Re M (Minors) (Removal from Jurisdiction)
| Jurisdiction | England & Wales |
| Judgment Date | 1992 |
| Date | 1992 |
| Court | Court of Appeal (Civil Division) |
NOURSE, LJ AND CAZALET, J
Children – removal from jurisdiction – parents divorced – custody of children to mother – access to father – mother a French national – applying to take children to live permanently in France – Judge granting application – whether Judge had taken all relevant factors into account.
Welfare report – application by mother to take children to live permanently in France – welfare officer finding that mother was turning children against father – recommending that children should remain in England with mother – Judge failing to take welfare officer's views into account – whether Judge's decision could stand.
The parties were married in 1977. The mother, a French national, was born and brought up in France. The father was English. They met and married whilst the mother was studying in England and made their home in England. There were two children of the family, now aged 13 and 8. The parties were divorced in 1989. By an order made on 5 April 1989 custody of the children was granted to the mother with reasonable access to the father. There were problems with access. The mother alleged that the children did not want to see the father and that he mistreated them. The father denied this. In June 1989 the father applied for defined access. In January 1990 the mother applied for leave to remove the children permanently to France. In February 1990 the father applied to vary the order of 5 April 1989 to transfer custody of the
children to him. He made it clear that if the mother stayed in England he would not seek to disturb the original custody order. The mother indicated that if leave were not granted she would remain in England with the children. Therefore, the only issue was whether leave should be granted or not.
The Judge found that the mother bore considerable resentment towards the father and conceded access only grudgingly. She had unconsciously sought to put her side of the case into the children's minds. He found that the children sought to reflect the views of their respective parents. He found that the children enjoyed their time with the father and that he provided advantages that the mother could not give them. He found that the father had justified fears that he would lose contact with the children if they were to go to France. However, he found that, although the mother would make the best of living in England, it would cause emotional conflict. He decided that the children should stay with the mother and that they should go with her to France.
The father appealed.
Held – allowing the appeal: The principle to be applied was that if the proposal of the custodial parent to move with the children to another country was a reasonable one, leave should only be refused if it was clearly shown that the move would be against the interests of the children. The Judge had found that if the mother remained in England this would have an adverse affect on her. He was entitled to form that view having seen and heard her give evidence. However, the Judge had failed to take into account the welfare officer's report and evidence as to the serious and harmful consequences to the children of their indoctrination against the father which would be likely to bring their relationship with him to an end. The welfare officer had said that if existing access did not continue there was a danger that the children's loyalty to the mother would become more intense, to the detriment of their own development and adult relationships. Her evidence was clear and positive and gave grave warning of potentially serious and harmful consequences to the children if the mother's application was successful. The Judge hardly referred to the welfare officer's evidence which was of such importance that it could not have been taken into account without being expressly and carefully dealt with in the Judge's judgment. Accordingly, the Judge had failed to take into account the two important matters of the indoctrination of the children and the likely ending of their relationship with the father. The appeal would be allowed. However, it was not clearly shown that the children's removal to France was against their interests. Therefore, a rehearing before a Judge of the Family Division would be ordered.
AppealAppeal from His Honour Judge Binns sitting at Norwich county court.
John Harwood-Stevenson for the father.
Peter Horrocks for the mother.
LORD JUSTICE NOURSE.On 23 March 1991, in divorce proceedings in the Norwich county court, His Honour Judge Binns made an order allowing the wife, a French national, to remove permanently from the jurisdiction the two children of the marriage, girls now aged 13¼ and 8½ respectively. The husband has appealed to this court, contending that it is clearly shown that the children's removal to France would be against their interests. The marriage having been dissolved and the appeal being concerned only with the interests of the children, it is preferable to refer to the parties as the father and the mother. Since the father's appeal involves a direct attack on some of the Judge's findings and the manner in which he exercised his discretion, the facts of the case must be stated in some detail.
Both the father and the mother are now in their late 30s. The mother was born and brought up in France. She is trilingual, speaking French, English and Italian. In her early 20s, while she was a student at Grenoble University, she came here in order to improve her English at the University of East Anglia. It was while she was in this country that she met the father, who was born and brought up in Norfolk. They fell in love almost immediately and were married on 6 August 1977. The elder daughter, S, was born on 30 June 1978 and the younger, A, on 31 March 1983. They lived in the Fakenham area of Norfolk, where the father had various of his relations nearby, including his parents, two brothers and a sister.
The father came from a different background to the mother, both socially and educationally. The mother, whom the Judge described as a highly intelligent and sophisticated woman, is well read, with a variety of cultural interests. The father, who does not share those interests, was described in evidence as a practical, down to earth person. One of his hobbies is sailing. Both parties now acknowledge that they were not well-suited to each other; apart from different interests they had different ideas about the social life that they should lead. From its early days the marriage was not a happy one, although it was not until January 1989 that he final separation came when the father left the matrimonial home.
Evidence was put before the Judge showing the differences which had ultimately led to the...
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