R (A Child)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Ward,Lord Justice Rix,Lord Justice Moore-Bick |
| Judgment Date | 22 May 2009 |
| Neutral Citation | [2009] EWCA Civ 445 |
| Date | 22 May 2009 |
| Docket Number | Case No: B4/2008/2481A |
| Court | Court of Appeal (Civil Division) |
[2009] EWCA Civ 445
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM WORCESTER COUNTY COURT
HHJ HOOPER QC
WR08P00157
Before: Lord Justice Ward
Lord Justice Rix and
Lord Justice Moore-Bick
Case No: B4/2008/2481A
Mr Paul Hepher (instructed by Brownings) for the appellant
Ms Nina Bache (instructed by Greens) for the respondent
Hearing date: 29th April 2009
Lord Justice Ward:
The invidious task facing HHJ Hooper Q.C. sitting in the Worcester County Court on 6th October 2008 was to decide with which of two good parents a young boy was to reside. He preferred the father and now the mother appeals to us to reverse his decision or at least to send the matter back to the county court for re-hearing.
This couple were in a relationship for about 3 years. They separated early in 2001 when their son, L, who was born on 28th February 2009, was about 2 years old. L continued to live with his mother after the separation.
In many respects mother has not had a happy time since that parting of the ways. A very good friend committed suicide in 2005. A three year relationship with another man ended distressingly. Unfortunately all of this took a toll on the mother's wellbeing. She took to drink to ease the stress and unhappiness. As the CAFCASS officer Dr Mary Cochrane reported on 15th August 2008:
“23. [Mother] accepts that she went through a phase of binge drinking to help her manage stress but she denies this placed L at risk of harm though she accepts that he did not like to see her the worse for drink. She agrees that the tragic death of her friend in 2005 resulted in her starting to drink and it continued periodically thereafter when she fell under stress. [Mother] says she stopped drinking in April this year and she has not had any alcohol for the last four months. She is willing to have a hair strand test or any other test the court might think appropriate.”
Father on the other hand has remarried and he and his wife Claire have a young son now about 2 years old.
The pleasing feature of this case is the amicable relationship that mother and father have maintained since their separation. L continued to live with his mother in Redditch but had generous staying contact with his father in Birmingham. This gave L a good start to life and he was undoubtedly making good progress at his primary school in Redditch.
Things changed in March 2008. The mother was “feeling physically unwell and mentally drained”. She was diagnosed with low folate levels which can cause exhaustion. Unbeknown to her she was pregnant with a baby to be born in December. Alas, she was binge drinking again. As she acknowledged, she could not cope. She did what a good mother would do: she turned to the father for help and asked him to take care of L.
For reasons I shall explain later, it is in my judgment of considerable importance in this case to know the basis upon which that change took place. Was it, as the mother contended, a temporary, short-term respite, or was it, as father contends, a longer term arrangement? The judge ruled against the mother. He found the facts as follows:
“3. … L had always lived with mother until March of this year when the following circumstances arose. It is clear to me that mother has had the misfortune to have some downs as well as ups in her life. In March of this year, on, precisely the evening of 3rd March, she telephoned father and asked him whether L could come and stay with him because she was not feeling well and did not feel up to keeping him with her at that time.
4. I find that she asked if L could go to stay with the applicant and, as she now is, his wife Claire … Nothing was discussed in that conversation about duration. What was discussed was that she was not feeling strong, mentally and physically. I find that she made that clear. This caused in father's mind echoes of difficulties he knew she had experienced in the past, including, it has to be said, with drink, and he readily agreed that L should stay with him and Claire and their young son.
5. He did indeed go to them. Mr and Mrs R. heard nothing from mother until Friday when Mr R, surely commendably in L's welfare interest, took the initiative, I find, of telephoning mother to ask how long she was expecting L to stay with them.
6. I just go back to the call on Monday 3rd March. She had actually used the words that she “couldn't cope” and father went to collect him. At that stage, Monday, 3rd March, she did not say anything about it being permanent. Father candidly says today that he agrees that mother did not at that stage say anything which suggested that she believed it might be permanent.
