Re J (Children) (Residence: Expert Evidence)
| Jurisdiction | England & Wales |
| Judgment Date | 2001 |
| Year | 2001 |
| Date | 2001 |
| Court | Court of Appeal (Civil Division) |
Children – Residence dispute – Father’s ability to meet children’s emotional needs in issue – Orders changing residence in favour of father – Whether trial judge failing to consider with which parent children should be living – Whether trial judge failing to address capacity of each parent to meet children’s emotional needs – Whether reasons given for rejecting reasoning of professional witnesses in support of children living with mother even if outside jurisdiction – Children Act 1989, s 7.
The mother was American and the father was British. They married in America in 1987 and had two children, C who was 11 years and F who was nearly nine. C was born in America and was an insulin-dependent diabetic while F was born in the United Kingdom after the parents relocated there. The mother was the primary carer for the children until she obtained employment and accommodation in another town in 1998, after which she returned to the matrimonial home on weekends. The marriage was volatile. At the mother’s instigation the parties attended counselling and the father investigated an anger management course. The marriage broke down in July 1999, following which the mother contacted the police domestic violence unit and the police child protection team. In August 1999 the father obtained an ex parte residence order while the mother was in France with the children. Following her return orders were made for the children to reside with the father during the week and with the mother on the weekends. A court welfare report was obtained which found that the mother was the more conciliatory of the parents and recommended that the children reside with her in the family home. In November 1999, by consent, the father vacated the former matrimonial home and thereafter the mother resided there with the children. The mother then varied her application seeking leave to relocate to France with the children. The mother obtained an ouster and non-molestation order coupled with a power of arrest against the father in December 1999, after a two day contested hearing. A second welfare report was provided which reported that both children were behaving badly towards the mother and raised concerns that the father might have turned the children against her. As a result the children were placed on the child protection register as having suffered emotional harm. A third report, pursuant to s 7 of the Children Act 1989, reflected similar concerns but did not suggest a change in residence for the children. An addendum to that report stated that whilst both parents had proved that they could meet the physical needs of the children there remained doubt that the father could meet their emotional needs. The conclusion was that the children
should remain living in England in the hope that the mother would change her plans so that the children could continue to reside with her. At the final hearing the judge found that the mother would be more supportive of contact but ordered that the children reside with the father in England. The mother appealed arguing that the judge was wrong to approach the matter on the basis that he had to make a choice between the mother in France and the father in England but rather should have first asked himself with whom the children should live and secondly where that should be.
Held – (1) The basic issue in a residence dispute was always with which parent the children should reside. Within that issue were important questions about which parent was best able to meet the children’s physical, emotional and educational needs and the effect upon the children of any change in their circumstances. In the present case the judge paid little attention to the combination of factors which suggested the father had little ability to meet the children’s emotional needs. A judge who was faced with that crucial issue could not refuse to address it.
(2) Where there were professional witnesses who had been asked to advise the court by way of a s 7 report the court must explain clearly the reasons for departing from their recommendations. In the present case the judge appeared to give little weight to the views of the professionals. Whilst the professionals had concerns, the final report was in favour of the children living with the mother, even should she relocate to France. The judge gave no explanation for disagreeing with the reasoning in support of that conclusion.
Accordingly, permission to appeal would be granted and the appeal allowed.
Cases referred to in judgmentsRe E (minors) (residence: conditions)[1997] 3 FCR 245; sub nom Re E (residence: imposition of conditions) [1997] 2 FLR 638, CA.
Re L (a child) (contact: domestic violence); Re V (a child) (contact: domestic violence); Re M (a child) (contact: domestic violence); Re H (a child) (contact: domestic violence)[2000] 2 FCR 404, [2000] 4 All ER 609, [2001] 2 WLR 339, [2000] 2 FLR 334, CA.
AppealThe mother applied for permission to appeal in relation to the order of Judge Wigmore made on 28 July 2000 in the Plymouth County Court whereby he ordered that the two children of the marriage live with the father and have reasonable contact with the mother. The facts are set out in the judgment of Hale LJ.
Peter Forbes (instructed by Stanley Tee & Co) for the appellant.
Catriona Duthie (instructed by Whiteford Crocker) for the respondent.
HALE LJ.1. This is a mother’s application for permission to appeal (for which a short extension of time is required) against orders in relation to two young boys: C, who was born on 1 September 1989 and is now just 11 years, and F, who was born on 28 November 1991 and is now nearly nine. On 28 July 2000, in the Plymouth County Court, Judge Wigmore ordered that they were to live with their father and have reasonable contact with their mother.
2. The mother is an American of Armenian extraction and the father is British. They met in 1986 in Bermuda. They married in the USA in June 1987. C was born in September 1989. They moved to live in the United Kingdom in November 1989 and F was born in November 1991. At the age of three C was diagnosed as being an insulin-dependent diabetic. The father, who had otherwise been involved in various maritime matters, studied law and later gained employment as a lecturer in maritime law at Plymouth University. During those years the mother was the main carer for the boys.
3. In 1997 the children became pupils at [a village] primary school, and the family later rented a home nearby. They also own a home in France, and at one stage they were considering going to live there. When F started school the mother took a postgraduate course. After completing this, she obtained employment and accommodation in Berkshire in March 1998. The boys remained with their father, the mother returning home at weekends.
4. The marriage has been described as ‘volatile’ and ‘at times dramatic’. The parties had attended Relate in 1996, at the mother’s suggestion. The father had agreed to attend the E Centre, a counselling service, in 1997 and was assessed as suitable, but he declined eventually to take part. He told the court welfare officer that he had thought the course would be to help with anger management...
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