Re C (a child)
| Jurisdiction | England & Wales |
| Judge | WILLIAMS J |
| Judgment Date | 31 July 2018 |
| Neutral Citation | [2019] EWHC 131 (Fam) |
| Court | Family Division |
Children arrangements – Permission to remove – Parties electing two-day hearing in order to access court sooner – Impact on court’s ability to set out and analyse every element of case – Immigration issues making mother’s deportation a possibility – Relevance of child’s very young age and need to promote relationship with both parents – Relevance of finding that applicant hostile to contact – Whether appropriate to make ‘default’ order in case of deportation for child to live with father – Whether all relevant factors considered or even known.
Neither parent had planned on settling in the UK, both planning instead on settling in the Middle East. However, while the father had not made his life in Wales for some time, he still had family connections in Wales and in England; and the mother travelled to Wales from the African country in which she lived for the birth of the child, having no friends, family or connections in the jurisdiction other than the father. The mother’s visa permitted her to enter the country as a visitor; she was not entitled either to work or to access public funds for herself. After the child’s birth a serious dispute arose between the parents as to the child’s habitual residence and what the child arrangements should be.
The mother now wished to return with the baby to her home country in Africa; the father sought to prevent this, arguing that the child should remain in Wales under a shared care arrangement. The mother not only applied for leave to remove but also challenged the jurisdiction of the English court to make any orders, arguing that the child was habitually resident in the African country in which she was habitually resident, and that the courts of that country should conduct the welfare enquiry. The application came on for hearing when the child was only six months old and was still being breast-fed. The father and mother were both highly critical of each other and the prospect of them working together successfully was not good. The mother had chosen not to proceed with her application for local authority assistance with housing and finances in relation to the child. She was able to house herself and had access to funds from a trust with substantial assets; her family had substantial business interests.
In January, when the case was adjourned to enable an application to be made to the Home Office in order to clarify the mother’s immigration status, the mother and father both urged the judge to deal with the issues at a two-day hearing in February rather than later in the year at a longer hearing. At the conclusion of the February hearing, the parties had only just completed the evidence and it was necessary to provide the judge with written submissions. No immigration advice had been presented.
Five months after the hearing, in a 35-page judgment, the judge refused the mother permission to permanently remove the child to the African country and made an order providing that the child was to live with both parties, unless the mother returned to live in Africa (for example if she were to be deported), in which case the child was live with the father. The judge also made a finding as to the mother’s manipulative personality and hostility to the child having contact with the father, describing her as selfish, self-absorbed and intent upon doing only what she wanted. He considered that the mother had not taken reasonable steps open to her to regularise her immigration position. He was also highly critical of the father but did not make associated findings in respect of his behaviour. On the basis that the mother would remain in the jurisdiction, the judge set out a schedule for the child to spend at least six nights with the father each fortnight, in two blocks of three nights and permitting the mother to take the child to Africa for three one-month blocks. He also set out default arrangements under which if, as a result of the mother returning to Africa, the child ended up living with the father, the child would each year spend three two-week blocks of time with the mother in Wales and an additional three one-month periods with the mother, potentially abroad.
Held – (1) The delay, although considerable, did not on its own amount to a procedural irregularity rendering the decision unjust and the mother did not have permission to appeal on this ground; the court was prepared to hear submissions as to the delay and its effect on the assessment carried out by the judge only in respect of the grounds on which permission had been given (see [6], below).
(2) The court was mandated to deal with matters proportionately, which meant that the judge would not be able to explore every contested matter of fact. In this case both parties had wanted an early determination of the applications. The parties’ ability to have all of the evidence tested orally and the depth of the enquiry that the judge would be able to undertake into the facts were therefore necessarily far more constrained than would have been possible following a four or five-day hearing. Provided that the court was satisfied that justice could be done and that an appropriate welfare determination could be achieved, it was perfectly proper for the court to determine factual matters with limited exploration of contested issues or largely on the papers, particularly so if the parties invited the court to do so or did not suggest to the court that the hearing should be adjourned in order to enable a fuller enquiry to be undertaken (see [22], below).
(3) It was not the case that in the absence of oral testing of each disputed element, the judge ought to have accepted the mother’s contentions. The issue of whether the mother was manipulative and hostile to the father having a relationship with the child was a central one, covered in the evidence, including the Cafcass report. It would have been completely impossible for the judge to explore each alleged example in oral evidence within the timeframe that the parties had elected. The manipulation finding had also consisted of more general findings in respect of the mother’s credibility and attitude to the father, inevitably also incorporating impressions created from reading the evidence, seeing the parties give oral evidence, and being exposed to their approaches in the interim hearings; these could not be expressed in a judgment but comprised the penumbra which surrounded it; appellate courts had long recognised that this was one of the unique advantages that a trial judge had over the appellate court, particularly where the judge had case-managed the applications to the final hearing (see [23], [24], below).
(4) Re F[2016] EWCA Civ 546, [2016] 3 FCR 255 did not require a complete rehearsal of all the evidence and submissions, leading to an argument by argument determination of every issue; it did require that a judge considered the relevant welfare checklist factors as they emerged on the facts of that particular case. The prominence given to particular factors was a matter for the trial judge. The extent to which the judge analysed evidence earlier set out was also a matter for the judge. In looking at the sophistication and complexity of the analysis undertaken, an appellate court must also bear in mind not only the Piglowska v Piglowski[1999] 2 FCR 481 guidance but must also look at the circumstances in which the judgment had been delivered. It was reasonable to expect that a judgment delivered at the conclusion of a five-day case, where the judge had had a day or two days to consider and prepare his judgment, would contain a more detailed analysis than a judgment following a case with a time estimate of two days. In such a situation, provided that the material factors were evaluated, a more attenuated judgment and analysis was not only acceptable but was to be expected (see [30], [31], below).
(5) The judge had not failed to give sufficient weight to the difficulties the mother would face living in the UK nor had he failed to consider sufficiently the impact on the child of requiring her to do so. The judge could have set out in more detail aspects of the evidence but in the context of a judgment given after a two-day case in which a host of complex issues had fallen to be considered, the brevity of the analysis in relation to the difficulties the mother would face living in this jurisdiction did not undermine the overall comprehensive and holistic evaluation which had been undertaken. The factors which had ultimately appeared to the judge to be of most weight were the child’s age and the need for him to develop a relationship with each of his parents, which was possible only in this jurisdiction. In addition, he had concluded that the mother was not likely to promote the child’s relationship with the father if she were permitted to relocate. These factors would in many cases outweigh the likely impact on the applicant of the refusal of a leave to remove application. Given these factors it would have required an impact on the mother and consequent impact on the child of a very considerable magnitude to have tipped the scales the other way and there was no evidence before the judge suggesting that sort of impact (see [37]–[39], below).
(6) However, reaching a decision on what was in the child’s welfare interests if the mother left the country had required a further holistic examination of the competing options; on the one hand the child remaining in England with the father and having contact with the mother, on the other, the child returning with the mother to Africa and having contact with the father. It was self-evident from the judgment that this sort of side-by-side evaluation, mandated by the authorities on relocation, had not taken place, unlike the side-by-side evaluation in respect of the mother and father and child all remaining in England or the child moving to Africa with the mother. There had been no analysis of the impact on the child of being separated from his...
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