Re L (Shared Residence Order)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Wall,Lord Justice Aikens,Mr Justice Bennett |
| Judgment Date | 28 January 2009 |
| Neutral Citation | [2009] EWCA Civ 20 |
| Docket Number | Case No: B4/2008/2939 |
| Court | Court of Appeal (Civil Division) |
| Date | 28 January 2009 |
[2009] EWCA Civ 20
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
HHJ WELCHMAN made on 17th November 2008
sitting in the Lambeth County Court
Lord Justice Wall
Lord Justice Aikens and
Mr Justice Bennett
Case No: B4/2008/2939
David Boyd (instructed by Bindmans—Solicitors) for the Appellant
Frances Judd QC (instructed by Darbys—Solicitors) for the Respondent
Hearing date: 14th January 2009
Lord Justice Wall :
Introduction
The mother of L, a girl born on 17 March 2004, and thus rising 5, seeks permission to appeal against an order made by His Honour Judge Welchman sitting in the Lambeth County Court on 17 November 2008. The only formal application before the judge (which he rejected, and from which there is no appeal) was by L's father (who is the respondent to the application in this court) that a shared residence order made by the same judge on 12 December 2007 he varied so that L's time was divided equally between her parents on a four day rotation.
However, the real issue between the parties was the mother's wish to relocate with L from North London, where both parents were living, to Chew Magna in Somerset, where she had obtained employment. The judge refused the mother permission to relocate. He did so, not by imposing conditions under section 11(7) of the Children Act 1989 (the 1989 Act), but by varying the shared residence order; (1) to extend the periods L spent with her father at weekends “from after school on Fridays until the beginning to the school day on Tuesdays on alternate weeks”; and (2) “from after school on Tuesdays until the beginning of the next school day being the Tuesdays in the weeks following the Tuesdays in (1)”.
L began at primary school in North London in September 2008. We were told at the bar that pending the hearing of this application, the mother has been commuting daily to Somerset from North London, and that when L is not at school or with her father, she is being looked after in the day time by the mother's husband, whom she married in November 2007.
I saw the case on paper at the end of the Michaelmas term, and listed the application on notice to the father with the appeal to follow if permission was granted. This is, so far as I am aware, the first case to reach this court in which the question of what I propose to call “internal relocation” (that is, relocation within England and Wales) arises where there is already in existence a shared residence order. For that reason, amongst others, I would grant permission to appeal.
The facts
The mother is 37, and is British, although she also has an Israeli passport. Her mother is Scottish and her grandfather Israeli. The father is 39. He is Serbian, but is settled in England. The mother and the father began a relationship in 1999, which finally ended in December 2005, when the mother left the father, taking L with her. They did not marry, and L is their only child.
After the separation, both parties lived in South London, and although the detail may be in dispute, the father plainly played a substantial role in L's life. Unfortunately, in April 2007, the mother was made redundant, and in September 2007 she applied to the court to relocate with L and her then fiancé (now her husband) to Israel. That application came before His Honour Judge Welchman in September 2007, and he refused it. For some reason, the order of the court is dated 12 December 2007, although the judge's written judgment is dated 5 September 2007.
The reasons given by the judge for refusing the mother's application to relocate with L to Israel are important, and I will return to them. Suffice it for the moment to record that on refusing the application, the judge made a shared residence order and divided L's time between her parents. The mother sought permission from this court to appeal against the order, but permission was refused by Wilson LJ on paper, and the application was not renewed. The mother then moved to North London, and the father followed. Both now live in N21, and, as I have already stated, L has started her primary education at a local state school.
The mother's case before the judge was that she had made numerous job applications in London and elsewhere, and that the only offer of suitable employment was that which she wished to take up in Chew Magna. A place was available for L at the local primary school: the mother would be able to rent suitable accommodation, and the setting was both rural and ideal for L. Neither in the court below nor in this court did the mother seek to disturb the shared residence order, although she accepted that mid-week contact with the father would not be a practicable proposition. She proposed, as compensation, longer periods in school holidays, combined with staying contact at alternate weekends as under the present order.
