C (N, W & H), Re [2014] EWCA Civ 705

[2014] EWCA Civ 705

Case No B4/2014/0028

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM CAMBRIDGE COUNTY COURT HHJ O’Brien

FD13P00302

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

Date 23/05/2014

Before

LADY JUSTICE ARDEN

LORD JUSTICE SULLIVAN

LORD JUSTICE McFARLANE

Re C (Children)

Hearing Hearing date : 7th May 2014

Miss Clare Renton (instructed by Fisher Meredith LLP) for the Appellant

Ms Pegah Sharghy (instructed by Goldkorns Solicitors) for the Respondent

Judgment

Lord Justice McFarlane :

[1]On 7th May 2014 we heard an appeal by the father of three children against an order made by HHJ O’Brien in the Cambridge County Court on 20th December 2013. In his order the judge granted the children’s mother permission permanently to re-locate the children’s home from England to Brazil. At the conclusion of the oral hearing on 7th May we announced our decision, which was to dismiss the father’s appeal. This judgment now explains the reasons for that decision.

[2]The three children are a boy, N, born 19th December 2004 and therefore now aged 9 ½ years, another boy, W, born 31st October 2005, therefore 8 ½ and a girl, H, born 13th May 2007 and therefore now just 7 years old. The father, who is aged 46, is Portuguese and the mother, who is 32, is Brazilian. The couple met over the internet in 2000 and in 2001 the mother moved from Brazil to Lisbon to live with the father and they then married on 7th July 2001. In August 2003 the couple moved to England in the hope of improving their opportunity to earn money. The father, who has a degree in computing and had worked as an IT trainer, intended to operate as a property developer in a modest way by buying up and developing properties both in Brazil and in England. Save for a number of extended trips to Brazil, the three children, who were all born after the couple had moved to England, have lived all of their short lives here in England. However, despite the geographical distance between their countries of origin, the parents share a common language in Portuguese and the children are, apparently, fluent in both Portuguese and English.

[3]The family initially lived in London. However conditions in the home were cramped and, in August 2011 the family moved to live in Bar Hill outside Cambridge. Unfortunately the relationship between the parents deteriorated and finally ended in separation in November 2012. A number of applications and cross-applications were made concerning the arrangements for the children, however, the principal claim, which came to be the focus of the Children Act l989 proceedings, was the mother’s application for permission to remove the children permanently from this jurisdiction to Brazil. The mother’s case was made up of a number of elements which can be summarised in headline form as follows: a) The parents had always had a long term plan of moving permanently with the children to Brazil; b) It was not financially viable for the mother to contemplate living and caring for the children in England as a result of her limited earning capacity and the father’s meanness in providing maintenance for her; c) The mother’s emotional and mental health had deteriorated following the separation and the contested Children Act proceedings and she was only likely to return to a state of happiness and emotional wellbeing if she could move to live in Brazil so that she was once again living close to her own family and in her home country; d) Although, post-separation, the children had spent a significant amount of time with their father to the extent that from April 2013 onwards they had stayed with him for 5 nights in every 14, the mother had been the children’s primary carer throughout their life.

[4]For his part, the father disputed that the mother was the main carer, asserted that she had been neglectful of the children’s health and wellbeing and he disputed that there had ever been a plan for the couple to move permanently to Brazil. Finally, the father challenged the evidence as to the degree of upset that the mother was currently experiencing and challenged the assertion that it would remain a feature if leave to remove was refused. In addition, at the start of the hearing the father had an active application before the court for a sole residence order in his favour. In the event that was not pursued but he did seek a shared residence order and an increase in the time that the children spent with him, if they were to remain in England, so that the parents would each have the children in their care for 7 nights out of every 14.

[5]Although not unduly complicated, the family’s financial arrangements were unconventional to the extent that neither parent was in receipt of a wage from employment, yet the couple owned a number of properties in Portugal, Brazil and England. The father gained an income from managing those properties and running a small building and maintenance business related to them. The mother had a modest earning capacity arising from the fact that she had trained as a hairdresser specialising in hair care for Brazilians. There was a fundamental dispute between the parties as to the financial settlement that should follow their divorce. Case management directions had been made to permit one judge, HHJ O’Brien, to determine the leave to remove application during the first three days of a five day hearing slot, with the court moving on to determine the financial dispute during the remainder of that week. Unfortunately the hearing with respect to the children overran and effectively occupied most of the hearing time with the result that the financial dispute has yet to be determined.

[6]The judge heard evidence over the course of some four days from both of the parents and from the CAFCASS officer.

