B (A Child)

This is an application for permission to appeal on notice, with appeal to follow if permission granted. The judgment which we review is that of Mr Recorder Phillips sitting in the Huddersfield County Court, and the hearing today was directed by Wall LJ when he considered the papers on 5 July. The order of the Recorder on 13 June 2007, at the conclusion of a trial on oral evidence, was to this effect: the mother of the only child in the case, C, who was born on 28 November 2004, was prohibited from transferring his usual residence to Northern Ireland. She was permitted to take him to Northern Ireland for holidays. No order was made in relation to C’s residence. The father’s application for a residence order was withdrawn and the mother’s continuing de facto primary care was not thought by the judge to render a residence order in her favour necessary.

C’s parents are not married. They had a relationship which terminated in September 2005. They are both in their mid thirties and they both have responsible jobs in the local community in the Huddersfield area. The father is a Huddersfield man and his family are all local. The mother comes from a very different background. Her home town is Portaferry on the Northern Ireland coast. She came to this country in 1999 and moved to Huddersfield towards the end of 2000. Her relationship with the father was brief, only commencing in October 2003.

The applications before the Recorder were the father’s application for a prohibited steps order under Section 8 of the Children Act 1989, accompanied by an application for a residence order. The mother had an application before the court for permission to change C’s surname. That application failed, and we are not concerned with the rights and wrongs since it has not been challenged by this appeal. Now, the position under the statutory provisions is that the court has power to issue a prohibitive order under Section 8, or to attach a condition to a residence order under Section 11(7) of the Children Act 1989. The court also has the power to sanction the removal of a child from the United Kingdom under the terms of Section 13, which reads:

“(1)

Where a residence order is in force with respect to a child, no person may –

(a)

cause the child to be known by a new surname; or

(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.”

That statutory provision has given rise to a great deal of litigation and a considerable volume of reported decisions in this court, both before the enactment and indeed since the arrival of the Human Rights Act 1998.

Classically in modern times trial judges direct themselves by reference to the judgments in this court in the case of Payne v Payne [2001] 1 FLR 1052. What is to be noted is that the requirement for judicial sanction in the absence of parental consent is limited to removals from the United Kingdom, and thus a removal from England to Scotland, or to Northern Ireland, does not require the approval of the court. Obviously if there is a major issue between the parents that is litigated in the context of an application for a prohibited steps order, as this present case demonstrates. Once the intended relocation is beyond the United Kingdom, then the ordinary trigger for litigation is the issue of the primary carer’s application under Section 13(b).

The judge, having heard the evidence and the submissions of counsel, directed himself as to the law that he had to apply. He referred to a case of H v F [2006] 1 FLR 776, which he took to add nothing to the judgments in the case of Payne v Payne. He also referred to a decision in this court in the case of Re: H [2001] 2 FLR 1277, which may have been magnetic, in that the case also concerned a proposed relocation to Northern Ireland.

Most unfortunately, what was not cited to him was the earlier case of Re: E [1997] 2 FLR 638. In that case this court had to consider the principles governing an endeavour to impose conditions on a residence order preventing the primary carer from moving from the Blackpool to the London area. The judge below had imposed that condition, having particular regard to the fact that the child was of mixed racial origin and would more readily integrate into one community rather than the other. This court set aside the restriction, and the judgment of Butler-Sloss LJ, as she then was, sets out with care the relevant statutory provisions. Between 640F and 641H she said in relation to Section 13:

“There is no statutory requirement of consent or leave of the court in respect of moving the child anywhere within the United Kingdom. Section 11(7) applies to all four Section 8 orders, including prohibited steps orders and specific issue orders. The wording of the subsection is wide enough to give the court the power to make an order restricting the right of residence to a specified place within the United Kingdom, but in my view a restriction upon the right of the carer of the child to choose where to live sits uneasily with the general understanding of what is meant by a residence order.”

I omit a passage and continue at 642(c):

“A general imposition of conditions on residence orders was clearly not contemplated by Parliament and where the parent is entirely suitable and the court intends to make a residence order in favour of that parent, a condition of residence is in my view an unwarranted imposition upon the right of the parent to choose where he/she will live within the United Kingdom or with whom. There may be exceptional cases, for instance where the court in the private law context has concerns about the ability of the parent to be granted a residence order to be a satisfactory carer, but there is no better solution than to place the child with that parent.”

Later again in the judgment Butler-Sloss LJ said:

“The judge attempted to identify the present circumstances as exceptional, but even if he were justified in imposing the condition, which in my view he was not, it would give rise to the temptation to impose conditions in many cases where the proposals for the children were not, as they often are not, ideal. It is not unusual for the suggested arrangements to have the affect of depriving the children of frequent contact with the other parent and his relatives, of their present home, of their schools, and their friends.”

The judgment that I gave in the case of Re: H does not, on reconsideration, sufficiently reflect the fact that the imposition of a condition to a residence order restricting the primary carer’s right to choose his or her place of residence is a truly exceptional order. The case of Re: H included an endeavour on my part to rationalise the interface between the true relocation cases governed by the decision of this court in Payne v Payne and the internal relocation cases governed by the decision of this court in Re: E. At the conclusion of the passage, I questioned the rationalisation for a different test to be applied to an application to relocate to Belfast as opposed to, say, an application to relocate to Dublin, and having posed the question I continued:

“All that the court can do is to remember that in each and every case the decision must rest on the paramount principle of child welfare.”

