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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 >> B (A Child), Re [2002] EWCA Civ 1307 (24 July 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/1307.html Cite as: [2002] EWCA Civ 1307

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE COVENTRY COUNTY COURT
(Her Honour Judge Fisher)

		The Royal Courts of Justice Strand London Wednesday 24th July, 2002

1. LORD JUSTICE THORPE: Judge Fisher, sitting in the Coventry County Court, had contested applications before her in January 2002. They concerned a little boy, H, who will be three years tomorrow and since the separation of his parents he has been in the care of his mother.
2. The parties had married in 1991 and the petition for dissolution was filed in October 2000. The applications before the judge in January were the father's application for a residence order and the mother's application for permission to take H from the jurisdiction permanently to live in Spain.
3. The order that the judge made has been inserted into this massive bundle as pages 18A and B. It reads as follows:

"1. ... [H] shall reside with the Respondent Mother ...

2. Leave be granted to remove [H] from the jurisdiction of the Court.

3. The Applicant Father's application [for a residence order] is dismissed.

4. The Respondent Mother shall allow contact between the Applicant Father and the child, such contact to include indirect contact and direct contact.

5. The Applicant Father's solicitor do lodge an agreed contact schedule with the Court or request a short appointment in the absence of agreement."

4. The contact schedule was not agreed and the short appointment could not be convened until 16th April, on which date the judge sanctioned a contact schedule which shows a pattern of contact through this year, 2002. Mr B, who has appeared this morning in person, has told us that mother has adhered to this contact schedule without difficulty or default. He has had H over the Easter holiday. He has had H again for a visit in July, and fortunately will have H over this coming weekend following his birthday.
5. That then is the outcome in the County Court. This court was first involved on receipt of a notice seeking permission to appeal dated 5th February 2002. The part of the order appealed is stated, in answer to the question, "If only part of an order is appealed, write out that part", and the answer to that is:

"Whereby leave was granted to the respondent mother to remove [H] ... permanently out of the jurisdiction."

6. That certainly is the aspect of the case upon which Wall J concentrated when he heard the father as a litigant in person in support of his application on 17th June. Why the father's application was not listed for hearing sooner I do not know. But we know that Wall J on that occasion made an order adjourning the application for permission, for an oral hearing on notice with appeal to follow if permission were granted.
7. We know the reason for the judge making that disposal. He cited from the judgment below, taking up the judge's words when she turned to direct herself as to the relevant authorities governing applications for leave to relocate, and then going on to explain her reasons for acceding. Wall J said this:

"It is, in my judgment, open to argument on an application for permission to appeal that, although this was an extempore judgment by an experienced circuit judge, that analysis of the authorities and that investigation of the circumstances in which the mother and H were to live abroad was not sufficient."

8. In preparation for this hearing we have received from Mr B a very helpful summary of his intended submission. This morning he has, again most helpfully, defined the errors of fact into which he says the judge fell, and he has advanced his essential argument that the judge either misunderstood or misapplied the test relatively recently defined by this court in the case of Payne v Payne.
9. Without mincing my words, I was not impressed by Mr B's complaints of the judge's fact-finding exercise. It seemed to me that a number of his complaints were really only quibbles with the judge's phraseology. I am perfectly satisfied, having heard Mr B elaborate this area of his case, that the judge had a sufficient and clear understanding of the essential facts to arrive at a proper application of the appropriate legal test.
10. Where I think the judge is open to serious criticism is in her too perfunctory recitation of what the authorities require of her. She simply said:

"I have been referred to the relevant authorities, ... The basic principle is still that the welfare of the child is the paramount consideration."

11. Whilst it is true that welfare is always paramount, in these cases where a parent seeks permission to relocate, the essential task of the judge is well defined in Payne v Payne. First, the judge has to satisfy himself as to the applicant's motives and then as to the applicant's practical proposals. Assuming the applicant crosses both those fences, then there remains for the judge the essential discretionary balancing exercise. On the one hand weighing the impact on the primary carer of refusal against the detriment or disadvantage to the child in a diminution of the time spent with the opposing parent, and consequently upon the relationship between the child and the opposing parent.
12. All this judge said, having referred to authority, is this:

"The court is aware of the reasons why [mother] says, if leave be granted, she would like to live, in the short and medium term, in Spain with Mr Ballantyne, although it is an important consideration that they will retain a property in Leamington Spa, in any event, which could be used as an important base in this country.

If the court were to refuse leave to remove H from the jurisdiction, then I accept the mother's evidence that she would live here in England. But, of course, it would inevitably be the case that the current routines for H would be disrupted and the family unit which has existed now for a little while -- that of mother, Mr Ballantyne and [H] -- would be disrupted."

13. I can well understand why Wall J felt that there were deficiencies in that passage which justified the investigation of the full court. It is regrettable that the judge did not more fully and more specifically put into the one scale what would be the impact on the capacity of the mother as the primary carer to give of her best to her child, and set in the other scale the detriment to H of diminution in his relationship with his father stemming from a loss of proximity.
14. So certainly it can be argued that the judge has failed to carry out sufficiently, or sufficiently fully, the essential task and that it would be open to his court to set aside the order and to remit the case to the judge, with a direction that she reconsider the matter more fully and more fully apply the analysis that the authorities require. But that would, in my judgment, be a most impractical course to adopt. The reality is that no application for a stay was addressed following the grant of permission on 22nd January. We are told that within days thereafter the mother and H left. The new regime has been established. Contact arrangements have been settled and they are being implemented. Even were the matter remitted, it is transparently clear from the judgment that the judge founded herself essentially on her assessment of the differing qualities of the mother and father, in the assessment of which she was aided and guided by the view of the Children and Family Reporter. In this area the judge always exercises a wide discretion. It is transparently obvious to me that were the case remitted to the judge to reconsider the exercise more elaborately, she would manifestly arrive at the same conclusion. So remission would be vain and pointless.
15. For all those reasons, I would myself refuse this application for permission.
16. LORD JUSTICE KAY: I agree.
ORDER: Application for permission to appeal refused. (Order not part of approved judgment)