Re S (A Child)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Laws,the President |
| Judgment Date | 04 December 2002 |
| Neutral Citation | [2002] EWCA Civ 1795 |
| Court | Court of Appeal (Civil Division) |
| Date | 04 December 2002 |
| Docket Number | Case No: B1/2002/1455 |
[2002] EWCA Civ 1795
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CROYDON COUNTY COURT
(His Honour Judge David Ellis)
Royal Courts of Justice
Strand, London, WC2A 2LL
The President
Lord Justice Waller and
Lord Justice Laws
Case No: B1/2002/1455
Mr Mark Twomey (instructed by Grants) for the Applicant
Mr David Vavrecka (instructed by White and Sherwin) for the Respondent
Dame Elizabeth Butler-Sloss, P. :
This appeal arises in unusual and difficult circumstances. It is the second time the mother of a child called Victoria has appealed to the Court of Appeal. The present appeal is from the second order of His Honour Judge Ellis in the Croydon County Court made on 28 th June 2002. Permission to appeal was refused by the judge but granted by Thorpe LJ. At the hearing of the second appeal we dismissed the appeal and upheld the imposition of a condition on a residence order prohibiting the mother from moving Victoria to live in Cornwall. We reserved our reasons for that decision.
The history
Victoria was born on 18 th March 1993 and is 9 1/2. She suffers from Downs Syndrome and has a serious heart condition and respiratory problems. She has a limited life span and she will be fortunate to live beyond the age of 20. She has moderate learning difficulties.
The parents married on 17 th August 1991 and separated when Victoria was 18 months old in August of 1994. The child has always lived with her mother. She is the only child of the marriage. The parents divorced in 1995. Up to now Victoria has had regular and frequent contact with the father with whom she has a close relationship. She also meets her paternal grandmother regularly and has a close relationship with her. There is no doubt that Victoria is loved and cherished by both parents.
Both parents and Victoria live in South London. After the divorce the mother thought she might to settle in New Zealand and then that she might settle in Australia and take Victoria with her. In October 1995 she married her second husband. A son was born to that marriage, Jamie, on 18 th August 1996. Jamie is 5 1/2 and he is very close to his sister Victoria. In December 1996 Victoria was very ill and her survival was viewed by the doctors as nearly miraculous. After this illness the plans to go to Australia were abandoned. In May of 1998 the mother and the second husband separated. The mother has continued to live in South London in a house jointly owned by her and the second husband. It is small with stairs and only two bedrooms so that Victoria and Jamie have to share. Both the size of the house and the problem of stairs make it unsuitable for the future care of Victoria.
In March 1999 the mother met her new partner, C. He is a Cornishman and came to London to earn enough money to repair and refurbish a bungalow owned by him in Cornwall. C has had a job since 1999 in the London area. His plan was, and remains, to return to live in his bungalow once the refurbishment is complete. His widowed mother, who is dependent on him to a considerable extent, and other members of his family live in the same area as he has his bungalow. The mother and C do not live together but they spend weekends and holidays together and he visits the mother and the children regularly during the week. They go together with the children to visit C's mother in Cornwall. The journey between South London and Cornwall is approximately seven hours by car. The mother wishes to marry C and move with him and the children to Cornwall. The plan in 1999 was to move 18 months to two years later. In 2000 the father married his second wife, G.
The first proceedings
The father made applications in 1999 in order to forestall the move of the mother to Cornwall. The mother did not make an application. The father sought section 8 orders under the Children Act 1989, a Residence Order, a Prohibited Steps Order and a Contact Order. On 24 th October 2000 His Honour Judge Ellis in the Croydon County Court gave his first judgment in this case. One expert witness was called, Dr Bichard who is a chartered educational psychologist. There was, and is, no dispute that Victoria should continue to live with her mother. The dispute in 2000 was in relation to the anticipated move to Cornwall then, as I have set out, 18months to two years from the October 2000 hearing. It was accepted that, until the move to Cornwall, there would be regular and frequent staying contact between Victoria and her father and his family. The judge made a Residence Order to the mother and attached to the Residence Order a condition that she was not to move to Cornwall without leave of the court.
