S (Children) , RE [2011] EWCA Civ 454

[2011] EWCA Civ 454

Case No B4/2010/2754

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM MIDDLESBOROUGH COUNTY COURT

HHJ WALFORD

ZH09POO326

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 18 th April 2011

Before

LORD JUSTICE LLOYD

LORD JUSTICE PATTEN

SIR MARK POTTER

Between

L.S.A.Appellant

R.B.S.Respondent

In the Matter of S (Children)

Charles McCain (instructed by Hall & Co LLP) for Appellant

Harvey Murray (instructed by Cooper Scott) for Respondent

Hearing Hearing dates: 21 st January 2011 and 23 rd March 2011

Judgment

Sir Mark Potter :

[1]On 4 November 2010, after a hearing lasting two days in the Middlesbrough County Court, H.H. Judge Walford gave judgment and made an order granting the respondent father’s application to remove his two sons by the appellant mother, B (age 16½) and C (age 12), from the jurisdiction to live with the father in Canada on or after 1 January 2011. At that time the father and mother had been separated since 2006. They parted after 14 years of marriage; however each had continued living and working in the Durham area. The father is a master carpenter and the mother a local government officer. The mother was the primary carer and was indeed the beneficiary of a Residence Order which she had obtained in April 2010, having learned of the father’s desire, shared by the boys, to move to Canada.

[2]In coming to his decision the Judge treated the boys as a unit for the purposes of deciding whether or not they should be permitted to go to Canada with the father. He did so by common consent of the parties supported by the approach of the CAFCASS reporting officer that the siblings should remain together. Before this Court, however, the mother has appealed the Judge’s order only in so far as it relates to the younger child, C, B having departed for Canada, on his own, to live with the father’s relatives shortly before the hearing of this appeal. In that respect the parameters of the case have shifted and the spotlight is focused on the position of C so far as this Court is concerned.

[3]The background is as follows. The father is Canadian and the mother English by birth. They met in Canada in 1990 when the mother was visiting members of her own family who were living and working there. The parties were married in 1992 and B was born on 1 April 1994. In 1996 the parties re-located to the mother’s home in County Durham where C was born on 7 September 1998. The boys have continued to live there ever since, until B’s recent departure. B has dual Canadian and UK citizenship (having been born in Canada) but C is a UK citizen. The mother works in local government. The marriage broke down in late 2006 as a result of the mother’s affair with RL, with whom she has since lived. The children have remained with the mother, but have had regular contact with the father on alternate weekends and mid-week each Wednesday after school. The school holidays were shared.

[4]The mother’s partner is also a local government officer. Their home is in a large village where she has the benefit of a strong support network including her own parents and the mother of her partner. Other relatives live close by. The father has lived on in his own house which he has attempted to sell without success for the last 2 years.

[5]Both B and C have attended local schools where they have done well. B, having attained 11 GCSEs, embarked upon acquiring an engineering diploma at New College Durham, equivalent to “A” levels. Until his departure to Canada, he was working well and looking to achieve distinctions at the end of year 1 in September 2011, had he not departed. C is reported to be well and happy at school where he has received several awards for his work.

[6]The children visited Canada on holiday in 2000 and 2006 with both parents prior to the breakdown of the marriage, and subsequently in 2009 with the father only. In Canada, the father similarly has available a support group of relatives and others who are known to the children via the visits mentioned.

[7]Following the holiday in 2009, the father asked the mother for information relating to the maternal grandmother as he wished to make an application for C to obtain a Canadian passport, to enable him to take both children to live with him in Canada as from summer 2010. The mother refused to supply the information and complains that the father later telephoned the maternal grandmother directly to get the information on the false pretext that it was required for a school project of C. The father denies this. Mother only later learned from B that, together with the father, and without the knowledge or agreement of the mother, he and C had looked at schools for themselves whilst they were in Canada on holiday. She also learned from the Canadian High Commission that the father was attempting to obtain a Canadian passport for C.

[8]In those circumstances, on 16 October 2009, the mother lodged an application for a Residence Order in respect of both children. On 10 December 2009 the court made an order that, upon the father undertaking not to remove the children from the jurisdiction without the mother’s consent or the leave of the court until the conclusion of the proceedings, CAFCASS should prepare a report pursuant to s. 7 of the Children Act 1989 in relation to the issue of residence to be filed by 1 April 2010. The case was listed for directions on April 2010 with a view to a final hearing on 3 June 2010.

[9]The father was not present at the further directions hearing on 23 April 2010, no CAFCASS report having been embarked upon by that date. At that hearing, the Judge made a Residence Order in respect of both children in the mother’s favour until further order and provided for a CAFCASS report to be filed by 20 May 2010, the parties supplying statements confined to the issues of residence and contact.

[10]On 24 May 2010 the CAFCASS officer, Mr Shiel, filed his report in which he referred to the father’s express wish to return to Canada as the country of his birth taking the children with him, but commented that he was hampered by the absence of any application by the father to remove the children from the jurisdiction, compounded by a paucity of information relating to the children’s immediate care and well-being in Canada, the father’s intended employment, or the schooling arrangements for the boys on any move to Canada. Mr Shiel stated that it was inappropriate to consider that aspect until proper enquiry had been made and the situation clarified.

[11]On 27 May 2010 an order was made for the father to supply a concise written statement to the mother confined to the issue of his plans and proposals for the move to Canada, including what he intended for the children, so that the CAFCASS report hitherto directed to the issue of residence could be expanded to include the question of leave to remove the boys from the jurisdiction. The case was relisted for hearing on 1 November 2010.

[12]The father made his application to remove on 11 June 2010, but failed to file his statement until 6 July 2010 so that it was only on 10 September 2010 that Mr Shiel was able to file his final report. In that report he recorded the father’s view that the promise of accommodation for himself and the children with his sister Karen in Canada, a promise of employment for the father there, and the readiness of the Canadian Education System to accept both children should be sufficient for the court to look with favour upon his application. Mr Shiel also recorded that the mother would have no objections to B going to Canada once he had completed his secondary education; and that she had a positive view of the father’s sister whom she knew. Finally, he reported that the boys’ relationship was a close one and they did not wish to be separated.

