Family Law Hub

K (Child) [2016] EWCA Civ 931

In a tweet: Unsuccessful appeal against a leave to remove order. In brief: The father (“F”) sought to appeal a leave to remove order in proceedings where the mother (“M”) had been able to establish that he had acted in an angry, violent or otherwise inappropriate manner towards the child. The trial judge’s approach could not be criticised. It had been welfare-based, full weight had been given to the impact of the move on the child’s relationship with F and F’s proposals had not been ignored.

  • Case No: B4/2016/0317

    Neutral Citation Number: [2016] EWCA Civ 931





    Royal Courts of Justice

    Strand, London, WC2A 2LL

    Date: 05/10/2016

    Before :




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    K (CHILD)

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    Mr Thomas Wilson (instructed via the Pro Bono Unit) for the Appellant

    Mr Stephen Bartlet-Jones (instructed by The Family Law Practice) for the Respondent

    Hearing dates: 24th August 2016

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    Lady Justice Black:

    1. This is an appeal against an order made by Her Honour Judge Tucker on 3 December 2015 permitting the mother of A, a girl who is now 10 years old, to take A to live permanently in the Republic of Ireland. The appellant is A's father. A is already living in Ireland, having been taken there by the mother on 26 December 2015, no stay by then having been sought of the order.

    2. The father has had the benefit of pro bono representation and we are very grateful to his counsel, Mr Wilson, who helpfully identified the points that formed the basis of the father's appeal and advanced his case comprehensively, setting before us everything that was material to it. We are also grateful to Mr Bartlet-Jones, who rose to the challenge of representing the mother at short notice following the last minute grant of legal aid. Neither appeared in the court below.

    3. At the conclusion of the appeal hearing, we announced our decision to dismiss the appeal for reasons which would follow later in writing. The purpose of this judgment is to set out my reasons.

    Introductory outline

    4. The father is English. The mother is from the Republic of Ireland. She moved to England in 2005 to be with the father, leaving her family and long standing friends in Ireland. From 2005 until the end of 2015, she lived in England, although returning to Ireland on a frequent and regular basis. The parents' relationship ended in the summer of 2014. A continued to live with the mother, based in England after a relatively short period in Ireland immediately upon the separation. In due course, she had contact with the father. The progress of that contact was not entirely smooth and I will return to it later as incidents associated with it are at the heart of the appeal. By the time the case came before Judge Tucker in December 2015, the contact was taking place every alternate weekend from Friday to Sunday, with some ad hoc contact midweek as well.

    5. The format of Judge Tucker's judgment is unusual. The judge delivered it ex tempore. Immediately thereafter, she was requested by counsel to deal with a significant number of matters and did so. A copy of the transcript of that part of the hearing has been made available for the appeal. When she corrected the transcript of her judgment, the judge incorporated into it some extra passages, including passages reflecting what she had said in the immediate aftermath of the original delivery of the judgment. She identified the added passages by italicising them in the corrected transcript of the judgment or putting them in footnotes. We also have available the short judgment that the judge gave when refusing the father's application for permission to appeal. The judge's thinking can therefore be collected from a number of sources, to all of which we were taken during the appeal hearing. It was not suggested by either side that it was inappropriate for us to have regard to all of the available sources.

    6. The judge determined the mother's application for permission to move to Ireland with A's welfare as her paramount consideration. One of the father's grounds of appeal (Ground 2) concerned the judge's approach to her welfare analysis. Complaint was made that she failed to refer to the "seminal authorities" which counsel identified as Payne v Payne [2001] 1 FLR 1052, K v K (Relocation: Shared Care Arrangement) [2012] 2 FLR 880, Re F (Relocation) [2013] 1 FLR 645 and Re F (International Relocation Cases) [2015] EWCA Civ 882. It was argued that she did not undertake a "sophisticated, comparative, holistic analysis" of the type said to be required in a case of permanent removal from the jurisdiction. She failed, it was submitted, to consider the merits of the father's proposal in its own right, concentrating on the proposal of the move to Ireland. Furthermore, appropriate weight was not given, in the father's submission, to the impact of the move on A's relationship with the father, and to other disadvantages of the move, such as the disruption caused by change. In addition, it was submitted that a proportionality assessment was required, considering the Article 8 rights of all involved, and was not carried out.

    7. By Ground 1 of his grounds of appeal, the father also challenged the judge's approach to allegations made by A that the father had behaved in an angry, violent or otherwise inappropriate way towards her on three occasions. I think it is fair to say that this ground developed during the course of the appeal. One element was a complaint that the judge herself determined that it was necessary to make findings in relation to these allegations, but then failed to reach clear and definite conclusions about them as she was obliged to do. It was argued that this lack of findings left the judge without material that she required in order properly to determine the main issue before her. It was also argued that she did place, or may have placed, reliance on matters which were only possibilities, not proved facts.

