RC (A Child)

On 25 September 2018 His Honour Judge Sharpe made an order concerning ‘C’, who was born in 2017. By that order he refused the appellant mother’s application for permission to permanently remove C from the jurisdiction of England and Wales to a country in Africa. He made various other orders which the appellant mother also seeks to appeal.

The appellant mother was represented at first instance by Aidan Vine QC who has represented her in the appeal. The respondent father was represented by Jane Crowley QC in the appeal as he was at first instance.

The order made on 25 September 2018 followed on from a judgment, that was circulated in draft on or about 22 June 2018, and was handed down on 6 July 2018. The order of 6 July extended the time for any appeal such that the 21 days would run from the date of the final order.

On 16 October 2018, the mother filed an appellant’s notice seeking permission to appeal against the order and in particular the following paragraphs.

The grounds of appeal were as follows:

On 2 November 2018 I made an order in which I refused permission to appeal in respect of grounds 1 to 4 and granted permission in respect of grounds 5 to 8. My reasons are set out in that order and were as follows:

On 20 November 2018 the appellant made a request for an oral hearing to reconsider the refusal of permission on ground 4. I directed that that application be heard at the same time as the substantive appeal. At the commencement of the hearing I canvassed with counsel for the appellant and the respondent how that application was to be dealt with and suggested that rather than deal with it as a preliminary issue that each party make their submissions in respect of each of the grounds and I would then give a judgment on all the matters. It appeared to me given the nature of the submissions that were likely to be made in respect of ground 4 that they would take a considerable tranche of the time set aside for the appeal and that it would not be possible to deal with them separately in the one day allowed.

Mr Vine QC filed a skeleton argument in support of the eight numbered grounds. Given the nature of ground 4 his analysis of those matters occupied a significant part of that skeleton argument and indeed the majority of his oral submissions. In ground 4, Mr Vine QC identifies seven specific issues or findings which the judge made which contributed to the overall conclusion that the mother had a manipulative personality and formed a significant component of the conclusion that she would not promote the father-son relationship if permitted to relocate. Mr Vine QC characterised these as the ‘building blocks ‘of which the overall finding was constructed. In respect

Ms Crowley QC, on behalf of the respondent, submitted a skeleton argument on behalf of the respondent together with a litigation chronology. Her skeleton also was devoted in large part to ground 4 of the appeal and contains significant extracts from the judgment which address the relevant findings together with the respondent’s analysis of the building blocks which Mr Vine QC seeks to demolish. On behalf of the father, she identified the findings in the judgment and aspects of the documentary evidence in the bundle which she maintains provided a proper foundation for each of the conclusions on the building blocks that the judge reached. In respect of ground five, Ms Crowley QC submits that the judge had conflicting evidence from the mother as to her financial position in the UK and her ability to provide for herself and the child. He had also heard evidence as to her immigration position and had taken the view that she could have done more to regularise her situation. Ms Crowley QC identifies that the judge did consider the impact upon the mother at various stages and also identified the possible impact on the child as well as the mother’s acceptance that if she were unable to return to Africa she would remain in the UK. Together with his finding that the child ideally needed the shared care of both of his parents this fully justified his rejection of the mother’s application. Ms Crowley QC notes that at the time of the hearing the child was still only six months of age. In respect of grounds 6 – 8, Ms Crowley QC submits that the judge was entitled to determine the child arrangements in the event the mother was deported and that it is implicit in his reasoning that he found the father would be more likely to facilitate contact, that there would be an impact on the child of being separated from his mother. He plainly took into account his conclusion that if the child were allowed to leave with the mother it would terminate the relationship with the father. In particular in relation to ground 7,

FPR 30.12(3) provides that an appeal may be allowed where the decision was wrong or unjust for procedural irregularity.

In Re F (Children) [2016] EWCA Civ 546 Munby P summarised an approach to

Lord Hoffmann also said in Piglowska v Piglowski [1999] 1 WLR 1360, 1372:

“If I may quote what I said in Biogen Inc v Medeva Plc [1997] RPC 1, 45:

‘... [S]pecific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence. His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance … of which time and language do not permit exact expression, but which may play an important part in the judge’s overall evaluation.’

… The exigencies of daily court room life are such that reasons for judgment will always be capable of having been better expressed.”

