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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 >> T (A Child), Re [2002] EWCA Civ 732 (9 May 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/732.html Cite as: [2002] EWCA Civ 732

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE MIDDLESBOROUGH COUNTY COURT
(HHJ MICHAEL TAYLOR)

		Royal Courts of Justice Strand London WC2 Thursday, 9th May 2002

1. LORD JUSTICE THORPE: Mr T applies for permission to appeal an order made by HHJ Michael Taylor, sitting in the Middlesborough County Court on 18th January 2002.
2. The proceedings were between Mr T and his former wife, Antoinette. They had married in March 1991 and divorced in the year 2000. During that period a son was born to them, Shaun, in March 1998, who is now, therefore, four years of age. After his birth the relationship between the couple appears to have deteriorated. There were periods of separation and in such circumstances it is easy to understand the magnetic pull for Antoinette of Limerick, her home town, an area where her birth family are largely concentrated.
3. Mr T tells me that, in the year 2000, she abducted Shaun to the Republic. Hague Convention proceedings were issued, leading to several appearances in the High Court in Dublin. Under pressure of those proceedings Antoinette made a voluntary return with Shaun and thereafter there were proceedings in Middlesborough County Court leading to orders for contact and residence. There was a risk assessment carried out by a local social worker and welfare reports prepared by a welfare officer (now of course a family court reporter), Mrs Platt. Her last report was dated 1st October 2001.
4. Now, as a parent who returned to this jurisdiction under the pressure of Hague Convention proceedings, Antoinette's application to relocate to the Republic with Shaun was perfectly predictable. It is pretty clear to me that she must have issued some such application, although none appears in the bundle of documents meticulously put together by Mr T for the purposes of this application; nor is there any reference to the application in Judge Taylor's short judgment. The first mention appears in paragraph 6, where he simply says:

"The father opposes the application."

5. These applications to relocate are always difficult for trial judges to determine, difficult in the sense that they are usually finely balanced, difficult in the sense that the applicant's natural desire to return to the country of origin will inevitably impact adversely on the respondent's arrangements for contact. This is just such a case. Mr T was having frequent and good quality contact to his son locally. The importance of that had been recognised by the welfare officer and by the judge of the court, Judge Spittle, in earlier orders. The possibility of maintaining anything like the same relationship between father and child post relocation was obviously zero.
6. Judge Taylor had this fundamental conflict clearly in mind. He recognised the strength of the relationship between Shaun and his mother. As he said in paragraph 3:

"He is deeply attached to his mum. The idea that because he spends long periods of time at nursery during the day does not detract from the strength of the bond between mother and young child; it is an extremely deep and extremely worthwhile relationship."

7. He equally recognised the value of contact. In paragraph 4 he said:

"However, there has been regular contact with father and there is no disputing the fact that the boy enjoys going to see his father."

8. He acknowledged the basic conflict in paragraph 8 of his judgment, when he said:

"The court has to consider applications like this fortunately not very often, but every time they do it is extremely distressing because the reality of a move out of the jurisdiction does mean that relationships are never going to be the same again."

9. He then looked to the mother's intentions and plans and found that they were properly motived and that there had been proper forethought and planning. He considered the timing of her intended departure, recognising that she had reasonably accelerated her plan in order to provide for a recent development, namely that her mother had deteriorated in her health and had recently been admitted to a hospice. He went on to apply such provisions as he could to maintain the relationship between Mr T and his son. He said that there must be at least one visit a year to Cleveland and that the father should have at least two visits to the Republic. He also provided for regular telephone contact and for written contact.
10. This is a brief judgment and not one that makes any reference to authority. But this is an experienced circuit judge, who is well versed in this area of the law. It is obvious to me from the questions that he asked himself that he had in mind the recent decision of this court, in which the validity of the test formulated in 1970 in the case of Poel v Poel was reevaluated and confirmed. There is in my judgment no indication of judicial misdirection or error of law.
11. There remains only the discretionary balance on a finding of fact, which is of course the primary function of the judge in the court of trial. Judge Taylor might have decided that the maintenance of regular contact between Shaun and his father outweighed the mother's understandable desire to return home to her family. He reached the other decision. In my judgment there is no realistic prospect that this court would interfere with that decision, were this case admitted to appellate review.
12. I need add only two footnotes. The first is that this application is approximately 14 days out of time. That is not a substantial consideration in my judgment. Mr T has explained the circumstances in which he first invoked the aid of the local County Court, rather than coming to this court, and thus lost valuable time.
13. The other footnote is that, from the papers submitted, there was at least a suggestion that the wife, having achieved the advantage of relocation which she sought, was ignoring her obligation to collaborate in arrangements for contact. Accordingly, I was ready to advise Mr T to invoke the aid of the Central Authority here in Chancery Lane, to ensure that the order of the Middlesborough County Court is registered and enforced through the courts of the Republic. However, Mr T has handed in a letter from Antoinette, which he received on 14th April, in which she makes a reasoned response to his proposals for contact.
14. The order of the Middlesborough County Court does not contain any machinery for the negotiation of what dates are mutually convenient to the parents and in the interests of Shaun. The order purports a reservation of jurisdiction to Middlesborough. If dates cannot be agreed, then there can initially be a reference to the Middlesborough County Court, when the judge should be asked to elaborate the order by the introduction of some sort of machinery to ensure that, if the dates are not mutually agreed, then they are to be determined by some other process. At the moment there is this void in the existing order.
15. That said, I must apply to this application the consistent measure that is applied to all applications for permission in this field of law. The application does not satisfy the rigorous test which this court applies and I must therefore refuse it. However, I hope that the exchanges that I have had with Mr T this morning will be of some value to him in managing the future of contact negotiation and particularly that he will bear in mind the facilities of the Central Authority, who are here to assist parents like Mr T who have to wrestle with contact arrangements across borders between member states.