L is 16 years old and will be 17 in May. His younger brother, B, is just turning 14. They live with their father but spend time with their mother as well. On 5 February 2016, Mrs Justice Hogg refused an application by the father for permission to take L and B to live permanently in Iran. The father appeals against that refusal. His grounds of appeal focus upon the judge’s approach to the boys’ wishes and feelings, which it is said were given insufficient weight. They also focus upon a meeting which Hogg J had with the two boys during the course of the hearing, at which the father argues that, contrary to the 2010 Guidelines for Judges Meeting Children who are Subject to Family Proceedings (“the Guidelines”), the judge gathered evidence from the boys, upon which she relied in determining the case. Furthermore, he argues, she failed to inform the parties of impressions she had formed about the boys during the meeting, so that they could explore them in evidence and submissions.

The father appeared in person before us, assisted by his McKenzie friend, as he did before Hogg J. The mother was also in person before Hogg J and remained in person during the appeal process. She was aware of the appeal hearing but did not attend or provide any written argument addressing the issues which arise on the appeal. We decided to proceed in her absence and I should say a little more about why this was. It is necessary, for this purpose, to set out some of the procedural history of the appeal.

The appeal first came on for hearing on 12 October 2016 when, for reasons which I shall explain in due course, it was not possible to proceed with argument. The mother did not attend or provide a written contribution to the appeal on that occasion either. As I set out in a short judgment which I gave on 12 October 2016, she had sent an email to the court just before the appeal hearing, in which she apologised for not attending, gave an explanation for her absence, and said that she was “not 100% sure what the court hearing is fully about”. Part of the purpose of my judgment on 12 October was to explain to the mother what the father’s appeal was about and what consequences it could have for her and to stress how important it was for her to participate in the appeal process. I also urged her to seek assistance in dealing with the appeal, starting probably with the Bar Pro Bono Unit. Whether she pursued that suggestion or not, I do not know.

The reason that it was not possible to proceed with the appeal in October was that it became apparent that it was necessary to obtain transcripts of parts of the first instance hearing which had not yet been transcribed. The appeal was therefore adjourned so that the transcripts could be obtained, being relisted originally for Tuesday 14 February 2017. The mother did not take advantage of the adjournment to make any substantive contribution to the appeal by way of skeleton argument or otherwise.

By the week before the reconvened hearing, the required transcripts were still not available. Enquiries established that the earliest that they would be ready would be Wednesday 15 February. I therefore removed the case from the list on 14 February and relisted it for Thursday 16 February. The mother rang the court to say she could not attend because of child care. She was asked to put her adjournment request in an email but it appears did not communicate further until the evening of 15 February. The email she sent then indicated that she understood that the hearing may go ahead in any event but apologised for her absence which she said was unavoidable. We decided that, given the delays that there had been already in the appeal, and the mother’s record of non-participation so far, it was appropriate to proceed with the hearing notwithstanding her absence.

The mother is in her thirties and the father in his forties. The mother is a British citizen of mixed heritage. The father is Iranian but now also has British citizenship. He came to this country when he was about 16 for medical treatment to his eyes and has been living here ever since. He has a significant number of relatives who also live here. His eyesight has continued to be a problem; he has sight in only one eye and that is affected by glaucoma for which he requires continuing treatment. In this country, he has been unable to earn a living. A central feature of his plan to relocate to Iran is that, in contrast, he has been offered a job there as a taekwondo coach. Accommodation is available for him and the boys and the job would bring with it private medical insurance. When the father’s application was made, it was on the basis that the boys would attend a private school in Iran. By the time of the hearing, however, L was too old to attend the school and the father had arranged an apprenticeship in the construction world for him.

When the parents’ marriage failed, there was initially an order that the boys should live with the mother, but L moved to live with the father in 2013 and B followed in 2014. There is no question but that the boys love their mother and value time with her. However, contact between them has been limited and there have been considerable difficulties about it. The parents are not in agreement as to why this has been so. What is clear is that the relationship between the adults is poor and this will not have helped in relation to contact.

