FAMILY DIVISION
ON APPEAL FROM THE FAMILY COURT AT BOURNEMOUTH AND POOLE
Ms Recorder Emma Southern
Strand, London, WC2A 2LL |
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B e f o r e :
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Re: V (Appeal: Relocation) |
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Miss Maria Henty (instructed by Thrings LLP) for the Respondent
Hearing date: 22 August 2024
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Crown Copyright ©
Ms Justice Henke:
i. She permitted the Respondent to relocate the child to a city in the North of England; and
ii. Upon the Respondent moving to that City, varied the time the child should spend with the Appellant to accommodate the Respondent's work pattern. The order was to be varied such that the joint lives with order made by HHJ Simmonds remained a reality. That meant that until the Respondent moved, the child would live with her parents as set out above. Once the Respondent moved the arrangement would be an alternating pattern with week one seeing the child live with the Appellant from Monday at 6pm to Wednesday at 6pm and in week two the child being with the Appellant from Saturday at 6pm until Wednesday at 6pm. That would continue until the child attended school when they would spend every other weekend with the Appellant from Friday after school until Sunday at 2pm.
"14. On the basis of the papers before me, I do not consider that there is any real prospect of a successful appeal on the law that the learned recorder applied. However, I do consider that the applicant has a real prospect of success on the basis that there is a strong argument for saying that she [the judge] erred when making her holistic evaluation. She confined herself to a choice between two options, namely matters remaining as they are or [the child] moving to [the North] with the respondent. There was a third realistic option which it is arguable she [the judge] ought to have considered namely [the child] living with the applicant on the days when the respondent was working in [the North] and then spending time with the respondent on her days off. She failed to do so and it is that failure which gives this appeal a reasonable prospect of success.
15. Accordingly, the applicant is permitted to appeal. Given the Respondent wishes to relocate by August I have given short timescales with the aspiration that this appeal can be heard, if possible, before the end of term."
The Appeal
i. Procedural irregularity in the way the trial was conducted, in particular the curtailment of cross-examination and re-examination on key issues on behalf of the Appellant which breached the Appellant's Article 6 rights.
ii. The Judge wrongly suggested that the question of relocating was a binary decision.
iii. The Judge was wrong to exclude commuting to the Northern City as an available option for the Respondent.
iv. The Judge made two errors of fact when she concluded that (i) the Respondent would likely become 'unemployed' if she did not accept the part-time job in the city in the North of England and (ii) that the Respondent's professional specialism would cause her to move away from the South of England in future to further her career.
v. The Judge was wrong to erroneously find that the Respondent's motivation in making her application was "entirely genuine and not driven by an attempt to limit Father's role in [the child's] life".
vi. The Judge was wrong to determine that the risk of emotional harm to the child from the Respondent's criticism of the father would not increase with a relocation.
vii. Overall, it is said the learned Recorder exceeded the generous ambit within which reasonable disagreement is possible.
The Arguments before Me
i. unable to explore the Respondent's motivation for relocating and the prospects of relocation diminishing the child's relationship with the Appellant given the Respondent's antipathy to the Appellant;
ii. unable to explore whether it would be possible for the Respondent to continue commuting to the Northern City when she took up her permanent post which the Respondent said had a proximity clause; and
iii. unable to explore whether there was a third option which would see the Respondent remaining where she currently lives but staying over in the Northern City for the two days a week she was working there.
1. the Respondent would become unemployed if she did not take the permanent position in the North; and
2. the Respondent would need to move away in the future to pursue her career.
Given the Respondent's profession, the counter argument is that she could work anywhere including those more proximate to her current location.
"It is a fundamental principle, rooted in the common law concept of natural justice and reflected in the ECHR, that a legally valid decision can only spring from a fair hearing. If a hearing is unfair, a judgment cannot stand: Serafin v Malkiewicz [2020] UKSC 23, [2020] 1 WLR 2455 at [49].."
"23. A number of aspects of the right to a fair hearing, guaranteed by common law and Article 6 ECHR , are relevant:
(1) Fairness is case-specific and is to be assessed in relation to the proceedings in their entirety: Ankherl v Switzerland (2001) 32 EHRR 1 at [38].
(2) There must be protection not only from actual unfairness but also from the risk of unfairness: Kanda v Government of the Federation of Malaya [1962] AC 322 (PC) at p.5.
