E (Children)

The parties to this appeal are the parents of two children, Kelisse, who is 11, and Kiyan, who is five, Kelisse being born 19 February 2001 and Kiyan on 13 October 2006. The separation between the parties occurred in 2008. Shortly before that the mother, whose employment is to act in a managerial capacity on the internet, met an American citizen by the same medium. A relationship developed between them, with the mother visiting the United States for the first time in 2009 and meeting Mr Heyhoe face-to-face for the first time. Proceedings in relation to the children began in the Family Proceedings Court, when the mother sought the assurance of a residence order. That was not contentious, since the father has throughout generously acknowledged that she is not to be faulted as a mother. But a consequence of the application to the Family Proceedings Court was that the contact arrangements between father and children were formalised, and he commenced to have the children to stay with him every other weekend.

At the beginning of this year, the mother’s relationship with Mr Heyhoe was so advanced that she issued an application in the court for permission to remove the children permanently from the jurisdiction. That application was transferred to the county court, and to the Gloucester County Court in particular. District Judge Singleton gave directions. The application was conventionally prepared with detailed evidence in support from the applicant mother, and evidence in opposition from the respondent father.

The Cafcass Officer had written a letter pursuant to the revised Private Law Programme which defined the issues. The letter was written on 3 April, and, recognising that the application for permission raised a major issue, the recommendation was that the Cafcass Officer should prepare a full report. That duly emerged following necessary meetings with mother, father and children, and it was dated 10 August in preparation for the hearing on the 22^nd. The hearing was taken by HHJ Harington. The oral evidence consisted of mother, father and Cafcass Officer. The parties were both represented by counsel. The judge heard oral submissions, and delivered a relatively brief extempore judgment, all that achieved in something just under the day allowed for the trial. The judge granted the mother’s application for permission, but on condition that she obtain from the relevant first instance court in the United States a mirror order containing the judge’s contact regime.

The father filed an Appellant’s Notice in this court, which I read on paper and directed to an oral hearing without notice. That hearing took place on 13 November, when permission was granted and directions given for a swift hearing of the appeal. Ms Hannah Wiltshire, who appeared below, persuaded the constitution on 13 November to grant permission, and she has appeared this morning to pursue her appeal. She argues from the foot of a skeleton argument which she filed on 3 December. The skeleton argument is full, no doubt wisely full so as not to risk the exclusion of any arguable point. The presentation involves criticisms of the judge which run from subparagraph (a) to subparagraph (j), although some of those paragraphs can be elided, since they raise similar or related points. Ms Wiltshire has argued those points orally with great persistence and skill.

However, in the end, it seems to me that any evaluation of the case below must start from the fact that the mother had been throughout the life of these children a dedicated primary carer, and only with the making of the order in the Family Proceedings Court did the father’s role in the lives of the children achieve definition, which amounted to 26 weekends, a year of staying contact. Her motivation for seeking the court’s permission was classically strong; she had found a partner who she desired to marry, as he desired to marry her. His home was in middle America, where he worked in a family business which was plainly of some substance. The creation of a relationship maturing into marriage had almost the inevitable consequence that the family life of the new family would be in the vicinity of the centre of the economic activity of the family. The mother, who has Internet work, was able to effectively relocate her work without any problem, so that the family economics would rest upon the husband-to-be in his family business, and the wife-to-be working part-time in her email employment.

Inevitably, the other side of this coin is that the removal of the children would not necessarily diminish the number of nights that the children had spent in the father’s home, but would certainly completely destroy the pattern of alternate weekends that had recently been set up. The mother’s proposals for future contact were certainly generous in terms of quantum, since she was proposing to bring the children back to England for the three summer months of the American school holidays, supplemented by alternate Christmases. So given the proper approach expressed by the classic line of cases in this court from Poel v Poel [1970] 1 WLR 1469 to Payne v Payne[2001] EWCA Civ 166, the application clearly entered the lists resting on firm foundations.

Plainly, once the court had directed a Cafcass Officer’s report, the content of that report and the recommendation were going to be very influential on outcome. Manifestly, had the Cafcass Officer recommended to the court that, striking a proper balance between the factors engaged, in her opinion the welfare of the children would be fortified by granting the application, opposition to that application would have been difficult to pursue to a successful refusal. The Cafcass Officer in her report of 10 April reached the opposite conclusion, and recommended in her final paragraph, paragraph 43, thus:

“Having considered the relevant elements of the welfare checklist and the ‘no order’ principle, I feel unable to recommend that [the mother] be granted leave to remove [the children] from the jurisdiction.”

Manifestly, that moved the case to what might be described as the borderline success area. Indeed in granting permission to appeal, I said:

“So obviously this was a borderline case that could have gone either way, and indeed perhaps an independent observer at the outset would have forecast a success for the father.”

