R (A Child), Re

This is an application by the mother of a boy called R, who was born on 31 May 1998 and so is now eleven and a half, for permission to appeal against an order made by HHJ Bond sitting as a Section 9 judge of the Family Division in the Bournemouth District Registry on 6 November this year.

The order made by the judge was to transfer residence of R from his mother, with whom he had effectively lived since he was born, to his father and his father’s wife, the parties having been husband and wife and having been divorced. The judge refused the mother’s application for permission to appeal but granted a stay until 11 November. That stay was extended by Wilson LJ to today’s hearing.

The move of the boy from his mother to his father was a very substantial move indeed and I have taken the opportunity, having heard Ms Hoyal who appeared for the mother below and appears in this court, to reread her grounds of appeal, her skeleton argument and the judge’s judgment, and I say at once that I do not think this application could have been better presented. Every point that could properly be taken on the mother’s behalf has been taken and in my judgment the mother has been well served by her legal team.

Ms Hoyal accepts, I think, and I say this more for the benefit of her client than for her, that we are in the area of a judicial discretion. Whilst orders transferring children from one parent to another are very rare and usually only taken as a matter of last resort, nonetheless the judge was exercising a judicial discretion and it follows that the function of this court is limited in the extreme. I have to look to see first of all whether the judge made any error of law, and secondly I have to decide whether or not arguably his exercise of discretion was so flawed that he must be plainly wrong to do what he did. As I put to Ms Hoyal in argument, we are, it seems to me, in classic G v G territory (that is a reference to the case reported at [1985] 1 WLR 645). In that case the House of Lords quoted with approval what Sir John Arnold, the President, had said in the Court of Appeal. What Lord Fraser said quoting Sir John was this at page 650:

“I believe that if the court comes to the conclusion, when examining the decision at first instance, that there is so blatant an error in the conclusion that it could only have been reached if the judge below had erred in his method of decision – sometimes called the balancing exercise – then the court is at liberty to interfere; but that, if the observation of the appellate court extends no further than that the decision in terms of the result of the balancing exercise was one with which they might, or do, disagree as a matter of result, then that by itself is not enough, and that falls short of the conclusion, which is essential, that the judge has erred in his method. I cannot think of any case in which this particular issue had to be faced, in which that method of determination is not intellectually satisfactory, logically supportable or consistent with the result of any of the cases in the appellate courts; and I shall approach this case on the footing that what this court should seek to do is to answer the question whether the court discerns a wrongness in the result of so striking a character as to make it a legitimate conclusion that there must have been an error of method – apart, of course, from a disclosed inclusion of irrelevant or exclusion of relevant matters.”

Ms Hoyal’s primary submission is that the judge did err fundamentally in the exercise of his discretion because he elevated the need that R had for a relationship with his father above all other factors in the case. In addition Ms Hoyal points to a number of factors in the case which strongly, she argues, militated against a transfer of residence. The fact that the boy was doing well in every respect at school and home; that his mother, save for her hostility to the question of contact or the relationship which the boy was due to have with his paternal family, was otherwise bringing up a boy who was flourishing and doing well; that the judge really did not give adequate weight to the very strongly expressed wishes of the boy who at the age of eleven and a half, eleven and a quarter, whatever he was when the judge heard the case, was of an age of sufficient maturity to express a view which the judge should properly have weighed in the scale; the disruption which the move was likely to cause; the serious upset which it was common ground would be occasioned to the boy -- all these factors, Ms Hoyal submits, are of great weight when placed in the scale against the need for the boy to have a proper relationship with his father -- they demonstrate, she argues, that the judge did not get the balancing exercise correct.

Furthermore, she submits that the boy did not really have a voice in the proceedings because although he was represented by a guardian and even though the guardian had herself considered whether or not to make an application for a separate solicitor to represent the boy, she gave too much emphasis in her role to deciding what was in the boy’s best interests, or what she perceived to be in the boy’s best interests, and not enough to the boy’s own feelings. Miss Hoyal also pointed out that although the mother had had her doubts about contact orders, she had nonetheless complied with previous orders made by the court, and all in all, Ms Hoyal submitted both orally and in a very powerful skeleton argument, that by moving the child in these circumstances the judge had plainly got the balancing exercise wrong and that therefore his decision should be reversed or at least it was arguable that it should.

These are of course powerful arguments and I have considered them with great care. As I say I took the opportunity when Ms Hoyal had completed her submissions to reread the documentation, including the judge’s judgment, and Ms Hoyal very fairly did not seek that I should read back into the case although other documents were available, because as she accepted the critical document is going to be the judgment and it is to that judgment that I now turn.

I start from the proposition of course, as Ms Hoyal is the first to acknowledge, that HHJ Bond is an experienced family lawyer and a sensitive family lawyer. He very carefully at the beginning of his judgment sets out the arguments both for and against but principally against the move. He clearly was aware of the stability and settled secure life which the boy had, that he had gone to a secondary school at which he was thriving and that he had as I have already indicated lived throughout in his mother’s care. The judge recorded the fact that he had read the papers, that he had heard the case previously and had made previous orders. It is to my mind a matter of considerable regret that the hearing before him was so extended. What should have been a final hearing in July did not sadly conclude until November, and I for my part do not underestimate the stress which this must have caused both the mother, the father and indeed the boy.

