H (A Child), Re

A father brings one appeal, and has sought to bring another, against orders made by His Honour Judge Tyzack QC, sitting as a judge of the High Court, Family Division, Exeter District Registry. The primary appeal is against the first of his orders, which was made on 26 February 2010. By that order the judge granted permission to the mother to remove the child of the family, A, a girl, who was born on 20 December 2002 and is thus now aged seven, permanently from England and Wales to live in the Czech Republic ("the Republic"). The subsidiary, proposed, appeal was against the second of his orders, which was made on 5 May 2010. By that order the judge defined the father's contact with A upon the premise that she would indeed be moving with the mother to live in the Republic; so it was consequential upon the first order. Somewhat constrained by the pattern of school holidays in the Republic, the judge provided that the father should have staying contact with A in the United Kingdom for seven days over Christmas, for ten days late in January or early in February in alternate years (being those years in which A had spent her prior birthday and the prior Christmas Day with the mother), and for 21 days in the UK each summer; that he should have further staying contact with A for seven additional days in the Republic each summer; and that he should have such other direct contact with her in both countries as might be agreed, as well as frequent indirect contact.

At the time when he made his first order the judge granted the father permission to appeal to this court. Unfortunately he did so without sight of the proposed grounds of appeal and so his grant has led to argument about its extent. But the judge clearly intended that the father should be allowed to argue to this court that, in the light of the facts which he had found, his grant of permission to the mother to remove A to live in the Republic had not been a proper exercise of his discretion. A transcript of the supplementary judgment delivered on 26 February, by which the judge granted the father permission to appeal, indicates that there were two reasons for that grant. First, he was persuaded that, within the meaning of CPR 52.3(6)(b), there was a compelling reason why the appeal should be heard, irrespective of whether it had a real prospect of success. In this regard the argument on behalf of the father which appealed to the judge was that this might be a case in which the guidance in relation to the determination of applications for relocation set out in the decision of this court in Payne v Payne [2001] EWCA Civ 166, [2001] 1 FLR 1052, might be reviewed, whether in this court or indeed perhaps even, on further appeal, in the Supreme Court. Sometimes, however, this court will have a better overview than a trial judge as to the case which is best suited, whether in this court or more particularly in the Supreme Court, to provide a test for a controversial area of judge-made law or guidance. The judge's second reason for the grant of permission to appeal was that the lack of final resolution of the issue was taking a heavy toll on the emotional health of the parents, and thus indirectly on A, and that the grant would accelerate this court's determination of the appeal which in any event the father intended to try to bring. With respect, I am not persuaded that in the event the judge's grant of permission to appeal has accelerated the court’s determination of the proceedings brought by the father. I consider that, had the judge refused permission to appeal in the usual way, a judge of this court would quickly have listed the father's proposed appeal for oral hearing, on notice to the mother, on the basis that his application for permission would be considered first and that, were permission granted, the substantive appeal would follow forthwith. Had that more conventional route been taken, we might well have heard that matter, as thus formulated, either today or quite possibly even prior to today. Thus, if I may say so with respect, not much has been gained, albeit, in fairness, perhaps not much has been lost, by the judge's grant of permission to appeal.

The judge did not grant permission to the father to appeal against his contact order dated 5 May 2010. Thus the father first needed to persuade us to grant permission to appeal against it. Of course, were the father's appeal against the relocation order to succeed, the order for contact would fall. The subsidiary appeal was sought to be brought in case the primary appeal were to fail. The ground of the proposed appeal against the contact order, as pleaded, was that the judge was plainly wrong to order that, out of the two month school summer holiday which A would enjoy if resident in the Republic, only four weeks should be spent with the father, including only three weeks thereof with him in the United Kingdom; and that the only proper order in that regard would have been to grant contact to the father for six weeks of that holiday and at such location as the father might choose. When, however, we pointed out to Mr Ward, who now enters the case, leading Miss Williams, on behalf of the father, that it would be very difficult for him to appeal against a determination about the quantum of summer holiday contact made in accordance with the advice of a Cafcass officer as to the length of time for which, at her age, A might reasonably be separated from the mother, Mr Ward in effect withdrew his application for permission to appeal against the contact order and, reasonably enough, chose to argue instead that the limited direct contact with A if resident in the Republic, which was all that the judge felt able to provide for the father, was a strong reason why he had been wrong to grant the mother permission to remove her to live in the Republic.

The judge heard the mother's application for permission to relocate on 16 and 21 September 2009 and on 18 and 19 January 2010. While then announcing his decision, he reserved judgment. He disseminated a written judgment on 19 February and formally handed it down at the hearing on 26 February 2010.

