Re F (A Child) (Permission to Relocate)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Munby,Lord Justice Toulson,Lord Justice Pill |
| Judgment Date | 24 October 2012 |
| Neutral Citation | [2012] EWCA Civ 1364 |
| Docket Number | Case No: B4/2012/2103 |
| Court | Court of Appeal (Civil Division) |
| Date | 24 October 2012 |
[2012] EWCA Civ 1364
Lord Justice Pill
Lord Justice Toulson
and
Lord Justice Munby
Case No: B4/2012/2103
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM PORTSMOUTH COUNTY COURT
HIS HONOUR JUDGE MARSTON
Royal Courts of Justice
Strand, London, WC2A 2LL
Ms Jacqueline Renton (instructed by Ellis Jones) for the respondent mother
The appellant father appeared in person
Hearing date : 3 October 2012
This is an appeal, pursuant to permission granted by Ward LJ on 31 August 2012, from an order made by His Honour Judge Marston in the Portsmouth County Court on 25 July 2012. Judge Marston was exercising the family jurisdiction in accordance with the Children Act 1989 in relation to P, a boy who had been born in November 2004. It was an international relocation case, though of a somewhat unusual kind.
Background
P and his parents are Spanish. His parents have never married but had been in a permanent relationship since about 1993. The family came to this country in August 2009 when the father was offered a posting here by his employer. Initially it was to be for two years but in May 2011 they decided to extend their stay here until at least 2013. In July 2011 the family returned to Spain for a holiday. By then the parents' relationship was in what proved to be a terminal crisis. The father returned to this country on 1 August 2011, followed by the mother and P on 17 August 2011. The mother stayed only a few days, returning to Spain on 21 August 2011 but leaving P in this country with his father. Her case is that she anticipated P being returned to Spain by 10 September 2011. Be that as it may, P has remained living in this country with his father. It is common ground that prior to August 2011 the mother was P's primary carer but that since then the primary carer has been the father.
The mother wishes to go on living in Spain. The father intends at least for the time being to remain in England.
The litigation
Following these events the father began proceedings in the Portsmouth County Court on 26 August 2011 seeking a residence order. The mother began proceedings in Spain on 5 September 2011 seeking essentially the same relief. The father's proceedings were stayed once the mother began proceedings in the High Court seeking the return of P to Spain in accordance with the provisions of the Hague Convention. The proceedings in Spain were also stayed.
The Hague proceedings came before Holman J, who on 18 November 2011 dismissed the mother's application. P, he held, was at the material date habitually resident not in Spain but in this country: F v S [2011] EWHC 3139 (Fam). The father's proceedings in the Portsmouth County Court were revived. By the time they came on for hearing before Judge Marston in May 2012 there were cross-applications: both parents were seeking a residence order, in the mother's case coupled with an application for leave to remove P from the jurisdiction and take him back to live with her in Spain. By the time the matter reached the hearing before Judge Marston it seems that both parents were proposing a shared residence order.
The hearing before Judge Marston
At the hearing before Judge Marston both the parents were represented by counsel: the mother by Ms Jacqueline Renton and the father by Mr Edward Devereux. The hearing lasted three days. Judgment was reserved. It was sent to the parties in draft and handed down formally on 15 June 2012. The resulting order was finalised at a hearing on 25 July 2012.
Judge Marston made a shared residence order in favour of both parents but ordered that the mother have permission permanently to remove P from the jurisdiction. He ordered that P was to live with his father for one week during Easter school holidays, not less than five weeks during the Summer school holidays (no more than three weeks during any one period) and then in alternate years from 22–29 December and 29 December to 6 January. At all other times P was to live with his mother.