In her written statement dated 14 October 2008, the mother asserted her willingness to foster a good relationship between L and the father, but also argued that L's home had always been with her. She concluded her first statement dated 1 October 2008 with these words:—
If I cannot move to take up employment in Bristol, I am in despair as to what the future will hold for us. L would miss out on the opportunity to live in the countryside, with outdoor space and a healthy environment to grow up in. I hope the court will accept the more and my proposals for contact. I truly believe the more will be in L's best overall and long-term interest.
The father's case was that the move to Chew Magna would seriously disrupt his relationship with L. Moreover, he asserted that the move to Chew Magna was, in effect, contrived. It was part of a pattern of moves and proposed moves designed to minimise (and possibly to extinguish) his role in L's like. He pointed to the proposal to go to Israel, and the unannounced move to North London.
The Law
As I indicated in paragraph 4 of this judgment, this is, so far as I am aware, the first case to reach this court in which the question of a parent's proposed relocation with a child within England and Wales has arisen where there is already in existence a shared residence order in favour of the parents in relation to the same child. Several questions therefore arise. In particular; (1) what effect, if any, does such an order have? And; (2) what weight should a judge give to the existence of such an order?
Both Miss Frances Judd QC for the father and Mr. David Boyd, for the mother submitted that it would be a powerful disincentive to parties entering into shared residence orders if either felt that the consequence of so doing was to place a fetter on any subsequent application to relocate. I agree. However, this provides only a partial answer to the questions posed in the previous paragraph, and it is therefore necessary to look at the authorities on internal relocation. They are, I think, the following (I list them in chronological order):—
(1) Re E (Residence: Imposition of Conditions) [1997] 2 FLR 638 ( Re E)
(2) Re H [2001] EWCA Civ 1338, [2001] 2 FLR 77 ( Re H)
(3) Re S (a child) [2001] EWCA Civ 847, [2001] 3 FCR 154 and [2002] EWCA Civ 1795, [2003] 1 FCR 138 ( Re S (No 1) and Re S (No 2))
(4) B v B (Residence: Condition Limiting Geographic Area) [2004] 2 FLR 979 ( B v B)
(5) Re H (Agreed Joint Residence: Mediation) [2004] EWHC 2064 (Fam), [2005] 1 FLR 8 (which, for present purposes I propose to call Re H (No 2))
(6) Re G (Contact) [2006] EWCA Civ 1507, [2007] 1 FLR 1663
(7) Re B (a child) [2007] EWCA Civ 1055, reported as re B (Prohibited Steps Order [2008] 1 FLR 613 ( Re B).
The 1989 Act, by section 8, defines a residence order as “an order settling the arrangements to be made as to the person with whom a child is to live”. The shared residence order in the present case gives the father parental responsibility for L, although we were told at the bar that he may well have already had it before the shared residence order was made.
B v B and Re H (no 2) are decisions at first instance. The remainder are decisions of this court. Re E, it seems to me, remains the leading case, and sets the tone for much of what followed. I propose, accordingly, to cite extensively from the leading judgment in the case, given by Butler-Sloss LJ (as she then was).
In Re E the judge at first instance had treated as separate issues the two questions; (1) with whom and; (2) where the children in question should live. He thus made a residence order in favour of the mother, but imposed a requirement under section 11(7) of the 1989 Act that the children should continue to reside at a named address unless otherwise ordered or agreed by the children's father. The mother wished to take the children to live with her in Blackpool: the father wanted the children to remain in London. On the mother's appeal, this court reversed that part of the judge's decision which imposed the section 11(7) requirement on the mother.
Although not directly relevant to this appeal, it will, I think, make this judgment easier to follow if I set out section 11(7) of the 1989 Act, which reads as follows:—
A (residence order) order may—
(a) contain directions about how it is to be carried into effect;
(b) impose conditions which must be complied with by any person –
(i) in which 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...
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