F & H (Children) [2007] EWCA Civ 692

Case No B4/2007/0983[2007] EWCA Civ 692
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
PRINCIPAL REGISTRY OF THE FAMILY DIVISION
(MRS JUSTICE HOGG DBE)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Thursday 7 th June 2007
Before
LORD JUSTICE THORPELADY JUSTICE ARDENMR JUSTICE HEDLEY
IN THE MATTER OF F & H (Children)
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Miss Fiona Hay (instructed by Messrs Marshall & Galpin) appeared on behalf of the Appellant.
Mr Piers Pressdee (instructed by Oxford Law Group) appeared on behalf of the Respondent.
Judgment
[1]On 25 April Hogg J delivered a brief extempore judgment explaining why she was granting an application by a mother to relocate to her home state of Texas. The judge was concerned with two children: Caitlin, born on 1 August 1999, the daughter of the mother and another US citizen, Lorne Hancock. The second child with which the judge was concerned is a little girl named Jacklyn, born on 17 January 2002, relatively soon after the parties’ marriage in September 2001. They had met for the first time only in September 2000, initial contact having been achieved over the internet. Cases in which the parties meet through the internet are becoming increasingly common in this court and they originate what are cross-border relationships and cross-border marriages. As my Lord, Hedley J, observed in argument, all too commonly when the cross-border family disintegrates, there will be a reversion to the respective parental countries of origin with resulting problems in maintaining parental relationships and in fixing contact.[2]This is a paradigm case. Unfortunately, the marriage was brief and stormy and the relationship post separation has been very bad. During the course of the trial, the CAFCASS officer was to inform the judge that the children are embroiled in the conflict between the parents and that has led the elder child, who of course is not the biological child of the appellant, to be reluctant to attend contact. Her reluctance stems from her sad embroilment in the adult contact and her natural desire to avoid it.[3]The judge had had a considerable involvement with this family and had therefore an extensive opportunity to understand the dynamics. As Mr Pressdee in his skeleton argument informs us, she spent seven days in 2006 and 2007 hearing evidence on a variety of issues. She heard a three-day fact-finding preliminary as to domestic violence and other conduct in May 2006, and applications by the father for joint residence and by the mother to relocate over two days in November 2006 then, most unfortunately, adjourned for six months before a further two days could be found to complete the trial in April 2007.

The judge had, in May 2006, made some trenchant findings against the father:

[4]findings of domestic violence and findings that he had deliberately given untruthful evidence. He had not accepted those findings and that did not contribute to the easy resolution of the major remaining issues. The only question with which we are concerned is whether the judge was right to grant permission to relocate, and that enables us to focus on a comparatively brief extempore judgment given at the end of the day on 25 April, when the judge was anxious at least to give the parties a clear result without the need for any further adjournment. Any criticism of her judgment is to be evaluated in that context.[5]In granting the application to relocate, the judge placed emphasis on the fact that the mother was not seeking to move until the end of the current academic year, which would enable the children to have a major summer holiday with their father before departure. She took comfort from the fact that the mother would therefore have between late April and late August to finalise her plans for relocation and she imposed specific requirements upon the mother to obtain mirror orders in the United States before departure.[6]Given that this was a mother seeking to return after a relatively brief absence from her home city, her family and all that was familiar; given that the father of the elder child, Mr H, supported the application; given that the mother had the broad support of the CAFCASS officer, who described her proposals as reasonable, the outcome was both conventional and predictable. However, a notice of appeal was filed in this court on 15 May, and a skeleton argument settled by Miss Frances Judd QC. The case was referred to me on 1 June by the Civil Appeal’s Office and, sight unseen, I directed a listing for today because it is important that in all cases with an international element, whether they involve possible competing proceedings in two jurisdictions or whether they involve a planned relocation, the parties must know where they stand and must not be kept in a state of suspense by our justice system.[7]So I directed that the case be expedited into the list today. One unfortunate consequence of my listing is that Miss Judd has been unable to advance oral submissions because she has commitments elsewhere. So Miss Hay, who appeared below, has had to bear the burden and she has done her best with an extremely difficult application. She has focused on the first and third grounds advanced in the Notice of Appeal. The first is the submission that the judge was plainly wrong to accept the adequacy of the mother’s detailed practical proposals. The second is a criticism of the judge in having found that there would be a serious impact on the mother’s wellbeing were the application refused. In advancing the first submission Miss Hay particularly highlights the absence of any clear information about the school that the little girls would attend in Texas, the absence of any corroboration from the mother’s family that they would provide a temporary home for the girls for the first three months or so, and the absence of any clear evidence as to the mother’s employment or earning capacity, given that the contact regime imposed by the judge might involve her absenting herself from her employment for eight weeks a year.[8]In relation to the effect of refusal, Miss Hay has focused on a transcript of evidence given by Mr H, the mother’s now fiancé, to the affect that he believed that they could settle very happily here as a couple. The points made by Miss Hay as to the adequacy of the mother’s proposals have some slender foundation, in that it is fair to say that neither in November 2006 or April 2007 did the mother identify the very school, with a prospectus and a letter from the headmaster as to the availability of places, nor did she identify a particular employer who was ready and willing to offer her a job with a start date and a salary all confirmed.[9]However, as my Lord, Hedley J, has pointed out, the bar as to practicalities that must be jumped by the relocation applicant is set at a wide variety of heights depending on the facts and circumstances of the case. In this commonplace category of cross-border family creation, where the primary carer is returning to a completely familiar environment, the bar is obviously set considerably lower than in the case of an applicant who, in pursuit of some dream or ambition, is proposing to take the children to an unknown and untried environment. The bar is set particularly low where the primary carer is returning to the completely familiar home life after such a brief absence. In this instance the mother had only been in this country for six years in total.[10]The judge, in my view, dealt with this very sensibly in her judgment. She had the foundation of the CAFCASS officer’s appraisal that the mother’s proposals were entirely reasonable. That was both in written report and in oral evidence.

