S (A Child), Re

This is a father’s appeal brought with the permission of the Court granted by Ward LJ on 4 April 2012 on the oral application of counsel for the father who requested and obtained an order staying the execution of a Contact and Residence Order dated 16 March 2012 made by Her Honour Judge Knowles sitting in Wandsworth County Court following her Judgment given on that date after a 3-day trial. The Order related to B, the two-year-old daughter of the Appellant father and the Respondent mother, born on 7 February 2010.

The Judge’s Order granted residence in respect of B to the mother against a background of domestic violence, tension and acrimony between the parties and the intention of the mother to move with B in due course to Norwich from her own mother’s home at 118, Seely Road, Tooting close to the father’s address.

At the date of the Order the parties were operating a regime under which the father had regular overnight contact with B over each weekend, returning her at 6 p.m. on Monday. The Order of 16 March altered that regime, providing for the father to have contact on alternate weekends (6 p.m. Friday to 6 p.m. Sunday), half of all nursery/school holidays (dates to be agreed between the parties), and alternating Christmas and birthdays. The Order also discharged a Prohibited Steps Order earlier granted which prevented the mother from moving from her own mother’s home in Tooting on a permanent basis without the permission of the Court or of the father in writing.

The parties are not married. The father is a 44-year-old self-employed architect with flexible working hours. The mother is Anglo/Malaysian Chinese by origin and is aged 31. She was born, brought up and educated in this country and is a highly qualified graduate with a first class honours degree from Brunel University. She was working as a facilities co-ordinator until she took maternity leave prior to the birth of B. The parties’ relationship began in March 2009 and they started to live together in September 2009 when the mother was several months pregnant. They parted at the end of December 2010, when B was only ten months old. Since it is apparent that the decision of the Judge as to the appropriateness of the arrangements for B’s care was based in no small measure upon her view of the controlling character of the father and his attitude and conduct towards the mother, not least in the course of the proceedings, it is appropriate to set out the history as follows.

During the parties’ relationship together, the mother suffered from depression and was quick to emotional and violent response in the course of arguments or disagreements with the father. The police were called by one or other party on several occasions and, in November 2010, the mother was cautioned by the police for an assault on the father.

In the face of her behaviour, the father insisted that the mother leave and go to live locally with her mother while the local child services assessed any risk to B which might be involved. The local authority completed a core assessment on 31 January 2011 and concluded that, the parties’ relationship having ended and the mother’s depression having lifted, B was at no continuing risk. The father did not accept the assessment and on 15 February 2011 commenced proceedings seeking a Shared Residence Order on the basis that B should reside with him for two nights a week, B to live with the parties for periods to be defined by the Court. He also sought a Prohibited Steps Order in the face of an alleged threat by the mother to take B to Malaysia for an unspecified period.

On 26 April 2011, at the father’s behest, the local authority recommended a further assessment “ to consider whether B’s needs are being met within her mother’s care and in particular to establish whether [the mother] is experiencing any mental health difficulties which may impact on her parenting ability of B … ” and on 27 April the Court ordered a s.7 Report in respect of the question of shared residence. Amongst other directions the Order provided for B to reside with the father each weekend from 9 a.m. on Saturday until 6 p.m. on Sunday. This reflected an arrangement the parties had operated consensually since a week or so after the mother’s departure from the father’s house. The mother had by then also successfully attended a course of 17 sessions of cognitive behaviour therapy in respect of her post-natal depression between March and November 2010.

The mother had by now reached a stage where she was contemplating, but had not yet decided upon a move from her mother’s house to live in Norwich where she had previously lived for seven years and had good prospects of future employment.

On 15 June 2011 the father made a Without Notice Application to prevent the mother from relocating to Norwich giving as his reasons:

Such an order was granted.

In the s.7 Report dated and filed with the Court on 20 July 2011, it was stated that the health visitor and the mother’s general practitioner who had referred her for the therapy described above had no concerns about her mental or emotional health. Although the parties’ relationship was described as acrimonious, under paragraph (a) of the Welfare Checklist B was said to have “ a close and loving bond with a secure attachment ” to both her mother and maternal grandmother and “ a close and secure attachment to her father ”.

Under paragraph (b) of the Welfare Checklist it was noted that the parties gave B a good regular and structured routine which enabled her to feel safe, enjoying her activities with both. B was meeting all developmental milestones and, despite the continuing tensions and difficulties between the parties, there were no signs to date that this had affected B.

Under paragraph (c) of the Welfare Checklist it was recorded that both parents wished to have sole residence with the other having contact time, but noted that, if the mother had sole residence and were to relocate or return to full-time employment, she would have to ensure she had reliable support at the weekend and affordable child-care provision as a single parent. The report recorded that any change in circumstance would cause emotional upheaval for B as she was settled in her routine of travelling between the father and the mother.