Prior to the start of the hearing, a conventional order had been made for the production of a report by a Cafcass officer. Mrs Perryman duly filed a report, dated 7 September 2009. The lengthy adjournment of the hearing between September and January was precipitated by a direction by the judge on 21 September that Mrs Perryman should make a variety of enquiries on the ground in the Republic. Thus Mrs Perryman went to the Republic for five days in October 2009 -- being a week when, most conveniently, the mother and A had been permitted to spend A’s half term holiday there -- and Mrs Perryman filed a supplementary report in respect thereof, dated 12 January 2010. It was extremely helpful for the judge to receive Mrs Perryman's report about the arrangements which would be made for A in the Republic in the event that the mother's application was to be granted; and her very positive report in that regard greatly fortifies the judge's conclusions in that area. It is, however, not usual in relocation cases for a judge to commit the State to the substantial expenditure attendant upon the visit of a CAFCASS officer to make enquiries in the intended country of relocation; it is, rather, for the applicant, on her or his own behalf, to establish before the court that the arrangements for the child abroad are firm and satisfactory; and, if ever such expenditure were generally to have been justified, those days are gone.

The mother is a national of the Republic. She was born there in September 1978 and thus is now aged 31. Until 2000 she lived there. Her parents, grandparents and brother all live in the family home in Ondrejov, which lies about 30 kilometres from Prague.

The father is British. He was born in July 1961 and thus is now aged 48. His parents live in Manchester.

The mother came to England to work in 2000 and developed a relationship with the father. In February 2002 they were married. For the mother, it was a first marriage. For the father, it was a third; he has no child by either of his previous marriages.

The mother is by training a nurse. The father is qualified as a mechanical engineer but a number of his jobs have been on a much less well-remunerated level. At times during the marriage he worked as a carer for old people and at the moment he is working in a garage and (so Mr Ward tells us) is earning as little as £1,000 net per month. Unsurprisingly the father hopes to achieve more demanding and better paid work in some field or other.

The parents, together with A once born, lived in England until May 2004. Then, however, in particular at the urging of the mother, they went to live in the Republic. They lived in the Republic until June 2007. Even at that early stage the mother had not felt settled in England. The result of their move to the Republic is that the mother is able to point out that A has lived for almost half her life there. A is also bilingual in Czech and English; she speaks Czech when with the mother and English when with the father. During their time in the Republic the parties lived in Ondrejov. The mother found work as a nurse without difficulty; but, not being fluent in Czech, the father found it more difficult to find work and during that period he assumed a substantial amount of the care of A. Although the mother was very happy to be back in the Republic, surrounded by her close-knit family, the father was, in turn, unsettled there; and it was in effect at his insistence that, in 2007, the family returned to England, and in particular to Seaton in Devon. The mother was particularly unhappy to find herself again to be living in England; and the marriage gradually broke down. From September 2008 onwards the mother frequently attempted to talk to the father about the possibility of her return with A to the Republic. The father found the removal of A there almost too distressing to contemplate, let alone to discuss.

On 19 April 2009, without the father's permission, the mother removed A to the Republic. She well knew that he had not given, and would not give, permission to her to do so and that it was therefore unlawful for her to do so. Forthwith upon her arrival in the Republic she telephoned the father in order to explain to him that, with A, she had moved back there. On the following day, namely 20 April, in the Bristol District Registry of the Family Division, the father obtained both a declaration that the mother's removal of A had been wrongful and an order that she should forthwith return A to England. When the terms of the order were relayed to the mother over the telephone, she at once made arrangements to return with A to England. She returned with A on 2 May 2009; and, apart from during permitted periods of holiday in the Republic, she has remained living here with A ever since. The judge rightly castigated the mother's unlawful removal of A to the Republic as most reprehensible. I suppose, however, that it is some mitigation that she at once disclosed her whereabouts to the father and, in particular, that she did not wait for formal service of the order dated 20 April upon her, still less for the institution in the Republic of proceedings under the Hague Convention, before returning with A to England.

On 12 June 2009, in the Exeter District Registry of the Family Division, a judge made an order that the residence of A be shared between the mother and the father. But the shared residence order was not predicated on anything approaching an equal division of A's time between her two residences. The order was that A should reside with the father from Friday afternoon until Monday morning on alternate weekends and that, on such alternate Mondays as did not follow a weekend spent by A with him, she should reside with the father from the Monday afternoon until the Tuesday morning. Even assuming, as I do, that the judge was there intending to cater only for the division of A's time during her school terms, it is clear that he favoured an arrangement under which the majority of A's time was spent in her home with the mother.

