LORD JUSTICE THORPE: The appellant mother is 34 years of age and the respondent father, 40. The mother is Brazilian and in her homeland she graduated with a law degree in March 1996. Subsequently in her home town she met an Englishman, to whom she became attached, and in April 2002 she came to the United Kingdom for the first time with her then fiancé, whose home was in the Isle of Wight. That relationship was short-lived. By July, she moved to stay with a Brazilian friend. She thought to see something of Europe before returning home and took relatively casual employment in a nearby Tesco store. There she met the father who was the store manager. They commenced a relationship which blossomed into cohabitation in March 2003, and in the summer of that year, the mother fell pregnant. In November, they visited the mother’s home town. The mother spent a month at home and the father paused there for a week or so on his way to Australia.

There was obviously the possibility that mother might give birth at home in the company of her family but in the end, for reasons relating to the health of her partner’s father, she gave birth here on 13 March 2004. She had intended to be supported by her own mother but the birth came unexpectedly early and so her mother was not with her until the end of March. But she stayed four weeks and gave her natural support to the young mother.

Things began to go wrong at the beginning of 2005. The mother was unsettled and sought advice from an advice centre as to the possibility of her returning home with Iara. The parties moved from independent accommodation in West London to stay with the paternal grandparents in Northampton. Those sorts of family arrangements are often difficult and this lasted only a week before there was a violent scene. The mother assaulted the father. The police were called and that scene marked the death of the relationship. The mother instructed solicitors, who wrote seeking the father’s assent to her return to Brazil with Iara, who was then some 13 months of age.

That was not given, and indeed on 5 May, the father applied for parental responsibility, a prohibited steps order preventing Iara’s removal from the jurisdiction, a residence order, and alternatively contact orders. The real issue at that stage was plainly contact. An agreement was reached at the first return in the Staines County Court on 4 July. Directions were given. The case was transferred to the High Court. There was a hearing on 25 November when arrangements were made for a CAFCASS report on the issue of overnight contact to be filed by 14 December. It was so filed. The report recommended staying contact and accordingly at a hearing on 19 December 2005 staying contact was agreed to commence immediately after Christmas and thereafter weekly. What of course remained outstanding was the big issue of relocation and also the father’s application for a residence order.

The hearing commenced before Hogg J on 19 January. I infer that two days had been allowed. On the first day she heard the evidence of the CAFCASS officer. On the second day she heard the evidence of the father. Two further days were required for the evidence of the mother. They were found on 24 and 27 January. The judge then invited written submissions from counsel, both parents then being represented. The judge adjourned to 24 February and on that day she invited oral submissions from counsel and then immediately at their conclusion delivered her judgment, refusing the mother’s application to relocate and making a shared residence order on the basis that the majority of Iara’s time would be spent with the mother.

No application was made for permission to appeal to the judge because we are told the mother was very upset by the refusal of the application. Accordingly the first application for permission was lodged here on 10 March, and on 16 May I ordered an oral hearing with appeal to follow if permission granted. That hearing takes place today, 21 June.

By way of introduction, it is curious to see the judge describing the father’s case for a residence order as being a strong case. After all, this was a young child who had been consistently cared for by her mother and the father has an important and responsible job which allows him conventionally five weeks’ holiday a year. It seems to me the real issue the judge was trying was the issue of location and on the papers it certainly seemed to be a paradigm case for the grant of the application, subject of course to very stringent conditions to ensure that the relationship between Iara and her father would be maintained through good quality contact, that her relationship with the English side of her heritage would equally be fostered by ensuring that she was brought up bilingual, and that she had equal opportunity, or nearly equal opportunity, to maintain contact with the father’s extended family.

The judge refused the application on a number of grounds which have been called in question by this appeal. First of all, the judge was not satisfied with the degree of evidential support for the mother’s practical proposals. Second, the judge concluded that the mother had given deliberately misleading evidence to the court as to her qualification and her capacity to practise in Brazil as a lawyer. The judge’s adverse findings as to the mother’s credibility then infected the judge’s assessment of the evidence given by the mother on other important questions, such as her commitment to maintaining Iara’s relationship with her father and with her English heritage.

