W v A

J U D G M E N T

Thursday, 4 November 2004

1. LORD JUSTICE THORPE: The parties to this appeal met in 1999 and started to cohabit some five months after their meeting. Their only child, A, was born on 13 November 2000. She is, accordingly, only a few days away from her fourth birthday. The parents parted finally in March 2004. At the time of the parting there was a real issue between them arising out of the mother's plans to spend two years in South Africa furthering her academic career. There was no order in relation to A, other than a parental responsibility order, which was made by consent on 21 May 2004. Shortly before that, the father issued an application for a residence order, which was an essentially defensive application, given his anxieties arising out of the mother's plans. Unfortunately, the issue of whether or not the mother might take A with her to South Africa was not tried out until September. The mother was planning to leave on the 20th, and the judge's judgment, after approximately three days of oral evidence, was given on the 9th. The judgment was disappointing to the mother in that it refused her application for permission and granted a joint residence order to each of the parents. An application for permission to appeal was filed in this court on 23 September.

2. There is an inevitable nexus between cases involving the abduction of children and cases involving the relocation of children. Accordingly, every endeavour is given in this court to prioritise such cases.

3. The application for permission was referred to me on 30 September. On the same day, I ordered an oral hearing on notice with appeal to follow if permission granted. My direction was that it must be listed before 12 November. Today, Mr Roger McCarthy QC for the mother, concedes that the joint residence order made by the judge below should stand if we should grant permission to relocate. Therefore the sole issue for us is whether the judge's discretionary refusal of permission is flawed.

4. Before considering her judgment it is necessary to sketch in the scene a little. The father is from Newcastle. He is in his early 30s. He is some ten years older than the mother. She is a scientist in a specialist field currently investigating water scarcity in South Africa. She obtained a First Class degree at the University of Northumbria in 2003. She was then employed by a local company for 12 months, ending July 2004, collating and analysing data relevant to the United Nations Framework Convention on Climate Change. At the same time, she took an MA course in Gender Culture and Development at Sunderland University. From the month of February 2004 she has also been employed by the Department of Geography Politics and Sociology at Newcastle University as a research associate. The employment contract runs until September 2006 and is designed to earn her her PhD. The project, however, absolutely requires her to spend two years working in South Africa, part at Pretoria University and partly in the field.

5. I turn now to the submissions of counsel. Mr McCarthy makes two principal submissions. The first is clearly set out in paragraph 12 of his skeleton argument. He states that the case of Payne v Payne[2001] EWCA Civ 166 was applied to the decision, despite the distinction from the usual removal case that this was not a permanent removal. Accordingly, the judge required the mother to overcome the same hurdles as she would have faced in an application for permanent removal. There was no adjustment of the Payne guidelines to reflect the lesser effect of a temporary loss of frequent contact, as opposed to the effect of permanent removal.

6. Mr McCarthy 's second principal submission is to be found expressed between paragraphs 27 and 33. In the development of the point, Mr McCarthy refers to the importance, in the relocation jurisprudence, attached to the needs or opportunities of the stepfather's career, and he refers to the decisions in (Re B (Removal from Jurisdiction); Re S(Removal from Jurisdiction) [2003] EWCA Civ 1149, which emphasises that consideration. That leads him to say, as he does in paragraph 32, that there is no good non-discriminatory reason for adopting a different approach to the career aspirations of the female as breadwinner; and there is no good non-discriminatory reason for adopting a different approach to the lone parent who is not relying on someone else as a breadwinner. He continues in paragraph 33:

"An approach (however unintentional) which allows the career aspirations of the step parent or partner to be a very powerful factor but which relegates the career aspirations of the single parent or the female parent to a lifestyle choice, is discriminatory in its effect."

7. Miss Alison Ball QC responds that all the appellant's submissions are founded on the false premise that this mother is the primary carer. This, says Miss Ball, is a case of a type increasingly common where the parents have developed a shared and equal care arrangement. Once the judge has established that fact, the considerations attaching to a case of relocation by a primary carer (that is to say sympathetic regard for her need or the need of a new partner to relocate and careful assessment of the impact of refusal) diminish. Miss Ball adds that the judge exercised a careful discretion and concluded that the detriment to A of a two-year removal from her father and all that is familiar to her far outweigh the detriment to the mother of a career setback.

