Re A (Permission to Remove Child From Jurisdiction: Human Rights)
| Jurisdiction | England & Wales |
| Judgment Date | 29 February 2000 |
| Judgment citation (vLex) | [2000] EWCA Civ J0229-4 |
| Court | Court of Appeal (Civil Division) |
| Date | 29 February 2000 |
| Docket Number | PTA 00/5484/B1 |
[2000] EWCA Civ J0229-4
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
(Mr Recorder Elvidge)
Royal Courts of Justice
Strand
London WC2
Lord Justice Ward
Lord Justice Buxton
PTA 00/5484/B1
THE APPLICANT FATHER appeared in Person.
MR. P. NATHAN (instructed by Messrs Reynolds Porter Chamberlain, London, WC1) appeared on behalf of the Respondent Mother.
LORD JUSTICE WARD: This is an application by the father of a young girl, A, who is 10 months old, for a stay of execution of the order made by Mr. Recorder Elvidge on 9th February, when he gave permission for the mother permanently to remove A from the jurisdiction in order to take up, if it eventuates, a life in New York. The order was made on the basis of undertakings given by the parties, and particularly by the mother, in which she promised to litigate all questions relating to contact in the courts of England and Wales, and offered contact by returning A to the jurisdiction on not less than two occasions each year for a week, to allow him additional contact if she was in the country, and to permit contact in New York, all of that in addition to keeping him informed by E mail or by letter. The father seeks permission to appeal against that order. Mr. A has appeared in person, and, if I may say so, I do not think that he has done himself any harm at all by doing so because he has presented his arguments in a fine skeleton argument which sets out the submissions cogently, in detail, and with the backing of the authorities that he wishes us to consider.
The history can be shortly stated. The father is 50. A is his only child, and while all children are precious, I can readily imagine that the gift of a child at the later age than usual is a particularly precious gift. The mother is much younger, being aged 28, and this is her first child. She was born following a relationship the parties had together, which has now sadly broken down. The mother's position is this. She is an accomplished musician but plays that not very portable instrument, the harp, and the opportunities of a harpist are less than those for a violinist. She trained at the Julliard School in New York. She came back to this country some years ago. Following the breakdown of this relationship she has, she says, been offered work in New York, and for that reason seeks permission to take A out of the jurisdiction.
The father is a highly cultivated, intelligent man, but does not seem to have much money, which is an unhappy state of affairs for the family. It poses its own obvious problems for them. His attack on the careful judgment of the Recorder begins with the complaint that the judge, whilst paying lip service to the Human Rights Convention, failed properly to give effect to it. The father, not surprisingly, complains that his right to family life and A's right to family life, which is acknowledged, has been insufficiently weighed in the balance, and the consequence is that the limited contact which he has will be insufficient to properly establish a relationship with his daughter which can ever be meaningful, and he submits, moreover, that the harsh reality probably is that he will increasingly fade from her life.
The judge approached the question upon the proper lines; that is to say, he directed himself fully in accordance with the consistent range of judgments coming from this court, beginning with the well known case of Poel v Poel in 1971, and, more recently, the judgment of Thorpe L.J. in Re: H(Application to remove from jurisdiction) [1998] 1 FLR 848. Thorpe L.J's conclusion in that case was that nothing has been said in this court or elsewhere which conflicts with the approach established by Poel v Poel; that is to say, in essence, that, if the custodian parent takes a reasonable decision, then the court ordinarily will not interfere with that unless there is some compelling reason in the child's best interests to the contrary. That is how the judge approached this question.
The difficulty for the father in advancing his Human Rights argument is that, whereas Article 8 undoubtedly gives him and A their right to family life, Article 8(1) also gives the mother a right to her private life. Article 8(2) requires the court, not only to act in accordance with the law, but to bring into a balance those conflicting rights. It is necessary to have regard to the rights and freedoms of others. In this case, it is the right of the mother and her freedom to live her private life as she wishes and to have the freedom to work where reasonably she chooses to do so. Therefore, for my part, I can see no prospect of this court at this stage interfering with the established line of authority which binds us at the moment and which the judge applied. I am very doubtful indeed that matters will be any different in October when the Convention comes into force of law.
The father's complaint that meaningful contact has been denied him is an understandable one, but the judge was satisfied that the mother intended to ensure that there would be contact, albeit very limited, and that the child would grow up in the knowledge that she has a loving father in this country. It was a balance for the judge to strike, and I cannot see that he was plainly wrong in that conclusion.
The applicant mounts the very difficult challenge of findings of fact made by the judge. He complains that his acceptance of the mother's job proposals was quite wrong because all of this was very speculative indeed. He had the father's case well in mind, and at page 22 of his judgment...
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