K (Child)
| Jurisdiction | England & Wales |
| Judge | Lady Justice Black,Lord Justice Tomlinson |
| Judgment Date | 05 October 2016 |
| Neutral Citation | [2016] EWCA Civ 931 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B4/2016/0317 |
| Date | 05 October 2016 |
[2016] EWCA Civ 931
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BIRMINGHAM CIVIL JUSTICE CENTRE
HER HONOUR JUDGE TUCKER
BM14P08953
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Black
Lord Justice Tomlinson
Case No: B4/2016/0317
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: 24 th August 2016
Approved Judgment
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.
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.
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
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.
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.
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.
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.
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.
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.
Facts
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.
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.
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.
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.
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.
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."
The judge found that, in...
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