No concerns were expressed under paragraph (d) of the Welfare Checklist, it being recorded that “ B now lives with her mother and maternal grandmother and has had regular contact with her father. [The parents] currently have an amicable contact arrangement whereby they both have shared residency. ”

In considering the question of risk of harm to B under paragraph (e) of the Welfare Checklist, the report referred to the continued and continuing friction and acrimony between the parents. However, it recorded that there were no current care concerns, both parents being capable of meeting B’s needs and having a close relationship with her. After recording the past history of anger and violence on the part of the mother, it stated that the separation had had a positive effect on the mother’s emotional state and that she was able to look after B independently, the arrangement with her mother being only temporary. It recorded the father’s stated concerns that B was at risk when living with the mother because of historical incidents between them raising his concerns as to her mental health. It also recorded the father’s concerns at her wish to relocate to Norwich where he said she had no suitable family support and the possibility of inappropriate adult friendships. The author recorded:

The recommendations contained in the report stated:

On 9 August 2011 the matter returned before the Court for consideration. The father repeated concerns about the mother’s stability and mental health which he had previously set out at great length in evidence; he addressed the issue of an application by the mother to relocate which she had not made; he made repeated allegations about the mother’s conduct while asserting that he, the Applicant, was a good father and applied on those grounds for expert assessment of the mother’s mental health.

Having heard counsel for the parties, H.H. Judge Rylance made an order for the assessment of the mother by a suitably qualified psychologist at the father’s expense. For reasons which are not clear or available, he extended the father’s contact (previously 9 a.m. Saturday to 6 p.m. Sunday) by a day to 6 p.m. Monday.

The consultant psychologist who was subsequently appointed, Dr Adam Campbell, supplied a report dated 7 February 2012, in which the Summary of Conclusions read as follows:

Unlike the mother, the father was not prepared to accept the thrust of the opinions expressed or recommendations for mediation made in the s.7 or psychological reports. In his Position Statement filed for the hearing on the day before trial, the father stated that his concerns as to the mother’s stability remained unabated and asserted that in the absence of an identifiable psychological cause for the mother’s dangerous conduct in the past his concerns in respect of her deficiencies and irrationality were confirmed. He again developed those concerns at length in the course of a repetitive and critical statement running to 82 pages and 162 paragraphs of closely typed text.

He summarised his case thus:

The proposal set out in his Position Statement was that he be awarded sole residency of B with three nights’ consecutive contact for the mother in each week “ the reason being to ensure the immediate emotional and physical welfare of the child and secure the long term welfare of the child by the allocation of a more appropriate level of responsibility for the father ”. In opening, counsel stated on his behalf that a Shared Residence Order would be appropriate in the light of his proposal that contact should be split 50:50 week by week.

The mother’s position, on the other hand, was that she had been the main carer for B for two years without criticism so far as her care of B, or B’s happiness in that care were concerned, having given up work and been B’s full-time mother prior to separation from the father. The father had rejected the s.7 Report’s recommendation for mediation. He had attacked, and continued to attack, her fitness and/or her suitability to look after B without his close oversight and rejected her mental strength or fitness to do so. He was controlling and hostile to her both in respect of contact on handover and the conduct of the proceedings, during which he had followed her about unnecessarily in his car, behaved in an intimidating manner and besieged her with unnecessary and bullying texts. In those circumstances, whilst she did not criticise his care of, or contact with, B, with whom she recognised that the father should have generous contact, it was she who should be recognised as the primary carer. She asserted that she was now free of depression and the violence engendered by the nature of her relationship with the father and she relied on the s.7 Report and the report of Dr Campbell in that respect. In the circumstances, a Shared Residence Order as originally sought by the father, (a fortiori a Sole Residence Order in his favour as sought in his Position Statement), would not be appropriate.

So far as the Prohibited Steps Order was concerned, the mother asked not to be restricted to living with her own mother or elsewhere in close proximity to the father. Her plans to move to Norwich were no longer “ on hold ”. She wished to be free to move to Norwich where she had lived for seven years before her relationship with the father and had suitable accommodation available with a friend, good prospects of employment, and would conscientiously promote and assist in providing weekend and holiday contact with B so far as the necessary journey was involved. She proposed that B should start to attend nursery there in September 2012.

The overall thrust of the Judgment was to accept the case advanced by the mother essentially as set out above. The structure of the Judge’s 32-page Judgment was as follows. She began by recounting the history, including a comment that she was somewhat surprised at that part of the Order of HH Judge Rylance which, without hearing evidence, extended the father’s contact by an extra day at the weekend in the face of opposition from the mother, and the s.7 Report recommendation for preservation of the status quo. The Judge then accurately stated the issues she had to decide as:

The Judge then briefly listed the huge volume of evidence which she had taken into account, including 450 pages of statements (including attachments) from the parties and the witnesses (of which a large proportion consisted of the father’s lengthy and repetitious statements), two core assessments, police reports, and oral evidence spanning three days. So far as the law was concerned the Judge reminded herself that her paramount concern was not the wishes and feelings of the parties but the welfare of B, leaving till later in her judgment her consideration of the authorities cited to her in the context of shared residence and relocation.