The judge also rejected the evidence of the mother, lightly supported by a rather thin medical certificate, to the effect that her emotional and psychological well being would be shattered by the refusal of the application. The judge seemingly drew support from the contribution of the CAFCASS officer in coming to these adverse conclusions which were the foundation of her ultimate order.

The reduction of the mother’s credibility resulted from evidence that she had given as to her career prospects on her return to Brazil. In her written statement in preparation for the hearing she said at paragraph 30:

“I am qualified from the University of Brazil as an Advocate, which is the equivalent of a Solicitor. I qualified in 1996.”

In her statement in reply she said:

“Whilst I am a qualified lawyer in Brazil such qualifications, given my lack of English and lack of knowledge of English law, would not offer to me better employment.”

That was a comparison with the work which she was doing at the date of her pregnancy. She had said in the previous paragraph that at the time of her pregnancy she was doing menial work stacking shelves.

There was also a reference in the CAFCASS officer’s report, which of course preceded the trial. Mrs Haywood, the CAFCASS officer, in her written report of 4 January had recorded this statement in interview:

“Ms M has stated the desire to return to work, in order to support herself and Iara. She acknowledged to me that she would need to take time to update her law degree but she was then hopeful of employment through her uncle’s law firm, which I understand is located close by to her grandmother’s house.”

Now in her oral evidence the mother offered further clarification in answer to questions posed by Miss Bacon for the father or by the judge herself. Before I cite this evidence, it is important to stress that the appellant has only partial command of English and was giving her evidence in English where she could but with the assistance of an interpreter on more difficult questions. The questioning from counsel for the father at E171 begins with this question and I will read this passage in its entirety, first question and then answer:

At 182 at the foot of the page, a question again from counsel:

At the conclusion of the mother’s evidence on 27 January, Mrs Pinkham tells us that the judge issued a warning that she regarded the mother’s evidence in this area to have been untruthful and that it would have to be dealt with by way of submission. So when Mrs Pinkham wrote her final submissions, she said on 16 February:

“It is unfortunate that the paragraphs at B4 and B34 [I interpolate those are the statements in the written evidence which I have already cited] were never put to Miss M in cross-examination. She was never given an opportunity to give an explanation for the inaccuracies of her statements. If the case is to be decided against her on the basis of this one issue, then it is submitted that she should at least be given the opportunity to be recalled to the witness box in order to explain.”

We do not have a transcript of what occurred on 24 February. The only thing we do know is that the mother was not recalled and did not give further oral evidence.

So on that foundation I reach the conclusion that the judge was simply not entitled to deal with this issue as she did. She in paragraphs 18 and 19 of her judgment said that she had been left with uncertainty as to the mother’s future employment and financial prospects were she to return home. In paragraph 19 she said that it was a worrying feature of the case which caused her to ponder how carefully the mother had made her plans. But more devastating were the judge’s words in paragraphs 33 and 34. In paragraph 33, she said:

“Moreover, I am deeply concerned that until I raised the question of her qualification as a lawyer she had sought to persuade the court in her written documents that she was a qualified lawyer and could practise as such. It is far from the case. Indeed she has not been involved with any legal training or employment since 2000, nor is it certain when she could or would be qualified. I do not accept that this was a mere oversight on her behalf. It could have been corrected. Indeed, in her two statements she refers to the fact that she was qualified on two occasions. She was telling the court that she is something that she is not, that she could earn an income as a professional person when currently she cannot.”

In the following paragraph she continues:

“In my view there has been an attempt to bolster her case which, but for certain questions put to her, could have misled the court. This is concerning because it casts into doubt so much of her stated good intentions to encourage and facilitate contact and the father/daughter relationships were I to live in Brazil.”

