Family Law Hub

H (A Child) [2012] EWCA Civ 1305

  • Case No: B4/2012/2292

    Neutral Citation Number: [2012] EWCA Civ 1305

    IN THE COURT OF APPEAL (CIVIL DIVISION)

    ON APPEAL FROM NORWICH COUNTY COURT

    (HIS HONOUR JUDGE DARROCH)

    Royal Courts of Justice

    Strand, London, WC2A 2LL

    Date: Thursday 13th September 2012

    Before:

    LORD JUSTICE MCFARLANE

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    IN THE MATTER OF H (A CHILD)

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    (DAR Transcript of

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    Ms Miller (instructed by Cozens-Hardley LLP) appeared on behalf of the Appellant mother.

    The Respondent father did not appear and was not represented.

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    Judgment

    As Approved by the Court

    Crown copyright(c)

    Lord Justice McFarlane:

    1. This is an application for permission to appeal an order made by HHJ Darroch on 16 August of this year sitting in the Norwich County Court. The judge was faced with the need to determine issues relating to a 12-year-old boy, who was born on 15 July 2000 and who I will refer to as D. The issues became acute as a result of his mother's move from her hitherto home base in Norfolk to Saxmundham in Suffolk.

    2. The mother's move, I have been told, was part of a four-way council house swap which had been negotiated by her over the course of some months and the consequence for D, who has always been in the primary care of his mother, was that if he moved with her he would be required to change schools from Hethersett School in Norfolk, where he had attended certainly I presume since he was aged 11, to the local school in Saxmundham. It seems that the fact that D's father opposed a change of schools did not become apparent, or certainly the strength of disagreement did not become apparent, until the beginning of the school summer holiday, by which time the mother's move was set in chain and she, I have been, told moved to her new home in July.

    3. The father on 26 July issued an application for a residence order and a prohibited steps order aimed at preventing the change of school. The matter came on before a district judge very promptly on 2 August and a short hearing was set up for a fortnight later and it was that hearing that was conducted by HHJ Darroch.

    4. At the conclusion of the hearing the judge made an interim residence order providing for the boy to reside with his father so that he could carry on attending the local school in Norfolk. The judge also was able to fix a date for the full determination of the issues relating to D's longer term care for a full hearing on 26 and 27 November before a district judge.

    5. And so the period that HHJ Darroch had to consider was that between the start of the school term on 6 September and the hearing in late November but effectively the end of the school term in December, it being anticipated that the court would resolve issues in November and any change of arrangement would kick in and be achieved over the Christmas school holidays.

    6. The mother has been the primary carer of D throughout his life. There has been I am told an amiable arrangement for contact which has involved him in recent times spending one night overnight at his father's home each week. This has been the arrangement even during holidays and he has never stayed for much longer than one night at a time with his father.

    7. The mother, anticipating the court might wish to maintain the schooling until the hearing in November, offered four options, firstly that she would remain living in Suffolk and arrange for D to travel an hour and a quarter each way to school every day. The other options, three of them, were for her to lodge during the week with D at one or other of various houses.

    8. The judge heard submissions but then heard evidence from the mother in relation to the proposals she was putting forward. His conclusions, which are set out in a note of judgment which for the purposes of this permission application I accept seems to be fairly full, indicated first of all that it was not in the child's interest to have his school changed now, only to contemplate the prospect of it changing back again after the November hearing; and so he determined first of all that D should remain at his present school and no issue is taken with that decision before me today. The mother does seek to have permission to appeal the second decision which the judge reached, which was to provide that D should reside with the father during the term time but have full contact to the mother when the school timetable permits.

    9. The judge's judgment shows that he rejected the practical arrangements that the mother put forward for her to maintain D's care during this interim period. In relation to the first option he held that the property would be too crowded and was "not really feasible". In relation to the second option his conclusion was "That is really not a possibility" and in relation to the third option he described that as "even less of a possibility" and his overall conclusion was that these alternatives are "all very unsatisfactory".

    10. On the basis of those findings of fact and the judge's appraisal of the options there was really no other alternative but for the boy to be based with his father during the term time and that was the conclusion to which the judge came. The mother understandably is very distressed by this unforeseen turn of events. She has been D's sole carer since the couple separated and she wishes to maintain that status and she also is concerned, I am told by her counsel, Ms Miller, that the change of residence sanctioned by the judge now may prejudge the determination in November.

    11. There is no suggestion or submission made that D will in some way be harmed or upset or looked after in an unsatisfactory way in his father's home. The submissions are based upon the understandable distress of the mother in the circumstances and the fear of prejudging the issue. Counsel also helpfully refers to such case law as there is in relation to interim arrangements. I am bound to say I do not find these references helpful in this case. The test is always based upon section 1 of the Children Act, namely the child's welfare being the paramount consideration. The need to establish some set of circumstances which are described as "an emergency" as if that that was some form of term of art that had to be established is in my view unhelpful. There was a problem that had arisen in the circumstances I have described, the judge had to determine it in the light of the fact that the parents could not agree what should happen and he had to do that on the basis of the facts of the case before him and by applying the welfare principle as his paramount consideration.

    12. It seems to me that on the basis of the findings of fact that the judge made in his appraisal of the situation the case effectively decided itself, given that it is accepted that the judge's decision to keep the boy at the same school is not open to challenge and given his findings that there really was no viable alternative other than for him to stay with his father and also given that there seemed to be no factors which contraindicate that arrangement as being contrary to the boy's welfare. It seems to me that the judge's decision not only is unappealable but also was the only one that could be made in the rather difficult circumstances that had crept up on the family as a result of the mother's decision to move to Suffolk.

    13. I would wish to allay the mother's fear that this interim pragmatic arrangement will prejudge the determination to be conducted in November. That certainly cannot have been the intention of HHJ Darroch. He will have simply been looking to hold the situation in the best way possible for the child for the course of this current winter school term. Who D lives with long term, which school he goes to and what the knock on effect might be for contact are all matters which will be decided by, as it turns out, a different judge in November on the basis of a full appraisal of the case. Given D's age, which is 12 years old, and given the fact that by the time the hearing takes place he will have had a taste of life living with his father and attending the present school and also have got to know the mother's new home and no doubt seen the school that is proposed there, his wishes and feelings are likely to be matters that the parents will listen to prior to the hearing and may well be important for the judge who conducts the determination at the end of the day.

    14. So the mother should not feel that this in some way prejudges or predetermines the residence issue. All matters will be looked at afresh, I am satisfied, at the hearing in November, but in terms of this court now entertaining an appeal against HHJ Darroch's conclusion I am entirely clear that there are no possible arguable grounds of appeal and despite understanding the mother's reaction to the decision in human terms I am afraid I have no alternative but to refuse permission to appeal.

    Order: Application refused


Judgment, published: 15/10/2012

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Published: 15/10/2012

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