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England and Wales Court of Appeal (Civil Division) Decisions
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Cite as:  EWCA Civ 345,  Fam Law 693,  2 FLR 409,  2 FCR 261
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Exeter County Court
His Honour Judge Tyzack QC
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LLOYD
LORD JUSTICE ELIAS
| RE W (Children)
WordWave International Limited
A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
The Respondent appeared in person
Hearing date: 23 February 2011
Crown Copyright ©
Sir Nicholas Wall P
G . v. G  1 WLR 647
"Those cases exhibit some degree of homogeneity, of course; but they also seem, at first sight, to exhibit a degree of semantic dichotomy. It is a discernible thread running through, I think, every one of those cases and the cases cited in them, that it is not decisive of an appeal in this court from the decision of the court below, exercising the particular discretionary jurisdiction of deciding the custody of children (but also, I think, any discretionary jurisdiction), that the result of the exercise of discretion would, or might, have been different if the members of the Court of Appeal had themselves been exercising the discretion. There has to be more than that before the discretionary decision can be overturned. The question, if there be one, is: How much more?"
"I believe that there is a way of reconciling these cases. I believe that if the court comes to the conclusion, when examining the decision at first instance, that there is so blatant an error in the conclusion that it could only have been reached if the judge below had erred in his method of decision – sometimes called the balancing exercise – then the court is at liberty to interfere; but that, if the observation of the appellate court extends no further than that the decision in terms of the result of the balancing exercise was one with which they might, or do, disagree as a matter of result, then that by itself is not enough, and that falls short of the conclusion, which is essential, that the judge has erred in his method. I cannot think of any case in which this particular issue had to be faced, in which that method of determination is not intellectually satisfactory, logically supportable or consistent with the result of any of the cases in the appellate courts; and I shall approach this case on the footing that what this court should seek to do is to answer the question whether the court discerns a wrongness in the result of so striking a character as to make it a legitimate conclusion that there must have been an error of method – apart, of course, from a disclosed inclusion of irrelevant or exclusion of relevant matters."
"……. The reason for the limited role of the Court of Appeal in custody cases is not that appeals in such cases are subject to any special rules, but that there are often two or more possible decisions, any one of which might reasonably be thought to be the best, and any one of which therefore a judge may make without being held to be wrong. In such cases, therefore, the judge has a discretion and they are cases to which the observations of Asquith LJ, as he then was, in Bellenden (Formerly Satterthwaite) v Satterthwaite  1 All ER 343 apply. My attention was called to that case by my noble and learned friend Lord Bridge of Harwich, after the hearing in this appeal. That was an appeal against an order for maintenance payable to a divorced wife. Asquith LJ said, at p. 345:
It is, of course, not enough for the wife to establish that this court might, or would, have made a different order. We are here concerned with a judicial discretion, and it is of the essence of such a discretion that on the same evidence two different minds might reach widely different decisions without either being appealable. It is only where the decision exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong, that an appellate body is entitled to interfere.' "
I would only add that, in cases dealing with the custody of children, the desirability of putting an end to litigation, which applies to all classes of case, is particularly strong because the longer legal proceedings last, the more are the children, whose welfare is at stake, likely to be disturbed by the uncertainty.
Nevertheless, there will be some cases in which the Court of Appeal decides that the judge of first instance has come to the wrong conclusion. In such cases it is the duty of the Court of Appeal to substitute its own decision for that of the judge. The circumstances in which the Court of Appeal should substitute its own decision have been described in a number of reported cases to some of which our attention was drawn. We were told by counsel that practitioners are finding difficulty in ascertaining the correct principles to apply because of the various ways in which judges have expressed themselves in these cases. I do not think it would be useful for me to go through the cases and to analyse the various expressions used by different judges and attempt to reconcile them exactly. Certainly it would not be useful to inquire whether different shades of meaning are intended to be conveyed by words such as 'blatant error' used by the President in the present case, and words such as 'clearly wrong', 'plainly wrong', or simply 'wrong' used by other judges in other cases. All these various expressions were used in order to emphasize the point that the appellate court should only interfere when they consider that the judge of first instance has not merely preferred an imperfect solution which is different from an alternative imperfect solution which the Court of Appeal might or would have adopted, but has exceeded the generous ambit within which a reasonable disagreement is possible. The principle was stated in this House by my noble and learned friend Lord Scarman in B v W (Wardship: Appeal)  1 WLR 1041, where, after mentioning the course open to the Court of Appeal if it was minded to reverse or vary a custody order, he said at p. 1055F:
But at the end of the day the court may not intervene unless it is satisfied either that the judge exercised his discretion upon a wrong principle or that, the judge's decision being so plainly wrong, he must have exercised his discretion wrongly.'
The same principle was expressed in other words, and at slightly greater length, in the Court of Appeal (Stamp, Browne and Bridge LJJ) in Re F (A Minor) (Wardship: Appeal)  Fam. 238, where the majority (Browne and Bridge LJJ) held that the court had jurisdiction to reverse or vary a decision concerning a child made by a judge in the exercise of his discretion, if they considered that he had given insufficient weight or too much weight to certain factors. Browne LJ said at p. 257E:
Apart from the effect of seeing and hearing witnesses, I cannot see why the general principle applicable to the exercise of the discretion in respect of infants should be any different from the general principle applicable to any other form of discretion.'
Bridge LJ, as my noble and learned friend then was, agreed with Browne LJ and I quote a passage from his speech where, after stating that his view was different from that of the judge, he went on to say at p. 266:
Can this conclusion prevail or is there some rule of law which bars it? The judge was exercising a discretion. He saw and heard the witnesses. It is impossible to say that he considered any irrelevant matter, left out of account any relevant matter, erred in law, or applied any wrong principle. On the view I take, his error was in the balancing exercise. He either gave too little weight to the factors favourable, or too much weight to the factors adverse to the father's claim that he should retain care and control of the child. The general principle is clear. If this were discretion not depending on the judge having seen and heard the witnesses, an error in the balancing exercise, if I may adopt that phrase for short, would entitle the appellate court to reverse his decision [authorities cited]. The reason for a practical limitation on the scope of that principle where the discretion exercised depends on seeing and hearing witnesses is obvious. The appellate court cannot interfere if it lacks the essential material on which the balancing exercise depended. But the importance of seeing and hearing witnesses may vary very greatly according to the circumstances of individual cases. If in any discretion case concerning children the appellate court can clearly detect that a conclusion, which is neither dependent on nor justified by the trial judge's advantage in seeing and hearing witnesses, is vitiated by an error in the balancing exercise, I should be very reluctant to hold that it is powerless to interfere.'