Hogg J set out in her judgment her evaluation of the parents. She noted that the mother behaved with quiet dignity whilst questioning the father during the hearing, and observed that the mother was deeply distressed at not being able to have significant contact with the boys. She found the father to be “a dominant, controlling influential man” who, in evidence, did not accept that he could be partly to blame for the difficulties that the boys were encountering. She noted that he was extremely critical of the mother and she considered that the boys would be fully aware of his views about her. She found that they had been influenced by the father, though she was not sure whether this was deliberate or through sheer force of personality.

The judge had three reports from a CAFCASS family court adviser, Mrs Mason, who had met the parents and the children. The CAFCASS officer discussed with the children the question of contact with their mother and the father’s proposal for them to live in Iran, and also gathered information about them from their school and their family support worker. Both children had spent time in Iran with the father so they were speaking with knowledge of the country gained from having visited it.

The report dealing with the proposed move to Iran is dated 7 September 2015 and culminated in Mrs Mason’s view that the move would not be in the children’s interests. There is considerable detail in it about the children but, given the central role in the appeal of the children’s wishes and feelings, I will concentrate on that section of it. Mrs Mason there says that B was forthcoming about life in Iran and told her that he would like to move there. He identified what he thought the benefits of a move to Iran would be, including learning a new language, meeting new family members, making new friends and good education opportunities. Asked about anxieties about a move, he recognised that it would be a change and that he does not know the area. When Mrs Mason asked him how he would feel if he could not move to Iran, he said he would feel disappointed as it would be harder for him to learn the language as an adult. In relation to contact with his mother, he said he liked spending time with her but would like her to spend better quality time with him and L on a one to one basis.

L told Mrs Mason that Iran has a “positive energy” which he finds it hard to explain. He was complimentary about aspects of the country and when asked why he would like to live there, said because of “ice cream”, “friendly people”, (joking) “nice girls”, and “nice weather”. He said that he spoke limited Farsi and would like the opportunity to learn more and that he viewed the education system in Iran as better than that in this country and that his cousins have good jobs in Iran. Anxieties about the move were that he would miss his friends and teachers at school and his family members in the UK. He classed his feelings about the move as between “unsure” and “worried”. He was excited about the possibility of going and not scared, but felt he would miss people as he was born in the UK and feels familiar with this. He told her that if he were unable to go to Iran, he would feel disappointed as the main reason he wished to go was for educational purposes. As to contact with his mother, he was happy to be seeing her but sometimes wished that someone else could manage the shop she works in so that he could spend more time with her.

Mrs Mason’s view was that the risks of a move to Iran at this time outweighed the benefits for the children. Although acknowledging that there may indeed be some benefits to the children from it, she considered that it would have a detrimental effect on their relationship with their mother, on their education, and on their social relationships, and may cause them further emotional harm in addition to that already suffered by virtue of the fractured relationship between their parents. The father had expressed the view that the children did not have an established relationship with their mother but Mrs Mason did not agree with that assessment. Both children identified their relationship with their mother as important to them. They had spoken to her positively about both parents and spoke of wanting their relationship with their mother to continue. Mrs Mason doubted that keeping in touch with the mother through telephone calls and Skype would prove successful, given the history of poor communications between the parties.

Mrs Mason was conscious that her recommendation was contrary to the children’s wishes. She said:

Mrs Mason pointed out that the father had close family living nearby in the UK and had been able to support himself and the children financially here, also that there was no evidence that he was unable to have the necessary health care in this country. She found no evidence that the refusal of leave to relocate would have a significant impact on the father’s emotional or mental health wellbeing or on his parenting abilities.

The boys had asked to meet the judge and Hogg J agreed to meet them in the presence of the CAFCASS officer. The judge reported back to the parents what had transpired during the meeting, which took place before the hearing started. She described the boys as “extremely nice young men”. She had talked with them about how they felt about going to live in Iran permanently. The following are extracts from the transcript of the judge’s report to the parents of the meeting:

Hogg J described the meeting with the boys in her judgment in terms which mostly reflect what she told the parents about it. In §13, she said:

Returning to the boys’ views about Iran later in the judgment (§30), the judge reiterated that the boys had told her that they want to stay in Iran, but said that she was “not convinced that they really understood the implications”.