[13]In his Summary and Analysis, Mr Shiel stated that he was discouraged by what appeared to be the father’s lack of preparedness and planning in connection with his intended move to Canada. He also recorded that he would be loath to see the brothers separated and suggested that the father should make clear to the court his intentions as to whether in fact he would move with B, should the court be inclined only to permit the removal of B, having regard to his age. The father was not prepared to make this clear to Mr Shiel and indeed evaded answering that question in the course of his evidence. Mr Shiel noted the need for the court to hear evidence confirming the availability and security of housing arrangements and school places for the children. At paragraphs 49 and 50 of his report he highlighted a matter which encapsulated a concern of

the judge at the hearing:

“49. In considering the overall picture – from the inception of the proceedings by way of mother’s application for Residence Orders, to the forethought given by father in connection with his proposals to move to Canada with the children – I am inclined to err on the side of caution and believe that father’s application to move the children should, at this time, be postponed in the knowledge that he can, at a suitable time in the future renew his efforts to have the children live with him. 50. This of course may not be the panacea to the current situation. Postponing matters can been seen as procrastination for, unless arrangements are made sometime in the future when the children’s ages are such that … the involvement of the court [is no longer] necessary, the question of age, and understanding, in respect of C will become an issue, and circumstances not dissimilar to the present impasse will arise.”

[14]Mr Shiel’s concluding recommendations read as follows:

“57. That the court give due weight to the initial application of mother which resulted in the existing Order for Residence. 58. The status quo is satisfactory and in my opinion there is no overwhelming reason demanding a change to the existing arrangements. 59. Nevertheless, evidence may be given to the court that gives assurances as to the stability presently experienced by the children continuing if they were to move to Canada with their father. This is a matter upon which the court will make a judgment which is in the best interest of the children.”

[15]Mr Shiel had suggested to B and C (whom he saw together) that they might wish to write to the Judge expressing their opinions in connection with the proposed move to Canada, but they both declined his invitation. He recorded that B had said he would have to disagree with the Judge if he thought that B was not old enough to move. B referred to the “legal age” for moving and questioned why he should not move elsewhere, even if it was to a different country. C also asked why he should not be allowed to choose, saying “it’s my life anyway”. Asked if they had a message for the judge B said “I wanted to go to Canada most of my life and believe I should decide which path my life takes”. C said “I definitely want to go”.

[16]Having been shown the report of Mr Shiel, and believing that their views had not been fully set out in that report, with the encouragement of their father, the boys wrote a joint letter to the Judge which was filed on 30 September 2010, setting out at length their reasons for wishing to go to Canada and to leave England. It is clear that although the letter was signed by both of them, it was written by B. The letter listed ‘Reasons for going to Canada’ and ‘Reasons for leaving England’. The former included wanting to get to know the father’s family better, none of whom lived in England; a belief that life in Canada would be an improvement over England in many ways; a welcome change in the learning environment and way of living; a wish to have the rest of their childhood in Canada; a preference for hot summers and snowy winters and greater sporting opportunities, including ice hockey and baseball. The letter listed(1) a wish not to live with R.L. who was painted as a controlling personality with whom the mother, as well as life in the home, had changed for the worse;

(2) the “dull and depressing” English weather;

(3) a repeated preference for sporting opportunities in Canada;

(4) having missed Canada since having holidayed there. The text stated that both boys had collaborated in the making of the letter and would like to go to court to express their feelings on the matter. In the event B spoke to the Judge in his room at the hearing, but C did not.

[17]At the hearing, the judge received oral evidence from both parents and the CAFCASS officer. By then the father had assembled a considerable quantity of documents (a number of which were only produced on the morning of the hearing) confirming the arrangements for the children’s residence and care in Canada in the house of their aunt whom they knew well, liked, and who appeared enthusiastic to receive them, as well as material demonstrating the availability of arrangements for their admission to education at suitable schools in Regina, Saskatchewan. As the judgment makes clear, the judge saw B in his room for some ¾ of an hour and talked to him about the matters raised in the joint letter.

The Judge’s note of this discussion given to the parties reads as follows:

“(1) I have met with B and he has impressed me as an extremely thoughtful and articulate young man. (2) He is clearly keen on going to Canada. He told me if he was not allowed to go to Canada he would be disappointed, as would C. B, would be angry towards Mum. He would be really upset and he thinks it would distract from his work. (3) It would be difficult for him to overcome his disappointment. He has thought it through from every angle and it is better for all of us, for C, and my relationship with Mum. (4) Obviously, I would miss Mum but technology would make things much easier to remain in close contact. I want to come back to see Mum at every opportunity. (5) He says, sadly, that the dispute engendered by the proceedings has affected his relationship with his mother adversely and he is for saying that a bit of separation would do their relationship some good. (6) He was telling me, to complete the picture as he did, in relation to the course that, at the moment, he was gliding because the course material is stuff he has already done. (7) He did say that he had chosen the course, in effect, as a stop gap as he was so convinced that he is going to Canada. (8) B says didn’t know his Canadian family very well, but he sees that as a positive. (9) B said he wouldn’t want to go without C.”

The judgment below

[19]The Judge gave careful thought to the situation which confronted him. So far as the parties were concerned, he had no word of criticism for the mother, recording, and plainly accepting, her evidence that as primary carer she had taken a much greater interest than the father in the education of the boys, in attending parents’ evenings and the like. This was borne out by the father’s apparent ignorance of the grades that B had achieved in his GCSEs. It was the mother who had motivated B when motivation at school was lacking and spurred on the school to do more to assist him to achieve his potential. It was in no small measure due to her that he did as well as he did in his GCSEs.

[20]The Judge recorded the mother’s acceptance that the boys did want to go to Canada and, indeed, that B had wanted to go and live in Canada since he was small and discovered that he was Canadian-born. The mother was content that B should go to Canada for a gap year, having done his “A” levels and to university in Canada thereafter if that is what he still wished to do. As far as the expression of the boys’ wishes was concerned, it was the mother’s view that B influenced C, C being under pressure from both his father and his brother to express the wish to go to Canada. The judge recited the mother’s view that the father had been thinking on his feet in terms of the practical arrangements that had to be made, having made up his mind that he and the boys wanted a new life in Canada. The judge referred to the reservations expressed by Mr Shiel in his report that it would be better to err on the side of caution and, in effect, the father’s application should be postponed until B had done his “A” levels and achieve the age of 18 as would happen in some 18 months.