The decision in Re F (A Minor) (Wardship: Appeal)  Fam 238 is also important because the majority rejected, rightly in my view, the dissenting opinion of Stamp LJ at p. 254, who would have limited the right of the Court of Appeal to interfere with the judge's decision in custody cases to cases 'where it concludes that the course followed by the judge is one that no reasonable judge having taken into account all the relevant circumstances could have adopted'. That is the test which the court applies in deciding whether it is entitled to exercise judicial control over the decision of an administrative body, see the well-known case of Associated Provincial Picture Houses Ltd v Wednesbury Corporation  1 KB 223. It is not the appropriate test for deciding whether the Court of Appeal is entitled to interfere with the decision made by a judge in the exercise of his discretion."
Finally, I think it important to recall the wise words of Cumming Bruce LJ in Clarke-Hunt v Newcombe (1983) 4 FLR 482, (also cited, with approval, by Lord Fraser in G v. G (at p 651)) where the Lord Justice said, at p. 486:
"There was not really a right solution; there were two alternative wrong solutions. The problem of the judge was to appreciate the factors pointing in each direction and to decide which of the two bad solutions was the least dangerous, having regard to the long-term interests of the children, and so he decided the matter. Whether I would have decided it the same way if I had been in the position of the trial judge I do not know. I might have taken the same course as the judge and I might not, but I was never in that situation. I am sitting in the Court of Appeal deciding a quite different question: has it been shown that the judge to whom Parliament has confided the exercise of discretion, plainly got the wrong answer? I emphasize the word "Plainly". In spite of the efforts of [counsel] the answer to that question clearly must be that the judge has not been shown plainly to have got it wrong."
Payne v Payne
"The parties were married in 1996 and the mother gave birth to a daughter in 1997. In early 1998 the mother took the daughter to her home country, New Zealand, to live. The father, who was working elsewhere, joined them later. The parties separated almost immediately, and in custody proceedings in New Zealand the judge ordered that the daughter be returned to the United Kingdom. In proceedings in the UK by consent a residence order in favour of the mother was made, with contact to the father, and the mother was prohibited from removing the daughter from the jurisdiction. The mother wished to return to New Zealand but, before she applied under section 13(1)(b) of the Children Act 1989 for leave to remove the child permanently from the jurisdiction, the father applied for a residence order. The judge, hearing both applications together, refused the father's application and granted the mother's."
"In the light of article 8 of the Convention and the increasing awareness of the importance of the child's contact with both parents, the current test for determining applications to remove a child from the jurisdiction, as laid down in Poel v Poel  1 WLR 1469 [and other cited cases]……. requires reformulation….. The net effect of these decisions is that a custodial parent with a genuine and subjectively reasonable desire to leave the jurisdiction starts with a presumption in his favour that leave to remove should be given. The presumption does not operate in other jurisdictions: see Stadniczenko v Stadniczenko  NZFLR 493; B v B  21 Fam LR 676 and Gordon v Goertz (1996) 134 DLR (4th) 321. That test in any event does not sit well with the fundamental principles of the Children Act itself.
A better test would be that all the relevant factors, including all rights conferred by the Human Rights Act 1998, should be balanced by the court with the interests of the child being paramount……"
The judgment of Thorpe LJ in Payne v Payne
"In summary a review of the decisions of this court over the course of the last 30 years demonstrates that relocation cases have been consistently decided upon the application of the following two propositions: (a) the welfare of the child is the paramount consideration; and (b) refusing the primary carer's reasonable proposals for the relocation of her family life is likely to impact detrimentally on the welfare of her dependent children. Therefore her application to relocate will be granted unless the court concludes that it is incompatible with the welfare of the children. (Emphasis supplied)"
"A review of the Court of Appeal authorities over the last 30 years demonstrates that, although not the originator of the guidance, Ormrod LJ was its principal exponent. He rationalises it and its strongest statement comes in his judgment in Moodey v Field 13 February 1981, as well perhaps in the judgment of Purchas LJ in Belton v Belton  2 FLR 343. Since the direction has stood for 30 years and since its amplification by Ormrod LJ, first in A v A (Child: Removal from Jurisdiction) 1 FLR 380 over 20 years ago, it is perhaps necessary to question whether changing perceptions of child development and welfare in the interim undermine or erode his exposition. That exposition, as he himself said, was very much based on common sense. But even generally accepted perceptions can shift within a generation. The shift upon which Mr Cayford relies is in the sphere of contact. He asserts that over the last 30 years the comparative importance of contact between the child and the absent parent has greatly increased. No authority for the proposition is demonstrated. Without some proof of the proposition I would be doubtful of accepting it. Throughout my professional life in this specialist field, contact between child and absent parent has always been seen as an important ingredient in any welfare appraisal. The language may have shifted but the proposition seems to have remained constant. I believe that conviction is demonstrated by the review of the contact cases over much the same period to be found in my judgment in re L (A Child) (Contact: Domestic Violence)  Fam 260, 290-295, cited above. Furthermore practicalities are all against this submission. International travel is comparatively cheaper and more competitive than ever before. Equally communication is cheaper and the options more varied."
30. Quite apart from Mr Cayford's submission, I do not believe that the evaluation of welfare within the mental health professions over this period calls into any question the rationalisation advanced by Ormrod LJ in his judgments. In a broad sense the health and wellbeing of a child depends upon emotional and psychological stability and security. Both security and stability come from the child's emotional and psychological dependency upon the primary carer. The extent of that dependency will depend upon many factors including its duration and the extent to which it is tempered by or shared with other dependencies. For instance is the absent parent an important figure in the child's life? What is the child's relationship with siblings and/or grandparents and/or a step-parent? In most relocation cases the judge will need to make some evaluation of these factors."
"40. However, there is a danger that if the regard which the court pays to the reasonable proposals of the primary carer were elevated into a legal presumption, then there would be an obvious risk of the breach of the respondent's rights not only under article 8 but also his rights under article 6 to a fair trial. To guard against the risk of too perfunctory an investigation resulting from too ready an assumption that the mother's proposals are necessarily compatible with the child's welfare I would suggest the following discipline as a prelude to conclusion:
(a) Pose the question: is the mother's application genuine in the sense that it is not motivated by some selfish desire to exclude the father from the child's life? Then ask, is the mother's application realistic, by which I mean founded on practical proposals both well researched and investigated? If the application fails either of these tests, refusal will inevitably follow.
(b) If, however, the application passes these tests then there must be a careful appraisal of the father's opposition: is it motivated by genuine concern for the future of the child's welfare or is it driven by some ulterior motive? What would be the extent of the detriment to him and his future relationship with the child were the application granted? To what extent would that be offset by extension of the child's relationships with the maternal family and homeland?
(c) What would be the impact on the mother, either as the single parent or as a new wife, of a refusal of her realistic proposal?
(d) The outcome of the second and third appraisals must then be brought into an overriding review of the child's welfare as the paramount consideration, directed by the statutory checklist in so far as appropriate.
41. In suggesting such a discipline I would not wish to be thought to have diminished the importance that this court has consistently attached to the emotional and psychological wellbeing of the primary carer. In any evaluation of the welfare of the child as the paramount consideration great weight must be given to this factor."