She then turned to deal with the character of the evidence she had heard concerning the stormy relationship of the parties and the extent to which it supported their respective cases. It was the father’s evidence that, while the mother now appeared to be “ stable ” her character and behaviour during the time they were together was such that he would have concerns for B’s physical safety and welfare if B were to live anywhere other than “ extremely close ” to him so that he could keep an eye on matters. The mother’s case was that, although she admitted to violent acts against the father, two threats of self-harm, and the involvement of the police which I have mentioned, these were largely the product of verbal abuse and intimidation by the father whose behaviour had continued unabated since the parties separated.

The Judge found that there was clear evidence that the mother had indeed hit the father on a number of occasions and had threatened self-harm, which matters the Court took seriously and neither condoned nor excused. On the other hand it was noteworthy that the mother, recognising and admitting the unacceptability of her conduct, had sought assistance from her General Practitioner, taken anti-depressants as advised, and successfully attended a course of sessions in cognitive behaviour therapy.

The Judge stated that she found no evidence to suggest that the mother had any tendencies to physical violence since separating from the father, that she had sought appropriate help and was willing to cooperate in seeing Dr Campbell who had the benefit of a full and detailed background in coming to his conclusions. In relation to Dr Campbell’s remarks under conclusions 2 and 3 (see paragraph 19 above) the Judge stated that they were of importance, not only in relation to the risk afforded to B, but in testing the attitude and veracity of the father in criticising the findings and various statements in the core assessments and the s.7 Report and, in particular, his persistent portrayal of himself in evidence as the passive victim at the hands of the mother who was solely responsible for the difficulties and upsets in their relationship.

The Judge then examined at length a number of respects in which she found the father to have been guilty of provocative and threatening behaviour in respect of the mother, promoting argument rather than striving to avoid it. Incidents were listed and the subject of adverse findings, in particular in relation to the taking back of a ring given to the mother on Valentine’s Day by the father who smashed it with a hammer (the mother responded by smashing the father’s laptop), and the provocative stage-managing of an incident, tape-recorded by the father, for the purpose of getting a reaction from the mother.

The Judge went on to express concern at the father’s continuing abuse and intimidation of the mother in the course of the proceedings and up to the date of the hearing, including an incident when the father had shouted at the mother when she sought to avoid him early one morning as he drove by; and a connected incident when (as the Judge found) the father behaved in a deliberately provocative way by removing the mother’s Buddhist book kept in the pram. He had also sought to make unwarranted criticisms about the mother’s witnesses. In none of those incidents did the mother react. The Judge also recorded and criticised the father for abuse hurled at the mother and her maternal grandmother in incidents which had occurred at handover of B on Christmas Eve and Boxing Day 2011. In the latter incident, as the Judge found, the father had wrongly and unnecessarily refused to hand back B to the maternal grandmother after contact in the absence of the mother. B was quite willing to go to the grandmother, but the father unnecessarily refused to hand her over and decided to involve the police. The Judge found incredible the father’s explanation that he only did so to seek the advice of the police, commenting:

The Judge then referred to a series of the father’s text messages during the course of the proceedings which were “ sarcastic, derogatory and abusive in tone … [many] … in deliberately provocative language ”. She commented that the texts were abusive and repeatedly alluded to the mother harming the child physically when this was patently not the case. Further, in November 2011, in response to the mother’s suggestion of relationship counselling, the father had responded by text “ Relationship counselling was your way to drag me further into your personal turmoil, fully embroil me and fuck my head up for good. Instead I chose life … Now my job is to stop you fucking my daughter up ”. The father had acknowledged in evidence that the nature of his texts was the product of anger on his part. The Judge made clear, however, that it was apparent that the father’s anger continued, his use of upsetting texts not ceasing until the second day of the hearing when, faced with the apparently serious and adverse effect they might have upon his case, he desisted from sending them.

At the conclusion of her consideration of various incidents, including those I have referred to, the Judge concluded:

The Judge went on to say:

Their part in what has occurred; and

How their relationship should be regulated in the future.

