H (A Child)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Wilson,Lord Justice Lloyd,Lord Justice Jacob |
| Judgment Date | 19 May 2010 |
| Neutral Citation | [2010] EWCA Civ 915 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B4/2010/0663/1145 |
| Date | 19 May 2010 |
[2010] EWCA Civ 915
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT, FAMILY DIVISION,
EXETER DISTRICT REGISTRY
(His Honour Judge Tyzack QC, Sitting as a Judge of the High Court)
Before: LOrd Justice Jacob
Lord Justice Lloyd
and
Lord Justice Wilson
Case No: B4/2010/0663/1145
(LOWER COURT No. BS09P00350)
Mr Anthony Ward and Miss Juliet Williams (instructed by Messrs Milford & Dormor, Ilminster) appeared on behalf of the Appellant Father.
Mr Mark Whitehall (instructed by Messrs Crosse & Crosse, Exeter) appeared on behalf of the Respondent Mother.
Lord Justice Wilson:
A father brings one appeal, and has sought to bring another, against orders made by His Honour Judge Tyzack QC, sitting as a judge of the High Court, Family Division, Exeter District Registry. The primary appeal is against the first of his orders, which was made on 26 February 2010. By that order the judge granted permission to the mother to remove the child of the family, A, a girl, who was born on 20 December 2002 and is thus now aged seven, permanently from England and Wales to live in the Czech Republic (“the Republic”). The subsidiary, proposed, appeal was against the second of his orders, which was made on 5 May 2010. By that order the judge defined the father's contact with A upon the premise that she would indeed be moving with the mother to live in the Republic; so it was consequential upon the first order. Somewhat constrained by the pattern of school holidays in the Republic, the judge provided that the father should have staying contact with A in the United Kingdom for seven days over Christmas, for ten days late in January or early in February in alternate years (being those years in which A had spent her prior birthday and the prior Christmas Day with the mother), and for 21 days in the UK each summer; that he should have further staying contact with A for seven additional days in the Republic each summer; and that he should have such other direct contact with her in both countries as might be agreed, as well as frequent indirect contact.
At the time when he made his first order the judge granted the father permission to appeal to this court. Unfortunately he did so without sight of the proposed grounds of appeal and so his grant has led to argument about its extent. But the judge clearly intended that the father should be allowed to argue to this court that, in the light of the facts which he had found, his grant of permission to the mother to remove A to live in the Republic had not been a proper exercise of his discretion. A transcript of the supplementary judgment delivered on 26 February, by which the judge granted the father permission to appeal, indicates that there were two reasons for that grant. First, he was persuaded that, within the meaning of CPR 52.3(6)(b), there was a compelling reason why the appeal should be heard, irrespective of whether it had a real prospect of success. In this regard the argument on behalf of the father which appealed to the judge was that this might be a case in which the guidance in relation to the determination of applications for relocation set out in the decision of this court in Payne v Payne [2001] EWCA Civ 166, [2001] 1 FLR 1052, might be reviewed, whether in this court or indeed perhaps even, on further appeal, in the Supreme Court. Sometimes, however, this court will have a better overview than a trial judge as to the case which is best suited, whether in this court or more particularly in the Supreme Court, to provide a test for a controversial area of judge-made law or guidance. The judge's second reason for the grant of permission to appeal was that the lack of final resolution of the issue was taking a heavy toll on the emotional health of the parents, and thus indirectly on A, and that the grant would accelerate this court's determination of the appeal which in any event the father intended to try to bring. With respect, I am not persuaded that in the event the judge's grant of permission to appeal has accelerated the court's determination of the proceedings brought by the father. I consider that, had the judge refused permission to appeal in the usual way, a judge of this court would quickly have listed the father's proposed appeal for oral hearing, on notice to the mother, on the basis that his application for permission would be considered first and that, were permission granted, the substantive appeal would follow forthwith. Had that more conventional route been taken, we might well have heard that matter, as thus formulated, either today or quite possibly even prior to today. Thus, if I may say so with respect, not much has been gained, albeit, in fairness, perhaps not much has been lost, by the judge's grant of permission to appeal.
