MK v CK
| Jurisdiction | England & Wales |
| Judge | Lord Justice Thorpe,Lord Justice Moore-Bick,Lady Justice Black |
| Judgment Date | 07 July 2011 |
| Neutral Citation | [2011] EWCA Civ 793 |
| Docket Number | Case No: B4/2011/0457FD |
| Court | Court of Appeal (Civil Division) |
| Date | 07 July 2011 |
[2011] EWCA Civ 793
The Right Honourable Lord Justice Thorpe
The Right Honourable Lord Justice Moore-Bick and
The Right Honourable Lady Justice Black
Case No: B4/2011/0457FD
10P01682
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
Her Honour Judge Bevington
Royal Courts of Justice
Strand, London, WC2A 2LL
Miss Deborah Eaton QC and Miss Madeleine Reardon (instructed by Messrs Withers LLP) for the Appellant
Timothy Scott QC and Indira Ramsahoye (instructed by SA Law LLP) for the Respondent
Hearing date: Wednesday 18th May 2011
Approved Judgment
Lord Justice Thorpe:
Introduction
In January of this year Her Honour Judge Bevington, sitting as a Deputy in retirement, heard a complex and finely balanced relocation application. She devoted four days to hearing oral evidence and submissions. She heard from the parties, the CAFCASS officer, the maternal grandmother, the paternal aunt and the mother's general practitioner. At the end of those four days she reserved for a week, delivering an oral judgment on 3 rd February 2011. She granted the mother's application to relocate to Canada.
At the conclusion of judgment there were lengthy further submissions which now cover 23 pages of transcript. A ruling or an indication was sought on a variety of ancillary matters. These exchanges were clearly inspired by a general desire to achieve parental acceptance that would ease the removal to Canada and to put in place arrangements that would minimise the impact of the removal on the father's relationship with the children. These exchanges were certainly not adversarial in tone and, as Mr Timothy Scott QC remarked, show Judge Bevington speaking with the voice of mediator rather than judge.
Miss Janet Bazley QC, who appeared below for the father, spoke with the same commendable and constructive moderation. However, at one stage, with the most perfect courtesy, she observed that, in addressing the Payne guidelines the judge had only considered the mother's case and had endorsed it without any reference to the father's case. Miss Bazley concluded:
"I do not know if you would like to say anything about that now, just to cover those matters?"
The judge responded:
"Yes, of course. I think I have said I have taken everything into account that has been placed in front of me. Of course that includes the impact upon the father himself as a person because, as I have said, I know he is devoted to these two little girls. Of course, it is natural, when a relocation case is allowed, that there is likely to be some alteration or diminution of the physical contact between the children and the parent who is remaining in this country. Of course, I take that into consideration. It seems to me that hopefully, as I said, the father will, with the flexibility which he may be able to arrange, be able to visit the children very much more frequently than they would be able to visit England were they in Canada. That is because, of course, the school terms which are rather differently configured from those in England. It would make visits for the shorter holidays very difficult for the children. But, I see no reason at all why the father should not be able to visit the children frequently and regularly, including of course the short holidays that the children have – possibly half-terms and possibly at other times as well. Of course, I take that into consideration. I am sorry if it did not appear to be said in my judgment. But, of course I have."
Then when all was settled Ms Bazley moved from cooperation in implementation to an application, again expressed with perfect courtesy:
"Your Honour, I ought to cover formally the question of permission to appeal because your Honour is not regularly here – in case. We are obviously going to have to consider the father's position and give him careful advice about that. But, would your Honour just formally cover that?"
The judge responded saying that she had considered the case very carefully, had done her best, and would refuse permission.
The appellant's notice was filed on 24 th February with grounds of appeal settled by Ms Bazley. There was then a change of solicitors and counsel and the skeleton argument, written by Ms Deborah Eaton QC and Ms Reardon, was dated 22 nd March. On 7 th April I directed an oral hearing on notice with appeal to follow on 18 th May.
The respondent's skeleton argument written by Mr Timothy Scott QC leading Ms Indira Ramsahoye was dated 10 th May.
