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IN
THE SUPREME COURT OF JUDICATURE
PRO
FORMA
IN
THE COURT OF APPEAL (CIVIL DIVISION)
ON
APPEAL FROM COLCHESTER COUNTY COURT
(HIS
HONOUR JUDGE BRANDT
)
Royal
Courts of Justice
Strand
London
WC2
Friday,
30 July 1999
B
e f o r e:
LORD
JUSTICE THORPE
SIR
OLIVER POPPLEWELL
-
- - - - -
C
& M (CHILDREN)
-
- - - - -
(Computer
Aided Transcript of the Palantype Notes of
Smith
Bernal Reporting Limited, 180 Fleet Street,
London
EC4A 2HD
Tel:
0171 421 4040
Official
Shorthand Writers to the Court)
-
- - - - -
MISS
A HODES
(Instructed by Sparling, Benham & Brough, 3 West Stockwell St., Colchester)
appeared on behalf of the Father 1.
MR
J WALTERS
(Instructed by Powis & Co., Essex, CO15 1RU) appeared on behalf of Father 2.
MISS
R DEGAL
(Instructed by Messrs Hughes Powell, Essex, CO14 8ED) appeared on behalf of the
Respondent
-
- - - - -
J
U D G M E N T
(As
approved by the Court
)
-
- - - - -
©Crown
Copyright
LORD
JUSTICE THORPE: This appeal largely concerns a mother, M. O., who came to the
United Kingdom from the Republic of Ireland in 1987. She is now 29 years of
age. She married in this country on 21 January 1989 to P. C. and of that
marriage there is one daughter, A., who is now 8 years of age. The parents
separated in August 1992 and the marriage was dissolved by decree absolute
pronounced on 14 September 1993.
The
arrangements for A.'s care have been sensible and generous, at least from the
year 1994 when A. commenced to spend three nights a week with her father, going
to him on Thursday in the afternoon or early evening and remaining with him
until Sunday evening. There was a slight expansion in that arrangement from
1997 when, in addition to those three nights, she also began to spend one
evening with her father each week.
It
was in late 1992 that the mother, as I shall call her, commenced a relationship
with T. M. Of that relationship there was one child, another little girl, L.,
who is now 5 years of age. Again the mother developed sensible and generous
arrangements for contact which were formalised at the beginning of this year to
mirror the arrangements in place for A.
However,
the mother has not been settled in Essex where all three homes are situated in
relatively close proximity. Her heart was still in Ireland, more specifically
in Cork, the city of her birth. On 9 July she issued an application for leave
to remove both children permanently to the Republic.
Responsive
applications were filed by both fathers: Mr C. on 13 August 1998, Mr M. on 3
February 1999, for residence orders.
Mr
M.'s application was even brought on for an interim determination before His
Honour Judge Brandt on 12 April. He, the judge, however decided the short term
in favour of the mother, saying that L. should reside with her pending the
hearing of the cross applications and that in that interim the father should
have contact each Thursday evening until each Sunday evening.
The
final hearing before Judge Brandt took place on 12 and 3 May and in preparation
for that hearing the court welfare officer filed a report. I cite the report
first in relation to A. The court welfare officer's conclusion was as follows:
"Bearing
in mind the level of contact Mr C. and his family have had with A. I am of the
view that she should not be permitted to leave the jurisdiction. I believe the
best option for this child is for Miss O. to continue to live in England and
give A. the advantage of having both her parents available to play a part in
her life."
The
welfare officer went on to say that if the mother did not feel able to accept
that conclusion and returned alone to her homeland then the next best option
would be for A.'s residence to go to her father providing firm and substantial
arrangements for contact between the half-sisters were put in place.
The
court welfare officer's report in relation to L. was very similarly expressed.
She said:
"I
am of the view that it would be in L.'s best interests to remain living in
England with her mother, so that she can continue to benefit from the
supportive relationship with her father. If Miss O. felt that she still wished
to go to Ireland, I believe that it would be better for L. to reside with her
father in England."
