Family Law Hub

W (A Child) [2012] EWCA Civ 1274

  • Case No: B4/2012/1903

    Neutral Citation Number: [2012] EWCA Civ 1274




    Royal Courts of Justice

    Strand, London, WC2A 2LL

    Date: Thursday 23rd August 2012



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    (DAR Transcript of

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    Ms Ashley Thain (instructed by Kerseys Solicitors) appeared on behalf of the Applicant Father.

    The Respondent Mother did not appear and was not represented.

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    (As Approved by the Court)

    Crown Copyright (c)

    Lord Justice Hughes:

    1. This is an application by the father for permission to appeal an order made by HHJ Curl on 13 July giving leave to mother to go to live with the not quite five-year-old daughter of the family in Oklahoma. Very shortly, mother has remarried an American serviceman. The American serviceman has been transferred to the reserve list by the United States Air Force. He is under orders to return to his place of engagement, which was Oklahoma, and mother asked permission to go with him.

    2. The judge heard the case on 19 June including all the evidence and the submissions. He decided, announcing the decision on the following day, 20 June, to adjourn for a further enquiry to be made. When the case came back on 13 July he concluded that the application should be granted. There was no fresh evidence beyond the material that I will come to in just a moment and there were not, it would appear, any further submissions.

    3. The original proposed grounds of appeal by father raised entirely understandable issues, but ones which it was apparent to me on the face of the documents were never going to be arguable. First, it was suggested that the judge was wrong not to describe the existing residence/contact arrangements as a shared residence case and to decide the application on that basis. That would be to allow the triumph of label or form over substance. The judge was well aware what the arrangements were. How they were described was not the point. He was very well aware that the order was very far-reaching. Orders for relocation of this kind always have an enormous impact on the left-behind parent if they are made and enormous impact on the applicant parent if they are refused.

    4. Secondly, it was suggested that the judge was wrong to accept the evidence that mother was genuine in her application and should have found that she was making it to escape to reduce the links in the relationship between father and child. He heard both parties. He was quite satisfied that was not the case and this court would under no circumstances be in a position to reverse it.

    5. Thirdly, it was suggested that the judge should not have been satisfied, on the mother's rather limited researches about Oklahoma, that arrangements were going to be satisfactory. Mother had actually had very little time because the forces do not give more than 90 days notice, but the place where mother and stepfather and child will go is the family home of stepfather. There is a house available. It is in Oklahoma. It is not a remote or under-developed part of the world, and the judge was clearly perfectly entitled to find that the arrangements would be entirely satisfactory.

    6. The real question in this application, which if I may say so has been very persuasively put by Ms Thain, is an evidential one. It is apparent that reservists can take advantage of American arrangements to combine with their availability as a reservist training for future employment which is paid for by the military. Sometimes it is plain that training can be undertaken other than in the United States. As a very general proposition, that can sometimes be possible. Both the mother and the stepfather gave evidence at the first hearing on 19 June that, were it possible for stepfather to study what he wants to do, which is X-ray technician work, in the United Kingdom and be paid for here by the United States military, both of them would be only too happy to stay. But they said that was not possible. They had been ordered back to Oklahoma and that is where they would have to go. Because they had said that they would be willing to stay if they could, the judge decided that one last enquiry should be made of the base commander, the stepfather's commanding officer, and he himself wrote a letter enquiring whether it would be possible for the stepfather to stay here. It is plain to me that he did that because he wished to leave no stone unturned.

    7. Unfortunately, on advice no doubt, the response at a reasonably high level from the United States Air Force was that it was not amenable to the jurisdiction of the English court and could or would give no further information.

    8. When the case came back to him with that response, the judge reached the conclusion that the stepfather and the mother did have to go. Ms Thain's attractively put submission is that, if there had not been enough evidence to convince him of that on the balance of probabilities at the first hearing, there was nothing which enabled him to come to that conclusion at the second hearing, and she adds to that the submission that there was no evidence that stepfather had made any formal application to the military for permission to study in the United Kingdom. I think that I should assume, for present purposes at least, that that latter submission is right. It may or may not be, but that is the basis on which I think I ought to work.

    9. The potential argument has, as I say, superficial attraction. It has been very well put, but it depends on the position that the judge on the first occasion was in a state of uncertainty about the evidence. The only uncertainty which emerges is whether there was some last minute method of altering the position, of which he was it seems to me otherwise satisfied. In other words it was a case, as I have said, of leaving no stone unturned.

    10. When the case came back the judge said this, first that it had become clear at the first hearing that, because the stepfather had been transferred to the reserve list, he had no option other than to return by September. He was punishable by imprisonment if he did not, although he would be content to serve out his time as a reservist in the United Kingdom if that were a possibility. He went on to say that his view had been that, although that understanding was likely to be accurate, it was worth checking the factual basis but then he recited the response.

    11. His overall conclusion was expressed in these terms :

    "I am satisfied that he is under orders to return by September and if he does not, he would be treated as absent without leave and would be likely to be imprisoned and forego [sic] his advantages under the GI bill."

    I interpolate that is the training:

    "I also accept that he has to report to Oklahoma. He cannot just choose where to turn up ...

    I consider it unlikely having looked at all the documents before me that USAF personnel can spend time abroad. Mr Miller and the mother both said it was not possible. I consider they are likely to be right. Mr Miller would be content to remain here so he wouldn't get that wrong. ...

    I am satisfied that he had been ordered to return and realistically has no other option."

    12. Elsewhere the judge made it clear that the military system gave personnel only 90 days notice of a posting including a posting of this kind. I would just add that if that is right, as it clearly is, it is not just a question of whether there is, in the abstract, the possibility of training under the GI Bill in a foreign country including the United Kingdom. There would have to be set up an available course in England to start in September for which the stepfather was accepted and qualified and approval from the military authorities.

    13. The clear conclusion that I have reached in the end is that this was not a case in which the judge was left in real doubt on the first occasion. It was simply that there was an outside possibility that the military might say that stepfather had nothing to worry about, but as soon as they did not the judge was clear in his conclusion that he had no choice but to go. That is an evidential conclusion on the material that he had before him. I have reached the clear conclusion in the end that, despite the persuasive submissions made to me, that there is no prospect of anybody here saying that he was wrong about that.

    14. In those circumstances, whilst I am extremely grateful to Ms Thain, I am afraid this application has to be refused.

    Order: Application refused

Judgment, published: 14/10/2012


Published: 14/10/2012


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