[21]The judge did not make a similar recitation of the evidence of this father. However, he dealt with the mother’s principal criticisms relating to the father’s “thinking on his feet” and her belief that his motive for seeking to remove the boys was in large measure to get back at her in the following passages of his judgment:

“9. I am satisfied that father did not, initially, give sufficient thought to the practical arrangements, accommodation, employment, health care, network of support, education, the sort of important bedrocks of any life wherever it may be pursued. I feel that that was in part due to the fact that he was returning to his roots and was confident that the family’s practical needs could readily be met. And in part due to a lack of appreciation of the amount of detail which the court would require rather than being an indication of a careless, cavalier or neglectful attitude to practical arrangements to enable the transition to Canada to be successful. 10. Once he realised what was needed, he has provided the sort of evidence that might have been expected initially and he has provided evidence which has satisfied me that he has received a genuine job offer which will remain open until he is free to go to Canada. He has, I am satisfied, a secure home to go to. The plan is that father and the boys should live with sister, K, who mother, according to Mr Shiel, approves of as a person. The offer is of a home with them and the boys’ paternal grandmother in accommodation which is suitable. I am also satisfied from the evidence that has been produced that the schools which have been earmarked for the boys are both of an appropriate standard and are geographically convenient to where it is intended that the boys should be living with their aunt and grandmother. I am also satisfied from the evidence that has been provided, that if B continues with his wish to attend the University of British Columbia, the school that has been identified for him in the Regina area, is one which would be likely, it seems to me, to give him enhanced prospects of getting into that university. 11. What is a sad feature of this case, of course, but inevitable, is that there remains a degree of hostility between these parents and a patent lack of trust between them, a lack of trust which it has to be recognised that father has done nothing to dispel. Father, I am satisfied, felt bitter, understandably, about his wife’s affair, with her present boyfriend, but, he tells me, that he has now got over that. However I do not find that father’s principal or primary motive was or is to hurt mother. But I am satisfied that he knew that it would and indeed knows that it does and I suspect that, whilst that not being his motive, it causes him no particular regret. As far as father’s attitude towards the boys’ wishes is concerned, clearly the boys have set their hearts on going to Canada, and perhaps it can be said that he has done nothing to manage, or control the boys’ expectations. 12. What I have to decide is what is in the best interests of these two boys. Even though their ages and educational circumstances are different, I treat them as a unit. That is what they want me to do, it is what the parents want me to do and it is what Mr Shiel wants me to do. I am satisfied that to do otherwise would cause real problems and would not be right.”

[22]The judge then referred to the principles set out in Payne v Payne

[2001] EWCA Civ 166

[2001] Fam 473

observing that the case was very different on the facts and was really what is sometimes described as a “lifestyle choice case”.

[23]He went on to say that what made the case unusual was the age of the children and the strength of their views and he made clear that he had had particular regard to the views of the boys expressed in their joint letter as well as in person by B, in the course of an interview lasting three-quarters of an hour. Of this interview he said as follows:

“14. What makes this case unusual is the age of the children and the strength of their views and I have had particular regard to the views of the boys, expressed so vehemently in a joint letter, and also by B to me in person. I have been able to form my own view about B. C is clearly a sensible and intelligent boy, he is doing well at school and his mother described him as logical in his thinking. In addition to the views of the boys, I obviously have had to have appropriate regard to the effects on them and on all concerned of my refusing this application and of my granting it. 15. I met B and we talked in my room for some three quarters of an hour. I had in front of me the joint letter that the boys had composed. B impressed me as a mature thoughtful and articulate young man. He is a credit to both his parents, but more particularly it has to be said to his mother because she has been the primary carer of him. He told me that he had wanted to go and live in Canada, ever since he realised that he was Canadian. In his report, Mr Shiel has written that he found B’s commitment to Canada somewhat wanting. I have to say that that was not my impression. I did not find B’s commitment to going to Canada to be anything other than wholehearted, determined and convincing. He told me that he had thought things through from every angle and he was convinced that it would be better for all of them, for all members of the family, if I was to grant this application, without in any way suggesting that he did not love his mother. He said to me that he felt closer to his dad than his mum as he also thought, did C. It was because, as I interpreted what he was telling me, that they had more shared interests and also I suspect, due in no small part to the fact that whereas mother has had to deal with the day to day drudgery, if I can put it like that, time with father is probably viewed as more of fun time. 16. He says that if he was not allowed to go to Canada, he would be very disappointed. He would feel angry with his mother and he felt that C would too. He added: “I’d be really upset and I feel that it would be difficult for me to overcome my disappointment. I think it would affect my work at school, and would distract me from it”

. It would also, he thought, adversely affect his relationship with his mother. He said that he felt, and he expressed this with sadness, that the current dispute had already had a damaging effect on his relationship with his mother He felt that a bit of separation would do the relationship good.” “I’d be really upset and I feel that it would be difficult for me to overcome my disappointment. I think it would affect my work at school, and would distract me from it”.

[24]So far as C was concerned, the judge did not see him separately. However, Mr Shiel did so on the morning of the hearing in order to ascertain whether C’s true feelings were conveyed by the joint letter. Mr Shiel confirmed that C had made clear his agreement with the contents of the letter, with the important reservation that he did not agree with criticisms of R.L made by his brother and that he got on very well with R.L. The Judge plainly accepted C’s wishes and feelings as otherwise correctly expressed in the “joint” letter. The judge then turned to weigh up the advantages and disadvantages of granting or refusing the application. He expressed his concerns as to granting it as being:(a) a concern that the continuity of their education would be temporarily disrupted;

(b) they might not settle as readily as the father believed they would;

(d) that their relationship with their mother would be adversely affected by losing the advantage of the day-to-day care which she has provided for them. In this last respect the judge stated that it would be more of a loss to C, because of his younger age.