8. Mr McCarthy in reply accepts that care is shared, but not equally, given that A's main base is undoubtedly with the appellant. She spends five nights a week in her mother's home and two nights a week in her father's home. The mother had resisted the father's application for a shift to a pattern of three nights in his home and four nights in the mother's home. The mother's resistance was expressed as a concern that A should have her home base with her, her mother, and regular contact to her father. On this point of detail, the judge upheld the mother's resistance. In those circumstances, Mr McCarthy submits that his primary submissions hold good.

9. I turn to my conclusions. In my opinion, Mr McCarthy is entitled to succeed on his first principal point. The judge, in paragraph 32 of her judgment, directed herself as to the proper approach. In paragraph 31 she had referred to the case of Payne v Payne, and particularly to paragraph 85 of the judgment of the President, which the judge read into her judgment verbatim. She then continued in paragraph 32 thus:

"Of course the difference in the case I am called upon to decide is that there is no residence order and I am satisfied, as I have already found and expressed, that the care is shared between these parents. The other difference of course is that this application is an application for temporary removal from the jurisdiction. It is not an application for a permanent relocation. Nevertheless the consideration set out by the President are of course applicable."

It is that final sentence of the citation which, in my judgment, demonstrates conclusively the error of law into which the judge fell.

10. The considerations relevant to an application for permission to relocate permanently are simply not automatically, or perhaps at all, applicable to applications for temporary removal. The consequence of the misdirection is that the judge's assessment of detriment to A in the diminution of contact to her father and all that is familiar, was an assessment as though the diminution and loss would be permanent and not temporary. Similarly, the criticism of the mother for prioritising her career before the interests of A again proceed as though her plan was for a permanent removal.

11. The relocation jurisprudence in this jurisdiction sets a high test for any applicant for permanent removal for the obvious reason that relocation exposes children to upheaval, loss of what is familiar and exposure to the unfamiliar. Reduction of contact with the other parent is an almost universal feature. Thus it is that the removal itself and the fact that it is permanent requires the court's most careful scrutiny. All the authorities in this jurisdiction over the last 35 years consider applications for permanent removal. The reported cases in other jurisdictions in the common law world share this essential characteristic.

12. Section 13 of the Children Act 1989 which states, somewhat ambiguously, under the heading "Change of Child's Name or Removal from Jurisdiction":

"(1) Where a residence order is in force with respect to a child, no person may -

...

(b) remove him from the United Kingdom;

without either the written consent of every person who has parental responsibility for the child or the leave of the court.

(2) Subsection (1)(b) does not prevent the removal of a child, for a period of less than one month, by the person in whose favour the residence order is made."

13. Thus the obligation on the primary carer with a residence order is either to obtain the consent of every person who has parental responsibility, or apply to the court for permission in relation to any planned removal of more than 28 days' duration. Let us suppose that the plan is for a six-week holiday or for a three-month placement in a foreign university. In those cases, surely no one would consider that the judicial discretion was to be directed by reference to the authority of Payne v Payne. The more temporary the removal, the less regard should be paid to the principles stated in Payne v Payne.

14. I turn now to Mr McCarthy's discrimination point. It seems to me that the argument Mr McCarthy presents is unnecessarily sophisticated. I would simply put the point in terms of the importance of the mother's career development and fulfilment. Success is of great value to her, but it is also of value to A, who would benefit from the mother's secure and prestigious academic position in her home city on her return from the South African work.

15. The facts relating to the mother's career as it presently stands, and as it stands prospectively, are already partly recorded in this judgment, and I need only add the evidence of the mother's current supervisor, Dr Trottier. In her written statement, and I add she also gave oral evidence, she said at paragraph 6:

"It is a dream opportunity for L or any PhD student. For this particular PhD position, I received over 800 applications. L was an outstanding candidate with excellent references, and interviewed very well, with good work experience.

7. This PhD will equip her for the future to develop her career. She could become an academic. Because of her extensive field work experience, she would be better placed than most if she applied for a lectureship either at the University of Newcastle upon Tyne or Northumbria."

Later she said at paragraph 9:

"Her contract of employment with the university does not specify that she must go to South Africa, though it does say that she is to work on this specific project as required, in effect, by me as her supervisor. In my view it is impossible to do this work without going to South Africa - this is written in the contract which the university has with the Department for International Development.

10. If L were not able to go to South Africa in September 2004, I would very reluctantly have to terminate her contract of employment and try to hire someone else though that would be very hard. Nor would she be able to do her PhD and would have to look for a job elsewhere - she would lose everything. She would have great difficulty in finding alternative funding."