The judgment of Dame Elizabeth Butler-Sloss P
"82 All those immediately affected by the proceedings, that is to say the mother, the father and the child, have rights under article 8(1). Those rights, inevitably in a case such as the present appeal, are in conflict and, under article 8(2), have to be balanced against the rights of the others. In addition and of the greatest significance is the welfare of the child which, according to European jurisprudence, is of crucial importance and, where in conflict with a parent, is overriding: see Johansen v Norway (1996) 23 EHRR 33, 67, 72. Article 8(2) recognises that a public authority, in this case the court, may interfere with the right to family life where it does so in accordance with the law, and where it is necessary in a democratic society for, inter alia, the protection of the rights and freedoms of others and the decision is proportionate to the need demonstrated. That position appears to me to be similar to that which arises in all child-based family disputes and the European case law on children is in line with the principles set out in the Children Act 1989. I do not, for my part, consider that the Convention has affected the principles the courts should apply in dealing with these difficult issues. Its implementation into English law does however give us the opportunity to take another look at the way the principles have been expressed in the past and whether there should now be a reformulation of those principles. I think it would be helpful to do so, since they may have been expressed from time to time in too rigid terms. The judgment of Thorpe J in M H v G P (Child: Emigration)  2 FLR 106 was the first time to my knowledge that the word "presumption" had been used in the reported cases, and I would respectfully suggest that it overemphasised one element of the approach in the earlier cases. I can understand why the word was used, since in Tyler v Tyler  2 FLR 158 the reformulation by Purchas LJ of the principles in Poel v Poel and Chamberlain v de la Mare may itself have been expressed unduly firmly.
83. Section 13(1) (b) of the Children Act 1989 does not create any presumption and the criteria in section 1 clearly govern the application. The underlying principles in Poel v Poel, as explained in Chamberlain v de la Mare, have stood the test of time and give valuable guidance as to the approach the court should adopt in these most difficult cases. It is, in my view, helpful to go back to look again at the reasons given in both those decisions. They were based upon the welfare of the child which was the first and paramount consideration by virtue of section 1 of the Guardianship of Minors Act 1971. The view of both courts was well summarised by Griffiths LJ in Chamberlain v de la Mare 4 FLR 434, 445, that the welfare of young children was best met by bringing them up in a happy, secure family atmosphere. Their happiness and security, after the creation of a new family unit, will depend on becoming members of the new family. Reasonable arrangements made by the mother or stepfather to relocate should not in principle be frustrated, since it would be likely to have an adverse effect upon the new family. It might reflect upon the stability of the new relationship. The stress upon the second family would inevitably have a serious adverse effect upon the children whose welfare is paramount. Even if there is not a new relationship, the effect upon the parent with the residence order of the frustration of plans for the future might have an equally bad effect upon the children. If the arrangements are sensible and the proposals are genuinely important to the applicant parent and the effect of refusal of the application would be seriously adverse to the new family, e g mother and child, or the mother, stepfather and child, then this would be, as Griffiths LJ said, a factor that had to be given great weight when weighing up the various factors in the balancing exercise."
"85. In summary I would suggest that the following considerations should be in the forefront of the mind of a judge trying one of these difficult cases. They are not and could not be exclusive of the other important matters which arise in the individual case to be decided. All the relevant factors need to be considered, including the points I make below, so far as they are relevant, and weighed in the balance. The points I make are obvious but in view of the arguments presented to us in this case, it may be worthwhile to repeat them.
(a) The welfare of the child is always paramount.
(b) There is no presumption created by section 13(1) (b) of the Children Act 1989 in favour of the applicant parent.
(c) The reasonable proposals of the parent with a residence order wishing to live abroad carry great weight.
(d) Consequently the proposals have to be scrutinised with care and the court needs to be satisfied that there is a genuine motivation for the move and not the intention to bring contact between the child and the other parent to an end.
(e) The effect upon the applicant parent and the new family of the child of a refusal of leave is very important.
(f) The effect upon the child of the denial of contact with the other parent and in some cases his family is very important.
(g) The opportunity for continuing contact between the child and the parent left behind may be very significant.
86 All the above observations have been made on the premise that the question of residence is not a live issue. If, however, there is a real dispute as to which parent should be granted a residence order, and the decision as to which parent is the more suitable is finely balanced, the future plans of each parent for the child are clearly relevant. If one parent intends to set up home in another country and remove the child from school, surroundings and the other parent and his family, it may in some cases be an important factor to weigh in the balance. But in a case where the decision as to residence is clear, as the judge in this case clearly thought it was, the plans for removal from the jurisdiction would not be likely to be significant in the decision over residence. The mother in this case already had a residence order and the judge's decision on residence was not an issue before this court."
The instant case: background and procedure
"She has been seen over the last 10 years intermittently with depression, the first time was in November 1999 when she was very low postnatally. At that time, she was referred for counselling and a year later she was still seeing a counsellor. She then had another unplanned pregnancy 2 years later and has been a single parent since then. She also had post natal depression after the second baby as well. She was regularly seen by the health visitor and ourselves and on most consultations we were aware that (she) was feeling quite low and isolated. She is very involved with her local church and has been having regular counselling there.
I do feel that (she) herself would benefit greatly if she was in her own country with her own family nearby and that without her family she is going to continue to feel isolated and struggle which will obviously also have a knock on effect on her children. I hope all this can be taken into consideration."
"In cases involving children, expert medical and psychiatric evidence from paediatricians and allied disciplines is often quite indispensable to the court. As Parker LCJ said in Director of Public Prosecutions v A and BC Chewing Gum Ltd  1 QB 159, 165A, when dealing with children, the court needs 'all the help it can get'. But that dependence in no way compromises the fact that the final decision in the case is the judge's and his alone……"
And at 222B-C
"…. The modern view is to regulate such matters by way of weight, rather than admissibility…."
See also the broad discretion afforded to a judge hearing an application under the Children Act 1989 identified by Butler-Sloss LJ (inter alia in Re B (Minors) (Contact)  2 FLR 1 at 5F-G.
The views of the CAFCASS Officer
The CAFCASS Officer's first report
"The effect on contact with the left behind parent
"Clearly this will mean huge changes - the children would need to communicate via the computer and a Skype telephone connection whereby it is free and they can talk and see each other. Cards and letters and a yearly visit during the summer holidays )which may coincide with Christmas here?) The mother is proposing to spend some weeks here in [town] with her friends who will accommodate the family (bearing in mind [the girl's] request that she should not want to sleep in her father's van). It will mean an enormous change for (the father) who has always lived in a mobile home and this will make contact via internet or Skype very difficult unless he uses an internet centre or a friend's computer. He does use his mobile phone but again international calls are expensive. Therefore I acknowledge that any contact to the children in Australia will be immensely difficult for the father to maintain regularly. (the mother) plans to work whilst in Australia and will fund her travel via her earnings and from parental support.
7. I recommend that (the mother) be granted permission to remove the children from the jurisdiction because I believe that it will be in their best interests. I also recommend that the father is granted a parental responsibility order.