    8. Ground 3 of the grounds of appeal was allied to Ground 1, being that the judge did not give proper consideration to the father's submission that the mother was likely to raise further allegations of harm to A in the future, which would impede his future relationship with the child.

    9. Ground 4 of the grounds of appeal focused upon the judge's approach to the CAFCASS officer's recommendation, it being argued that the CAFCASS officer's report did not contain a proper balancing exercise and that the judge imported that flaw into her own analysis.


    10. I do not propose to go in detail into the facts of the case except where it is necessary to do so in order to deal with the father's grounds of appeal. It will suffice to give a little more information to flesh out the bare chronology which I gave at the start of this judgment.

    11. The picture emerges of an unhappy relationship. Both parties had issues over alcohol during its course. For the mother, things came to a head when she was caught driving under the influence of alcohol. Following that, she took steps to address her excessive alcohol consumption. The father had also been consuming too much alcohol, tests carried out in late September 2014 suggesting chronic excess consumption. However, tests carried out in 2015 no longer showed this, though the judge found that, although he had refrained from drinking alcohol to excess for some time, unlike the mother, the father had not acknowledged that he had a problem.

    12. At the time of the hearing before the judge, neither parent was working. It seems that there were health reasons for this, although the mother was proposing to assist in her sister's delicatessen if permitted to move to Ireland. Both parents have had financial support from their families.

    13. Following the separation in the summer of 2014, it seems that there was no contact between the father and A for some months. The judge recorded that there was significant dispute between the parties as to the circumstances which gave rise to that but made no findings about it. It seems that the father began proceedings in September 2014 and, in due course, contact restarted on a supervised basis, progressing to unsupervised contact including overnight stays. For a large part of the case, the judge dealing with the proceedings was Judge Tucker, who was therefore familiar with the history and with the parties themselves before the final hearing in December 2015.

    14. The mother had developed friendships in England, an important part of her support network being based around her allotment where a thriving small community grew up. However, the judge found that at the time of the December hearing, she was "isolated and unhappy". She found that the mother had genuine reasons for wanting to relocate to Ireland, wishing to return to the country in which she grew up and where her family and social and support network is located. She found the mother's proposals for how family life would be in Ireland, or alternatively in this country, practical, well-researched, and properly thought through. There was evidence that A already had a strong connection with Ireland. The mother established that she would have somewhere to live in Ireland, that she could work for her sister and also claim benefits, doubling her income in comparison to what it was in England, and that A could go to the local primary school. She set out how she envisaged contact would take place in holidays and in term time, directly and by Skype or telephone.

    15. The judge assessed the mother's attitude to the question of the father's relationship with A as follows (§8(i)):

    "My assessment of the mother is that during the course of these proceedings, she has progressed significantly and her understanding of the importance of the relationship between A and her father, notwithstanding the breakdown in the parents' relationship and the unhappiness which there had been in it, is much clearer now and much more significant and meaningful than it was. I considered that by the time she gave evidence at the final hearing she truly recognised the importance of the father's relationship with A."

    16. The judge found that, in opposing the move, the father was genuinely concerned about what would happen to his relationship with A whom he loves. The judge said that "[h]e loves spending time with her and she loves spending time with him" (§14) although she recorded that there have been problems in their relationship. The judge recorded that his primary objection was that the move "would interfere with the regular time that he spends with A and therefore with his relationship with her". Others of the father's objections, for example concerning the mother's parents' circumstances in Ireland, the judge rejected.

    17. I need to deal in a little detail with the three incidents which were the focus of Grounds 1 and 3 of the grounds of appeal. It is of central importance that the judge expressly said that she did not consider that the mother had fabricated the incidents or the reports of them or that she had encouraged A to make the allegations (§16).

    18. The first allegation was that at some point in the past, the father had been drinking and, when A asked him to stop, "did a karate chop in her tummy" (§16(a)). The judge said this of this allegation:

    "In my judgment, there was not sufficient evidence before the Court upon which it could properly conclude that that event occurred as A was reported to have alleged that it occurred. Nor however was I satisfied on the evidence that I could say that the incident did not occur at all. That was, in particular, because of father's denial of his drinking. I was not satisfied that that was a truthful denial. I considered that it was likely that he had been drinking on many occasions, and sometimes to excess. The expert evidence supported that. Further, he had been drinking when the incident in 2013 occurred. I came to no conclusion in respect of the particular allegation regarding the karate chop: I could not properly conclude that a "karate chop" occurred." [italics in the original, used by the judge to indicate additions to the judgment given orally]

    19. Coming back to this incident in the post-judgment discussions, the judge said (C26):

    "I consider it more likely than not that there was an occasion when the father was drinking and A had spoken to him about that, but whether or not he pulled A's hair or gave her a karate chop, I have not sufficient evidence to conclude that that occurred. I note that I have not heard directly from A about that incident."