16. The judgment omits none of the relevant facts, but I have misgivings over the judge's description of the mother's academic ambitions as "her dream". This phrase appears repeatedly through the judgment. In paragraph 13 the judge said that in February 2004 the mother did not want to contemplate the possibility that something might prevent her pursuing "her dream". In paragraph 27, the judge said:

"I find that [mother's] perhaps understandable desire to pursue - again, I quote - 'her dream' has to some extent handicapped her ability to see objectively the reality in relation to what she proposes from A's point of view."

In paragraph 35, the judge again referred to the consequence of refusal which would be that "she would not be able to research the subject which is her dream". In paragraph 39, again the judge says of the mother "she is to some extent blinkered by her own dreams". Finally, in paragraph 46 the judge said, "I fully accept that [mother] will lose her chance to pursue her dream..."

17. The origins of the phrase may be the statement of Dr Trottier, which I have already recorded; alternatively, the report of the CAFCASS officer, who had said in paragraph 24:

"[Mother] says that her studies and her trip to South Africa would be fulfilling a 'life long dream'. She has already changed her employment because she did not want to spend so much time away from A, however she feels that this post will open opportunities for her in the UK and will allow her to provide for herself and A in the future. She believes that [father] has always been aware of her long-term plans and feels that his objections are more about controlling her, than about A's best interests."

Thus it will be seen that in its context the welfare officer was only citing the mother's own statement and in no sense in a critical context.

18. What, of course, the mother brought for judgment was not some fantasy that was unlikely to materialise into reality. It was her concrete achievement that had given her a very special opportunity that would lead securely from research assistant to PhD, and ultimately lectureship at the university. Refusal of the application would result in her dismissal and would render her prospects of developing some other opening in her specialist field necessarily uncertain. Accordingly, I conclude that the judge has to some degree underevaluated this vital ingredient of the mother's case.

19. I emphasise that I have considerable sympathy with the judge, who is a judge of very great experience and who delivered a judgment of manifestly comprehensive care. It was counsel who referred the judge to the relocation authorities, and in particular to Payne v Payne. Judge Moir only decided the case in accordance with the authority on which counsel, including counsel for the mother, relied. But with the advantage of hindsight and detachment from the process of a trial at which a number of contentious areas were, I think, unnecessarily investigated, in my judgment the judge's task was to balance the very significant impact of refusal on the mother's blossoming academic career against the effect of moving A to South Africa for two of her early years. There needed to be a clear concentration on practical ways and means of mitigating deficit to A, by investigating all the direct contact possibilities both in the United Kingdom and in South Africa, and all the indirect contact options, given that A is almost four and therefore capable of benefiting from communication by telephone, email, text messages, DVD and digital photography. I have reached the clear conclusion that the judge was unwittingly led into misdirection, and therefore her discretionary conclusion cannot stand.

20. It is therefore open to this court to exercise the discretion afresh. I am perfectly satisfied in my own mind that on a proper balance of the positive against the negative, the mother's application is made out. She should have permission. There must hereafter be a concerted investigation of both the direct and the indirect contact options to ensure that A's relationship with her father, and indeed with her home city, is maintained as vividly as possible during the period of absence.

21. LORD JUSTICE WALL: I agree that this appeal should be allowed for the reasons my Lord has given.

22. The judge described this as an exceptional and difficult case. Her judgment, which is in the midst of a busy and interrupted court schedule is,as one would expect from a judge of her experience, comprehensive, well-structured and contains much good sense. However, like my Lord, I am satisfied that she was led into error by the manner in which the case was presented to her. She recognised, of course, that what the appellant was proposing was a temporary removal of A to South Africa and not a permanent relocation. Nonetheless, as it seems to me, she applied to that temporary removal the criteria identified in the permanent relocation cases. In my judgment, this led the judge, in particular, to undervalue both the importance of the visit to South Africa to the appellant's career and the fact that the appellant's proposals were designed as a mechanism for her return to Newcastle with A and long-term academic employment at the university, something which, far from being unreal or a "dream", was a point she made to the court reporting officer in the passage from the report my Lord has quoted. The judge, by contrast, thought the appellant "blinkered" by her own dreams in her approach to the trip to South Africa; that she was allowing her desire to undertake it to override the interests of A, and was subjugating the interests of A to it. In my judgment, that is not a fair reflection of the evidence.