[7]It is, happily, a feature of the case that, despite the bitter parental dispute, all three children plainly love and get on well with each of their two parents. In particular, their relationship with their father, which has been fostered through the substantial amount of time that the children have spent in his care, was seen by the CAFCASS officer to be of sufficient value to each of the three children to the extent that the recommendation in her written report placed a premium on that relationship continuing with the result that she recommended that the mother’s application to re-locate to Brazil should be dismissed.

[8]The focus of the father’s appeal to this court is upon the approach that the judge took to the children’s relationship with him. Two key points are argued. Firstly that the judge failed to give sufficient priority to that relationship and, secondly that, in granting the mother leave to remove the children to Brazil, the judge failed to analyse and evaluate the real prospects of that relationship being maintained through direct and indirect contact.

[9]Having established the background, I now turn to describe the approach taken by the judge.

[10]After summarising the significant points in the family’s history, the judge described the evidence that he had heard. The CAFCASS officer was the first witness. She emphasised the positive manner in which all three children spoke about each of their two parents. She highlighted the fact that the mother had no support network in England, had no plans for her life if she were to remain in England, but stressed that there was no question of the mother moving back to Brazil without the children. The CAFCASS officer reported that the parties were totally unable to communicate with each other, and all communication was through solicitors. The officer was therefore concerned how contact would be facilitated in the long term if the mother did not speak to the father as telephone and face time contact would be pivotal to the contact for the children with their father were they to move to Brazil. Although the CAFCASS officer was worried about the mother’s mental health if permission were not granted, in her written report she had prioritised the very positive relationship that the children had with their father as being the overriding factor which drew her to recommend that the court should refuse permission for relocation.

[11]The judge, however, records that “in cross examination (the CAFCASS officer) rowed back from that recommendation. At the end of the day she accepted that the decision was on a knife edge and that it really had to be for the court to decide.

[12]During the parents’ oral evidence, the mother described that the father would be welcome to come to Brazil for contact four times a year or more and the children could visit England or Portugal twice a year for extended stays. The cost of travel was said to be about £700 per round trip per person, but she offered to set aside a fund of £20,000 from the financial settlement in the case to set towards the cost of transport, at least in the early years. The mother said that the father would be welcome to stay at her parent’s home whilst in Brazil for contact. She also offered ample contact by Skype

[13]For his part the father said he would be completely devastated if the children were to live in Brazil and he did not believe that the children would be happier there. If he had to visit Brazil, he did not consider that it was feasible for him to stay with the mother’s parents. He urged the court to endorse his plan for the children to remain living in England spending 50% of their time with each of their two parents.

[14]As a matter of structure the judge then went on to deal with the principal factual issues raised in the case, before moving to the more formal evaluation necessary for a relocation case in the light of the case law before finally considering the statutory welfare checklist in CA 1989, s 1.

The judge made the following principal finding:

[15]a) The mother has always been the main carer of the children; b) The father’s criticisms of the mother as a neglectful and poor carer of the children were rejected; c) Originally the couple did have a plan to move permanently to Brazil. The mother always adhered to that plan, but the father cooled off. However, the father never informed the mother clearly that the plan was off. The plan never came to fruition whilst the couple were together because they had yet to amass sufficient money to stay in Brazil permanently; d) The mother was never a “flight risk” in terms of abducting the children; e) During the currency of the proceedings the mother sold property in Brazil and obtained a sum equivalent to some £40,000. However, despite her difficult financial circumstances here, she did not bring this money back to England from Brazil. The judge noted this state of affairs, but had not been offered an explanation for it; f) “Unhesitatingly” the judge found that the father had risked the children’s quality of life by being mean over maintenance.

[16]Having made those findings, which are particular to the facts of this case, the judge moved on to evaluate the application in the light of Court of Appeal guidance in the cases of Payne v Payne [20101] EWCA Civ 166, MK v CK

[2011] EWCA Civ 793

, Re F (A Child)

[2012] EWCA Civ 1364

and a decision of Mostyn J in Re TC and JC (Children: Relocation)

[2013] EWHC 292 (Fam)

[17]The legal context described by the judge does not seem to have been controversial as between the parties before him and no point has been taken within this appeal as to his analysis of the law. I therefore do not intend to rehearse those matters within this judgment before turning to describe how the judge applied it to the evidence in the present case.