The judge also dealt with the boys individually. In §14, she set out what L had told her about his hopes. He was thinking about going to college or perhaps doing A-levels and he wanted to be a performing artist. She said, in §15, that the father had not made it clear until he gave evidence that L was too old to go to the school that had been chosen for him in Iran and about the voluntary apprenticeship he had arranged for him instead. The judge said she had heard nothing about that from L. At §31, she expressed a deep concern for L, saying:

Hogg J described B as “a chatty confident little boy” (§14). He did not yet know what he wanted to do in the future but the judge was not surprised about that given his age. She found that both boys wanted a relationship with their mother as part of their normal routine. She said particularly of B that he did not want to have to be the one making the arrangements, but wanted the adults to work together over it.

The father’s case was that he wanted to take the boys, who are very good at taekwondo, to Iran so that they can be trained as international taekwondo athletes, but the judge said she had not heard much of that when she spoke to the boys, not getting the sense that it was something they wanted to do in a serious way.

The judge considered what would be in the best interests of the boys in relation to the proposed move to Iran. She said that there were “considerable reasons” which led her to be doubtful about it.

She was concerned about the question of B’s education. At the time of the hearing, the boys could not speak Farsi, except on a level of talking to cousins or friends, and did not read or write it. The judge considered that B, who was doing well enough at his English school, would struggle at school in Iran because it would be Farsi speaking, and she considered that he would be set back considerably in his education. She did not agree with the father that he would learn enough in two to three months. She was also concerned about the language barrier for the boys more generally. She was troubled about what would happen to L in the light of the plan for him to engage in an apprenticeship rather than go to school. She appears also to have been concerned about the fact that the boys were, as she found, looking at Iran through rose tinted spectacles, having had a highly successful holiday there.

Another factor against the move was that the damage that already existed in the boys’ relationship with their mother would be compounded. They wanted to see her and she wanted to see them, but the judge had the “gravest doubts” regarding the level of contact that there would be if they went to Iran permanently. There had been difficulties with telephone/Skype contact when they were in Iran and a question mark over how the mother would afford to go to see them. And the conflict between the parents gave the judge no faith in the father encouraging contact. She concluded that there would in fact be very little contact.

A further question mark over the move related to the father’s continuing ability to work and support the family. The job offer that he had was on a one year contract, extendable if he proved himself. The judge was concerned about his ability to earn if his eyesight worsened. She pointed out that the fact that private medical insurance came with job did not solve the problem if he could not work. He told her that there were benefits available to him in Iran, but did not produce supporting evidence of this.

The judge reached a clear view that it was in the children’s best interests to stay in this country. She said:

The judge went on to note particularly the CAFCASS officer’s concern about the disruption to B’s education which had led her to say that now was not the time for a move, whilst accepting that the move might be appropriate once his GCSEs were finished. Having reiterated in §59 that she was “very clear” that the boys’ best interests “demand” that they stay here, the judge went on to observe:

The judge made some suggestions as to how things may be managed with the children remaining in England. She took the view, as things stood then, that there was no problem about them having holidays in Iran in order that they could know and appreciate that part of their culture and meet their family there. They could learn Farsi here. And, she said, they should try to spend time with their mother. Following the CAFCASS officer’s advice, she made a new contact order so that the boys were to see the mother at least once a month, requiring that the parents be involved in making the arrangements for this.

The father argued that the meeting between the judge and the children went beyond the proper scope of such a meeting, as set out in the Guidelines. He argued that the judge must have asked the children questions, in order to obtain the material that she did from them, and that, contrary to the Guidelines, she gathered evidence from them and relied upon it in her decision making. The father also complained that although much of what was said was reported to the parties, the judge did not report her doubts about whether L’s heart was in the project (§31 of the judgment) or her suspicion that there would be a sense of relief if permission to relocate was refused (§59 ibid) and yet, in his submission, went on to rely on these impressions in her judgment. What the judge in fact said to the parties about the meeting (see my §15 above) gave the impression that she accepted that the boys really wanted to go to Iran, the father argued, and he was deprived of the opportunity to address the judge’s doubts in evidence, for instance in questioning the CAFCASS officer who was also present during the meeting with the boys.

