AH v DT

On 14 November 2016, I dismissed an application by a mother, AH, for permission to appeal against a judgment and order made by HH Judge Scarratt on 15 September 2016 where under he ordered her to return her child, E, from Northern Ireland to England, and made a defined order contact between E and her father, DT. This judgment sets out the reasons for my decision.

E’s parents were in a short relationship lasting two years between 2012 and 2014. E was born in 2013. Following the breakdown of the relationship, there were proceedings under the Family Law Act 1996 which led to non-molestation orders against the father and contact orders under the Children Act 1989 under which the mother, with whom E has always lived, was required to make E available for contact with the father.

In December 2015, the mother alleged that E had said words to indicate that she had been sexually abused by the father. As a result, she stopped the father’s contact and reported the matter to the police. A child protection investigation followed, which resulted in no further action being taken by either the police or social services. Meanwhile, in April 2016, the mother took E from her home in Kent to live in Northern Ireland without consulting or indeed informing the father. This led to the father seeking to enforce the contact order and, after various directions hearings, the matter came before Judge Scarratt who was in effect dealing with two principal issues, namely (1) the allegation of sexual abuse and (2) the enforcement of the father’s contact.

On the first issue, after considering the evidence, the judge found as a fact that no abuse had occurred. That finding was not the subject of any appeal.

The judge then considered the issue of contact. The father’s proposal was that the mother should return to live in England so that his weekly contact could resume. For her part, the mother argued that she and E were now settled in Northern Ireland. She has started a college course, E was attending nursery, they had family and friends in the locality, and in all the circumstances she did not think it was in E’s interests to return to England. She proposed that the father should travel to Northern Ireland once a month for contact.

Judge Scarratt considered the law relating to internal relocations, citing the decision in Re C (Internal Relocation) [2015] EWCA Civ 1305 which confirmed that courts must apply the same principles to internal relocation cases as to external relocation cases, and that the child’s welfare is the paramount consideration. The judge quoted Bodey J’s observation in Re C that

“(a)

There is no difference in basic approach between external relocation and internal relocation. The decision in either type of case hinges ultimately on the welfare of the child. (b) The wishes feelings and interests of the parents and the likely impact of the decision on each of them are of great importance, but in the context of evaluating and determining the welfare of the child. (c) In either type of relocation case, external or internal, a judge is likely to find helpful some or all of the considerations referred to in Payne v Payne [2001] 1 FLR 105, but not as a prescriptive blueprint. Rather and merely as a checklist the sort of factors which will or may need to be weighed in the balance when determining which decisions would better serve the welfare of the child.”

Turning to the facts of this case, Judge Scarratt took note of the fact that the move to Northern Ireland had taken place relatively recently. He thought that, if E were to come back to Kent, all would not be unfamiliar to her. Members of her maternal family, including her grandmother, lived in Kent, as did the father and members of the paternal family.

The judge then looked “for guidance” to the decision in Payne. He asked the question, identified by Thorpe LJ, as to whether the mother’s application was genuine in the sense that it was not motivated by some selfish desire to exclude the father from the child’s life. He noted the very positive evidence about the father’s contact with E including the full report he had received about a successful contact visit that had taken place the day before the hearing. He concluded that E had “no doubt gained an awful lot from that experience”. He noted the older evidence as to the high quality of contact that had taken place prior to December 2015 when the mother had stopped it as described above. Judge Scarratt found that the mother’s motivation in moving to Northern Ireland was

“not at all genuine in the sense that it was predicated by her desire to exclude this father from E’s life and by that I mean E having any contact with her father. I reach that conclusion and find that as a fact because the mother told me so in the witness box …. She wanted a ’peaceful’ life, she did not want there to be contact and she wanted to prevent contact.”

