N (Children) [2006] EWCA Civ 872

Case No B4/2006/1065[2006] EWCA Civ 872
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM FAMILY DIVISION, PRINCIPAL REGISTRY
HER HONOUR JUDGE PEARLMAN
Venue Royal Courts of JusticeDate Wednesday, 14 th June 2006
Strand
London, WC2
B E F O R E:
LORD JUSTICE THORPE
LADY JUSTICE ARDEN
LORD JUSTICE WILSON
IN THE MATTER OF N (Children)
(DAR Transcript of
Smith Bernal Wordwave Limited
190 Fleet Street, London EC4A 2AG
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Official Shorthand Writers to the Court)
MR C GEEKIE (instructed by Messrs Dickins Hopgood Chidley, 42 High Street, Hungerford, RG17 0NF) appeared on behalf of the Appellant.
The Respondent appeared in person with Ms S Carpendale, litigation friend.
J U D G M E N T

LORD JUSTICE THORPE:

[1]The parties to this appeal married in 1990. The father was a serving army officer and family life was necessarily peripatetic. The first child, C, was born in Edinburgh on 15 August 1994 so he is nearly 12 years of age. His brother, S, was born on 21 September 1997 so he is now rising nine. In 1999 the father was posted to Canada and the family remained there until 2001. During the period of that residence there was apparently a family decision to emigrate to Canada. A house was purchased in 2001 and in 2002 the family applied for residence in Canada. Their application, if to succeed, required their presence in Canada by the month of May 2004, and accordingly in April the family travelled to Canada in circumstances, and with intentions, which were subsequently investigated at a hearing before HHJ Mayer.[2]Very soon after the family’s arrival the mother issued an application in the Canadian court for permission to remove the children to England. Before that application was decided, on 28 June the mother left Canada precipitately with the children and returned to this jurisdiction. That prompted an originating summons under the 1980 Hague Abduction Convention issued on the father’s behalf on 16 September seeking the return of the children. At the final hearing permission was given to the father to withdraw his summons. That was before Bracewell J on 11 November 2004, and inferentially indicates a professional view that the return order was unlikely to be made. Consequently, on 13 November the father issued a section 8 application seeking residence and permission to relocate to Canada. The mother’s response was a section 8 application seeking residence and there was a three day hearing before HHJ Mayer in February 2005. She substantially found for the mother on all issues. She was critical of the father’s conduct and motives. She held that the mother had not truly understood or intended permanent relocation to Canada in April 2004. She granted the residence order of both children to the mother with contact to the father. Following that apparently conclusive judgment the father had weekend staying contact with the children until in July 2005 he returned to Canada. There was then staying contact in Canada for all the month of August 2005. On the children’s return there was undoubtedly a turbulent relationship between C and his mother. On 9 September he ran away from school, and unexpectedly the father appeared at the mother’s home and seemingly resumed his residence in this jurisdiction. Accordingly the regime of weekend staying contact was restored.[3]An even more dramatic development came on 13 November when, at the end of a weekend visit, C refused to return to his mother. That led to the issue of emergency proceedings, which came before HHJ Mayer on 17 November 2005. She had the benefit of an oral report from a CAFCASS officer, and she concluded that C must remain with his father in the interim. She gave directions for a full CAFCASS report and set the case down for trial in April 2006. In the long interim she provided for contact, but only on a day basis. That involved a long journey for one child or the other, since the mother was living in Wiltshire and the father in South Wales.[4]On 23 November the father issued an application for a residence order in relation to both boys, and again for permission to relocate to Canada. At the hearing before HHJ Mayer the father appeared in person, as he has consistently done, given that he is not eligible for public funding on financial grounds but is not in a position, it seems, to obtain representation on a privately funded basis. The mother has elected representation. Mr Geekie has appeared for her consistently but was not available on 17 November, so the only legal representation before HHJ Mayer was the mother’s solicitor, Mr Chowdry. With the advantage of hindsight – and this is no criticism of either HHJ Mayer or of Mr Chowdry – it does seem unfortunate that more comprehensive directions were not given, to reflect the complexity and the difficulty of the developing case. Of course, there was provision for a CAFCASS officer. Only with the advantage of hindsight, perhaps, is it possible to say that it would have been better had there been provision for separate representation of the children and also for an expert report into the family dynamics.