S (Children), Re [2004] EWCA Civ 1724

Case No B1/2004/2207

[2004] EWCA Civ 1724

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM HUDDERSFIELD COUNTY COURT

(MR RECORDER DOBBIN)

Venue Royal Courts of Justice

Date Wednesday, 10 November 2004

Strand

London, WC2

B E F O R E:

LORD JUSTICE THORPE

LORD JUSTICE WALL

MRS JUSTICE BLACK

S (CHILDREN)

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MS JUDITH FORDHAM (instructed by Ridley and Hall, Huddersfield HD1 1LE) appeared on behalf of the Appellant

Venue MR MICHAEL NICHOLLS (instructed by Gordons, Leeds LS1 4AW) appeared on behalf of the Respondent

J U D G M E N T

LORD JUSTICE THORPE:

[1]This is an appeal from the order of the recorder, Mr Recorder Dobbin, sitting in the Huddersfield County Court, on 7 October 2004. The application for permission was lodged by the mother and her application was considered on paper by my Lord Wall LJ on 1 November. He directed an oral hearing on notice with appeal to follow if permission granted. He noted the deficit of any transcript of judgment below and directed that a full transcript must be made available for the hearing. As a result of a settlement of another appeal it became evident at the end of last week that there was an opportunity to bring this case into the list, since it was one in which the parties sought expedition and one in which my Lord had ordered that it should be listed as soon as possible. We are very grateful for the considerable cooperation that the court has received, particularly from Mr Michael Nicholls and his instructing solicitors. The consequence of all those efforts is that we have before us an approved transcript of the judgment below. We have a very tidy appeal bundle; we have additional documents submitted on the respondent's behalf; a skeleton from Mr Nicholls and his list of authorities. This has enabled us to tackle what is in fact a difficult case for this court as our investigations have advanced through a review of the approved judgment to the powerful submissions that have been mounted today on the respondent's behalf by Mr Nicholls. But before coming to that, it is necessary to record briefly the bare history.

[2]The parents, the parties to the appeal, met in September 1995 and married in October 1997. The father is a Halifax man and it was to Halifax that the mother moved from her Midland home at the time of marriage. The marriage lasted about five years, with a divorce petition filed in January 2003 and a decree absolute in October 2003. In that same month the parties presented to the court an agreement to resolve all financial issues. It is unnecessary to go into any detail, save to record that since March 2003 the father has been maintaining the two children of the marriage at the rate of £200 per month each. The children are A, now almost 6, and A, who is four. At some stage the mother and children left the final matrimonial home, which was then re-occupied by the father. He still lives there with his current partner. The mother has a smaller property in the vicinity which is owned outright and which is available to sell if her application to relocate receives the court's approval.

[3]The application to relocate was foreshadowed by a letter in November 2003 and issued in January 2004. The application culminated in a hearing before the recorder on 21 September. The evidence was taken on that day. On 7 October he heard submissions, received some additional evidence from the father, and gave his extempore judgment.

[4]The judgment is relatively succinct, but it is necessary to analyse its content in some detail. In the first two paragraphs the recorder set out the history, including one of the most singular features of the case that is that since before the breakdown of the marriage the father has commuted weekly from Yorkshire to Hamburg where he acts as an apparently self-employed consultant but receiving all his remuneration from Deutsche Bank. There is within the papers a letter from Deutsche Bank confirming that he is entitled to 35 days holiday a year, including Bank Holidays, but that there is an expectation that he will not take time off in the months of July and August. It is also conceded that the bank meets the costs of his weekly commuting from an annual fund which, if not exhausted by his travel costs, is paid out to him as a bonus. It is plain from the letter that he has opportunities to travel for the bank which he can extend into holiday visits, an example being a recent trip to India which enabled him to take a holiday at the conclusion of the work undertaken for the bank. The letter makes plain that his flexibility in offering to undertake those journeys not in business class but by charter air travel is something that the bank has appreciated and which has encouraged them to enable him to use the trip partly for business and partly for holiday.

[5]The recorder in paragraph 3 of his judgment described the mother's essential case. It is to live in Spain with the children in the Alicante area where her own mother and brother are well established. Her sister equally intends to relocate to join the family, but not in the immediate future. The recorder noted that the mother had researched the plans. She had the intention of reinvesting the proceeds of sale of her Halifax home into a Spanish property at a cost of about £100,000; she had obtained an offer of part-time employment; and she had arranged private education for the two girls, which would be half funded by her and half by her own mother. The recorder concluded this résumé by saying:

"The mother offers contact to father with the children over long weekends and school holidays. The mother is not a native of Halifax and feels no ties here. She feels isolated."

