Family Law Hub

B (Children) [2012] EWCA Civ 367

  • Case No: B4/2011/3364 + AB

    Neutral Citation Number: [2012] EWCA Civ 367




    Royal Courts of Justice

    Strand, London, WC2A 2LL

    Date: Wednesday, 7 March 2012





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    IN THE MATTER OF B (Children)

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    (DAR Transcript of

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    Mr Nicholas Power (instructed by Alison Barnes) appeared on behalf of the Appellant mother.

    The Respondent father appeared in person.

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    (As Approved by the Court)

    Crown Copyright (c)Mr Justice Ryder:

    1. I make the usual confidentiality direction relating to the names of the adults and the children concerned.

    2. On 20 October 2011 Mr Recorder Bradshaw refused mother's application for a specific issue order relating to schooling of two boys: G, who is now nine years old and his younger brother D, who is five rising six years of age.

    3. The children's mother, who is the appellant before this court, is BJB, and their father is MAB. They are both serving police officers in Yorkshire.

    4. There is an appellant's notice of 30 December 2011 and an undated respondent's notice filed by the father in which he seeks to have the decision of the court below affirmed, and there is an application to adduce further evidence before us.

    5. The hearing last October was precipitated by mother moving away from the village where father lived and, subsequent to the order, father has also moved away, so that in very approximate terms they both live an equal distance from the existing school attended by both boys. Mother's application is to change the school which the boys attend. Permission to appeal was granted by Sir Mark Potter on 26 January 2012 on the basis of paper submissions in a supplemental skeleton argument prepared by counsel for mother. That skeleton conceded that the application is out of time and sets out why it is said that Recorder Bradshaw's order is plainly wrong.

    6. In summary, there are four reasons relied on:

    1) The impact on each of the children of the proposed change in schooling is not analysed.

    2) The impact on the children by reason of the impact on the mother of refusing the application is not analysed.

    3) In so far as the judge relied on written evidence from G's school to the effect that G could cope with change, he failed to follow that analysis through to his conclusion.

    4) The test is corrupted from best interest to whether a change in schooling is necessary.

    7. Taken on its face, it would be surprising if any of the reasons relied upon would ordinarily be sufficient to disturb the exercise of a trial judge's discretion where that judge has heard and evaluated the evidence of the parents and has read the written materials provided, as this judge clearly did. It is clear, however, that the single judge identified a problem and for the assistance of the parties I set this out as follows. Nowhere in the rather discursive narrative of the judge was an analysis conducted of the key issue in the case, namely the effect on each child of the change proposed. That may be because the evidence of the parents was adult focused and concentrated on the children from their own very different perspectives in that each parent looks at the respective advantage and disadvantage of how many days they are responsible for collecting the children from school. The need for that analysis has to be seen in the context that these two parents share a residence order in respect of the boys.

    8. In what is an extraordinary and not necessarily positive development of the concept of shared parental responsibility and the jurisprudence which in certain circumstances supports such orders, the parents have agreed a rotating ten week pattern of living arrangements for the boys which entails the use of a spreadsheet to determine with which parent each boy is living from day to day. There is not one single identifiable day of the week on which either parent consistently cares for the boys. The pattern is designed around father's work shifts and, to a much more limited extent, around the work requirements of the mother. From the perspective of the judicial observer, it is simply impossible to understand what routine, stability or security each boy enjoys. More pertinently, there is no evidence about that before this court. That is no context on which this court can understand what a welfare determination may have been based upon.

    9. The shared residence arrangement is not, however, before this court for consideration and it has been in place for some time. But the absence of any analysis as to the effect of the change on either boy is no doubt influenced by the lack of any knowledge about the way the children live and what their wishes and feelings might be. That lack of persuasive evidence was probably the consequence of poor case management decisions undertaken before the trial judge made his determination, in that the key issue was not identified and Cafcass were not directed to undertake a section 7 report which ought to have looked at three limited welfare issues for the court's assistance, namely (1) the effect of change on each of the boys, (2) any risk of harm there may be arising out of their living arrangements and/or the changes proposed and, critically, (3) the wishes and feelings of both of them.

    10. Although the judge was right to point out that the boys should not be placed in a position where they are effectively making the decision for their parents or perceive themselves to be so, that is quite different from analysing the effect of change and any risk of harm by knowing what the voice of the child might be. First instance courts regularly listen carefully to the wishes and feelings of eight year olds in relation to abduction and international residence disputes. Not to listen to children in the domestic context is simply contrary to Supreme Court authority.

    11. This case would have benefited from being conducted in accordance with Practice Direction 12B, the Revised Private Law Programme. That Practice Direction is there to assist. It highlights the proper and proportionate involvement of children in the decision making process by the ascertainment of their wishes and feelings although it has to be said that that is an issue which is not pursued on behalf of the mother in the notice of appeal that is before us. Nevertheless, the Practice Direction emphasises the identification of issues by reference to section 1(3) of the 1989 Act and the use of the welfare factors, which should have been taken through to its logical conclusion.

    12. When the judge was asked to provide further and better particulars of his judgment in contemplation of this appeal and in accordance with the authorities, he should not have declined. It may be that had he provided further and better particulars, this appeal would not have been necessary: see for example Re A & Others (Children) (Fact Finding -- Inadequate Reasons) [2011] EWCA Civ 1205.

    13. As matters now stand the facts have changed, the options remain at large and if either mother or father seek to pursue a change of schooling they will need the benefit of a defined section 7 report from Cafcass. That said, whatever the technical merits of an appeal the fact remains that the continuation of this litigation is damaging to the boys. It has the prospect of being extended at least until the older boy moves to a new upper school in 18 months' time and it must have implications for their settled arrangements as to residence.

    14. Having considered the matter carefully, and nothing I have said or will say should be taken to indicate that mother might succeed in any further application she pursues, I have come to the following conclusion: this is a case in which the learned Recorder will have heard evidence as to two of the aspects that I have highlighted: both the effect of change proposed upon each of the two boys and their wishes and feelings. In so far as he has heard that evidence, it would be of great assistance to the parties and to this court for further and better particulars of the reasons set out in his judgment to be provided.

    15. For my part, I would adjourn this appeal and make a direction that the Recorder provide those further and better reasons directed to those two heads in order that this court can reconvene before the Easter vacation, in other words within 14 days of today, so that this court might resit before the Easter vacation.

    Lord Justice Moses:

    16. I agree, so that the order we will make -- and, Mr Power, you can draw it up and show it to Mr B -- is that we will adjourn the hearing of this appeal. The Recorder is directed to give his answers in relation to those two issues within 14 days and the matter is then to be listed at the parties' convenience before this court, in other words Ryder J and myself, before Easter. That will at least curtail if possible further anxiety that controversy causes.

    Order: Application granted to be listed before the same constitution with a time estimate of 1 hour, to be listed before the Easter term at the convenience of the parties. It is directed that Mr Recorder Bradshaw is to provide the court with further and better particulars based on the evidence he heard in respect of (a) the children's wishes and feelings and (b) the likely effect of any change of circumstances on each of the children, by 21 March 2012.

Judgment, published: 07/03/2012


Published: 07/03/2012


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