J (children) , Re

LORD JUSTICE THORPE: On 12 December I ordered an oral hearing on notice of an application for permission to appeal the order made by Coleridge J on 23 November whilst he was sitting in Exeter. My order also provided for appeal to follow if permission granted. We have not formally granted permission, but implicitly we have, by allowing Mr Cayford to present his case as though he were arguing an appeal. Mr Philip Cayford QC has come into the case very recently, the skeleton in support of the permission application having been settled by Mr Butterfield, who appeared at the trial for the mother and who in this court is led by Mr Cayford. Mr Cayford has drawn attention to the speed at which the Family Justice System has dealt with the father’s application to relocate, with the relevant children, to Bulgaria. There is some uncertainty surrounding the date of the issue of the application but it is thought to have been 16 October, so it was determined some five weeks after issue and the case comes for decision in this court less than four weeks after the judgment below.

That accelerated timetable is only possible because the parents had issued cross-applications for residence orders in relation to the relevant children by March 2006 at the latest -- a prior consent order for shared residence entered in October 2005 having disintegrated over disputes as to contact. So what had been listed before Coleridge J for three days in Exeter were the cross-applications for residence. It was onto that structure that the subsidiary issue of leave to remove the children to Bulgaria was grafted.

This is a complex and unusual case and it is necessary first of all to define the family with which the court is concerned. There are five children of the family: M, who is almost 20; C, who is 18; A, who is 14; D, who is 11; and Au, who is six. The judge was obviously not concerned with M or C. He does in his judgment record the deep rift between the father’s household and the mother’s household. As at the date of trial, A and D were living with the father and had had no contact with the mother since the cessation of contact in September 2005. C, who was also to be found at the father’s home, identified with him. Au, the youngest child, had been living with the mother since the middle of 2006 but with frequent contact to the father and the elder children. M lived with the mother but the judge was to say:

“This large family is awfully divided […] On top of that A and D are expressing extraordinarily strong views about not seeing their mother at the moment. Indeed A goes further and says that her present view is that she would never want to see her mother again.”

Fortunately some concessions were made. Although the father’s application for leave to remove had been directed to A, D and Au, he conceded that his real objective was to take A and D with him and that Au should continue to make her home with her mother. The mother during the course of the trial also made a concession, namely that A should live with her father. So the real issue was as to whether the permission should be given for the father to remove A and D to Bulgaria.

The judge gave an extempore judgment at the end of the trial and it seems that he gave his judgment towards the end of the day and accordingly compressed it to the essentials. He explained over the course of some 47 paragraphs why he concluded that the least bad option for these two children was to join the father in a search for a new life in Bulgaria. The judge took that course, rejecting the submission of the guardian who acted for D and Au, that there should be a postponement of some six months to enable her to pursue further investigations into the family and, in particular, into the role and influence of a lady known as Mrs H, with whom the father had been living between October 2005 and October 2006. I say living in the most literal sense: the circumstances in which the father and the two children had joined Mrs H’s household were dramatic. The matrimonial home had burned to the ground and the father had moved to Mrs H’s farm in the vicinity. The mother’s case was that there was a full blown relationship, sexual and emotional, between the father and Mrs H. The father’s case was that she was essentially a landlady who had become a supporter and confidante. He denied any sexual relationship but, as the judge said, frankly admitted that he aspired to a closer relationship with her. The guardian’s desire to investigate further was supported by a report from Dr Martin Gay, who also felt that there was insufficient information for him to take a rounded professional decision.

The other and contrary consideration, highly unusual, was that the father presented himself as being in desperate financial straits. His case was that he was bankrupt. He was dependent on his parents and state benefits. His only prospect of re-establishing himself financially and making financial support for his family was to accept an offer of employment in Bulgaria. The job would provide him with a reasonable annual salary of €30,000, in addition to which there would be benefits in kind, including rental, medical and schooling assistance. The mother’s case was that that presentation was bogus and that there was no such job offer.

Another unusual feature of the case was that the paternal grandparents had been involved financially, not only in supporting their son but also supporting the education of some of the grandchildren. They too were entirely supportive of the father’s plans for the future and were proposing, themselves, to sell up in this jurisdiction and to purchase a home big enough for all the family in Sofia and a holiday home by the sea. They were clear that they would not pay school fees for the children in this jurisdiction beyond the end of the calendar year.

The judge had, as he recorded, a fair amount of documentary evidence to digest and, unusually, a batch of e-mails from and to the father, which on their face undermined a good deal of his case. The mother’s case was that somebody, she knew not who, she assumed some supporter, had posted a disc through her door that, when downloaded, produced the series of e-mails. The father’s case was that, whilst some of the material had emanated from him, it was an edited document, produced to support the mother’s case. So the judge had to decide what weight he should attach to those e-mails.

