England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
ON APPEAL FROM RECORDER HOWE Q.C.
IN THE FAMILY COURT SITTING AT LEEDS

		Royal Courts of Justice Strand, London, WC2A 2LL
		06/02/2018

Mrs Justice Theis DBE:

Introduction

1. This matter was listed for permission to appeal, and, if granted, the appeal to follow in relation to an appeal from the order of Recorder Howe Q.C. dated 14 July 2017. I announced my decision at the end of the hearing on 6 February. I gave permission to appeal and allowed the appeal, with reasons to follow. This judgment sets out the reasons for that decision.
2. These proceedings concern T, who is now 8 years. The appellant, A, is his mother and the respondent, B, his father. The order below refused the mother's application for permission to take T out of the jurisdiction to live with her in Poland. Following that refusal Recorder Howe then determined the child arrangements order, dividing T's time between his parents. The mother seeks to appeal both orders.
3. The mother's grounds of appeal (as set out in Mr Downs' skeleton argument) can be summarised as follows:

(1) and (2) The Recorder failed to properly evaluate the consequences of

refusing the relocation application.

(3) The Recorder failed to give any or sufficient weight to the fact that the

mother had promoted the child's contact with the father.

(4) The Recorder gave undue prominence to the issue that the mother had

medicalised the child's presentation.

(5) The Recorder failed to give sufficient reasons for departing from the

recommendation of the Cafcass officer.

4. The court is extremely grateful to both Mr Downs (who did not appear below) and Ms Allman for their comprehensive written skeleton arguments and their eloquent oral submissions.
5. Before turning to deal with the background to this matter I would like to record the court's dismay at the delay the parties have suffered in having this appeal determined. This has been largely due to the inordinate delay by HMCTS and Ubiqus to deal with the transcripts. A request for the transcription of the judgments and the evidence of two of the witnesses were made on 18 July 2017, the judgements were not made available to the appellant until four months later, on 16 November 2017. There were further difficulties in seeking to obtain the transcripts of the evidence of Dr Harrison and Mr Wood, it took until 23 January 2018 for the court to confirm that those files were corrupted and therefore not available. I will send the chronology of these requests to the FDLJ, so he can bring this issue to the attention of the relevant person.

Relevant Background

6. The parents are both Polish. They are unmarried, were in a relationship between 2004 and 2014 and have lived in England since 2004. Following the breakdown of their relationship there have continued to be disputes between the parents. The Cafcass Family Court Adviser, Mr Woods, described the separation as 'highly acrimonious'.
7. Children Act proceedings commenced by the father after their separation concluded in December 2015 with a shared care arrangement, reflecting what had been happening on the ground since early 2015. The arrangement worked on a two- weekly cycle: T spends Monday to Wednesday and Friday to Monday with the father in week one, and Monday to Wednesday and Friday to Monday with the mother in week two. Handovers take place at school and the school holidays were shared.
8. Both parents have met new partners. The father commenced his relationship in 2013, his partner, X, is a Polish national although they are based here. The mother's relationship with Y started in late 2014, he is based in Poland where he runs a successful business and where his son is based who he sees on a regular basis. Y speaks limited English. Their relationship developed, they intended to get married in the summer of 2017 but that had to be put on hold following the decision to refuse the relocation application in June.
9. The mother applied in September 2016 for permission to remove T from the jurisdiction to live with her and Y in Poland. Both parents filed statements. Mr Wood in his report recommended that permission should be given, with extensive contact arrangements between T and his father, although he tempered that recommendation in his oral evidence depending on the court's findings regarding the mother.
10. The mother had been concerned about T's presentation and behaviour and in April 2016 sought the advice of a psychologist. This was done without informing the father. In these proceedings the court endorsed the instruction of a joint psychologist, Dr Harrison, who reported in May 2017. She concluded that T had suffered some degree of emotional harm and that if the mother's application was granted T would have some distance from the ongoing conflict between his parents but would experience the loss of the relationship he had with his father; although that could be mitigated by ensuring extended contact during the holiday and skype contact in between.
11. Prior to the hearing before Recorder Howe the mother set out her open proposals regarding contact between the father and T if her application was granted. The proposal meant T would spend 10 weeks with his father during school holidays, and two weekends each school term with flexible additional contact when the father was in Poland. The father has a property in Poland and his mother lives there as well.

