Re M (Removal from jurisdiction: Adjournment)
| Jurisdiction | England & Wales |
| Judge | Lady Justice Black,Sir Nicholas Wall |
| Judgment Date | 22 June 2010 |
| Neutral Citation | [2010] EWCA Civ 888 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B4/2009/2255 |
| Date | 22 June 2010 |
[2010] EWCA Civ 888
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE PRINCIPAL REGISTRY OF THE FAMILY DIVISION
(Her Honour Judge Valerie Pearlman Cbe)
Before: The President Of The Family Divison
(sir Nicholas Wall)
and
Lady Justice Black
Case No: B4/2009/2255
Mr Matthew Hellens (instructed by Messrs Rowberry Morris Solicitors) appeared on behalf of the Appellant Mother
The Respondent Father appeared in person.
Lady Justice Black
1.This is a mother's appeal against the order of Her Honour Judge Pearlman on 24 September 2009. The judge granted permission for the father to take the child, Arséne Freddie Mbe, who was born on 8 May 2003 and is therefore seven, on holiday to France and/or Cameroon.
At the time of the hearing in front of Judge Pearlman, the father had not got details of the holiday that he proposed. Today he has produced to us details of the proposed holiday, which he now says he would wish to limit, for financial reasons, to a trip to Paris.
The parties were married in 1999. They separated in 2004 when Arséne was in his second year. They were divorced in 2006. Ancillary relief proceedings were still continuing at the time of the hearing before Judge Pearlman. I do not know whether they are yet concluded.
In May 2008 the father had applied for a residence order and various other section 8 orders. That application culminated in an order in July 2009 for defined contact. At the time of the hearing before Judge Pearlman contact was basically working well. The father was seeing his son on alternate weekends and for half of the school holidays. Collection and return was at a contact centre.
Just before the September hearing there had, unusually, been some difficulty over the August Bank Holiday weekend with contact when the Contact Centre was closed on the Bank Holiday Monday, when the father would normally have returned the child. The Contact Centre were meant to ask the father to return the child on the Sunday, but failed to do so. The mother's sister did ask the father to do that (or told the father, on the father's case), but he did not do so; he returned the child on the Tuesday. There was no other evidence of difficulty over contact before the judge.
The father had applied unsuccessfully to Singer J in August 2008 for permission to take Arséne to Cameroon. The question of a trip abroad then came up again in the course of the section 8 proceedings and was referred by the District Judge in July 2009 to a section 9 judge, and so it was that it appeared in Judge Pearlman's list.
We are told that at the outset of the hearing the central authority of in Re K (Removal from Jurisdiction: Practice) [1999] 2 FLR 1084 in the Court of Appeal in 1999 was handed to the judge and she was invited by the mother —the only one of the parties who was represented both in front of Judge Pearlman and today, the father appearing in person —to adjourn the case for expert evidence to be obtained on the legal situation in Cameroon and how the child could be recovered from that country in the event that the father retained him there. The judge declined to adjourn. If she gave reasons at that time, at the outset of the hearing, then they have not been transcribed, and I suspect from argument that in fact she did not give any reasons at that point but merely announced her decision. She did, however, comment at the end of the hearing, when responding to a request by the mother's counsel for leave to appeal, that, with regard to adjourning the case and having an expert, “I took the view that it was the least expensive and most convenient way to deal with the problem.” She had also said, in the course of her judgment at paragraph 18:
“…when the question of getting expert opinion was raised by Mr Hallens, I still was not given an unconditional agreement by the mother to the child going out of the jurisdiction; and certainly that was one of the reasons why this case had to proceed.”
The judge had statements from both parties and she heard oral evidence. The hearing lasted half a day and the judge gave her judgment directly at the end of it. The mother's statement, and no doubt her oral evidence as well, raised a number of anxieties which she had and which led her to oppose the father taking the child to Cameroon or to France, which she considered to be just as risky because flights to Cameroon depart from Paris and the father could therefore use a trip to France as a route to an unauthorised departure for Cameroon.
The father comes from Cameroon and has family there, including, I think, still his parents. He wanted to take Arséne to Cameroon to meet them and to show him his cultural heritage. It would not be the first trip that Arséne has made. He went there in 2004, but he was of course only very young at that time. The mother's case before Judge Pearlman was that the conditions in Cameroon were unsatisfactory on that trip and both she and Arséne had been ill.
The mother advanced a number of arguments why it would not be in Arséne's best interests to go on holiday abroad with the father. She said Cameroon is not a Hague Convention country and she believed that if the father retained his son there it would be very difficult to get him back. She argued that she had reason to believe that the father may not bring Arséne back after the holiday as the father had threatened to take his son there and leave him in the care of his mother. Her case was that he had made quite a recent threat of that kind to her cousin on 9 August 2008, at that time threatening to take Arséne to Cameroon and not to return him. The cousin was not called to give evidence. The evidence was contained in a hearsay form in the mother's evidence.
She also said that living conditions were very poor in Cameroon. She argued that her son would be harmed if he were to be retained there. She pointed out that he was now settled in England. She had taken him for periods to Jamaica (from where she comes), once at least for a prolonged period without the father's consent. But, she pointed out, Arséne had been attending the same school in England since May 2008 and was thriving. She did not say so (she did not need to do so as it was self-evident) but of course his relationship with her would be disrupted if he were to be kept in Cameroon without her agreement.
She pointed out also that the ancillary relief proceedings, which had been going on for about two years by that point, had run into difficulties because the father had failed to obey the court's orders, despite penal notices and committal proceedings which had been sought to secure his compliance with the orders. This, she said, indicated that he could not be trusted to respect the orders of the English courts. She drew attention to the poor state of the father's business here and argued that he may have nothing to come back to if he went abroad.
The judge had some information about the ancillary relief proceedings. Counsel is unable to remember whether that was directly from papers or from excerpts quoted by him in his position statement on behalf of the mother, but one can see that during the ancillary relief proceedings the father was acknowledging that he was significantly in debt. He has told us in his skeleton argument for today that that is still the position. At that time, he had said in his position statement that he was heavily steeped in debts and that his business was at the brink of collapse. The properties which he owns in...
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