So far as concerns the appellate approach to matters of evaluation and fact: see Lord Hodge in Royal Bank of Scotland v Carlyle [2015] UKSC 13, 2015 SC (UKSC) 93, paras 21-22:

“21 But deciding the case as if at first instance is not the task assigned to this court or to the Inner House … Lord Reed summarised the relevant law in para 67 of his judgment in Henderson [Henderson v Foxworth Investments Ltd [2014] UKSC 41, [2014] 1 WLR 2600] in these terms:

“It follows that, in the absence of some other identifiable error, such as (without attempting an exhaustive account) a material error of law, or the making of a critical finding of fact which has no basis in the evidence, or a demonstrable misunderstanding of relevant evidence, or a demonstrable failure to consider relevant evidence, an appellate court will interfere with the findings of fact made by a trial judge only if it is satisfied that his decision cannot reasonably be explained or justified.”

See also the Privy Council decision in Chen-v-Ng [2017] UKPC 27:

The most recent and authoritative appellate decision on the approach to permanent overseas relocation cases is Re F (A Child) (International Relocation Case) [2015] EWCA Civ 882 [2017] 1 FLR 979. The material paragraphs of the judgment are 3, 4, 30-35 (Ryder LJ) and 45-52 (McFarlane LJ). Re F together with the earlier authorities of ‘Payne, Re F, K-v-K and Re C (Internal Relocation) makes clear that that whether the applications are configured under s.8 or s.13 Children Act 1989 the following framework applies.

Insofar as it may assist in identifying the relevant issues a court may (but is not obliged to) deploy what may be described as the ‘F, K, C, Payne’ composite. This is no more than an integrated approach to the welfare checklist and the ‘Payne’ guidance/discipline incorporating within the welfare checklist relevant Payne criteria and any other particular features of the individual case which appear relevant. Of course in some cases it may be that one or more particular aspects will emerge as carrying significantly more weight than others – a contour map with high peaks and low valleys; in others the factors may be much more evenly weighed and present a gently undulating landscape. In the former the balance may fall more obviously in one direction if it is dominated by peaks with no valleys in others the peaks may be balanced by the valleys creating a finer balance. In the latter the overall undulations may make the balance a very fine one. Ultimately every case is fact specific. This case is a paradigm example of that.

Mr Vine QC invites me to revisit my earlier refusal of permission on this ground. The decision which the mother challenges is the finding as to the mother’s manipulative personality. This finds expression in the final order in recital 15 which reads:

Those conclusions derived principally from that part of the judgment where the judge addresses the capability of the parents when considering the welfare checklist. In that section, taken together with parts of the judge’s recital of the background, the progress of the litigation and the evidence of the parents can be found the material (evidential and analysis) which led to the conclusions. The judge is highly critical of both of the parents in relation to their criticism of each other; this infecting the whole of their evidence ‘neither parent has demonstrated any ability to moderate or temper their criticisms of each other and neither missed any opportunity to find fault during the course of the hearing.’ The judge also says:

Although it is not part of Mr Vine QC’s criticism of the judgment I note that whilst the judge was highly critical of the father who for instance had suggested that he could not live in Africa because the mother would try to have him murdered; which allegation the judge concluded show the father was either deliberately lying to paint the mother in the worst possible light or unable to distinguish between irrational fear

Mr Vine QC relies upon the Privy Council decision in Chen-v-Ng [2017] UKPC 27 for the proposition that if a judge is to disbelieve a witness on a matter of fact the grounds on which the judge disbelieves her ought to be put to her. The following extracts illustrate I hope the Privy Council’s conclusions.

The Privy Council referred to the well-known passage from Lord Hoffmann’s judgment in Piglowska. They allowed the appeal because the issue on which the appellant was disbelieved was central to the proceedings and the grounds on which he was disbelieved were obvious and had not been put.