Now I am in no doubt that that conclusive rejection of the mother’s credibility was unfair and unwarranted. It does not sufficiently allow for the fact that she alerted the CAFCASS officer to the fact that she would require further qualification on return. It does not sufficiently reflect the fact that it emerged quite spontaneously in the course of the mother’s evidence. It was no part of the respondent’s case that her earlier written statements were misleading or untruthful. She was not cross-examined on that basis, and when the judge had before her the written submissions of the 16 January it was, in my opinion, incumbent upon her to allow the mother the opportunity to explain and justify herself before such damning criticism.

Furthermore, the passage that I have cited demonstrates the extent to which the rejection of the mother’s credibility on this one narrow point then infected the judge’s view of her credibility on other points. Nowhere does the judge sufficiently allow for the fact that the mother was, in any event, having to testify in a second language and probably had compiled her written statements without the aid of an interpreter. So, in my judgment, Mrs Pinkham succeeds on that ground of her appeal.

The second substantial ground which I now review is Mrs Pinkham’s criticism of the judge’s conclusion that she would readily adjust to refusal of her application and that her assertions of the impact upon her of rejection were, if anything, contrived. The judge had not only the evidence of the mother in her written statement that she would be deeply upset were she confined to this jurisdiction but she also had some rather unspecific corroboration from the mother’s general practitioner. Then in the court welfare officer’s written report, Mrs Hayward had stated at paragraph 51:

“Indeed, Miss M indicated to me that she needs and craves the support that her family can give to her and I. In my opinion this is understandable. Miss M needs to know that she has a support network of family or friends to whom she can turn in times of need.”

So what was the basis of the judge’s rejection of the mother’s case on this crucial point? The judge said:

“She [Mrs Hayward] was aware that the mother would find it distressing if she could not return to Brazil with Iara and that distress could impact upon the care of Iara.

“28.

However, this was within her contemplation when she answered my questions and gave her opinion. She was asked directly about this by the mother’s counsel. Mrs Hayward recognised mother was unhappy and felt isolated here but she was making strides to enter the community by joining mother and toddler groups and attending a church. She said it would take time for the mother to come to terms if she stayed here. She wondered how deep the mother’s wish was to return to Brazil given the lack of planning and definite proposals and the recent past difficulties within the family. She was not aware when she gave evidence that the mother was not qualified to practise as a lawyer but had only a law degree from 1996 and no professional qualifications.

“29.

I have to ask myself what is in the best interests of Iara, balancing the mother’s wish to go back to Brazil and the distress and impact that may have on her care of Iara if she cannot return against the need for Iara to have both parents available to her on a regular and frequent basis. I share Mrs Hayward’s doubts as to the depth of distress the mother would suffer if she could not return to Brazil. I accept there will be some distress. I accept that for a period the mother may suffer upset and until she recovers from the upset and disappointment her care of Iara could be adversely affected but not enough to cause me to consider removing Iara from her care. It is likely to be only relatively short term until the mother establishes herself better in this country.”

There are considerable difficulties in supporting the judge’s words in that citation. First of all, there are of course passages within Mrs Hayward’s written report that are indicative of an ambivalent stance. I have already cited the passage in which Mrs Hayward expressed the opinion that the mother needed badly the support of her family, but in the same report Mrs Hayward was expressing reservations about the concrete evidence as to practicalities. However, it is clear from her report, and the judge must have overlooked this, that she was well aware at the time she wrote it that the mother was not fully qualified to practise as a lawyer but needed to take some further exam. But the real problem with the passage I have cited is that the judge seems not to have had in mind the oral evidence of Mrs Hayward. She deals with the mother’s wishes and the effect of refusal in a number of passages. Perhaps it is sufficient for me to give the flavour of this evidence by citing the passage that commences thus with a question:

Again I take a passage at E42. When asked about Miss M’s emotional state she said:

“But, I do acknowledge that Miss M is very emotional at this time, and, yes, she is on the right track for depression, as the GP would say there. Yes, she does need, I think, as we were talking about, perhaps the support of her family at this time, and her family is a long way away.”