[25]He summarised the advantages of granting the application as follows:(a) It was something that B had wished to do for years and would assist him with his intention to go to the University of British Columbia and make his future in Canada;

(b) Both boys would approach their future with enthusiasm;

(c) They would not be entering the unknown, but rather going to a country and an area of the country with which they were familiar to live among blood relations and people and places known to their father and, to some extent, to themselves. On the other hand, if the application were refused, the judge was concerned their disappointment would be such that B might switch off and become disheartened and not do himself justice in his “A” levels.

(d) C, too, might become disheartened, dispirited and apathetic towards his schooling and he might, in his disappointment, become a difficult teenager. Although B only had 18 months’ time to wait until he had finished his “A” levels, so far as C was concerned, if he were similarly required to wait, it would seem a “lifetime away”. Further, if the application were refused, it could well be that the disappointment and resentment felt by the boys would permanently and irrevocably damage their relationship with their mother.

[26]In conclusion,

the judge stated as follows:

“20. The other fear that I have if I was to refuse the application would be the effect that it would have on their relationship with their mother. It could be, but obviously I am conscious that all will be done to prevent this happening, but it could be in their disappointment that the relationship with mother is permanently and irrevocably damaged. I should observe at this stage that their relationship with the gentleman with whom mother is living, is a lukewarm one. 21. The advantages of refusing the application would be the continuation of the status quo, they being looked after by their mother in a setting and in a routine with which they are familiar, and also having regular contact with their father as to date. This regime has clearly worked to date because they have been well brought up and done well at school. But this would only be an advantage to them if they were able to overcome their disappointment, able to put to one side all thoughts of living in Canada and able to continue as if nothing had happened. Given the strength of feeling expressed both in the boys’ joint letter and by B directly to me, that would not be easy and the likely scale of their disappointment could have the unfortunate and long lasting repercussions to which I have referred. 22. For B to have to wait a further 18 months before being able to go off his own bat, and for C to have his wishes put on hold as it would appear to him for an endless period of time, could, in my judgment, demoralise them. Having given this matter considerable thought, I have come to the conclusion that the advantages of allowing this application outweigh the risks involved and therefore I ought to grant permission for the boys to be removed from the jurisdiction….”

[27]At that point the judge anticipated, as no doubt did the parties, that the order would be put into effect after Christmas, that is to say on or after 1st January 2011, and in time for the boys to start the school semester in Canada. He made his ruling upon the basis of a subsequently confirmed contact order which included a minimum level of one visit per annum by the children to the mother at the cost of the father; one other visit to the mother in England, the cost to be shared equally; and arrangements being set up for contact between the children and the mother through electronic media including Skype, Face book and e-mail.

[28]Deeply upset by a result which she had not anticipated, the mother sought from the judge and, on 23 November 2010 was granted, leave to appeal from his order, the judge observing that his decision was obviously a momentous one, that it had brought about a substantial alteration of the status quo, and that it was quite proper for another tribunal to review the exercise of his discretion in a case that “could have gone either way”. However, the judge did not grant a stay upon his judgment.

[29]By then the mother found herself faced with jubilation on the part of the 16½ year-old B at the outcome of the proceedings, his immediate cessation of attendance at his college course and celebration with his friends of his departure for Canada in advance. In those circumstances, she decided to pursue her appeal in respect only of the 12 year-old C whose reaction, according to her, has been ambivalent and she obtained a stay from this court in respect of C.

The grounds of appeal

[30]The mother lodged grounds of appeal as follows: First and foremost, she says that the judge erred in principle in treating the two children as a “unit”, by failing to have regard to their individual needs and welfare, particularly those of C. It is said the judge failed to have any or sufficient regard to the fact that their removal would result in their being removed from their primary carer and, in particular, he failed to distinguish between the interests of B who, at 16½, held strongly expressed wishes and feelings and was approaching an age where it was proper for him to make up his mind for himself, and C, who at 12, was still in need of a maternal primary carer and the continued security of the home, and the milieu and circle of friends he had always known. It is said that the judge erred in allowing B’s strongly expressed views unduly to influence the future care and welfare of C.

[31]Secondly, the mother complains that the judge was inconsistent in that while he referred to shortcomings in the father’s previous involvement in the children’s education and health which had essentially been left to the mother, he failed to address how the father might make up for those shortcomings if he became the children’s primary carer in Canada.

[32]Third, it is said that the judge failed to have sufficient regard to the following matters:(a) The father had given no sufficient thought to the practical arrangements for accommodation, employment, health, network of support and education in respect of the children on taking up residence in Canada;

(b) He had involved both children in subterfuge in concealing from the mother his intentions to move with them to Canada;

(d) In the course of conversation with the CAFCASS officer C had disassociated himself from significant parts of the “joint” letter concerning their wishes and feelings;

(e) It was the view of the CAFCASS officer that there was no overwhelming reason demanding a change in the existing arrangements for the children, there being no positive objective reason or benefit to the children in leaving the jurisdiction other than their own beliefs that Canada might offer a better lifestyle.

[33]Fourth, in speculating as the impact upon the children if permission were refused, the judge failed to have regard to B’s comments to the CAFCASS officer that, in the event he was not allowed to live in Canada, he “would get on with life” in the UK and that it was difficult to say how C would react if B went to Canada and C did not.

[34]Fifth, it is complained that the judge erred in failing to carry out a full analysis of each child’s welfare by reference to the “welfare checklist”.

[35]Sixth, in particular, he failed to give weight to the information relating to the children’s current education and the fact that they were both settled and performing well at school, wrongly viewing any delay in reaching his decision simply as an exercise in procrastination, when there was in fact no immediate need for a move to Canada.

[36]Seventh, it is said that the judge failed to give sufficient weight to the father’s subterfuge, lack of planning and shortcomings in his own parenting when considering the father’s ability or willingness to promote contact between the children and their mother in the event the children moved to live in Canada.

[37]In all the circumstances, it is said that the judge was plainly wrong in the exercise of his discretion.