    20. When refusing permission to appeal, the judge said (C32):

    "I made very clear findings. I considered that there was an occasion when the father was drinking …I did not find that the karate chop took place…So, on a binary basis, that would fall away."

    21. The second allegation was that the father nudged A during contact at a contact centre (§16(b)) and it appears, from the post-hearing discussions with the judge (C26) that it included an assertion that the nudge made A fall from a chair. The judge accepted that A had said to the mother that the incident happened. However, the judge's view about it was, she said, "similar", by which I understand her to mean similar to her view as to the karate chop. What she said at §16(b) was:

    "I considered that there was insufficient credible evidence before me upon which I could conclude that the incident occurred as described by A. Nor could I conclude confidently that nothing occurred. Within that assessment I considered that there was a real possibility, and I put it no higher than that because I could not determine it did occur, that the incident may well have arisen out of the child's perception of a joke that went wrong: the father nudging her (and the child not liking it) in much the same way as I found that there was a joke about the television being turned on and off."

    22. The judge added a footnote to this passage, as follows:

    "Although inelegantly phrased, the actual words I used at the time were 'I consider there is not enough for me to conclude that it did occur, but nor is there enough for me to say that nothing occurred.' The reasons for my conclusion was that it appeared unlikely that A would simply fabricate an account from nothing, notwithstanding the fact that the father stressed that she had credibly lied to him about other matters during the course of the proceedings. I had reservations about the truthfulness of the father about what had happened. I considered that it was most likely that something had occurred which the child had not liked and had led her to speak to her mother about it."

    23. Revisiting the allegation in the post-hearing discussion, she said of it (C24):

    "I also found that I thought that in relation to the middle [incident], the nudge, that it was a possibility that there was a joke that had gone wrong."

    and at C26 she said:

    "Whether father nudged A so that she fell from a chair during a supervised contact session, noting again that I have not heard from A about that, I consider that it is likely that something occurred but that that something could well have simply been a joke that went wrong in accordance with what I have seen. More than that I cannot say on the evidence before me, but I note that I have not heard from A."

    24. At C29, pressed about it by the father's counsel, the judge said:

    "…let me be clear, it is not proven, save that there may have been an incident which was in the nature of a joke that went wrong and that A did not like...That is what I meant by, 'More than that I cannot say…'"

    25. In refusing permission to appeal, she said (C32):

    "I have made clear findings about what I think might have happened or was likely to have happened at the contact centre. That could have been a relatively innocuous incident."

    26. The third allegation concerned an incident during contact in September 2015 when there was a disagreement between A and the father, though A's and the father's accounts did not agree as to why. A had said that during the incident she made a telephone call to her mother from the bathroom, and the father was angry and barged in to stop her. The judge went into the detail of some of the evidence about the occasion and expressed herself "satisfied that something occurred on that date". She said of the account that the father had given in evidence of slightly raising his voice when telling A that she was not going to go ice-skating as she wished, that it "was likely to portray something of what may actually have occurred." She said:

    "In summary, I considered that an argument took place between A and her father. During that argument the father raised his voice. A was upset by what had occurred and called her mother, seeking to end contact early."

    27. After this third incident, the police and social services had become involved although no further action was taken by either.

    The judge's conclusions

    28. The judgment ended with a section entitled "Conclusion". This commenced with a statement by the judge that she had started with welfare and was ending with welfare because that was the paramount consideration. It is worth setting out her starting point, at §3 of the judgment, in full:

    "3. The paramount consideration for the Court in determining a question of this nature is the welfare of the child. In this case, therefore, the paramount consideration is A's welfare. Within that analysis, however, there are, according to the relevant appellate decisions, a number of specific matters to which the Court should have regard and consider. The reason for that, in my judgment, is because it is only by doing so that the Court can properly reach a decision in difficult cases of this nature about what is truly in accordance with the child's welfare."

    29. It may be that the "specific matters" referred to by the judge are those set out in Payne v Payne as the judgment contains a section headed "The motivation for the mother to seek to relocate to Ireland, her plans and the father's views about those matters and reasons for opposing the application", although its ambit was in fact wider than that.

