Re C (Internal Relocation)
| Jurisdiction | England & Wales |
| Judge | Lady Justice Black,Lord Justice Vos,Mr Justice Bodey |
| Judgment Date | 18 December 2015 |
| Neutral Citation | [2015] EWCA Civ 1305 |
| Docket Number | Case No: B4/2015/1151 |
| Court | Court of Appeal (Civil Division) |
| Date | 18 December 2015 |
[2015] EWCA Civ 1305
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL FAMILY COURT
MR RECORDER DIGNEY
FD14P00296
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Black
Lord Justice Vos
and
Mr Justice Bodey
Case No: B4/2015/1151
Mr Charles Hale QC (instructed by Penningtons Manches LLP) for the Appellant
Miss Deborah Eaton QC & Mr Stephen Jarmain (instructed by Stewarts Law LLP) for the Respondent
Mr Damian Garrido QC & Dr Rob George (instructed by Dawson Cornwell) on behalf of the Intervener, the International Centre for Family Law, Policy and Practice
Hearing date: 28 th October 2015
Approved Judgment
This is an appeal against orders made on 23 March 2015 by Mr Recorder Digney in relation to C, who was born in October 2005 and is 10 years old. C's mother wished to move from London to Cumbria, taking C with her, and the appellant, C's father, who has always had a considerable involvement in her life, wished the present London based arrangements for C to continue along much the same lines. The Recorder permitted the mother to move with C from 1 September 2015 and ordered that C would attend a particular school in Cumbria from the start of the new school term. He made a child arrangements order with regard to the division of C's time between her parents. She was to live with her father on alternate weekends, alternating between Cumbria and London. If the father was able to travel to Cumbria during the week, C was to be in his care overnight for up to two nights a week. There was provision for daily contact on other days by telephone, Skype or Facetime. Holidays were to be divided equally between the parents. The father contends that, for a variety of reasons, the Recorder was wrong to sanction the mother's proposals.
Brief history
The parents have not been married. Their relationship lasted between 2004 and 2007. Both of them work. The father is considerably better off than the mother, who earns about £40,000 per annum. In addition to providing other support for C, the father purchased a flat in London near to his house at a cost of £1 million where the mother and C live rent-free. The current arrangement is that the mother has to vacate the flat when C reaches her 18 th birthday. Proceedings under Schedule 1 of the Children Act 1989 are on foot.
C spends two nights a week and every other weekend with the father, returning to the mother on Sunday evenings. She attends a fee-paying London day school. Initially, she was looked after by nannies whilst the parents were at work. For some time now, however, she has been spending the time after school at the home of Mrs N, the wife of a local vicar, until one or the other parent collects her.
Applications were made by both parents in early 2014 with regard to C's care which led, ultimately, to the hearing before the Recorder. The father's application was made before the advent of child arrangements orders so was for a shared residence order reflecting the present arrangements for C, with an extension of his weekend time to Monday mornings. The mother applied for a specific issue order permitting her to move with C to Cumbria where C would start at a new day school.
The evidence before the Recorder and his conclusions
The Recorder had evidence from both parents, written and oral. In addition, CAFCASS provided a report, and the CAFCASS officer gave oral evidence. This was an important component of the material before the Recorder and, quite early on in his judgment, he quoted extensively from the passage in the CAFCASS report where the officer set out her professional judgment on the case, although ultimately going on to disagree with her recommendation.
The CAFCASS officer considered that the competing options were "very finely balanced" and that "either situation would bring benefits and losses for C". Her conclusion was that a move was not in C's best interests, despite the fact that C had told her that she was keen to move to Cumbria and was confident that she would be able to maintain a strong relationship with the father if she did so. The officer considered that C's relationship with the father was "a crucial one". She commented that C has an established routine in London and that her relationship with the father is integral to that and has been since birth, the arrangements for them to spend time together being intrinsic to it. The officer thought that, at 8 years old (as she then was), C may not have an entirely realistic view about the significant change that a move would bring and about the fact that she would be spending a lot less time with the father. She was concerned that the move "may be emotionally damaging for C as she will not be able to enjoy the type of relationship with the father that she has had for all of her life".
As for the rest of the material available to the Recorder, the following resumé, taken largely from his judgment and incorporating his findings on certain salient matters, should be sufficient to set the scene for the points which arose in the appeal.
The Recorder accepted that the mother's application was genuine and not motivated by a desire to exclude the father, and that it was well researched and realistic. The mother originally comes from the North Lancashire coast. Her family still live there and she would be about an hour's drive away from them if she moved to Cumbria. Indeed, she sees living in Cumbria as returning home. She could work at her employment more easily there, and she and C enjoy country pursuits and the life in Cumbria would be a "typical rural life".
Issues about accommodation were a part of the mother's motivation. The flat in which she and C live in London is a basement flat with a small garden. It was said to be dark and to have considerable damp problems. The Recorder said that the mother was given no choice as to where to live as the father wanted C to live close to him and he criticised the father for this on the basis that a nicer property could have been purchased for C and the mother had he been prepared to put to one side his insistence that they live so close. The mother felt the need to safeguard her situation once C reaches 18 by getting on the property ladder, perfectly rationally the Recorder found, although this was not her main motivation for moving.
C attends a London day school and the father thought it would be detrimental for her to change schools during her primary education from a school where she is happy and settled. The Recorder did not take the same view of matters. Although he was sure that it provided "a perfectly proper education in the technical sense of that phrase", he thought that the London school was not the sort of school to which the mother would expect to send a child, the other children coming from wealthier backgrounds. He did not accept the father's criticism of the school that the mother had identified in Cumbria. He was sure that it too was capable of providing a perfectly proper education and that there would be the advantage that the mother would feel much more at home as a parent there than she does in London. He concluded that "the whole schooling experience will be far more satisfactory in Cumbria" than in London.
The Recorder accepted that if she was forced to stay in London, the mother would feel deeply unhappy and he found that her feelings were likely to have a serious and very harmful impact on C. C and the mother have already spent happy times in Cumbria with friends of the mother. The Recorder considered that, contrary to the father's fears, the risks of C and the mother not being happy living there are not great.
The father had put forward a proposal designed to enable the mother to buy a property in Cumbria which she could use for holidays, whilst continuing to live with C in London. The Recorder found this proposal to be "speculative only" at the moment and he had grave doubts that it would work financially because the mother was unlikely to be able to afford somewhere to live in London as well as keeping up the house in Cumbria. The Recorder also found that it had the added disadvantage that it would leave the father in control of the situation. Although the parents had, as far as possible, avoided criticising each other, the mother had made what the Recorder described as a "passing criticism" of the father that he was controlling. She had described feeling "caged" in her dependence on him and the Recorder found some substance in what she said, describing her feeling that she was "caged" as "not irrational". The Recorder did not think it in C's best interests that the mother should have such feelings and, in any event, he did not see the father's suggestion as a realistic way of saving the status quo.
The Recorder accepted that the father's opposition to the move was motivated by genuine concern for C's future well-being and that he would be upset if the move took place, although he did not think that that upset would impinge upon C. The move would mean that the father would not see C during the week in term time except on rare occasions. The father's view was that the result of it would be a weakening of his relationship with his daughter but the Recorder did not agree. He considered that the relationship between C and the father was very good and sufficiently well established to continue essentially as it is now, even if there were to be a change in the quantum of contact. He also thought that there would be changes to arrangements, even if there were no move, because, as children get older, having two homes becomes less...
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