(3) The right of access to the court must be effective, so that the individual has the opportunity to address all material that might affect the court's decision and is placed in a position to call evidence and to cross-examine: Mantovanelli v France (1997) 24 EHRR 370 at [36].
(4) The importance attached to the welfare of the child must not prevent a parent being able effectively to participate in the decision-making process: L v UK [2002] 2 FLR 322 at 332.
(5) The principle of equality of arms entails a reasonable opportunity to present one's case, including one's evidence, in a way that does not place one at a substantial disadvantage to one's opponent: Dombo Beheer BV v The Netherlands (1994) 18 EHRR 213 at [33].
(6) The administration of justice requires not only fairness but the appearance of fairness: R v Leicester City Justices ex p Barrow [1991] 2 QB 260 ; P, C & S v UK [2002] 2 FLR 631 at [91]. However, the misgivings of individuals with regard to the fairness of the proceedings must be capable of being objectively justified: Kraska v Switzerland (1994) 18 EHRR 188 at [32].
(7) The determination must be made within a reasonable time: Article 6 itself."
i. The decision she was being asked to make was binary, namely whether to permit relocation or not; a point the learned Recorder clarified when asked for permission to appeal;
ii. The decision was binary as matter of fact because the Respondent's case was that if she was not allowed to take the child with her, she would not take the position in the North of England. The Respondent was not, as a matter of fact, prepared to contemplate continuing to commute and gave evidence that she could not afford to maintain two bases; and
iii. The judgment demonstrates that the learned Recorder considered whether there was a way this move could be made to work for the child and considered the case as a whole.
The Law on Relocation
"I agree that this appeal should be dismissed for the reasons given by Lady Justice Black. Following comprehensive review of the authorities as set out in her judgment, the proper approach to the whole issue of relocation may be stated in summary as follows:
a) There is no difference in basic approach as between external relocation and internal relocation. The decision in either type of case hinges ultimately on the welfare of the child.
b) The wishes, feelings and interests of the parents and the likely impact of the decision on each of them are of great importance, but in the context of evaluating and determining the welfare of the child.
c) In either type of relocation case, external or internal, a Judge is likely to find helpful some or all of the considerations referred to in Payne v Payne [2001] 1 FLR 1052; but not as a prescriptive blueprint; rather and merely as a checklist of the sort of factors which will or may need to be weighed in the balance when determining which decision would better serve the welfare of the child."
"53. Given the central thread of welfare that runs through all these authorities, and with the reasoning in K v K very much in mind, I would not interpret the cases as imposing a supplementary requirement of exceptionality in internal relocation cases. It is no doubt the case, as a matter of fact, that courts will be resistant to preventing a parent from exercising his or her choice as to where to live in the United Kingdom unless the child's welfare requires it, but that is not because of a rule that such a move can only be prevented in exceptional cases. It is because the welfare analysis leads to that conclusion. One can see from the authorities, and indeed from this case, that the courts are much pre-occupied in relocation cases, whether internal or external, with the practicalities of the child spending time with the other parent or, putting it another way, with seeing if there is a way in which the move can be made to work, thus looking after the interests not only of the child but also of both of his or her parents. Only where it cannot, and the child's welfare requires that the move is prevented, does that happen.
54. Once welfare has been identified as the governing principle in internal relocation cases, there is no reason to differentiate between those cases and external relocation cases. In my view, the approach set out in K v K, Re F (Relocation) [2012] and Re F [2015] should apply equally to internal relocation cases. Clearly, however, the outcome of that approach will depend entirely on the facts of the individual case. At one end of the spectrum, it is not to be expected, for instance, that the court will be likely to impose restrictions on a parent who wishes to move to the next village, or even the next town or some distance across the county, and a parent seeking such a restriction may well get short shrift. At the other end of the spectrum, cases in which a parent wishes to relocate across the world, for example returning to their original home and to their family in Australia or New Zealand, are some of the hardest cases which the courts have to try and require great sensitivity and the utmost care.