Part of Mr Vine QC's criticism (indeed a central part) in respect of the judge in respect of the building blocks was that the mother's evidence in respect of them had not been properly tested in oral evidence and thus the judge ought to have accepted her written case; had he done so several of the building blocks could not have been concluded against the mother as they were. As the Privy Council pointed out in Chen in an ideal world all of the contested factual matters will be tested in oral evidence and will be separately identified and adjudicated upon by the trial judge. However we do not operate within an ideal world but a world in which the court is mandated to deal with matters proportionately. This inevitably means that the parties accept that the judge will not be able to explore every contested matter of fact. In this case both parties wanted an early determination of the applications. The mother not only had an application for leave to remove but also challenged the jurisdiction of the court to make any orders her case being that the child was habitually resident in Africa, and that the courts of that country should conduct the welfare enquiry. As both Mr Vine QC and Ms Crowley QC accepted the time estimate for such issues to be fully explored was far in excess of two days. However both parties took the view in January 2018 that they did not want the case pushed back many months in order to secure that sort of time estimate. The mother therefore has to accept that her ability to have all of the evidence tested orally and the depth of the enquiry that His Honour Judge Sharpe would be able to undertake into the facts was necessarily far more constrained than would have been possible in a four or five-day hearing. The courts are now accustomed to more abbreviated hearings, to assessing documentary evidence and dealing with disputes of fact in a more summary way. Provided that the court is satisfied that justice can be done and that an appropriate welfare determination can be achieved it is perfectly proper for the court to determine factual matters with limited exploration of contested issues or largely on the papers. This is particularly so if the parties invite the court so to do or do not suggest to the court that the hearing should be adjourned in order to enable a fuller enquiry to be undertaken.

The manipulation finding was of course made up of a number of building blocks and I do not accept Mr Vine QC’s submission that in the absence of oral testing of each, the judge ought to have accepted the mother’s contentions. Firstly in respect of each aspect of the building blocks I do not consider that it would have been proportionate to fully explore each but in any event those building blocks are selections from a far wider landscape of factual issues that the judge was considering. The issue of whether the mother was manipulative and hostile to the father having a relationship with the child was a central issue and was covered in the evidence including the Cafcass report [D25xiv] [E27iv] [E29,7.2]. It was a focus of Ms Crowley QC is closing submissions [B149, 13], [B151, 19], [B153]. There were several examples which might also have been selected. Were each to be fully explored in oral evidence? This would have been completely impossible within the timeframe that the judge was confronted with at the

The manipulation finding was not constructed solely of the building blocks but also consisted of the more general findings that the judge made in respect of the mother's credibility and attitude to the father. It inevitably also incorporates other evidence and impressions created from reading the evidence, seeing the parties give oral evidence, being exposed to their approaches in the interim hearings which cannot be expressed in a judgment but comprise the penumbra which surrounds it and which appellate courts have long recognised as being one of the unique advantages that a trial judge has over the appellate court particularly where the judge has case managed the applications to the final hearing.

In respect of the particular ‘building blocks’ that Mr Vine QC relies upon I would observe as follows:

To these particular building blocks that Mr Vine QC attacks must also of course be added the unchallenged finding that the mother had applied for a passport for the child without telling the father she had done so and that he only discovered this when his mother unwittingly opened the envelope containing the passport when it arrived.

I therefore see no reason to depart from my initial decision to refuse permission to appeal. Despite Mr Vine QC's valiant efforts to persuade me that the judge’s approach to the building blocks of which the manipulation finding was constructed was wrong, I do not consider that he has established this ground. Like a Jenga tower even if he is right in respect of one or more of the building bricks and they must be removed the construction may still remain intact. The conclusion that the mother had a manipulative personality and was hostile to the father’s relationship to the child was a conclusion that the judge was entitled to come to in all the circumstances and having regard to the oral evidence he had heard and the written documentation he had considered. The individual building blocks were in my view conclusions the judge was individually entitled to reach on the evidence. Even if one or more of them were to fall away, the remaining building blocks taken together with the other evidence the judge heard, his decisions on interim contact his conclusions on the mother’s highly critical approach to the father and his ability to care for the child all would have justified the conclusion that the judge reached in any event. In the context of the hearing, configured as it was these findings were open to the judge to make. I do not consider this to be a Chen case where the manipulation conclusion hung on one or two particular points not adequately addressed in the evidence. There was a far greater constellation of material on which the finding is based and it is unchallengeable. I therefore refuse permission to appeal on this ground.

The issue of central importance for the mother in this appeal is covered in ground five and that is her challenge to the judge’s refusal of her application for permission to remove the child permanently from the jurisdiction.

