Re F (Internal relocation)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Wilson,Lord Justice Rimer,Lady Justice Black,Order |
| Judgment Date | 27 October 2010 |
| Neutral Citation | [2010] EWCA Civ 1428 |
| Date | 27 October 2010 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B4/2010/2070 |
[2010] EWCA Civ 1428
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MIDDLESBROUGH County Court
(Mr Recorder Bullock)
Before: Lord Justice Wilson
Lord Justice Rimer
and
Lady Justice Black
Case No: B4/2010/2070
(Lower Court No:MB10P00569)
Mr John Myers (instructed by Ward Hadaway, Newcastle) appeared on behalf of the Appellant Mother.
Miss Elizabeth Lugg (instructed by Goodswens, Redcar) appeared on behalf of the Respondent Father.
Lord Justice Wilson:
A mother appeals against the refusal of Mr Recorder Bullock, sitting as if in the Middlesbrough County Court on 30 July 2010, to grant her application for a specific issue order. The order which she sought was that, as the primary carer of four children, she should be permitted to move their home within the UK, namely from their present home with her in a town in Cleveland to the island of Stronsay, which is one of the Orkney Islands. The father of the children, who also lives in the town in Cleveland, opposed her application. In that, however, the mother has at all times made clear that, were her application to be refused, she would continue to provide the home for the children in Cleveland, there was no question of any move by the children to the home of the father.
The four children are a boy, A, who was born on 6 May 1996 and is thus aged 14; a boy whom it will be convenient to describe by the initial of his middle name, namely G, who was born on 31 December 1997 and is thus aged 12; a girl, R, who was born on 15 May 1999 and is thus aged 11; and a boy, T, who was born on 27 April 2001 and is thus aged nine.
Each of the parents practises, or until recently has practised, as a medical practitioner in the area of Cleveland. The father practises in the town where they all live. The mother has until very recently practised in a nearby conurbation. They were married in 1995, separated in 2003 and became divorced in 2005. Each has now remarried. The mother has married yet another general practitioner, also in practice, until recently, in a nearby town; his children are adult. The father has married a woman who, by her former marriage, has a child, namely a boy, E, who is now aged seven. E lives with her and the father.
The mother and the father both appear to be excellent parents. Ever since their separation they have sought to co-operate in relation to arrangements for the children and, in particular, for the father's contact with them. The only major issue occurred in 2009 when, in court proceedings, the mother successfully objected to a holiday abroad which the father proposed to take with the children. For several years the pattern has been for the children to stay with the father on Wednesday evenings, at all alternate weekends and for longer periods during school holidays. Sadly, however, for reasons which the parents have not explained and perhaps cannot entirely explain, R, the only daughter, has in recent years chosen to go only rarely to the father on contact periods. The three boys in no way share her reluctance to go.
A and G attend the town's secondary school. G moved there only a year ago. R and T attend one of the town's primary schools; and the plan had always been for them to move to the secondary school in due course. That school does not however cater for children beyond the level of GCSE. A Level students need to move to a college.
Although A, R and T are all sensitive children, in need not only of the excellent parenting afforded to them in both homes but also of perspicacious attention on the part of their teachers, the child with the greatest needs, physical, educational and probably emotional, is G. He is bright and able, particularly in the verbal sphere, but he is dyspraxic and has a mild autistic disorder which gives rise to social and communication difficulties and makes him easily upset. He also has certain physical conditions, in particular a skin condition and curvature of the spine.
In March 2010 the mother and her husband were offered employment in the form of a job-share and they accepted it. The offer was that, jointly, they should act as the GP on the island of Stronsay, which is one of the northern Orkney Islands and has a population of 350, and that they should also act in this capacity on the neighbouring island of Eday, which has a population of 150. The main island of the Orkneys is called “Mainland” and its capital is Kirkwall. Travel from Stronsay to Kirkwall is achieved by ferry, which takes 80 minutes, or by air, which takes 15 minutes.
The wish of the mother and her husband to move to Stronsay is deeply held and is the product not only of their very substantial connections with Scotland, including the Orkneys, but also of their conviction that life for the four children would be in every sense healthier and more fulfilled than the life which they are leading, and would be likely to continue to lead, in Cleveland.
Although the mother happens not to have been born in Scotland, she is very Scottish. Her parents were Scottish; she was brought up there; she and the father were both medical students in Dundee; they met later when working in a hospital in Scotland; and, at the time of the marriage, they both gave thought to practising medicine on the Isle of Skye. For 15 years her husband's parents lived in the Orkney Islands themselves. Indeed the husband's father practised first as a psychiatrist and then as a GP on various Scottish islands. Once they moved to the Orkneys, the mother's husband frequently stayed with his parents there.
The mother always realised that she would not be able to move the children to Stronsay without either the father's consent or the approval of the court but, in my view reasonably, she considered that there was no point in raising the possibility of a move until the position was definitely available to her and her husband. Thus it was that in March 2010 she and her husband accepted the offer; and we understand that, in that their employment was fixed to begin in August 2010, the mother's husband was constrained, in the light of the Recorder's decision, to move alone to Stronsay in order to fulfil their commitment. Of course their profound hope is that, following today, the mother and the children will be able to join him. Were the appeal to be dismissed, the mother and her husband would give notice of termination of their employment and, following the working out of the notice, her husband would rejoin her and the children in Cleveland. It appears however that both she and her husband have severed their connections with their practices in Cleveland; so they would presumably have to seek to re-forge those connections or to join other local practices.
As one would expect, the mother made intensive inquiries about education for the children in the Orkneys. The result of her research may be said in one sense to accord with the general perception of the strength of the Scottish educational system. The school on Stronsay, namely the Junior High School, takes children from primary level up to the age, about 16, when pupils are expected to sit the Scottish Standard Grades, which are equivalent to GCSEs. As one would expect, classes in the school are much smaller than those in the schools in Cleveland. When, in March 2010, the mother took all four children to Stronsay for a long weekend in order to show them the island, the school's headteacher showed them around the school and went out of her way to stress how welcome they would be and what opportunities they would have. But, when children on Stronsay wish to proceed from Scottish Standard Grades to Scottish Higher Grades, ie to proceed to what we would call A Levels, they have to attend the grammar school in Kirkwall, which has a good academic record. For children resident on islands other than “Mainland” a hostel is provided for their stay in Kirkwall mid-week. The mother has suggested in the alternative that, if, as one would expect, these children were indeed to proceed to the grammar school, she or her husband might make a temporary home for them in Kirkwall, from which they could conveniently attend it each day. But that would, of course, leave the other spouse, and such of the younger children as were still at school on Stronsay, alone on the island. The degree of attention which the school on Stronsay might be able to give to the particular needs of each of the four children is well demonstrated by the fact that, in June 2010, the school sent a learning support teacher down to Cleveland in order to meet the children there and in particular to talk to their teachers.
The mother also devised elaborate proposals for the children to have contact with the father in the event of the move. The father responded that, in the event of a move, the contact needed to be greater than she had proposed. In the event the two parents provided a model for how parents should present to the court an issue upon which they profoundly disagree: for, at court, they agreed a schedule of contact which was to operate in the event that the recorder were to grant the mother's application. Apart from indirect contact by Skype and webcam, the contact was to take place for three weeks of the summer school holiday; for one or two weeks of the full school holiday in Scotland in October; for one week of the Christmas school holiday; for one week of the Easter school holiday; for a long weekend in Scotland in November, January and March; and for a long weekend in Cleveland in September, February and May. Thus the arrangement would require the children...
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