The first appeal
The mother appealed to the Court of Appeal with permission of the judge on 11 th May 2002. The Court of Appeal remitted the case to the County Court for a re-hearing. In his judgment, Thorpe LJ identified a lacuna in the evidence before the trial judge, in that the evidence concentrated on the emotional impact on Victoria of a move. It did not give any indication of the impact on the family and in particular the effect on the mother of the frustration of her proposal to make this important move with her family to Cornwall. I will return later to closer consideration of the judgment of the Court of Appeal reported as re S (a Child)(Residence Order:Condition) [2001] 3 FCR154,
The second proceedings
The second stage of this case was the gathering of further evidence before the trial judge. Judge Ellis offered to withdraw since the case had been remitted by the Court of Appeal to the County Court. Both parties and their legal advisers asked him to continue to try the case. Dr Bichard was asked to prepare a second report although it was agreed that she should not see the child again. Dr Judith Trowell, a Consultant Child and Adolescent Psychiatrist, was asked to provide a report about the family and the child. She wrote a report and gave oral evidence. The judge heard the case second time round over several days in June and gave judgment on 28 th June 2002. The judge again held that the mother should not take Victoria to live in Cornwall without leave of the court and again attached the condition not to move to Cornwall in his Order.
The second appeal
This is the second appeal to the Court of Appeal by the mother. On this occasion the evidence from a child and adolescent psychiatrist filled the gap in the evidence identified on the previous appeal. The same problems however arises on this appeal as on the former appeal and they raise two competing principles:
i) The appellate court, in accordance with the decision of the House of Lords in G v G (Minors: Custody Appeal) [1985] FLR 894; [1985] 1 WLR 647 ought not readily to interfere with the decision of a competent and conscientious judge who has taken into account the relevant factors and has exercised his discretion to arrive at his conclusion in favour of the child remaining in the London area.
ii) The principle enunciated in Re: E (Residence: Imposition of Conditions) [1997] 2 FLR 638 that the court ought not in other than exceptional circumstances to impose a condition on a Residence Order to a primary carer who is providing entirely appropriate care for the child.
The law
Section 1(1) of the Children Act 1989 applies the paramountcy principle. Section 1 has to be read subject to Article 8 of the European Convention which provides, inter alia, for the rights of the mother, the father and the child. There are issues relating to the rights of the parents but, in my judgment, the welfare of this child in her very special circumstances is the most important factor for the attention of this court as the court below.
The starting point is section 11(7) of the Children Act which states that a section 8 order may—
a) contain directions about how it is to be carried into effect;
b) impose conditions which must be complied with by any person—
i) in whose favour the order is made;
ii) who is a parent of the child concerned;
iii) who is not a parent of his but who has parental responsibility for him; or
iv) with whom the child is living;
and to whom the conditions are expressed to apply;
(i) c) to be made to have effect for a specified period, or contain provisions which are to have effect for a specified period;
(b) d) make such incidental, supplemental or consequential provision as the court thinks fit."
The statute therefore provides for the imposition of conditions on a parent with a residence order under section 8. In re E (above) this Court considered the circumstances in which conditions should be imposed on a parent granted the primary care of a child. In that case there were cross-applications for a residence order by the mother and father of two children. The mother wished to remove the children from London to Blackpool. The mother's family lived there. The father sought similar orders to those in the present case. His side of the family lived, as he did, in the London area. The judge granted the mother a residence order subject to a condition that the children continued to reside at an address in London.
On appeal this Court followed an earlier decision in re D (Imposition of Conditions) [1996] 2 FLR 281 where a restriction on with whom the mother would live was set aside. I said at page 642C
"A general imposition of conditions on residence orders was clearly not contemplated by Parliament and where the parent is entirely suitable and the court intends to make a residence order in favour of that parent, a condition of residence is in my view an unwarranted imposition upon the right of the parent to choose where he/she will...
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