Thus it is that, since June 2009, each parent has had separate accommodation in Seaton and that A has resided mainly with the mother but partly with the father. A had begun in September 2008 to attend a primary school in Seaton and in July 2009 she achieved a glowing school report.

A is a delightful, intelligent, well-balanced little girl. She makes friends easily and applies herself to lessons conscientiously. She is a credit to both her parents. She loves each of them profoundly and they reciprocate her love with equal profundity.

With the considerable assistance of Mrs Perryman's report about her enquiries on the ground in Ondrejov, together with the appearance before him in the witness box not only of the mother but also of A's maternal grandmother, the judge was able with confidence to survey, and in the event to approve, the arrangements which the mother might make for A in the Republic. The mother's proposal is to return to Ondrejov and to live, at any rate in the short to medium term, in the substantial home occupied by A's grandparents, great grandparents and uncle. Mrs Perryman visited the local school, which has offered A a place, and she was extremely impressed with it. All the evidence suggests that the grandparents are decent, hard-working people, who love the mother and A and who, when given the opportunity, have introduced A to a variety of interesting and stimulating activities in the Republic both of an outdoor, sporting character and of a cultural, probably Prague-centred, character. The judge accepted that the grandparents had become increasingly concerned about the situation of the mother in England following the effective breakdown of the marriage in 2008, and that, without intending actively to collude in an unlawful act, they had paid for the flights by which the mother had removed A to the Republic.

One of the reasons for the judge's decision to adjourn the hearing in September in order that Mrs Perryman might make enquiries in the Republic was the revelation of the mother in the witness box that she had developed a relationship with a childhood friend in the Republic, namely Mr P. The mother had not mentioned the relationship to Mrs Perryman when interviewed between July and September 2009. The judge criticised the mother's failure to do so but accepted that, however unwisely, she had considered that to mention the relationship, which was relatively embryonic, would unnecessarily complicate her application. One of the tasks entrusted by the judge to Mrs Perryman was to talk to Mr P and to gauge the relevance of the relationship to the mother's application. It was Mrs Perryman's assessment, after seeing Mr P with both the mother and with A, that he and the mother presented as a long-established couple, despite the shortness of their relationship; that A was comfortable and relaxed with him; that he played and joked with her appropriately; and that he presented rather as an uncle whom she had known for years and whose company she enjoyed. Mrs Perryman approved of Mr P's home and assessed him to be a genuine and caring man who would treat A well in the event that his relationship with the mother were to continue and that perhaps one day she and A were to set up home with him. Mr P gave oral evidence to the judge at the resumed hearing and in the event the judge endorsed Mrs Perryman's positive assessment of him.

I have already indicated that the judge had the benefit of a particularly substantial amount of evidence upon which to determine the mother's application. What then were his assessments of the parents? He was warmly complimentary about the father. He described him as a caring, sensible man whose opposition to the mother's application was motivated out of a genuine belief that A would suffer from the inevitable truncation of her relationship with him. The judge went on to accept that her relationship with him was warm and loving; and he found that, were permission given to the mother, the father would be devastated.

But the judge also found that the mother was a good mother, who had an equally warm and loving relationship with A. This finding was hardly controversial: the father in a witness statement had described her as a wonderful mother. The judge found that the mother had a close relationship with her family who, were she to live in the Republic, would provide valuable support for her. He also found that, notwithstanding the unlawful removal, the mother fully recognised the continuing importance of the father in A's life and would be likely to give her fullest possible support to such arrangements as might be made for his contact with A. The judge found that the mother was, and for some time had been, A's primary carer. The judge said:

One of the complaints made by the father about the judge's judgment, at any rate in the grounds of appeal, is that he nowhere addressed the wishes and feelings of A. I agree that the determination of any application under the Children Act 1989 in relation to a child aged seven ought to make some reference to her (or his) wishes and feelings. I am clear that the judge's failure to refer to them, as reported to him by Mrs Perryman, is attributable to the fact that, much to the credit of all three members of the family, A did not express her wishes and feelings in a way which militated either in favour of or against the grant of the mother's application. In the summer 2009 A told Mrs Perryman that she loved her parents equally; that, being of course of dual nationality, she saw herself as being both English and Czech; that she liked England because of the seaside and liked the Republic because of the heat of its summers; that she was happy in both countries; that she saw herself as being with both the mother and the father; and that she would not mind whether she went to live in the Republic or stayed in England. When seen by Mrs Perryman in the Republic in October 2009, A stated that she did not know whether she wished to live there permanently. It was Mrs Perryman's view that A did not want to express an opinion to her and that she, Mrs Perryman, should not make her feel responsible for such decision as was subsequently to be reached.