The hearing before Recorder Howe Q.C.

12. The hearing was listed for three days from 27 – 29 June, the evidence concluded on day two. Recorder Howe heard evidence from both parents, the mother's partner, Dr Harrison and Mr Wood. The draft judgment was circulated on 29 June which set out the court's decision to refuse the mother's application to remove T to Poland. The parties did not attend court on 29 June as they sought time to negotiate the shared care arrangements following the court's decision. A further hearing was fixed on 14 July. The parties attended that hearing when the competing proposals were as follows. The mother sought a two week on/two week off arrangement, as that division in time would enable her to return to Poland when T was not in her care. The father sought an arrangement that split T's time between the parties on a rolling four-day arrangement. The parties were unable to reach agreement, although they agreed the court could determine the arrangements on submissions. The two judgments on 14 July dealt with the shared care arrangements and the mother's application for permission to appeal. Recorder Howe refused permission to appeal and determined that T should spend one week with one parent and one week with the other.
13. In his detailed judgment circulated on 29 June the Recorder sets out the background and his conclusions regarding the factual disputes between the parents. He was critical of both parents for the way they had each behaved in the past, he was particularly critical of the mother in several respects. In relation to an argument between the parents in the school playground he said "Whilst both parents share responsibility for what T saw that day, the primary responsibility rests with the mother. In my judgment both parents should be ashamed of their conduct that afternoon.'' The child had told Dr Harrison that he feels frightened when his parents argue due to all the shouting that occurs, the Recorder concluded having heard both parents give oral evidence that he was "not persuaded that the father was the aggressor and sole perpetrator of aggression in this relationship…both engaged in aggressive and verbally abusive behaviour and, on one occasion at least, their conflicts involved them both striking the other". He concluded T had suffered emotional harm as a result of being exposed to this conflict, and that both parents shared responsibility for that.
14. The Recorder outlined each parent's case in his judgment. In relation to the mother's position he concluded the mother's 'continued presentation of T as an 'ill' child was, in my judgment, deliberately exaggerated in an attempt to support her application' [49] He continued 'In my judgment, the mother has exaggerated and invented problems that T does not have to give weight to the case she sets out in [33] of her statement…'. He accepted Dr Harrison's evidence that T does not need therapy and that the mother has 'quite improperly sought to portray T as a child with poor emotional health to assist in her application to have permission to remove T from the jurisdiction to enable her to pursue her relationship with Y'. He considered at [57] the difficulties the parents had experienced in making arrangements for T were likely to continue if he granted the mother permission to relocate with T. He acknowledged the opportunity for conflict would be lower if T lived in Poland, but that had to be balanced with the loss of time T would have with his father if he lived in Poland.
15. The Recorder took into account the reservations Mr Wood expressed in his oral evidence that if the court considered the mother was not 'genuine and reliable in her commitment' then T should remain here, if the court considered she was genuine and reliable then T should relocate with his mother to Poland as, Mr Woods said, 'That would be beneficial for his mother's care of him and his relationship with his mother. His relationship with his mother is marginally more significant that his relationship with his father'.
16. Turning to the father's case the Recorder noted the father did not want T to go and live in Poland as he feared the mother would not promote his relationship with T and fears the mother will re-assert that T has suffered emotional harm which risks the child seeing himself as a sick child. The father said that even with the mother's contact proposals the closeness of his relationship with T would be at risk and the mother mislead the court in 2015 stating that she had no intention to move to Poland.
17. The Recorder listed the options before him at paragraph [64] as follows:

(a) The current care arrangements remain unchanged;

(b) T remains in England but has less time with the father;

(c) T remains in England and has equal time with both parents but a change of

arrangements so that there are fewer occasions when he transfers from the

care of one parent to the other;

(d) T moves to live with the mother in Poland;

(e) T moves to the primary care of the father and the mother moves to Poland.