The judge did not grant permission to the father to appeal against his contact order dated 5 May 2010. Thus the father first needed to persuade us to grant permission to appeal against it. Of course, were the father's appeal against the relocation order to succeed, the order for contact would fall. The subsidiary appeal was sought to be brought in case the primary appeal were to fail. The ground of the proposed appeal against the contact order, as pleaded, was that the judge was plainly wrong to order that, out of the two month school summer holiday which A would enjoy if resident in the Republic, only four weeks should be spent with the father, including only three weeks thereof with him in the United Kingdom; and that the only proper order in that regard would have been to grant contact to the father for six weeks of that holiday and at such location as the father might choose. When, however, we pointed out to Mr Ward, who now enters the case, leading Miss Williams, on behalf of the father, that it would be very difficult for him to appeal against a determination about the quantum of summer holiday contact made in accordance with the advice of a Cafcass officer as to the length of time for which, at her age, A might reasonably be separated from the mother, Mr Ward in effect withdrew his application for permission to appeal against the contact order and, reasonably enough, chose to argue instead that the limited direct contact with A if resident in the Republic, which was all that the judge felt able to provide for the father, was a strong reason why he had been wrong to grant the mother permission to remove her to live in the Republic.
The judge heard the mother's application for permission to relocate on 16 and 21 September 2009 and on 18 and 19 January 2010. While then announcing his decision, he reserved judgment. He disseminated a written judgment on 19 February and formally handed it down at the hearing on 26 February 2010.
Prior to the start of the hearing, a conventional order had been made for the production of a report by a Cafcass officer. Mrs Perryman duly filed a report, dated 7 September 2009. The lengthy adjournment of the hearing between September and January was precipitated by a direction by the judge on 21 September that Mrs Perryman should make a variety of enquiries on the ground in the Republic. Thus Mrs Perryman went to the Republic for five days in October 2009—being a week when, most conveniently, the mother and A had been permitted to spend A's half term holiday there—and Mrs Perryman filed a supplementary report in respect thereof, dated 12 January 2010. It was extremely helpful for the judge to receive Mrs Perryman's report about the arrangements which would be made for A in the Republic in the event that the mother's application was to be granted; and her very positive report in that regard greatly fortifies the judge's conclusions in that area. It is, however, not usual in relocation cases for a judge to commit the State to the substantial expenditure attendant upon the visit of a CAFCASS officer to make enquiries in the intended country of relocation; it is, rather, for the applicant, on her or his own behalf, to establish before the court that the arrangements for the child abroad are firm and satisfactory; and, if ever such expenditure were generally to have been justified, those days are gone.
The mother is a national of the Republic. She was born there in September 1978 and thus is now aged 31. Until 2000 she lived there. Her parents, grandparents and brother all live in the family home in Ondrejov, which lies about 30 kilometres from Prague.
The father is British. He was born in July 1961 and thus is now aged 48. His parents live in Manchester.
The mother came to England to work in 2000 and developed a relationship with the father. In February 2002 they were married. For the mother, it was a first marriage. For the father, it was a third; he has no child by either of his previous marriages.
The mother is by training a nurse. The father is qualified as a mechanical engineer but a number of his jobs have been on a much less well-remunerated level. At times during the marriage he worked as a carer for old people and at the moment he is working in a garage and (so Mr Ward tells us) is earning as little as £1,000 net per month. Unsurprisingly the father hopes to achieve more demanding and better paid work in some field or other.
The parents, together with A once born, lived in England until May 2004. Then, however, in particular at the urging of the mother, they went to live in the Republic. They lived in the Republic until June 2007. Even at that early stage the mother had not felt settled in England. The result of their move to the Republic is that the mother is able to point out that A...
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