The judge then said:

“I have to consider the mother’s plans. She has not been able to go back to Texas to lay clear plans. She does not intend to go to Texas until after the English school term has ceased which will be at the end of July and she does not intend to go until towards the end of the English school summer holidays. In that sense she has time to finalise the real detail, the finer parts of where the children are going to live, which school they are going to go to, how she may be able to earn a living and the finances generally and be able to give proper detail.”
To the same affect

the judge later said:

“She has been criticised for not giving the finer details. I am not so critical because I find that she is resourceful and she puts the children first and she will ensure that there is a proper home with proper schooling and that she will provide finances for them and for herself.”
Those citations from the judgment are, in my view, a complete response to the first ground advanced by Miss Hay. All the points made by Miss Hay to us were made to the judge. The judge, with much greater knowledge of the parents and the family dynamics, came to a clear view that there was nothing in those criticisms. Who are we to interfere?[11]In relation to her second ground, the effect of refusal, it does seem to me that whatever Mr H may have said in November 2006 had to be weighed in the light of the passage of a further six months and a day and a half of further evidence. It seems to me pretty plain that whatever he had said in November was not regarded by Miss Hay as being a point of substance for her, let alone a winning point. All she said in her written submissions was:
“The mother has filed a statement from her current boyfriend. He is not able to consider moving until 3 and a half years from now because of his contract with the RAF. Even then he would have to consider the advantages of remaining in the RAF.”
The judge dealt with Mr H in much the same terms. She said:
“She has now formed a new relationship with a gentleman in the RAF who has another three years to serve. He is British. He has two children. They propose to marry here if they stay here; marry in Texas if the children can go. The plan, ultimately, is to make their lives together. Her fiancé says he will follow her to Texas as and when he can be released or his contract ceased with the Air Force. It is not intended that he would go immediately because he has to be released, but the current plan is that he will join the mother if she is given leave as soon as possible.”
With her fiancé in that context,

the judge dealt with the effect of refusal impeccably thus:

“The mother says ‘I will be very upset if I have to stay here. I want to go home. I will be happier there. I think I can make a good home for my children there’. “The CAFCASS officer also said that in being upset it would take a bit of time for the mother to settle down, to adjust to stay here. That would take time. If you have an unhappy primary carer, in this case a mother, it impacts upon children. An unhappy mother often means an unhappy child. I have to consider what is right for the children. I have to ask myself what is best for them bearing in mind that there are several thousand miles between two homes, the travel, the cost of travel and the loss of the regular weekend contact that the children are enjoying with their father and their grandparents. I formed a clear view. The mother has made reasonable and proper plans. She has considered when she can go. She is going to her homeland which she knows and only left six years ago. She wants to go home and feel more at home.”
[12]In summary, Miss Hay has not demonstrated the least misdirection on the part of the judge. Here the judge, with extensive knowledge of the family gained from prior contested proceedings, was exercising a broad discretion and came to a conclusion which is simply not open to criticism or challenge in this court.[13]For all those reasons I would grant permission in deference to the valiant efforts made by Miss Hay, but refuse the consequent appeal. I agree. I also agree.

Order

Application granted. Appeal dismissed.

Cited in 1 later judgment