8. Contact needs to be clarified and agreed. "
The CAFCASS Officer's second report dated 25 May 2010 and his evidence to the judge on 1 June 2010
"The first thing they wanted me to know was that they will be seeing (the father's two adult children) on (the boy's) birthday and they are really looking forward to this. We then talked about what I would say in my report and I said that it was my opinion that they should be allowed to go to Australia (because they had told me that this is what they both wanted – they re-confirmed this to me). However I also said that I thought their dad wanted to see more of them and I had seen how much they enjoy being with him and (the father's two adult children). Therefore, I wanted dad to obtain an address to which they could go to say in before they left for Australia so that they could get used to it. It was clear to me that (the girl) has reservations about staying with her father saying that she would miss her friends: the church etc. And I replied that I would expect dad to take heed to these events – then she said she would miss mum and I explained when she was in Australia she would see mum every day and for the one month a year when was with dad she would still see mum for a couple of hours each week and telephone her when she wanted to. (The girl) became less resistant to the idea and (the boy) told me that he wanted to return earlier than 6 pm because he gets very tired and would need to rest before school on Mondays. I asked what time they went to bed and they told me it was 8 or 9 pm – so I said you will have plenty of time to rest!"
- "I recommend that (the mother) be granted permission to remove the children form the jurisdiction because I believe that will be in their best interests when their mother receives the support of her family in bringing them up.
- I recommend that the father is granted a Parental Responsibility Order.
- I also recommend a Contact Order to (the father) to have staying contact from Friday after school until Sundays at 6 pm fortnightly for 6 months commencing on the production of his permanent address at which he will conduct contact. When this has worked well for 6 months then the children could move to Australia to commence their new school term in January 2011. Contact would then revert to a one month stay per annum with (the father) when they stay in his home and he would have access to Skype and letters etc. to be arranged between the parties."
"Q.` …… let me try and understand then, you are saying that the court should grant permission to this mother to relocate to Australia?
A I am saying that at the end of the day my submission would be that the court should grant relocation, but before doing so, ant to see this contact cemented and happening…..for six months, in my suggestion to make sure the children have that connection, they understand what they are going to be coming to, they understand what all that means."
"Q That was my understanding of your recommendation for a delay of six months.
A Yes. But you are opposing that, so therefore I am now thinking actually, she not delay for a year. What is there to stop that happening actually, so that the whole thing becomes clarified and the children are clear about what they are going to and coming back to. There is no immediate rush for this to happen, in order words, I put to you, apart from the mother's head (sic)
Q The mother's application before the court, but you are saying, despite the application, there is merit in adjourning the application to relocate?
A Certainly for six months so that I can see contact working for these children, at least, and if it is going to cause upset because, it could also help us work out , for instance, when Christmas is in Australia and is that a good time to be coming back to the UK, just an off thought , you know. All these things have not been thought through fully have they, I would suggest to you and they could be in delaying this a little longer.
Q I am sorry, what has not been looked at?
A When they come back to have contact."
"If the children went to Australia without having any recent experience of staying, then there is a very real prospect, it seems to me, of them not wanting to come."
"I believe it important for them (the children) to have this contact grounded and that has not been demonstrated by the mother thus far, in my opinion, and it needs to be so. Yes, it is changing, and I am happy to compliment her on the change, but it needs to be clarified and sorted."
The CAFCASS Officer's third report
"I think it would be good if we stayed with dad for two months instead of one because I like staying with him. I want to go to Australia because there is more to do."
"I still want to go to Australia because most [the word "all" is crossed out] most of my family live over there
It is [the word "was" is crossed out] fun staying with dad. Although the van would be a bit small in the winter but apart from that I am happy to stay with him. I am happy to see my big brother and sister more often when they come to our house."
"My last report outlined the issues of the Removal from Jurisdiction issues and this is still the major issue for this court. I am clear that the children still wish to go to see their wider family there and be with their mother. I put to them that they would now miss their dad and (the boy) said he would BUT when his dad asks him about it he cannot tell him that he wants to go to Australia because he will be sad to hear it, so he shrugs his shoulders. (The girl) replied in the same fashion. I am still of the opinion that they should be granted leave to go to Australia but I am now more sure that contact in this country will work well (emphasis supplied)"
"(The father) tells me that he is grateful for the contact that has occurred and that he has greatly enjoyed it. However, he will persist to oppose their removal from the country on the grounds that they do not know how much change it will mean to them. He says that if they are granted leave to do then he will probably not be able to remain in because it will be too painful for him to do so…….
(The mother) tells me that contact has gone well in the main and that things have settled down a great deal. She is relieved that things have needed to be said have been done so and that they re now on a much friendlier footing."
The hearing before the judge on 1 June 2010
The father's evidence to the judge on 1 June 2010
"I oppose that strongly because I strongly believe that children need both their parents their mother and their father and I have attempted for a long time to have far more real contact with my children. We have a deep and loving relationship. We care for each other a great deal. I care for them, they have a very strong relationship with their older brother and sister, half brother and sister. I have lived all their lives 10 minutes from them. I live in (place named), not just because I work there, but fundamentally because my four children live there."
"Q. I am not understanding you because, if you say, as you tell me, that not only do you love your children very deeply but also it was in their best interests for them to have an ongoing relationship with you and you say she was simply thwarting that and stopping it, then surely in your best interest you would want to do what was the very best for them, and if she will not agree to contact, the next best thing to do is to go to the court and ask for a judge to make an order.
A. Yes, I agree with you. I agree with you, your Honour.
Q. I am not understanding why you did not do that.
A. Because I didn't believe it was going to get anywhere.
Q. Why not try? Why just take the advice of your friends?
A. It wasn't only the advice of my friends your Honour, I also, you know, I also read articles. You know, there was a Radio 4 programme only 18 months ago and it was the first time they allowed the media into the family courts, and being in this situation, I was always listening for that. You do, and I listened for the whole programme and it was so depressing, the attitude was so depressing. Basically it said, there were cases there of somebody trying to get access to their child and they had been to court twelve times and still had not seen their child in six years, and this was a report –
Q. Why not put it to the test?
A. Ironically, it may be a bit late in the day, but this is it."
"Q. Do you want to tell me anything about alcohol and drugs?
A Yes, I'll tell you. What would you like to know? I am a social drinker. I am a social drinker you Honour. I cannot say that I don't get drunk, but it's such a rare occurrence because I do not like being drunk. It is something that is not in my make-up. I don't know if you have, your Honour, the letters from my first statement, from my friends, and they are all very professional people. That is the truth. When (the mother) said to me in the past, "All your friends, John, are drug addicts and alcoholics", and you see who my friends are, what professional people they are and what circle I actually do move in, it is like the character assassination that is yet in the next statement, this hollow statement, is not me. That is not"
"Q. So the situation was this then, was it, even though you knew that the children should be having good contact to you, because you knew yourself and you say, "I know the children should be having good contact to me. I know she is not very happy about it and opposed to it, I am not going to go to the court because that seems a waste of time", so your attitude was just to wait until something happened?