55. Before I leave the law, I want to venture a few words on the subject of proportionality. Ryder LJ raised this issue at paragraph 31 of Re F [2015] as follows:
"Finally, a step as significant as the relocation of a child to a foreign jurisdiction where the possibility of a fundamental interference with the relationship between one parent and a child is envisaged requires that the parents' plans be scrutinised and evaluated by reference to the proportionality of the same. There was no question of that before this court, nor could there have been. It is a proposition that has already been decided that international relocation cases engage articles 6 and 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 [ ECHR ]. Whatever earlier obiter observations on and doubts about the applicability of the Convention to these cases that there had been were settled by the Strasbourg court's decision in Glaser v United Kingdom (Case No 32346/96), [2001] 1 FLR 153 at (57) to (65)"
56. Ryder LJ went on to say, at paragraph 32, that:
"it will not be every private law application that requires a proportionality evaluation. Many if not most private law children applications will be more than adequately protected by the domestic statutory regime and the jurisprudence of this court. International relocation applications under section 13 CA 1989 may require a proportionality evaluation because of the likelihood of the severance of the relationship between the child and one of her parents. That evaluation will inevitably focus on the welfare analysis of each of the realistic options and may amount to no more than an acknowledgement that one option is better than the other and that the preferred option represents a proportionate interference in the article 8 ECHR rights of those involved."
57. The present appeal has caused me to consider how a proportionality evaluation would actually work in the context of a relocation case. We are now entirely familiar with the role of proportionality in relation to public law children proceedings, see particularly In the matter of Re B (Care Order: Proportionality: Criterion for Review) [2013] UKSC 33, [2013] 2 FLR 1075. Its impact is upon whether the court sanctions an interference in family life by the state in the guise of the local authority. Interference will not be permitted if it would violate the rights of the child or parents to respect for their family life under Article 8 of the ECHR. Proportionality also has a well established role in contact disputes where, as can be seen notably in Re A (Intractable Contact Dispute: Human Rights Violations) [2013] EWCA Civ 1104, [2014] 1 FLR 1185 the court can have an obligation to ensure that appropriate steps are taken to enable the family tie between parent and child to be maintained. It is not difficult to see how Article 8 influences the outcome in that situation – the court has to strive harder.
58. However, the situation in a relocation case is more problematic. Often, whichever way the decision goes, there will be an interference with the Article 8 rights of a parent. If the father is allowed to take the child to live at the other end of the country, there may be interference with the mother's Article 8 right. If, on the contrary, he is refused permission to move, there may be interference with his Article 8 right. Both parents may be disinclined to back off and middle courses are not often easy to find in these problematic cases. As Ryder LJ implies, the problems may be worse in the international context – Australia is more difficult than another town in the United Kingdom – but even moves within the United Kingdom can be seriously disruptive of established arrangements. Left with a significant interference with Article 8 rights whichever way one turns, what can the court do? What should it do?
59. Nazarenko v Russia (Application No 39438/13) [2015] 2 FLR 728 was put before us as a recent example of the approach of the ECtHR to balancing the rights of parents and children. At paragraph 63, the Court put it this way:
" Article 8 requires that the domestic authorities should strike a fair balance between the interests of the child and those of the parents and that, in the balancing process, primary importance should be attached to the best interests of the child, which, depending on their nature and seriousness, may override those of the parents (see Sahin v. Germany [GC], no. 30943/96, § 66, ECHR 2003-VIII , and Plaza v. Poland , no. 18830/07, § 71, 25 January 2011)."
60. Nobody has suggested that section 1 of the Act (the welfare principle and the welfare checklist) is incompatible with the Strasbourg jurisprudence and, when one looks at the way in which relocation cases are approached in the courts of England and Wales, it seems to me it is an approach which is broadly in line with what is expected by the ECtHR. The interests of the parents are not ignored but, if it is not possible to accommodate everyone's wishes, the best interests of the child dictate the outcome."