Then even more curious were documents that emerged as a result of some investigations made by the guardian, who had had her alarm bells rung by her observation of the father and Mrs H together. She considered that their body language did not marry with the statement as to the relationship between them and she also had concerns about whether, in the past, Mrs H had maliciously manufactured allegations of sexual abuse to embarrass or destroy a former partner. The guardian apparently delegated internet searches to the solicitor she had instructed and by 15 November they were in possession of a series of notes posted, seemingly, by Mrs H on some sort of Bulgarian chat room. The most concerning ingredients were, first, the claim that she was a duty solicitor and, second, that she would be taking her six dependent children, including C, A, D and Au, to Bulgaria in the near future. Unfortunately the guardian’s solicitors did not immediately disclose this material and it only came to Mr Farquarson, the husband’s junior counsel, when Mr Godfrey, who was counsel for the guardian, delivered it on the eve of the trial. So this was presented as something of a bombshell. Seemingly, the father was cross-examined on the entries and said, perhaps convincingly, that he was amazed by what he had read but, of course, there was no Mrs H to explain nor did he have the opportunity of presenting her explanation at second-hand. The judge heard oral evidence only from the parents, from the guardian and from Dr Gay. The judge expressed his unease at the absence of any evidence from either the paternal grandparents or from Mrs H.

Before I come to Mr Cayford’s submissions, it is to be recorded that the notice of application for permission sought to reverse the judge’s order in relation to both A and D. However, yesterday a concession was made on behalf of the mother that her application was directed only to the judge’s permission for D’s removal. Mr Cayford has advanced his appeal on three main grounds. First, he says that the judge fell into fundamental error in accepting as sufficient what was only ragbag evidence from the father as to the practicalities. Mr Cayford has said that there was no clear or sufficient evidence as to the children’s home in Bulgaria, the school that they would attend, or even the job that would provide the family’s livelihood. His second ground of appeal is that the judge fell into fundamental error in rejecting the guardian’s case, supported by Dr Gay, that there was a serious issue requiring further investigation and consequently time, six months, in which to conduct it. Mr Cayford places great emphasis on the documents gleaned from the internet chat room. He says that this was so serious that it was impossible for the judge to bury it. No reasonable judge could have taken that course and, accordingly, we should remit for retrial.

He has a third ground which seems to me exceptionally difficult for him to pursue and he has sensibly not made much of it in his oral submissions. It is to the effect that the judge should never have permitted relocation without achieving some resolution of the critical question of future contact to the mother. Mr Cayford submits that the judge did not sufficiently investigate the causes of the breakdown of contact and generally failed to accord sufficient weight to that most important consideration.

Mr Godfrey for the guardian supports the appeal. He says that his written submissions of 23 November encapsulated all the guardian’s anxieties. The judge’s findings have done little to allay those anxieties and, accordingly, she continues to seek an opportunity to investigate further. She would not need now six months but she would need two months in which to conduct her investigations. Accordingly, Mr Godfrey is instructed to seek a retrial on the issue of permission for D to relocate.

That is an exceptionally difficult case for Mr Godfrey to advance with any realism. He has properly informed us that after judgment below, the guardian discussed the result with D, who expressed his profound relief that the case had concluded and that he was free to go. Mr Godfrey further concedes that during the period of two months or more prior to retrial, D should remain with his father in Bulgaria, on any realistic appraisal of the future sketched by the guardian, the judge conducting the retrial would be confined by the reality that D had made the move to Bulgaria, had made the move with enthusiasm and had been settled there for several months.

Mr Cayford has quite properly drawn attention to the fact that the temporary stay granted by this court on 12 December was served on that very day on the father despite his endeavour to refuse service. It is accepted that it was good service and, despite it, he departed with the children on the following day. That seems serious enough but it is necessary to add that the permission granted by Coleridge J on 23 November was hedged by some substantial conditions to be complied with before departure.

Mr Farquarson says that his client complied on the 11^th when he e-mailed his solicitors with all the information that the conditions required. He, on behalf of his solicitors, accepts responsibility for a 7-day delay until the information as to whereabouts and schooling were transmitted to the mother’s solicitors by a fax towards the end of the day on 18 December. It does not seem to me proper for this court to investigate that area post-judgment. I am by no means satisfied that the father would have a complete or convincing defence were he faced with a contempt application. But that is essentially the territory of the trial judge, who continues to be responsible for the implementation of his order. It is not relevant to the determination of the question whether the judge reached permissible conclusion on the evidence that was before him when he gave judgment on 23 November.

Coleridge J’s extempore judgment is well structured. In the opening paragraphs, one to nine, the judge sets the scene. In paragraph 8 he approaches what was one of the most important, if not the most important question, for him in the case, namely the integrity and reliability of the father. At that the judge said:

“I have had the advantage which in this case I have found helpful and informative, of seeing the father give evidence [at some considerable length in the witness box]. I have also seen him act on behalf of himself on two previous occasions. I find that he is essentially an honest witness and evidence is genuine.”

