G (Children)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Thorpe,Lady Justice Arden DBE,Lord Justice Wall |
| Judgment Date | 11 December 2007 |
| Neutral Citation | [2007] EWCA Civ 1497 |
| Docket Number | Case No: B4/2007/2375 |
| Court | Court of Appeal (Civil Division) |
| Date | 11 December 2007 |
[2007] EWCA Civ 1497
Lord Justice Thorpe
Lady Justice Arden Dbe and
Lord Justice Wall
Case No: B4/2007/2375
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE PRINCIPAL REGISTRY
FAMILY DIVISION
(HIS HONOUR JUDGE COLLINS CBE)
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr N Mostyn QC and Ms Carew Pole (instructed by Messrs Payne Hicks Beach) appeared on behalf of the Appellant.
Mr S Cobb QC (instructed by Messrs Manches Solicitors) appeared on behalf of the Respondent.
The application before us today concerns the arrangements for the future upbringing of two children: C, who was born on 4 September 1999, and D, born on 25 May 2002. They are truly international children. Their father is French and their mother is German. The parents married in their twenties in the 1990s and the marriage broke down in the autumn of 2006 when they were still in their thirties.
The mother, who was the applicant in the court below, comes from an extremely affluent family who have very substantial business interests in her homeland. There she was educated, in the main, and there her early life was spent, albeit that the family has always maintained a holiday home in Switzerland. She completed her university education and worked for a time in one of the two family businesses before coming to London where, in partnership with one of her two sisters, she attempted to set up an upmarket clothing shop in Beauchamp Place. The venture failed and approximately two years after initiation it closed at considerable financial loss to both the sisters. Unfortunately, as well as losing money, they lost their intimate relationship as sisters for a number of years.
The father has a background which, although largely French, does have an English ingredient insofar as his parents are partially resident in London for tax reasons. He was employed in the city by a leading American bank at a very substantial salary until he quit to enter the world of pure research at Oxford. He is studying for a doctorate, and he has obviously done very well in his studies. There is every likelihood that he will complete his doctorate with dissertation and viva voce examination next year. Once that is behind him he will have many career choices, both in the sphere of pure medical research and, I suppose, in the world of high finance where he is self-evidently also qualified.
There have been proceedings following the breakdown of the marriage, both in relation to the children and in relation to money. Those proceedings have been sadly contentious, even bitter. The father is currently in receipt of a periodical payments order at the rate of £215,000 per annum. His claims have advanced beyond the stage of the FDR appointment. That failed to resolve the financial dispute, and the trial is fixed for hearing sometime next summer. The coexistence of those proceedings has hardly assisted the resolution of plans for the children's future.
The father issued an application for a joint residence order and shortly thereafter the mother issued an application for permission to return home with the children to the area from which she comes. Specifically she has sought to substantiate plans for a home on the outskirts of Düsseldorf and for the children to be entered into an international school, similarly on the outskirts of Düsseldorf. It seems that Düsseldorf is some 75 kilometres from Düren, which is the site of the two family businesses. It is the town where her father lives in proximity to the works and it is the town in which the mother grew up as a child.
The application led to statements, one way and the other, and of importance was the assessment of a CAFCASS officer, which involved a number of meetings with the children and, of course, with the parents. Her written report was dated 9 August and extended to some 18 pages. Her final paragraph was headed “Recommendation” and simply read:
“If the court is not persuaded to grant [mother] leave to remove [the daughters] from the jurisdiction then I would recommend a shared residence order with the current arrangements to continue.”
That of course was a recommendation upon the father's application but there was no recommendation in relation to the key issue, which was the mother's application and how that should be determined.
However the recommendation was preceded by two paragraphs under the heading “Conclusion”. There the CAFCASS officer certainly offered the judge a steer, for she said:
“For most of their lives, C and D have been accustomed to either living with both parents or spending significant periods of time with them. The ideal in many respects would be for this to continue and [the mother] remaining in this country would of course best meet this. If they stayed in London, the arrangements could continue as they are. This is of course predicated on both parents living in relatively close proximity to one another.
The court might share my view that the issue of removal from the jurisdiction is a complex one to address, particularly as the children have a strong and secure attachment to their father. While [mother] appears to have a coherent plan and seems to believe that she and the girls would have a better life in Germany she perhaps underestimates the emotional impact there might be on the girls of spending less time with their father and paternal relatives. Neither has she perhaps considered the other losses the girls would experience, for example, friendships and the positive aspects of their lifestyle in London. Furthermore, her plans are centred on her family with whom, at times, she has had a fraught relationship.”
The case then proceeded to trial and the judge had the advantage of oral evidence from the CAFCASS officer, who testified first. Then, inevitably, there was the oral evidence of the parents, augmented by the evidence of one of the mother's two sisters, and there was also evidence from the paternal grandparents, a nanny; and a statement from a friend and former neighbour of the mother.
Each of the parents had the best possible representation at the trial. That is not surprising because obviously they can afford the best. So two highly regarded specialist firms of solicitors were involved and two eminent Queen's Counsel — Mr Cobb, for the mother, and Mr Jackson, for the father. The judge had a considerable experience of the family because he had taken the interlocutory hearings and obviously he had the greatest assistance from counsel, who were able to examine and cross-examine the witnesses with great skill and then to make admirably clear submissions that set out for the judge their respective cases, each emphasising the strength of the points that went for him and equally emphasising the points of criticism mounted against the other case.
The judge then had the comparative luxury of a week in which to consider his decision and to express his conclusions in writing. The trial lasted three days, between 19 and 21 September, and judgment was handed down on 28 September. The judge decided the highly contentious issue in favour of the mother, granting her application to relocate. He also granted the father's application for a joint residence order, an issue that was hardly contested. He decided the level of contact following the children's removal. That was an important issue, since obviously it was his responsibility and intention to protect, as best he could, the very important relationship that the father had developed with the children following the separation. The making of a joint residence order was entirely appropriate, given the fact that the children were spending 41%of their time with their father under the generous contact arrangements that had been agreed.
Mr Jackson, at the end of the case, had sought to persuade the judge that in the event of the relocation application succeeding, his client should have more than half the holidays; but that submission the judge rejected in the final paragraph of his judgment.
An appellant's notice was filed in this court following a refusal of permission by the trial judge. There had been some issue as to how swiftly the move should be accomplished. The judge had decided, I think wisely, that there should be an opportunity for preparation and reflection, and he elected to open the way to removal only at the conclusion of the Michaelmas term. The appellant's notice is thought to have been filed about 18 October, and on 24 October I ordered an oral hearing on notice with appeal to follow if permission granted. It seems that the respondent's solicitors ordered transcripts of the oral evidence at about that date and it seems that they were swiftly produced, probably within some seven days of the request. Unfortunately there was then an interlude in which nice points of detailed correction were discussed between the solicitors and eventually conveyed to the transcribers. So instead of the transcripts being immediately made available and scrutinised for the preparation of the appeal, they were not available to counsel in their final approved form until, I think, 6 December.
Accordingly, the only skeleton in support of the appellant's notice is the skeleton settled by Mr Mostyn QC and Mrs Carew Pole as long ago as 12 October. The thrust of that skeleton is to suggest that the leading authority in this court, the case of Payne v. Payne [2001] 1 FLR 1052, was now outdated and heavily criticised, both in this jurisdiction and beyond, by judges, practitioners and academics. The decision in Payne v Payne was, I think, available in February 2001, and in...
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