Re J (Children) (Residence Order: Removal Outside Jurisdiction)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE THORPE,Lord Justice Thorpe |
| Judgment Date | 19 December 2006 |
| Neutral Citation | [2006] EWCA Civ 1897 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | B4/2006/2597 |
| Date | 19 December 2006 |
[2006] EWCA Civ 1897
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION OF EXETER DISTRICT REGISTRY
(MR JUSTICE COLERIDGE)
Royal Courts of Justice
Strand
London, WC2
Lord Justice Thorpe
B4/2006/2597
MR P CAYFORD QC & MR C BUTTERFIELD (instructed by Messrs Batten) appeared on behalf of the Appellant.
MS J FARQUARSON (instructed by Messrs Stephens & Scown) appeared on behalf of the Father.
MS S TRUMPER (instructed by Messrs Stones) appeared on behalf of the R2 Child.
MR C GODFREY (instructed by Messrs Charlesworth Nicoll & Co) appeared on behalf of the Guardian.
On 12 December I ordered an oral hearing on notice of an application for permission to appeal the order made by Coleridge J on 23 November whilst he was sitting in Exeter. My order also provided for appeal to follow if permission granted. We have not formally granted permission, but implicitly we have, by allowing Mr Cayford to present his case as though he were arguing an appeal. Mr Philip Cayford QC has come into the case very recently, the skeleton in support of the permission application having been settled by Mr Butterfield, who appeared at the trial for the mother and who in this court is led by Mr Cayford. Mr Cayford has drawn attention to the speed at which the Family Justice System has dealt with the father's application to relocate, with the relevant children, to Bulgaria. There is some uncertainty surrounding the date of the issue of the application but it is thought to have been 16 October, so it was determined some five weeks after issue and the case comes for decision in this court less than four weeks after the judgment below.
That accelerated timetable is only possible because the parents had issued cross-applications for residence orders in relation to the relevant children by March 2006 at the latest—a prior consent order for shared residence entered in October 2005 having disintegrated over disputes as to contact. So what had been listed before Coleridge J for three days in Exeter were the cross-applications for residence. It was onto that structure that the subsidiary issue of leave to remove the children to Bulgaria was grafted.
This is a complex and unusual case and it is necessary first of all to define the family with which the court is concerned. There are five children of the family: M, who is almost 20; C, who is 18; A, who is 14; D, who is 11; and Au, who is six. The judge was obviously not concerned with M or C. He does in his judgment record the deep rift between the father's household and the mother's household. As at the date of trial, A and D were living with the father and had had no contact with the mother since the cessation of contact in September 2005. C, who was also to be found at the father's home, identified with him. Au, the youngest child, had been living with the mother since the middle of 2006 but with frequent contact to the father and the elder children. M lived with the mother but the judge was to say:
“This large family is awfully divided […] On top of that A and D are expressing extraordinarily strong views about not seeing their mother at the moment. Indeed A goes further and says that her present view is that she would never want to see her mother again.”
Fortunately some concessions were made. Although the father's application for leave to remove had been directed to A, D and Au, he conceded that his real objective was to take A and D with him and that Au should continue to make her home with her mother. The mother during the course of the trial also made a concession, namely that A should live with her father. So the real issue was as to whether the permission should be given for the father to remove A and D to Bulgaria.
The judge gave an extempore judgment at the end of the trial and it seems that he gave his judgment towards the end of the day and accordingly compressed it to the essentials. He explained over the course of some 47 paragraphs why he concluded that the least bad option for these two children was to join the father in a search for a new life in Bulgaria. The judge took that course, rejecting the submission of the guardian who acted for D and Au, that there should be a postponement of some six months to enable her to pursue further investigations into the family and, in particular, into the role and influence of a lady known as Mrs H, with whom the father had been living between October 2005 and October 2006. I say living in the most literal sense: the circumstances in which the father and the two children had joined Mrs H's household were dramatic. The matrimonial home had burned to the ground and the father had moved to Mrs H's farm in the vicinity. The mother's case was that there was a full blown relationship, sexual and emotional, between the father and Mrs H. The father's case was that she was essentially a landlady who had become a supporter and confidante. He denied any sexual relationship but, as the judge said, frankly admitted that he aspired to a closer relationship with her. The guardian's desire to investigate further was supported by a report from Dr Martin Gay, who also felt that there was insufficient information for him to take a rounded professional decision.
The other and contrary consideration, highly unusual, was that the father presented himself as being in desperate financial straits. His case was that he was bankrupt. He was dependent on his parents and state benefits. His only prospect of re-establishing himself financially and making financial support for his family was to accept an offer of employment in Bulgaria. The job would provide him with a reasonable annual salary of €30,000, in addition to which there would be benefits in kind, including rental, medical and schooling assistance. The mother's case was that that presentation was bogus and that there was no such job offer.
Another unusual feature of the case was that the paternal grandparents had been involved financially, not only in supporting their son but also supporting the education of some of the grandchildren. They too were entirely supportive of the father's plans for the future and were proposing, themselves, to sell up in this jurisdiction and to purchase a home big enough for all the family in Sofia and a holiday home by the sea. They were clear that they would not pay school fees for the children in this jurisdiction beyond the end of the calendar year.
The judge had, as he recorded, a fair amount of documentary evidence to digest and, unusually, a batch of e-mails from and to the father, which on their face undermined a good deal of his case. The mother's case was that somebody, she knew not who, she assumed some supporter, had posted a disc through her door that, when downloaded, produced the series of e-mails. The father's case was that, whilst some of the material had emanated from him, it was an edited document, produced to support the mother's case. So the judge had to decide what weight he should attach to those e-mails.
Then even more curious were documents that emerged as a result of some investigations made by the guardian, who had had her alarm bells rung by her observation of the father and Mrs H together. She considered that their body language did not marry with the statement as to the relationship between them and she also had concerns about whether, in the past, Mrs H had maliciously manufactured allegations of sexual abuse to embarrass or destroy a former partner. The guardian apparently delegated internet searches to the solicitor she had instructed and by 15 November they were in possession of a series of notes posted, seemingly, by Mrs H on some sort of Bulgarian chat room. The most concerning ingredients were, first, the claim that she was a duty solicitor and, second, that she would be taking her six dependent children, including C, A, D and Au, to Bulgaria in the near future. Unfortunately the guardian's solicitors did not immediately disclose this material and it only came to Mr Farquarson, the husband's junior counsel, when Mr Godfrey, who was counsel for the guardian, delivered it on the eve of the trial. So this was presented as something of a bombshell. Seemingly, the father was cross-examined on the entries and said, perhaps convincingly, that he was amazed by what he had read but, of course, there was no Mrs H to explain nor did he have the opportunity of presenting her explanation at second-hand. The judge heard oral evidence only from the parents, from the guardian and from Dr Gay. The judge expressed his unease at the absence of any evidence from either the paternal grandparents or from Mrs H.
Before I come to Mr Cayford's submissions, it is to be recorded that the notice of application for permission sought to reverse the judge's order in relation to both A and D. However, yesterday a concession was made on behalf of the mother that her application was directed only to the judge's permission for D's removal. Mr Cayford has advanced his appeal on three main grounds. First, he says that the judge fell into fundamental error in accepting as sufficient what was only ragbag evidence from the father as to the practicalities. Mr Cayford has said that there was no clear or sufficient evidence as to the children's home in Bulgaria, the school that they would attend, or even the job that would provide the family's livelihood. His second ground of appeal is that the judge fell into fundamental error in rejecting the guardian's case, supported by Dr Gay, that there was a serious...
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