[38]It is clear from the passages of the judgment I have quoted above that the core of the decision and the approach of the judge rested upon the strongly expressed views of the boys that they wished to move to Canada with the father and the view then shared by the parties and apparently endorsed by the CAFCASS officer that the matter fell to be considered upon the basis that B and C as siblings should not be split (see paragraph 12 of the judgment). It is also clear that both the father and mother were putting their eggs into one basket, advancing their respective cases on an “all or nothing” basis. Indeed, remarkably, the father refused to answer questions as to whether he would proceed to Canada with B if it were held that it was not in C’s interest that they should go.

Subsequent Developments

[39]When the appeal first came on for hearing before this court, we were informed that B had in fact departed for Canada on his own on 13 January 2011 on one of three plane tickets which the father had purchased prior to the grant of the stay in respect of B. We were told that B had now started school in Canada and is resident with his aunt in Regina. The father is seeking to let his property here before departing to Canada but has so far been unsuccessful. He remains in employment here.

[40]In the light of this fait accompli, which created a situation which was not addressed in the judgment below, this court adjourned the hearing, directing that the CAFCASS officer should file a further report dealing with the best interests of C in the light of the change in circumstances that B had now gone to Canada, such report including C’s wishes and feelings, the parties being at liberty to file themselves further written statements shortly thereafter.

[41]That report has now been obtained and the parties subsequently have filed further statements. In addition there is attached to the CAFCASS Report a further letter dated 2 February 2011 from B in Canada, which makes clear that the father has communicated to him an account of these proceedings on 21 January 2011. The letter does not really carry the matter further forward, save in two respects. It states of B’s relationship with C:

“It is still early, but I believe we will both start to miss each other as we are not accustomed to being separate for a long period of time”

And “If keeping us together is the best thing to do, I am not even considering returning to England, so the only logical outcome I see is to allow C to leave and move with our father to Canada.”

[42]So far as the parties’ statements are concerned, the nature and strength of C’s wishes and feelings now that B has departed are very much in issue.

[43]The father’s statement makes clear, and it is not disputed, that a week after the hearing below, there was a family meeting at the mother’s request at home and in the presence of friends of the parents. At that meeting C said that he was pleased to have the chance to say what he wanted to do and pleaded with his mother to allow him to move to Canada, saying that his father would let him come back if he did not like it. At this the mother became extremely upset and, following the meeting, the boys told the father that she was regularly in tears in front of them. It is the father’s belief that now B has gone to Canada, the mother is seeking to influence C into changing his mind and that, though his mind is unchanged, he is now too frightened to express his true wishes for fear of upsetting the mother further. The father’s statement is otherwise largely directed to comment and argument upon the various CAFCASS reports and the nuances, motivation and message underlying C’s various observations to Mr Shiel. He submits that in truth C has not changed his mind but has merely become nervous of expressing it.

[44]The mother’s statement is a long one and by no means limited to comments upon the CAFCASS report. It is noteworthy in that it fails to mention the family meeting referred to by the father which took place shortly after the Judge’s decision. It is her case that, since that time, C has expressed doubts about going to Canada and a preference to remain with the mother and RL and to carry on his education in England. In contrasting B’s celebratory attitude with that of C, she goes on to assert:

“C has made no such fuss – he does not want to be drawn into any conversation about Canada. When he realised how upset I was with the decision he said “don’t think about it Mum – that’s what I do.”

In dealing with C’s subsequent behaviour, the mother states that:

“Following the submission of the Appeal, C did not display any negative behaviour or say anything negative about the turn of events. He just continued to be a happy boy and indeed immersed himself in his schoolwork as if no change was on the horizon. The further few months before a final decision was made appeared to be a relief to him and he visibly relaxed. In my opinion these are not the reactions of a bitterly disappointed boy whose dreams had been delayed.”

This state of mind is also reflected in his school reports (see further below).

[45]The mother goes on to criticise the father for sending B “alone” to Canada to be looked after by his “relatively unknown” aunt with no assurance as to when or if his father or brother would be joining him. However, in the light of the need for the continuing presence of C in England pending the resolution of the appeal, this scarcely appears a fair criticism. The mother is also critical that the task of finalising and coping with the educational arrangements for B and C in Canada has been left by the father in the hands of his sister.

[46]So far as C’s welfare, and his adjustment to the removal of B to Canada are concerned the mother makes clear that this has had no apparent adverse impact on C in anyway. He has not emailed B and, while encouraged by the mother to speak to B when he rings on the telephone, he shows little interest in what B has to say. She also said that C has expressed concern about living with his aunt, based on a recently revealed incident of discipline upon C and his cousin for bad behaviour when C was on holiday in Canada in 2009.

[47]C’s present situation is described in this way:

“19…..C is not making any preparations to leave his home. In fact he removed books and toys that he had kept at his father’s and brought them home to his own room here. C talks about summer holidays, weekends at Dad’s, homework and school. He wants life to carry on as normal. He’s recently taken up a new hobby and started to become a collector of old pennies…. I submit these are not the actions of a child anticipating moving on to another country.” “20. C is enjoying school and working hard and has not changed at all in that regard. He is conscientious and does his homework when required. C is proud of the fact that he has 100% attendance. In fact he was insistent that his CAFCASS interviews did not interfere with his attendance record or a forthcoming German test. He never mentions the possibility of going to school in Canada and obviously is committed to Stainthorpe School.”

[48]The mother expresses grave concerns that, if C moves to Canada she will suffer tenuous contact arrangements with C who will lose the benefit of her day to day care. In the light of the CAFCASS report (to which I shall shortly refer) the mother perceives C’s position as being a demonstration to all concerned that he does not wish to shoulder the responsibility of choosing between his parents and, as she puts it, “has made the choice not to choose”. She observes that it is not a confused decision but a message that he loves both parents and refuses to choose between them. She criticises the father for lacking the empathy to appreciate that pressure upon him from the father and B is not in C’s best interest. The final paragraph of her statement sums up her view of C’s position as follows:

“39. In conclusion C is a very special boy. He is thoughtful, funny, kind and considerate. It is no surprise to me that he took the decision to effectively not choose between his parents, as I believe this is a decision that would have had a significant psychological effect upon him. It is however my view that C wishes to remain with me at his home in Stainthorp. I do not question that he loves his brother but at present I do not believe he misses him significantly. B and C are two very different boys with a significant age gap of 4½ years. B is nearing the end of his secondary education about to enter University life; C is just beginning his secondary education. B I believe is now old enough to make his own decisions, and that is why I do not pursue an Appeal in regard to B. C however is only 12 years old and very different to his brother and I believe that it is in the best interests of C that he remains in my care. He will maintain contact with his brother by email, skype and the like and will also have direct contact with him when I do. I did not want to separate my sons but the reality of the matter is that they are now separated and I believe that this has not been detrimental to C and I believe it is in the best interests of C that he remains with me in my care.”