A. No, my attitude was to be extremely hurt and then actually lose it a little bit, kind of, being so hurt by it, being so cut off for it, it was literally cutting off, literally cutting off from my children, learning to cut off.
Q. I understand that, but do you not understand that part of the business of being a parent –
A. Yes, your Honour.
Q. – and having parental responsibility, that (the CAFCASS Officer) recommends you have, part of the business of being a parent is to work with your own feelings of hurt and disappointment and so on, but nevertheless to do things which are best for your children? You have to put on one side selfish feelings of hurt and pride and all that sort of things –
A. It is not even pride.
Q. And do what is best for the children.
A. I wouldn't say it is pride.
Q. Why did you not do that? That is no doubt what is going to be asked?
A. Because I felt intimidated by the whole situation. I thought that the court would not actually help me out. That is what I thought, from the histories of what I have seen and what I have looked at, it didn't look a good place to go to, your Honour. As far as I am concerned, your Honour, and no disrespect to this court or the situation here, but reading Payne v Payne and going through that whole situation and knowing that (the mother) has a very extremely good case to go to Australia, I could actually say I am wasting my time even standing here.
Q. And if the court were to grant permission to the mother to locate with the children and yourself. That is right, yes?
A. That is correct."
"Q. So you would be able to pay that money towards the campsite, if there were to be staying contact between now and when the mother would leave for Australia. And you would ensure and reassure the mother and this court that that could and would happen?
Q. You would agree with me that that is all well and good during the warmer times, the summer times?
A. Yes I can understand that.
Q. But not appropriate, is it, during the winter months?
Q. And if the mother were given permission to relocate to Australia, you would agree with me that the school holidays, the main school holidays in Australia fall in the winter in this country?
A. I realise that, and I also realise that I may for that not to be the considered time only, that they be allowed actually, if the case be, that they come here when it is a summer period and take time out of school there, so not necessarily always falling within the winter here."
"Q. What involvement have you with the school? When was the last time you went to the school?
A. The last time I went to the school was, it is difficult to say. (the mother) might be able to tell you, but the time I went to the school is – as long as a year ago because it was so in my mind to do it. I made the mistake, I believed I was picking the kids – no, I didn't make a mistake. I went to pick the children up from the school, as was arranged, and I got there and (the mother) told me in no uncertain terms that I wasn't picking the kids up and I shouldn't be there and caused a fuss so I walked away. I was so uptight I stood outside the gates, the other side of the road, thinking this was arranged through the mediation we had. This was the mediation through the church and then suddenly I am not seeing them and she just gives me no explanation, and I stood outside. I remember exactly what happened. She then said to other mothers, I could see what was going on, "he's out there", and she went out through the side area as though I was being a violent person. The school situation is, I have asked (the mother) for the last four/five years every time, every time the school, the kids get reports – sorry, I have visited the school recently, I apologise. I went recently – sorry I forgot this, it is bad of me – but I went to see (the girl's), sorry (the boy's) exhibition just recently. I forgot completely about that sorry. But actually in contact with the school, not a great deal because I feel that I am being denied being there. I have never, ever got any reports from (the mother). I have asked all for the school reports and she has not just given me a school report."
"Q: But if you felt that that was so wrong and unfair and wrong for the children, if that is what you felt, because that is clearly what you are saying to me you did feel, why tolerate it? Why not bring the matter to the court?
A. What was I supposed to do, your Honour?
Q. Come to the court.
A. Every time I said something to her, she said, "I am going to call the police on you." Every time I tried to discuss things at times … (the mother) …
Q. Why did you not challenge it? If she was doing things which were so wrong, and at the moment I don't know who is telling the truth. She says whenever you called at her door she was met with arguments and rows and disputes because you wanted your own way. That is her case?
A. I am just – your Honour – I am just – a really strong example of this agreed contact, and then for her, without anything else, changing it."
"Q I am struggling really to get to the bottom of the problem here, and why things went wrong. At the moment, you see, it seems to me that your attitude to what you were saying was an unreasonable response, what you did was effectively to accept what she laid down. She laid down the law, you accepted it.
Q. I struggling with that, because if you are saying that that was totally unjustified and completely wrong and not in the best interests of the children, then a reasonable, responsible, intelligent father would say, "This is isn't right. If you are going to go down this road, I am going to go down a different one and go to the court.
A. As I said to you earlier on your Honour, I did actually try to go down alternative paths and I thought and hoped, and I did spend an awful long time on one path which was an absolute waste of time. I spent nearly a year with a mutual friend from her church potentially discussing more, and it was put off, it was put off, it was put off, OK. Then we went to mediation. I have been asking for mediation for a long time. Personally I don't want to be here. I don't want to be here. I never wanted this. I wanted to do it though mediation and so on. I attempted mediation before we came to court and because I am not on the dole, it was going to cost me £300 per hour and a half to have mediation with (the mother). So, you know …"
"Q What I see her saying in this statement is that here is a very isolated person, bringing up two children by the time (the boy) is born and she is looking for other people for emotional support.
A I understand that.
Q: She gets none of that from you, their father. She turns to other people. She goes to her church. She gets support from her church. That is what she is saying and you were not there for her. But you just turn up whenever you like for contact.
A. No, I never did that, your Honour. I never did just turn up, ever."
"Q. I just do not follow it, I am sorry.
A. I have said to you before, I said to you before I attempted through other ways of doing so, even up to a little while ago, and I did not want to come into court and I did not believe in the court system as far as supporting my situation. I have seen and read too much about -as I was trying to say to you before lunch, your Honour, I have listened to last year's – I think it was last year – a Radio 4 report when they first allowed the first media into the Family courts for the first time, and the end of the programme was so depressing, it was unbelievable for me. It just gave me no hope and it just gave me a thought, "I go to court, I go to court, I go to court, I go to court", and where would that get us.
Q Go on further in this statement, page 17, paragraph 12, it is talking about a littlie time ago, admittedly, but it is 2004.
A. Where are you?
Q Paragraph 12, page B17. There was an incident, she says, when you went to her home and would not leave, resulting in her having to call the police. I have seen the police log that refers to this incident. Do you deny this?
A. I don't deny it. I will tell you the incident. I will tell you both incidences of the police, if you would like to know, your Honour. I will tell you the first one.
Q I want you to tell me this one. I am talking about this one.