23. The same approach led her, inevitably, away from considering the details of proposals to keep A in contact with her father. Of course, it will not be possible for the father to enjoy the same level of contact - I use that word in its colloquial, not its legal sense - over the next two years as he would were she to be living in the north-east. But I see no reason why, when the appellant returns at the end of the two years, the respondent father should not resume a full relationship with his daughter. For this to happen, however, considerable thought now needs to be given to the arrangements for A to remain in contact with her father from what will be January 2005 to some time in 2006 or 2007.

24. Fortunately, the parties now have some time between today and January fully to discuss and agree those arrangements. A has the enormous advantage of having two highly intelligent and loving parents. What matters for the future is the relationship she continues to have with both, rather than a label we put on it. The inevitable tendency of litigation is to polarise attitudes, but what children require is unanimity of approach between their parents and cooperation and mutual respect between them.

25. In my judgment, it is essential that both parents now cooperate fully over the arrangements for contact whilst A is in South Africa; when and how often she comes back to the United Kingdom; how often her father visits her in South Africa; what facilities can be made available for communication, and so on.

26. The appellant does not pursue her appeal against the making of the joint residence order. In my judgment, such orders, in the context of a case such as the present, are a formal recognition of an underlying reality, namely, that both parents have parental responsibility which they will continue to exercise, and that whilst in the next two years A's primary home is plainly going to be with her mother in South Africa, she is going to see as much as possible of her father and will stay with him whenever that can be arranged.

27. It is the conventional wisdom in the Family Division, that for a child in A's position to grow up as a balanced, well-adjusted child, ongoing parental cooperation and discussion about her welfare between her parents is essential. I do hope the father, despite his undoubted and natural disappointment at the outcome of this appeal, will nonetheless be able to bring himself to reassure A that she will have a wonderful time with her mother in South Africa; that he will be in contact with her as much as possible, and that he will look forward very much to the time when she comes back to Newcastle. Equally, I hope the appellant will negotiate realistic but generous contact for the father.

28. One matter the parents will need to discuss is A's schooling in England. She would normally go to school, as I understand it, during the term in which she is rising 5, that is September 2005. The parents will need to discuss where and when she goes to school. They may not be able to make that decision now, but channels of communication about this and every other issue relating to A's welfare must remain open and used.

29. No doubt my remarks have strayed beyond those strictly necessary for the resolution of this appeal, but what matters in the future for A is the normalisation of relationships and cooperation between her parents. These are matters for the parents, not something the court can impose.

30. I would, however, allow the appeal for the reasons given.

31. MRS JUSTICE BLACK: I agree with what has already been said. Cases which involve the removal of a child from the jurisdiction for a significant period of time are often extremely difficult, involving, as they do so frequently, the separation of the child from a loving parent who has been playing an important part in the child's everyday life.

32. The judge was invited to look at this case of one year and at most two years' absence from the United Kingdom in the way set out in Payne v Payne, which is the correct approach where permanent removal is proposed, and she did so. Although she recognised the difference that this was a case of temporary removal, the application of the Payne principles notwithstanding that recognition led, in my view, to the temporary context of the mother's proposals receiving insufficient weight in what was a conspicuously clear and careful judgment in a case that had obviously caused the judge considerable anxiety as it would have done any judge at first instance.

33. If the proposals of the mother had been seen with the temporary context much more in mind, there would have been (to give just two examples): (a) a greater focus on the longer term consequences, beneficial and detrimental, for the mother and A of moving, or not moving, temporarily to South Africa, in particular in relation to the career options that the stay in South Africa would open for the mother and the benefits to A of those and the consequences of a refusal of leave on the mother's employment which she would lose; (b) more attention given to ways in which contact could be arranged for a temporary period to overcome A's loss of the important day-to-day relationship with her father, something that should have been much more feasible as a temporary arrangement than where the removal is permanent. There would also have been a proper recognition of the finite period during which A would not be seeing her father as often, which would be clearly seen as simply an interval before the relationship would be resumed with her father in its fullest sense. I know that the father will be very saddened by the outcome of this appeal, but he does need to be assured that that relationship will be resumed after the end of the stay in South Africa.

34. I agree that the judge's exercise of her discretion cannot stand in the light of the matters that have been outlined and that permission to go to South Africa should now be given.

(Application granted; appeal allowed; further orders as to contact to be agreed; no order as to costs; identification restrictions apply).