[49]The mother’s conclusions are largely consistent with and supported by the latest CAFCASS report, compiled by Mr Shiel and filed on 21 February 2011 following two further meetings with C on his own on 2 and 14 February.

[50]As to C’s wishes and feelings about Canada at his first meeting with Mr Shiel, C appeared ambivalent, unsure, and indeed unwilling, to give any clear answer to the question whether, B having now departed for Canada, he (C) still wished to go himself. In response to a suggestion by Mr Shiel that he might have changed his mind, C said that he had “sort of”, but added that he would “go to Canada if Dad wins the case”. Reminded that the concern at this stage was the question of what he actually wanted, he said “I want to go, but I don’t want to go at the same time”. Asked how he felt now that B had left home, his response was “Just the same”. Asked if he missed B, he indicated that he did not. However, he added “it’s only a month or so, I don’t really miss him for a month”. At the second meeting, he explained “I don’t really miss people much. If I know I will see someone, it does not really affect me.” “I don’t miss him, perhaps in a year or so but not right now”.

[51]What emerged very clearly was that C was only too well aware of his father’s wishes that he should go to Canada and his mother’s desire that he should stay; it was equally clear that he did not wish to make, or be responsible for, the decision himself. Asked if he would be happy if someone made the decision on his behalf, he said delphically “Not if it is the wrong decision”, but would not expand on that answer, accepting that he did not know what the right decision was. Finally, and happily, it is clear from a recent school report and a conversation between Mr Shiel and C’s teacher, that neither B’s absence in Canada, nor the position in which C finds himself, have in any way affected his cheerful demeanour or his academic work which is said to be “Beyond expectations” on the school’s grading criteria. C is regarded as bright, confident and very nice, “not vulnerable, with plenty of friends and is involved in school activities”.

[52]Mr Shiel’s summary and recommendations reads as follows:

“55. It hardly demands comment that this has been, and continues to be, an extremely difficult matter which has provoked emotion on the part of those persons involved… 56. To all intents and appearances C endures his situation with the fortitude that can be expected from a twelve year old boy. Without seeking to be emphatic he is, as has been indicated previously, the proverbial “piggy in the middle. 57. The difference in ages between C and his brother B is not huge but conversely it is not an age gap which can be called close. Their present ages are such that B will, in all probability, be seeking his own way. He is the more mature of the boys and has the prospect of senior school, university and girlfriends. Whilst it is a world that might not be totally unknown to C the possibility exists that the gap and experiences between the brothers will widen. The principle that siblings should be together whenever possible is recognised, however, in this instance there has been something of a fait accompli. 58. C has indicated that he does not miss his brother although he has the wisdom to acknowledge that this could change in the future. 59. Sibling relationships are important and if C were to go to Canada he would be re-united with B; however, that reunification could be somewhat transitory. 60. Juxtapose the sibling relationship [with] the parental bond and, whilst there is no suggestion whatsoever that father cannot meet C’s needs, his mother, because she has been the main carer, has been able to demonstrate her ability in this respect. 61. There is every indication that C is settled at school and the prognosis, educationally is excellent. He experiences stability within his mother’s home. His developmental needs appear to be met and it is difficult to be explicit as to what benefits C would gain should he go to live in Canada… Recommendations Having considered the relevant elements of the welfare checklist and the “no order” principle, I recommend: 66. I am inclined to believe that there is no overpowering reason why C should not remain in his mother’s care. He is the “piggy in the middle” and does not, in common with so many other children who find themselves in similar circumstances, wish to be drawn deeper into his parents’ dispute, nor does he wish to make abundantly clear his wishes for fear of offending either his mother or father. 67. His loyalty is torn and the expectation that he might make a decision has proven to be a course he does not wish to take. It is important that C does not feel that he had to make a decision between his mother and his father. He expects someone else to make the “right decision” on his behalf. 68. It could be said that he has chosen to “sit on the fence” and that from his point of view, this is a sensible decision. The pressure upon children when a marriage has broken down is quite sufficient and making a decision in the present circumstances is something C has decided to avoid.”

Recommendations

The Law

[53]So far as the law is concerned, I do not propose to set out at length the principles which this court should apply in approaching the decision of the court below in relocation cases of this kind, involving as they do the exercise of judicial discretion by the Judge at first instance which is itself a balancing exercise taking into account the factors set out Payne vPayne. That is because these principles have so recently been considered by the President of the Family Division in this court, in re W (Children)

[2011] EWCA Civ 345

(a very different case on the facts), in which the President quoted at length from the speech of Lord Fraser of Tullybelton in G v G

[1985] 1 WLR 647

at 651F- 653G. In that passage Lord Fraser made clear that, in considering whether or not the Judge at first instance has erred in the exercise of his discretion the court is not limited to the considerations appropriate to the task of the court in judicial review cases, but that it may interfere in a case where it is satisfied that, despite the fact that the Judge has on the face of it considered the correct principles and had regard to the relevant factors in exercising his discretion, his conclusion is none the less “plainly wrong”. In such a case, it is open to the appellate court to conclude that the Judge fell into material error in conducting the necessary balancing exercise in respect of the various relevant factors to which he was obliged to have regard in reaching his conclusion.

[54]In that respect the appellate court must always bear in mind that, given the nature of cases of this kind, in which the court is concerned with the long term interests of children, against a background of anxiety, tension and grief on the part of one or both parents, there is seldom a right, and never a perfect, solution. It is not for the court to interfere simply because it would itself have decided differently.