A. This one, I was on the phone to (the mother). It was about 9. Probably if you look at your log, I think you will probably see it was obviously dark, because it was September, I know it was dark, I was in the square and I was talking to (the mother) and we were having what I would call a heart to heart, kind of semi-argument about my access to the children and what was going on, yet again. She put the phone down and I rang her back and carried on. She put the phone down again. I felt heated, passionate and I went round to her house and I knocked at her door, and she came to the door and she said. "Go away. Go away. You are disturbing the children". I thought, "Hang on, you are disturbing the children because you are shouting through the door and I have just knocked on the door". The she opened the door, or she didn't open the door she said, "I am going to call the police" and that was it. I went. Yes, I went. That was one incident. The other incident was I had had the kids for the day and we came back to the house, and this is the last time I have ever been in the house, in (the mother's) house. (the mother) was distracted, or she was uptight about everything gotten late, and the shopping and so on, so I said, "I'll do the cooking". I am at the cooker, I even remember the meal, I was cooking minced meat and mashed potato and peas or something for the kids and ourselves, and I was standing there and there was a little altercation with her and B in the hallway. I thought I heard what was a smack. Now, I have never smacked my children and I do not believe in it, and it wasn't said, maybe (the mother) would say it was different, I didn't realise (the mother) was so uptight at the time, obviously. But basically what happened is I said to (the mother), "Did you just smack B?", and I have never seen somebody ever – I have never seen anybody so angry in all my life. It was shocking. It was sad, terribly sad. (the mother) was frothing at the mouth. She had a saucepan in her hand and she was asking me to leave now, there and then. The kids were around crying.
Q Is that the 2007 incident, paragraph 19?
A. I am not sure. I only know two incidences of the police.
Q Just answer the question. Paragraph 19. She asked you to leave and you said you wanted to give the children money, you threw it on the floor in front of them."
A. That's at school. That's at school. That was at the school."
The judgment given by the judge on 1 June 2010
"I have heard evidence of all parties but during the course of (the CAFCASS Officer's) evidence that mother's application which is opposed is premature. It is clear that father has not been having good quality contact. If mother was granted permission, if staying contact is not working well there is a real danger of losing contact with their father. (The CAFCASS Officer) suggests there is a final report. A build up of contact so in six months the children should be having quality contact to their father and then mother can be given permission to re-locate.
It is impossible for mother to satisfy the court the criteria is satisfied in Payne v Payne. (sic) I am not expressing a view today about re-location. There will be no guarantee it will be granted. There are clear observations regarding contact arrangements. The children need somewhere to go with all the necessary and modern facilities such as sleeping, washing, catering etc. Children need to approve, like and enjoy their contact with their father and their father needs to be given time. It remains to be seen whether three months will be sufficient.
I therefore order that the matter is adjourned for three months until the first open date after the 1st September 2010, with a time estimate of 30 minutes. Contact needs to be proven before any decision on re-location. It needs to provide arrangements. I appreciate the difficulties for mother who is hoping to re-locate at the beginning of the year but contact needs to be right first. Mum needs to hide the disappointment from the children so they are protected. Upon the court hearing evidence from mother, father and (the CAFCASS Officer) and deciding the application is premature in relation to the fact that there are no adequate contact arrangements. Matter is adjourned part heard."
The way the father put his case
"I have waited for months for the CAFCASS report believing that it would shed some light on my situation and give some support – it has not, in fact it is so biased as to be damaging to me…….I find myself so upset by the non-neutrality of the CAFCASS report by (the CAFCASS Officer) that I am in the process of going through their complaints procedure…."
"Last Saturday, 9 October 2010, I received a telephone call from CAFCASS regarding feedback about how I felt ……the CAFCASS officer in this case, dealt with case regarding my point of view and this was my reply: I said I felt (the CAFCASS Officer to be contradictory; I will explain this later. I felt he was bias in favour of the mother, particularly in the first report hence the report being redone as ordered by Judge Tyzack……I also said that I found |(the CAFCASS Officer) showing a possible if not blatant conflict of interest…."
The judgment given by the judge on 15 October 2010
"4……..Mother says it began by the father providing her with a bus to live in near to the caravan where he lived on a farm. Having heard the evidence from both parents, it is clear to me, and I so find, that at the beginning of their relationship together, both enjoyed what might be described as a somewhat unconventional lifestyle. But when the relationship broke down after the children were born, the mother's lifestyle changed. I find that she developed a more conventional circle of friends and joined a church, which gave her help and support. The father, on the other hand, has always pursued the same kind of way of living. He is a self-employed carpenter and builder, with a workshop in (place named), but until recently he lived in a kind of converted van. He now has a caravan on a permanent site where he lives, but retains, as I understand it, the workshop."
"5. After the relationship between the parents broke down, the children remained with the mother. Indeed, she has always been their primary carer. Father, in his evidence before me has not sought to make any criticism of her as a mother. There is, however, a big issue before them as to what happens over contact. The mother's case is that the father was casual about contact and was not regular or committed and indeed undermined her role as a parent and a mother and undermined her care and made life difficult. She felt under emotional pressure from him. Father's case is that the mother was obstructive and difficult, refusing to let him have anything like reasonable contact, so his contact became less and less. The mother acknowledges that the contact did lessen, but she says this is the father's fault and the fact that he did not have any conventional accommodation. She also objected to his lifestyle and, for example, the sort of friends he kept and the sort of films that he would let the children watch. Thus, when this case started before me at the final hearing in June, that father was having very limited visiting contact only. That was common ground. It is common ground that there had been attempts made to resolve the issue of contact by mediation but these attempts were unsuccessful. (The CAFCASS Officer) refers to this in his final report. He says:
I simply observe that despite previous attempts at trying to resolve contact issues between the parents this has not been successful. I therefore suspect that unless contact is clarified in any order allowing them to leave the UK there would be problems with (the father's) ability to maintain contact to the children, which they want to continue. I also believe that he has maintained contact over the past years – though his physical support has been limited – and his commitment has been clear. Therefore I cannot see any argument for not allowing him Parental Responsibility.
Indeed, earlier in these proceedings, the mother agreed to the father having parental responsibility and such an order was made."
"7. I suspect that it is easy for lawyers and judges as well to criticise parents who are not getting contact they feel the children should have to say "Why not make an application to the Court?" But lawyers and judges are, of course, familiar with the whole court process. We know what is involved. It does not present any difficulties for us in understanding the process. Having heard the father give evidence, I am quite prepared to accept that he, as a litigant in person, may have found the process rather daunting and intimidation, perhaps rather complicated and probably expensive. Nevertheless, it is a fact that he never made any application to the court."
"9. Factually, the mother's application for permission to relocate to Australia and her reasons for going are clearly set out in her very comprehensive first statement. This is a very thorough document with many helpful exhibits. I do not need to go into it all because it is common ground that many members of her family live in Australia, father, mother, brothers and sisters all live in or around Perth. I was told at the first hearing that her father, maybe with other members of her family, run a garden machinery business, and she would intend, is she went to Australia to live with the children, to get a job teaching English. She says in her statement there is a high demand for English teachers. I have read all that she sets out in that first statement, including all that she says about schools, the location, health and so on. I have absolutely no doubt that, if the mother was given permission to relocate to Perth in Australia entirely satisfactory arrangements both for herself and the children would be made. Indeed, father does not seek to challenge that.