The Judge then turned to the question of the length of time which should be spent by B with each parent and whether the time split should be in the form of a Shared Residence Order or a Sole Residence Order in favour of one with contact to the other. She referred to the mother’s contention that she should be regarded as having been B’s primary carer, or whether the existing arrangements reflected, as the father contended, a ‘Shared Care Arrangement’. The Judge stated that “ to the extent that it might be necessary to make a finding, on that issue, I do find that the mother has been the primary carer ” (paragraph 86 of Judgment). She had looked after B throughout the relationship, remaining at home rather than returning to her job after her maternity leave (as she would have liked), having been persuaded by the father that such course was desirable to avoid the costs of childcare. The Judge found that the mother had provided the daily care throughout, the father being fully involved in his work and working long hours. The mother continued to do so after the father required her to leave the home with B. Despite the reference in the s.7 Report in July (see above at paragraphs 14 and 16) there was no question of any Shared Residence Arrangement having been ordered or agreed. At that time, the arrangement was that the father had B for one night, over a short weekend, namely on a Saturday. The father relied on the fact that, since Judge Rylance’s Order of 9 August 2011 (see paragraph 18 above), it had converted to a long weekend, whereby contact had increased to 57 hours per week with the father compared with 111 hours spent with the mother. The Judge observed that the increase “ does not dislodge the Mother as [B’s] primary carer. This has been for a period of six months as at the beginning of this hearing out of the total lifespan of two years. ” She went on to say: “ what is clear is that there is no Shared Residence Order in existence presently ”.

The Judge then dealt with the content and recommendations of the s.7 Report, referring to the paragraph I have already quoted at paragraph 15 above. She stated that it was clear that when the Report was written (a) there was no ‘Joint Residence Order’ (b) the author (Mrs Tate) was relying on the parties’ agreeing a number of matters through mediation which was not currently possible, (c) that the author had not dealt with the mother’s desire to relocate in any depth, viewing it as something “ in the future ”, her observation in oral evidence simply being that “ it would be better if they could manage to live within a reasonable distance of each other ”. She also observed that (d) the Report was written some eight months before the hearing without the benefit of Dr Campbell’s report or the Judge’s findings, having heard the evidence at length. She noted that, in evidence, the Welfare Officer had stated that by her reference to “ shared residence ”, she meant no more than the arrangement which was operative between the parties.

The Judge then turned to the law on internal relocation and its relationship with the existence or appropriateness of a Shared Residence Order, correctly noting in that respect that, even in those cases where a Shared Residence Order had been made, it was not an automatic bar or trump card in relation to the issue of one parent wishing to relocate; it was always necessary for the Court to look at the factual matrix and determine what was in the child’s best interests, see Re L (Shared Residence Order) [2009] EWCA Civ 20 and [2009] 1 FLR 1157: Headnote paragraph (1) and paragraphs 51 and 52, per Wall LJ.

The Judge then proceeded through the Welfare Checklist in the light of that authority, having reiterated that the ultimate test to be applied was the welfare of the child.

Under Head (a) the Judge observed that it was impossible to gauge B’s wishes and feelings as a two-year-old. However, she was nonetheless satisfied that the report of Mrs Tate that B had a close and secure attachment to her father and was happy and content in the home of both parents still held good. The Judge went on to observe, however, that the father’s verbal abuse of the mother at the November handover and his conduct at the Christmas handovers both in the presence of B:

As to Head (b) - B’s physical, emotional and educational needs - the Judge noted that both parents were able and educated professionals who would be able to research and agree plans for B’s best possible education, whilst noting “ with dismay ” the father’s insistence that B should be enrolled in a nursery of his choice.

As to Head (c) - as to the likely effect on B of any change - the Judge rejected the father’s proposals for a 50:50 division of time with a changeover mid-week on the basis that, as B grew older she would have no sense of where her home was. She also stated that it was not reasonable to require the mother to remain sharing a room with B under the roof of the maternal grandmother, it being reasonable and justifiable for the mother to wish to return to work and live in accommodation of her own choice. As to the mother’s proposed move to Norwich, it did not mean that B could not continue to see the father regularly and for half the holidays. There would be likely to be a journey of three hours or so each way at the alternate weekend contacts but it was something which B should adapt to readily. The Judge did not consider that B would be rendered tired or overwrought as suggested by the father, the mother having expressed willingness to play her full part in fetching and returning B so as to share the travel burden.

The Judge considered and rejected the broad conclusion in the s.7 Report that any change would “ cause emotional upheaval to B as she was set into the routine of travelling between the parties ”. She stated that it was not apparent on what the conclusion was based other than the then frequency of the contact taking place. She also observed that children are frequently the subject of moves during their minority and had a remarkable ability to adapt.

As to Head (d) – age, sex, background and any relevant characteristics - when considering any characteristics thought relevant in B’s background, the Judge noted that the father refused to give the mother any details of what occurred during his contact periods with B and had refused to divulge his change of address within the proceedings until required to by the Court. He also steadfastly refused to contemplate the mother taking B for a holiday to Malaysia to visit the mother’s extended family despite safeguards for her action being offered. The Judge was not satisfied that the father was prepared to ensure that B’s Chinese ethnicity on her mother’s side should assume any degree of importance in her life.

