Re "M" (A Minor)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE CUMMING-BRUCE,SIR GEORGE BAKER |
| Judgment Date | 05 July 1983 |
| Judgment citation (vLex) | [1983] EWCA Civ J0705-5 |
| Docket Number | 83/0755 |
| Court | Court of Appeal (Civil Division) |
| Date | 05 July 1983 |
[1983] EWCA Civ J0705-5
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
(Mr. Justice Ewbank)
Royal Courts of Justice
Lord Justice Cumming-Bruce
and
Sir George Baker
83/0755
MR. MICHAEL MULHOLLAND (instructed by Messrs Hague & Dixon, York) appeared on behalf of the Appellant/Plaintiff.
MR. JOHN F. WINTELER (instructed by Messrs Drivers, Malton, North Yorkshire) appeared on behalf of the Respondent/Defendant.
I will ask Sir George Baker to deliver the first judgment.
This is an appeal from the decision of Mr. Justice Ewbank allowing the mother, Mrs. M., to take her younger child, J.R. now aged 5, to Spain permanently out of the jurisdiction.
The matter has already accumulated a history. Mr. and Mrs. M. were married in 1975. D, their eldest son, was born in January 1976 and J. in December 1977. So far as Mr. M. was concerned he thought the marriage was happy, but unfortunately he and his wife were friendly with a Mr. and Mrs. H. When they went to Austria for a ski-ing holiday in 1981 Mr. M became suspicious of his wife's association with Mr. H. Matters developed to the extent that Mrs. M. left their matrimonial home, taking the two children. She made many allegations against her husband while, at the same time, having an affair with Mr. H. Divorce proceedings were started by the husband and a decree absolute was in due course pronounced on 14th September 1982. Meanwhile, on the husband's application, both children were made wards of court on 20th July 1981. At that time they were both living with the mother, but some time about the end of August 1981 she returned D. to the husband because, according to the husband, the wife said she could not cope with D. D. has remained with his father ever since, although in the summons which leads up to the present series of hearings, the wife applied to de-ward both children. It is not clear why that was done. However, on 26th July the application to take J. out of the jurisdiction came first before Mr. Justice Ewbank. In his short judgment on that occasion the learned judge said this:
"The father's proposals for J. (that he should have care and control) are put forward with confidence; however, it is accepted that J's proper place is with her mother.
The question is a difficult one. That of the extent to which the Court should stand in the way of the mother's reasonable proposals for her future life, what is in the best long term interests of the children. If leave is granted, the children will be brought up apart and away from one parent. In principle, if the mother's future is really to be in Spain, it would be wrong to stand in the way.
I am not satisfied at the moment that the mother's life will be made and spent in Spain. Things are too uncertain. Firstly, Mr. H's divorce proceedings have not started. Secondly, his financial position is far from certain, there is the likelihood of a substantial divorce settlement. They can't, therefore, guarantee that they will marry. The apartment in Spain is rented. I am not yet convinced that the proposed work is of such a nature that the future will be there. I think the application is made too early."
The learned judge then went on to make this important observation:
"Leave will be granted for the mother to go to Spain with J but not this year. I want Mr. H's affairs with his wife to come to a satisfactory conclusion. It is desirable but not essential that the mother and Mr. H should marry. I want to see the enterprise on a firm basis with documentary evidence. It would be preferable if they owned their own home. When these happen, the mother can apply with confidence as leave, in principle, has been granted."
In this court Mr. Mulholland does not challenge that leave was given in principle. The question is, have the conditions that the learned judge wanted to be satisfied, been satisfied?
Mrs. H., being faced with many difficulties, has, according to her affidavit, started proceedings for judicial separation. That was the first condition in the judge's list. Secondly, the financial position was, and so far as we know, remains completely unresolved as between Mr. H. and his wife.
In her affidavit Mrs. H. speaks of various enterprises; a partnership called Casi di Europa, in York, which was mainly concerned with the sale of Italian shoes and handbags, and the sale of ski-ing equipment and accessories; previously they had been involved in the sale of boats and accessories together with fibrousplaster products. That business was in Mr. H's sole name, in York. Mrs. H had been running the business, with no support from her husband and it was envisaged, though not formally agreed, that she would take over the lease and all the business assets and goodwill as part of the matrimonial settlement. There was a property known as "Kelfield", which was a substantial dwelling which had been demolished and 6 cottages built on the land. But there was apparently a sum of up to £80,000 due to the Inland Revenue and a £39,000 overdraft. The husband is disposing of the Kelfield properties, but with a somewhat vague proposition about a sports complex to be developed by the company, which he was going to sell to his parents, retaining a 25% interest.
It is not necessary to go into all the details but it is clear that Mr. H's financial affairs, in regard to his wife, are by no means settled in this country.
At the hearing 12 months ago Mr. H said that he was getting an occupation in Spain in connection with servicing boats on a marina. He said he had no contract but would be working with a firm called General Aviation Services, in the nature of a franchise. However, the judge was not satisfied that his future would be in Spain and pointed out that evidence should be produced to show what that occupation was and preferably together with a contract. Mr. H has produced a contract, which was originally produced in Spanish but we have had the advantage of seeing what is accepted as a correct translation. That translation reads as follows:
"Between on the one side;
Don Jose Nunez Arjona as Director of General Aviation Service
And on the other:
[Mr. H],…born in York…, of English Nationality and resident in Puebla Lucia 40B, designated the Producer in this contract."
(Mr. H. has never been resident in that house, although he appears to have some interest in the flat there). The contract continues:
"Who are freely in agreement with this contract of employment in accordance with the following clauses bearing in mind the practice set down in the prevailing Law on Employment Contracts.
The Producer states that he is completely available for any work and is not suffering from any occupational illness nor handicapped as a result of accident.
CLASS OF WORK The Producer will give his services in accordance with the regular hours of a working day and will undertake the work of the Technical Service within the norm established by usual organisation practice or by the Company and subject to the requirements of the Service at all times."
The document then deals with remuneration. But one asks, what would he be doing? He was speaking at the hearing of his being a mechanic in the marina. He said in his affidavit that it was full-time employment, but then in his evidence he said he would be freelance. I, for my part, am left completely in the dark as to exactly what this gentleman will be doing. More importantly, so far as anybody can ascertain, he still remains in York! The appellant, Mrs. M. with whom Mr. H is living, gave birth to a child in May, but why he should not go to Spain and work on this lucrative contract, I am quite unable to...
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