So the judge was not bound to accept the recommendation of the Cafcass Officer, but as Ms Wiltshire has correctly submitted, he had to provide cogent reasons for rejecting it.

I would emphasise that the judgment is relatively brief, and is an extempore judgment. So the key is the judge’s stated reasons for granting rather than refusing the application which he had just heard. He expressed himself in paragraph 15 of his judgment in particular, saying:

“It does not seem to me that the Family Court Adviser took into account the quality of the proposals being made by the Mother who is the primary carer of these children. The Mother has clearly gone to some lengths to put together her proposals and to cover every topic and, as was said in Payne v Payne, the reasonable proposals of the parent with the residence order wishing to live abroad carry great weight. In this case it is the reasonable proposals of the parent who has been these children’s primary carer throughout their lives and having seen the Mother give her evidence, I am also influenced by (e) which is referred to in Payne v Payne, which is the effect upon the applicant parent and the new family of the child of a refusal to leave. That is very important. The Mother struck me as being a rather lonely individual in some ways and from what I have read and heard in this case I do conclude that her ability to continue to care for these children in the way that she has done hitherto will be adversely affected if I refuse to allow her to move to America in the way that she wishes.”

He continues in the two following paragraphs, 16 and 17, to reason his discretionary conclusion to grant the application, but I will not for present purposes cite those or read those paragraphs into this judgment.

Ms Wiltshire’s principal submission is that the judge has simply failed to give cogent reasons for rejecting the recommendation. She submits that the only identifiable explanation offered by the judge is that the Cafcass Officer had failed to give sufficient weight to the mother’s practical proposals for the adventure in the new land. That is a submission which, if it could be made good, would have considerable force for, as Ms Wiltshire submits, practicalities and the presentation of a realistic practical case is the necessary threshold through which the applicant must go before engaging the judge’s discretionary weighing of the factors that bear on outcome.

But I cannot read that as being the effect or the meaning of paragraph 15. The judge had earlier directed himself in law to the paragraphs from the judgment of Butler-Sloss LJ in Payne v Payne, and in particular her useful summary of the factors that should be particularly considered by trial judges. When HHJ Harington referred to “the reasonable proposals of the parent with a residence order wishing to live abroad carry great weight”, he was referring directly to subparagraph (c) of the passage in the President’s judgment. He then continues, and expressly continues, to consider the subparagraph (e) factor. So in the result, it is quite plain that the judge rejected the recommendation on the ground that it lacked the necessary breadth, particularly focusing on two factors which are primarily important if an applicant is to succeed. In other words, he was saying that the report was in his judgment not a balanced report.

I think he was absolutely entitled so to conclude, when you see how the Cafcass Officer presented her recommendation in the paragraphs that precede paragraph 43, from which I have already cited. In paragraph 40, she simply said:

“I am of the opinion that [the mother’s] plan to move to America with [the children] would have a significant impact upon their relationship with their father. Whilst [the mother’s] proposals for contact would offer longer periods of time for the children to spend with their father in the summer, I agree with [the father] that this is unlikely to be achievable.”

The problem with that paragraph is that yes, it correctly brings into the scale pan the significant impact that relocation would have upon their relationship with their father, but the report is completely silent in recording or estimating the equally important factor that goes into the other scale pan, namely the effect of refusal upon the applicant mother.

When we come to the recommendation, which I have already recorded, it is not more than a bare recommendation, without any analysis or reasoning to show which were the significant factors. We can clearly see from the report that the Cafcass Officer was impressed by the stated view of the older child that she did not know America and could not contemplate deciding that she wanted to live in America without having first visited. It is clear that the Cafcass Officer was very concerned as to whether the mother’s generous contact proposals would turn out to be practically achievable. But given that she at no point in her report for a moment notices, investigates and evaluates what would be the impact of refusal on the mother, the report is in my judgment incomplete, one-sided, and liable to be rejected by a judge who has to look at these cases in the round.

Ms Wiltshire has, as I have already said, raised a number of other arguments, but they can all be summarised as submissions that the judge has given too much weight to one factor, or too little weight to another, and there is abundant authority to the effect that submissions which only go to weight are very difficult to make good in this court, since the assessment of the weight of any relevant factor is essentially one for the judge rather than for this court. As Mr Bellamy QC put it in his excellent skeleton argument, “The weight to be attached to each welfare [factor] varies from case to case and the weight attached to each of them is primarily a matter for the trial judge”. So I consider that it is unnecessary to record each of those submissions individually. This is an appeal which stands or falls on the submission that the judge’s departure from the recommendation of the Court Welfare Officer was impermissible.

If that submission fails, then in my judgment the appeal fails, and I would dismiss it.

I agree.

I also agree.