As to Head (e) - risk of harm - the Judge found no risk of abuse or harm to B while in the mother’s care following the parting, but observed that B was likely to become aware of the hostility between the parents if the father’s anger and desire to control the mother continued. The Judge considered that for the parties to be in such close proximity with the father competing to demonstrate that he is the better parent was contrary to the needs of the child, particularly one so young as B.

As to Head (f) - the parents’ capabilities of meeting B’s physical needs - the Judge was satisfied that both could provide for B well, the father being well able to clothe, bathe and look after her when in his care and both being capable of stimulating and encouraging her in her learning and self-awareness. However, the Judge considered that the father was not capable of satisfying B’s emotional needs or putting them at the centre of his considerations.

In her overall conclusions, the Judge was firm in her view that it was not a case for a Shared Residence Order, nor a case, as the father had contended, “ that the time to be spent with the parents should be divided 50:50. ” This would, of course, have had the effect of precluding a move to Norwich by the Mother, bearing in mind the imminence of the agreed need for arrangements to be made for B to attend nursery school. The Judge stated the position thus:

He has sought to stop the Mother in pursuing her life vis a vis where she lives and works;

He has sought to portray the Grandmother as being a violent and angry person when I find there is no substance to that and knowing that B is very attached to her Grandmother;

He has refused to consider mediation and I do not accept his reasoning for that. His refusal clearly stems from his determination that he is not going to give any ground on what he perceives as his rights;

He has refused to countenance the Mother’s legitimate request for a holiday in Malaysia with B;

There has been a lack of understanding and a failure to support the Mother’s beliefs demonstrated in that incident over the book;

He has sought to dictate what school/nursery B should attend from a date before B’s second birthday. In the Father’s Position Statement it is argued that because of the Mother’s refusal to enrol the child that:

He has sought to say that the Mother is not looking after the child properly by not having dressed her appropriately for contact;

He has also sought to control the Mother financially by reducing the level of financial support for B to £75 per calendar month …

To accede to the Father’s request would mean that for the foreseeable future she would have no freedom as to where she can live and work; and

be subjected to the Father’s barrage of complaints which I am quite sure will continue once this case is over.

The Judge then made clear that she did not consider a Shared Residence Order to be appropriate. She referred to a case relied on for the father, namely A v. A [2004] EWHC 142 … in which Wall J (as he then was) came to the conclusion that a Shared Residence Order should be made despite the fact that the parents were not working in harmony. The Judge observed, however, that each case was ‘case specific’ and distinguished to A v. A on the basis that in that case each of the parties was seeking to dominate the other and insist that their view should prevail. Furthermore, as the Judge stated, it was a case where the Shared Residence Order made reflected what was indeed a 50/50 split of time as between the parties. The Judge concluded:

Finally the Judge discharged the Prohibited Steps Order stating that it was not in B’s interests for her to have her mother placed in a position where she could not move outside a narrow area. She was reinforced in that view by the authority of Re E (Residence: Imposition of Conditions) [1997] 2 FLR 638.

There are 11 grounds of appeal set out in the Notice of Appeal in this case. They are an amalgam of points of principle, in respect of which it is argued that the Judge misunderstood or misapplied the law in her approach to the case, and various points of detail in respect of which it is suggested the Judge was unfair or displayed bias against the father.

In granting permission to appeal, Ward LJ expressed a certain reluctance in the face of what he regarded as a careful judgment based on a number of adverse findings of fact made against the father. However, he was persuaded to grant leave on the basis of Mr Squire’s submission (1) that the Judge’s approach was based on the wish of the mother to move to Norwich for which purpose the Judge wrongly regarded and characterised the mother as the “ primary carer ” the result being that she approached the issue of relocation simply by asking the question whether the mother should be allowed to move; (2) that the proper approach was to consolidate upon the position which had been established for some six months, pursuant to the Order of Judge Rylance, whereby the father had three days of care of B at the weekend (which amounted to shared care). In so approaching the matter, the Judge failed to distinguish between B’s needs and the mother’s desire to move to Norwich. The question should thus have been whether there was a compelling welfare reason to permit a move to Norwich which would disturb the relationship between B and her father by a reduction in his contact. This, in turn, fed into a complaint that, in dealing with the Welfare Checklist, the Judge did not expressly advert to or make findings as to the adverse impact on B of her removal from the benefits of a three day a week relationship with the father to a situation where she only saw him at alternate weekends and for half the holidays.

Finally, while unimpressed by its weight, Ward LJ also referred to the argument of Mr Squire that the Judge had failed to have proper regard to the views of the Welfare Officer.

