B (Children)

J U D G M E N T

1. LORD JUSTICE THORPE: The parties to this appeal married in 1990 and had two children, both boys: S, born in March 1997 and T, born in February 2002. The marriage broke down in 2003, and each parent has found a new partner. The mother has, in fact, remarried and her present husband is Robert J. The father has a settled relationship with another woman, who is a divorcee and has older children. The two households are close, and there have been sensible arrangements between the parents for the boys to spend alternate weekends with their father and also to see him freely in the evenings after school in school terms. Holiday contact is no problem because the father is a teacher and his school holidays therefore coincide with the children’s.

2. Mr J, who is older than the mother, has had a career in farming in this country. He conceived a well-laid plan to set up in the southwest of France on a farm which supports a small beef unit and also fruit. There is considerable good sense in that plan, since agricultural land values are much cheaper in France and the grant aid for small farmers in France is much more generous than it is in this jurisdiction. That provoked a considerable dilemma for the mother; to remove the children to the French farm could not be agreed. The only hope of achieving that was to apply to the court. She did issue an application on 18 November 2005, and filed her statement in support. The father filed his statement in opposition, and issued his own application for a residence order, although making it plain that he would only seek to provide the primary home for the children should the mother decide that she would leave for France in any event. A CAFCASS officer’s report was commissioned and duly filed on 16 March.

3. During the course of agonising as to her priorities, at that point the mother’s case was that if the judge refused she would go alone to join her husband and would cede the residence order to the father. However, at some stage prior to 12 April, i.e. during that critical four week period, she changed her mind, and in her second statement of 12 April she clearly recorded that if her application were refused then her first priority would be to continue to provide the primary home for the boys in Buckinghamshire. This called for a fundamental re-evaluation on the part of the CAFCASS officer, so her oral evidence at the trial on 23 May 2006 before HHJ Michael Horowitz QC sitting in the Milton Keynes County Court was of considerable importance. She had not filed any supplemental written report. When she entered the witness box the judge very properly decided to examine her himself, to ascertain what her position was in the light of this fundamental development in the litigation. In her answers she emphasised that the recommendation was finely balanced and that for her, the mother’s change of position tipped the scale to one of active support. When the judge asked her the question, “What do you now recommend?” the answer was:

“I do still have concerns about the contact, but I have to say the effect of removal would be devastating for Mrs B [the mother], and there would be an awful knock-on effect for the children.”

4. The judge then continued by asking her, where did that leave her? On which side of the line? Her answer was, “I mean, I find it very, very difficult”. The judge intervened, but she continued:

“Very, very difficult. On balance, and it is a very, very fine balance, I would perhaps change my recommendation that [mother] is allowed - leave the children, very much dependent on what arrangements can be made for contact … something must be done about that.”

5. The CAFCASS officer was then questioned by Mr Evans for the mother, and he did not seek her elaboration of her estimation of the effect of refusal. He asked her some questions as to practicalities. The CAFCASS officer was then cross-examined at length by counsel for the father, and towards the end of her questioning the judge intervened to make it perfectly clear that he had fully understood that any seeming advantage to the children of maintaining for them an English future for them would be at a considerable cost to their mother, in the estimation of the CAFCASS officer. The parties themselves then gave evidence and Mr J, who was in court, made his contribution through the submissions of counsel. The judge reserved his decision.

6. Both counsel made written submissions to him during his period of reflection and he delivered a considered and written judgment on 31 May. He concluded with this succinct paragraph:

“I have considered all the factors I have set out in this difficult and finely balanced case. I bear in mind that [the CAFCASS officer] has modified her position and now recommends permission. For my part and for the reasons I have summarised at paragraph 37 and set out in my judgment, I have come to the conclusion that I must refuse the mother’s application.”

7. Permission to appeal was sought by a notice of 20 June, and shortly thereafter I directed an oral hearing on notice with appeal to follow. Mr Evans, who appeared below, asserted in his grounds of appeal that the judge had not correctly applied the authorities to the determination of the issue or alternatively, had not sufficiently explained his reasons for rejecting the CAFCASS officer’s recommendation. In support of his grounds Mr Evans subsequently filed a full skeleton argument in which he impeccably summarised the legal background, the effect of the judgment and then expanded on his grounds of appeal.

8. In his oral submission this morning he has criticised only one possible error in the judge’s recording of fact and evidence. In paragraph 34 the judge had noted that if permission were refused Mr and Mrs J would not necessarily stay in Buckinghamshire, but might move to either Wales or Lincolnshire, and in paragraph 37 he expanded that to an alternative plan to farm in England or Wales. Mr Evans says that was a misunderstanding on the judge’s part since, although there had been evidence of a possible move to Wales or Lincolnshire, it had never been the mother’s estimation that farming in this country was an option. That may be a small error on the judge’s part, but it seems to be immaterial to the outcome of this appeal.