He then, in the following paragraph, set out the crisis which, as the judge said, drove the application before the court. That was, of course, the bankruptcy and the complete absence of means or prospect of means in this jurisdiction. The judge then noted that A was separately represented and had been present in his court throughout the trial. Perhaps in consequence, her views had hardened and she was adamant that she would not see her mother again. In paragraph 12 he recorded the contribution of the guardian, supported by Dr Gay. He recorded their concerns about the gaps in the evidence and their submission that there should be an opportunity for further investigation. The judge said that their submission was both beguiling and attractive, but continued:

“The essential question is whether in the circumstances is it a practical solution.”

In paragraphs 13 and onwards he summarised the evidence. He dealt with the e-mails upon which the mother relied, taken from the mysterious disc, but added:

“I find them overall of no evidential value to me at all and of no assistance in the difficult decisions which are here to make.”

He then turned to the evidence and want of evidence in relation to Mrs H. He asked himself the question whether she had a future role in the lives of the father and the children and answered that question emphatically in the affirmative. But as to the extent of the role, the judge expressed himself uncertain, on the ground that neither she nor the father themselves knew how their relationship might develop in the months, let alone the years, ahead. So on that basis he ultimately concluded, “She is not a factor of central importance in this decision at the present time”. The judge then turned to summarise the father’s case: his evidence as to the job that he had obtained, the home that he would arrange and the school into which he would enter the children. The judge, in paragraph 25, returned to the crisis that confronted the family. Thus:

“If he does not now go to Bulgaria as he requests, at the end of this year, there will be no home because the grandparents’ home will have been sold, there will be no schooling because the [Shabeer College] schooling cannot be afforded and cannot be paid for by the grandparents and furthermore he will not have open to him the opportunity which he very much wishes to take up. Accordingly if I refuse his application he will become dependent [for all those matters] entirely on state provision.”

The judge recorded A’s case in paragraph 27, the mother’s case in the following two paragraphs and the guardian’s case was again referred to in paragraph 30. The judge dealt with the authorities in paragraph 31. He referred particularly to the cases of Payne v Payne in 2001 and the case of M v M in 1991. He said of that:

“I am urged in accordance with long established practice in these cases to scrutinise the father’s plans with care and to satisfy myself that they are rational and properly considered. I am certainly well aware of my function.

“But this is a very unusual state of affairs where on the father’s case there is almost no real option to the court other than the one he is proposing and in addition I am viewing the application against the sad fact that at the present time only Au is having a proper relationship with both her parents.”

The judge then continued by stating his conclusions. He accepted the guardian’s opinion that the children were suffering significant emotional harm as a result of the breakdown in family relationships. He accepted that the father’s case had been hastily prepared but concluded that that was simply a fact which both the court and the experts had to confront. The judge said:

“The court has to face the realities of the present situation as they now present themselves to achieve a solution.”

He noted then that to refuse the application would bring suffering on the whole family, not only financially, but because of the disappointment that it would generate in the father, the children’s primary carer, both present and future. He went on to consider, secondly, the question of contact. Accepting the evidence of the guardian and Dr Gay that the restoration of contact was a priority, the judge reasoned which option would better achieve the priority. He concluded:

“If I refuse the father’s application, the children, who strongly support it, even from their own childish standpoint, will unquestionably blame the mother for that refusal. In my judgment that will completely destroy for the time being any prospect of bridge-building between the mother and her two estranged children … Thus the better chance would be to grant the application.”

The judge then moved to consider the urgent need for clear and lasting solutions. He said:

“A decision is needed for the sake of the father and the children and, I think, the mother as well. These proceedings have been prolonged. There is a great deal to be said for not prolonging them a day longer than they need.”

In the next paragraph he considered the Bulgarian plans, accepting they were inchoate but he added:

“I think that they are sufficiently clear and researched to be sanctioned by the court … In the end this case is not really about practical arrangements for the children in a foreign country.”

In paragraph 39 and again in paragraph 46 he explained why he was rejecting the recommendation of the guardian and Dr Gay. He said that their attractive, beguiling suggestion was nonetheless flawed and not fully thought through. It did not recognise the fact that boarding school for D could not eventuate because there was no funding. It did not sufficiently recognise that major changes were inevitable for the whole family whichever course was adopted and, accordingly, the proposal for a six-month moratorium did not rest on sound foundations. The judge recognised that his order was the best that could be achieved in the circumstances, as he put it, “warts and all”. He went on to outline his orders that Au should reside with the mother under a residence order and that a residence order both as A and D to the father was inevitable. He said:

“The suggestion by the mother that it would now be possible for D in the circumstances to move to the mother allowing the father and A to leave the country is simply completely unrealistic against the background of the total destruction of the children’s relationship with their mother at the moment.”