While the Grounds of Appeal make a number of additional points in respect of which it is said that the Judge was unfair in her approach and/or biased against the father. In my view they lack substance. It is the points summarised above which have been taken up by Mr Squire before this Court, in the form of three principal complaints. First, he has argued that the Judge followed the wrong line of authority in her thought processes, pursuing and making findings on the question of whether the mother was the primary carer when this was plainly a case of shared care in the light of the time spent by B with her father. The Judge thus identified the interests of the mother with those of the child and approached the matter on the basis that it was unreasonable to impose a fetter on the mother’s right to move where she felt happiest.

Second, Mr Squire has argued that there was no adequate evidence as to any adverse or likely adverse effect on B if the regime continued on a 50:50 basis as proposed by the father. Third, he has argued that the Judge failed to mention or consider what B would lose by reason of the change i.e. her substantial weekly contact with the father, if the move took place.

Mr Squire has argued that upon that basis the whole of the Judge’s approach was flawed, the welfare of the child and the desirability of continuing a close weekly relationship with the father having been sacrificed to the desire of the mother to move away to live and find employment in Norwich.

First, so far as the law is concerned, I do not detect any misreading or misunderstanding of the law on the part of the Judge; nor do I find any justification for saying she followed a wrong line of authority as submitted by Mr Squire. Rather, it seems to me that she accurately summarised the issues she had to decide, rightly reading the cases cited to her as recognising the paramountcy of the welfare of the child (see paragraphs 37, 38, 47 above and paragraph 63 below). It seems to me that she accurately summarised the thrust of the decisions cited to her, making relevant and sustainable distinctions in respect of the underlying facts where the context so required.

In my view the initial reaction of Ward LJ upon the application for permission was the right one and the submissions of Mr Squire, whilst thoughtfully advanced and forcibly developed, do not do justice to the thought processes of the Judge, her reading of the authorities, or her approach to the interlocking issues with which she had to deal in this particular case. If that is right, as I remind myself, then it would be wrong for this Court to interfere unless satisfied that the Judge was plainly wrong in her decision, or satisfied that she omitted to consider or alternatively gave too much weight or insufficient weight to the factors necessarily to be taken into account when deciding what was in the best interests of B: see generally G v. G [1985] WLR 647 per Lord Fraser at 227e-228j and Re B (a child) (Residence Order) [2009] UKSC 5.

It is convenient to refer here to the factors relevant to cases where there is a Shared Residence Order operative as between the parties, one of whom wishes to relocate within the jurisdiction thus reducing the contact of the other party. They are summarised in the headnote in Re L to which the Judge expressly referred (see paragraph 37 above), a case in which a Shared Residence Order was in existence and the mother sought to relocate from London to Somerset with a child in respect of whom the father had hitherto enjoyed mid-week contact as well as staying contact at weekends. The case went against the mother, in respect of whom the Judge found that she was motivated to undermine the father’s relationship with the child, (a position notably absent from this case). However the Court found, as accurately expressed in the headnote, that:

At paragraph 51 Wall LJ stated:

In my view, just as that is the correct approach in a relocation case where the Court is considering the position where there is already a Shared Residence Order in place, so it is if (as the father contends in this case), the parties have operated what is effectively a shared care arrangement without the interposition of a previous order.

As already indicated, Re L was a case where a Shared Residence Order had been made and its inhibiting status in respect of a proposed relocation was under examination. In this respect Wall LJ went on to say:

When considering the question of relocation in this case, the Judge, as she was well aware, was not inhibited by, or therefore obliged to consider, the effect of an already existing Shared Residence Order. What she rightly considered was whether it was desirable to make one as the order most appropriate to the care regime which she found would best provide for the needs of B, a two-year-old girl whose care in terms of continuity had been provided by the mother since birth, save at weekends, and, as the Judge found, the mother remained the primary carer despite an extension of the father’s weekend contact into Monday granted by Judge Rylance on an interim basis.

Complaint is made by Mr Squire that the Judge wrongly characterised the mother as the primary carer and that this led her into error. I do not accept that to be the case.

In making that finding, the Judge was rightly disposing of an issue of characterisation which had been vigorously addressed and pursued by each party as an integral part of their case. At the same time, she prefaced her consideration with the words “ to the extent that it may be necessary to make such a finding ” (see paragraph 35 above), since she plainly neither regarded nor treated such finding as dispositive of the relocation issue or definitive of the appropriate form of residence order. In both respects, at paragraph 93 of her Judgment, she reiterated an observation of Hedly J in Re Y (Leave to Remove from the Jurisdiction) [2004] 2 FLR 330 to the effect that:

Nor do I consider that the Judge’s characterisation of the mother as primary carer led her into error. It is pertinent to observe that in a recent internal relocation case, In the matter of F (Children) [2010] EWCA Civ 1468 at paragraph 25 et seq, the Court of Appeal, per Wilson LJ, considered and questioned what was described as the “ insinuation into the principles governing internal relocation of a test of exceptionality ” as the touchstone of refusal of permission to relocate in respect of a primary carer who is providing appropriate care for the child. Wilson LJ concluded, albeit with some apparent reluctance that:

In that respect, I do not accept that the Judge approached the question of relocation simply by asking the question whether the mother should be allowed to move i.e. by the mere equation of the mother’s interests with those of B. So to assert is to oversimplify the Judge’s approach in the context of the issues she had correctly defined in paragraph 14 of her Judgment, as to which Mr Squire makes no criticism. As between the parties the Judge, who recognised the qualities of both so far as their devotion to B and her physical care and welfare were concerned, was being asked to adjudicate between the rival positions which each advanced. Neither party sought to uphold or continue the provisions in the interim order of Judge Rylance. On the one hand, the father was seeking a 50:50 split in contact, an integral part of his case being the necessity for B to remain close by, attending a nursery school in the area, so as to achieve his asserted need to monitor at close quarters the behaviour of the mother in the light of the risk which he insisted that she continued to present to the welfare of B. On the other hand, the mother, who was willing to facilitate contact with the father, was nonetheless anxious to move to Norwich, not only as a place with which she was familiar and had good prospects of employment, but where she would be at one remove from the oppressive and controlling attentions of the father, which the Judge was satisfied would persist in relation to the care of B, and have an inevitably adverse effect upon her as she grew aware of the resulting tensions between her parents. So far as those issues were concerned, the Judge made clear findings in favour of the mother as she was entitled to do, having carefully considered the position under the various heads of the Welfare Checklist.

In arriving at the decision which she did, it is true that the Judge referred, and in the event deferred, to the wishes of the mother; however, her judgment in that respect was largely founded on her assessment of the character of the father and what she regarded as his unrepentant and continuing efforts both to control the mother and monitor her progress, at the same time seeking to wrong-foot her; thus promoting an atmosphere of criticism and strife, rather than conciliation and cooperation, so far as the care of B was concerned. This was bound to have a knock-on effect upon the welfare of B as she developed.

It was the Judge’s finding, not open to review in this Court, that, albeit devoted to B, the father had behaved in the various ways described above with scant regard for his actions and their impact on B’s wellbeing; that he still viewed himself as engaged in a war with the mother which should be won at all costs; and that the father’s motivations were not simply his devotion to B but a determination to dominate and control the mother, such that he would seek to operate a Shared Residential Order (if made) in the pursuit of that goal. In these circumstances, it seems to me, as it seemed to the Judge, that the appropriate order was a Residence Order in favour of the mother, who was and remained the primary carer of B, with a Defined Contact Order in favour of the father providing such generous contact to him as was practical in the circumstances. As to those practicalities, it was the wish of both parties that the matter be fully resolved before the Judge to provide for a situation where, as the parties agreed, there was a looming need for B to attend nursery school, which in turn required her to have a home near to such school. It was in that context that the decision as to relocation fell to be made.

So far as B’s welfare was concerned, it is correct that the Judge made clear that she accepted that the mother’s wish to move was reasonable and justifiable against the history and background as I have described and she had good reason to do so (see paragraph 94 of Judgment). However, she also gave separate consideration to the effects of such a move on B’s welfare. So far as the shorter term was concerned, the Judge gave consideration to the effect of the move on B’s contact with her father, making clear that it would continue to be regular (albeit fortnightly rather than weekly) and extended to half the holidays. The Judge acknowledged that a journey of some three hours each way would be involved, but expressed the view that, in the light of the mother’s willingness to play a full part in the travel arrangements, she considered that B would have the ability to adapt. So far as the longer term was concerned, the Judge found that as B grew older there was plainly potential for emotional harm if the father’s anger and desire for control directed towards the mother did not abate. This would create a burden on B of trying to please him and to say what she presumed to be required of her. In this respect, the Judge rightly observed:

It seems to me that the only substantial criticism to be made of the form of the judgment, as pressed upon us by Mr Squire, is the failure of the Judge expressly to allude to, and weigh in the balance, the potentially adverse effect of the move to Norwich upon the desirability of maintaining and developing a close and loving relationship between the father and B, given the inevitable reduction in the contact currently enjoyed between them.

Having considered that aspect carefully, however, I do not think its omission invalidates the Judge’s decision when it is viewed in the context of the overall Judgment. As a general principle, the desirability and benefits of such a relationship and the need to encourage it in the long term interests of any growing child by, are a given for any family judge of experience and they were, in any event, urged upon the Judge on the father’s behalf. In the context of this case, however, the question for the Judge was whether, and to what extent, the conduct and attitude of the father were such that the institution and maintenance of a “ close proximity ” shared care regime proposed by the father would jeopardise rather than foster the benefits of such a relationship in the long term. The Judge considered, for the various reasons she gave, that the contact sought by the father would be more likely to encourage rather than reduce parental competition and strife; would provide increased motive and opportunity to the father to seek to prove his superiority as a parent and indulge his controlling instincts; and would as a result increase the potential for emotional harm in a young child torn between two parents and uncertain which household to regard as home. Better, therefore, to provide for a settled, albeit more distant, regime recognising the mother in the role of the primary carer for the two-year-old B with such generous periods of weekend and holiday contact as were practicable in the circumstances.