9. So, Mr Evans has concentrated on two submissions. The first is that the judge gave insufficient weight to the impact of the refusal. The second submission is really the other side of the coin, that the judge gave excessive weight to the value of the existing easy contact regime between the two households. Those submissions stand or fall on the structure and language of this very well crafted reserved judgment. I say at once that I am in no doubt that they fall, given that between paragraphs 30 and 37 the judge impeccably conducts the balancing exercise that leads to the ultimate conclusion. In paragraph 30 he set out the four factors which he perceived to go against granting the permission. The first was the wishes and feelings of the elder boy, S, which had been quite clearly articulated. The judge concluded with this summary:

“S’s present anxiety and lack of enthusiasm for the move is thus a clear present factor containing the distinct possibility that it will continue.”

10. In identifying the second obstacle to the grant of permission, the judge drew the contrast between the urban environment to which the boys were accustomed in England, and the relatively isolated rural environment that would be their new home; what the judge described as a small farm, a few kilometres out from a small village. So he continued:

“There has to be a question mark at least both over their transient and long term adjustment to such a change of circumstances.”

11. Thirdly, he identified the problem that might flow from moving into a different educational system. Of that he said:

“But theirs will be an entry adjustment the length and intensity of which can only be guessed.”

12. In relation to the fourth obstacle, contact, the judge concluded with these sentences:

“Both the quantity and the quality of the relationship which they enjoy will be affected. The easy intimacy of their contact and relationship with a father within walking distance cannot be replicated.”

13. He then proceeded, in paragraph 31 and following, to record the contrary factors, and inevitably he assessed the mother’s potential response to a refusal of permission. He recorded that the mother had a history of chronic depressive illness since the birth of the younger child. There was history, briefly recorded by a report from her GP, and he noted that there had been some deterioration in her symptoms since the commencement of the proceedings before him. He noted that a refusal would have a considerable potential destabilising effect upon her marriage, and he noted that the considerations were to some extent to be balanced against the loss of the support system that the mother enjoys in this jurisdiction, from her parents, her sister and her friends. The judge really brought all this together in paragraph 37 when he said:

“Her depression has become more acute in the dilemma in which she has been placed over the past few months but I am not convinced that the proposed move to France is the necessary resolution. It carries with it risks of its own: isolation in a small community, difficulties of adjustment to a completely new life and response to S’s possible failure to adjust happily and successfully. Nor can I ignore my real hesitation at the boys’ own potential responses, either or both of them, to their living on a small farm outside a small French village.”

14. Mr Evans has adopted the suggestion that perhaps the judge has not fully recorded the impact of the CAFCASS officer’s warning of the likely effect of refusal. In the passage that I have already cited, the CAFCASS officer had put her warning in very strong language, and it might be said that it was not enough to record her as being only “troubled” at the impact of refusal. However, as the judge himself observed towards the close of the CAFCASS officer’s oral evidence, in the end it would be for him to evaluate when the mother came to the witness box. The evaluation is there in the paragraphs of judgment that I have summarised.

15. The inevitable response from Ms Lewis, who represents the respondent, is that these evaluations were essentially for the trial judge who saw and heard the witnesses. She has quite properly emphasised the considerable restrictions on the appellate court in interfering with a balanced conclusion from a trial judge and effectively substituting our discretion for his. She is right to support the outcome below in that way, and she is right to remind us of the strong warning given by Lord Hoffmann in the well known case of Piglowska v Piglowski[1999] 1 WLR 1360 against unprincipled interference with the exercise of a trial judge’s discretion.

16. I am troubled by this case and its outcome. There can be no doubt at all that, in advance of any hearing in the county court, advice to the mother as to prospects of success would have been relatively sanguine. She had well-laid, well-researched plans. They were already implemented. She had a medical history of depression. She had ultimately the CAFCASS officer fully on her side, warning the judge of the dire impact of refusal both on her and then on the children. It is very difficult for any judge, however experienced, to express a view without having heard the oral evidence, but for my part I can well see that I would have come to a different conclusion had I been the trial judge on that day in the Milton Keynes County Court.

