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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> C-G (Children), Re [2001] EWCA Civ 1867 (23 November 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/1867.html Cite as: [2001] EWCA Civ 1867

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE BRIGHTON COUNTY COURT
(HIS HONOUR JUDGE HAYWARD)

		Royal Courts of Justice Strand London WC2A 2LL Friday 23 November 2001

1. LORD JUSTICE THORPE: Mrs McNab appears to renew an application for permission that was provisionally refused on paper on 18 October 2001. She attacks the order of His Honour Judge Hayward, sitting in the Brighton County Court, refusing the mother's application to relocate to her home town in Spain following the breakdown of her marriage to the English father.
2. These cases are always difficult and, because of their relative frequency, it is impossible to confine them within the High Court which ordinarily handles international business. Accordingly, guidelines from this court as to how circuit judges should decide these cases are of great importance. The classic guidelines were set down in 1970 by this court in what seems to me, with hindsight, to have been a remarkably progressive provision. That may explain why the authority of Poel v Poel [1970] 1 WLR 1469 has endured beyond a human generation. The issue whether the principle established by Poel v Poel could withstand the advent of the Human Rights Act was reviewed by this court in Payne v Payne [2001] 1 FLR 1052.
3. Judge Hayward directed himself by reference to that authority so there cannot be any doubt that he had the right principles in mind. He refused the application, which is an unusual outcome for an application to relocate, particularly where the application has been supported by the court welfare officer. Therefore, his reasoning demands the closest scrutiny.
4. Mrs McNab, who has argued this application lucidly and courageously, contends that the judge has simply got the case wrong. He has underestimated the impact of refusal on the mother, he has paid insufficient regard to the wishes of the elder child and, crucially, he has quite unjustly ascribed to the mother the motive of cutting the father out of the children's lives by returning to her home town. Those submissions are extremely hard to substantiate against a judgment which on its face is comprehensive and measured. It concludes with a balancing exercise in which the judge brings in, on the one hand the impact of refusal on the mother and the ordinary proposition that an unhappy mother provides poor parenting, against his assessment that a return to Spain would cost them a continuing relationship with the father and with his extended family, coupled with the assessment that refusal would have no serious impact on the mother because, as the judge reasons, this is not a mother who came here in order to marry, but one who had established herself here for a considerable number of years before the marriage.
5. As I said in my brief written reasons, I regard the mother as having been unfortunate in the outcome. I am of the opinion that another judge sitting in that court might easily have come to the opposite conclusion and granted her application. But that would be no legitimate basis for granting an application for permission. The discretion rests in the judge at trial as does the difficult responsibility of making assessments of adult motivation and adult resilience.
6. I remain unmoved by Mrs McNab's efforts and would myself refuse the renewed application. I would add that, as a matter of reality, it seems to me that the mother's prospects of achieving a return, which has obvious realism, would be better served by a renewed application in the court of trial after a decent interval rather than pursuing the right of appeal which has no realistic prospect of success. Obviously, within a family the underlying dynamics are never static and a judge will have to look at the position afresh.
7. It may be that after a year or two in the lives of these children, the father himself would, with the passage of time, come to recognise that the time has come for the relocation to take place. If anxiety persists over contact after relocation, there is every likelihood that the embrionic Brussels Regulation II BIS this will by then be in force so that the reciprocal enforcement of any contact orders between England and Spain would be as straightforward and as uncomplicated as the enforcement of orders made in the Brighton County Court with both parents living in the vicinity.
8. This application fails.
9. MR JUSTICE HARRISON: I agree.
Order: Application refused.