[18]In short terms the judge’s key findings were as follows: i) The mother’s application to relocate was genuine and was not motivated by some selfish desire to exclude the father from the children’s lives; ii) Her proposals are well-researched and investigated; iii) Having reviewed letters and short reports from her GP practice, the judge concluded that the mother was “plainly suffering depression”. In terms of her overall wellbeing he made the following conclusion at paragraph 61: “It seems to me unlikely that a refusal will alleviate the mother’s depression in any way. In lay terms it is plainly likely to make the mother more miserable. The mother gave evidence that she will be devastated. This is highly probable. It is also the view of [the CAFCASS officer] that the mother is more likely to be a fun mother for her children if she can move with them to her homeland.” iv) The father’s opposition is motivated by genuine concern; v) In terms of the extent of the detriment to the father and his future relationship with the children if the application is granted the judge’s analysis is at follows at paragraph 63: “The evidence is that the father has a strong bond with the children. They see him 5 days out of 14. If they go to Brazil he would only see them, say, 4 to 6 times a year. Skype is a good way of keeping in regular contact, but an inadequate substitute for face to face contact. There is no doubt that a bond would be maintained, but it is not likely to be as satisfying for the children as the present arrangement.” vi) The detriment to the children’s relationship with their father would be substantially offset by an improvement in their relationship with the maternal family and the mother’s homeland in Brazil, but “it will not be a complete substitute for regular contact with their father”.

[19]The judge, finally, went on to analyse the key factors in the case within the structure established by the welfare checklist in CA 1989, s 1(3). His observations with respect to item (c) regarding the likely effect on the children of a change in circumstances are of particular relevance:

“So far as living in Brazil is concerned they will be in familiar surroundings speaking a language they are comfortable with and in close contact with grandparents and other relations. According to H, they will enjoy better weather. They will, however, miss their father. Against that, the effect of a return to her homeland and proximity to her parents and relatives for the mother has to be considered. On the balance of probabilities it is likely that the mother will be much happier in Brazil. Whether she will recover from depression technically is a medical question, which the absence of an expert witness prevents me from answering, but on any sensible view she will be happier and more relaxed. This on the evidence of [the CAFCASS officer] is likely to make her more relaxed and more fun for her children, so there would be a considerable benefit for them.”

[20]Finally

the judge moved to stating his conclusion at paragraphs 72, 73, and 74 as follows:

“The dilemma here is that a move to Brazil will enhance the children’s life with their mother, who has been the main carer, but reduce the amount of direct contact with the father, with whom they have a strong bond. I agree with [the CAFCASS officer] that this case is finely balanced but I think the result I conclude is that the welfare of these children is best served by them remaining in the care of their mother, who has been their main carer throughout their lives, and moving with her back to her roots in Brazil where her increased happiness will be reflected upon them. If at the end of the financial dispute between the parties the mother has funds to provide the pot with £20,000 to finance travel for contact she must do so. The mother has offered to bring the children to England or Portugal twice a year. I do not propose to order that. I do not regard such lengthy travel twice a year as in the best interests of children of this age. The journey takes about one and a half days and normally involves three aeroplanes. I shall order one such journey per year. Of course the parties will be at liberty to agree more contact if they wish. I do not consider it appropriate to order it. As I understand it, the mother is happy to arrange contact in [Brazil] three or four times a year. I shall limit the order to three times a year. Again, the parties are at liberty to agree more. The order should ensure that the children should be able to have contact with their father at least four times and for extended periods.”

Arguments on appeal

[21]Counsel for the father, who appeared in the court below, initially filed grounds of appeal which ranged widely across many factors in the case. When considering the application for permission to appeal on 27th January 2014, Macur LJ observed that “the grounds of appeal lack focus and are clumsily framed”. Permission to appeal was refused on all grounds, save for grounds 3, 4 and 5 which related to a criticism of the lack of weight afforded to the recognised importance of the children’s continued relationship with their father. Macur LJ was also, in my view rightly, critical of the judge’s order following his judgment in which the details of the relocation plan and contact arrangements were left to the parties to “agree conditions”.

[22]Macur LJ also observed that it was impossible to discern the merit of the balance struck by the judge at paragraph 72 particularly as he went on to grant a “share residence” order to the father for the period prior to the children’s departure to Brazil. Macur LJ concluded with the following words:

“Unless it can be realistically achieved, the prospective loss of face to face contact has arguably received insufficient weight in the balance.”

[23]Despite indicating that she intended to confine her arguments to the three grounds upon which permission to appeal had been granted, and therefore restrict the scope of the appeal to the weight given to the impact of a move to Brazil on the very positive relationship that the children have with their father, it is unfortunately necessary to record that both in her skeleton argument and orally before this court Miss Renton sought to roam widely across many other factors in the case.