The challenge to this decision centres on His Honour Judge Sharpe’s evaluation of the difficulties the mother would face living in the UK both as a matter of immigration status and means/practicality and in particular the impact on the child of requiring her so to do. Mr Vine QC argues that the judge failed to consider sufficiently the difficulties the mother faced and the judge omitted to consider sufficiently the impact on the child of requiring her to remain in Wales

His Honour Judge Sharpe set out the correct approach in law at paragraphs 100 to 103. He referred to the main authority (Re F) and he correctly identified the status of the Payne guidance. He noted that the evaluation of the welfare of the child was to be undertaken not only by application of the welfare checklist but through the undertaking of a holistic balancing exercise whereby competing proposals were considered on their merits with their various positive and negative aspects analysed then looked at as against each other before then considering the proportionality of the proposal. He noted that no priority is to be given to any particular option or any particular proposer. He also reminded himself of section 1 (2A) Children Act 1980. Mr Vine QC does not criticise the judge’s summary of the law. In oral submissions he reminded me of what Lord Justice McFarlane (now the president of the family division) said in Re F. There he identified that a holistic welfare analysis might in some cases be short and very straightforward (where a contact handover was to take place) but that in international relocation cases the factors that must be given due consideration and appropriate weight may be such as to require an analysis of some sophistication and complexity. Mr Vine QC submitted that the analysis undertaken by His Honour Judge Sharpe did not demonstrate the sophistication and complexity that the unusual features of this case required.

The President’s comments about the sophistication and complexity of the analysis do not require a complete rehearsal of the evidence heard and all of the submissions made to the judge leading to an argument by argument determination of every issue. They require that a judge considers the relevant welfare checklist factors as they emerge on the facts of that particular case. The prominence given to particular factors is a matter for the trial judge. The extent to which the judge analyses evidence earlier set out is also a matter for the judge. In looking at the sophistication and complexity of the analysis undertaken an appellate court must also bear in mind not only the Piglowska guidance but must look at the circumstances in which the judgment was delivered. It is reasonable to expect that a judgment delivered at the conclusion of a five-day case, where the judge has had a day or two days to consider and prepare his judgment, will contain a more detailed analysis than a judgment following a case given a time estimate of two days. Provided the material factors are evaluated a more attenuated judgment and analysis is not only acceptable but is to be expected in such a situation.

In looking at the judgment in respect of this issue one cannot compartmentalise the judge’s conclusions. The judgment has to be read as a whole considering the evidence which was relevant both to the leave to remove but also to the jurisdictional issue. Conclusions or analysis conducted in respect of one issue can be imported into another without repeating it or even expressly referring back to it. The judgment must be taken in its totality. A narrow textual analysis or compartmentalisation is likely to distort the overall effect.

Mr Vine QC suggested that the brevity of the analysis from paragraphs 131 -150 is simply too short to do justice to the complexities of this case. He is right that this was an unusual case. Neither the mother or the father had planned on settling in the UK. Both had planned on settling in the Middle East. The father had family connections in Wales and in England but had not made his life here for some time. The mother was here essentially only to give birth to the child and has no friends family or connections with this jurisdiction. The application came on for hearing when the child was only six months old and as Ms Crowley QC pointed out this was a very different situation to a child who had developed an attachment to both his parents. The mother’s immigration position and the prohibition on her working or accessing public funds plainly made her situation (whilst that persisted) more difficult. The father and mother were both highly critical of each other and the prospect of them working together successfully even within this jurisdiction were not good.

His Honour Judge Sharpe undertook an analysis of the welfare checklist factors before turning to a discussion in which he compared the mother’s proposal with the father’s proposal. The fact that he focused on particular issues and gave particular weight to them, for instance his conclusions on the mother’s likely attitude to the father-son relationship does not make the exercise a linear exercise or indicate that he failed to give sufficient weight to particular matters. On the facts of any particular case certain relevant factors may assume more significance and deserve more weight. In others the factors may all be more evenly balanced. In this case based on his finding as to the mother’s attitude to the father-son relationship it was bound to assume considerable prominence.

The judge did not adopt a linear approach of considering the mother’s proposal and ruling that out being left by default then with the father’s option.

