Re S (A Child) Reisdence order: Condition)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE THORPE,LORD JUSTICE CLARKE |
| Judgment Date | 11 May 2001 |
| Neutral Citation | [2001] EWCA Civ 847 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | B1/00/3505 |
| Date | 11 May 2001 |
[2001] EWCA Civ 847
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CROYDON COUNTY COURT
(HIS HONOUR JUDGE ELLIS)
Royal Courts of Justice
Strand
London WC2A 2LL
Lord Justice Thorpe
Lord Justice Clarke
B1/00/3505
In the Matter of
MS E A GUMBEL QC (Instructed by Messrs Grants, Croydon, CR0 4RE) appeared on behalf of the Appellant
MR P JACKSON QC and MR D VAVRECKA (Instructed by Messrs White and Sherwin, Croydon, CRO 6BA) appeared on behalf of the Respondent
This is an appeal from the decision of Judge Ellis sitting in the Croydon County Court on 24 October 2000. He had before him an application by the father. V was born on 18 March 1993 and was the only child of her parents' marriage. The marriage had taken place in 1991 but did not endure beyond the summer of 1994. Since that separation, and indeed throughout her life, V has been cared for by her mother. That is a particular responsibility since V suffers from Downs Syndrome. She was born with a congenital heart and lung defect and, accordingly, has a much shortened life expectancy. The medical evidence established that she will be fortunate to live beyond her teenage years.
Following the separation of the parties, in the spring of 1999 the mother entered into a relationship with Mr C. Mr C was, and probably still is, working and living in central London, but he is a Cornishman from St Austell. His attraction to London was simply the opportunity of earning more than he could in his home county; an opportunity that would enable him to do up a bungalow that he had bought in his home area. This project should come to fruition in about 18 months from now.
When the father got wind of the plan for mother to relocate with Mr C and V to the St Austell area, on 23 December 1999 he issued an application in these terms:
"I want my contact with [V] to be regularised and in particular I want reasonable holiday contact. I believe [the mother] is proposing to move to Cornwall. That would greatly reduce my contact and would not, in my view be in [V]'s interest. I am asking for a prohibited steps order preventing [V's] removal from the Croydon area, and if [the mother] does not wish to stay in Croydon, a residence order so that [V] can stay here with me."
The issue before the judge was narrowed in the sense that, as is recorded at page 3, of the judgment:
"The father does not seek to pursue an application for a residence order, nor for the time being does he need to pursue his application for a prohibited steps order."
However, the judge sensibly decided that, since the parties were before the court, since he had heard evidence over the course of a day or two, since it would be of advantage to both sides to know where they stood, he would make an order which was not sought by the mother, namely a residence order and would then consider whether or not he would attach to that residence order a condition requiring her continuing location within the Croydon area.
He heard expert evidence from Dr Bichard, who is an undoubted authority in a very special area. Dr Bichard is a qualified educational psychologist who has concentrated on the educational needs of children with specific learning disorders. She was an expert of 27 years' experience, recently retired as head of the learning disability service at the Tavistock. Dr Bichard established that V had very special educational needs and that she had limitations on her resilience. She said that there would be a detrimental effect on Victoria if contact were to be reduced; the solution of infrequent periods of contact of longer duration was not appropriate since long gaps between visits would engender anxiety in V'. She also pointed to other unsettling effects, such as losing contact with the extended paternal family and having to move school. Dr Bichard characterised V as a fairly concrete thinker and she would accordingly find it difficult to adjust to new school, new friends and a new house.
The judge then correctly directed himself to the decision of this court in the case of Re E (Residence: Imposition of Conditions) [1997] 2 FLR 638. He held that the mother's contact proposals were in effect impractical, since they would have involved a great deal of weekend travel by road between the Croydon area and the St Austell area at weekends when traffic is at its heaviest. He came to the conclusion that the effect of the decision of this court in Re E was to vest in him a discretion, providing he was satisfied that the case was exceptional. He concluded that, on the facts, the case was exceptional and accordingly he was empowered to impose a condition which was expressed thus:
"that the child continue to reside within the Borough of Croydon unless otherwise ordered"
alternatively:
". should not be removed from that area without leave of the court."
The judge himself gave permission for an appeal to this court and I gave directions for the management of the appeal on 29 January 2001. With the advantage of hindsight, I rather regret having invited the appellant to consider whether her skeleton should be expanded to invoke the possible infringement of the mother's rights under the European Convention on Human Rights. I say that I regret that with the advantage of hindsight, because it has led to a considerable elevation of preparation: Leaders have been brought in on both sides, new skeletons have been filed on both sides and each has presented impeccable argument in the area of the well-known cases decided in the jurisprudence of the European Court. In all those cases, involving possible infringement of the right to family life, examination of those authorities only emphasises that each member of the family has independent rights which are often in conflict, and in those circumstances the proper approach is to give prominence to the right of the child.
It seems to me that the short point raised by this appeal can be safely decided within the domestic arena and without further reference to European authority.
Miss Gumbel QC, who has presented the case for the mother concisely, essentially relies on Re E and the line of authorities from which it grew to the effect that the statutory right to impose conditions upon a residence order does not extend to invading adult freedoms. The statutory provisions that are relevant for the disposal of this appeal are section 11(7) which is in these terms:
"A section 8 order may-
.
(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."
The only other statutory provision which is relevant to the particular condition the judge sought to impose is section 13, which provides in subsection (1):
"Where a residence order is in force with respect to a child, no person may-
(b) remove him from the United Kingdom;
without the written consent of every person who has parental responsibility for the child or the leave of the court."
Miss Gumbel complains that, in resisting an application which was essentially not pursued, the mother found herself with an order that she did not seek and did not need, imposed by the judge simply so that he could attach to it a restrictive condition. She says that the decision of this court in Re E demonstrates that, where the location of a child's residence is in dispute, the essential function for the judge is to weigh up the respective proposals in relation to location and arrive at a decision in the round as to which parent's proposal would further advance the child's welfare. If having decided, despite the disadvantages of the location element, in favour of one parent against the other offering a more favourable location, that really is the end of the matter and it is not open to the court to strive for some sort of ultimate ideal which invades the freedom of the primary carer to determine what is best for the family.
Miss Gumbel particularly submits that in so far as the President contemplated the possibility of there ever being a condition as to location, that contemplation was restricted to cases where the court had direct concerns about the ability of the primary carer to achieve satisfactory standards.
Mr Jackson QC, who has equally presented his argument with succinct persuasion, says that it is manifest that the court in Re E recognised the need for the imposition of a condition as to location in exceptional cases. On the facts this was an exceptional case. He stresses V's vulnerability, her special needs and her disability. He inevitably submits that it would not be open to this court to interfere with a careful judicial appraisal and the exercise of a humane discretion.
In ruling on these submissions, it is, in my opinion, important to notice that the effect of the statute is to impose express restriction where the primary carer seeks to remove the child, not from the jurisdiction as was sometimes the case prior to the arrival of the Children Act 1989 (particularly in the wardship jurisdiction), but from the United Kingdom. There is, therefore, in my opinion, an implicit consequence that within the United Kingdom the court will not ordinarily seek to dictate the primary carer's place of residence.
The jurisprudence in those cases that are now caught by section 13(1)(b) had been established over the course of more than 30 years by decisions of this court which recognise the great...
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