Plainly
the judge had a difficult case on his hands in the light of that very clear
recommendation from the court welfare officer.
Miss
Degal, who has represented the mother at this appeal as she did in the court
below, has presented the mother's case with conspicuous ability and persuasion.
She emphasises that the judge regarded the decision as finely balanced and that
the judge was extremely impressed by the mother's oral evidence. In that
regard the judge said (at page 7 of his judgment):
"...
she was a great deal more impressive than the picture that one formed of her
simply on paper. She came across as intelligent, sensible and practical. In
short, I found her in many ways an impressive witness."
No
doubt it was that consideration which paved the judge's way to his ultimate
conclusion that the mother's application for leave should be granted. He said
that she might go on 1 September and that if issues of contact were not agreed
in the light of his judgment he would decide them at a short hearing in early
August.
Both
fathers, however, sought permission to appeal and those applications were
granted on paper and the appeal was directed in on this last day of term.
For
the appellants Miss Hodes makes the running, representing Mr C., and Mr Walters
representing Mr M. adopts her submissions.
The
first point that is made in criticism of the judgment is that the judge applied
the classic principle first enunciated in a decision of this court in
Poel
v Poel
[1970] 1 WLR 1469 and subsequently expounded in very clear terms by Ormrod LJ
in the reported case of
Chamberlain
v de la Mare
[1983] 4 FLR at 434. The principle, as expressed by Ormrod LJ, can be
summarised in his words at 442H:
"The
question therefore in each case is, is the proposed move a reasonable one from
the point of view of the adults involved? If the answer is yes, then leave
should only be refused if it is clearly shown beyond any doubt that the
interests of the children and the interests of the custodial parent are
incompatible."
Miss
Hodes says that the judge was lulled into applying that principle to this case,
failing to appreciate that the principle could not be applied in a case where
there was not a custodial parent. The judge did say early in his judgment, and
it is a passage that is not criticised, "taking a very broad and overall view
one ought to treat the mother as the prime carer". Miss Degal says that that
is a reflection of evidence which had been given to the effect that the mother
did all the chores for the children during those weekdays when the girls were
at home. However, at page 3 of his judgment the judge summarised all the
evidence in this area by saying:
"So
the care is very much shared at the moment although I have no doubt it is the
mother's home that each of the children regard as home."
In
my opinion Miss Hodes is perfectly correct in her submission that the classic
approach directed by the two authorities to which I have referred is to be
applied only in those cases where there is a relatively clear definition of
roles between the parents into primary carer or custodial parent and secondary
carer or contact parent. This was not such a case. Plainly the arrangements
between the parents which had evolved consensually and naturally were very
close indeed to equality, certainly close to equality of time, if not close to
equality of labour.
The
same point can really be put alternatively by a recognition that in a case in
which the children are so reliant upon a division of their lives between two
adjacent homes the child's sense of security is heavily dependent on the ready
availability of each of those homes. In that situation it is very easy to see
that however strong may be the mother's internal desire to return to her
homeland, such a plan is almost certain to impact adversely on the child's
sense of security and thereby on the child's welfare. Although I have every
respect for the judge's discretionary determination and the care that he
brought to this trial, for my part I do not think he had sufficient regard to
that distinction.
The
second criticism of his judgment is that he seems to have sought escape from
that reality by suggesting that this well established status quo was on the
verge of evaporation. He said within his judgment, first:
"I
do not think she will continue to be as accommodating as she is."
That,
of course, was the mother to whom he referred. Then he said:
"...
I believe she would be entitled to say, ´This is all very well but the
fathers have all the fun time...'"
And
later:
"I
think that this mother will be entitled to say very soon that this pattern just
cannot continue."
There
are real difficulties in supporting that judicial approach. It seems not to
have been founded on any clear evidence, although Miss Degal says that it was a
reasonable inference for him to draw from evidence that had been read. But if
that was the judge's shrewd suspicion it does seem to me that it was incumbent
upon him to voice his concerns to the court welfare officer who afterall had
made the investigation at ground level and who was available to the judge,
albeit only at the outset of the case.