Mr Vine QC is right in saying that the judge’s assessment of the impact on the mother of having to remain living in the jurisdiction was brief. In his analysis of the welfare checklist factors under the likely effect of any change in circumstances the judge said that the refusal of the mother’s application is likely to be deeply upsetting for the mother being contrary to what she has been determined to achieve. In his analysis he identifies that each would have to turn their minds to securing work and that the mother was under a disability because of her immigration status. Mr Vine QC is right in identifying that even if the mother were to blame for her inability to work or access public funds and the consequent effect that was likely to have on her this was not about blame but rather about the effect on the mother and the child of the objective reality that she would face. He submits that the tenor of the judgment is to focus more on blame of the mother than on the likely impact on the child. I do not agree that that is the overall effect of the judgment. Plainly the judge thought that the mother was able to support herself notwithstanding her Visa limitations and considered that the regularisation of her Visa position would improve her position. Thus, if she had been able to manage for the six months since the separation he was perfectly entitled to conclude that she would be able to manage going forwards. Earlier in the rehearsal of the evidence the judge had identified that the mother’s accommodation and finances were a source of concern to her. However, this was tempered by the fact that he concluded she had withdrawn her application for assistance with housing and finances from the local authority; which she would have been entitled to notwithstanding her Visa conditions because she was caring for the child. He also had referred to the fact that she had been able to provide housing for herself albeit there had been no evidence of funds passing through the bank account she had produced evidence of. There was of course evidence in her third witness statement that set out the funds that the trust

True it is that His Honour Judge Sharpe could have set out in more detail in his judgment aspects of the evidence he had read and heard in respect of the likely impact on the mother. Equally he could have set out more evidence for instance from the Cafcass officer about her evaluation of the mother, her motivation and behaviour. But one has to return to the context of this judgment. It was given after a two-day case in which a host of complex issues fell to be considered. The mother and father had both urged the judge to deal with them in February rather than later in the year at a longer hearing. At the conclusion of the two-day hearing the parties had only just completed the evidence. Written submissions had to be provided to the judge the judgment then had to be considered. In the judgment not only did the judge have to address the issue of habitual residence dealing with both the law and the facts, but also had to deal then with the child arrangements applications.

Across a 35-page judgment running to some 157 paragraphs he did that. Within that judgment he identified the relevant factors for determining the mother’s relocation application and the father’s shared live with application. He considered the respective merits of each of those proposals and within that the relevant factors he was required to consider. Some aspects were shorter some aspects were longer. I do not consider the brevity of his analysis in relation to the difficulties the mother would face living in this jurisdiction undermines the overall comprehensive and holistic evaluation that he undertook.

The factors which ultimately appeared to him to be of most weight were the child’s age and the need for him to develop a relationship with each of his parents which was only possible in this jurisdiction. In addition he had concluded that the mother was not likely to promote the relationship if she were permitted to relocate. These factors in many cases would outweigh the likely impact on the applicant of the refusal of a leave to remove application. Having conducted the exercise that he did the judge was perfectly entitled to reach the conclusion that he did and I do not consider that the assertion that he failed to consider sufficiently the difficulties for the mother to live in the UK and the impact on the child of requiring her to do so is made out. Given the two factors identified above it would have required an impact on the mother and consequent impact on the child of a very considerable magnitude to have tipped the scales the other way and there was no evidence before the judge which suggested that sort of impact. I therefore do not consider that the judge failed to give sufficient weight to the difficulties the mother would face living in the UK nor did he fail to consider sufficiently the impact on the child of requiring her to do so. I therefore dismiss the appeal in respect of ground five.

All of these relate to the default order that His Honour Judge Sharpe made to deal with the possibility that the mother would either be removed or have to leave the UK due to her immigration position. It was not an option which either party pressed in their closing submissions or which was centre stage. The mother contended for permission to remove the child to Africa and for there to be international contact. The father sought a shared care arrangement with both parents and child remaining in Wales. His Honour Judge Sharpe recognised the possibility of the mother being forced to leave the UK but it was not an option which either party urged him to give much attention to. The written closing submissions of the parties both understandably focus on their principal cases.

In the judgment at paragraph 151 the judge says:

Unusually for a case where this issue was in play there was no expert immigration advice before the court. Technically such advice may not be a matter of part 25 expertise, it relating to a matter of English law but that nicety aside it is relatively standard for that to be sought. In this case the issue had not been addressed prior to Mr Vine QC’s arrival on the scene for the final hearing in January 2018 and when that was adjourned an application was made to the Home Office to clarify the mother’s immigration status.