[55]At the same time, it is important to bear in mind that, when the court is considering the welfare interests of siblings, the case of each requires careful and separate consideration pursuant to s.1 Children Act 1989. An individual exercise is required in respect of each child and where there is a conflict between the respective best interests of each child, the court must balance the welfare of one against that of the other in coming to its decision. : Re T and E (Proceedings: Conflicting interests)

[1995] 1 FLR 581

. This means that, if the court concludes or acts on the basis that it is in the welfare interests of siblings to stay together, and there is a dispute as to where or with whom they should live, it must be particularly astute to come to the decision which involves least risk to their collective welfare.

Discussion

[56]The grounds of appeal in this case, as I have set them out above at Paragraphs 30 to 38, raise a number of criticisms as to weight attached by the Judge to various matters which he undoubtedly considered but to which he attached less weight than it is said that he should have done. However, for the purposes of this appeal I do not consider it necessary to spend time on most of them, falling as they undoubtedly do into the area where considered individually, or together, none of them establishes an obvious error meriting this court’s disturbing the Judge’s decision. For the purposes of this appeal, and in the light of the situation as it has developed since the hearing below, I propose to focus upon the error of principle or method advanced on behalf of the mother under the first and main ground of appeal set out at paragraph 30 above, namely the Judge’s treatment of the two boys as a unit when, bearing in mind their differing ages, it was of high importance to distinguish and consider separately their individual needs and welfare interests including the need to consider separately and distinguish the weight to be accorded to their respective wishes and feelings. In the latter respect, as the Judge himself made plain, in considering the position of B he was dealing with the wishes and feelings of a mature and articulate 16½ year old determined to go to Canada for its perceived benefits and life style who was at a stage in life when independence of judgment and the ability to stand on his own two feet had largely developed. In such a case it is likely to be appropriate to attach great if not decisive weight to his wishes in relation to his individual welfare needs. The same cannot however, be said in relation to C, a twelve year old still at primary school and dependent on the day to day support of his mother as primary carer and who was plainly open and likely to be strongly influenced by feelings of an admired older brother making common cause with the father who wished to return to Canada.

[57]Whilst I have considerable sympathy for the Judge in adopting the “unitary” approach advocated by the parents and apparently supported by the reluctance of the CAFCASS officer to see siblings parted, I nonetheless consider that he fell into clear error by his failure to recognise that the welfare interests of the children, considered individually, were substantially at odds, rather than in harmony, in the light of their different ages, the stages of their development and the nature of their needs, with the result that the welfare interests of C were wrongly subordinated to the wishes and perceived interests of B.

[58]In this context, it is important to bear in mind that this was indeed a so-called “lifestyle choice” case. The status quo was entirely satisfactory from the point of view of the children’s current welfare as pointed out by Mr Shiel. This was not a case, as in most applications of this kind where the primary carer, almost invariably the mother, has compelling reasons, relating to her health, happiness or employment, to move abroad. The father was successfully and gainfully employed in this country and able to remain so. He was enthusiastic for reasons which were neither developed nor compelling to move back to Canada, and to take the boys with him at a stage when their education (largely thanks to the mother’s interest and influence) was proceeding well. B was on course to succeed in his equivalent of “A” levels in 18 months time and C was a happy and successful schoolboy. The boys had a good relationship with both parents and each other here in England and there was no suggestion that, if the father’s application was refused, he would go to Canada nonetheless, nor was it suggested that he or the boys would suffer economically or emotionally as a result of by such refusal.

[59]As Mr Shiel put it in his report, so far as the children were concerned, the status quo was satisfactory and there was no overwhelming reason which demanded a change in the existing arrangement. In these circumstances, as it seems to me, there was a heavy onus from the father to establish that it was in the long term interests of both children that, rather than waiting 18 months, when B’s secondary education would be complete and, if his resolve continued, he would be able to vote with his feet, both he and C should be removed from their secure home background and educational progress to proceed to the relative uncertainty of a new life in Canada. This was of particular importance in the case of C who, unlike his brother, lacked maturity to make up his mind for himself, was well, happy and successful at school and was of an age when the care, support and influence of the mother as primary carer were still the major factors in his life.

[60]It is noteworthy that, in summarising the advantages and disadvantages of granting the application (see paragraphs 24 and 25 above) the Judge made no distinction between the boys when listing the disadvantages although, plainly, if considered separately, they militated strongly in favour of refusal so far as C was concerned. On the other hand, in the Judge’s list of advantages, advantage(a) related to B alone. So far as advantage

(b) was concerned, there was no evidence or grounds to suggest that, if C remained in England, he would not approach his future with enthusiasm. As to advantages (c) and (d), the Judge’s fears that B might “switch off” from his “A” levels were themselves speculative (B had indicated to Mr Shiel that, if he had to wait to go to Canada he would just “get on with life”). His expressed fear that C might become a difficult teenager as a result of his disappointment and that his relationship with his mother might be irrevocably damaged, seem to me so speculative as to be more in the nature of makeweight suggestions ungrounded in any evidence or suggestion of the parties, or indeed in the Judge’s note of B’s views as expressed to him (see paragraph 18 above).

[61]It is clear to me from the form and content of the judgment that, in conducting the necessary balancing exercise in relation to the combined welfare interests of the boys, the judge essentially adopted a “top down” approach which throughout accorded a hegemony to the views and interests of B, when a “bottom up” approach which emphasised to the welfare interests of C was called for. B was at a stage when he was well able to speak for himself and to form his own views as his ability to adjust to the changes involved in a move to Canada where he wished to attend University and make a career. C was still at a tender age in secure surroundings, from which there was no compelling reason to uproot him. If the application were denied B would in any event be able to proceed to University in Canada without evident disadvantage in 18 months time, Had the Judge separately considered the welfare interests of each he should, in my opinion, have been driven to the conclusion that the application should be refused.

[62]Whether or not that is so, upon this appeal, the situation has moved on in a manner which the Judge did not consider. Consequently, this court has the task of assessing C’s welfare interests separately from those of B in circumstances where the boys are no longer together and the court is solely concerned with C. C has now made clear his intention that, regardless of the outcome of this appeal, he does not propose to return to England and he is apparently embarked on an educational course which means that, if his plan to proceed to the University of British Colombia is maintained, he will in any event be absent from his home in Saskatchewan (and hence the company of C were he to proceed to Canada) for substantial periods of the year, sibling contact being limited to holiday periods and the services of Skype as is presently the case.

