M (A Child)

This is an appeal from a decision of order Ms Elizabeth Isaacs QC sitting as a Deputy High Court Judge on 4 August 2017. The issue before her was whether a three-year-old boy should be allowed to relocate with his mother to her native Columbia or whether he should remain in England, dividing his time between his parents care broadly as at present. The decision she made was that the boy, who I shall call L, should live with his mother and that she should have permission to remove him to Columbia at the end of the following October. A detailed schedule of the time that L would thereafter spend with his father was directed. It was to be, in broad terms, annually in Columbia for two weeks at Easter, in this country for half the summer holidays and in this country or Columbia, alternating, at Christmas for four weeks, plus Skype contact and any other visits to Columbia that the father might make.

The father applied for permission to appeal from that decision and I granted permission on 11 October on the ground that, firstly, it was arguable that the judge had given priority consideration to the mother's proposal rather than balancing it against the father's and, secondly, that she had underestimated the benefit to a child of L's age of living in the same country as both his parents. In granting permission to appeal I also granted a stay.

The background can be shortly stated. The mother is in her early forties. She moved from Columbia and settled in London in 1999, remaining there until 2003, when she returned to Columbia quite briefly. The father is in his early thirties. In 2004 he moved to live in London from the North of England, where his parents, the paternal grandparents, live. In 2005, the mother returned to live in London and she has remained there since. In 2012, she acquired British citizenship and also in that year, significantly, she suffered a stroke, which fortunately has not had lasting physical effects but which understandably causes her considerable anxiety. In the same year, 2012, the parents began a relationship, which lasted for about a year, but during that time they did not live together. Up to the time of the hearing before the judge, both parents were working in good jobs. We have been told that since then the mother has lost her employment, something that was mentioned as a real possibility at the hearing.

The parents’ relationship ended in 2013 and after that, in [a date in] 2014, L was born. He has seen his father very regularly throughout his life, and also his paternal grandparents, who have played an important role, and his maternal grandparents, who have visited, particularly for a period of three months or so at the time of his birth. The nature of the relationship between the two families can be somewhat seen from the fact that between July and November 2014, the mother and L were living with the paternal grandparents in the north of England. At Christmas that year, the mother took L to spend some weeks in Columbia with her family. In March 2015, L started nursery and during that year the father began to have overnight contact once a week to add to the considerable amount of daily contact that he had been having. Christmas 2015 was spent by all family members that I have mentioned together in the paternal grandparents’ home.

The mother's situation in London as a single parent with a demanding job was obviously not easy but it was alleviated to some extent by the support that she was receiving from both wings of the family as I have described. But in 2016, difficulties arose. In the spring of that year, there was a dispute between the parents about their holidays. The mother wanted to go to Columbia again at Christmas 2016 and the father ultimately was prepared to agree to that provided he was allowed some short holiday periods with his parents in England. That disagreement led to the father issuing proceedings in August 2016 and the mother responding in September 2016 with her application for permission to go to Columbia for three weeks at Christmas but, more significantly, for her to be allowed to go permanently with L to live in Columbia immediately after that.

There were two interim hearings. The first was in December 2016, when the circuit judge refused the mother's application for a holiday in Colombia and the second in March 2017, when the same judge crystallised the time that L was spending with his father so that it amounts in broad terms to ten nights every four weeks with some other adjoining days. During the proceedings, both parents filed a number of statements but their key statements were filed, in the mother's case, in March and in the father's in May. The mother explained how she found it incredibly challenging to continue living in London. The father explained how L was thriving and should not be moved.

On 14 June 2017, a report was filed by the Cafcass officer, Gemma Bond. It recommended the refusal of the mother's application, with the father’s time with L to continue at the current level. She also suggested that the parties should return to mediation, which they had previously attempted.

The Cafcass report is, in my view, of a particularly high quality and I shall read some extracts from it. Having set out the background and made some observations of L as Ms Bond saw him, she said this:

The hearing before the recorder took place between 19 and 21 July with evidence being heard on two days from the Cafcass officer, the mother and the father and judgment being reserved. The evidence that was given at the hearing did not, in my assessment, take the case in any different direction and I cite only three passages from it, one from each witness. Firstly the Cafcass officer said this:

I next quote from the evidence of the mother. Asked, "What is your motivation for your application to go to Columbia?" she said this:

Finally, the father said this, referring to the mother:

That was then, in short summary, the evidence before the judge. I pause to comment that it will be apparent to anyone reading that evidence that both parents were approaching the decision that they had taken with great seriousness and with complete good faith as to what needed to be decided for their son. But looked at objectively, it seems to me that the state of the evidence suggested the need for a good reason to be given before the arrangements for L were to be disturbed in the way that the mother proposed.