[5]The hearing in April took four days before HHJ Pearlman. At the outset there was the head-on contest over the residence of both boys. But there was a very significant contraction of the case on the final day of evidence, when the father made two major concessions. His first concession was that S should remain with his mother and that consequently his residence order application should be withdrawn. His second concession (if it be rightly termed concession) was to state, with considerable difficulty and obviously turmoil, that if his application to relocate with C were rejected then he would remain in this jurisdiction to continue to provide C’s primary home. The outcome before HHJ Pearlman was the grant of the residence order in respect of C to the father, and also a tentative grant of the application to relocate. By that I mean that the judge granted a trial relocation for a period of some 11 months with a review in July 2007. That is in my experience an unusual order, but it was plainly an order within the judge’s jurisdiction. It was fortified by a requirement for a mirror order in Canada and clear arrangements for contact between the two boys, and between C and his mother, for a period in the summer of 2006 before departure in mid August, and for a substantial period in December and January 2006/2007 over the Christmas holidays. A notice of appeal was filed with this court, and on 31 May I directed an oral hearing with appeal to follow if permission granted.[6]This is clearly a difficult case and we have effectively treated this listing as the hearing on an appeal. I think it worth noting that at least the parties have managed recently to compromise the issue of divorce. The basis of divorce between them is now agreed and they have also managed to agree ancillary relief. The father is to keep the Canadian home, and the mother has received a compensatory lump sum of about £115,000. During the course of preparation of the appeal, the transcript of her oral judgment was submitted to HHJ Pearlman for her approval. She made some changes and required the draft to be resubmitted to her. That was done, and she made further amendments. Accordingly the approved version only reached the transcribers on 30 May, and I think only came to the parties on 6 June. I record that seemingly irrelevant detail because during the course of his submissions Mr Geekie has understandably placed considerable emphasis on two additions to the judgment as first delivered, which expand paragraphs 30 and 36 in a way to which I will come.[7]Mr Geekie’s grounds for appeal are skilfully and succinctly drafted. Under his first ground he criticises the judge for “making findings adverse to the father which were not reflected in the decision of the court”. His second criticism is that she failed to make findings on core factual matters which were central to her decision. Thirdly, that she failed sufficiently to evaluate C’s wishes and his needs; and fourthly, that she failed to give sufficient weight to the need to maintain a close relationship between the brothers and also to the effect upon S of the permission for C to relocate. Those four specific criticisms were amplified in a careful and full skeleton argument, and further amplified in oral submissions in the light of the additions to HHJ Pearlman’s judgment.[8]His second ground was to the effect that the judge should not have made an interim decision that provided for review in July 2007. Mr Geekie conceded in reply that this was, if not a makeweight, certainly not a ground upon which he could succeed, given that the proposal for a probationary period in Canada emanated from a suggestion advanced by the CAFCASS officer, Mrs Sherlock, and given that it was clearly within the ambit of the judge’s discretion.[9]In his response Mr N submitted a very full skeleton argument, some 86 pages, and behind that fresh evidence that he wished to rely on, including school reports indicating C’s performance when with the mother prior to the dramatic events of November 2005 and then his performance in South Wales during the currency of the interim order. Also behind his written submissions was a letter written by C to this court following his mother informing him that the issues were again live as a result of her appeal. I should add that the father’s first skeleton argument was supplemented by a second, delivered on the morning of the hearing, which only offered Mr N’s commentary on the authorities that Mr Geekie had put before the court.[10]In his written submissions the father included a dramatic withdrawal of the second concession that he had made to HHJ Pearlman. He makes it absolutely plain in his written skeleton that his first priority must be the advancement of his own career, upon which, he says, depends not only his future but the future of his family. So, he must go, by the end of September at the latest, to establish his residential qualification in Canada and to take up one of two possible career opportunities that are open to him there. In fairness to Mr N the transcript of his evidence on the final day shows that when faced with the question posed by HHJ Pearlman, “What will you do if relocation is refused?” he plainly agonised, and I think on three occasions said that he would have to go, and on three occasions said no, he would stay. There can be no doubt that the ultimate message to the judge was that he would stay, but it is equally clear that what the judge described as the cruel dilemma was extraordinarily difficult for him.[11]The success or otherwise of Mr Geekie’s submissions turns upon an analysis of the approved judgment. The judge made some very important findings. Before she came to review the evidence, she said in paragraph 12:
“The father’s attitude throughout the proceedings, and certainly in court before me, is that he is not prepared to make C do anything that C did not want to do. Unfortunate incidents have occurred between mother and father over C, with the father saying words to C to the effect of, ‘You do not have to go if you do not want to go’ with the result that C was put in an impossible position of having to choose either to stay with the father or go, as arranged, with the mother.”
[12]In paragraph 14 is the same theme:
“The father’s case is that C should and can do what he chooses, but it has become apparent to me that the father puts C in an impossible position and unconsciously manipulates him so that C supports him, the father.”
[13]The judge went on to review the oral evidence. She started with the evidence of Mrs Sherlock, recording amongst other things Mrs Sherlock’s evidence that, whatever the disagreements and expressions that C made about his mother, C felt very secure with his mother. He knew that she would always be there for him, and so he could afford to be horrible to her. She also expressed the opinion, or the anxiety, that S would come in for a negative influence from C if S did not go (that, of course, is to Canada); and it was her opinion that it was completely contrary to S’s interests to leave the mother. HHJ Pearlman reviewed the evidence of the parents much more briefly, then in paragraph 27 came to her findings. She accepted the evidence of Mrs Sherlock. She accepted that the mother and C are close, and she accepted the mother’s evidence that the father puts C into an impossible situation, either consciously or unconsciously.[14]In paragraph 24 she pursued the question of the relationship between father and C, saying:
“The father is in danger of making C think that C does not have to live within the law. If he says he will not do something, it is entirely acceptable, and the father makes excuses for C’s behaviour”
. Another important finding of the judge is that the relationship between C and his father was one in which the father’s need for C, if anything, outweighed C’s need for his father.[15]The additions to the judgment, to which I have already referred, are of some significance, for the judge, on reflection, chose to add to paragraph 30 this sentence, “C and S, I am sure, will be harmed emotionally by living in different parts of the world.” Then to paragraph 36, which is the paragraph in which she rationalised the grant of the relocation application, she added sentences which I will review when I come to the crucial question in the appeal.[16]The judge essentially decided the question of C’s residence on the basis that whatever the anxieties she might have about the relationship between father and son it was, practically speaking, impossible to reverse the status that had been established by HHJ Mayer’s interim order. In paragraph 27 she said, “If I order C to reside with his mother it will be putting C into an impossible position.” It seems to me, with all due respect to the judge, that the crucial question that she had to decide at the end of the four day hearing was not so much the question as to where the residence order for C should go, given the father’s second concession, but the very difficult question of whether the relocation application should be granted or refused.[17]The consideration that she gives to the residence order is, as I have indicated, full, and the essential balance is clearly established. However, her rationalisation of the provisional grant of the relocation application is very sparse. She simply says in paragraph 35:
“35. In considering however the next point I must consider, whether it is in C’s best interest for the father to have leave to remove him from the jurisdiction, I have to say that this is a very fine balancing act. On the one hand, C wants to be with his father in [Canada], and the father, as a responsible and loving father, has a home and a school for C to go to. Once the father has employment and has thought about child care arrangements, and, indeed, contact, I am no doubt that he is capable of looking after C on good enough day to day basis save for contact. 36. On the other hand, C will not have the benefit of ease of contact with his brother or his mother if I grant leave, and which they would have if the father were to remain in the United Kingdom. The boys are close and it is accepted that a sibling relationship is very important to children as they grow, and it lasts throughout life. Furthermore, there is the fear that C may begin (he may already) to think that he must have what he wants, regardless of other people or the orders that the courts make. I have regard to the fact that this father and C appear to fuel each other’s wishes and to be thoroughly selfish. This father has not tried to be objective and to help C to do what was ordered by HHJ Mayer.”
[18]So, having set out in paragraph 35 the pros and in paragraph 36 the cons,