My Task
"114. Appellate courts have been repeatedly warned, by recent cases at the highest level, not to interfere with findings of fact by trial judges, unless compelled to do so. This applies not only to findings of primary fact, but also to the evaluation of those facts and to inferences to be drawn from them. The best known of these cases are: Biogen Inc v Medeva plc [1977] RPC1; Piglowska v Piglowski [1999] 1 WLR 1360; Datec Electronics Holdings Ltd v United Parcels Service Ltd [2007] UKHL 23 [2007] 1 WLR 1325; Re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33 [2013] 1 WLR 1911 and most recently and comprehensively McGraddie v McGraddie [2013] UKSC 58 [2013] 1 WLR 2477. These are all decisions either of the House of Lords or of the Supreme Court. The reasons for this approach are many. They include
i) The expertise of a trial judge is in determining what facts are relevant to the legal issues to be decided, and what those facts are if they are disputed.
ii) The trial is not a dress rehearsal. It is the first and last night of the show.
iii) Duplication of the trial judge's role on appeal is a disproportionate use of the limited resources of an appellate court, and will seldom lead to a different outcome in an individual case.
iv) In making his decisions the trial judge will have regard to the whole of the sea of evidence presented to him, whereas an appellate court will only be island hopping.
v) The atmosphere of the courtroom cannot, in any event, be recreated by reference to documents (including transcripts of evidence).
vi) Thus even if it were possible to duplicate the role of the trial judge, it cannot in practice be done.
115. It is also important to have in mind the role of a judgment given after trial. The primary function of a first instance judge is to find facts and identify the crucial legal points and to advance reasons for deciding them in a particular way. He should give his reasons in sufficient detail to show the parties and, if need be, the Court of Appeal the principles on which he has acted and the reasons that have led him to his decision. They need not be elaborate. There is no duty on a judge, in giving his reasons, to deal with every argument presented by counsel in support of his case. His function is to reach conclusions and give reasons to support his view, not to spell out every matter as if summing up to a jury. Nor need he deal at any length with matters that are not disputed. It is sufficient if what he says shows the basis on which he has acted. These are not controversial observations: see Customs and Excise Commissioners v A [2002] EWCA Civ 1039 [2003] Fam 55; Bekoe v Broomes [2005] UKPC 39; Argos Ltd v Office of Fair Trading [2006] EWCA Civ 1318; [2006] UKCLR 1135."
"2. The appeal is therefore an appeal on a pure question of fact. The approach of an appeal court to that kind of appeal is a well-trodden path. It is unnecessary to refer in detail to the many cases that have discussed it; but the following principles are well-settled:
i) An appeal court should not interfere with the trial judge's conclusions on primary facts unless it is satisfied that he was plainly wrong.
ii) The adverb "plainly" does not refer to the degree of confidence felt by the appeal court that it would not have reached the same conclusion as the trial judge. It does not matter, with whatever degree of certainty, that the appeal court considers that it would have reached a different conclusion. What matters is whether the decision under appeal is one that no reasonable judge could have reached.
iii) An appeal court is bound, unless there is compelling reason to the contrary, to assume that the trial judge has taken the whole of the evidence into his consideration. The mere fact that a judge does not mention a specific piece of evidence does not mean that he overlooked it.
iv) The validity of the findings of fact made by a trial judge is not aptly tested by considering whether the judgment presents a balanced account of the evidence. The trial judge must of course consider all the material evidence (although it need not all be discussed in his judgment). The weight which he gives to it is however pre-eminently a matter for him.
v) An appeal court can therefore set aside a judgment on the basis that the judge failed to give the evidence a balanced consideration only if the judge's conclusion was rationally insupportable.
vi) Reasons for judgment will always be capable of having been better expressed. An appeal court should not subject a judgment to narrow textual analysis. Nor should it be picked over or construed as though it was a piece of legislation or a contract."
"The exigencies of daily court room life are such that reasons for judgment will always be capable of having been better expressed. This is particularly true of an unreserved judgment such as the judge gave in this case… These reasons should be read on the assumption that, unless he has demonstrated the contrary, the judge knew how he should perform his functions and which matters he should take into account. This is particularly true when the matters in question are so well known as those specified in section 25(2) [of the Matrimonial Causes Act 1973]. An appellate court should resist the temptation to subvert the principle that they should not substitute their own discretion for that of the Judge by a narrow textual analysis which enables them to claim that he misdirected himself…"
"48. The very clear decision in In re B, albeit by majority, is that the existence of the requirement of necessity and proportionality does not alter the near-universal rule that appeals in England and Wales proceed by way of review rather than by way of re-hearing. It follows that it is not incumbent upon an appellate court to undertake a fresh evaluation for itself of the question of necessity and proportionality. For the reasons clearly stated by, in particular, Lord Neuberger at paras 83-90, such is contrary to principle, as well as undesirable in practice. In particular, if each appellate court were to undertake such a fresh evaluation, it would expose the parties, and the children, to the risk of successive investigations of the same issue, certainly two, and in some cases three or even four times. It would also mean that the appellate court was expected to undertake a task for which it is unsuited, having not heard the evidence or seen the parties for itself. A decision on paper is no substitute for the decision of a judge who has, as Lord Wilson felicitously put it at para 42, had the advantage of a face-to-face, bench-to-witness-box acquaintanceship with those who are under consideration as carers of the child(ren).