I come then to the judgment. The first half of it, understandably, concerns the narrative and it is unnecessary to repeat that. I first read from paragraph 4:

Moving on, at paragraph 22, she introduced the shorthand of plan A, being the plan to relocate to Columbia and plan B, the plan to remain in the UK. She then says this:

The judge then went on to give herself a direction on the law. I return to make short comment on that later. She correctly directed herself in relation to the significance of the Cafcass officer's opinion as follows:

Then she embarked upon a consideration of the factors mentioned in the welfare checklist. I take this paragraph from her treatment of L's needs:

The judge then came a little later to what she described as the key issue:

“48.

The key issue in this case therefore really relates to balancing the possible detrimental effect the loss of the every day contact with the father arising from plan A against the possible detrimental effect on L of remaining in the UK with an unhappy, resentful mother who feels trapped arising from plan B. Just as I have had to consider the impact on L of loss of very regular contact with the father and the ways of ameliorating that loss, so I have also had to consider the impact on L of remaining in the UK with a mother whose application to move has been refused and how that impact might be ameliorated.

49.

The impact on the mother of the refusal of her application is a relevant factor to be weighed in the balance just as the impact on the father of the granting of the application is also important. Plainly the impact of remaining in the UK would be ameliorated by continuing very regular contact with his father. However, when I weigh that against the impact caused by the mother's likely continued distress, I do consider that in all the circumstances the balance tips in favour of a move to Columbia. It was submitted on the mother's behalf that effectively a refusal of her application would require her to remain in the UK for a further 15 years, almost certainly in rented accommodation. It was submitted that she would only be surviving in the UK whereas the father would be flourishing. I agree."

So it was that the judge announced her decision. I add only these concluding paragraphs from the judgment. Firstly under the heading of "Any harm which the child has suffered or is at risk of suffering:

I come now to the grounds of appeal, which Ms Catherine Wood QC, on behalf of the father, was able to boil down to three core submissions.

The first is that the judge did not give proper overall consideration to the competing proposals but instead gave priority consideration to the mother's proposal. Ms Wood drew attention, in this context, to the leading case of Re F (A Child) (International Relocation Cases) [2015] EWCA Civ 882. In that decision, which was cited to the learned judge but not referred to in her judgment, Ryder LJ said this at paragraph 30:

Secondly, she says that the judge underestimated the value to L of living in the same country as both parents. It was possibly the most powerful factor in the case, she says, but it was virtually ignored in the judgment. She submits that the judge misunderstood the main thrust of the Cafcass recommendation, treating the father's time with L as contact rather than the crucial establishment of a relationship at the particular age and stage that L had reached. Further to that, as a subsidiary point, the judge did not give any adequate reason for her departure from the recommendation of the Cafcass officer.

The third argument from Ms Wood is that the judge gave undue consideration to the impact of the decision on L's mother and having done so, placed more weight on that issue than the evidence allowed. She says that the approach was akin to the approach that perhaps used to be taken in relation to these cases following the decision of Payne v Payne [2001] 1 FLR 1052. Ms Wood submits that the judge did not identify or evaluate the true nature of the mother's unhappiness at any point in the judgment.

On behalf of the mother, Ms Claire Heppenstall, who has said everything could possibly have been said, rightly submits that the task of an appeal court is to look at the substance of the judgment as a whole and not engage in a narrow textual analysis. She reminds the court that the judge found L to have a strong and happy relationship with his father and she submits that the Cafcass officer had focused unduly on the loss of contact with the father. As to the mother's distress, she points out that that will have been apparent to the judge at two points during her evidence. Her employment was now at risk and there would be change in any event if she remained in England. Ms Heppenstall drew attention to passages in the judge's narrative to show that she had understood the essence of the evidence. She accepted that the ultimate evaluation was not fully set out but argued that the judge had done enough in a finely balanced case.