The judge found that the relationship between E and her father was not only very important but was flourishing. He then asked whether contact could work so that the relationship could flourish and E’s welfare be promoted if she remained permanently in Northern Ireland. Having regard to the circumstances, including the parties’ means, he concluded that the promotion of contact in Northern Ireland would be very difficult – in fact, impossible. He was therefore driven to what he found to be the only conclusion possible on the evidence namely that E should return to live nearer to her father in England and probably in Kent. He recorded that the mother in evidence had indicated that, if the court ordered E to be returned, she would accompany her.

The judge therefore ordered that E be returned to England by 13^th October. Turning to the quantum of contact after E was returned, he concluded that there should be weekly supervised visiting contact for 3 weeks followed by weekly unsupervised visiting contact for 6 weeks, and then staying contact on alternate weekends, plus holiday contact.

The order made following the judgment therefore provided inter alia that:

On 4^th October, the mother’s application for permission to appeal was refused by Judge Scarratt. On 6^th October, the mother, at that stage acting in person, filed a notice of appeal against the judgment and order. On 7 October, I listed the matter for a hearing of the application for permission to appeal with appeal to follow if permission was granted, and gave directions in connection with the hearing. In the interim, I stayed the order requiring the mother to return E to England. I also stayed the order for contact and instead directed that the mother should make E available for contact with the father on one occasion prior to the permission hearing. That hearing was originally listed on 26 October, but adjourned at the mother’s request and eventually took place on 14 November. Miss Samantha King (who had not appeared in the court below) was instructed at a relatively late stage to represent the mother, and Ms Elizabeth Hartnett was re-instructed on behalf the father. I am grateful to both counsel for their assistance, in particular to Miss King for preparing the case at short notice.

In her grounds of appeal and initial skeleton argument, which she prepared herself, the mother set out a number of arguments, all of which I have carefully considered. Her principal arguments were as follows.

In her supplemental skeleton argument and oral submissions on behalf of the mother, Miss King contended that, having identified the correct principle to apply, namely the welfare principle, the judge failed to apply it in a holistic, global or comparative manner. She submitted that the judge had failed to apply the nuanced test set out in Re C and, having indicated that the guidance in Payne is not a blueprint, proceeded to focus on part of the guidance, leaving aside other factors which would have led to a holistic evaluation. Specifically, he focused on the mother’s motive in moving to Northern Ireland to the exclusion of the other aspects of the guidance. In doing so, the judge lost sight of the fact that the overriding question was E’s welfare.

Miss King further submits that the judge failed to consider other parts of the guidance given in Re C, for example the passage at paragraph 53 of the judgment of Black LJ where she stresses the need to focus on the practicalities in an effort to see whether there is a way in which the relocation can be made to work, thus looking after the interest not only of the child but also of both parents. Here, Miss King contends that there is no sufficient examination of, or weight given to, the issues of the realism of the father’s proposal that the mother should move back to Kent, or the impact of such a move on her. She argued that there was no sufficient exploration of the mother’s living arrangements with the child if they return to England. Equally, there was insufficient consideration of the impact on the mother’s life of being required to uproot herself, abandon her college course and return to Kent. Linked to this was a further submission by Miss King that the judge failed to review the issues with an eye to the Article 8 rights of the parties and thus disregarded the need, identified by the appellate decisions, to carry out a proportionality evaluation. Ms King describes the judge’s analysis of the impact of the decision on the mother as “perfunctory”.

Ms King also criticises the judge for failing to consider recent allegations of threats and abuse. Instead, he considered that the risk of violence would be covered by extending the existing non-molestation orders. This issue was compounded by the absence of any supplemental welfare report over and above the earlier Cafcass report of September 2015. Although no party had applied for a further report at the hearing, the judge was wrong to go ahead and order contact without obtaining one. In this context, Miss King submitted that the judge’s order for defined contact after the mother and child returned to Kent went well beyond the earlier recommendation without any evidence that it would be in P’s best interests, or that the father will be able to make himself available.