It
leads me to an allied and major difficulty and that is the basis for the
judge's rejection of the court welfare officer's recommendation. Bearing in
mind that it was an unusually clear and strong recommendation it manifestly
required very clear judicial reason for its rejection. The judge seems to have
done no more than, having spelt out his conviction that the voluntary
arrangements would not endure, criticised the welfare officer in this way:
"We
are not looking at the present situation as one that is lasting into eternity
and, with respect to Mrs Ould, I do not think she applied her mind to this
aspect of the case when saying, as she did, that she thought the present
situation was what ought to continue. I do not think it can in any event, ..."
That
quotation only reinforces my prior observation that it really was for the judge
to give the court welfare officer an opportunity of responding to his contrary
view as to the likely future development. Beyond that the judge really says
nothing in relation to the court welfare officer's contribution other than to
acknowledge that he was rejecting it. But that rejection was completely
unexplained. He simply said:
"I
am conscious that I have reached a different conclusion to that which a highly
experienced and highly capable welfare officer has reached."
Finally,
I have some misgiving as to the judge's self-direction as to the principles
derived from the authorities. Although he nowhere refers to any of the long
line of cases that have been decided in this court and in the Family Division
over the last 30 years, he does refer to them collectively as a stream and he
refers to them critically, saying that a number of cases are extremely hard to
apply on the basis that leave has been given too readily and in disregard of
the bond between a child and the opposing parent. He went on to say that he
could distinguish the case before him on the facts as though that line of cases
which he found unpalatable obstructed his intended determination. But, of
course, they were to the opposite effect and I am left in doubt as to whether
he had the precedent guidance clearly sorted out in his approach to the
ultimate question.
So,
for all those reasons, I conclude that this is a flawed discretionary exercise
and that it is incumbent upon this court to exercise the discretion afresh. It
seems to me that there is abundant material available to enable us to do so and
it would be of advantage to nobody to remit this case for rehearing. As well
as all the material before the judge we have received a very recent report
compiled by the social services department of the Essex County Council for a
child protection conference which has been convened recently to determine
whether or not these two girls should be registered on the child protection
register. In fairness to the mother, all the matters investigated by the
reporter have arisen since the date of judgment in the court below. It is
perfectly obvious that a possibility is that all this trouble is reactive to
the outcome in the court below and is expressive of the two fathers' distress
at the likelihood of losing their daily contact with the girls. But there are
real concerns arising out of what both girls have expressed independently to an
experienced social worker, endeavouring to peel off the outer layers to arrive
at the children's true wishes and feelings. Both have expressed real distress
at the prospect of losing the relationship with their natural fathers and with
the extended families which they share not through their common parent but by
association with the stepfather's family.
So
all the material available to this court makes it very clear to me that the
order made in the court below granting leave must be set aside and the mother's
application of 9 July 1998 must be refused.
What
will be the consequence time alone will tell. The mother said to the court
welfare officer that if her application for leave was refused she would remain.
She said the reverse to the judge in the witness box. He decided the case
against the possibility that the mother might return to the Republic on her
own. He doubted whether in the last resort she would do so. It is perfectly
obvious that he would have urged her not to do so. For my part, I very much
hope that she will think long and hard before taking such a far reaching step.
These children have developed expectations of childhood which are derived from
what their parents have provided for them to date and that generous sharing is
very much in the interests of these children. Parenting is not forever and it
does often require sacrifices and I would very much hope that the mother would
consider how important it is to these children to have both parents available
to them all the time, particularly whilst they are as young and as vulnerable
as they are.
I
appreciate that the rejection of this application can only come to her as a
bitter disappointment, but I would very much hope that she will adjust to that
and see how important it is to put the interests of these children first.
SIR
OLIVER POPPLEWELL: I agree.
Order: Appeal
allowed; no order as to costs save legal aid taxation of all parties' costs. (
This
order does not form part of the approved judgment
)
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