In proceedings of this kind, a great deal is at stake for a child and his parents. The impact on the child's future is substantial and the decision is always a tough one for the disappointed party. The task for the judge is to select the outcome that best meets the child's welfare needs and to give adequate reasons for the choice. In this kind of case, a valid judicial decision requires, as was said in Re F, an analysis of some sophistication and complexity. That analysis is the engine that drives a decision that takes the parties from a state of disagreement to one of clarity. Without it, the essential judicial task has not been performed.

I the present case, it seems to me that the recorder summarised the evidence sufficiently and directed herself adequately as to the law. She also identified in broad terms the critical factors bearing upon her decision; that is, the effect on L of the loss of everyday contact with his father balanced against the possible detrimental effect upon him of remaining within the UK with an unhappy mother. On one side of the scales the judge therefore had to put the weighty evidence showing that thanks to the good sense of all family members, the arrangements in this country have worked well for L. He has frequent contact with each parent, both of whom are now British citizens and important contact with his paternal grandparents while remaining in touch with his maternal grandparents. These considerations rightly weighted heavily with the Cafcass officer. Into the other side of the scale, the judge had to put the evidence relating to the mother's unhappiness. That evidence needed to be carefully assessed in order to reach a conclusion about how difficult life actually was for her and how that might impact in the future on this child. In this case, that was the crucial evaluation.

It seems to me that at no point in the judgment does the judge carry out that very necessary assessment. There is no attempt to evaluate how difficult life actually is for the mother in England or why her experience is likely to impact on L in the future. In effect, the most that is said is that the mother would only be surviving in the UK whereas the father would be flourishing. Further, the judge said:

It is, of course, obvious that the mother would be happier if her application was granted but this does not in itself take one further. Given that the mother has been in this country for many years both before and after the birth of L, it was the judge's task to evaluate her actual situation and explain why she attached such decisive weight to it. Even assuming the mother's case at its highest, the judgment contains no attempt to balance that evidence against the other incontrovertible evidence in the case. Instead, the judge simply jumped to stating her conclusion without any underpinning reasoning. In effect, she did not put anything into the opposite scale that was capable of outweighing the very considerable competing arguments. Nor in a case in which she had a particularly coherent analysis from Cafcass did the judge adequately explain why she was departing from it. She devoted one sentence to it. To my mind that sentence undersells the evidence of the Cafcass officer, who cogently explained the importance to a child of this age being allowed to develop such an important relationship. To describe that as ‘wrongly elevating’ those benefits is a shortcoming in the judge's balancing exercise. Nor does she explain what is meant by ‘all the attendant risks of L not moving to Columbia’ or critically justify her assertion that he would flourish if he lived there.

I also consider that there is substance in Ms Wood's complaint about the judge's concluding paragraph, which focused exclusively on the advantages and disadvantages of the relocation plan without giving equivalent consideration to the status quo. The impression of an insufficient evaluation of all the relevant factors is reinforced in exactly the way that was warned against in Re F.

Looking at the situation overall, I come to the clear view that Ms Wood's submissions succeed. In a decision of this importance, the judge did not really reason her decision at all, nor faced with a sophisticated Cafcass evaluation did she give any adequate explanation for disagreeing with it.

I would therefore allow the appeal. The result is that if the parties cannot agree on future arrangements for L, the mother's application will unfortunately have to be reheard with all the unfortunate consequent personal and financial costs to this family. I should stress that if a rehearing does take place, nothing that I have said in this judgment is intended to indicate the least view about what the appropriate outcome of the rehearing might be.

I would only add a word about an unusual aspect of the procedural history. The case was issued in the East London Family Court with the two interim decisions being taken by the circuit judge and the final hearing listed before the judge who heard it. It was the parties' assumption that the case had continued at circuit judge level and it was only after giving her decision that the judge revealed that she considered that she had been sitting as a Deputy High Court Judge. This was said to be as a result of a decision taken by the circuit judge who had had previous dealings with the matter, that judge not being the Designated Family Judge for East London.

Since October 2016, the question of whether a judge is sitting as a Deputy High Court Judge has important consequences of route of appeal. Appeals from decisions taken at circuit judge level are now heard in the High Court, while appeals from judges sitting at High Court level come to this court. This case, rightly in my view, was allocated at the gatekeeping stage to circuit judge level. There was no order reallocating it to be heard at High Court level. That could only happen as a result of compliance with the guidance given by the president in December 2016: "Allocation of Work to Section 9 Judges". Paragraph 6 of that guidance reads as follows:

I agree.