In paragraph 4 the recorder turned to the résumé of the father's case. He said:

"The father's case is to attack the plan of mother to move to Spain as unrealistic both as to practicalities and as to economics. He seemed to be suggesting other motives on mother's part, and that she was not acting in good faith, although at the end of the day that, as a proposition, seems not to be explored. The father's is essentially a negative case. He says the provision for schooling for the children is not realistic. He suggests that grandmother is potentially a maligned influence, and I am asked to infer, I presume, not a suitable carer for the children if she was to look after them part-time. The father can see nothing but disadvantages in the children moving to Spain. He is not prepared to credit any advantage whatsoever. What he does say is that contact between himself and the children will suffer. He made it clear that there was an economic issue between the maintenance he presently pays for the children and the question of contact if he had to travel, for example, to Spain to see the children. He seemed to be indicating, however, and that was certainly the view that I took at the end of the day, that he would, all things being equal, look to maintain the level of monthly maintenance that he currently pays. I also formed the impression that father perhaps had not realised the realities of the situation and the orders that could be made by the court as his research into the possibility of contact seems to have been very limited, and somewhat partial, as I will comment later."

The recorder then turned to direct himself as to the relevant authorities, and he had regard to the decision of this court in Payne v Payne

[2001] EWCA Civ 166

[6]The recorder then continued to review the evidence. In relation to assessment of the parties, one of the fundamental tasks of the trial judge, he made two important findings. In relation to the mother's evidence he said:

"I was impressed by the evidence that [she] gave. I have no doubt that this was a genuine plan by her and that she desired to emigrate to Spain. Her mother and other members of the family live there and her sister... is soon to move and I accepted what she said. So I am satisfied that this was a genuine desire and that she is not motived by some lack of good faith."

Later he said:

"In general I prefer the evidence that [the mother] gave and where there is a dispute between her evidence and that of father, I prefer her evidence."

The recorder stated further, that the mother's proposals had been very vigorously tested by Mr Nicholls in cross-examination, but, despite that, the recorder expressed his conviction that her proposals were practical and specific where they could be. In relation to the attack on her proposals for schooling, the recorder said that he "found the father's attack on that to be unconvincing."

[7]The recorder was critical of the father's case in other important areas. He records the father's objection to the diminution of his contact. He said this:

"[Father] says that he could not afford to go and see them there because his salary at £25,000 per annum net would not allow him the means so to do. I was somewhat sceptical as to his earnings and no evidence was produced to substantiate his current earnings, and I would have thought that could quite easily have been done."

[8]In relation to travel costs, the recorder was equally critical of the father's presentation. He said that the father's version of what travel costs might be was:

"... by no means convincing. For reasons which I do not follow he seems not to have been prepared to consider the low flight costs that generally are available within Europe."

[9]An important aspect of all these cases is of course the impact upon the adult carer of a refusal of carefully researched and reasonably presented plans. The recorder said that if the mother were refused permission he was perfectly satisfied that she would stay with her children in the United Kingdom. He continued:

"There will probably be, unfortunately, an underlying grievance on her part that the respondent has objected, and I could not rule out that this would work its way through to the children..."

[10]The judge's estimation was certainly supported by the impression of the CAFCASS officer, who had prepared a written report but who had not been required to attend for oral evidence. The recorder summarised his position by saying that it was "moderately supportive of mother's plans." That was, if anything, something of an underestimation of the welfare officer's contribution, since he had observed at page 8 of his report:

"If they are not allowed to move from the UK then [the mother] would undoubtedly remain with them and her disappointment could be a feature of their family life and ongoing contact with their father."

He considered further on the same page the relationship between children and father and the negative impact on the children of a reduction in contact, at least in the early stages of a move. He continued:

"However, children are adaptable and with consistent contact thereafter any harm suffered should diminish if all concerned adapt and positively manage the new situation."