10. Essentially the mother's case for relocation, as she says in her statement and in her oral evidence and as Miss Matuk ably submitted on her behalf, is that she would achieve a better life for herself and her children in Australia. She will have better support there from her family, there would be good schools for the children to attend and a better lifestyle. The children have visited Australia for at least one holiday and they enjoyed it. It is common ground that the children have said that they want to go. Mother says that she would be happier living with the children with her family around her in Australia and more content. That obviously would affect her relationship with the children and her ability to care for them.
11. She says that she does not want to deprive the children of their relationship with their father. There could still be contact, she says, once a year for a month and there will be other mothers of contact (sic) electronically that she would cooperate with he Skype, email and so on..
12. During the June hearing, I heard a lot of evidence from (the CAFCASS Officer) as to whether, and if so, contact between father and the children could be improved. I expressed my concern that if the mother was given permission to go and the contact being at that stage still so limited, there was a risk that it would lessen still more if the quantity was lessened by the mother living in Australia. The transcript of that hearing really discloses the debate that was held in court with the evidence that I was hearing from the Guardian. In the end I decided to adjourn the case to see if the parents could work together to enable the children to have better contact with their father. For his part, (the CAFCASS Officer) clearly wanted the father to bring some greater stability to his life in terms of his accommodation situation before there could be any real prospect of staying contact occurring. The father, for his part, also wanted the children to have a relationship with other members of his family, his mother, for example, and but not less….. (his) older son and daughter."
"As contact between parent and children being established as part of the Payne v Payne requirement before acceptance of a possible removal from the jurisdiction……"
"18. His recommendation, as has his (sic) recommendation has been throughout is that the mother should be given permission to relocate to Australia. He attaches to this report some observations from the children themselves, first of all (the boy)….. It is a page which says, "What I want to say" and "What do you think?", "My letter to the judge" and this looks as it has been written by (the boy) himself. "I think it would be good if stayed with dad for two months instead of one, because I like staying with him. I want to go to Australia because there's more to do." (the boy's) second page, "My plan. Here is what a good plan for me would look like", then he has written the words "Dad, (the father's two adult children) Mum, (the girl) and all relatives. Australia, swimming pool, friends, UK, four dogs, church in Perth, Nana and Popa, big house, lovely school", and a number of other possibilities, which he does not take up at the bottom of (the page). Then (the boy), "How I feel about my future." There are a number of possibilities that he can indicate and he has chosen to ring around the word "happy". As far as (the girl) is concerned, what I want to say and what you think, "My letter to the judge", this is what she writes:
'I still want to go to Australia because most of my family live over there. It is fun staying with dad, although the van would be a bit small in the winter. But apart from that, I am happy to stay with him. I am happy that I got to see my big brother and sister more often when they come to our house. I love going to (her grandmother's) a few weeks ago. I never really got to see her. Dad is good at looking after us.'
19. How I feel about my future, and she too has ringed the word "happy" and she has also ringed the word "excited."
"21. I, too, find that the mother has no ill-motive for wishing to relocate. I certainly do not think that she wants to relocate to get away from the father or his family. I accept the mother's evidence that she has a genuine reason fore wanting to go and she is genuinely motivated to seeking to achieve what she thinks would be a better life for her and her children in Australia. But I am concerned, as I have indicated during submissions, as to whether (which I shall come to in a moment) even though the mother is not motivated to exclude the father, whether as a matter of fact that might happen if the children were in Australia."
"22. The second fact that (the CAFCASS Officer) looks at is the motivation of the parent opposing the move. Mr O says, "Mr W is opposing this application because he feels that both children need both parents." He has said to me that Miss W feels trapped in this country and that her family are there in Australia and that they can offer her a type of support that he cannot, and he accepts this is important. He has also felt very angry at the way the mother has prevented him from seeing his children in the past, and is extremely worried that, if they are removed from this country, he may never see them again. He has tried his hardest to maintain contact against difficult circumstances and loves the children deeply. However, he does understand that the mother would like to be with her family, but pleads with her and the court not to cut his children out of his life.
23. Like (the CAFCASS Officer), I too, do not detect in the father's case any motive in opposing the mother's application, to deprive her of her desire to move to be with her family. Indeed, he expressly says that he, the father, has sympathy with the mother's decision and wish to move."
"24. Thirdly, (the CAFCASS Officer) looks at the effect of refusal for the carer and the children. He says this would simply be devastating, as (the mother) would feel completely trapped in another country, unable to access support from her family and not trusting that (the father) would support her parenting or her as a person. This has led in the past to a near breakdown and I would suggest that the severity of separation could easily impact badly on her, and in turn on the care of the children. I, too, find that the decision against relocation would be devastating for the mother.(emphasis supplied) She would be very saddened, I am quite satisfied, if the decision was against her and the implication of it would mean that she would have to remain in this country, because she has no intention, of course, of leaving the jurisdiction without the children. But she does have support, which some mothers in these cases do not, from her church in particular, and it may be, of course, that with the father now having greater contact to the children, that he can responsibility provide much more support to the mother than he has in the past, which is clearly a balancing factor for the court to consider."
"I believe they do enjoy seeing their father as he is one of the few social contacts in familial terms that they have in this country. They get taken to (place named) or the beach and they can "boss him around and get away with it" However, their overriding feeling is one of anticipation of going to Australia. I put it to them that they would miss their father and they knew they would but added that they would have much more family there than in England."
"Clearly this will mean huge changes – the children would need to communicate via computer and a Skype telephone connection whereby it is free they can talk and see other. Cards and letters and a yearly visit during the Summer Holidays (which may coincide with Christmas here?) The mother is proposing to spend one month in this country each year when the children will be cared for by the father. It will mean an enormous change for (the father) who has always lived in a mobile home obtaining a permanent address in the …..area will be extraordinarily difficult – but this is very necessary for the children. I do acknowledge that any contact with the children in Australia will be immensely difficult for the father to maintain regularly. (The mother) plans to work whilst in Australia and will fund her travel via her earnings and from parental support."
"30. Thus, I plainly have to be guided by the leading case of Payne v. Payne and I find that the analysis that (the CAFCASS Officer has set out in his report is a helpful analysis of the Payne v Payne considerations:"
"30. Wilson LJ in Re H clearly recognised the acute tension that there is in a case like this and, as I recognised myself in Re H. Re H concerned a mother who wanted to relocate to the Czech Republic and Australia is, of course, far further away than the Czech Republic. I am all too well aware in this case that whichever decision I make, one parent is going to be devastated. I have to confess that I have not found this an easy case to decide. Clearly there are many powerful reasons for granting the mother's application which are well articulated in (the CAFCASS Officer)'s report. But there are two main factors which concern me. First, during the last three months, it is absolutely clear to me that contact has been improving, and this is, as I say, to the credit of both parents, and (the CAFCASS Officer) acknowledged that as well. What troubles me, and this is a matter that I do not consider (the CAFCASS Officer) has adequately weighed in his final report, is that I do not feel that there is room for even greater improvements to come so far as the children are concerned and their relationship with their father and, so far as the relationship with the children are concerned and their relationship with his children R and D. What concerns me is that, if the children now go to Australia, all that may never happen. This I find could be an important loss for these children.