18. He confirmed in [65] that as the mother intended to remain in this jurisdiction if her application to relocate was refused he did not need to consider the option of T living with his father (e).
19. Between paragraphs [66] to [75] of the judgment he analyses the pros and cons of each option. Within that analysis he includes an advantage for T of staying here is that he remains in a 'location familiar to him and with friends and family who love him'. He recognises the impact of a move to Poland on T's relationship with his father and the 'devastation' felt by the mother if her application is refused.
20. Between paragraphs [76] and [83] he acknowledges the difficulties in cases such as this and the powerful reasons each parent has for their respective position. He places weight on the fact that a move to Poland would come 'at a high price for his relationship with his father' and 'could only be contemplated if the risk of harm to T by his mother's reaction to the failure of her application, and a consequent impact on the care provided to T, outweighed the harm to be caused to T by the reduced relationship with his father' [78].
21. At paragraph [82] he states as follows: 'I remind myself that T's welfare is my paramount consideration and having assessed all the competing options in the round, I am of the view that it would not be in T's best interests for him to relocate to Poland with his mother. Whilst I recognise that his relationship with his mother is said to be marginally more significant than his relationship with his father and that she will be extremely upset by my decision, I am of the clear view that T is at risk of harm in her care by reason of her willingness to misrepresent T's health and it is only by frequent exposure to T that the father will be able to have the necessary knowledge of T to be able to ensure that T is not used in this way again. Although this is a finely balanced decision, when this risk is taken together with the loss to T of all that is familiar to him in England and the loss of care by his father that he has enjoyed on an equal basis to the care of his mother since around the end of 2014, in my judgment the balance falls in favour of the dismissal of the mother's application for permission to relocate with T to Poland. I agree with Mr Wood that the mother has by her conduct demonstrated a greater degree of hostility towards the father than the father has towards the mother and given the misrepresentations I have found to have occurred, I find that there is a risk that the mother will not promote contact between T and the father in the way that she assures the court she will'.
22. At the hearing on 14 July, following submissions from the parties, the Recorder determined that T's interests would be met by during term time having a week on/week off with each parent, and met during the school holidays by sharing them. He rejected the mother's proposal of two weeks on/two weeks off as that would result in too long a period without T seeing the father (or mother) and the father's rolling four-day proposal as having too much uncertainty which would increase the conflict between the parties.

The grounds of appeal as set out in the appellant's skeleton argument

Grounds (1) and (2) – failing to properly evaluate the consequences of refusing the application to re-locate

23. No challenge is made of the Recorder's analysis of the relevant legal principles, what is criticised is his application of them, namely not properly evaluating the consequences of refusing the application on the mother and thereby T. As Mr Downs put it in his oral submissions there was a failure to properly evaluate the consequences other than record that the mother would be 'extremely upset' by the refusal. What he submits the Recorder did not do is properly evaluate what underpinned that, and how it would impact on T. The evidence was that the mother's living arrangements were going to change. The property she rented with her sister and her son, T's cousin, was going to cease when the sister moved to Wales. T would lose that relationship with his cousin, who Mr Woods described him as being very close to. These changes were not factored in to the Recorder's analysis of the option of remaining here. The mother's position, whereby she would be unable to continue her business or realistically earn any income whilst she was effectively locked into the shared care arrangement was also not specifically factored in. Neither were the legitimate reasons why her partner could not come to this country (his business, his son and his lack of English). Mr Downs submits the Recorder other than recording the mother's 'devastation' or being 'extremely upset' failed to properly analyse what the consequences of refusal were for the mother and how that would impact on T.
24. In her skeleton argument Ms Allman provided a detailed analysis of the Recorder's judgment and how he specifically addressed each of the matters set out in the welfare checklist. She submits he clearly had the relevant considerations in mind in reaching his decision, had the enormous benefit of having been able to hear the evidence of the parties and was not required to set everything out. The court had to view the judgment as a whole.

