Re H (Children) (Residence Order: Condition)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE THORPE,MR. JUSTICE ASTILL |
| Judgment Date | 30 July 2001 |
| Neutral Citation | [2001] EWCA Civ 1338 |
| Date | 30 July 2001 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | B1/01/0799 |
[2001] EWCA Civ 1338
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE GLOUCESTER COUNTY COURT
(Mr Recorder Greenwood)
Royal Courts of Justice
Strand
London WC2
Lord Justice Thorpe
Mr. Justice Astill
B1/01/0799
MISS A. PAUFFLEY Q.C. and MISS C. DUTHIE (instructed by Messrs Davies & Partners) appeared on behalf of the Appellant.
MISS M de HAAS Q.C. and MISS T. CRONIN (instructed by Messrs Langley Wellingtons) appeared on behalf of the Respondent
JH was born and brought up in Northern Ireland. He left at the age of about 16 and seemingly severed family ties for some years, although resuming them after his marriage to D in 1988. In the years after his removal he has lived principally in the Gloucester area. DH was born and brought up in this country, although her parents originated from Northern Ireland, with the consequence that she has still uncles, aunts and cousins in the Belfast area. There are two children of the marriage, SJ, who was born in July 1991 and who is 10, and R, born in February 1996, now aged 5. 2. The separation occurred in December 1997 when S would have been about 6 and R not quite 2. Unusually, at the point of separation it was the mother who left the family home and the children to make an independent life for herself. Having briefly stayed with her parents she then found a two bedroomed flat of her own. The father gave up his work in order to become a full time carer for the children. He has been dependent on state benefits since. By contrast, the mother has worked throughout. She is an administrator in a firm, either designing or manufacturing aircraft parts. She earns a salary reflected in CSA assessments to pay £300 a month to the father for the maintenance of the two children. Sadly, the mother has become psychologically dependent on alcohol, a dependency which has been treated for some time now by a local consultant psychiatrist, Dr. Fear.
The parties divorced in July 1998, and in April 1999 the father announced his intention of returning to Northern Ireland with the two children. That prompted a court application by the mother, issued in June 1999, for, firstly, a residence order; secondly, a prohibited steps order to stop the threatened move and, thirdly, for a contact order. The father's cross application of October 1999 was, first, for a residence order and, second, for a specific issue order enabling him to remove himself and the children to Northern Ireland.
Those applications came for hearing before His Honour Judge Hutton on 23rd and 24th March 2000. We do not have a transcript of his judgment, but counsel who appeared at that hearing have agreed a note. Within that note I cite the following excerpts: First:
“Subject to the mother being cured of her alcoholism, I find the mother entirely suitable to care for the children. She appears more sympathetic of the children's needs and would be the preferable carer….
Second:
I am not convinced by the father's supposed desire to move to Northern Ireland where members of his family live. I suspect that his supposed desire to do so has rather more to do with thwarting the mother's application for residence or out of spite. From the age of 16 or 17, when he joined the Army, he has been very little in Northern Ireland and indicated no wish to return there. He has visited no more than once a year on average, at most. He has no accommodation fixed up and no employment. He hopes he would be able to get both. I have no doubt that he would be able to sort out suitable accommodation and employment.”
The third citation:
“I reject, at least for now, the mother's application for a residence order. I grant interim residence to the father. I have decided, on the submissions of mother's counsel, to make an interim order because it might be preferable for the children to be living with their mother. I reject the father's application to remove the children from the jurisdiction.”
The order drawn to reflect that judgment provided for a detailed contact order, including two weekends out of three, staying contact from Saturday morning to Sunday evening, with a return in December 2000, and for a relisting of the mother's application for residence in nine months with a time estimate of one day. In the interim, the court ordered the submission of tests to substantiate whether the mother could achieve abstinence from alcohol in the interim.