    30. Other specific matters that the judge considered were those set out in the welfare checklist in section 1(3) of the Children Act 1989. At §18 of the judgment, she considered A's wishes and feelings, finding, on the basis of the interview that the CAFCASS officer had had with A, that A "genuinely wants to go to Ireland". Having stated this, the judge continued:

    "In my judgment A's desire to go to Ireland should not be taken to suggest that she did not like living in England. On the contrary, I saw evidence of, and read about, how much fun she has with her father and her father's family. However, she wants to go and live in Ireland and spend time with her father and his family."

    31. At §19 she dealt with A's needs. She considered that A's physical, emotional and educational needs could be met in either country, although expanding upon A's entitlement to know, understand and experience life in Ireland after living in England for nearly half her minority. Importantly, she said:

    "In my judgment the mother can accommodate, facilitate and encourage the emotional need A has to develop and maintain a positive relationship with her father."

    32. She added a footnote to this dealing, in contrast, with her reservations about the father's ability to promote contact between A and the mother, expressing concern about his "apparent minimisation of the mother's role in A's life".

    33. §20 is a comparison of the schooling in the two countries. Then, as guided by section 1(3)(c) of the Children Act 1989, the judge goes on, in §21, to consider the likely effect on A of change in her circumstances. She observed that change is always a feature of a child's life, that it can be difficult, and that time is sometimes required to adjust. She set out her view that there was a potential consequence of a decision to refuse leave to remove which needed to be weighed in the balance, namely that such a decision could lead to a deterioration of the relationship between A and her father for a number of reasons as follows:

    "21. …First, A wants to go to Ireland. If she believed that her father was standing in the way of that, she may – she may not but she may – begin to resent that. Further, the mother very clearly wants to go to Ireland. In my judgment the mother's unhappiness at not being able to do so would, in my judgment, inevitably affect A even if she tries to hide it. A is a bright little girl and I considered it likely that she would understand what was happening.

    22. I was also concerned that the father was seeking, to some degree, to control the mother by preventing her from going to Ireland. If that were to continue, that in my judgment would cause considerable distress and harm to both parents and to A."

    34. The judge then continued:

    "23. A needs a relationship with her father. She can have that staying in England, but she can also have that if she moves to Ireland. On balance, I considered that although the contact arrangements would be different, they would be, in my judgment, just as effective and meaningful."

    35. Under the heading "risk of harm", the judge referred to the risk of harm if A stayed in England, as she had articulated it in §§21 and 22. She then went on to say that there was also a risk that if she went to Ireland the move might adversely affect her relationship with her father.

    36. Given that one of the grounds of appeal concerns the CAFCASS evidence, it should be noted that the judge said at §25 that she considered that the CAFCASS officer had focused significantly on A's wishes and feelings and she took that into account but conducted her own analysis by having regard to all the relevant matters, not just A's wishes and feelings. This was something she reinforced in the post-judgment discussion (C28) where she said that:

    "My assessment has been of the parties in court, of having watched them, because this is a case where I have managed to achieve judicial continuity, and having watched them and heard their evidence and seen their evidence in the documents before the court."

    37. Returning to the judgment, having referred to having conducted her own analysis by having regard to all the relevant matters, the judge said that "on balance and considering all those matters" she considered that it was in accordance with A's welfare that she should move to Ireland. She immediately carried on, still within the judgment, to say:

    "26. The relationship between A and her father has weighed heavily on me throughout this decision making process. I considered that K should spend considerable time with her father…"

    38. This was followed by a resumé of the evolution of her views in relation to what would, formerly, have been known as a shared residence order, the ultimate order being that A should "live with her mother and father" with the time being divided up as specified, and then rulings upon practicalities associated with travel for the purposes of A spending time with the father.

    39. Post-judgment, the judge was asked to say whether or not she found it likely that allegations of the type that had been made about the father's conduct in relation to A would be repeated, impeding his contact. It was following this request that the judge announced her finding that the mother had not deliberately fabricated allegations or encouraged A to fabricate them (C26, later incorporated into the judgment). She declined to take a view as to the likelihood of future allegations being made, simply recording that the relationship between A and her father was as important as that between A and her mother and that the court expected the mother actively to promote the relationship and contact with the father. She referred, in this context, to her view that the mother had developed greater understanding during the proceedings of the importance of the relationship with the father.

