Chamberlain v De La Mare
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ORMROD,LORD JUSTICE WATKINS,LORD JUSTICE GRIFFITHS |
| Judgment Date | 29 July 1982 |
| Judgment citation (vLex) | [1982] EWCA Civ J0729-2 |
| Court | Court of Appeal (Civil Division) |
| Date | 29 July 1982 |
| Docket Number | 82/0363 |
[1982] EWCA Civ J0729-2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
(Mr. Justice Balcombe)
Royal Courts of Justice
Lord Justice Ormrod
Lord Justice Watkins
and
Lord Justice Griffiths
82/0363
4881 1976
MR. SCOTT BAKER, Q.C. and MR. D. MATHESON (instructed by Messrs Collyer Bristow, solicitors, London) appeared on behalf of the Appellant (Petitioner).
MR. L. SWIFT, Q.C. and MR. S. BELLAMY (instructed by Messrs A. E. Smith & Son, solicitors, Gloucestershire) appeared on behalf of the Respondent (Respondent).
This is an appeal by the mother from an order made by Mr. Justice Balcombe on 18th June 1982 on her application for leave to take the two children of her former marriage to the United States, to which country her husband, if not has to go on business, certainly is anxious to go there to live for business reasons. The learned judge refused that application and the mother now appeals to this court.
The two children concerned are James, born on 24th April 1973 and William born on 24th July 1975, so they are respectively aged 9 and 7.
The father and mother were married on 26th October 1972. Their present ages are 44 the father, and 37 the mother. The marriage was dissolved on 1st November 1977 by decree nisi and custody, care and control of the two boys, who were at that time aged 4 and 2, was given to the mother. The decree absolute was 8th May 1978. The mother remarried on 20th June 1978. On 9th February 1979 she had a baby, Tom, who is now therefore 3, by her second husband, Mr. Chamberlain.
There were difficulties over access between father and mother, for reasons which are not at all clear on the evidence. The issue was about staying access primarily, the mother objecting to it, the father anxious to have it. He has not remarried and lives both in London and in the country.
The matter came to a head in circumstances about which I shall say nothing because there is very little material before this court on which to express a view, on 3rd April 1980 when His Honour Judge Holdsworth heard an application by the mother to suspend staying access. At that time there was evidence from a psychiatrist, Dr. Prince, who had been seeing these boys and had formed the view that staying access was not in their interests. The learned judge acceded to the mother's application and staying access to the father was suspended. Thereafter access has been going on on the basis of visiting access every other Sunday for the whole day and the evidence of Dr. Prince was that this arrangement was working out reasonably well and the boys' attitude towards their father was becoming better. Dr. Prince thought that staying access, other things being equal, might have been resumed at the end of this year, although he required a further opportunity to consider it nerer the time. That was the position.
The step-father is a partner in a firm which manages what are sometimes called P and I clubs, and a critical situation suddenly blew up in his business affairs in May this year. Very shortly, what had happened was that the firm had planned to open (using colloquial language for the moment) a branch in New York, or Bermuda, and he had had a great deal to do with the preparatory work in setting up this new enterprise for the partnership. It is an enterprise to which the partners attach great importance. They had a senior man in the partnership who, it had been decided, would go when the time came, to New York, open the office and run it for a while until he retired, which would be two to three years ahead, and the long-term plan at that time was that the step-father would take over in due course. But the plans did not work out because the senior man did not find living in New York congenial and in May this year a definite decision was taken that he would not open the office in New York. He wished to come home to this country and did so early in May.
There was obviously an immediate crisis in the business. somebody had to go to New York and I think it is clear from the evidence which the step-father gave to the learned judge that he was the obvious person in the partnership to go and take over this responsibility. That, of course, immediately necessitated an application to the court for leave to take these two children permanently to the United States for the foreseeable future.
The mother swore an affidavit dated 27th May in which she set out the situation quite dispassionately, not indicating the particular urgency of her husband's position. But in evidence before the learned judge he made it abundantly clear that, although it could not be said that it was absolutely mandatory upon him to accept this appointment in New York, it was going to create extraordinary difficulties if he did not take it up. That, therefore, produced a situation where it became very urgent indeed that leave be obtained to take these children permanently to the United States.
The application, of course, was, to some extent, sprung suddenly on the father, and one understands the enormous grief and pain that proposals of this kind always cause to the parent who is left in this country. It means inevitably that contact with the children is greatly diminished and it does mean that the children will live in a background which is, from the point of view of the parent in this country, an alien one, and it is a situation apt to lead to conflict. In this case it has certainly led to conflict.
At page 42 of the transcript there is an extract from the father's affidavit, which I regard as unfortunate. He put his case in his affidavit on the basis that he had thought for a long time that the mother and the step-father had been seeking to exclude him as the children's father and he said: "I believe that Mr. and Mrs. "C" have seized the opportunity of going to America in order to achieve this aim." That is his attitude and the basis of his opposition to the mother's application.
The learned judge had to balance the interests of the children in relation to the two proposals and, in view of some things which the learned judge said, it is very important to see exactly what is proposed by the father. He proposed that leave should be refused to take these children out of the jurisdiction. He did not propose that he should take over the care and control of the children, because he cannot provide a home for them, but what he did propose—and this is the sting—is that the mother and her present husband should remain in England and look after the children in England. When the two proposals are contrasted, one can see quite clearly what the real underlying issue in the case is. It is, I must say, a proposition which strikes me with some surprise, that a father should seek to hold his former wife in this country in order that she should continue to look after these children here unless it is plainly very important indeed to these children that they should remain here. It seems to me, looking at this situation not only as a judge but as a humanbeing, that he who puts forward such a proposal has a heavy burden to discharge. In ordinary human terms it might be thought reasonable to consider the interests of these little boys in a broad sense and with rather more detachment from his own feelings.
The learned judge, as I said at the outset, refused leave and his reason, in a sentence, was that he decided that it was in the best interests of these children that they should remain here with their mother to preserve their contact with the father, although, as he put it, it would be "inconvenient" for the mother and step-father.
I think, with respect, that the learned judge did not approach this problem on quite the right lines. In his judgment he obviously attached considerable importance to the view which he had formed of two very well-known cases in this court, Poel -v- Poel 1970 1 WLR, 1469, and Nash -v- Nash 1973 2 AER, 704. Those two cases have been referred to countless times in applications for leave to take children out of the jurisdiction and I would not have felt it necessary to comment upon them had it not been for the fact that the learned judge in his judgment seemed to cast some doubt on the authority of these cases. He said that he considered it was his duty (and here he is plainly right) to follow decisions of the Court of Appeal, insofar as they laid down principles of law and he also thought it was his duty (and again he is plainly...
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