M v M (Minors) (Removal From Jurisdiction)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE NOURSE |
| Judgment Date | 25 November 1991 |
| Judgment citation (vLex) | [1991] EWCA Civ J1125-2 |
| Docket Number | 91/1104 |
| Court | Court of Appeal (Civil Division) |
| Date | 25 November 1991 |
[1991] EWCA Civ J1125-2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE NORWICH COUNTY COURT
(HIS HONOUR JUDGE BINNS)
Royal Courts of Justice
Lord Justice Nourse
and
Mr Justice Cazalet
91/1104
Mr JOHN F.R. HARWOOD-STEVENSON, instructed by Messrs Hayes & Storr (Fakenham), appeared for the Appellant (respondent).
MR PETER HORROCKS, instructed by Messrs Leathes Prior (Norwich), appeared for the Respondent (Petitioner).
On 23rd March 1991, in divorce proceedings in the Norwich County Court, His Honour Judge Binns made an order allowing the wife, a French national, to remove permanently from the jurisdiction the two children of the marriage, girls now aged 13 1/4 and 8 1/2 respectively. The husband has appealed to this court, contending that it is clearly shown that the children's removal to France would be against their interests. The marriage having been dissolved and the appeal being concerned only with the interests of the children, it is preferable to refer to the parties as the father and the mother. Since the father's appeal involves a direct attack on some of the judge's findings and the manner in which he exercised his discretion, the facts of the case must be stated in some detail.
Both the father and the mother are now in their late 30s. The mother was born and brought up in France. She is trilingual, speaking French, English and Italian. In her early 20s, while she was a student at Grenoble University, she came here in order to improve her English at the University of East Anglia. It was while she was in this country that she met the father, who was born and brought up in Norfolk. They fell in love almost immediately and were married on 6th August 1977. The elder daughter, S, was born on 30th June 1978 and the younger, A, on 31st March 1983. They lived in the Fakenham area of Norfolk, where the father had various of his relations nearby, including his parents, two brothers and a sister.
The father comes from a different background to the mother, both socially and educationally. The mother, whom the judge described as a highly intelligent and sophisticated woman, is well read, with a variety of cultural interests. The father, who does not share those interests, was described in evidence as a practical, down to earth person. One of his hobbies is sailing. Both parties now acknowledge that they were not well-suited to each other; apart from different interests they had different ideas about the social life that they should lead. From its early days the marriage was not a happy one, although it was not until January 1989 that the final separation came when the father left the matrimonial home.
Evidence was put before the judge showing the differences which had ultimately led to the breakdown of the marriage. However, he made it clear that he was satisfied that the mother was a very good mother who was devoted to the children and had always sought to put their interests first. He thought that she was a proper person to have custody of the children. He was equally satisfied that the father was devoted to the children, having nothing but their best interests at heart. The judge described him as a very sensible, level headed, kind and caring man.
In the early 1980s the mother went through periods of depression. She attributes this to her unhappiness in the marriage. Between 1983 and 1986 the relationship deteriorated. The mother accepts that there were three incidents which she describes as "calls for help" on her part. The father describes them as suicide attempts. In June 1985 the mother collapsed at home, having taken what was described as a token overdose, and was taken to a local specialist clinic. She was suffering, so she says, from stress and depression; she was not suffering from any mental illness as was asserted by the father. She remained at the clinic for 17 days. After her discharge she attended for a short period at an organisation providing support for those who are going through stressful times.
Eventually a decision was taken that the mother should go to France for a spell in order fully to recuperate. She went there with the children in August 1986. There is an issue between the parties as to who was the driving force in deciding that the mother should go on this visit. That issue need not concern us. The upshot was that the mother, having gone to France initially for a period of some weeks, stayed there with the children at her parents' home until August 1987. During that period the children attended schools in France, where they got on satisfactorily. They are fluent in French as well as in English. They speak to their mother in French when in the home. It is not in dispute that throughout the time that the mother and the children were in France both parties always intended that they should come back together. During that period the children were twice with the father, once when he visited France and stayed with the mother's parents over Christmas 1986 and subsequently when they paid a short visit to this country at Easter 1987. Unhappily, after the mother and the children came back to England in August 1987 things did not work out. It was not much more than a year after that that the father left in January 1989. The children remained with the mother in the matrimonial home, a 4-bedroomed house, where they continue to live today.
In 1984 the father, after spells of unemployment, had obtained a job with the ambulance service, in whose employment he remains. Following the separation he went to live with his parents close to the matrimonial home. Some months later he set up home in the vicinity with a Mrs T, who is also employed in the ambulance service. They live in 3-bedroomed rented accommodation. Mrs T has two daughters in their early 20s. In November 1987 the mother obtained part-time work as a teacher at a well known local school. More recently she has obtained an additional part-time job as a teacher at another local school.
The mother's petition was presented on 17th January 1989. A decree nisi was pronounced on 5th April of that year in an order which granted custody of the children to the mother with reasonable access to the father. On 11th April 1989 the mother made an application for ancillary relief. On 30th November 1989 an order was made for the transfer to her of the former matrimonial home, subject to a charge of 25% in favour of the father. The father pays maintenance for the children.
There have been serious difficulties in regard to access, which is now regulated by the interim order hereafter referred to. The mother has maintained throughout that the children do not wish to see the father. She says that they continually complain about the way they are treated when with him, being struck and abused or just being bored. She has contended that it is appropriate that the children should see the father for only one day a month. On the other side the father has strenuously denied the allegations made against him. He has made alternate weekend access arrangements to fit in with his working time in the ambulance service, so that the children can stay overnight one weekend and visit by day the next weekend but one, this pattern being established over a four-week cycle. There has been extended staying access during the school holidays, the children staying with the father for two weeks in the summer holidays 1990 and for three weeks in the summer holidays 1991, the latter period coming after the judge's order.
In June 1989 the father applied for a defined access order. On 20th December 1989 the Norwich County Court directed that a report be prepared by the court welfare officer on the question of access. (A report was not forthcoming until 11th June 1990, by which time the mother's application for leave to remove the children was also dealt with.) Interim defined access was awarded to the father over two weekends, to include one night, in the latter part of December 1989. On 23rd January 1990 the mother made her application for leave to remove the children permanently from the jurisdiction. On 26th January 1990 there was a consent order for interim defined access which is still in force. On 15th February 1990 the father applied for a variation of the order of 5th April 1989 granting custody of the children to the mother. He asked that custody should be transferred to him, alternatively that there should be an order for defined access. Before Judge Binns the father made it clear that if the mother said that she would remain in England, he would not seek to disturb the original custody order. For her part the mother indicated that if the judge declined to grant her leave to remove the children permanently out of the jurisdiction, she would continue to live in this country with them. Accordingly, the essential question was whether leave should be granted or not.
The judge saw and heard a large body of written and oral evidence, including the evidence of the mother and the father and members of each of their families. Dr Bren Knights, a child psychiatrist, who had originally been instructed on behalf of the mother was called to give evidence by the father. Before that he had made two written reports. The court welfare officer, Mrs Langham-Fitt, who had prepared the report of 11th June 1990, also gave evidence. The hearing took place over three consecutive days, the first two being mainly taken up by evidence and the third by speeches and judgment.
We have an agreed note of the judge's judgment. So far as material to the arguments which have been advanced on this appeal, his principal findings were as follows. With regard to the mother, the judge...
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