M v M (Removal from Jurisdiction)
| Jurisdiction | England & Wales |
| Judgment Date | 1993 |
| Date | 1993 |
| Year | 1993 |
| Court | Court of Appeal (Civil Division) |
NOLAN, LJ AND HOLLIS, J
Children – removal from the jurisdiction – parents divorced – custody of children to mother – access to father – mother applying to remove children permanently to Israel – children wishing to remain in England and maintain contact with their father – welfare officer's report supporting children's view – Judge granting application – whether Judge had given adequate weight to the ascertainable wishes and feelings of the children and the likely effect of any change in their circumstances.
The parents came to England in 1978 or 1979. The mother was born in and came from Israel. The father came from Trinidad. They started living together in 1980 and had two children, a boy born on 5 October 1980 and a girl born on 15 September 1981. The parents married in 1983 and separated in 1986. There was some sort of reconciliation in 1987 but eventually the marriage was dissolved. From 1987 until the end of 1990, the parties continued to live under the same roof, but not as man and wife, and the father had close contact with the children. In the divorce proceedings, the parties were granted joint custody with care and control to remain with mother and reasonable access to the father. Since the end of 1990 the mother had been the main provider for the children, the father being out of work.
During 1991, the mother applied for leave to remove the children permanently to Israel where she believed she would be able to provide a better standard of living for the children. The children had visited their grandparents in Israel during the summer holidays and were learning Hebrew. The welfare officer prepared two reports for the court. The children said they enjoyed the contact they had with their father and wished to have increased contact with him. They were doing well at school and wished to remain in England. In her first report, the welfare officer advised that it was in the children's best interests for them to remain in England and that contact with their father should be increased and include staying contact. In her second report, she noted that the mother was prepared to arrange and pay for the children to return to England twice a year. The welfare officer stated that her views had not changed very much but she would make no firm recommendation because the children were likely to have a difficult time whatever happened.
The Judge considered the principle set out in s 1 of the Children Act 1989 (which did not strictly apply to the proceedings) that the children's views be taken into account. He also considered that where a custodial parent wished to emigrate and the reasons for doing so were reasonable, leave should normally be given. The Judge granted the mother leave to remove the children permanently from the jurisdiction and the father appealed.
Held – allowing the appeal: The Judge was aware of the need to take into account the
ascertainable wishes and feelings of the children and the likely effect of any change in their circumstances. Unhappily, the Judge really did no more than pay lip service to the views of the children. The children were articulate and intelligent and of an age when considerable weight should be given to their views. Their removal to Israel would disrupt the contact which the children had with their father and which they wished to continue. It would also mean a substantial change in their education and the main language used by the children. Further the Judge had not taken much account of what the welfare officer had said in her first and most of her second report. The decision to grant the mother's application was plainly wrong and the appeal would, therefore, be allowed.
NoteSection 1 of the Children Act 1989 provides:
"(1) When a court determines any question with respect to –
(a) the upbringing of a child ...
the child's welfare shall be the court's paramount consideration.
(3) In the circumstances mentioned in subs.(4), a court shall have regard in particular to –
(a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);
(c) the likely effect on him of any change in his circumstances ...
(5) Where a court is considering whether or not to make one or more orders under this Act with respect to a child, it shall not make the order or any of the orders unless it considers that doing so would be better for the child than making no order at all."
John Downing for the father.
Gary Crawley for the mother.
LORD JUSTICE NOLAN.I shall ask Hollis, J to give the first judgment.
MR JUSTICE HOLLIS.This is a father's appeal from an order made on 18 June 1992 by His Honour Judge...
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