The only passage that could possibly be said to justify the judge’s conclusion comes on the following page, where counsel for Miss M has put that her client was coping with current stress by relying on the hope of release and the CAFCASS officer replied:

“Indeed, Miss M does have this hope. Again, I cannot comment on how deep that is, or how much her need for that is at this point in time. I can only comment on the person that I observe, and the person that I observe is someone who can, for her daughter’s sake, keep that under wraps, and who can be the loving, caring mother that takes her out to the toddler group, and makes these little bits and pieces for the other children and their mothers and Iara is benefiting from that. But, as a professional also, I do understand that this is deeply depressing to Miss M. I think I put in my report that she does need the support of her family to help her in the upbringing of Iara. I do acknowledge that.”

So insofar as the CAFCASS officer expressed any reservations as to her capacity to cope, it was not upon the depth of the mother’s commitment to return but upon the depth of her hope as the sustaining factor in the run-up to trial.

So the judge has, in my conclusion, erroneously claimed support from the CAFCASS officer’s evidence and has founded herself on the CAFCASS officer’s contribution in a way that is not borne out by an analysis of the transcript.

I turn briefly to a third head of appeal which is also made good by Mrs Pinkham. The judge was highly critical of the mother’s practical proposals and the evidence that supported them. Two illustrations of the judge’s fallibility in this area suffice. She said in relation to the job offer that awaited the mother with her uncle at home:

“It is not clear to me whether they were aware that she was not qualified to practise or who in reality would supervise her. Even now, having received the letter of 2 February, I am not clear whether the office in fact has opened or who will supervise her when she will be qualified.”

Wilson LJ has pointed out that in so stating the judge must have been forgetful of the letter of 4 January from the family firm, [M] Advogados, in which the writer clearly stated:

“We hereby inform you that the branch of our law office in the district of Andradas has been functioning since November 2005.”

The later letter, which came in I think after the conclusion of the oral evidence, made plain that M Advogados were well aware of the mother’s need to gain further professional qualification when they stated:

“We are offering her a traineeship at our office until she passes the Bar Council’s Examination, when she will become an associate lawyer at the branch office …”

Perhaps more concerning is that the judge invokes the support of the CAFCASS officer in paragraph 18 of the judgment in expressing reservations about the quality of the evidence as to her Brazilian plans. Whereas it is fair to say that the CAFCASS officer in her report of 4 January had been concerned about the lack of clear information as to those plans and proposals, by the time she came to give oral evidence, she made it plain that her earlier reservations no longer persisted. She said for instance:

“So yes, this particular bundle coming through did answer some of those dilemmas that I was feeling about this. Yes. Thank you.”

Later in her evidence she said in relation to practicalities:

“… But no indeed, most of the information that we have discussed today has fleshed that out, as you would say. Yes. Thank you. That has been very helpful.

Q: So, it is right to say that there are not only glaring absences of information that you would feel uncomfortable with.

A: There probably are, but they’re not hitting me in the face right at this moment. I think when I put the report together, these were the things that came out to me that I thought, “I’ve spoken to [Miss M]. I have looked at her statements before court. I have looked at the supplemental evidence that she has presented.” These were the things that I still felt that the court would be served best by having information on. I think, certainly from my perspective, we have attended to those issues both verbally and in writing here. I would normally like to take time to review things, but just standing here, at this point of time, as I say, nothing else is jumping out to me at this point in time …

Q: … as being a gap in the plans.

A: Indeed.”

It is perhaps superfluous to record Mrs Pinkham’s further grounds, but she does make the point with I think some validity that the judge has not sufficient reflected the mother’s capacity to facilitate future contact, given the fact that on return she would be liberated to earn a professional salary. The judge has not taken into account that future contact would not be so much dependent upon the mother’s commitment but the joined forces of the judicial systems in this country and in Brazil to ensure by way of mirror orders that there could be no selfish erosion of the father’s entitlement to frequent good quality contact.

