W (A Child), Re

LORD JUSTICE THORPE: The parties to this appeal commenced their relationship in 1999 and in consequence their only child, C, was born on [a date in] 2000. They separated about a year later, initially C residing with his mother. The transfer from mother to father as primary carer occurred in December 2001 as a result of a significant deterioration in the mother's mental health. That is the sad element of the case.

During the year 2002, the mother was involved in a series of turbulent exchanges, resulting in injunction orders being made against her and the suspension of supervised contact arrangements which had been put in place in January 2002 and which had continued until March. Thereafter there was no direct contact until August 2002, when two supervised contact sessions took place. There has been no meeting between C and his mother since 30th August 2002. On 7th February 2003 an order was made: paragraph 1 stated that there should be no direct contact between mother and child, but by paragraph 2 the mother was permitted to send letters, cards and presents and the father was obliged to send a progress report and photograph every three months. That indirect contact order has continued to this day without variation or interruption.

On 23rd November 2004 the father issued an application for permission to remove C permanently from the jurisdiction to Australia. The mother's response was an application for direct contact, which was issued on 30th December. On 13th January the court sought a section 7 report from social services, and that report was available to supplement the statements which each parent filed and an expert report from an adult consultant psychiatrist on the mother's mental health. That evidence was prepared for a hearing which took place on 18th July in the Stoke-on-Trent County Court before His Honour Judge Glenn. He heard oral evidence from the parents and also from the father's intended wife. He heard oral evidence from the maker of the section 7 report, and he had the written report of the consultant psychiatrist.

The case spilled over into the following day. After some further evidence and submissions from counsel, the judge delivered an extempore judgment granting the father's application and refusing the mother's cross-application.

Mrs Sweeney, who represented the mother below and who has been led by Mr Valentine Le Grice QC this morning, applied to the judge for permission to appeal, on the ground that his decision was plainly wrong. The judge, we are told, granted the application, saying no more than "of course".

In consequence a preliminary skeleton argument was filed by Mrs Sweeney at the end of July and that was answered by Mr Wainwright in August. But more recently, the public funding certificate has been extended to cover the costs of leading counsel and Mr Le Grice has come into the case. He yesterday sent to the court additional grounds of appeal and an additional skeleton argument.

We are grateful to Mr Le Grice for that groundwork, and fully understand that it could not have come earlier given the fact that he only received the papers last Friday. He has presented this appeal with conspicuous ability. I do not think that anybody could have presented a more intelligent and attractive argument than he has done: but he has faced enormous difficulty.

The judge made a careful appraisal of the facts and of the parties. Of the father he said:

He said later:

Of the mother he said:

The judge summarised the oral evidence that he had received from each of the witnesses, and he directed himself as to the law, looking to the case of Poel v Poel [1970] 1 WLR 1469 and Payne v Payne [2001] 1 FLR 1052 on the issue of relocation. On the issue of direct contact he referred to the cases of Re S [2004] 1 WLR 1279, Re M and, in the House of lords, the case of Re KD.

He had noted, in recording the evidence of the social worker, that her concern was, given the past history, whether mother would sustain her relationship and contact with agencies. She continued that in the past contact between mother and C was not quality contact and caused him difficulties. She said that what principally concerned her was the mental health side. She said that if the decision was to allow removal, direct contact in the meantime would be very difficult and upsetting for C. Even if he were not leaving, reintroduction at the age of five would be a very significant change. In conclusion she had said:

The judge accordingly, adopting the social worker's anxieties, said at paragraph 24:

So when the judge came to pull these threads together, he said in paragraph 34:

Mr Le Grice attacks the judge's judgment on a number of fronts. He says that there is a clear misdirection as to law, in that the judge in paragraph 30 adopted the headnote in the case of Poel as it appears in the Weekly Law Reports, where at 1469 we find this summary of the effect of the judgments:

The phrase that the judge has picked up and echoed in paragraph 30 is "unless it was absolutely essential". Mr Le Grice points out that there is no such expression in the judgments. The writer of the headnote founded himself on page 1473B-D and D-E, brief passages from the judgments of Winn and Sachs LJJ. Mr Le Grice's simple submission is that the law reporter had put the test higher than the court had intended and the headnote had, if not determined the judge's approach, certainly coloured it.

That is a very ingenious submission which has been carefully researched. However, it does not persuade me that the judge has gone off the rails in his direction as to the law. For in the following paragraph he made perfectly plain that he was primarily looking to the more recent authority of Payne v Payne, the effect of which he summarised in paragraph 31 and went on to apply in paragraph 32.

Mr Le Grice's second principal complaint is that there was no evidence here at all of the emotional impact on the father of refusal, and thus of the transference of unhappiness to the child. Certainly it is easy for Mr Le Grice to demonstrate that the father gave no direct evidence as to the emotional impact of refusal on him, either in his statement to the court or apparently in his discussions with the social worker. In those circumstances, it is not entirely surprising that the judge did not refer to that aspect in his judgment. Mr Le Grice submits that were there to be an inference of emotional distress to the primary carer in the present case, and then an inference of transference to the child, that would effectively lead to the creation of some rule of law that transference inevitably follows from refusal.

That too is an ingenious submission, but it seems to me to deny the reality of the present case. As the judge rightly recognised, and as the mother to her credit conceded, the father had had the desire and ambition to emigrate to Australia for many years. He had discussed it with her during the course of their relationship some five or more years earlier. Since the development of his relationship with his present wife, he had gone to a good deal of trouble investigating the possibilities, building on a base that his brother offered, being already established in Australia as a substantial householder. He had gone to considerable lengths to obtain the trade certificate that would be necessary for him to qualify as a desirable immigrant. His plans were thoroughly well laid. Effectively, the only impediment to his going was the possibility of reviving direct contact between mother and child. That possibility had to be very carefully evaluated by the judge. Here it is plain to me that the judge looked fully and carefully at the pros and cons, and in the end came to a negative decision, in line with the recommendation of the social worker.

The burden on the applicant has to be in proportion to the extent of the contrary factors. Here there was but a single contrary factor, and it was evaluated by the judge as unrealistic in all the circumstances.

I recognise the dilemma for the mother. As Mr Le Grice has said, she may have been impelled to apply prematurely in reaction to the relocation application. Of course it was important for her to defer an application until she could demonstrate full recovery from a sad breakdown in her mental health. But of course inevitably the longer the duration between August 2002 and the evaluation of the application, the higher the hurdle became.

In the end, I regard this as a straightforward case in which the judge had to make a balanced discretionary decision as to what proposal would best advance the welfare of C. He came to the conclusion that what was best for C was for the father and his new wife to establish their ambitions and to create a new life in Australia. He did not regard the disbenefit to C as high, as in many of these relocation cases, simply because of the tragic consequences of the mother's illness. It had interrupted her natural relationship with her son to such an extent and for such a period that it had small weight in the scale that the judge was holding.

So, despite Mr Le Grice's well-presented argument, I am not persuaded that this is a judgment which is in any respect flawed. The judge has explained himself sufficiently and persuasively. We must always bear in mind that this is an extempore judgment, and any imperfections in the summary of the effect of the relevant authorities must be judged with a degree of latitude.

I would simply dismiss the appeal.

LORD JUSTICE RIX: I agree.

MR JUSTICE WILSON: I also agree.