D (Children)

JurisdictionEngland & Wales
Judgment Date19 October 2010
Neutral Citation[2010] EWCA Civ 1267,[2010] EWCA Civ 50
Docket NumberCase No: B4/2009/2393,Case No: B4/2010/1709
CourtCourt of Appeal (Civil Division)
Date19 October 2010

[2010] EWCA Civ 1267

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM LUTON COUNTY COURT

(Her Honour Judge Corbett)

Before: Lady Justice Black DBE

Case No: B4/2010/1709

Between
In the Matter of D (A child)

The Applicant appeared in person.

The Respondent did not appear and was not represented.

Lady Justice Black

Lady Justice Black:

1

This is an application by the father for permission to appeal a decision made by HHJ Corbett on 25 June 2010. She made that decision in proceedings relating to two children, D, who is aged 7, and N, who is aged 10.

2

The father's marriage with the mother was dissolved in 2006. She wished to return with the children to her native Slovakia. There is a long history of her application to do that. She commenced proceedings before August 2008 on a date which I am not able to divine from the papers, but I know that proceedings were determined by a District Judge who gave her permission to relocate to Slovakia. The father then successfully appealed to a circuit judge, Judge Corbett as it happened, against the District Judge's determination and she ordered a retrial. The father applied for the children to be represented at the proceedings before the circuit judge to determine again the question of permission, but that application was refused and so the parties to those proceedings were the mother and the father but not the children.

3

There was a re-hearing of the matter before Judge Corbett over several days. That culminated in her giving permission again to the mother to relocate to Slovakia, as she explained in a judgment of October 2009. The father appealed against Judge Corbett's decision. That matter came before Wall LJ in the context of an application like this one for permission to appeal. I have the judgment from that hearing, which has been reported as Re D (Children) [2010] EWCA Civ 50. The father sought to challenge the circuit judge's approach to the case both in terms of its specifics and also as a more general point, because Judge Corbett had applied Payne v Payne, which the father argues should no longer be treated as a valid approach in cases of this type. Wall LJ gave extremely careful consideration to the case. He reserved judgment on the permission to appeal application so that he could look more at the papers and think about the issues that are involved. That is actually, although the father may not realise it, a very rare course on an application of this type. It has to be acknowledged that I am not in any way acting as a court of appeal against what Wall LJ determined on that occasion. He concluded that he could be satisfied that Judge Corbett had given the case her full attention and had striven to do what she thought was the best for the two boys. She had given, he thought, a conscientious and careful judgment which reached a result that was open to her. She had correctly directed herself that the welfare of the children was her paramount consideration and she had applied the welfare checklist. Wall LJ sets out in his judgment a summary of how Judge Corbett dealt with the various aspects of the case and how she analysed the facts.

4

The father had advanced an argument that the, as he put it, “central tenet” of Payne v Payne is defunct. The judge, Judge Corbett, set that out but concluded that it was not open to her to differ from Payne v Payne. That was entirely correct as far as her role in these proceedings was concerned.

5

Wall LJ could, however, have given permission to the father to appeal Judge Corbett's order to the Court of Appeal with a view to arguments being considered about Payne v Payne with the possibility of the matter going further to the Supreme Court. He obviously recognised that and he said explicitly in paragraph 33 of his permission judgment:

“There has been considerable criticism of Payne v Payne in certain quarters, and there is a perfectly respectable argument for the proposition that it places too great an emphasis on the wishes and feelings of the relocating parent, and ignores or relegates the harm done to children by a permanent breach of the relationship which children have with the left behind parent”

6

He recognised that this argument could constitute a compelling reason for giving permission to appeal to the Court of Appeal. He said this at paragraph 34:

“34. As I say, this is a perfectly respectable argument, and would, I have no doubt, in the right case constitute a “compelling reason” for an appeal to be heard. The question, to my mind, is twofold: (1) has the time come to reconsider Payne v Payne; and (2) is this the right case? I propose to concentrate on the latter question, since in my judgment both have to answer “yes” if permission to appeal on this ground is to be granted.

35. In my judgment, this case is not the right case for a challenge to Payne v Payne. In the first place, on the facts, the respondent makes a powerful case for relocation. Secondly, there is currently no legislation requiring a different approach in place, with the consequence that were this case to go the Supreme Court it is probable that – were the Supreme Court to take the view that insufficient consideration had been given to the harm likely to be suffered by the children by relocation and alteration of their current way of life – the Supreme Court would order a re-trial, rather than saying that the judge, in the exercise of her discretion, was plainly wrong. In my judgment, it is contrary to the interests of the children to impose a fourth hearing on this family.”

7

It was the view of Wall LJ that if the matter were entertained by the Supreme Court, it certainly would not simply substitute its own order for that of Judge Corbett and refuse permission to the mother to relocate. Furthermore, any retrial ordered on different principles, the judge said might well, of course, lead to the same result, that is the same result as Judge Corbett's decision.

8

Had Wall LJ thought that an appeal carried a real possibility in this case of leading to a different result for these particular children and a result which would, taking the whole picture, have been better for their interests, then he would have given permission for the appeal. He clearly did not take that view.

9

So that was the position in February of this year. The father had by then exhausted his domestic remedies. He now therefore turned his mind to making an application to the European Court of Human Rights. In order to preserve the position meanwhile, he applied to Judge Corbett, asking for a stay of her permission order. That application was the one which came before her on 25 June of this year. She refused the stay, and it is that refusal that the father now seeks permission to appeal.

10

The father's proposed grounds for the application that he is making to the European Court, I have no doubt, follow very much the form of the document that he has included in the bundle for the purposes of this hearing in front of me. I understand that he has now launched that application. The material supplied in that form and indeed all of the material that the father has supplied in advance of today and today is extremely detailed, setting out the entirety of the case, and is very articulate. I will not go through it all in detail. I am sure that the father understands that, in a judgment of this type, one never refers to absolutely everything that has been advanced in the course of a hearing, but that does not mean that it has not been taken into account.

11

I think it is fair to say that the main argument from all of this, and the one on which the father has concentrated today during this permission hearing, is the argument that Payne is wrongly decided, with the consequence that the trial judge applied the wrong principles and arrived at a decision that would be harmful to the children. He refers particularly to the evidence adduced before the trial judge and subsequently about the harm the children may suffer where they are not being brought up in close proximity to both of their parents.

12

He does also argue that the children should have been separately represented in the hearing before Judge Corbett and he also raises the question of whether there was “political interference”, as he puts it, prior to the hearing before Wall LJ in relation, I think, to the question of who heard the permission to appeal application. He raises, too, the question of the impact of the ancillary relief proceedings on the practicalities of what Judge Corbett had envisaged. He says that there is not now enough money for the relocation to be in comfortable circumstances and, perhaps even more importantly, for him to travel on a regular basis to see the children with their mother in their new home.

13

The mother opposed the stay in front of HHJ Corbett on a number of bases. The judge, rightly, identified that she, the judge, had a discretion whether to grant a stay or not and she gave a number of reasons for declining to do so. She took into account that no appeal had at that point been made by the father to the European Court. I, of course, take into account that now it has. He knew that he had exhausted his domestic rights on 9 February 2010 when Wall LJ determined the permission application. The judge, quite properly, recognised that the father had six months from that date (until 9 August 2010) to launch his proceedings in Europe. Plainly she was right to consider the passage of time between February and her decision in June notwithstanding that the application period for Europe had not yet expired, because delay is very important with children and the European Court's procedure is one...

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