Even in the conclusion of her first report, dated 7 September, Mrs Perryman had concluded with an expression of reluctant belief that, on balance, it would be in A's long-term interest for the mother to be permitted to remove her to the Republic. In her second report and, so we are led to believe, also in her oral evidence given in January, Mrs Perryman was firmer that relocation would better serve A's interests. In her second report she went so far as to say:

But, says Mr Ward in making his major point in this appeal today, Mrs Perryman and indeed the judge were surveying the mother's application through the prism constructed by the decision of this court in the case of Payne, cited above. In this court we are well aware of the criticisms made, both domestically and internationally, of its decision in Payne. Nevertheless one must beware of endorsing a parody of the decision. Both Thorpe LJ, at [26(a)], and the President, Dame Elizabeth Butler-Sloss, at [85(a)], stressed that, in the determination of applications for permission to relocate, the welfare of the child was the paramount consideration. It is only against the subsidiary guidance to be collected from Payne that criticisms can perhaps more easily be levelled. I therefore acknowledge the controversy that surrounds the proposition expressed by Thorpe LJ, at [26(b)], that:

There is also, as most family lawyers know, an attack on the series of questions which, at [40], Thorpe LJ suggested as apt for a judge to put to himself in determining such an application. The charge is that they represent an impermissible gloss on the enquiry into welfare, by reference in particular to the checklist of specified considerations, mandated by s.1(1) and (3) of the Children Act of 1989. There is also a significant argument to the effect that, although the case of Payne was determined only nine years ago, it represents the culmination of domestic jurisprudence which had evolved since 1970, ie over a time when (so it is said) the value to the child of a relationship with the non-residential parent was far less well recognised.

Mr Ward brings to our attention that the controversy surrounding Payne v Payne has already been recognised even within this court. He refers to the decision of Wall LJ in Re D (Children) [2010] EWCA Civ 50. It was a decision in which the judge refused a father permission to appeal but I assume he gave leave for his decision to be cited. Wall LJ said, at [33]:

In Re D (Children) Wall LJ had observed, at [11], that the decision in Payne was binding upon this court and that its effect could be displaced only by a decision of the Supreme Court or by legislation. In refusing permission Wall LJ proceeded to observe that the facts of the case before him did not make that case apt for any reconsideration of Payne, whether in the Supreme Court or otherwise.

Mr Ward also brings to our attention a very recent development in international thinking about the proper despatch of applications for permission to relocate. I refer to the Washington Declaration on International Family Relocation made in Washington DC on 23-25 March 2010, at the conclusion of an “International Judicial Conference on Cross-Border Family Relocation” co-organised by the Hague Conference on Private International Law and The International Centre for Missing and Exploited Children. There were more than 50 judges and other experts at the conference; and Thorpe LJ, as the Head of International Family Justice in England and Wales, was our judicial delegate at it. The substance of the declaration is to be found in paragraphs [3] and [4], under the heading "Factors Relevant to Decisions on International Relocation". They state:

“3.

In all applications concerning international relocation the best interests of the child should be the paramount (primary) consideration. Therefore, determinations should be made without any presumptions for or against relocation.

4.

In order to identify more clearly cases in which relocation should be granted or refused, and to promote a more uniform approach internationally, the exercise of judicial discretion should be guided in particular, but not exclusively, by the following factorslisted in no order of priority. The weight to be given to any one factor will vary from case to case:

i)

the right of the child separated from one parent to maintain personal relations and direct contact with both parents on a regular basis in a manner consistent with the child’s development, except if the contact is contrary to the child’s best interest;

ii)

the views of the child having regard to the child’s age and maturity;

iii)

the parties’ proposals for the practical arrangements for relocation, including accommodation, schooling and employment;

iv)

where relevant to the determination of the outcome, the reasons for seeking or opposing the relocation;

v)

any history of family violence or abuse, whether physical or psychological;

vi)

the history of the family and particularly the continuity and quality of past and current care and contact arrangements;

vii)

pre-existing custody and access determinations;

viii)

the impact of grant or refusal on the child, in the context of his or her extended family, education and social life, and on the parties;

ix)

the nature of the inter-parental relationship and the commitment of the applicant to support and facilitate the relationship between the child and the respondent after the relocation;

x)

whether the parties’ proposals for contact after relocation are realistic, having particular regard to the cost to the family and the burden to the child;

xi)

the enforceability of contact provisions ordered as a condition of relocation in the State of destination;

xii)

issues of mobility for family members; and

xiii)

any other circumstances deemed to be relevant by the judge.”