His concluding paragraph was indeed broadly supportive of the mother's position. He said:

"[Mother] appears to have researched and gathered information on her proposed move and has firm proposals to put to the court. She has indicated a willingness to allow the children to maintain a relationship with [the father] through contact. Should her plans for the move prove to be realistic and achievable and her agreement to ongoing contact credible then the only issues prohibiting a move for the children would appear to be the allegations made by [the father], ie [mother's] motivation in seeking a move, support available to her from extended family members in Spain, and the security of future contact."

[11]Given my analysis of the judgment to date, there seems to me to be real force in Ms Fordham's submission that there is a fundamental inconsistency between the judge's findings and assessment of the parties and his ultimate conclusion, namely that the prospect of diminution in contact compelled the refusal of the application. There is a frank acceptance by the recorder that he had not found the case easy, and that he had had to balance conflicting interests. He said that he was satisfied that the mother would do her best to make the children available for contact, but the question was whether, practically speaking, that would work and whether father could avail himself of those opportunities. He said at the end of paragraph 18. "Whilst I do not actually go with father's evidence that this is only capable of being done at very high air fares, I do accept, because it is realistic, that it would be very expensive to arrange for weekend contact with him travelling to Spain. The realities are there would be air fares; there would be somewhere to stay."

[12]The internal inconsistencies within this judgment have not been either reduced or clarified by the submissions that we have heard today from counsel. It appears that the mother laid before the recorder an adequate review of the available costs of cut-price fares between the north of England and Alicante. Mr Nicholls insists that on 7 October the father put before the recorder an additional statement which clearly defined his income for the fiscal year 2002/2003 and some evidence of his expected income within the last concluded fiscal year, 2003/2004. The statement also had evidence as to the cost of direct flights between Hamburg and Alicante, which was put at extremely high rates on the basis that the father would not contemplate charter travel. In addition, says Mr Nicholls, he gave additional oral evidence and was cross-examined on the statements.

[13]There is a real problem in understanding how the recorder dealt with these fundamental issues in the way that he did, if the evidence was indeed before him in all the detail that Mr Nicholls suggests.

[14]The further analysis of the judgment would be for me impossible, were it not for the judge's very clear assessment, on the one hand of the plausibility and the genuineness of the mother's proposal and on the other of the essentially negative character of the father's response. That, taken in conjunction with his clear finding that the evidence of the mother had been impressive and was to be preferred to the evidence of the father wherever dispute occurred between them, makes it plain for me that the recorder was entitled to be sceptical in his assessment of the material produced by the husband on 7 October.

[15]How, then, is the ultimate conclusion reconcilable with the judge's findings and with his assessment? I suspect that part of the problem arises from his classification of the case as being simply a case of lifestyle choice. Despite his earlier recognition that the mother was not a native of Halifax, had no ties there and felt isolated there, he nevertheless said in paragraph 7:

"It is a move of choice, not forced by other considerations, as many of the reported cases are. That is not to say that it is not a reasonable choice to make, all things being equal. It merely removes some of those considerations that one sees in the reported cases."

This theme he took up again at paragraph 12, when he said:

"I have said that mother's plans to move are not forced upon her in any way. These plans are a choice that she makes. I do not think she is to be criticised on that ground alone."

[16]Those two passages in conjunction suggests to me a material misdirection. First, this was a case that plainly fell within the principles identified by the court in Payne vPayne. This is, if not a classic case, at least at one remove from a classic case in which, after a relatively short marriage, a mother with the responsibility for the care of young children finds herself in an area with which she has no connections other than those that derive from the failed marriage. She has a perfectly natural desire to resolve her feeling of isolation by rejoining her own family. In the interim, that family has relocated to Spain, so it is natural enough that it is to Spain that she seeks to go, rather than to the English Midlands where she was brought up.

[17]The second point to be made is that even if this had been a pure lifestyle choice case, it does not follow that the principles that were stated in Payne v Payne cease to apply. That argument has relatively recently been run unsuccessfully in this court in an appeal, the reference to which I do not now have to hand. So within those passages it seems to me that the recorder fell into error.

[18]There are features of this case which are unusual and which call for further comment. The first is that, as we have seen from an examination of the written evidence, the wife nowhere in her statements elaborated upon the emotional impact of a refusal. How would she cope with the court's refusal to liberate her to return to a supportive family environment? In many cases that hypothetical emotional impact is graphically described in the statements, or perhaps in conversation with the CAFCASS officer, and almost certainly during the course of the oral evidence. It is the applicant's one opportunity to communicate to the recorder the sense of devastation that she feels will flow from refusal.

