Leanne Wilson v Dean Robert Auld
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE THORPE,LORD JUSTICE WALL, MRS JUSTICE BLACK |
| Judgment Date | 04 November 2004 |
| Neutral Citation | [2004] EWCA Civ 1587 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | B1/2004/2052 |
| Date | 04 November 2004 |
[2004] EWCA Civ 1587
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUAYSIDE LAW COURTS
(HER HONOUR JUDGE MOIR)
Royal Courts of Justice
Strand
London, WC2
Lord Justice Thorpe
Lord Justice Wall
Mrs Justice Black
B1/2004/2052
MR ROGER MCCARTHY QC (instructed by Messrs Hart Jackson Hall Smith, Newcastle upon Tyne NE1 6QE) appeared on behalf of the Appellant
MS ALISON BALL QC AND MS PAULINE MOULDER (instructed by Watson Burton LLP, Newcastle Upon Tyne NE99 1YQ) appeared on behalf of the Respondent
(Approved by the Court)
Thursday, 4 November 2004
The parties to this appeal met in 1999 and started to cohabit some five months after their meeting. Their only child, A, was born on 13 November 2000. She is, accordingly, only a few days away from her fourth birthday. The parents parted finally in March 2004. At the time of the parting there was a real issue between them arising out of the mother's plans to spend two years in South Africa furthering her academic career. There was no order in relation to A, other than a parental responsibility order, which was made by consent on 21 May 2004. Shortly before that, the father issued an application for a residence order, which was an essentially defensive application, given his anxieties arising out of the mother's plans. Unfortunately, the issue of whether or not the mother might take A with her to South Africa was not tried out until September. The mother was planning to leave on the 20th, and the judge's judgment, after approximately three days of oral evidence, was given on the 9th. The judgment was disappointing to the mother in that it refused her application for permission and granted a joint residence order to each of the parents. An application for permission to appeal was filed in this court on 23 September.
There is an inevitable nexus between cases involving the abduction of children and cases involving the relocation of children. Accordingly, every endeavour is given in this court to prioritise such cases.
The application for permission was referred to me on 30 September. On the same day, I ordered an oral hearing on notice with appeal to follow if permission granted. My direction was that it must be listed before 12 November. Today, Mr Roger McCarthy QC for the mother, concedes that the joint residence order made by the judge below should stand if we should grant permission to relocate. Therefore the sole issue for us is whether the judge's discretionary refusal of permission is flawed.
Before considering her judgment it is necessary to sketch in the scene a little. The father is from Newcastle. He is in his early 30s. He is some ten years older than the mother. She is a scientist in a specialist field currently investigating water scarcity in South Africa. She obtained a First Class degree at the University of Northumbria in 2003. She was then employed by a local company for 12 months, ending July 2004, collating and analysing data relevant to the United Nations Framework Convention on Climate Change. At the same time, she took an MA course in Gender Culture and Development at Sunderland University. From the month of February 2004 she has also been employed by the Department of Geography Politics and Sociology at Newcastle University as a research associate. The employment contract runs until September 2006 and is designed to earn her her PhD. The project, however, absolutely requires her to spend two years working in South Africa, part at Pretoria University and partly in the field.
I turn now to the submissions of counsel. Mr McCarthy makes two principal submissions. The first is clearly set out in paragraph 12 of his skeleton argument. He states that the case of Payne v Payne [2001] EWCA Civ 166 was applied to the decision, despite the distinction from the usual removal case that this was not a permanent removal. Accordingly, the judge required the mother to overcome the same hurdles as she would have faced in an application for permanent removal. There was no adjustment of the Payne guidelines to reflect the lesser effect of a temporary loss of frequent contact, as opposed to the effect of permanent removal.
Mr McCarthy 's second principal submission is to be found expressed between paragraphs 27 and 33. In the development of the point, Mr McCarthy refers to the importance, in the relocation jurisprudence, attached to the needs or opportunities of the stepfather's career, and he refers to the decisions in (Re B (Removal from Jurisdiction); Re S (Removal from Jurisdiction) [2003] EWCA Civ 1149, which emphasises that consideration. That leads him to say, as he does in paragraph 32, that there is no good non-discriminatory reason for adopting a different approach to the career aspirations of the female as breadwinner; and there is no good non-discriminatory reason for adopting a different approach to the lone parent who is not relying on someone else as a breadwinner. He continues in paragraph 33:
"An approach (however unintentional) which allows the career aspirations of the step parent or partner to be a very powerful factor but which relegates the career aspirations of the single parent or the female parent to a lifestyle choice, is discriminatory in its effect."
Miss Alison Ball QC responds that all the appellant's submissions are founded on the false premise that this mother is the primary carer. This, says Miss Ball, is a case of a type increasingly common where the parents have developed a shared and equal care arrangement. Once the judge has established that fact, the considerations attaching to a case of relocation by a primary carer (that is to say sympathetic regard for her need or the need of a new partner to relocate and careful assessment of the impact of refusal) diminish. Miss Ball adds that the judge exercised a careful discretion and concluded that the detriment to A of a two-year removal from her father and all that is familiar to her far outweigh the detriment to the mother of a career setback.
Mr McCarthy in reply accepts that care is shared, but not equally, given that A's main base is undoubtedly with the appellant. She spends five nights a week in her mother's home and two nights a week in her father's home. The mother had resisted the father's application for a shift to a pattern of three nights in his home and four nights in the mother's home. The mother's resistance was expressed as a concern that A should have her home base with her, her mother, and regular contact to her father. On this point of detail, the judge upheld the mother's resistance. In those circumstances, Mr McCarthy submits that his primary submissions hold good.
I turn to my conclusions. In my opinion, Mr McCarthy is entitled to succeed on his first principal point. The judge, in paragraph 32 of her judgment, directed herself as to the proper approach. In paragraph 31 she had referred to the case of Payne v Payne, and particularly to paragraph 85 of the judgment of the President, which the judge read into her judgment verbatim. She then continued in paragraph 32 thus:
"Of course the difference in the case I am called upon to decide is that there is no residence order and I am satisfied, as I have already found and expressed, that the care is shared between these parents. The other difference of course is that this application is an application for temporary removal from the jurisdiction. It is not an application for a permanent relocation. Nevertheless the consideration set out by the President are of course applicable."
It is that final sentence of the citation which, in my judgment, demonstrates conclusively the error of law into which the judge fell.
The considerations relevant to an application for permission to relocate permanently are simply not automatically, or perhaps at all, applicable to applications for temporary removal. The consequence of the misdirection is that the judge's assessment of detriment to A in the diminution of contact to her father and all that is familiar, was an assessment as though the diminution and loss would be permanent and not temporary. Similarly, the criticism of the mother for prioritising her career before the interests of A again proceed as though her plan was for a permanent removal.
The relocation jurisprudence in this jurisdiction sets a high test for any applicant for permanent removal for the obvious reason that relocation exposes children to upheaval, loss of what is familiar and exposure to the unfamiliar. Reduction of contact with the other parent is an almost universal feature. Thus it is that the removal itself and the fact that it is permanent requires the court's most careful scrutiny. All the authorities in this jurisdiction over the last 35 years consider applications for permanent removal. The reported cases in other jurisdictions in the common law world share this essential characteristic.
Section 13 of the Children Act 1989 which states, somewhat ambiguously, under the heading "Change of Child's Name or Removal from Jurisdiction":
"(1) Where a residence order is in force with respect to a child, no person may —
…
(b) remove him from the United Kingdom;
without either the written consent of every person who has parental responsibility for the child or the leave of the court.
(2) Subsection (1)(b) does not prevent the removal of a child, for a period of...
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