    Discussion of the arguments advanced on appeal

    40. I turn first to Ground 1, concerning the three incidents. As originally formulated, it seemed that it might be based upon the proposition that a judge who is asked to make findings of fact, or decides of his or her own motion to do so, has only two options, namely to find on the balance of probability that the thing in question happened or to find on the balance of probability that the thing in question did not happen, thus leaving no room for what was described by the mother's then counsel, during post-judgment discussions, as "the grey area" between these two extremes, in which the judge does not find either way. The submission appeared to be based upon passages from Re B (Care Proceedings: Standard of Proof) [2008] UKHL 35 [2008] 2 FLR, in particular §2 of Lord Hoffmann's speech and §32 of Baroness Hale's. As became apparent in oral submissions, however, counsel's submissions very sensibly did not go this far, it being accepted that it is open to a judge simply to hold that a particular fact is not established on the evidence without necessarily having to go on to find on the balance of probability that it did not occur. As Lord Hoffmann explained, the consequence of a fact not being established is that it is treated, in law, as not having happened.

    41. The real import of Mr Wilson's submissions was that, having embarked upon a process of finding the facts in relation to the allegations made by A, the judge failed to carry out that process properly. The complaint was that she went further than saying that a thing was not proved, saying also that it might have happened. She was not entitled to base her welfare decision upon things that might have happened and, in counsel's submission, it was not clear that she put the unproved allegations out of her mind as she should have done. The fact that she referred a number of times, when dealing with the allegations, to not having heard from A lent weight, in Mr Wilson's submission, to the argument that she had not excluded the unproved events from consideration. The problem was compounded, in his submission, because the judge's analysis of the quality of the relationship between the child and the father, and the impact of the move upon it, was insufficient and it was therefore unclear what role the judge's suspicions about the unproved matters played in her conclusions.

    42. The point is perhaps best addressed by looking at the specifics of the judge's findings about the allegations. It is right that she said a number of times that she had not heard evidence from A. In so saying, as she observed herself (see §6 of her permission judgment), the judge was merely stating a fact. In my view, her reference to the absence of evidence from A tells us nothing about the process by which she made factual findings, or about what reliance she placed, in her decision making, on any views (falling short of findings on the balance of probability) that she formed about the incidents. All that she was saying, correctly, was that she had to work on the basis of the evidence adduced about each of the incidents and it did not include direct evidence from one of the participants, A.

    43. Turning specifically to the karate chop allegation (see §18 et seq above), what appears from what the judge said, in my view, is that she did not find on the balance of probability that there was an event exactly as described by A. In particular she did not find that the karate chop took place. This meant that it was to be excluded in her evaluation of the father's conduct. It is possible to be confident that the judge did this, because she said expressly that "on a binary basis, that would fall away". Equally, the judge did not find on the balance of probability that no incident occurred. The furthest that she went towards making positive findings about what happened was to accept that there was an occasion when the father was drinking. As the incident was said to have taken place at a time when there was other evidence that the father had been drinking, that observation added nothing to the sum of what the judge had already found about that period of the history and in no way added prejudice to the father's case. I am unable, therefore, to find anything in the judge's approach to this incident that constituted a material error.

    44. As to the allegation of the nudge in contact (see §21 et seq above), again, in the judgment, the judge found that it was not established on the balance of probability that the incident occurred as described by A and that it was equally not established that nothing happened. Taking her other pronouncements on the subject as a whole, they amount to a finding, in my view, that something occurred but it could well simply have been a joke which went wrong and which A did not like, and "could have been a relatively innocuous incident". Accordingly, given that the judge classed the nudge incident as relatively innocuous, there is no room for the argument that she wrongly counted it against the father in terms of his parental ability or his relationship with A.

    45. As part of his Ground 3, the father advanced a rather different argument in which he sought to build upon the judge not having accepted A's account of these incidents in its entirety. Putting it into my own words, it seemed to me to amount to this. The first step was that those parts of A's account which the judge did not find proved must be treated as not having occurred. Therefore, the argument went, as allegations had been made about the father which were not true, there was a risk that more allegations would be made up in future, thus impeding contact. It is important to appreciate that the ground of appeal for which permission was given, and the point that was being pursued in writing, was directed at the likelihood that the mother would raise allegations in future. This argument is stopped in its tracks by the judge's finding (§16 and C26) that the mother had not fabricated the incidents or the reports of them or encouraged the child to make reports of the allegations. In the light of that finding, it is not surprising that the judge declined to make the finding that she was asked to make as to the likelihood of future allegations being made. There was nothing established in relation to the mother which would serve as a foundation for a finding that she was likely to generate future allegations, directly or indirectly. Indeed, the judge's finding about her increased understanding of the importance of A's relationship with the father pointed against this.

    46. Nevertheless, argued Mr Wilson, it was necessary for the judge to analyse the implications of the allegations, which were serious, having been made. He complained that she did not consider whether, for example, the mother had indirectly influenced A to make the allegations or what the allegations told her about the relationship between child and parent. I am not persuaded by this argument either. Although she did not mention indirect influence, the thrust of the judge's finding about the mother was that she had not engineered the allegations. As for the judge not saying anything about what she thought the incidents revealed about the relationship between father and daughter, it seemed to me that two opposite arguments might, in fact, be being advanced on the father's behalf.