In any event the position of the mother being forced to leave the UK was very much an unknown quantity. The courts are well aware that (unsatisfactory though it may be) immigration overstayers may remain in the jurisdiction for many years. Ms Crowley QC said that His Honour Judge Sharpe had been concerned as to what the position

More importantly though, was His Honour Judge Sharpe equipped with the evidence and submissions to enable this issue to be addressed? Plainly it potentially would have medium to long term welfare consequences for the child. If it were to come to pass a default order might settle the child arrangements for the whole of the child’s minority. Would the mother be able to litigate child arrangements from Africa if she were unable to enter the jurisdiction? That being so it was a welfare decision of very considerable importance. To reach a decision on what was in the child’s welfare interests were that eventuality to come to pass required a further holistic examination of the competing options; on the one hand the child remaining in England with his father and having contact with his mother, on the other the child returning with his mother to Africa and having contact with his father.

It is self-evident from the judgment that this sort of side-by-side evaluation which is mandated by the authorities on relocation did not take place. The side-by-side evaluation in respect of the mother and father and child all remaining in England or the child moving to Africa with the mother did take place as is set out above in my consideration of ground five.

However, the same process was not gone through by His Honour Judge Sharpe in this eventuality. There is no analysis of the impact on the child of being separated from his mother. There is no analysis of the viability of the spending time with arrangements whether from a cost or entry to the UK perspective. There is no analysis of the risk that the father might undermine the relationship between the child and the mother.

It is hard to avoid the conclusion that in this respect the judge did lapse into a linear exercise. Having earlier ruled out the child moving to live in Africa with the mother in favour of him remaining in this country with both his father and his mother the only real explanation for the conclusion that the judge summarily reached at paragraph 154 must be that having ruled out the child moving to Africa in his earlier holistic evaluation of the two competing options he imported that ruling out into his determination of the default position if the mother were to be deported to Africa. That I do not think was permissible because different issues fell to be considered in that eventuality and an entirely separate holistic evaluation of the option of the child remaining in Wales with his father and having contact with his mother either in the UK or in Africa as against the option of the child moving to Africa with his mother and having contact with his father in Africa the UK or elsewhere needed to be considered. Part of that evaluation, as I’ve set out above would have required a conclusion on the likelihood of the father promoting the mother-child relationship. Whilst the judge made observations on this he did not draw the threads together into a conclusion as he did for the mother. He had not had to in the earlier holistic evaluation but it would have been a necessary component of this.

Although no doubt His Honour Judge Sharpe considered and determined the default option out of a desire to tie up all of the loose ends and to provide a clear way ahead for the child in this respect I conclude that in this determination he did fall into error and that he did not undertake the holistic welfare evaluation of some complexity in order to determine where the child is paramount welfare lay. Had it been done it may have resulted in the same outcome but equally it might not. In particular had the parties’ and the judge’s focus been on those two competing options I would wonder whether merely embarking on the process of analysing it would have led to the conclusion that the material was not available and perhaps the time was not right to undertake it at all.

For those reasons I agree with Mr Vine QC and conclude that ground 6,7 and 8 are established and I would allow the appeal to that extent and set aside the default provision orders.

For the reasons set out above I conclude that:

The parties invited me to substitute my own decision if I were to allow the appeal. In respect of ground 6, 7 and 8, I do not consider that the material was before the court to enable me to determine where the child’s paramount welfare lies in the event of the mother’s deportation.

In the event that the mother is removed suddenly for immigration related reasons the existing order provides for the child to live with the father for short-term periods under the shared live with order. The arrangements for the child in the medium to long term will need to be determined by the court on the basis of the evidence as it then appears. In the event that the mother receives notification that she is to be removed for immigration related reasons the mother or the father must restore the case for further consideration.

Plainly it would be better for all concerned if the mother’s immigration status were clarified. The clear conclusion of His Honour Judge Sharpe was that this child needed both of his parents in his life. Equally it is clear (albeit the magnitude has not been finally determined) that there would be a risk to the maintenance of the mother/child relationship were she to be deported. That clearly would have article 8 implications for the child. How the parties choose to deal with the issue in terms of seeking a court order will have an interface with the progress made on clarification of the mother’s immigration position. However, I cannot determine that within the confines of this appeal. At the moment, I’m not sure it could be dealt with at first instance. Further clarity probably needs to be achieved in a number of areas in order to properly determine that issue.

That is my judgment.