R (A Child)

The parties to this appeal are the parents of a daughter named E, who was born on 17 November 2001, and is therefore eight years of age. The parties cohabited until E was about two and-a-half years of age, when they separated. I would accept that thereafter the mother was the primary carer, although the father was very heavily involved in E’s life. His involvement increased in the year 2009, when the mother was contemplating major changes in her arrangements, including a move from Nottingham to London. Unfortunately, all sorts of things were changing in the mother’s life in the first half of the year. She commenced a relationship with a new partner in March, and that arrival on the intimate family scene clearly had some upsetting effects on E. Then she had to attend a conference in America, where perhaps coincidentally her fiancée lives, and then most unfortunately, she contracted swine flu. So suddenly the father became the pivotal support in the turbulence that the mother was facing.

The father perhaps took advantage of a situation that was rendering the mother vulnerable, whether or not she realized the danger. An application to a judge of the Division on 31 July resulted in a peremptory order sought by the father preventing the mother removing E either from the jurisdiction or from his care. That established a judicial intervention which prohibited the mother from resuming primary care of her daughter, and that situation endured through an appointment in front of Hedley J, who set the case over; that was on 21 August. It appeared in the list on 2 September. It was dealt with by Mr Cohen QC only to cover the sixteen days to 18 September, when it was known that it would be listed for fuller consideration.

The hearing on 18 September was conducted by HHJ Pearlman, who made a shared residence order but set up a division of E’s time between her parents which was weighted in the father’s favour, in the sense that he was to have responsibility for E during the school week. An application for permission to appeal that order was then filed, and came before Ward LJ on 25 January. He granted permission, essentially on the ground that there had been procedural unfairness, and that the case had never been properly explored in the limited time made available for it; the final order had been made with scant consideration of the merits; and, as he concluded, the mother:

“… in my view arguably has not had a fair crack at the whip…”

The appeal that he granted has been very swiftly brought into the list, and Mr Wilson, who persuaded Ward LJ to give permission, has advanced the mother’s case today.

I say at once that the suggestion of procedural unfairness hardly gets off the ground in my judgment. After all, what was needed in this case was an urgent decision; the mother’s basic complaint was that she had been robbed of primary care by a manoeuvre, the opportunity for which had been created by a combination of circumstances for which she had no particular responsibility. So she wanted E back, and for that she had to have a swift process. There had been a hearing before two previous courts. The mother was in-person before HHJ Pearlman; nobody was asking for further investigation or adjournment. HHJ Pearlman, quite rightly, grasped the nettle, read herself into the case, listened to both the parties, and came to a plain conclusion.

However, Mr Wilson, in paragraph 6.2 of his skeleton, raised the complaint that the judge had misunderstood the mother’s litigation position. He made that point by drawing attention to paragraph 6 of the judgment, in which the judge said:

“At the start of the hearing before me it was thought that there were disputes about shared residence and about the arrangements for contact depending on where [E] was to live, but after a little time it became apparent that [mother] and [father] are agreed, firstly, that there should be an order for shared residence between them both for [E] and, secondly, that with whomsoever [E] lives during the school term that contact for the other parent should be on [a generous basis].”

Mr Wilson demonstrates that the judge has fundamentally misunderstood the mother’s position, and he shows us exchanges at page 5 of the transcript, commencing at line 10 and running to line 6 on page 6:

“JUDGE PEARLMAN: Can you help me, first of all, about the question of a shared residence order? [E’s] father wants that, and the courts consider it because they quite often take the view that it is important for the child or children, in this case [E], to realise that bother her parents are of equal importance in her life. So perhaps you could tell me, to start with, why you do not want a shared residence order?

[MOTHER]: I suppose because she’s always resided with me.

JUDGE PEARLMAN: I am not talking about residence.

[MOTHER]: Oh, it’s the title given. Well, we both have parental responsibilities. Is that sort of the same thing?

JUDGE PEARLMAN: Yes.

[MOTHER]: Well, in that case—

JUDGE PEARLMAN: And what it would mean is that you would…in the eyes of the law you both have the same rights—

[MOTHER]: Mm-hmm.

JUDGE PEARLMAN: --to look after [E] and see that [E] is looked after medically.

[MOTHER]: Mm-hmm.

JUDGE PEARLMAN: And to consult the other on schools and if you are taking her abroad and matters such as that.

[MOTHER]: Mm-hmm, yes. Well, I mean, yes, in that case, if it’s a similar sort of thing to parental responsibility, I don’t have any objection to it.

JUDGE PEARLMAN: Have I got anything you want to add, Miss Johnson, to my definition of shared residence?

MISS JOHNSON: No, Your Honour.”

Mr Wilson has tried to suggest that the judge has not really fallen into error: this is all terminology and both were speaking of the same thing. But that submission is hopeless in the face of the text. When the mother is asked to explain why she does not want a shared residence, she responds:

“…because she’s always resided with me.”

The judge then, fatally, says:

“I am not talking about residence.”

But that is precisely what was being addressed.

So what do we do? Ordinarily speaking, the demonstration of judicial error leads to the grant of the appeal and either the making of a fresh order in the discretion of this court, alternatively a remission for a rehearing. But it is said by Miss Johnson that should not be the consequence, because this was a paradigm case for shared residence, even if the judge had understood the mother’s position.