The Washington Declaration is, in my view, extremely interesting and, subject to an aside which I articulate at [27] below, it may prove not only to be a valuable means of harmonising the approaches of different jurisdictions to the determination of applications for permission to relocate but ultimately also to become the foundation of some reform of our domestic law. But it clearly has no such effect at the moment; and Mr Ward will not mind my saying that his final submission, namely that today we should replace the guidance given in Payne with that contained in [3] and [4] of the declaration, lacked elementary legal discipline. The document is indeed no more than a declaration, to which our jurisdiction, through Thorpe LJ, has subscribed. Paragraph 13 of the declaration provides that "the Hague Conference on Private International Law... is encouraged to pursue the further development of the principles set out in this declaration and to consider the feasibility of embodying all or some of these principles in an international instrument". It is thus possible that, no doubt following amendment in various respects, the factors contained in [4] of the declaration will find their way into a protocol attached to the Hague Convention 1980, which, if ratified by the UK, would later find its way into the domestic law of England and Wales and would then impact upon the guidance set out in Payne. But that is all for the future.

With some hesitation I make the following aside. In that the principal charge against our guidance, as it stands, is that it ascribes too great a significance to the effect on the child of the negative impact upon the applicant of refusal of the application, one is interested to discern the way in which, in [4] of the declaration, that factor is addressed. One finds (does one not?) that it is not squarely addressed at all. The closest to any address of it is to be found in (viii), namely "the impact of grant or refusal on the child, in the context of his or her extended family, education and social life, and on the parties." Some may share my initial perplexity even at the terminology of (viii) in that it appears to train the consideration of the court upon impact not only "on the child" but also, and by way of contradistinction, "on the parties" apparently irrespective of impact on the child. It is axiomatic that our notion of paramountcy excludes from consideration all factors which have no bearing on the child. But, that possible curiosity apart, there is no square address in (viii) of the impact upon the child likely to flow from negative impact upon the applicant of refusal of the application. Indeed the reference to the child's extended family, education and social life, seems almost to draw attention away from such a factor. I wonder whether consideration might need to be given as to whether, if the present law of England and Wales does indeed place excessive weight upon that factor, paragraph [4] of the declaration, as presently drawn, by contrast places insufficient weight upon it.

In this court today the tensions suffered by the parents as a result of this protracted litigation have been almost palpable. I have sensed the desperate nervousness of the mother lest she is about to lose her permission. The father, by contrast, has clearly had the highest of hopes that this court would reverse the judge's decision. In the end, however, this was in my view, by reference simply to the welfare of A and, as it happens, irrespective of the guidance which bound the judge and in effect binds us, a clear case for the grant of permission.

I collect the following features:

Against these considerations are to be weighed the excellence of the child's relationship with the father and the grave truncation of it which a removal to the Republic would entail. I have described the order for contact ultimately made by the judge and, of course, it is, to be technical, enforceable in the Republic, as a fellow state of the EU, by virtue of Article 41 of Council Regulation (EC) No. 2201/2003 (Brussels II Revised). Within the context of his appeal against the relocation order, the father complains that, notwithstanding the provision for his very frequent indirect contact with A via telephone, Skype, email and otherwise, the judge's provision for direct contact between them only in July/August, in December and, in alternate years, in January/February, leaves long gaps without direct contact between him and A. In the light of the pattern of school holidays in the Republic there was, as I have indicated, little more that the judge could provide in relation to contact in England; but he in no way excluded, indeed on the contrary he encouraged, the idea, which the mother has welcomed, of direct contact between the father and A in the Republic between August and December and again between December/January/February and July each year, presumably at weekends, in order to break up the long gaps. The judge provided that it should be the responsibility of the mother, probably with a contribution from her parents, to fund the flights of A to and from England at Christmas and in the summer; and he also accepted that the father should not have to make periodical payments to the mother for the maintenance of A. So the question arises whether, as he claims, the father would be unable to fund visits on his part to A in the Republic on at any rate one or two weekends each year. The answer (says Mr Ward) is to be found in the astonishingly low level of the father's present income. The judge made no finding about the father's reasonable earning capacity and so his ability or otherwise to fund such visits must remain an open question. In any event, however, it is my clear view that, heartbreaking though it would be to the father, we should dismiss the appeal on the basis that it was clearly open to the judge to balance the rival considerations relevant to welfare in the way which he favoured.

I agree.

I also agree.