I only notice, finally, that Mrs Pinkham rightly draws attention to the risks of harm to Iara from the judge’s conclusion, the loss of her maternal family and furthermore the loss of the prospects of professional life for mother, a loss which would impact on Iara because of the emotional affliction and the financial restrictions that would result.

So for all those reasons I was satisfied that at the end of her submission, Mrs Pinkham had established a very strong case. It is very regrettable that Mr K is not legally represented before us. It is very understandable that he is not legally represented, given that he has had to fund himself the costs of legal proceedings since their initiation in May 2005. He is at a salary level which denies him public funding and he tells us that he has spent tens of thousands on legal fees. That is a trap for a father in circumstances such as this. He has the strongest emotional attachment to his daughter. He has a natural desire to advance the strongest case he can to secure what he believes is the optimum outcome to promote her future welfare, namely a shared care order. He simply does not have the cash to ensure that his case is professionally put. He has nonetheless advanced his case in a persuasive and attractive way. He has emphasised that at the root of this is the importance of facilitating contact but the real root is his conviction that the mother’s motivation for return is simply to write him out of Iara’s future life. He has emphasised that the judge heard a great deal of oral evidence and that she had made a profound assessment of the parties and the issues and was entitled to conclude as she did. He reminds us that the outcome of a relocation applications can also be emotionally devastating to the left behind parent if it be granted.

All those considerations are real and are to be given their due weight. But in the end the forensic analysis offered by Mrs Pinkham and extended by the exchanges with the court this morning demonstrates that the judge’s rationalisation for refusing a strong relocation application is flawed in almost every area that we have canvassed.

I accordingly am in no doubt at all that the application for permission succeeds, as does the appeal.

What are the consequences? One option of course would be to remit for a full retrial. That would be a most unattractive option, given the continuing emotional stress for both the parents and given the inability of Mr K to fund future representation. On analysis it seems to me that the grounds of refusal identified by the judge are individually without good foundation and must be removed from the analysis. I simply cannot see that the case re-presented, allowing for the fact that the evidence in relation to practicalities and the evidence in relation to emotional impact would obviously be fortified could lead to other than the grant of the application.

The judge’s exercise of discretion has been demonstrated to be substantially flawed. It is open to this court to exercise its independent discretion on the evidence that was available at the trial, and I am quite satisfied that the application to relocate should in principal be granted. But that leaves huge areas unexplored; unexplored for the simple reason that they were not relevant for exploration, the judge having come to the contrary conclusion on the issue of principle.

I would direct that in due course each party be given an opportunity to file evidence as to their proposals in order to satisfy this court that the very important conditions that must precede the implementation of the grant in principle are met.

Plainly, it is vital that strong orders should be made in this jurisdiction and in Brazil to ensure that the father’s anxieties as to the possible future erosion of his relationship with Iara and of Iara’s relationship with her English heritage are dispelled. That would require not only further evidence but further judicial decision, unless these important consequential issues are agreed. That then is my proposal for the disposal of this appeal.

LADY JUSTICE ARDEN: I agree. The decision for the judge was essentially a matter which called for the exercise of the discretion of the court. This court will not interfere with the exercise by a judge of his or her discretion unless that exercise has been outside the generous ambit within which a reasonable disagreement is possible. In other words, this court does not set aside the exercise of a discretion simply because it would have preferred itself to have taken some other decision.

Here, the judge came to a conclusion about the mother’s credibility without the mother having had an opportunity to explain the reason why she did not fully explain the effect of her qualifications in Brazil. The judge considered the point sufficiently important to destroy her credibility on the crucial issue on contact after relocation, or at least regarded it as a major factor in coming to that conclusion. She also considered it by implication as a matter which reduced the value of the evidence of the CAFCASS officer, since at the end of paragraph 28 she draws attention to the point that Mrs Hayward was not aware when she gave evidence that the mother was not qualified to practise as a lawyer but only had a law degree from 1996 and no professional qualifications.