17. But that is nothing to the point. The role of the appellate court is very clearly defined. The capacity of the appellate court to interfere is clearly a limited one. The judge had to exercise a discretion in a case which the CAFCASS officer emphasised was very finely balanced. He himself recognised the case as very finely balanced. He came to his own conclusion. He reasoned that conclusion impeccably, and whatever my disquiet at the consequences, it would be plainly unprincipled for this court to even consider reversing him or concluding that he had fallen into any identifiable error. We have canvassed with Mr Evans how the consequences can be managed, given that Mr J has taken on the responsibilities for the farm in France, and given that this appeal is to be dismissed. Plainly, there has to be a responsible re-evaluation of options. They are not the options that were there for either of the parties during the preparation of the case. The options are fundamentally redefined by the outcome below and by the outcome of this appeal. The parties have demonstrated great good sense in the past. They have demonstrated the capacity to make excellent arrangements for their children without the need for judicially-imposed solutions. I very much hope that something can be negotiated to arrive at a manageable way of life for the family. If a mediator is required, then obviously the A.D.R. scheme operated by this court is available to the parties. All that said, I would grant permission in recognition that the consequences for both parents, and particularly for the J family, are so fundamental. But I can see no basis upon which the resulting appeal can be substantiated, and I would dismiss it.

18. LORD JUSTICE LATHAM: I agree. As the judge clearly recognised, and as Mrs Arnold underlined, this was an excruciatingly difficult case for all concerned. In the end it was finely balanced. In my view the reasoning of the judge is such that I can readily understand the conclusion to which he reached. It is likely that, given the view that he took of the evidence that he heard, I would have come to the same conclusion. It will therefore be readily apparent that I take the view that the decision at the end of the day was inevitable on the material before the judge, surprising in the sense though that may seem in the light of the changed evidence of Mrs A. But it was changed evidence, and that in itself made it clear that the application was always going to face difficulties even with Mrs A’s ultimate support. I feel great sympathy for both parents, and can only hope that the result today will ultimately form the platform from which a sensible solution in the interests of these two children can be found. I profoundly hope so.

19. LORD JUSTICE WALL: I also agree. Like my Lords, I acknowledge that this was a very difficult and finely balanced decision for the judge. It is of the essence of such a decision that different minds can reach different conclusions on it, and like my Lord, Lord Justice Latham, I suspect that had I been trying the case I would have gone the same way as the judge. These were English children of English parents, and there was much to be said in the context of their welfare, if their mother was going to go to France, for them to remain with their father and spend holidays with her. I was struck, when I read the CAFCASS Reporting Officer’s report, by paragraphs 59 to 63, which were premised of course on the mother’s position as it was at that time. She says this:

“59. It seems to me that the decision to move to France was initiated by Mrs B’s husband, and the timing of the decision is related to his needs.

60. Mrs B has stated that if the Court does not give her permission to move with the children to France then she will leave the children in the care of her husband, despite her concerns as to how he would manage as a single parent.

61. Mrs B presents as a conscientious and caring mother. It is highly unlikely that she would make such a move, if she were not sure that their father was capable of caring for the children.

62. Mrs B’s statement to me that should Mr B find that the children would be best served by moving to France he would be a ‘good enough’ parent to concede to them moving is I think crucial in her decision making.

63. Mrs B’s statement to me that she intends to moving to France whatever the court decides, and that she trusts her husband to put his own needs aside in favour of the children’s best interests cannot be ignored.”

It seems to me that that passage rightly stresses the strong relationship which the father has with these children, and supports the judge’s analysis in paragraph 37 which my Lord has read.

20. I would also like to point out that, during the course of the CAFCASS Reporting Officer’s discussion with the children, S said that he was surprised that his parents had gone to court over the matter. He went on to recall that when his parents had separated they had told him together, and things had turned out all right. He said that he wished they had told him together about France. Often children display a wisdom well beyond their years, and S, who undoubtedly has grave reservations about going to France, to my mind expressed something very wise and very sensible. It may be, now, too late. I fear it is; I hope not. But if the parents can together explain to the children that this is a decision which they have disagreed about, but which has gone to court and has now been resolved, but which they both support, namely that the boys will be staying with their father in England but will spend their holidays with their mother in France, or a very substantial proportion of their holidays in France – if this can be presented to the boys as an agreed solution, it will undoubtedly ease the stresses and strains which they will doubtless feel if their mother does indeed go and live in France with her husband.

21. I say that because, like my Lord, Lord Justice Thorpe, any court hearing this type of case cannot simply hear it in a vacuum. It has to look to the future and to the relationships which must go on existing. And if that process of an agreed approach to the children can be mediated, I would be strongly in support of it. But as my Lords have both said, how I would have decided the case, or how they would have decided the case, is nothing to the point. This was a very careful and very anxious exercise, by an experienced judge, of a judicial discretion which in my view he exercised immaculately. In my view, therefore, like my Lords, whilst I would grant permission, the appeal must be dismissed.

Order: Appeal dismissed.