Ms Hoyal was able to point to the fact, as the judge himself recorded, that previous orders had been effective and had been implemented. She also pointed to the fact that the father did not make the judge’s task any easier because he said that if he did not obtain a shared residence order with his present wife, then there was no point in there being contact because contact of the sort which the mother was then prepared to agree to was not sufficient to enable a proper relationship to be maintained between himself and the boy.

So far from what I have said it would seem that Ms Hoyal does have substantial ammunition, but her difficulty as she of course recognises is that ranged against her are the guardian and a psychiatrist, both of whom were firm in their view that R was suffering harm as a result of his inability to enjoy a proper relationship with his father; that his father would be in a better position to maintain the mother’s relationship with the child than vice versa, and that his long term psychological and emotional welfare required him to move households. Ms Hoyal counters by saying, well, the psychiatrist did not know the boy all that well, he had not really seen him with his mother, and the guardian as I have already indicated put her personal views as to what was best for the child over and above her duty to promote the child’s wishes before the judge. Ms Hoyal also pointed out, and I take this again from the judgment, that the father was going to be absent for substantial periods in the week and that the care of the boy, hitherto solely with his mother, would be delegated to his stepmother or paid assistants.

The difficulty however remains that when the judge came to review the evidence he was to quite a substantial extent critical of the mother and discerned a lack of movement in her despite her ostensible willingness to promote contact. He accepted the views of the psychiatrist and of the guardian, even though he disagreed with the guardian’s view that this was an easy case. He described the psychiatrist’s evidence as powerful and he was clearly impressed by the father and the father’s wife. He heard evidence of course from the mother and witnesses called on her behalf, all of whom were extremely supportive of her. He also heard from a witness whom it was not intended originally would be called who had been having regular sessions with the boy and who brought home to the judge if nothing else the strength of the boy’s feelings about where he wanted to live.

Having read the judgment now several times I remain of the view that all the factors which Ms Hoyal has rightly emphasised were very clear in the judge’s mind. He recognised that this was almost cataclysmic, a very serious decision, that it would have a very serious short term effect on the boy. He recognised that the boy had not previously been in his father’s care. He recognised and several times stated the very strong feelings which the boy had and which he, the judge, plainly recognised. He regarded it, in my judgment rightly, as a difficult case. But what he did was to go through the welfare checklist, as a good judge should, emphasising the points both for and against before coming to a conclusion on the evidence, having, as I say, heard the parties and finding that both that the boy was suffering emotional harm in his mother’s care and that he would continue to suffer harm in her care given her absence of any change in attitude.

And so I have to ask myself at the end of the day the question: was there material upon which the judge could properly reach the conclusion that he did? And with the advice of a guardian and a psychiatrist as well as his own observation of the parties, the answer to that question must be yes. Secondly: has the judge arguably weighed some factors too heavily in the scale whilst ignoring others? And in my judgment the answer to that question is no, because the judge was acutely aware of the difficulties of what he was doing, of the stress it would involve for the child; indeed, he said in terms “to remove a child from his mother in any circumstances is a very serious step”. He followed that by saying of course that he recognised the boy had lived with his mother all his life, he recognised that the effect on the mother would be severe and that the boy would be aware of it, and he goes on:

“I pause to ask myself if the proposed course of action is really in [R’s] overall welfare. I ask myself if Dr. Misch [the psychiatrist] can be fairly described as dogmatic in the way that Miss Hoyal submits. His evidence was firm and compelling but I did not see it as unreasoned or unblinkered. I ask myself if the Guardian has sufficiently analysed Dr. Misch’s advice in her global consideration of the case before she came to her conclusion. The guardian has made a careful study of the lengthy history of the case before the current set of proceedings. She would be delighted if she felt that a shared residence order between the parents with proper contact by [R] with his father would work. The guardian does not believe that [R] is truly reporting what occurs during contact with his father. She is of the opinion that such an order would cause an end to contact with the paternal family. I disagree with the guardian when she says that solution is clear. I think that it is finely balanced but having said that I accept the guardian’s overall analysis.

99.

I accept that the present position is not in [R’s] welfare for reasons that I have already set out. I am therefore of the opinion that there should be a Joint Residence [order] in favour of the father and [his wife].”

The details of course were left to be arranged.

So I appreciate that this is hard for the mother, I appreciate that it is going to be very difficult for the boy but both factors were firmly in the judge’s mind, and I have therefore considered whether this is a case where because the decision is so important the decision in this court should be taken by more than one person. But I have come to the very clear conclusion that no court would interfere with this particular exercise of discretion. It is a sensitive, careful, thoughtful, well balanced judgment. I remind myself of what was also said in G and G by Lord Fraser quoting Cumming-Bruce LJ:

“Whether I would have decided it in the same way if I had been in the position of the trial judge I do not know. I might have taken the same course as the judge and I might not, but I was never in that situation. I am sitting in the Court of Appeal deciding a quite different question: has it been shown that the judge to whom Parliament has confided the exercise of discretion, plainly got the wrong answer?”

I cannot say that he did. If I were to put this matter before the full court one of two things would happen: either the mother’s hopes would be raised only to be dashed; or at the very best, if this court felt unable to exercise its own discretion, it would order a rehearing. I can think of nothing worse from the boy’s point of view.

But above all I have come to the clear view that no court would interfere with this exercise of discretion. Parliament has entrusted the decision to the judge, the judge has made his decision, I cannot fault him for the way he has done it and in those circumstances I have to refuse the application.