    47. On the one hand was the complaint that the judge might have drawn adverse conclusions about the father's relationship with A by taking account of things that she suspected happened during the incidents, rather than rigorously confining herself to the proved facts. There is no evidence of that in the judgment, in my view, and it is contradicted by the judge's further explanation in her permission judgment. She there identified the two issues that she had felt it imperative to determine in relation to the incidents, namely (1) whether the mother had fabricated the allegations and (2) whether the incidents involved anything that would prevent unsupervised contact. On both counts, she had answered "no", by making findings on the balance of probability. Furthermore, it can be seen from the judgment that she valued the father's relationship with A highly and recognised its fundamental importance for A, although recognising that it had had its problems. There are many examples of this, only some of which I will set out. At §14 of the judgment, the judge clearly accepted the fact that the father loves A and loves spending time with her, and she loves spending time with him. At §18, she referred to the evidence she had seen of how much fun A has with her father and his family. At §19, she spoke of A's emotional need to develop and maintain a positive relationship with her father. At §23, she said that A needs a relationship with her father. At §26, she said that the relationship between A and her father had weighed heavily on her throughout the decision making process.

    48. On the other hand was the complaint that the judge failed to consider why A herself would make up allegations about the father and what implications it had for the future. The judge having excluded the possibility that the mother had a role in this, it follows that the focus would have been upon A spontaneously making up allegations about her father. It is difficult to see how this line would have developed, had the judge pursued it, without giving rise to questions about the quality of the father's relationship with A which would run counter to his case, accepted by the judge, that they had a good relationship. I do not therefore see this as a realistic basis for an appeal by the father and I am not at all surprised that it was not reflected in the grounds of appeal and that their focus was solely upon the mother's role in generating further allegations. The argument also gives rise to the rather complex question of whether the judge's decision that it was not proved on the evidence adduced that, say, the karate chop took place, amounted to it being established that the karate chop did not take place, thus providing a foundation for consideration of A's motivation in making it up. I am doubtful about that but propose to say no more about it as I have rejected the argument in any event for other reasons.

    49. I propose to deal with Ground 2 and Ground 4 together, examining the judge's welfare analysis and her approach to the CAFCASS evidence.

    50. I do not propose to rehearse again here the law that applies in relocation disputes. The authorities are identified in §6 above and to them I would add Re C (Internal Relocation) [2015] EWCA Civ 1305, [2016] 3 WLR 1 (Re C), particularly at §§26, 82, 83 and 85, and as to proportionality, at §§55 to 61 and §84.

    51. I should perhaps say a little more about proportionality, in the light of Re C, because proportionality featured in the father's arguments in the present case too. Re C did not endorse a completely separate consideration of the proportionality of the orders proposed. Rather it contemplated that the analysis of the best interests of the child would necessarily involve a careful examination of the parents' wishes and their interests, their article 8 rights, given the potential for the impact of the decision on the parents to affect the child as well.

    52. I would like also to say something about the balancing exercise that is to be carried out in relocation cases in determining what is in the best interests of the child. This court is often asked to grant permission to appeal on the basis that the judge has failed to carry out a "global, holistic welfare evaluation" or has adopted "too linear an approach" or some similar formulation stemming from Re G (Care Proceedings: Welfare Evaluation) [2013] EWCA Civ 965, [2014] 1 FLR 670 or its derivatives. Re G addressed a very important issue. However, as McFarlane LJ observed in Re F (International Relocation Cases) [2015] EWCA Civ 882, commencing at §46, there is a danger of the sound good sense of what was said in Re G being developed into a specialist science. Re G did not introduce a new approach into the law. What McFarlane LJ intended in Re G was, as he said at §48 of Re F [2015], to "encapsulate what seasoned family lawyers would call 'the old-fashioned welfare balancing exercise' in which each and every factor relating to a child's welfare is weighed, one against the other, to determine which of a range of options best meets the requirement to afford paramount consideration to the welfare of the child". The court must (§50 ibid) "weigh up all of the relevant factors, look at the case as a whole, and determine the course that best meets the need to afford paramount consideration to the child's welfare".

    53. It may be useful to reiterate what has been said very recently by the President of the Family Division in a case concerning the 1980 Hague Convention, Re F (Children) [2016] EWCA Civ 546.