I see that the Recorder, reading that passage, did not have his attention sufficiently directed to the earlier case of Re: E. In my reasoning for upholding the imposition of a condition preventing the relocation in the case of Re: H, I did not perhaps sufficiently clearly state that the circumstances (particularly the impact upon the mother of a refusal of the condition, fully established by mental health evidence) clearly took the case into the exceptional category identified Butler-Sloss LJ in Re: E.

By way of conclusion I would only endorse the treatment of this topic by Professor Lowe and his co-authors in International Movement of Children, published by Jordans in 2004. He, at page 90, considers movement of children within the United Kingdom, and reviewing the cases, concludes that a primary carer faced with an application for a prohibited steps order or the imposition of conditions on a residence order, will not, save in an exceptional case, be restrained by the court, because for the court so to do would be an unsustainable restriction on adult liberties and would be likely to have an adverse effect on the welfare of the child by denying the primary carer reasonable freedom of choice. Professor Lowe takes that proposition from the decision in Re: E and in paragraph 6.4 he states:

“The correct approach, therefore, is to look at the issue of where the children will live as one of the relevant factors in the context of the cross-applications for residence, and not as a separate issue divorced from the question of residence. If the case is finely balanced between the respective advantages and disadvantages of the parents, the proposals put forward by each parent will assume considerable importance. If one parent’s plan is to remove the children against their wishes to a part of the country less suitable for them, it is an important factor to be taken into account by the court and might persuade the court in some cases to make a residence order in favour of the other parent.”

He then considers what might constitute an exceptional case and in particular refers to the decision of this court in Re: S (A Child) (Residence Order Condition) [2001] 3 FCR 154.

So, in sum, it is the unfortunate fact that the judge decided this finely balanced issue on an unsustainable direction as to the principles to be applied. It is unfortunate that he did not have his attention drawn to the cases of Re: E and Re: S. It is unfortunate that he did not have his attention drawn to the passage in Professor Lowe’s book which I have already cited. The inevitable consequence is that his judgment cannot stand.

It is particularly unfortunate given that Mr B is here as a litigant in person. He has put his case very ably. He has prepared a skilful skeleton argument to respond to Miss Hudson’s grounds of appeal. All that is of no avail, but in fairness to him it is perfectly obvious that this court should not go beyond directing a retrial. It is important that these parties should have the benefit of a highly experienced tribunal on the next occasion, and I say that meaning no criticism at all of the Recorder who heard this case, but plainly, given the undesirability of retrial in any case, it is very important to secure expertise for the parties at any retrial.

Accordingly I would suggest that HHJ Hunt, the designated family judge in Leeds, should either take the retrial himself or make arrangements for another judge in his team to take it. I would therefore set aside the order below, which will have the oblique effect of reviving the father’s residence order application, and I would, as the parties agree, request a CAFCASS officer’s report. Plainly the retrial should take place as soon as the court can list it. There may have to be a request for expedition of the CAFCASS officer’s report, so I would suggest that Miss Hudson’s instructing solicitors seek a 30-minute directions appointment before HHJ Hunt at the earliest possible opportunity so that he can take over the case management.

I agree that the mother’s application for permission to appeal should be allowed, and the appeal should be allowed with the result given by my Lord, Lord Justice Thorpe. It is extremely unfortunate that the learned judge was allowed to approach the case on what turns out to have been a false basis. That he did so is apparent by comparing the last passage of paragraph 4 of his judgment (in which he said that the case of Re: H shows that the considerations set out in Payne v Payne need to be followed even though there is no question of taking the child out of the United Kingdom) with, on the other hand, a passage in the judgment of Butler-Sloss LJ, a few sentences after that which my Lord has quoted, in Re: E at 643:

“In my view the principles set out in a long line of authorities relating to leave to remove permanently from the jurisdiction have no application to conditions proposed under section 11(7).”

I would wish to pay tribute to the judgment of the Recorder on the basis on which he approached the case. Miss Hudson sought to criticise his failure to address the impact of a refusal to allow removal of the mother, and that is a matter which will no doubt have to be addressed on a retrial, but the judgment is a careful and conscientious balance on the basis on which the Recorder was led to believe that the matter should be approached. I would also wish to pay tribute, as my Lord has, to the focussed and well presented address of Mr B’s case, both at first instance and in his skeleton argument and briefly orally before us. The fact is that the matter proceeded below on a false basis, must be re-addressed on the correct basis, and the order that my Lord has indicated is the right way to achieve that.

I agree. Because we are setting aside the judgment of the Recorder, I add only these brief comments. First, I do not think that the Recorder can be criticised for following what he not unreasonably understood to be the correct legal approach in the light of certain observations in Re: H. Secondly, I would not suggest that his decision would have been wrong if his direction on the law was correct. We have not heard full argument on that, and it would be wrong to express any conclusion, but on any view it was a careful judgment. Third, I share my Lords’ concern about the effect of this on the parties. The father has come here and found that the rules have, in a sense, changed, and the matter has to be reconsidered on a different basis. That is a matter of regret, but it is unfortunately something about which we can do nothing. This is a difficult area; however, the decision of this court in Re: E was a considered judgment of this court and I agree with my Lords that consistency requires that it should be followed.