Re E (Residence: Imposition of Conditions)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SAVILLE,LORD JUSTICE THORPE |
| Judgment Date | 30 April 1997 |
| Neutral Citation | [1997] EWCA Civ J0430-1 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | FC3 96/7543/F |
| Date | 30 April 1997 |
[1997] EWCA Civ J0430-1
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE BOW COUNTY COURT
(HIS HONOUR JUDGE RIDDELL)
Royal Courts of Justice
Strand
London WC2
Lord Justice Butler-Sloss
Lord Justice Saville
Lord Justice Thorpe
FC3 96/7543/F
MISS S ALLEN (Instructed by Mahmood & Southcombe, Ilford, Essex, IG1 2LA) appeared on behalf of the Appellant
MR Z NABI (Instructed by Wallace Bogan & Co, London, E3 3AB) appeared on behalf of the Respondent
)
LADY JUSTICE BUTLER-SLOSS:
This is an appeal by a mother from the order of His Honour Judge Riddell made on the 13th September 1996 in the Bow County Court. On the 11th November 1996 the judge granted leave and this Court has extended time. The issue relates to a condition placed by the judge on a residence order granted to the mother in respect of the two children of the family, a boy, E. known as Eh. born on the 3rd August 1985 and so now aged 11 and a girl A., known as Ai, born on the 26th July 1990, now 6.
The relevant part of the order of the 13th September 1996 reads:-
"1) There be a residence order to the Respondent (Mother) in respect of the two children subject to the condition that the said children continue to reside at [and the address is given] unless otherwise ordered by the court or agreed by the Applicant (Father) in writing."
The mother appeals against the imposition of the condition.
We allowed the appeal; set aside the condition in the order and reserved our reasons for that decision.
The background to this appeal is that the father is Nigerian and the mother is English born in Blackpool where her family still live. They married on the 9th June 1984. Eh. was born in London. During 1989 and 1990 the mother returned with Eh. to live with her parents and Ai. was born in Blackpool.
At that time the father was studying and abroad for a time. During 1990 the mother and two children returned to London and went back to live with the father. Since 1990 she and the children have visited her family in Blackpool about 4 times a year. During 1992 the marriage was breaking down although the parents and children remained in the matrimonial home. The family moved to 4 Hope Close in January 1995. On the 17th August 1995 the father informed the mother that the marriage was over. She told him she was going for a holiday with the children to Blackpool and intended eventually to settle there with them. The father made applications for a prohibited steps order and a specific issue order, designed to prevent the mother removing the children permanently from London. By the time of the hearing on the 23rd August the mother and children were on holiday in Blackpool. The court in her absence ordered that the children should live with the father in the matrimonial home until the return date. On the 20th September 1995 the father undertook to leave the matrimonial home forthwith and did so. The mother undertook not to remove the children from that address without leave of the court or the agreement of the father. Both those undertakings were in force at the time of the hearing on the 13th September.
At the hearing there were cross applications for a residence order. The father sought in the alternative defined contact and an order preventing the mother from removing the children from London to live in Blackpool. The father`s family of five sisters, three of whom have children, all live in north London whereas the mother`s family all live in the Blackpool area. The father was principally concerned to keep the children in London in order that they might continue to be in close contact with his side of the family. He told the court welfare officer that his application for a residence order was motivated by his desire to keep the children in London. The mother sought to be released from her undertaking to remain in the former matrimonial home or to be given leave to remove the children to Blackpool.
The court welfare officer said that the mother was very child-focused; their best interests were her highest priority and he was very impressed with her parenting skills. The mother impressed the judge very favourably and he was completely satisfied that her care of the children was excellent. She had not worked since the birth of Ai. She hoped however to obtain a job in Blackpool and rely upon her family to help with the child care. She had arranged to rent a house from her sister, relying initially upon state benefits. The judge found that the proposed arrangements made by the mother were satisfactory.
The father is a commodity broker. He rented a house from a cousin in Dagenham. He asserted that he would be able to care for the children with the help of a sister. The judge found that he had through his business other pressures on his time. He said to the welfare officer that he was married to his business. The judge had no difficulty in coming to the firm conclusion that, although the father and children were devoted to each other and he would be a good enough carer of the children, it would be profoundly disturbing for the girl to be moved from her mother who was obviously the parent to care for both children.
I have dwelt a little on the factors relating to the issue of residence since the judge decided with whom the children should live separately from the question of where the children should live. He was faced with an unusually difficult problem that the mother was clearly the better parent to care for the children, and the father has not cross-appealed against that decision of the judge, but there were strong pointers in favour of the children remaining in London. The court welfare officer felt strongly that the children should not move from London. He reported that Eh. did not want to go to Blackpool. The children, being of mixed race, fitted more easily into the multi-racial and multi-cultural life style of London. Blackpool by contrast has a largely white population. The children were very fond of their father and had close contacts with his black family. Further the father was unreliable about contact and the distance from London combined with his unreliability might deprive the children of adequate future contact with him. The judge felt, somewhat surprisingly since they are 11 and 6, that the children required frequent contact rather than extended periods of contact with their father. All these factors led the judge to the conclusion that, despite making a residence order in favour of the mother, he should impose a condition under section 11(7) of the Children Act 1989 that the children should reside in London in the former matrimonial home. He felt able to do so since the mother had not been released from her undertaking of the previous September not to remove the children from the matrimonial home. He applied by analogy the principles relevant to an application for leave to remove children permanently from the jurisdiction, now enacted in section 13 of the Children Act and refused to release the mother from her undertaking.
Prior to the Children Act, to my knowledge, residence restrictions were not attached to custody orders and only rarely to an order in...
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