[63]In those circumstances we indicated to the parties that, should we be minded to allow the appeal, we had it in mind to return the matter to the Judge for reconsideration in the changed circumstances. However, we were urged in the interests of finality to deal with the matter upon the basis of the further CAFCASS report and the statements of the parties now before us, and that is what we propose to do.

[64]For the father, Mr Murray has submitted that the further report of Mr Shiel essentially carries the court no further forward so far as C’s true wishes and feelings about going to Canada are concerned. He submits that there is every reason to suppose that they remain the same but unexpressed for fear of upsetting mother. I do not so interpret the position. It was plain to Mr Shiel, as it is plain to me, that C does not wish to express a view either way for fear of upsetting either parent. Even if it be that he has a preference for Canada as a life style choice as he sees it, he is nonetheless in two minds about the whole enterprise and wishes to be eased of the responsibility of participating in a decision which he is content and relieved to know will be made by the court. What is also clear, is that various elements of the Judge’s decision which he found to militate in favour of removal have become substantially less potent in relation to C. The high profile accorded by the parties and accepted by the judge in relation to the proposition that siblings should ordinarily stay together has been considerably diminished by the revelation that C does not appear to miss the presence of his brother, to any substantial extent, given that he can communicate with him by Skype so far as he wishes and he knows that he will see him twice a year under the arrangements for contact agreed between the parties and ordered by the Judge. As for the other fears of the Judge which figured so prominently in his decision, there is no evidence, indeed not a hint, of demoralisation or upset either in C’s relationship with his mother or his excellent progress at school.

Conclusion

[65]For the reasons I have already given, I consider that the Judge was wrong in his decision that the boys (collectively) should go to Canada rather than maintaining the status quo, on the basis that priority should have been given to the welfare interests of C in the balancing exercise which the Judge was obliged to perform. I am satisfied that the evidence now available in respect of C following B’s departure serves to enhance that view to the extent that it tends to dispel, rather than confirm, the speculative doubts which the Judge entertained as to the effects upon C if the application for permission were refused. It also serves to reassure me that C is content to leave the decision to the court and will accept it whichever way it goes. In my view it should go in favour of maintaining what is still the status quo in respect of C.

[66]I would therefore allow the mother’s appeal.

[67]It follows that I would therefore set aside the permission granted to the father to remove C from the jurisdiction pursuant to paragraph 1 of the Judge’s order dated 4 November 2010. I would also revoke the discharge of the interim residence order of 23 April 2010 contained in paragraph 2 of the Judge’s order in so far as it relates to C. The father should remain subject to the provisions in relation to contact contained in paragraph 3 of the Judge’s order in so far as it relates to B.

[68]I would invite the parties, having received a copy of this judgment in draft, to submit to the court a draft order in appropriate form including provision for any consequential matters which they consider require attention. It is to be hoped that they may also reach agreement on the question of costs in order to avoid the need for attendance and argument upon hand down of this judgment.

Lord Justice Patten :

[69]I agree with both judgments.

Lord Justice Lloyd :

[70]In Re W (Children)

[2011] EWCA Civ 345

, mentioned by Sir Mark Potter, Sir Nicholas Wall, President, reviewed thoroughly the cases concerning the status of a judge’s exercise of discretion, especially in matters concerning children, and the circumstances in which an appellate court can interfere with such a decision. Elias LJ and I agreed with him on that and on the outcome of the appeal, which was to set aside a judge’s refusal to allow the mother, the primary carer, to take the two children (younger and closer to each other in age than B and C in this case) back to her home country, Australia. That case was much closer in its facts to the leading case of Payne v Payne than is the present.

[71]Here the mother asks us to interfere with the judge’s exercise of discretion which was to allow the father, not the primary carer, to take B and C to his home country Canada, against the wishes of the mother, as a matter of choice of lifestyle, rather than for any compelling objective reasons such as existed in Payne v Payne and in Re W (Children).

[72]As Sir Mark Potter has explained, on the appeal we are only concerned with C, B, aged 16½, having already gone to Canada before the hearing of the appeal and the mother having realistically recognised that there was no point in trying to stop him from being allowed to go.

[73]It may therefore not strictly be necessary to consider whether the judge’s decision was right as regards B. However, I am inclined to agree with the view expressed by Sir Mark Potter at paragraph 62 that, taking the two children together (as each parent did), the right outcome may have been that neither child should have been allowed to go to Canada at this stage.

[74]I agree with Sir Mark Potter at paragraph 57 that, despite the common position of the parents that the boys should either both go or both stay, supported by Mr Shiel who attached importance to the two remaining together, the judge misdirected himself in failing to consider the best interests of each child separately. With children of the ages of B and C, and with their particular age gap, it could by no means necessarily follow that what is right for one is also right for the other.

[75]In a case within the court’s ordinary civil jurisdiction, a judge’s decision reached on the basis of a position which was common ground between all parties might well be immune from a challenge on the lines that the judge ought not to have accepted the premise, even though it was agreed. But certainly in a case concerning the welfare of children, it cannot be sufficient for the judge to accept a common position such as that in the present case, rather than to assess the best interests of each child separately.

[76]I therefore agree that the judge was wrong at his paragraph 12, quoted at paragraph 21 above. The last sentence of that paragraph shows that the judge did ask himself whether to accept the common position. With respect to him, I have to say that it seems to me that his conclusion on this was plainly not correct.

[77]For the reasons given by Sir Mark Potter, I agree that, looking at the welfare of C and his best interests as matters now stand, with the benefit of the parties’ latest statements and Mr Shiel’s latest report, the correct outcome is that C should not move to Canada now. He may choose to do so when he is older and the choice is for him. At this stage his best interests require that he should stay in England, in the care of his mother. The parties will need to address the question of how his contact with his father, and with B, is to be maintained for the time being.

Cited in 11 later judgments

and 2 more of the most senior