[19]This applicant did not take that course, and her moderation and restraint may well have been one of the factors that led the recorder to describe her as an impressive witness. What she did describe, and what the recorder accepted, was her feelings of isolation where she was and her desire to integrate within her own family. It does seem to me that it is implicit in those acceptances that there would inevitably have been a heavy price to be paid by the mother in emotional and psychological terms if refused.

[20]Another feature of the case which is significant is that although the children are 6 and 4, the father's contact had historically been simply on an alternate weekend basis. He was not a father who had sought to extend or deepen his relationship with the children by having them to share with him any part of his annual holidays, save that when the litigation was already well under way he, for the first time, suggested, and was readily granted, some summer holiday period with the children.

[21]The other most significant aspect of the case is that the father had elected during the marriage to fix his work life so far from his home life. He is a self-employeed consultant with specialist skills in the IT field. His essential presentation to the court was his absolute obligation to commute to Hamburg coupled with the inability of Deutsche Bank, effectively his employer, to fund any travel other than travel between Hamburg and the north of England. I recognise that it is often not open to the court to achieve best results for children when it has no power to direct the location of either parent. But a fundamental question which was surely apt to be asked was, if the father put his contact relationship with the children as the most important aspect of his response (and I am by no means satisfied that that was his case), why should he not re-arrange his work life so that he could take advantage of cut-price travel between the north of England and Alicante or even, as an extreme, find specialist contract work in the Spanish jurisdiction.

[22]So this case is, like all these relocation cases, special to its own facts. But on the facts as they stand, either incontrovertible or as found by the recorder on his assessment of the parties, I have reached the clear conclusion that his judgment both proceeded on a misdirection as to approach and was plainly wrong in its conclusion.

[23]The only remaining question is how we should proceed. Should we exercise an independent discretion? Or should we simply say the whole issue must be remitted for retrial?

[24]Mr Nicholls is in a difficult position. His client has had very little notice of this appeal. He is unable to be here to give direct instructions and Mr Nicholls on his behalf has made the impeccable submission that his interests would be best served by a retrial on all issues. Mr Nicholls says that the inter-relationship between the issue of future contact and the point of principle is so direct and obvious that he must have the right to say that the only practical contact is such as to outweigh the case for relocation. He adds that a retrial is not an inevitable consequence because it could be avoided by compromise. Finally, he says that there would be no great additional costs incurred in elevating the remission from contact alone to full retrial. Those are impeccable submissions, skilfully presented, but I am not persuaded that a full retrial in this case is inevitable. Neither party is legally aided. The prospect of retrial is one from which I recoil, given the relatively limited financial circumstances of the parties and the extent to which they are draining away capital on litigation costs.

[25]The point of principle on the material adduced at trial plainly falls to be decided in the mother's favour. There is of course a need to establish with clarity in what way the future relationship between father and children can be maximised. It is very important that any future approach to that issue should be collaborative and should be freed from litigation strategy which might incline one to exaggerate the ease and the other to exaggerate the difficulties. On any open objective presentation, surely the issues that remain could be resolved by sensible negotiation or by mediation. If that proves impossible, then in the last resort they must be decided in the court and, on any future listing, before Judge Finnerty who unfortunately was not available to take the case on 21 September. These relocation cases are particularly difficult for the parties, for they invariably engender very profound anxieties and often chasms of disagreement where, as here, all other issues had been amicably compromised. They are very difficult for trial judges. Very often the balance that has to be struck is a sophisticated and fine one. It does seem to me that as a generalisation they should not be listed in front of recorders or part-time judges and should, where practicable, be reserved to the designated judge in the care centre.

[26]The mother manifestly cannot plan her departure until all these consequences have been settled. Accordingly, it must be deferred until such time as the contact arrangements between the children in Spain and their father have been clearly defined and settled either by agreement or future order. But all that said, I would grant permission, allow the appeal, grant the permission that the recorder refused, not to be implemented until the contact order has been entered either by consent or otherwise.

LORD JUSTICE WALL: I entirely agree and, despite the fact we are disagreeing with the recorder, despite Mr Nicholls' able submissions, I do not think there is anything I could usefully add.

[28]MRS JUSTICE BLACK: I agree. (Application allowed; appeal allowed; permission which was refused by the recorder granted, not to be implemented until contact order has been entered either by consent or otherwise; no order as to costs).