[24]In addition Miss Renton sought to introduce a new ground of appeal which had not previously been flagged up either in her original Grounds or skeleton argument. The new point related to the fact that the judge determined the application for relocation in isolation from any consideration or determination about the financial provision. Miss Renton submitted that, in accordance with Re W (Leave to Remove)

[2008] EWCA Civ 538

;

[2008] 2 FLR 1170

the hearing should have been case managed so that all issues relating to the children and finance were heard together with one determination being given on all issues at the conclusion of that process. I shall deal with that point now, without expressing any view as to the overall merits of such an arrangement, by dismissing it from my consideration in this case on the basis that there is no indication of the father applying to have the issues heard in that manner by HHJ O’Brien and, in any event, the point simply has not been raised on any proper basis within the context of this appeal.

[25]In opening her submissions Miss Renton informed the court that the mother had in fact already departed for Brazil, on her own, some two months earlier and that the children had been looked after by the father continuously thereafter. Subsequently Miss Sharghy, for the mother, who appeared before HHJ O’Brien, confirmed that the mother had indeed moved to Brazil following a further deterioration in her mental wellbeing and because she was impecunious here in England, had no housing and could not claim benefit.

[26]Miss Renton’s principal submission was that, for these children, maintaining effective contact with their father was of seminal importance yet, following the judge’s judgment, it was not clear how such contact was to be achieved to a satisfactory degree. All parties, the CAFCASS officer, and the judge agreed that this was a “finely balanced” case and in such a case the judge’s failure to provide a proper evaluation of the contact issue was a fundamental omission in his overall analysis of the case.

[27]To support her overall submission Miss Renton made a number of subsidiary points: a) Other than the hope that the mother might be able to deliver on her offer of retaining a fund of £20,000 with which to fund contact, the judge had no information as to the affordability of contact arrangements which required at least three extended trips by the father to Brazil and one return trip by all three children to England each year; b) The mother was over-optimistic in saying she would be able to fund one trip a year for each of the children to England; c) The state of the relationship between the parents, and, in particular, the negative attitude that the mother had towards the father, would indicate concern that the mother would promote and adhere to any contact arrangement once she was in Brazil. However, the judge did not analyse this aspect of the case at all; d) The children have individual needs and the evidence indicated that the eldest, N, had been particularly badly affected by the separation and was emotionally vulnerable and troubled. It was important for N, in particular, to maintain a regular and full relationship with both of his parents, and his needs alone, given that no-one contemplated separating the children, should have dictated that all three should remain in England. Discussion

[28]By way of a preliminary observation, and ignoring, for the moment, the question of whether or not adequate consideration was given to the issue of the relationship between the children and their father, I consider that the manner in which the judge structured his analysis within the judgment was both effective and, indeed, a model of the approach to be taken in a sensitive case of this nature. Looked at as a whole, the judgment very clearly indicates to my eyes that the judge was fully seised of all of the issues in this case in which he had been immersed following a hard-fought four and a half day oral hearing.

[29]Secondly, when considering the degree to which the judge gave weight to one or other factor within the case, it is necessary to maintain focus upon the fact that both the CAFCASS officer and the judge regarded this to be a “finely balanced” case. On the facts of this case, the only reason that will have caused it to be “finely balanced” with respect to the option of the children remaining in England was the quality of their relationship with their father. Each of the other factors in the case relating to finance, housing, education and other matters, insofar as they pointed to remaining in England as opposed to moving to Brazil, was either of much less importance or neutral.

[30]On the other side of the fine balance, the principal factor in favour of a move to Brazil related to the mother’s emotional and mental wellbeing and her ability to function as a parent to her children.

[31]It was these two factors, the relationship with the father on one side and the mother’s emotional stability on the other, which fell to be evaluated and established that this was a “finely balanced” case. It is therefore important, to my mind, when receiving submissions to the effect that the judge failed to give due weight to the children’s relationship with their father, to maintain focus upon the fact that the whole purpose of the careful analysis adopted by the judge was to weigh up that very factor against the mother’s need to return to her family and homeland. That was what the case was all about.

[32]Against that background I turn to the specific points upon which Miss Renton relies. Although it is the case that the judge did not have the detail of, or make findings about, the couple’s finances, the transcript of the hearing shows that the father was cross examined extensively as to his financial circumstances and, in the light of that, the judge readily contemplated that the father would go to Brazil on at least three occasions each year. Finances apart, it is the father’s case, and the judge readily accepted this, that he is utterly bonded to these three children and is desperate to maintain his relationship with them.

