Re B (A Child) (Relocation)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Thorpe,Lord Justice Lloyd,Lord Justice Toulson |
| Judgment Date | 24 July 2007 |
| Neutral Citation | [2007] EWCA Civ 1055 |
| Docket Number | Case No: B4/2007/1409 |
| Court | Court of Appeal (Civil Division) |
| Date | 24 July 2007 |
[2007] EWCA Civ 1055
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HUDDERSFIELD COUNTY COURT
(MR RECORDER PHILLIPS)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Thorpe
Lord Justice Lloyd and
Lord Justice Toulson
Case No: B4/2007/1409
Miss C Hudson (instructed by Ramsdens Solicitors) appeared on behalf of the Appellant.
THE RESPONDENT APPEARED IN PERSON assisted by his Litigation Friend, Mr P Boakes.
This is an application for permission to appeal on notice, with appeal to follow if permission granted. The judgment which we review is that of Mr Recorder Phillips sitting in the Huddersfield County Court, and the hearing today was directed by Wall LJ when he considered the papers on 5 July. The order of the Recorder on 13 June 2007, at the conclusion of a trial on oral evidence, was to this effect: the mother of the only child in the case, C, who was born on 28 November 2004, was prohibited from transferring his usual residence to Northern Ireland. She was permitted to take him to Northern Ireland for holidays. No order was made in relation to C's residence. The father's application for a residence order was withdrawn and the mother's continuing de facto primary care was not thought by the judge to render a residence order in her favour necessary.
C's parents are not married. They had a relationship which terminated in September 2005. They are both in their mid thirties and they both have responsible jobs in the local community in the Huddersfield area. The father is a Huddersfield man and his family are all local. The mother comes from a very different background. Her home town is Portaferry on the Northern Ireland coast. She came to this country in 1999 and moved to Huddersfield towards the end of 2000. Her relationship with the father was brief, only commencing in October 2003.
The applications before the Recorder were the father's application for a prohibited steps order under Section 8 of the Children Act 1989, accompanied by an application for a residence order. The mother had an application before the court for permission to change C's surname. That application failed, and we are not concerned with the rights and wrongs since it has not been challenged by this appeal. Now, the position under the statutory provisions is that the court has power to issue a prohibitive order under Section 8, or to attach a condition to a residence order under Section 11(7) of the Children Act 1989. The court also has the power to sanction the removal of a child from the United Kingdom under the terms of Section 13, which reads:
“(1) Where a residence order is in force with respect to a child, no person may –
(a) cause the child to be known by a new surname; or
(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.”
That statutory provision has given rise to a great deal of litigation and a considerable volume of reported decisions in this court, both before the enactment and indeed since the arrival of the Human Rights Act 1998.
Classically in modern times trial judges direct themselves by reference to the judgments in this court in the case of Payne v Payne [2001] 1 FLR 1052. What is to be noted is that the requirement for judicial sanction in the absence of parental consent is limited to removals from the United Kingdom, and thus a removal from England to Scotland, or to Northern Ireland, does not require the approval of the court. Obviously if there is a major issue between the parents that is litigated in the context of an application for a prohibited steps order, as this present case demonstrates. Once the intended relocation is beyond the United Kingdom, then the ordinary trigger for litigation is the issue of the primary carer's application under Section 13(b).
The judge, having heard the evidence and the submissions of counsel, directed himself as to the law that he had to apply. He referred to a case of H v F [2006] 1 FLR 776, which he took to add nothing to the judgments in the case of Payne v Payne. He also referred to a decision in this court in the case of Re: H [2001] 2 FLR 1277, which may have been magnetic, in that the case also concerned a proposed relocation to Northern Ireland.
Most unfortunately, what was not cited to him was the earlier case of Re: E [1997] 2 FLR 638. In that case this court had to consider the principles governing an endeavour to impose conditions on a residence order preventing the primary carer from moving from the Blackpool to the London area. The judge below had imposed that condition, having particular regard to the fact that the child was of mixed racial origin and would more readily integrate into one community rather than the other. This court set aside the restriction, and the judgment of Butler-Sloss LJ, as she then was, sets out with care the relevant statutory provisions. Between 640F and 641H she said in relation to Section 13:
“There is no statutory requirement of consent or leave of the court in respect of moving the child anywhere within the United Kingdom. Section 11(7) applies to all four Section 8 orders, including prohibited steps orders and specific issue orders. The wording of the subsection is wide enough to give the court the power to make an order restricting the right of residence to a specified place within the United Kingdom, but in my view a restriction upon the right of the carer of the child to choose where to live sits uneasily with the general understanding of what is meant by a residence order.”
I omit a passage and continue at 642(c):
“A general imposition of conditions on residence orders was clearly not...
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