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England and Wales Court of Appeal (Civil Division) Decisions

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Cite as: [2002] EWCA Civ 1338

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Neutral Citation Number: [2002] EWCA Civ 1338

(Her Honour Judge Fisher)

Royal Courts of Justice
London WC2A 2LL
Monday, 17th June 2002

B e f o r e :




(Computer Aided Transcript of the Palantype Notes of
Smith Bernal Reporting Limited, 190 Fleet Street,
London EC4A 2AG
Tel: 0170 421 4040
Official Shorthand Writers to the Court)


The Applicant appeared in person.
The Respondent did not appear and was unrepresented.



Crown Copyright ©

    Monday, 17th June 2002

  1. MR JUSTICE WALL: This is an application for permission to appeal from an order made by Her Honour Judge Fisher in the Coventry County Court on 22nd January this year. It concerns a little boy called HJB, born on 25th July 1999, and so shortly approaching his third birthday.
  2. The issues before the hearing before Judge Fisher were:
  3. (1) with whom H should make his home;
    (2) what contact he should have with the person with whom he did not make his primary home; and
    (3) whether his mother should be granted permission to keep H permanently out of the jurisdiction in Spain, where she was living for at least part of the year with her new partner.
  4. The judge had the benefit of hearing oral evidence, and she also had two very full and careful reports from the CAFCAS officer, the latter particularly addressing the question of residence.
  5. The judge in an extempore judgment went carefully through the welfare check list on the basis of the facts that she found and made a residence order in favour of Mrs B. By consent, as I understand it, a schedule of contact was then worked out between counsel representing Mr and Mrs B and subsequently incorporated into the order of the court. I am told this morning by Mr B that that the question of contact has been back before the judge and has been further considered by her, although I do not know the detail. That is not Mr B's fault. I rather stopped him giving them to me, and it appears that he is not entirely happy with the contact that has been ordered in any event.
  6. Mr B's application for permission to appeal is based on a number of arguments, and there is a very full and careful skeleton which he has put before the court. His first point before me this morning was that the judge should have made a shared residence order, rather than a sole residence order, as a proper way of dividing H's time between his two parents. There are also arguments in the skeleton which we did not get onto in relation to the Human Rights Act.
  7. As I pointed out to Mr B, the difficulty about the shared residence proposition was that it does not appear to have been argued before the judge -- indeed at the time of the hearing before the judge the parents were hardly on speaking terms -- and it is not therefore surprising that the judge did not consider it.
  8. I have to say, having read the papers and listened to Mr B, that in my view it would be extremely difficult for him to overturn the judge's decision in relation to residence, which is equally plainly based on her discretion and plainly followed a careful examination of the welfare check list under section 1 of the Children Act. But I am not going to shut him out, for the reasons which now follow.
  9. When the judge came to deal with the question of permission to keep H permanently out of the jurisdiction, she simply said that:
  10. "I have been referred to the relevant authorities, authorities particularly when it comes to an application to remove a child from the jurisdiction. The basic principle is still that the welfare of the child is the paramount consideration.
    The court is aware of the reasons why Mrs B says, if leave is granted, she would like to live, in the short and medium term, in Spain with Mr B, although it is an important consideration that they will retain a property at Leamington Spa, in any event, which could be used as an important base in this country.
    If the court were to refuse leave to remove H from the jurisdiction, then I accept the mother's evidence that she would live here in England. But, of course, it would inevitably be the case that the current routines for H would be disrupted and the family unit which has existed now for a little while - that of the mother, Mr B and Harry - would be disrupted.
    H, as yet, is too young to express this own wishes. Of course, if leave be granted, the court has to consider very carefully the arrangements for contact. Contact arrangements are vital. But I take the view, in conclusion, that given that the mother has been H's primary carer throughout his comparatively short life, there is nothing in all the material which I have carefully considered to suggest, in the light of the welfare considerations, that that status quo should be displaced."
  11. It is, in my judgment, open to argument on an application for permission to appeal that, although this was an extempore judgment by an experienced circuit judge, that analysis of the authorities and that investigation of the circumstances in which the mother and H were to live abroad was not sufficient.
  12. In these circumstances, it seems to me that the best course is to adjourn this application for permission to be heard inter partes on an oral hearing, with appeal to follow if permission be granted. In my view, an hour should be sufficient for that process, given that the judges will have read the papers before they come into court.
  13. As I said to Mr B in argument, I do not wish to raise any false hopes on his part, because it may be that the full court will be satisfied that the judge has properly covered the point and therefore refuse permission to appeal. however, I am not stopping him arguing that point, nor I am not stopping him arguing the residence point, although I anticipate that the judges will deal with that quite shortly and may well take the view that I have taken. But in the interests of this particular child, it seems to me that there is a point which should be considered at an inter partes hearing. The court should hear what the other side has to say about it.
  14. It is for these reasons that I adjourn the application for oral argument on notice to the mother's advisors with appeal to follow if permission granted.
  15. Order: Application adjourned as above.

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