the child and to her adult daughters.  Quite why she is more able to act as a mother to those daughters when resident in Australia rather than in England is not entirely clear to me.  

22.	What the mother's emotional statement singularly fails to contain (and I should not be misunderstood to be accepting that a statement in this regard would be acceptable by way of fresh evidence in this court in any event) is a challenge to the judge's finding that, were she to take the child to Australia, her attitude to the father would be such as to lead to the effective disintegration of the relationship.  To be fair, such is a matter which, in his statement, Mr D addresses and denies; but, if these statements are a window into how the parents truly feel, it is the absence of comment on that point from the mother which seems to me to be the more significant feature.  At all events, even in the absence of argument on behalf of the father, I take the view that the two statements, reflective of an understandable emotional reaction with which on a human level I greatly sympathise, cannot pass the test for adduction on appeal.

23.	Mr Bailey's predecessor in writing charged the judge, and Mr Bailey today orally echoes the charge, that the judge failed to apply the decision of the court in Payne cited above.  In fact the judge quoted extensively from the decision, including the sequence in which, according to Thorpe LJ, judges should approach issues raised in relocation cases; and then, although the judge also addressed two recent decisions of this court which addressed some of the growing criticisms of that decision, she reminded herself that in the latter decision it had been stressed, as it happens by myself, that the decision in Payne was binding and should be applied.  Notwithstanding the fine efforts of Mr Bailey, I perceive in the judge's address of the relevant circumstances compliance, rather than otherwise, with the principles articulated in Payne.  There is also a suggestion, in particular by Mr Bailey's predecessor, that the judge infringed the rights of the mother and of Mr D to respect for their personal and family life under Article 8 of the ECHR; but the Strasbourg court has made clear that, in an issue such as this, the rights under Article 8 of all three adults have to give way to the rights of the child: Yousef v The Netherlands [2003] 1 FLR 210.  So, as it happens, Article 8 adds nothing to our domestic jurisprudence in this area.

24.	Then Mr Bailey complains of departure from the recommendation of Mrs Nolan.  Departure is not a ground of appeal; only unreasoned (or of course irrational) departure is a ground of appeal.  The judge fully explained her reasons for departure, namely, to put it starkly, that Mrs Nolan had not, for whatever reason, realised that the mother's proposal would probably involve the effective loss for the child of one of her parents.  I have cast the point in dramatic terms; but the point is based on an assessment of the mother's attitude which this court could not gainsay and, when such terms are deployed, they advertise its huge significance for the child.

25.	Then finally Mr Bailey's predecessor set out in his skeleton, and Mr Bailey today adopts some of these points, no less than 13 matters which, so it is said, the judge failed to take into account "adequately or at all".  On analysis all of them are factors which the judge chose expressly to address in her long judgment; so the charge of failing to take them into account “at all” fails.  The charge can only be that she failed to take them “adequately” into account; and, unfortunately for the mother, such is a charge which in principle fails to establish a reason for appellate interference with the decision of a judge entrusted under our system with the task of attributing weight to the various relevant factors.

26.	Notwithstanding the practical and emotional turmoil into which the judge's decision, apparently entirely unexpected, has plunged the mother and Mr D, I can find no arguable ground for appeal and I propose that we should refuse her application for permission.

Lord Justice Toulson:  

27.	I agree.  The Cafcass officer described it as a difficult decision.  The judge described it as a difficult decision.  The circumstances are difficult for all concerned and especially for the mother, who is naturally very upset by the result.  But the fact that it was difficult does not mean that the mother has a real prospect of persuading this court that the decision of the judge, who heard the case and explained her decision in a clear and careful judgment, was wrong.  For the reasons given by Wilson LJ I am not persuaded that there is any ground on which this court could properly come to that conclusion.  So I agree that permission to appeal should be refused.

Order: Application refused