Ground (3) - failing to take account of the fact that the mother had promoted contact since the parents separated

25. Mr Downs submits the Recorder failed to properly take into account that despite the conflict between the parents the father's contact with T had continued and he failed to give proper weight to the mother's proposals for contact between T and his father if she was given permission to relocate with T. The Recorder, he submits, had also given insufficient weight to the fact that the father travels to Poland regularly and has his own accommodation close to where the mother proposes to live.
26. Ms Allman sets out that the Recorder at paragraph [81] did consider the fact that the contact between T and his father had continued, despite the conflict between the parties. She submits the Recorder was entitled to take into account the practicalities for the father of the contact proposed by the mother if T was living with her in Poland and had in mind the father's connections with Poland

Ground (4) – lack of balance in the conclusion that the mother had medicalised T's presentation

27. Mr Downs submits the Recorder's conclusions that the mother's presentation of T's symptoms was malevolent was contrary to the evidence, and there is no real explanation as to why the Recorder adopted the most negative explanation possible of the reported facts. This was particularly important due to the weight given to this finding. As Mr Downs describes, this was 'pivotal to his [the Recorders] reasoning' at paragraph [81] of his judgment. The judgment, he submits, fails to mention, or weigh in the balance, a number of material facts. First, the mother unreservedly accepted Dr Harrison's conclusions in the position statement filed on her behalf prior to the hearing in June. Second, the mother did not challenge Dr Harrison's conclusions either when Dr Harrison gave evidence or when the mother gave her own evidence. There was no exploration of the fact that the school had reported some deficits in T's attention/ability to follow instructions (as reported to Dr Harrison) and that the mother had sought to obtain advice about this in Poland and had been generally concerned. This is not a case, Mr Downs submits, where the mother had simply invented problems that did not exist, rather she had overstressed or exaggerated them. The Recorder, submits Mr Downs, failed to properly examine whether such behaviour would continue, he failed to factor into his conclusions the mother's acceptance of Dr Harrison's conclusions. It is simply not mentioned or referred to.
28. Ms Allman submits this was a matter of fact the Recorder was fully entitled to reach on the evidence and is more directed at the weight the Recorder gave it. She submits as T's presentation was the factor most relied upon by the mother in support of her application to relocate it was highly relevant for the Recorder to determine whether this basis truly existed. She relied on what Lord Wilson set out in Re B (A Child) [2013] 1 WLR 1911 at paragraphs [40] to [42] which emphasises the need for the appellate court to have regard to the advantage the first instance judge has in seeing the parties and the other witnesses and his consequent evaluation of those facts and the wide ambit of discretion he has in undertaking that task.

Ground (5) – failure to give any cogent reasons for departing from the recommendation of Dr Harrison or Mr Wood

29. Mr Downs did not pursue this ground with any great enthusiasm as the recently agreed note of the oral evidence of Dr Harrison and Mr Woods showed that Mr Woods added some qualification to his recommendation, depending on the courts conclusions regarding the mother.