31. Contact once a year for a month is unlikely, in my judgment, to enable the success of the past few weeks to be solidly built upon. It is important, in my judgment, that the children o into their adult years with a good relationship with both parents. It does not matter, in my judgment, who was to blame for the failures in the past so far as contact was concerned. The fact is that good contact did not happen and the children's relationship with the father and also with (his two adult children) I find suffered accordingly. But it is now being re[paired, as the father says in his statement. It is rather like a honeymoon period at the moment. I used the word during submissions that it was "embryonic". In my judgment, there is more to come and (the CAFCASS Officer) acknowledged that in his closing remarks to me. So I feel it would be a grave loss to these children to deprive them of the possibility of his contact further developing and growing even more.
32. My second concern that I have, and this is another factor that I do not feel (the CAFCASS Officer) has given sufficient weight to in his report, is that whilst I give credit to the mother, as I have said, for her cooperation over the contact arrangements, the success of this has all come about in the context of this litigation and with (the CAFCASS Officer)'s help. I am concerned that, if the mother is given permission to go to Australia, she will then be free from the pressures and persuasive influence of this litigation, and there may not be the same constructive and harmonious cooperation in the future over contact. The father raises this in his final position statement at pages 8 to 9. I will not read all that out, but it is quite clear to me in reading those passages from his statement, that it does highlight, even in the context of these improvements that he has this concern.
33. Of course I accept what Miss Matuk submits that Australia is a member of the Hague Convention and there could of course be mirror orders made in Australia, but the context of this case is that neither or these parents are blessed with significant resources and the father could find it very difficult indeed, in my judgment, to attempt to enforce contact in Australia.
34. Weighing all these factors clearly in my mind, as I have, I have decided that the welfare of these children drives me to the conclusion on the evidence I have heard and read, that the mother's applications for permission to remove the children should be dismissed, I know this will be a very bitter blow to the mother, but she needs to understand that the children's relationship with their father is very important. In my judgment, the children should remain in this jurisdiction so that their relationship with him can continue to grow and develop. I am satisfied that he has a normal, good relationship with his older children…….. (The girl and the boy) must, in my judgment have the opportunity to develop their own, good quality relationship with him, their father. For his part, he must, in my judgment play a greater and increasingly more responsible role in constructive support of the mother. He is now playing a greater part in the lives of (the girl and the boy). It is absolutely vital that he remains completely committed to the greater role that he is enjoying.
35. For all these reasons, I dismiss the mother's application."
The grounds of appeal
The balancing exercise
"So we have much work to do. We need to know, firstly, what impact relocation has on the relocated child and, in particular, about children's resiliency in these circumstances. From here, we will need to have the basis for international law to do what it says on the tin: to work in the best interests of the children the law seeks to serve."
Nobody, I think, could disagree with that. I certainly do not.
The application of Payne v Payne
My remaining criticisms of the judge's approach
"2There has been considerable criticism of Payne v Payne in certain quarters, and there is a perfectly respectable argument for the proposition that it places too great an emphasis on the wishes and feelings of the relocating parent, and ignores or relegates the harm done of children by a permanent breach of the relationship which children have with the left behind parent."
Lord Justice Lloyd:
"I therefore suspect that unless contact is clarified in any order allowing them to leave the UK, there would be problems with [the father's] ability to maintain contact with the children, which they want to continue."
"However I am now certain that [the father] has suffered from a lack of contact to his children in the past and that this should have been rectified earlier."
"I hope that this will sustain the family ties in England where the children have grown up and spent all their childhoods, which cannot be overlooked in their development as adults."
"Thirdly, [the CAFCASS officer] looks at the effect of refusal for the carer and the children. He says this would simply be devastating, as [the mother] would feel completely trapped in another country, unable to access support from her family and not trusting that [the father] would support her parenting or her as a person. This has led in the past to a near breakdown and I would suggest that the severity of separation could easily impact badly on her, and in turn on the care of the children. I, too, find that the decision against relocation would be devastating for the mother. She would be very saddened, I am quite satisfied, if the decision was against her and the implication of it would mean that she would have to remain in this country, because she has no intention, of course, of leaving the jurisdiction without the children. But she does have support, which some mothers in these cases do not, from her church in particular, and it may be, of course, that with the father now having greater contact to the children, that he can responsibly provide much more support to the mother than he has in the past, which is clearly a balancing factor for the court to consider."
"Clearly there are many powerful reasons for granting the mother's application which are all well articulated in [the CAFCASS officer]'s report. But there are two main factors which concern me. First, during the last three months, it is absolutely clear to me that contact has been improving, and this is, as I say, to the credit of both parents, and [the CAFCASS officer] acknowledged that as well. What troubles me, and this is a matter that I do not consider [the CAFCASS officer] has adequately weighed in his final report, is that I do feel that there is room for even greater improvements to come so far as the children are concerned and their relationship with their father and, so far as the relationship with the children are concerned and their relationship with his children [their two half-siblings]. What concerns me is that, if the children now go to Australia, all that may never happen. This I find could be an important loss for these children."
"I used the word during submissions that it [i.e. the relationship between the children and their father] was "embryonic". In my judgment, there is more to come and [the CAFCASS officer] acknowledged that in his closing remarks to me. So I feel it would be a grave loss to these children to deprive them of the possibility of his contact further developing and growing even more."
"Weighing all these factors clearly in my mind, as I have, I have decided that the welfare of these children drives me to the conclusion on the evidence I have heard and read, that the mother's applications for permission to remove the children should be dismissed. I know this will be a very bitter blow to the mother, but she needs to understand that the children's relationship with their father is very important. In my judgment, the children should remain in this jurisdiction so that their relationship with him can continue to grow and develop. I am satisfied that he has a normal, good relationship with his older children…….. [The girl and the boy] must, in my judgment have the opportunity to develop their own, good quality relationship with him, their father. For his part, he must, in my judgment, play a greater and increasingly more responsible role in constructive support of the mother. He is now playing a greater part in the lives of [the girl and the boy]. It is absolutely vital that he remains completely committed to the greater role that he is enjoying."
Lord Justice Elias
"Thus in most relocation cases the most crucial assessment and finding for the judge is likely to be the effect of the refusal of the application on the mother's future psychological and emotional stability."
The reason why the mother's wishes are given such prominence when assessing the interests of the child is explained by Thorpe LJ as follows (para. 31):
"Logically and as a matter of experience the child cannot draw emotional and psychological security and stability from the dependency unless the primary carer is herself emotionally and psychologically stable and secure. The parent cannot give what she herself lacks."
Dame Elizabeth Butler-Sloss made observations to similar effect at para 83 (see para.22 above).