I have recorded the structure of the judgment and cited from it extensively because in my opinion it provides a complete answer to all Mr Cayford’s submissions. Mr Cayford, in advancing the submission that the father fell at the first fence, in a failure to prove practical arrangements for home, school and employment in the foreign land, ignores the unusual nature of the case.

There are many relocation applications that come to this court where the primary carer has developed an urge to relocate for any of a wide variety of reasons and provokes an application by the other parent for a residence order which is simply reactive. However, this is an unusual case in which there was a full-blown contest between the parents as to which should have the responsibility for primary care of the two children at the centre of the storm, namely A and D. The judge quite rightly recorded that there was really only one possible resolution to the cross-residence order applications, given that both A and D had so completely and so sadly disconnected themselves from their mother. The judge ultimately had to decide between a mother’s proposal for a residence order to be implemented in this jurisdiction and a father’s residence order application to be implemented in another state. In those circumstances the discipline suggested in paragraphs 40 and 41 of my judgment in Payne v Payne hardly applies.

Furthermore, in this case there was the extraordinary and driving consideration that a sound future for the family could only be achieved by the father recovering an earning capacity in some other economy. The judge was perfectly right, in my opinion, to give great weight to the practicalities. He properly recognised their force. He emphasised that it was the father who was to be the primary carer for A and D. The authorities that emphasise the importance of assessing the impact of refusal on the applicant apply equally whether it is the father or whether it is the mother who is the applicant.

So insofar as Payne and Payne was to feed into the judge’s conclusion it strongly pointed towards the grant of the application. So I would in conclusion express my regard for what is a comprehensive and well-reached extempore judgment. I would formally grant permission but would dismiss the resulting appeal.

LORD JUSTICE CARNWATH: I agree.

LORD JUSTICE WALL: I also agree. I add a short judgment of my own under deference to Mr Cayford’s powerful attack on the judgment. The judge, who is of course extremely experienced, had the advantage of knowing the case reasonably well. It was, he described, a case that had gone on for some time. He also had the inestimable advantage which of course is denied in this court of seeing both parties give evidence and forming an assessment of the credibility of each. That assessment cannot be challenged in this court and it is perhaps important that it was a particularly stark choice which the judge had to make. On the one hand the mother was saying that the father’s application was based on bogus documentation and designed simply to alienate her further from the children. On the father’s side it was being said that this was an application brought about very largely by necessity but which carried with it a recognition that the youngest child of the family could not properly be taken from her mother’s care and should remain behind in England.

In my judgment the facts are highly unusual. The judge was dealing with a young woman, nearly 15 in A, and D, who is 11, and the guardian has honestly reported to us today, as one would expect, that when the decision was conveyed to D, his reaction was one of relief that he could go. Against that background and in the highly unusual circumstances as they presented themselves to the judge, the judge had to balance on the one hand what was on his own acknowledgment an inchoate application in many senses and one which had a number of unsatisfactory features about it (not least the mysterious evidence about Mrs H) against the stark reality that two children were going to remain in their father’s care and that a pragmatic solution had to be achieved for the family. On that basis I find myself quite unable to accept Mr Cayford’s submission that the judge made findings which were simply not open to him or that he strayed outside the band of appropriate discretion.

In addition, a point which I think is of some importance, is that the judge fully explained why it was that he was disagreeing with Dr Gay and the guardian and he did so particularly in a short passage towards the end of his judgment at paragraph 6 in which he said:

“That I do not think that they [that is the guardian and Dr Gay] have given enough consideration to the effect [of a refusal both] on the children’s lives [and of their attitude to their mother or indeed to the effect or the possible loss of the father of this good job opportunity]. A delay of 6 months, which is what they advocate, would not clarify things and indeed it may be disastrous. The effect on contact and future of contact may be much worse than they credit.”

That in my judgment is not only a rational basis upon which to approach the case but adequately explains why the judge departed from the recommendations of Dr Gay and the guardian. The guardian’s proposal I fully accept is put forward in good faith and as part of what she perceives to be as her duty to the children whom she represents in the case. Nonetheless, in my judgment, it is rendered hopelessly impracticable by D’s reaction to the news and the question which would then be faced by the judge who heard the case on any renewed application in three or six months’ time.

For these reasons therefore it seems to me that this experienced judge stayed well within the ambit of discretion and, despite the unsatisfactory features of the case, reached a clear and robust conclusion which was, as he perceived it, the least detrimental to the welfare of the children. I can detect no error of law in his approach. I can detect much good sense and a robust decision which in my judgment is wholly supportable.

Like my Lord, Lord Justice Thorpe, therefore I would give leave but dismiss the appeal.