I turn briefly to consider the complaint that, in finding as she did, the Judge failed to have proper regard to the views of Mrs Tate in her s.7 Report. Suffice it to say that, in my view, the reasons given by the Judge, as summarised at paragraphs 36 and 42 above, justified her in regarding the recommendations as being of limited value and superseded by events given (i) the date on which the report was prepared, some eight months before the hearing (ii) the then inchoate plans of the mother to move to Norfolk (iii) the subsequent and superior opportunity afforded to the Judge over a three-day hearing to assess the likely future conduct and attitude of the father if a Shared Residence Order and/or the arrangements and regime advocated by the father were to be adopted.

Finally, I have referred to the fact that the Grounds of Appeal asserted bias on the part of the Judge against the father in various respects. Suffice it to say that no such bias (as opposed to reasoned criticism) is apparent and no oral argument was addressed to us in support of such assertion.

I would dismiss the appeal.

I agree with both judgments.

I agree that this appeal must be dismissed for all the reasons given by Sir Mark

I only wish to add a few words of my own in relation to the father’s argument that the judge followed the wrong line of authority in relation to the question of the move to Norwich, giving undue weight to the fact that the mother was (as she found) B’s primary carer and failing to give sufficient weight to the amount of time that B spent with her father.

It seems to me that the judge showed a degree of reluctance to be drawn into determining the question of whether or not the mother could be said to be B’s primary carer (see her paragraphs 85 and 86) and she prefaced her finding with the rather doubtful words, “To the extent that it may be necessary to make a finding on that issue…”. This reluctance is entirely understandable given that most family cases are resolved by a careful consideration of their individual facts rather than by deciding which labels apply to various aspects of the family’s situation. In the event, the judge determined that the mother was indeed B’s primary carer and we have decided that she was entitled to make that finding and to grant the mother a residence order rather than granting a shared residence order to both parents. Accordingly, if she had concentrated on those authorities which concern a move by a primary carer, she would not have been in error. Such debate as there was before us about whether there is a difference in approach where the court has granted or is considering granting a shared residence order is therefore, strictly speaking, beside the point.

However, the judge certainly did not confine her consideration to those authorities in which the move proposed was a move by a parent with a sole residence order. She was aware of “a whole raft of authorities dealing with the issue of relocation” including a number dealing with internal relocation (see paragraph 91 of her judgment). She chose to concentrate on Re L (Shared Residence Order) [2009] EWCA Civ 20, thought by Wall LJ to be the first case to reach the Court of Appeal in which the question of a relocation within England and Wales had arisen where there was already in existence a shared residence order (see paragraph 11 of Wall LJ’s judgment).

In Re L , Wall LJ reviewed all the authorities on internal relocation and approved passages from them which included the propositions (i) that a primary carer will not, save in an exceptional case, be restrained from moving within this country and (ii) that the correct approach is to look at the issue of where the children will live as one of the relevant factors in the context of cross applications for residence and not as a separate issue divorced from the question of residence. He then asked whether there should be any difference in approach where there is a shared residence order and gave the answer:

The passages at paragraph 51 and 52 of Wall LJ’s judgment which Sir Mark Potter has set out in his judgment reinforce this.

Judge Knowles accurately reflected what Wall LJ said in her judgment and properly distilled from the authorities that a shared residence order is not a bar to relocation and that the court must always look at the factual matrix to see what is in the child’s best interests. She said that in cases dealing with internal relocation and relocation abroad, “the same principle is always repeated, namely that the child’s welfare is paramount” (see her paragraph 92) and she commented that this had been reinforced, albeit in a case of relocation abroad, in MK v CK [2011] 3 FCR 111.

This then was the legal context in which the judge approached her consideration of the individual factors in the welfare checklist with a view to deciding what order to make in relation to residence and whether to discharge the prohibited steps order so that the mother could move to Norwich. If there is a debate still to be had about the proper approach to domestic relocation cases following MK v CK , it follows that this case is not one in which it is necessary or appropriate to have it as, given the judge’s clear focus on B’s welfare generally, the legal basis on which she proceeded could hardly have been more favourable to the father. He failed not because the judge adopted the wrong approach in principle to her decision but because the facts as found by her led her to conclude that B’s best interests would be served by the orders sought by the mother. Her consideration of the underlying factual matrix was wide ranging and not governed by any sort of presumption that in the absence of exceptional circumstances, the mother must be permitted to relocate and, like Sir Mark Potter, I can see no ground on which to interfere with what she decided.