[33]Although Miss Renton’s present instructions are that the father could only afford to visit Brazil on one occasion each year, when giving evidence to the judge the father initially said that he envisaged going to Brazil on “two or three” occasions per year, that frequency being reduced to “twice” during cross examination. When he goes, the father’s anticipation is that he will stay for a period of three or four weeks. In forming his own evaluation, the judge was plainly entitled to rely upon the father’s oral evidence. Two or three periods of three or four weeks, coupled with a similar period once a year in England, makes for a total of between 12 and 16 weeks per year which is a level of contact not open to many families in international relocation cases where the “left behind” parent has to hold down regular employment.

[34]His motivation in terms of getting to Brazil to see them is therefore not only a given, but is likely, in my view, to be the determinative factor in any arrangement that he may make of his finances once these court proceedings have concluded. Therefore, although the judge did not undertake a detailed analysis of the finances and how the practical arrangements may be achieved, I consider that the judge’s assumption that there would be at least four periods of extensive face to face contact each year was justified.

[35]In terms of indirect contact, Miss Renton is entirely correct in identifying the ability of the mother to co-operate and facilitate communication via telephone or Skype as pivotal to the prospects of successful contact during the many weeks that the father and children will be separated. It is plain that the judge concluded that this form of contact would indeed be supported by the mother. His conclusions at paragraph 63 plainly envisage “regular contact” by Skype taking place. That conclusion was, in turn, supported by the fact that, despite the appalling state of the parent’s relationship, the mother had co-operated with a regime of extensive contact to the father, over many months, about which there was no apparent complaint, and the judge’s conclusion (paragraph 52) that the mother “does not seek to exclude the father from the children’s lives”. The fact that no contact via Skype had yet taken place, despite an order in August 2013 that some Skype contact should occur at times when the children were not staying with the father, was explained by the mother’s misunderstanding of her responsibility to set this up and the fact that it cannot have been a major issue in circumstances where the children, Skype or not, were staying with the father for 5 nights in every 14.

[36]Although Miss Renton did not seek to argue the case in this way, in my view the high point of the father’s appeal is encapsulated in the points identified by Macur LJ when granting permission. These focus upon the shortness of the judge’s stated reasons in paragraph 72 and the difficulty that any reader has in discerning the judge’s approach from his shortly stated reasons at that part of his judgment. The complaint, looked at in that way, is a failure to give adequate reasons. Having now had the benefit of looking at this case in great detail and, in particular, looking at the analysis that the judge brought to bear in the judgment as a whole, based, as it is, on his comprehensive assessment of the witnesses following an extended hearing, I am satisfied that his reasons are the reasons that I have already described and that they can be adequately discerned from a reading of the judgment as a whole.

[37]It is the case that the more finely balanced any decision regarding future welfare of a child may be, the less likely it is that any consequent appeal will succeed against the judge’s decision to choose one viable option against the other. This is such a case. The consequences of this decision for the father are harsh and I well understand and respect the emotional impact upon him of the children’s departure to Brazil. These are important decisions and justify careful scrutiny if they come before this court on appeal. Having, I hope, applied such scrutiny to this case, I am entirely satisfied that the judge did give adequate regard to the detriment that will be caused to the children’s relationship with their father if they move to Brazil. That factor was at the centre of the case. That was why the case was “finely balanced”. The judgment shows that the judge decided to give greater priority to the other pressing factor, namely the mother’s need to go home to Brazil, and the impact of a refusal on her ability to continue being an effective parent to the children, over and above the contact issue. That was a course that was entirely open to the judge and made more so by the CAFCASS officer no longer maintaining her original recommendation.

[38]In consequence the father’s challenge to the judge’s decision fails and the appeal must be dismissed.

[39]I have already indicated that I share Macur LJ’s concern that the judge’s order leaves the parents to agree the conditions upon which the children will go to Brazil, including matters of finance and contact. In circumstances where the parents cannot communicate with each other and are at loggerheads, it was not reasonable for the judge to step aside from determining those issues himself. At the conclusion of the oral hearing we therefore ordered that the conditions and other details of the order providing for the children’s departure are to be settled at a further hearing before HHJ O’Brien and that the stay currently in place on the permission to relocate should remain until HHJ O’Brien is satisfied with the terms of the order. Lord Justice Sullivan

[40]I agree Lady Justice Arden

[41]I also agree