    "22. Like any judgment, the judgment of the Deputy Judge has to be read as a whole, and having regard to its context and structure. The task facing a judge is not to pass an examination, or to prepare a detailed legal or factual analysis of all the evidence and submissions he has heard. Essentially, the judicial task is twofold: to enable the parties to understand why they have won or lost; and to provide sufficient detail and analysis to enable an appellate court to decide whether or not the judgment is sustainable. The judge need not slavishly restate either the facts, the arguments or the law. To adopt the striking metaphor of Mostyn J in SP v EB and KP [2014] EWHC 3964 (Fam), [2016] 1 FLR 228, para 29, there is no need for the judge to "incant mechanically" passages from the authorities, the evidence or the submissions, as if he were "a pilot going through the pre-flight checklist."

    23. The task of this court is to decide the appeal applying the principles set out in the classic speech of Lord Hoffmann in Piglowska v Piglowski [1999] 1 WLR 1360. I confine myself to one short passage (at 1372):

    "The exigencies of daily court room life are such that reasons for judgment will always be capable of having been better expressed. This is particularly true of an unreserved judgment such as the judge gave in this case … These reasons should be read on the assumption that, unless he has demonstrated the contrary, the judge knew how he should perform his functions and which matters he should take into account. This is particularly true when the matters in question are so well known as those specified in section 25(2) [of the Matrimonial Causes Act 1973]. An appellate court should resist the temptation to subvert the principle that they should not substitute their own discretion for that of the judge by a narrow textual analysis which enables them to claim that he misdirected himself."?

    It is not the function of an appellate court to strive by tortuous mental gymnastics to find error in the decision under review when in truth there has been none. The concern of the court ought to be substance not semantics. To adopt Lord Hoffmann's phrase, the court must be wary of becoming embroiled in "narrow textual analysis".

    24. In the present case it is important also to bear in mind that the Deputy Judge was giving an ex tempore judgment at the end of a hearing which had occupied only one day, and in the presence of the parties who had been present throughout the hearing and who had heard both [the CAFCASS officer's] evidence and counsel's submissions – all of which must have been fresh in their minds as they listened to the judgment being delivered."

    54. To this, I would simply add that when considering whether a judge has taken an inappropriately "linear approach", it must be borne in mind that a judgment is necessarily linear. A judge may hold simultaneously in his or her head a large number of factors, whilst processing them in various ways, for example subjecting them to individual evaluation, comparing them, looking at the whole picture and determining what is in the child's best interests. But, however perfectly he may do this, when it comes to setting it down in a judgment, he will have to take it step by step, limited by the imprecision and inflexibility of the written word. That must be taken into account in considering whether it has been demonstrated that he has fallen into error.

    55. I turn therefore to look at Judge Tucker's judgment, concentrating on substance rather than pure form, recognising that this was an ex tempore judgment, making allowances for the limitations of language, and taking into account that the parties and their lawyers were well aware of the facts of the case and the arguments that had been advanced.

    56. Looking at the question of proportionality first, Mr Wilson did not argue that Judge Tucker was necessarily obliged to carry out a separate consideration of proportionality. He accepted that the question of proportionality is bound up with the welfare analysis, provided the welfare analysis is done correctly. Here, in his submission, it was not, and a proportionality analysis would have revealed the flaws and enabled the judge to reach the right answer. As he accepted, this turns the spotlight principally onto the judge's consideration of welfare.

    57. Mr Wilson took a similar, realistic, line about the judge's failure specifically to cite the authorities on relocation. He did not argue that it was always necessary to recite the law but argued that here, the failure to do so added to the picture of a judge who, although she was aware of the relevant principles, had not put them into practice and carried out the welfare analysis correctly.

    58. He argued that the judge's concentration was, inappropriately, upon the mother's plans and that she failed to consider the father's plans separately, in comparison, or as part of the whole. It is correct to say that the judgment does not inform the reader of what the father's plans were. Obviously, he was proposing that A remain living in England, but he did not propose that she move to live with him, rather that she would continue to be based with the mother who would remain in this country. He did, however, put before the judge a proposal that contact be increased from the level at which it was to staying contact every weekend with an overnight stay on one night during the week. This was not agreed by the mother and the level of future contact would have required determination by the judge. Had the detail been likely to have a material impact upon the outcome of the relocation application, this would have had to be done, on a putative basis, before the judge could decide the relocation application. However, the proposed evolution of contact was an incremental rather than a radical change, and Mr Wilson did not criticise the judge for failing to deal with this point specifically. His argument was much more fundamental, to the effect that the judge failed to put the father's plans into the mix at all. From amongst the various arguments that he advanced, this was the one which, to my mind, was the most powerful.