It can be seen from the transcript of the judge reporting on the meeting to the parties that the father is right in saying that the children were asked questions. For example, at page 4 of the transcript the judge reported that they had been asked whether there was anything they would miss about this country. A meeting between judge and children such as this one, held during the course of the hearing rather than after it is over, is always difficult to conduct and it will be a rare event when the children come in and cover all of the ground without the judge saying a word. That said, in so far as the meeting involves the judge listening to the child’s point of view, the judge’s role should be largely that of a passive recipient of what the child conveys, as was said in Re KP [2014] EWCA Civ 554. In the present case, although questions seem to have been asked of the children, there is no evidence that the judge engaged in the sort of probing questioning that was criticised in Re KP. Furthermore, it was known to the parties immediately after the meeting with the children that questions had been asked of them, because the judge said so, as she reported back to them on the meeting. If the father objected to the manner in which the meeting had been conducted, it was at that point that he needed to raise it, pursuing it as he thought fit in the course of the subsequent evidence. He could, for example, have asked the CAFCASS officer how she felt the questioning had affected what the children said and their demeanour, and could have addressed the judge about the matter in his closing submissions. That he did not do so is not at all surprising because what the boys said to the judge, as reported by her to the parties, was essentially supportive of the father’s case. The only thing that was not helpful to him was the judge’s impression, described in her judgment, that there might be a sense of relief if the project did not go ahead and I will deal with that separately below. Whilst it is obviously important that judges do follow the Guidelines when seeing children, it will not necessarily be a persuasive argument on appeal to demonstrate that they have not done so to the letter, particularly where the alleged error was known at the time and not pursued. What matters ultimately is what impact, if any, the judge’s deviation from accepted practice has had. Here, it has not been demonstrated that it had any impact and I would not treat it as furthering the father’s appeal.

I turn therefore to the one matter that the judge did not report to the parties about the meeting, that is that she wondered whether L, at least, might feel a sense of relief if he were not to be going to Iran. It seems to me that the judge’s impressions of her meeting with the boys must have continued to evolve over the course of the hearing. This does sometimes happen, for example because the judge continues to mull over what has taken place, or where the developing evidence casts a new light on it or enables him or her better to understand the children. Judgments routinely set out the impressions that judges have formed of the parties and other witnesses and of their evidence; making assessments of this type is a fundamental part of the judge’s task and he or she is not obliged to lay his or her provisional conclusions before the parties so that they can address them before they feature in the judgment. However, it is rather different where the material upon which the judge bases his or her impressions has not been available to all the parties, as was the case here with the meeting with the children. In the circumstances, it would have been prudent of Hogg J to have mentioned to the parties that she had begun to wonder whether, in fact, the children might not have their hearts in the project, so that the parties could have explored this in evidence and/or addressed her about it. However, in the circumstances of this particular case, I do not think that the fact that she did not do so fatally undermines her decision. I shall explain why, but it may be convenient to do so at the same time as dealing with another of the father’s arguments, that is to say that the judge put insufficient weight on the views of the boys.

I should first say a word about the father’s submissions concerning the boys’ ages. He complained that, in advising that the move should not take place for three years, the CAFCASS officer was making a recommendation that related to boys of 19 and 16, as L and B would then be, whereas, he submitted (as summarised in my words not his), the courts would not normally interfere with the autonomy of young people of that age. I do not see things in this way. Mrs Mason was not making a recommendation about boys of 19 and 16. She was making a recommendation about boys of 15 and nearly 13 (the boys’ ages at the time of the hearing before Hogg J). Not only was it not in any way contrary to principle for the CAFCASS officer to offer views as to the best interests of boys of those ages, it was her duty to do so in reporting to the court as she had been requested to do. As a young man approaching 16, L’s own views (in so far as they were clear and firm) might have been given significant weight but, having been asked to prepare a report, the CAFCASS officer still had a role in finding out what he thought and assisting the court in determining whether his views accorded with his best interests. Furthermore, nobody suggested that there was any question of L going to Iran with the father without B, so he and B were being looked at as a pair. At nearly 13, B was likely to need considerably more adult assistance in understanding the ramifications of the decision to relocate to Iran and the CAFCASS officer’s analysis of what was in his best interests was important.