Shortly before the hearing both parties applied to admit evidence of events since the trial. Sadly both have been treated for stress and depression and the father asserts that the mother is not supporting the maintenance of his relationship with the children. To that the mother has filed a statement in reply.
We granted both applications before hearing argument on the appeal.
That is the history of the proceedings at trial and on appeal. I now turn to the family background.
Family background
The mother is of Canadian origin. The father is Polish although he spent childhood years in Canada. He moved to England in 1993 and the mother arrived here 10 years later.
The parents married in London on 27 th July 2004. They have two daughters, I born 16 th November 2006 and A born on 8 th January 2009. Later in that year the marriage became unhappy and in July 2010 divorce proceedings were filed and the mother moved out of the matrimonial home, renting a flat in Pimlico.
Both are employed in the banking world and both work less than full time to enable them to be more involved with the children. A shared residence order was made by the District Judge on 23 rd August 2010. Under its terms the girls spend five nights with their father and nine nights with their mother in every fourteen day period.
However, as Miss Eaton explained, the father is released from work on Friday and Monday. Thus he has six consecutive days with his daughters. During this period he cares for the girls unaided.
The mother does not work on Wednesday. On that day, and at the weekends, she is with the children. Otherwise she relies upon the nanny who moved with her when she left the home. Thus although the mother has more nights the girls spend more daylight hours in the company of their father. So Ms Eaton demonstrates that this is a case in which there is not only a shared residence order but also an arrangement for the sharing of care under which the father's part is not inferior to the mother's.
The mother comes of a supportive family. As well as her parents she has a brother with two daughters of much the same age as hers.
The father too has supportive parents and his younger sister, who lives nearby, also has a major part in the life of the girls.
Sadly the relationship between the mother and her parents in law and sister in law is not good.
The Trial
The mother presented a classic application for relocation following the failure of the marriage. She wanted to go home. Here she was isolated and stressed. There she would be able to live within her parents' home receiving emotional and material support.
In classic response the father pointed to his great commitment to the girls and the significance of the arrangement for shared care.
The judge had the benefit of a report from a CAFCASS officer, Ms Susan Mullally. Her written report skilfully and sensitively sets out the factors and the crucial balance. In her oral evidence she emphasised that the judge had to weigh the balance between the detriment to the children if they remained and the detriment that would result from a diminished relationship with their father. She presented it to the judge as a fine and difficult balance.
She concluded that that balance came down against the move and recommended the refusal of the application.
However, in considering the impact of refusal on the mother, she observed:
"It would be essential for the mother to feel supported as a parent and an adult in her own right in England and, I feel, for some acceptance by the father that should she still wish to return to Canada in 3–4 years time, all being equal, this is likely to be in the best interests of the children."
The judgment below and the submissions on appeal.
Ms Eaton has had an easy task in criticising the judgment below. Her full and able skeleton might be reduced to three principal points:
i) The judge rejected the recommendations of the CAFCASS officer without proper analysis and explanation.
ii) She directed herself by reference to the guidance offered by Dame Elizabeth Butler-Sloss P. at paragraph 85 (guidance apt for applications by primary carers) rather than by reference to the decision of Hedley J in Re Y [2004] 2 FLR 330 (the only authority then available directly considering a relocation application by a care sharer).
iii) In explaining her conclusion she referred only to the case that the mother presented. Even when that deficit was raised by Ms Bazley, she had not remedied the defect.
Mr Scott has done his best to support the judge. He has sensibly accepted the imperfections. He accepted that his submissions were but an attempt to rescue the judgment or at least to point out its better parts. He relied upon a list of findings or quasi findings which he had extracted from the judgment. He then submitted that, however deficient the judgment, these findings in favour of the mother are so strong and numerous we could not, ourselves, set aside the permission in the exercise of an independent discretion.
Both counsel in their submissions have taken us through the line of authorities in this field. Ms Eaton began at the beginning with the judgments of this court in Poel v Poel [1971] WLR 1460, then...
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