    59. However, having considered the circumstances in which the judgment was delivered, and considered the judgment as a whole, I was not ultimately persuaded by it. Counsel for the mother made the sound practical point that it was likely that the mother's proposals, being the new proposals, would be subjected to greater exposition and scrutiny in the judgment than existing arrangements. It does not mean that the judge ignored the father's proposals. The judge knew that the father was proposing that A stay in this country; that was what the case was all about. She was equally well aware of his proposal that contact continue on a regular basis and it can be seen from §14 that she knew that his primary objection to the move was that it would interfere with the regular time he spends with A and therefore with his relationship with her. She gave consideration to the contact that would follow a move (Skype, telephone and stays during holidays) to which she made reference in §12, and which she recognised would be different, but concluded would be just as effective and meaningful (§23). In these circumstances, I do not accept that the judge failed to give consideration to the father's proposals. I will presently deal with the question of whether her evaluation of them could validly be criticised as too superficial.

    60. On paper, Mr Wilson made a submission that the judge's approach was, to put it in my words, too Payne v Payne. He pointed, for example, to the heading that introduced one section of the judgment which incorporated the particular factors highlighted in Payne v Payne, and suggested that this was at the expense of a "more holistic welfare analysis". That submission did not, however, withstand the oral argument. When the judgment was looked at as a whole, it was apparent that the judge's approach was welfare based and that, whilst she looked at Payne factors, as she was entitled to do, she did not to so to the exclusion of other relevant factors and nor did she give them determinative or undue weight. As she said herself, she started with welfare and ended with welfare, that being the paramount consideration.

    61. Mr Wilson also argued that the judge had failed to process the relevant factors properly, that is to say not just stating them but analysing their implications, comparing them, and setting out in a reasoned way how she treated them in the equation. This is what I referred too earlier as the question of whether her evaluation of the factors was too superficial. One main area in which she was said to have erred was by failing to weigh the impact that A moving to Ireland would have on her relationship with the father. In this respect, the judge was said simply to have stated her conclusion that A would be able to have an "effective and meaningful" relationship with the father without explaining why she thought that. I have already identified passages in the judgment where the judge dealt with contact in Ireland and where she referred to the more frequent contact that was taking place in England. True it is that those passages are not juxtaposed, but the judge did go on to consider the question of the impact of moving and of not moving, in close proximity in the section of her judgment where she dealt with welfare. Here, she demonstrated that she was taking account of the good things that could be said about A's relationship with her father ("how much fun she has with her father and her father's family"), the importance of that relationship to A in future (which she said A "needs" and which she thought the mother could deal with appropriately), and the change that would be brought about by the move.

    62. The judge was criticised for dealing with change too superficially, commenting that it was always difficult, and, it was said, failing to give value to the benefits of the status quo. That is not a valid criticism, in my view. The judge went on to consider the ways in which permitting the relocation or refusing it might affect A. She thought there was a risk that keeping A here might lead to a deterioration in her relationship with the father, for perfectly tenable reasons, the first of which was that A wanted to go to Ireland. That wish, although not determinative, will have had implications for the weight to be given to the status quo; the benefits of a status quo that no longer accords with the wishes of child of A's age may weigh differently from a status quo to which no exception is taken. Furthermore, the judge did not content herself with the observation that change is always difficult. She expressly recognised the risk that going to Ireland might adversely affect A's relationship with the father but, although the contact would be different, she thought it would be effective and meaningful. A would spend half of each school holiday and half term with the father, and have Skype and telephone contact in between. The judge could have spelled out in more detail why she thought that would be effective but it was not an unconventional amount of contact and is of the sort that is accepted in other cases as sufficient to maintain a relationship between a parent and their departing child. I would not, therefore, infer that the judge had in any way failed to give full weight to the impact on the relationship of a move or reached unduly optimistic conclusions about it. In short, I do not consider that the father's criticisms of the judge's welfare analysis are made out.

    63. It remains to deal with Ground 4, concerning the judge's treatment of the CAFCASS officer's recommendation. I can do that shortly as it is essentially despatched along with Ground 2. The argument was that the CAFCASS officer failed to carry out a proper evaluation of all the factors that were material to the relocation decision before recommending that the mother's application be granted, and that the judge did not acknowledge the limitations of the CAFCASS officer's report and imported the same flaws into her own judgment. The judge was taken to task about this in the post-judgment discussions and said that she had been assisted by CAFCASS as to the child's wishes and feelings, but was not influenced by the CAFCASS officer in relation to other matters. Her judgment shows that she carried out a sufficient consideration of the case herself and arrived at a welfare decision which was open to her on the material presented to her from other sources. There is nothing, therefore, in this ground of appeal.

    64. It was for these reasons that I decided that the appeal should be dismissed.

    Lord Justice Tomlinson:

    65. I agree.

Judgment, published: 05/10/2016


Published: 05/10/2016


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