Mrs Mason’s clear advice was that it was the wrong time for L and B to go to Iran. In so far as she referred to the position as it would be in three more years, when they would be 19 and 16, she was highlighting the importance of B’s GCSEs being completed before he moved, but allowing for the possibility that a move might be possible once that was done. This was completely unexceptionable.

I return to the father’s submission that Hogg J did not give enough weight to the boys’ views. In evaluating this submission, it is important to remember that, even with older children, their wishes and feelings are only ever one of the factors that have to be considered in arriving at a decision as to what is in their best interests. I think the father accepted this, but he submitted that in this case they should have had significant (I think he might even say, determinative) weight.

There were a number of elements to the submission. The father argued that the boys’ expressed wish to make the move to Iran should carry particular weight because it was informed by actually having visited the country and seen what there was to offer. He also argued that there were no welfare considerations to put into the scales against the boys’ wishes. Their relationship with their mother was weak, he said, and there was no sign of it improving so, in his submission, there was no justification to keep them here against their wishes in the hope that it would get better. In any event, the father said, the relationship could be maintained by the mother visiting Iran, which in oral evidence he offered to pay for, and the boys would also see her when they came back for the summer holidays each year to visit their extended family.

I am not persuaded by the father’s arguments concerning the boys’ wishes and feelings. Contrary to his submission, it is apparent from the judgment that there were very good reasons not to accede to those wishes. The judge was entitled to find, having evaluated the evidence, that the boys had been influenced by their father. She was also entitled to take the view that, although they knew what Iran was like by virtue of the time that they had spent there, they did not really understand what a permanent move to Iran would entail.

One of the consequences of the move would, on the judge’s findings, be damage to the boys’ relationship with the mother. Supported by the CAFCASS officer’s evidence, the judge found that, despite their poor perceptions of her, the boys love their mother and want a relationship with her, wanting to spend quality time with her and do fun things together. She also found that it would be in their best interests to have a relationship with her. These findings contradict the father’s submission that, putting it in shorthand terms, there was really not enough in their current relationship with their mother to justify keeping the boys here. The father underlined this aspect of his argument by submitting that the prospect of things improving with the mother if the boys remained in this country was poor. However, the CAFCASS officer did not share his pessimistic view and the judge placed reliance on her oral evidence that she was hopeful that things could be improved (see, for example, A46/7 of the transcript of the CAFCASS officer’s evidence, and §38 of the judgment). In any event, even if the hope of improvement was a vain one, the view could validly be taken that it would be better that the present position should continue than that, as the judge concluded would happen if the permanent move to Iran occurred, the existing damage to the relationship should be compounded. The judge had no faith in the father encouraging contact, and she had grave doubts regarding how much would actually take place following a move, whether by telephone or Skype or visits. In all the circumstances, the position in relation to the boys’ relationship with the mother was a heavy weight in the scales against the move, and both the judge and the CAFCASS officer were right to have regard to it alongside the boys’ own wishes and feelings.

Furthermore, I would not criticise the judge for concluding that L and B had not fully understood what the move to Iran would entail. She was right to observe that they had only been there on holiday and entitled to take the view that they were looking at Iran through rose-tinted spectacles. Moving to live there permanently would build on what they knew already, but would inevitably be different in ways which the judge was entitled to consider the boys could not presently appreciate. It is also material to remember that what L had been expecting of life in Iran was not, in fact, going to happen, by virtue of the change of plan from attending a private school to engaging in a construction apprenticeship. Construction was not mentioned by L to the judge; he told her he wanted to go into the performing arts. The father argued before us that the children’s views changed all the time and that what L said to the judge about the performing arts was just a snapshot of how he felt then. The judge set too much store by this aspiration of L’s, the father said, whereas in organising an apprenticeship, he was responding flexibly to L’s changing views. In this connection, although developments following the hearing before Hogg J are not material to the appeal, I cannot help but note that the father volunteered to us the information that L is in fact at drama school now. The reason that he told us this was to demonstrate that he was responding to L’s wishes and needs, informing us that L now has an offer of a drama school place in Iran which he could take up if the family went to live there. But, in fact, the information was, perhaps, an unintended indicator of the strength (or otherwise) of his “snapshot” argument.