49. In a case where the judge has adopted the correct approach to the issue of necessity and proportionality, the appellate court's function is accordingly, as explained in In re B, to review his findings, and to intervene only if it takes the view that he was wrong. In conducting that review, an appellate court will have clearly in mind the advantages that the judge has over any subsequent court - see Lord Wilson in In re B at para 41 and the earlier decision of the House of Lords in Piglowska v Piglowski [1999] UKHL 27; [1999] 1 WLR 1360.
50. In In re B Lord Neuberger, at para 93, essayed a further dissection of the process of deciding whether a judge's decision was wrong. He cautiously prefaced his suggested breakdown of the possible states of mind of an appellate judge with the observation that there was danger in over-analysis. With hindsight, that was a prophetic observation, as this court held in the subsequent case of R (R) v Chief Constable of Greater Manchester Police [2018] UKSC 47; [2018] 1 WLR 4079. Lord Carnwath, giving the judgment of the court, said this at para 63:
"With hindsight, and with great respect, I think Lord Neuberger's warning about the danger of over-analysis was well made. The passage risks adding an unnecessary layer of complication. Further, it seems to focus too much attention on the subjective view of the appellate judges and their degrees of certainty or doubt, rather than on an objective view of the nature and materiality of any perceived error in the reasoning of the trial judge." "
The Hearing before Ms Recorder Southern
"No one's suggesting she cannot purchase a property that won't meet [the child's] needs. I would like to break for lunch soon, a more direct approach in the remainder of cross-examination would be more beneficial for me."
"Why has it been put that the mother can commute? Because mother said if she cannot move with [the child] then she won't go. I have to decide if it is in [the child's] best interests to go, if I decide no then she doesn't need a property in [the Northern City]. We need to explore the realities in this case. It's a binary decision. Reflect on that over lunch. […] I'd like to finish the evidence today."
"I will be interrupting if we are not getting anywhere."
Early in the afternoon, there is a three-way discussion between counsel and the Recorder about the admissibility of the Standard Terms and Conditions attached to the proposed position the Respondent wishes to take. In that context the Recorder states:
"I don't need to see the document. It won't take this case any further. If I say yes, mother will live close to [her intended employment]; if I say no, mother isn't going anywhere. I do not need to consider all options, it is a binary decision."
Cross-examination then resumed with questions about the prospect of the Respondent commuting to her new position. The Recorder interrupts that line of questioning, stating:
"That's not what the mother is saying - commuting is not a point".
The Appellant's counsel responded:
"The Court has to consider all reasonable options and if there are other alternatives; you are not deciding whether mother can move, you are deciding whether [the child] can move."
"A binary decision is one where I'm choosing between a remain or a move. That is the reality of all relocation cases and, in terms of considering all options, there are three options, and I considered them all in terms of remaining in [the South], moving, or indeed commuting."
The Judgment of Recorder Southern
"I am acutely aware of the importance attached to this binary decision that I am required to make. It is binary in that either [the child] relocates or she does not. I have scrutinised the mother's proposals and balanced the benefits and disadvantages for [the child], the effect on the mother of refusing her application against the effect on [the child] of disruption of her relationship with her father, amongst all the factors I have outlined."
She then proceeded to give her decision.
My Decision with My Reasons
"…in reaching this decision it is vital I weigh the advantages and disadvantages of each option holistically and in the round as against each other..."
1. the Respondent would become unemployed if she did not take the permanent position in the North; and
2. the Respondent would need to move away in the future to pursue her career.
"…and, whilst she can secure other employment, there would remain the likelihood that, at some point in the future, Mother would secure another permanent [] role, as has been her intention when the parties were together. With this prospect, there remains a reality that the location of said role would result in a need to move away [from the current location] …"
Those findings were findings open to the learned Recorder on the evidence.