The father and the mother had each filed statements. There was a report dated 30 March 2012 from a CAFCASS officer, Mr Robin Moore. The report was commendably short, focused and to the point. It is no criticism whatever of Mr Moore that he felt unable to make a clear recommendation. He described it as being "a very difficult case which contains some uncommon characteristics." He continued:
"What is certain is that there are no particular risk issues beyond the emotional impact this dispute might be having upon P. That said, the school has commented that he is happier now, which accords with my impression, and P knows that whatever happens he has two caring, able and loving parents who both would be able to meet his needs in perhaps differing ways.
… P is settled [in] school in … where he is popular and making good progress but to return to a school in Spain, particularly one he already knows, is unlikely to be too disadvantageous to him, certainly in the longer term.
P is only 7 and his views are not likely to be determinant. He has said "fine in both places" but he expresses misgivings about the length of the school day and refers to his friends and grandparents in Spain. Of course, there are many children who are cared for after school in some form or other and for various lengths of time.
Whatever happens, the principle of contact is not in dispute but there is obviously distance and cost to consider in any contact arrangements which are likely to centre on the school holidays."
He concluded:
"Under the circumstances outlined I feel unable to make a clear recommendation in this finely balanced case in which I understand and acknowledge both parents' positions. I would respectfully suggest that this is a matter upon which a judgement by the court is necessary."
Judge Marston heard oral evidence, first from Mr Moore, then from the father and then from the mother. In his judgment Judge Marston carefully set out the substance of the evidence as well as his conclusions on it. In relation to Mr Moore's evidence, Judge Marston said this:
"What came through the CAFCASS Officer's evidence very strongly were a number of what I might describe as bullet points:—
(a) P was well looked after and happy here but he would be well looked after and happy in Spain;
(b) He was doing well in school here but it was highly likely that he would do well in school in Spain;
(c) That he didn't like the long days at school here;
(d) That he regarded himself as Spanish and that all of the family on both sides apart from his Father were in Spain and many of them were in Guadalajara;
(e) The CAFCASS Officer accepted both parties commitment to contact with the other parent and that they would deliver on that commitment;
(f) That the court is dealing with two decent people who want what is in P's best interest;
(g) That there is still a residual distrust between them because of the events around the breakdown of the relationship and the hearing in front of Mr Justice Holman."
In relation to the father's evidence, Judge Marston identified a:
"theme running through the evidence … that P was settled here. "He is fully integrated here". "He is happy, healthy, well cared for popular boy leading a normal life. He is not a sad boy in any way". His view was that the education that P would get would be better here particularly if in the future he could attend … Grammar School which was where they had agreed he would go. He is saying to the Court in effect if P stays with me you are betting on a certainty because I represent the status quo and the status quo works and it is currently producing this happy, well integrated little boy. However he also has to accept that historically the mother has been the main carer for the child up until September of last year."
He added: "His case was really contained in the sentence: "I ask this court to acknowledge that P's life is here"."
In relation to the mother's evidence, Judge Marston said this:
"What came out of the mother's evidence was that her proposal involved a return to P's roots, to the school that he was familiar with, to friends that he was familiar with and to an environment that he was familiar with. She further put forward the advantage that she would actually have more time available because of her working hours and school times in Spain to look after P. She also put forward the fact that P's maternal and paternal family would have much more relationship with him because he was in Spain and most of them were in Guadalajara in any event. And she pointed to the fact that she was already fostering these relationships. She was also able, because of the number of holidays she has, to put forward a contact schedule which was marginally more generous to the father than the father's contact schedule was to her. Although this is not a particularly decisive factor in this case, underlying all of this was her belief that she'd been the primary carer and that she should be the primary carer again and that P needed his mother. She expressed her respect for the father as a gentleman and as a figure in P's life."
Judge Marston's judgment
Judge Marston's judgment, if I may say so, is clear and careful in both its structure and its content. Having set out the background (paragraphs 3–4) and the litigation history (paragraphs 5–7), in the course of which he considered what Holman J had said in his judgment in the Hague proceedings, and then set out and analysed the evidence (paragraphs 8–20), Judge Marston turned to consider the law (paragraphs 21–22) before concluding with his findings (paragraphs...
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