Family Law Hub

F (A Child) [2012] EWCA Civ 1282

  • Case No: B4/2012/1182

    Neutral Citation Number: [2012] EWCA Civ 1282

    IN THE COURT OF APPEAL (CIVIL DIVISION)

    ON APPEAL FROM COVENTRY COUNTY COURT

    (HIS HONOUR JUDGE CLEARY)

    Royal Courts of Justice

    Strand, London, WC2A 2LL

    Date: Wednesday, 25th July 2012

    Before:

    LORD JUSTICE THORPE

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    LORD JUSTICE McFARLANE

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    IN THE MATTER OF

    F (A CHILD)

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    (DAR Transcript of

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    Mr Christopher Hames (instructed by Messrs Wilsons) appeared on behalf of the Applicant father.

    The Respondent mother did not attend and was not represented.

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    Judgment

    (As Approved by the Court)

    Crown Copyright(c)

    Lord Justice Thorpe:

    1. This is a renewed application for permission after refusal on the papers. The paper refusal was dated 21 June and I explained myself by saying:

    "I endorse the approach of the judge: these were competing applications for the residence order and he had therefore to weigh the welfare balance of life with father in England or life elsewhere in the E.U. with mother.

    He preferred the evidence of the mother.

    He was critical of the paternal grandmother.

    He rejected the CAFCASS reports out of hand, admittedly in language that was hardly diplomatic.

    In the round I can not identify the necessary prospect of a successful appeal."

    2. That attracted an impeccable statement in compliance with paragraph 4.14A of the practice direction settled by Mr Gratin. Mr Hames appears this morning to argue the application and he has done so with conspicuous skill and vigour. Certainly, his submissions have caused me to reconsider my position radically.

    3. Mr Hames's repeated and well-deployed submission is that this judge has simply not explained himself to the minimum standard of acceptability. Yes, he has preferred the evidence of the mother; yes, he has criticised the paternal family, but nowhere has he carried out the essential balancing exercise -- on the one hand, these are the factors which support the choice of the mother's proposal; on the other hand, these are the factors which support the choice of the father's proposal: how does the welfare checklist bear on these rival applications? That is deficient and that submission is well made by Mr Hames.

    4. The first point that I would emphasise is that the judge was perfectly right to approach this, not as an opposed relocation application but rather a straightforward contest between two parents as to which should have the responsibility of the residence order. We see that clearly in paragraph 29 where the judge says, and in my view correctly says:

    "I am being asked effectively to decide with whom this little infant should reside. If that is to be with father, base camp, if I might use the term, would be the United Kingdom. If it is to be with mother, base camp -- to continue with the metaphor -- would be in Germany initially and then Cyprus until, as I understand it, in about two and a half years' time, the child and her mother -- indeed, with her husband and their child -- will be re-located to the United Kingdom."

    5. So he posed himself the correct question. He gave a very clear answer that it should be the mother's proposal with base camp in whatever garrison her husband would be ordered. The problem is that he has not explained that conclusion, other than saying as he did in paragraph 83:

    "...my discretion is exercised in this way. I am satisfied that the little girls should be united. I am satisfied that that should be in the care of their mother. I am quite satisfied that the mother will promote contact, and that there is no hint at all of the mother's inability to provide perfectly adequate and loving care to this child in particular, and both children in general; that she has a support network around her which will be of enormous value to both children and, in particular and overwhelmingly, as the parents have to recognise, these parents must disengage, when it comes to the care of this little girl, from their respective parents. Those grandparents have to learn that they must leave this little girl to the care and nurture of their parents and their attempt to enter the conflict is entirely unhelpful and indeed is damaging to the prospects that this little girl demands as she grows up requiring the love and care of both her parents without critical analysis and damaging comments from her grandparents, from their parents."

    6. Well, Mr Hames is quite right to say: where is the necessary balance; where is the recitation of what the father has to propose, given that he had in the past been from time to time the principle carer? The answer to this conundrum, a plainly expressed choice but inadequately reasoned, for me lies in the overwhelming reality. The order was immediately implemented, perhaps five days after judgment; there was no application in this court for a stay. Had there been such an application, had the case been put before this court urgently, before the judge's conclusion had been acted on, then the argument that Mr Hames presents would have had its proper force, but now we are already three months down the line. If we were to grant permission, by the time the full court considered the case we would be six months down the line. The most that the appellant could strive for would be a retrial and by the time that retrial took place, the fresh judge would be a minimum of nine months down the line and all the while, the court has to take note of and act upon the situation as it is - not the situation as it was on 18 April. There will be bonding between the two little girls, the half sisters; the army family will have history.

    7. The contact order, we are told by Mr Hames, is at least operational. As a matter of proportionality, I reach the conclusion that this application should be refused.

    Lord Justice McFarlane:

    8. I agree with that outcome, and very much with the way in which my Lord has now cast the case. I too would refuse permission to appeal.

    Order: Application refused.

Judgment, published: 14/10/2012

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Published: 14/10/2012

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