In reply, Ms Hartnett submitted that the judge had the benefit of detailed skeleton arguments summarising the law on internal relocations within the United Kingdom and as a result accurately summarised the law in his judgment, emphasising that the welfare of the child is the paramount consideration. It was wrong for the mother to assert that she did not believe that the court was going to deal with the issue of where E should reside at the hearing, as demonstrated by the fact that this issue was addressed at length in the skeleton argument produced on her behalf and was identified in recitals in earlier directions orders. The judge carried out an appropriate balancing exercise of where E should live in her best interests, applying the welfare checklist. He was correct in placing weight on the family ties that remained in Kent and in particular the importance of the relationship between E and her father. It was common ground that that relationship was very positive.

The mother rented accommodation in Northern Ireland as she had done previously in Kent, and there was no evidence before the court that the cost of returning to Kent were insurmountable. In any event, Miss Hartnett submitted that factor could not override E’s welfare.

Miss Hartnett further submitted that the judge was entitled to proceed on the basis that there were no findings to support the mother’s assertion that there was a risk of harm to E in her father’s care. No party sought any findings in respect of further allegations of violence. Although initially the court had ordered a further section 7 report, the local authority had replied saying that it was unable to comply and at a directions hearing it had been decided to leave the question of whether a further report was necessary to the final hearing. In the event, no party applied for further report at the hearing before Judge Scarratt.

Ms Hartnett accepted that the judge focused on the issue of the mother’s motivation moving Northern Ireland but submitted that he was justified in doing so, given her stark and unambiguous evidence that she wanted to prevent contact and make a fresh start. She submitted that the judge did address the question of the feasibility of contact in Northern Ireland and concluded, as he was entitled to do, that it would be very difficult. The key welfare issue for the judge in this case was the importance of re-establishing E’s relationship with her father. The judge recognised that this was contrary to the mother’s wishes and feelings, and that it would involve an upheaval for her moving back to rented accommodation. Ultimately, however, he concluded, as he was entitled to, that contact was the key issue in the case.

Ms Hartnett therefore submitted that, in all the circumstances, the judge having applied the correct law and conducted a fair trial with no irregularities, there was no prospect of the appeal succeeding.

An appeal against a judge’s decision in a family case is not a full rehearing. An appeal can only succeed if the court is satisfied that the judgment or order at first instance was wrong or that it was unjust because of a serious procedural or other irregularity. Permission to appeal can only be granted if there is a real prospect of success or some other compelling reason why the appeal should be heard.

The judge at first instance has the advantage which the appeal court does not enjoy of seeing and hearing the witnesses. Many family cases turn on the impression the judge forms of the parties and manifestly that this was an example of such a case.

It is plain from Judge Scarratt’s judgment that at all times he had in the forefront of his mind the principle that E’s welfare was his paramount consideration. I respectfully reject Ms King’s assertion that the judge “lost sight” of this overriding question. It is equally plain to me that Judge Scarrratt was fully aware of all the factors relevant to the welfare analysis as particularised in the welfare checklist, including the various matters raised by the mother about the advantages for E of living in Northern Island and the practical difficulties which would arise were she and the child to be required to return to England. It is, however, equally plain that, for Judge Scarratt, the factor of magnetic importance in this case was the need to ensure that E had a close relationship with both parents. I do not agree with the mother’s contention that his decision was directed at punishing her. It is true that the judge attached importance to the mother’s frank acknowledgement in evidence that she had acted in a way that was designed to obstruct contact, but I do not accept Ms King’s submission that he focused on this issue to the exclusion of other matters. On the judge’s analysis, the mother’s motivation was contrary to E’s welfare. The mother plainly sees the judge’s decision as prioritising the father’s convenience over the child’s best interests – she says so in terms in her grounds of appeal and skeleton argument. In my view, however, this is a misreading of the judge’s decision which was based on his assessment of the importance to the child of maintaining her contact with her father at a regular and high level. This conclusion was based both on general principles and on the evidence as to the successful and valuable contact which E had enjoyed with her father.

