ON APPEAL FROM GLOUCESTER COUNTY COURT
(HIS HONOUR JUDGE HARINGTON)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE MOORE-BICK
LORD JUSTICE ETHERTON
|IN THE MATTER OF E (CHILDREN)|
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Mr Stephen Bellamy QC (instructed by David Billingham & Partners) appeared on behalf of the Respondent father.
Crown Copyright ©
Lord Justice Thorpe:
"Having considered the relevant elements of the welfare checklist and the 'no order' principle, I feel unable to recommend that [the mother] be granted leave to remove [the children] from the jurisdiction."
Manifestly, that moved the case to what might be described as the borderline success area. Indeed in granting permission to appeal, I said:
"So obviously this was a borderline case that could have gone either way, and indeed perhaps an independent observer at the outset would have forecast a success for the father."
So the judge was not bound to accept the recommendation of the Cafcass Officer, but as Ms Wiltshire has correctly submitted, he had to provide cogent reasons for rejecting it.
"It does not seem to me that the Family Court Adviser took into account the quality of the proposals being made by the Mother who is the primary carer of these children. The Mother has clearly gone to some lengths to put together her proposals and to cover every topic and, as was said in Payne v Payne, the reasonable proposals of the parent with the residence order wishing to live abroad carry great weight. In this case it is the reasonable proposals of the parent who has been these children's primary carer throughout their lives and having seen the Mother give her evidence, I am also influenced by (e) which is referred to in Payne v Payne, which is the effect upon the applicant parent and the new family of the child of a refusal to leave. That is very important. The Mother struck me as being a rather lonely individual in some ways and from what I have read and heard in this case I do conclude that her ability to continue to care for these children in the way that she has done hitherto will be adversely affected if I refuse to allow her to move to America in the way that she wishes."
He continues in the two following paragraphs, 16 and 17, to reason his discretionary conclusion to grant the application, but I will not for present purposes cite those or read those paragraphs into this judgment.
"I am of the opinion that [the mother's] plan to move to America with [the children] would have a significant impact upon their relationship with their father. Whilst [the mother's] proposals for contact would offer longer periods of time for the children to spend with their father in the summer, I agree with [the father] that this is unlikely to be achievable."
The problem with that paragraph is that yes, it correctly brings into the scale pan the significant impact that relocation would have upon their relationship with their father, but the report is completely silent in recording or estimating the equally important factor that goes into the other scale pan, namely the effect of refusal upon the applicant mother.
Lord Justice Moore-Bick:
Lord Justice Etherton:
Order: Appeal dismissed