7. So on to Friday, he rang and it was agreed they would discuss matters on the Sunday, because what father proposed in that conversation on the Friday was that in all the circumstances, including what he knew about mother's sometimes troubled background, he suggested that L might come to live with him and his wife, Claire, and that she (mother) think about this.
8. On Sunday, 7th March, mother telephoned father at about 2.30 pm and said that she believed that L would be better cared for by him. It was agreed that there should be a discussion between them for which she was to go over to their house on the evening of Wednesday, 12th March, which I find she did. I accept father's evidence that Mary Cochrane, Child and Family Court Adviser, in paragraph 33 of her report (which is an initial analysis and recommendations report prepared for a directions hearing in this case on 20th August) has misunderstood what father had said to her in that I find that father did not say he had protested to mother that he and Claire were not respite parents or something of that kind as Mrs Cochrane relates. I do find that there was a discussion between father, mother and Claire involving L at father and Claire's home on the evening of 12th March.
9. I find it was clearly agreed in the course of that discussion that L should go to live with father for the foreseeable future. Of course nothing was discussed about duration but it was an effective change of residence in every ordinary meaning of the word of the term “residence” including the legal term of which parent has the day-to-day, night-to-night responsibility of care for the child. It was undoubtedly an emotional discussion. It lasted about half to three quarters of an hour. It was discussed that L would have to move schools. In particular it was discussed that the Rs were thinking of moving to Hall Green, and that therefore it might be a good idea for a school at Hall Green to be considered as well as schools nearer them in Longbridge where they then lived.
10. In any event, mother left that evening with, I find, the clear understanding, even if she cannot recall it now, that the duration of L's residence with Mr and Mrs R was at least likely to be long enough to justify the move of schools. This I find is an important feature of the discussion. It seems to me that what matters in a change of residence, such as was then proposed, is determined by the need for a school. If a school move was being discussed, then it suggests itself to me beyond any shadow of a doubt that the duration of the stay was expected to be at least long enough to justify and require a change of school. It was agreed by all of them that it would be better if L did go to live with the Rs, having regard to the mother's past, and it appears, current difficulties. She readily, if sadly, agreed to that.”
I have added the emphasis. There is no appeal against those essential findings of fact.
On 20th March 2008 father began these proceedings by seeking orders for residence in respect of L. There was a directions hearing on notice to mother on 16th April at which the mother stated that she had agreed, or was agreeable to, L remaining with father until August. At that hearing contact was ordered and a CAFCASS report on the issue of residence was directed to be prepared and filed. Dr Mary Cochrane, who is based in Birmingham, was appointed to report. She held separate office interviews with each of the parents, met L at her office when he was accompanied by both his parents, but then left alone to speak to Dr Cochrane. She visited L in his father's home and then in his mother's home. So it was a thorough investigation. She reported on 15th August 2008 recommending:
“51. On balance, I think L should return to live with his mother.”
There was a further directions hearing on 20th August 2008. Neither party sought a direction that the CAFCASS officer attend the final hearing which was then to be fixed.
When the hearing before Judge Hooper commenced the father applied for an adjournment because the solicitors who had been representing him had been suspended from practice and the Law Society had put in other solicitors to take over their practice but the new solicitors had not had the time to consider father's case at all. Mrs Seddon, who then appeared for the mother, opposed that application and this exchange between counsel and the judge is recorded on the transcript before us:
“Judge Hooper: Very well. So on the basis that you say that father has been adequately representing himself to date …
Mrs Seddon: He has.
Judge Hooper: … and having regard to the 'no delay' principle, you say the matter should proceed today?
Mrs Seddon: We do. I say it again, that the mother has in fact got a place reserved at the school that the child would be at if he hadn't moved from mother, in other words where all his friends have gone …...
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H v W
...the court welfare officer before giving judgment, providing her with the chance to respond. 42. In the 4th case Re R (Residence Order) [2009] EWCA Civ 445, by a majority of two to one, it was held unless there were strong reasons to do otherwise, a judge minded to depart from the clear-cut ......