Discussion and Decision

30. As the Recorder rightly observed this was a difficult and finely balanced case. Relocation applications are among the more complex applications that come before the Family Court. The impact of distance on relationships raises the stakes. In this case if T lived with his mother in Poland it would affect his relationship with his father, and for the mother the impact of the refusal meant she was going to face profound difficulties in maintaining her relationship with her partner or be able to continue to earn a living.
31. Ms Allman is right to remind the court of the care needed when considering an appeal in a case such as this, where the trial judge had the benefit of being able to see and hear the relevant witnesses and the respect the appellate court should pay to the trial judge's evaluation of the facts. In such situations the court should be slow to interfere with the conclusions reached by the trial judge, it is a matter for the trial judge to identify the facts that he considers to be relevant and attribute the weight which he considers appropriate to them (see Moore Bick LJ in K v K [2012] 2 FLR 880 at [86]). This court can only do so where permission to appeal has been given, and it has been established there is a real prospect of an appeal succeeding. An appeal will only succeed if the original decision is wrong, or that there was some serious procedural or other irregularity.
32. I have reached the conclusion that permission to appeal should be given and the appeal should be allowed. Whilst I acknowledge it is necessary to read the judgment as a whole it is still important to understand the underlying rationale for the decision, see Re F (Children) [2016] EWCA Civ 546 per Munby P 'Essentially the judicial task is twofold: to enable the parties to understand why they have won or lost; and to provide sufficient details and analysis to enable an appellate court to decide whether or not the judgment is sustainable' [22].
33. I have reached the conclusion that the appeal should be allowed for the following reasons.
34. In relation to grounds (1) and (2) I am satisfied that the Recorder failed to properly evaluate the impact on the mother and thereby T on the application being refused. Whilst it is right the Recorder did refer to the mother being 'devastated' and 'extremely upset', and at paragraph [59] he said 'I accept the evidence of Mr Wood that the mother's disappointment is likely to have some negative impact on her care for T' but in my judgment he fell into error as he failed to properly consider what lay behind those words. The judgment does not deal with the evidence about the effect of the mother's sister moving, the consequent loss to T of his relationship with his cousin. It does not consider the impact on the mother's ability to earn a living if she remained here, or her inability to pursue her relationship with her partner or factor in her partner's legitimate reasons for being unable to move here. There was no analysis of how these factors would impact on the mother and, in turn, her ability to care for T, both in the short or the long term. Acknowledging the impact with no more does not give any understanding of the reasoning or evaluation that lies behind it and how that has affected the balancing exercise that has been undertaken. This is particularly important when it is clear from paragraph [82] it played such a critical part in the judges reasoning for his conclusion.
35. By not undertaking this analysis his reasoning was, in my judgment, fatally undermined as it did not properly weigh in the balance a relevant consideration that could have had an impact on the overall welfare assessment the court was required to undertake, and, in turn, the ultimate decision reached by the Recorder.
36. Ground (3) concerned the lack of weight given to the fact that despite the difficulties in the parties' relationship the mother had continued to abide by the arrangements for M to see his father. It is right the Recorder did say at paragraph [81] that '…despite the degree of conflict between these parents that T has enjoyed a relationship with both parents and it has not been alleged that either parent has sought to undermine the other in T's mind'. The conclusion that the future risk of the mother not abiding with future contact arrangements failed to properly take this relevant factor into account. It was a factor that supported the mother's position, along with her proposals for contact, that the Recorder failed to properly consider. An important feature of the circumstances of this family was that the paternal family lived in Poland near to where the mother was planning to live with T, and the fact that the father had his own accommodation there as well and was a regular visitor. These factors, in favour of the mother's application, did not feature in the Recorders final analysis and were therefore not given any consideration or weight, as in my judgment they should have been.
37. Ground (4) concerned the lack of balance in reaching the conclusion the Recorder did about the mother regarding the medicalisation of T. I bear in mind the advantage the Recorder had as the fact finder and that an error in the balancing exercise justifies intervention only if it gives rise to a conclusion that the judge's determination was outside the 'generous ambit of reasonable disagreement' (per Lord Wilson in Re B (A Child) [2013] 1 WLR 1911). Nowhere in his reasoning that underpins this finding is there any reference to the acceptance by the mother of Dr Harrison's conclusions or any assessment as to whether this could found a more benign conclusion. The failure to mention this aspect, which was in the mother's favour, meant the adverse conclusion reached against the mother lacked a proper or fair balance of the available evidence. It was clear this finding was the foundation upon which the conclusions regarding risk at paragraph [82] was based. It follows that without that balance the conclusion is undermined, it was a critical feature in the Recorder's reasoning; in particular regarding future risk, as set out in paragraph [70].
38. The cumulative effect of grounds (1) to (4) is that the Recorders reasoning in support of his decision to refuse the application to re-locate and in determining the shared care arrangement cannot stand. Ground (5) was not vigorously pursued by Mr Downs and the note of evidence of Mr Woods demonstrated that there was some qualification to his recommendations in his report, dependent on the Recorder's findings about the mother.
39. The parties agreed that if the appeal is allowed the matter should be remitted for a rehearing. Arrangements have been made for the matter to be listed before a Circuit Judge in two weeks' time. It goes without saying nothing said in this judgment should have any effect on the outcome of the re-hearing, that will be a matter entirely for the trial judge.