The next hearing was not listed in front of Judge Hutton as, in my opinion, it should have been. It is important in these cases that there should be continuity of judicial decision-making. The case came on in front of Mr. Recorder Greenwood, of whom I make no criticism at all. He dealt with the case thoroughly and conscientiously in place of the previous judge. The evidence before him established plainly that the mother had not achieved the abstinence that the first judgment gave opportunity for. As well as expert evidence from Dr. Fear in that quarter, the judge had a further appraisal from the court welfare officer who had reported to Judge Hutton. The order that the Recorder made was to enlarge the father's interim to a full residence order and to dismiss the mother's cross application. He then went on to make an order prohibiting the father from removing the children to Northern Ireland, save for periods of more than 14 days for the purposes of holidays. In paragraph 4 he more or less continued the contact regime provided for by Judge Hutton, and he set up a further hearing in December 2001, in preparation for which he sought an additional welfare officer's report and a further report for Dr. Fear. The judge's reason for setting up another full hearing was his hope that the mother might during this year achieve the abstinence which she failed to achieve in the year 2000, so that it would be possible to enlarge the regime of contact to include staying contact in the holiday and unsupervised staying contact. I have been told by Miss de Haas that a date has been identified in December, and that neither Judge Hutton nor Mr. Recorder Greenwood will be on the bench that day. It is said that Judge Hutton does very little family work now and that the Recorder will be retired by December. It seems to me most important that there should be a real effort made in the county court to see that the listing in December is before Judge Hutton to avoid yet a third judge having to come into this quite difficult case.
At the conclusion of his order the Recorder gave the father permission to appeal the third paragraph prohibiting the removal to Northern Ireland. That appeal has been skilfully argued today by Miss Pauffley QC. She says in essence that the father's application in the court below for a specific issue order was misconceived. She points to the statutory language, in particular the terms of section 13(1) of the Children Act, which provides:
“13(1) Where a residence order is in force with respect to a child, no person may -
(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.”
So, says Miss Pauffley, since her client sought only a relocation within the United Kingdom, inferentially the decision was for him, as the parent with the residence order, and he was under no obligation to seek the court's leave. She accepts that there are circumstances in which the court has jurisdiction to impose conditions upon a residence order under section 11(7) of the Children Act 1989. Section 11(7) provides:
“A section 8 order may -
(b) impose conditions which must be complied with by any person -
(i) in whose favour the order is made;
(ii) who is a parent of the child concerned;
(iii) who is not a parent of his but who has parental responsibility for him; or
(iv) with whom the child is living,
and to whom the conditions are expressed to apply.”
However, says Miss Pauffley, the decision of this court in Re E (Residence: Imposition of Conditions) [1997] 2 FLR 638, demonstrates that such a condition is only to be imposed in truly exceptional circumstances which are not to be found in the present case.
Next, she says that her client is entitled to the protection of Article 8 of the European Human Rights Convention. He has the right to choose the place of his family home. She says that the judge was wrong to impose a prohibition in this case since the evidence did not support his conclusions.
The contrary submissions from Miss de Haas are to this effect. First, she says that section 13(1)(b) means that the court's leave must be sought on a removal from the jurisdiction rather than a removal from the United Kingdom. She accepts that section 5 of the Interpretation Act 1978, taken in conjunction with Schedule 1, has the effect that the United Kingdom means Great Britain and Northern Ireland. However, she seeks to establish a contrary implication or intention from a number of features of the Children Act 1989. She draws attention to the side note to section 13, which is thus expressed:
“Change of child's name or removal from jurisdiction.”
She also refers to section 108(12) which applies particular provisions of the Act to Northern Ireland but not the provisions of section 13. She relies upon the power contained within section 101 to make delegated legislation and points to the exercise of that power in the Children (Prescribed Orders – Northern Ireland, Guernsey and Isle of Man) Regulations 1991, SI 1991/2032.
Secondly, Miss de Haas says that the test applicable to an application to relocate outside the jurisdiction has been radically altered by the...
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