the judge in paragraph 37 simply says|:

“Balancing all these matters, I have decided to give interim leave”
. On reflection, the contrary considerations set out in paragraph 36 were bolstered by this addition:
“Ideally C and S should remain living in one household with the mother, with contact to father. But it has been demonstrated that this father refuses to help C to obey any order that the father does not want. In my judgment, it is marginally in the better interests of C and S if I accede to the father’s application to remove C from the United Kingdom for ten months, than refuse it. I have in mind the reality of C, a wilful eleven and a half year old who has made his wishes clear and who has walked twice already.”
[19]In my judgment, the judge’s rationalisation of her conclusion cannot withstand Mr Geekie’s criticisms. When considering the father’s residence order application, the practical impossibility of returning C to his mother was legitimately large in the judge’s estimation. But, of course, in relation to the relocation application that consideration did not apply. The father was accepting that he would be the primary home maker for C in this jurisdiction if the relocation application were refused. It was clearly a difficult application, and the judge had to focus largely, on the one hand, on the facts that the only home that the family had bought was a Canadian home and that there had been a decision in 2002 for the family to establish Canadian residence: and on the other hand, on the fact that the grant of permission in relation to C was to separate him from his younger brother. That consideration the judge had already found in paragraph 30 to be emotionally harmful to both. Focus was also required on C’s stated wishes and feelings and the true relationship between C, his father and his mother.[20]For all those reasons I reach the conclusion that, although the judge’s decision may have a pragmatic justification, it is simply not supported by her findings and her reasoning. It would be an injustice to the mother to condone these flaws, and I can see no alternative but to allow the appeal and to set aside the order permitting relocation together with the ancillary orders governing future contact. It seems clear to me that this court is not in a position to complete the forensic process by substituting orders in the exercise of our discretion. The withdrawal of the concession in relation to the second concession places us in a position that did not confront the judge.[21]The consequences of the success of the appeal are complex and difficult to gauge. How will C react to the loss of what he had thought to be the future permitted by HHJ Pearlman? What will be the father’s reaction? What will be his proposals, given that he has emphasised to us more than once that he cannot waiver in his own decision to go? What will be the mother’s proposals? These issues must inevitably be remitted for further trial in either the Family Division or the County Court, depending on which can offer the swifter listing. The further directions we will consider in due course, after we have heard argument, but tentatively I would propose that there should be a remitted hearing, not from first beginnings since the findings of HHJ Pearlman must clearly stand. Clearly there must be separate representation for the children.[22]As far as C is concerned, the outcome of the trial before HHJ Pearlman was that he might have to reconcile with the loss of his dream to live with his father in Canada. But the outcome of the remitted hearing is for him much more grave, because he faces not just the loss of Canada but the also the loss of living with his father as his primary carer. What will be his reaction to that? It is a complex and potentially hazardous situation, and plainly, in my judgment, he must be permitted his own solicitor and counsel to take his instructions directly and to put his case to the court.[23]S’s position is different. I provisionally believe that he would benefit from the appointment of a CAFCASS guardian, and Mrs Sherlock would be the obvious appointee. I also think there should be an expert appraisal of the family dynamics, and particularly C’s wishes and feelings, and that would have to be urgently commissioned. The parties need to file brief statements as to their proposals for C, in the event that the father departs before the end of September and permission to relocate is refused at the remitted hearing. The hearing, as I have indicated should be expedited, and be before a judge of the Family Division or the County Court sitting either in the Royal Courts of Justice or on circuit, before the end of this term. I mention the possibility of the circuit listing only because the mother is in the South West and the father in South Wales.[24]Finally, I would simply point out that it is within the power of the parties to abort the need for further proceedings if the father were to revert to the position that he took before HHJ Pearlman and accept that his responsibility to provide a primary home for C outweighed the demands of his career; then there might be no need for further hearing. Equally, if the parties could contemplate a sensible sharing arrangement that would keep these two boys together giving them the advantage of shared residence, two homes, one in this jurisdiction and the other in Canada; a suggestion that my Lord, Wilson LJ put to the parties in argument yesterday. There could be no better outcome for the family. The Court of Appeal operates an ADR scheme, and if there is any possibility of a mediated settlement, the court would make immediate arrangements for the appointment of a mediator with experience in the resolution of cross-border cases.[25]The detail of the ancillary orders I leave open to further consideration, with contribution from Mr Geekie and from Mr N; but undoubtedly in my judgment the application for permission must formally be granted and the appeal allowed and the orders made by HHJ Pearlman set aside to the extent that I have indicated.

LADY JUSTICE ARDEN: I agree.

LORD JUSTICE WILSON:

[27]I also agree. 28. Appeal allowed.