I have come to the conclusion that that is a submission that we should accept. The judge was faced with circumstances in which the father had established some stability for E; he had entered her into a school where she had settled, albeit she had only been there for a week. The mother was living in South London and could only propose a school in that vicinity. The mother still had to get herself settled down; and most important, E was herself very plain in her wishes and feelings. She said that it made more sense for her to live with her father, and be with her mother at weekends. She did not want to swap again; she was fed up with moving; she was a little uneasy about her mother’s fiancée; and she was worried that her mother was going to be upset by her expressing these views. All that was, rightly, considered by the judge, as well as other small points which I will not record.

As the evidence stood on 18 September, the order that the judge made was not just within the wide ambit of discretion, it was plainly the right order, the best order for this little girl, on the application of the Section 1 Welfare Checklist. That is exactly the sort of conclusion that would be expected of a judge as experienced as HHJ Pearlman; and I do not consider that it is invalidated by her misunderstanding, important though that was, as to the mother’s position. I am further reinforced in that conclusion by the knowledge that the day after Ward LJ granted permission, a variation application was issued by the mother to reflect the fact that she has since put a deposit on a flat in Birkbeck Mansions, which is but five minutes walk from E’s school. She moves in on the 26^th of this month, and in the middle of next month there will be the conciliation appointment on her variation application.

Mr Wilson has suggested that she would be prejudiced at that conciliation appointment by the order of 18 September, if not set aside. I do not agree. A fundamentally different situation emerges to the court in March to the circumscribed situation that HHJ Pearlman had to consider on 18 September. Both homes will be within immediate reach of the school. The mother will actually be closer to school, she will be able to walk to school; she will not even have a car ride to get to school. That is the paradigm circumstance that permits a true shared residence order, where the child’s time is split not only during holidays by also during the school term between two homes. These arrangements are proved by research and judicial experience to work very well; and I cannot conceive that any judge in the Principal Registry would feel constrained from endorsing an arrangement that enabled E to spend half the school week with her mother, simply because on total different circumstances another judge had ordered otherwise. Putting the same consideration in other words, had HHJ Pearlman had before her on 18 September father in Highgate, mother in Birkbeck Mansions, is it not highly probable that she would have made a different sort of order?

So I would only regret the fact that these parties, who are not publicly funded, have had to meet the costs of a full hearing in this court, permission for which was given on a misunderstanding as to the regularity of the procedures on and before 18 September. I would hope that the parties could avoid continuing litigation costs, either by engaging in mediation or by waiting for the conciliation appointment and going into that appointment with flexibility and with the shared understanding that whatever emerged had to be good for E, rather than desired by one or other of them.

So unusually, although accepting that the judgment below is seriously flawed, I would nonetheless dismiss this appeal as a proportionate judgment.

I agree with all that my Lord, Lord Justice Thorpe, has said, and consider there is no purpose in this court setting aside an order and replacing it with an interim order and replacing it with an interim order in precisely the same terms simply to cover the period prior to the hearing of the variation application.

I would add these observations, in the hopes that they may be taken into account should these circumstances arise again. First, at the hearing before Ward LJ, no mention was made of the application to vary the order of HHJ Pearlman; secondly, on the following day, the mother issued an application for that very purpose; thirdly, this court was not told about this change of events. I consider that the appellant failed to comply with the practice of this court as set out in paragraph 52.3.2, which is to be found in the Civil Procedure Rules, 2009, vol 1 at page 1492:

“Change in appellant’s case or change in circumstances after grant of permission

Where the appellant’s case changes after the grant of permission, the appellant’s representatives should write to the appeal court and to the other party, indicating the proposed nature of the case. The court should be asked to indicate whether it will deal with the matter at the beginning of the hearing of the appeal or whether it will give directions on an earlier date. After being informed of the respondent’s attitude, the court can decide whether to shut out the new grounds or allow them to be argued: see Shire v Secretary of State for Work & Pensions [2003] EWCA Civ 1465 at [6]-[7]. See also the commentary following r.52.8.

Where there is a material change in circumstances after the grant of permission, which would affect the question of whether permission should have been given, the applicant should inform the court in writing: Walbrook Trustee (Jersey) Ltd v Fattal [2008] EWCA Civ 427 at [49]..”

That paragraph refers to a change in case, but it applies equally to a material change in circumstances, which the issue of the variation application certainly was. If this court had been informed that there had been a variation application taken out, the information could have been considered by a supervising Lord or Lady Justice, and directions given. Those directions could have included directions for mediation. The parties might, either by themselves or with the benefit of mediation, have agreed to the appeal being allowed by consent and for the substitution of an order in the same terms as presently to cover prior to the variation application.

As it is, the best that the appellant could seek on this appeal was a new order in precisely the same terms as HHJ Pearlman had made, to cover the short time between the date of this court’s judgment and an order made on the variation application. While we have yet to hear submissions on costs, and nothing I say prejudges those applications, it would appear to me wholly disproportionate to bring an appeal for that limited purpose, with the cost consequences and the loss of time for the parties. But whether or not that is so, I draw attention to the fact that one of the purposes of the Civil Procedure Rules is to ensure that each case receives an appropriate share of this court’s resources while taking account of the need to allot resources to other cases. By not keeping this court informed, this court has lost time which might have been used for other cases which are waiting to be heard by this court.

I agree with the order my Lord, Lord Justice Thorpe, proposes.