The judge therefore concluded that the importance of restoring contact to the level that had existed prior to the mother’s unilateral decision to remove E to Northern Island outweighed the disadvantages of uprooting the child and bringing her back to England. To my mind, in carrying out this balancing exercise, Judge Scarratt was manifestly aware of, and sensitive to, all the issues, including the practical problems the mother would encounter in complying with the order. Ultimately, however, he concluded that those problems were outweighed by the pivotal importance of restoring E to a position which would enable her to have a close relationship with her father as well as her mother.

In my judgment, the judge’s conclusion on this issue was manifestly within his discretion. It is correct that he did not have the benefit of an up-to-date report from Cafcass or any other agency, but it seems that no party applied for any report at the hearing and I do not consider that his decision to proceed without it can realistically be challenged on appeal. Equally, I accept Ms Hartnett’s submission that the judge’s decision cannot be criticised on the grounds that he failed to address allegations of recent threats when neither party requested him to make findings on any such allegation. The focus of the mother’s case was on the allegations of sexual abuse, which were thoroughly considered and dismissed by the judge, and on the consequences of requiring E (and the mother herself) to leave Northern Ireland. Although the mother raises recent allegations of violence in her appeal documents, they do not really feature in the skeleton argument put forward by counsel on her behalf before the judge.

Although it is true that the judgment does not contain a detailed “proportionality” evaluation, it must be borne in mind that it was delivered extempore at a late hour. The judge expressly asked the parties’ representatives to address him as to any points which he had not dealt with. It seems that neither party contended at that point that he had failed to carry out any “proportionality” evaluation. In any event, the judge’s analysis is entirely consistent with Article 8. In this case, I do not consider that a more detailed “proportionality” evaluation would have added to his analysis.

The judge’s decision to order that E be returned to England was manifestly within his discretion. I consider that he took into account all relevant factors. He was in the best place to carry out an assessment of the witnesses and the necessary balancing exercise, assessing what weight to be given to each factor in the welfare assessment. There is no prospect of any appeal court concluding that he was wrong.

In her supplemental skeleton argument, Ms King contended that the judge’s subsequent decision as to the terms of the child arrangements order to be put in place once E returned to this country was defective because it was unsupported by any proper welfare analysis. She submitted that it went well beyond the recommendations of the Cafcass officer made a year previously and the order which followed those recommendations. She described the automatic progression to overnight contact as a significant departure from the existing regime pursuant to that order when there was no evidence that such a progression would be in E’s best interests, nor any indication that the father would be able to make himself available.

In my judgment, however, it was plainly within Judge Scarratt’s discretion, having considered the very positive reports concerning contact his conclusions about the absence of any risk of harm to E, to make an order for the gradual extension of contact in the terms of the order. If further problems arise it will manifestly be open to the parties to return to court, but current thinking about child arrangements order is that it is generally not in the interests of children for proceedings to continue by way of interim orders and regular reviews by the court. The judge concluded in this case that, once E was back in Kent, there should be a period of supervised contact, followed by a period of unsupervised contact and then moving to staying contact. If any problems arise during this progression, a further application to court can be made, but the judge was in my view entitled to proceed in this way, given his clear view as to where the child’s welfare interests lay.

Accordingly, I concluded that there was no prospect of an appeal succeeding in this case. Permission to appeal was therefore refused.

As the order of 15^th September had been stayed, it was necessary to amend the dates provided in the judge’s order. I therefore directed the mother to return E to live in Kent by no later than 4pm on 12 December 2016 and laid down an amended timetable for the resumption of contact, designed to ensure that by Christmas 2016 there was full compliance with the judge’s contact order. Thus I ordered the mother to make E available to spend time with the father (a) for one hour on 15^th November (i.e. the day after the hearing before me) (b) for a day’s unsupervised contact in the last week in November and (c) for a further day’s unsupervised contact on either 13^th or 14^th December. I ordered that, in all other respects, the judge’s child arrangements order should remain in force. In all other respects, Judge Scarratt’s order remained in force. My order also recorded the father’s offer to assist with the payment for the flights for the mother and E to return to Kent in November and December and also to consider whether he could provide any further financial assistance to support the mother’s costs of returning belongings from Northern Ireland to Kent.