A survey of the evidence before the judge and of the whole of her judgment makes it apparent that the adverse impact of a move on the boys’ relationship with the mother was, and was viewed by the judge as, a weighty factor against permitting the relocation. It was not the only factor, of course; others included language problems that were likely to be encountered in Iran, considerations to do with education, and the boys’ inability to appreciate in advance what a move would be like in reality. The CAFCASS officer’s opinion was formed without any thought that the boys might be relieved if the project was thwarted. She accepted that L and B had a clear wish to go to live in Iran but she balanced their wishes against what she saw as the risks of the move (see, for example, §41 of her relocation report) and concluded that it was not in their best interests to do so. The judge was bound to have regard to her opinion, and did so.

As for the judge herself, she took full account of the fact that L and B had told her that they want to live in Iran, and set out in some detail the enthusiastic things they had said to her about the plan. Her acceptance that they may be disappointed in the immediate aftermath of a refusal of leave shows plainly that she did not disregard or minimise their expressed wishes. However, in deciding what weight to attribute to them, as well as taking into consideration the limits of their understanding of the realities of the move, she was entitled to note the loyalty that the boys had to their father (see §31 in relation to L) and the influence that he had upon them (§12). I would read her doubts about the degree to which the boys really wanted to move in this context. This is perhaps particularly clear from §31 where the judge’s observation that she did not get a sense that L’s heart was in it was contained in a sentence which began with a reference to L’s loyalty to his father. As I read the judgment, the thrust of the judge’s reasoning about what was in L’s and B’s best interests was not in any way dependent on what she surmised about their wishes in §§30, 31 and 59. Rather, it seems to me that she drew on all the material she had acquired during the hearing, evaluated the boys’ wishes in the light of it and took account of them, but decided what their welfare required on the basis of all the relevant factors. Therefore, even if there is force in the father’s submission that the judge should have reported her impressions about the boys’ wishes to the parties, in the circumstances her failure to do so made no difference to the outcome which was driven by other matters.

The father further submitted that insufficient account was taken of the positive features of a move. He complained that the CAFCASS officer had not weighed these in the balance when recommending against the move and that they did not feature sufficiently in the judge’s analysis. He pointed out that in §41 of her report, where the CAFCASS officer reached her final view about the move, she did not refer to anything in favour of the move, except the children’s wishes, only referring to the risks of the move. Earlier in the report, however, Mrs Mason had set out what the boys had told her about life in Iran in positive terms, and had also set out (see particularly §§34 and 35) the father’s case as to the benefits of taking up residence there. When she was challenged about her approach in cross-examination on behalf of the father (A30), Mrs Mason explained that just because the matters set out earlier in the report were not repeated in §41, it did not mean that they were not weighed in the balance. That makes obvious sense and there was no reason to treat the CAFCASS officer’s view as unbalanced in any way. Furthermore, the judge herself set out the benefits that the father argued would flow from a move and it is clear that she was evaluating them critically as part of her decision making. Some aspects she appears to have accepted, such as the availability of the father’s job, comfortable housing, and the fact that the boys have family there and that it is a part of their culture. But others she questioned, notably what would happen if the father had the misfortune to suffer further problems with his eyesight that rendered him unable to work, how the boys would manage with the language, and the feasibility of the plans for education/apprenticeship. Ultimately, it was for her to put everything together and decide what the boys’ best interests required. She did that in a way which, in my view, has not been demonstrated to be materially flawed.

I would therefore dismiss the father’s appeal.

I agree