England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM TRURO COUNTY COURT
(HIS HONOUR JUDGE VINCENT)

		Royal Courts of Justice Strand, London, WC2A 2LL
		15th January 2013

Lady Justice Black:

1. Permission to appeal is sought in relation to a decision of HHJ Vincent of 30 August 2012 in relation to a little girl, who is five, who I will simply call E for the purposes of this judgment.
2. I need to go back into the history a little bit to explain the order that the judge made in August.
3. By a shared residence order made on 13 December 2011 he placed E in the care of both her mother and her father. The time that she spent with each of her parents was fixed, however, by the judge. She was to be with her father from Thursday to Saturday, and then she was to spend the rest of the time with her mother.
4. The shared residence order came at the end of a hearing in which the judge had also considered and refused the mother's application to relocate with E permanently to Australia where she, the mother, has family. Indeed, she is half Australian. The mother had also advanced a fallback plan which was to move from Cornwall where both parents are based to the Peak District. The judge made a finding that the motivation for the mother's application to move had been the father's application for a residence order and a contact order in his favour. The judge concluded that a major part of the mother's motivation in seeking to move to Australia was to evade the attentions of the father, and the judge felt that he had no confidence that contact would be promoted between E and her father if the mother were to emigrate. He also felt that the mother's planning with her new partner for her moves had taken no account of E's relationship with the father and with his family.
5. His reason for making a shared residence order to the parents, rather than a sole residence order to the mother, was a concern that a sole residence order to the mother would be seen by the mother as empowering her and would cause her to avoid consulting with the father. The judge included a recital in the order. The order of 13 December 2011 records this:

"And Upon the Court recording that this order is made on the premise that the Respondent mother will either remain in Cornwall or will move to a location outside Cornwall which makes division of time specified in the order workable."

6. Within three months of that judgment the mother had moved with E to a place which was in fact just within the border of Cornwall but geographically separated considerably from the place where the father lived. She had done so without consulting or telling the father. The move had been immediately preceded by an application by the father for residence in his favour on the basis that the shared residence order was not working out because there were problems over the mother being late at handovers and keeping E from him saying that she was ill when the father felt that she was not.
7. The judge in August of last year therefore had a hearing. He heard from both of the parents and also from the CAFCASS officer who had been required by a district judge to carry out some investigations into the current situation and report. He made further findings as a result of that hearing and he concluded on the basis of his view of the evidence that he had heard and the findings that he had made that the division of time of E between her parents should reverse, in that it should become an arrangement whereby she was predominantly based with her father rather than her mother and she should go to school near her father's home. I understand that by this time the time that E had in fact been spending with her father was from Wednesday to Saturday because of the greater geographical problems about where the parties were now living.
8. It is the order which reversed the living arrangements for E that the mother now wants to appeal.
9. Two of her proposed grounds of appeal concern the judge's approach to the law. Firstly she argues that he gave insufficient weight to the case law on a change of a child's primary carer which, it is said, should only be contemplated in an extreme case; and, secondly, that he gave insufficient weight to the case law on moving with a child within the jurisdiction (that is to say what lawyers sometimes refer to as internal relocation) which, it is argued, should only be prevented in exceptional circumstances. The argument advanced is that had the mother applied to move, which she probably did not have to do given the state of the legal orders with regard to the parents at that time, the case law may well have dictated that that application should be granted.
10. The remaining grounds advanced by way of a proposed appeal relate to fact and discretion. Here the argument is that the judge failed to give sufficient weight to E's views and to those of the CAFCASS officer who was recommending that there should be a sole residence order to the mother. The CAFCASS officer said that the move to the primary care of the father would cause E emotional harm, and she was, as I have said, recommending a residence order to the mother. The argument advanced by way of a proposed appeal is that the impact on E, who it is said would have wished to remain predominantly in the care of her mother, needed to be taken into account and that the judge failed to do that properly in his judgment.
11. There is a supplementary argument upon which Ms Flexman has not really focussed today which relates to the form of the order of the 13 December 2011 and in particular the preamble which I read out earlier on in giving this judgment. It is argued that the mother did not (as is the fact) move outside Cornwall and therefore she was not in fact in breach of the preamble of the order. It is argued that as the mother was not disentitled from moving within Cornwall by the preamble, it was disproportionate of the judge to treat her as if she had breached the order and he acted in a way that was disproportionate to what she had done.
12. I considered the arguments that I have just gone through when I saw this matter on paper. They were, of course, amplified in the skeleton argument which was available at that time. Since then I have had the advantage of a statement in accordance with practice direction 52A which has been supplied by Ms Flexman who now represents the mother, and of oral argument which has been very helpful today. However, I am afraid that I remain of the view that there is no real prospect of success for an appeal in this case. I should deal, I think, particularly with the question of the CAFCASS officer's evidence because it is there that Ms Flexman focusses her attentions both in the statement in accordance with practice direction 52A and in the arguments.
13. She argues that there were aspects of the CAFCASS officer's evidence that were not undermined by the flaws that the judge found in that officer's evidence, in particular that she gave evidence about the impact that she thought a change of living arrangements would have on E, not going quite so far as emotional harm, because the judge dealt with that aspect of the evidence specifically. That aspect of her evidence was, it is said, based on her observation of E and how she had been whilst with her mother in the presence of the CAFCASS officer, and also upon the CAFCASS officer's knowledge of the case generally. It is also argued that the judge should have divided up the CAFCASS officer's evidence, discarding those matters which he felt had been affected by the criticisms that he made of her evidence, and then looking at what remained, and that what remained would have included not just the question of the impact of a move on the child but also the CAFCASS officer's fundamental recommendation, which was for a sole residence order in the mother's favour.
14. In argument I discussed with Ms Flexman that the judge had been unimpressed with the CAFCASS officer because he felt that she had failed to take account of his finding that the mother was motivated by a wish to remove E from the father's society, and it seems to me that the judge was entitled to take the view that the CAFCASS officer's recommendation could not really be divorced from that failure and that he was entitled to place little reliance for that reason on what she had said about that particular point.
15. As to the impact on the child, it is not fair to say that the judge ignored the CAFCASS officer's evidence with regard to that. The matter is dealt with relatively shortly, but it is dealt with in paragraph 19 of the judge's judgment. He records there that the CAFCASS officer thinks:

"…that she would miss her mother more than she would miss her father if the arrangement went to a split of time involving absence between alternate weekends. Frankly not very convincingly, she was pressed into saying that that would be emotionally harmful to [E]."

16. The judge, it seems to me, had therefore got in his mind the CAFCASS officer's evidence with regard to what she had seen in E on her visit. What the CAFCASS officer had not done -- and this is not mentioned by the judge but I observe it -- was to visit the father as well. The CAFCASS officer therefore had no control evidence as to how E was with her father. She could not see whether the child was for example equally secure in both parents' care and would have shown the same sort of distress if the idea had been that she should leave her father for a period of time. The CAFCASS officer did record in her report a feature of the case which is very much to the credit of the mother and the father and that is that E is developing well in all areas of her life. It must be taken into account that that was in the context of E spending a significant amount of time each week in the care of her father.
17. It seems to me that the judge was entitled to take matters such as that into account and that he in fact explained sufficiently why it was that he was not impressed by the CAFCASS officer's evidence and why, in his balance of the various factors, he would come down in favour of a move to the primary care of her father. I appreciate that he did not deal with the question of upset specifically when he came to look at the welfare checklist, although he did clearly recognise that it would be an upheaval because he referred to that in paragraph 26 of his judgment, but it seems to me that in the light of what he had already said about the CAFCASS officer he was entitled to deal with the matter in the way that he did, not reverting at that stage to the question of emotional harm.
18. A central feature in his assessment was, it is clear, that he could not rely on the mother to promote the relationship with E's father. That was a finding he was entitled to make, and it was bound to influence the decision that he took overall when balancing the factors. This was not just a case about relocation by any means, and it had to be considered in the light of E's welfare overall. It was not just a case of looking to see whether exceptionally the mother should be prevented from moving from one place to another within the jurisdiction of this court. The judge had already set out what he expected of the parties in that regard in the preamble to the order that he made in 2011, and it was clear what his intentions were with regard to that; that is, that the shared residence order arrangements would remain easily workable, and the fact that the mother did not move outside the boundary of Cornwall was irrelevant to that spirit of the preamble.
19. I do not propose to say anymore about the detail of the other grounds but I think it will be apparent that I have considered them and I do not consider that they take the matter any further. So permission to appeal is refused.

Order: Application refused