In those circumstances, in my judgment it was not sufficient that counsel’s skeleton argument sought to give an explanation for this matter once it had been raised by the judge as a matter which had to be dealt with. The judge could not as I see it make findings about the errors in the mother’s evidence which were unfavourable to the mother without giving her an opportunity to explain the position. Thus, in my judgment, the judge could not properly conclude that it was an oversight of sufficient gravity or import to doubt the mother’s intention as to content. I appreciate that it was not the only factor which led the judge to that conclusion but it was certainly a major factor.

I would like to add an observation on one other aspect of this case and it is consistent with what my Lord, Lord Justice Thorpe, has said. The mother put forward what was a reasonable proposal that she should be able to return to Brazil to enable her to have the support of her family and to complete her professional qualifications as a lawyer. That would enable her to realise her talents as a professional person. She cannot use her law degree from Brazil if she remains here. The judge had, as she rightly said, to come to a conclusion as to what was in the best interests of Iara. For that purpose she had to consider the impact on her mother that the refusal of the application might have on the mother’s care of Iara if she cannot return to Brazil against the need for Iara to have both parents available to her on a regular and frequent basis.

The judge concluded that she was satisfied that the mother would be able to cope with her disappointment at the refusal of the order. But that assessment, with respect to the judge, leaves out of account altogether the question whether the mother could manage the loss of the realisation of her professional career. Put another way, the judge has not as it seems to me taken into account the benefits to Iara of her mother realising or at least trying to realise her potential as a lawyer in Brazil.

Accordingly, for these reasons and (subject thereto) for the reasons already given by my Lord, Lord Justice Thorpe, in my judgment this appeal should be allowed and a decision in principle be made that the application for relocation be allowed.

There have, of course, to be proper arrangements for contact by the father. The father was rightly very concerned about this, particularly in view of his holiday entitlement, that is five weeks, which he expressed as being a short holiday entitlement. He also expressed the concern that his remuneration would not allow him to afford to go to Brazil on a regular basis. These matters have to be carefully considered and taken into account.

For these reasons, I come to the same conclusion as my Lord, Lord Justice Thorpe.

LORD JUSTICE WILSON: I also agree. When I read the papers in preparation for this hearing, I considered that the judge’s refusal to allow the Brazilian mother with very limited future opportunities in England to go home was a surprising one. But the judge is highly experienced and highly respected; and my initial view was that there was no such error of principle in her despatch of the application as would entitle this court to intervene.

In that last conclusion I have in the course of today’s argument changed my mind. I suppose that, when one is considering arrangements for a child not substantially or at all embarked upon any particular educational path or not grounded in some analogous way in Engliand and Wales, there are three aspects which, pursuant to Payne v Payne [2001] 1 FLR 1052, have particularly to be considered in an application of this sort.

First, the reasonableness and practicality of the mother’s proposals. In my judgment, the flaws perceived by the judge to exist in the carpet of the mother’s proposals to go back to Brazil to live with her family and to work as a lawyer in the family firm were as my Lord, Lord Justice Thorpe, has indicated in judgment either, with respect to the judge, the product of misunderstandings of the evidence or matters which were altogether insubstantial.

Second, the likely continuation, or conversely loss, of a relationship with the father in the event of the grant of the application. As my Lord has explained, the judge’s negative conclusion in this regard was infected, with respect, by an unfair inference drawn against the mother in terms of credibility on, frankly, a small point, pregnant with the possibility for innocent misunderstanding, with which the mother was given no fair opportunity to deal.

Third, the effect upon the mother of a refusal of the application. As my Lord has explained, the judge’s conclusion in that regard was heavily dependent upon purported reliance of the allegedly clear views of the CAFCASS officer when, on careful analysis today, it is clear that the officer had not expressed such views.