Re S (A Child) (Residence Order: Condition) (No 2)
| Jurisdiction | England & Wales |
| Judgment Date | 2002 |
| Year | 2002 |
| Date | 2002 |
| Court | Court of Appeal (Civil Division) |
Child – Residence order – Condition – Welfare – Residence granted to mother with condition preventing her from moving to a different area – Judge treating case as exceptional – Whether condition imposed on primary carer valid – Whether judge in error – Children Act 1989, ss 1, 11(7).
The parents married in 1991 and their child was born in 1993. The child suffered from Down’s Syndrome, with a serious heart condition and respiratory problems. Her parents separated in 1994 when she was 18 months old. The mother remarried and had a second child in 1996. She later separated from her second husband, and met a new partner, C, with whom she wished to move to Cornwall, where C had family ties. The father had also remarried. The child and her brother had always lived with the mother in South London and the child had regular and frequent contact with the father and a close relationship with him. The father, in order to forestall the move of the mother to Cornwall, applied under s 8 of the Children Act 1989 for a residence order, a prohibited steps order and a contact order. There was no dispute that the child should continue to live with the mother. The judge made a residence order in favour of the mother with a condition that she should not move to Cornwall without leave of the court. The mother successfully appealed to the Court of Appeal (see Re S (a child) (residence order: condition) [2001] 3 FCR 154) on the ground that the evidence before the judge had concentrated on the emotional impact of a move on the child, and had not given any indication of the impact on the family, and in particular the mother. The case was remitted to the county court, but despite evidence of the impact on the mother of a refusal to allow her to move to Cornwall, the judge attached the same condition as before to the residence order, stating that V’s special characteristics combined with the significant risk of her suffering serious emotional harm, which could be avoided by the imposition of the condition, made this a highly exceptional case. The mother appealed.
Held – A suitable parent entrusted with the primary care of a child by way of a residence order should be able to chose where he or she would live and with whom. It would be unusual for the court to interfere with that general right of the primary carer. However, there would be truly exceptional circumstances in which conditions would have to be imposed, in order to protect the best interests of the child. Section 11(7) of the Children Act 1989
provided a safety net which allowed for the exercise of discretion under the provisions of s 1, where the paramountcy of the welfare of the child exceptionally required the court to impose restrictions upon the primary carer which would otherwise be unacceptable. The judge had been entitled to treat the instant case as exceptional. He had carried out a difficult task carefully and had considered the relevant principles with regard to the parents’ Convention rights. His conclusion could not be faulted. It was not for the Court of Appeal to substitute its own view of the outcome where the judge had heard all the relevant witnesses and had the advantage of getting the feel of case, unless the judge had failed to direct himself correctly or had otherwise reached an obviously wrong conclusion. In the instant case there was no obvious correct decision. Therefore, the exercise of discretion by the judge should not be set aside. Accordingly, the appeal would be dismissed.
Cases referred to in judgmentsD (minors) (residence: conditions), Re[1996] 2 FCR 820, [1996] 2 FLR 281, CA.
E (minors) (residence: conditions), Re[1997] 3 FCR 245, [1997] 2 FLR 638, CA.
G v G [1985] 2 All ER 225, [1985] 1 WLR 647; sub nom G v G (minors: custody appeal) [1985] FLR 894, HL.
Payne v Payne[2001] EWCA Civ 166, [2001] 1 FCR 425, [2001] Fam 473, [2001] 2 WLR 1826, [2001] 1 FLR 1052.
S (a child) (residence order: condition), Re[2001] EWCA Civ 847, [2001] 3 FCR 154.
AppealThe mother appealed, with permission granted by Thorpe LJ, from the decision of Judge Ellis, dated 28 June 2002, whereby he attached a condition to a residence order which prevented the mother from moving to Cornwall. The facts are set out in the judgment of Dame Elizabeth Butler-Sloss P.
Mark Twomey for the applicant.
David Vavrecka for the respondent.
Cur adv vult
4 December 2002. The following judgments were delivered.
DAME ELIZABETH BUTLER-SLOSS P.[1] This appeal arises in unusual and difficult circumstances. It is the second time the mother of a child called V has appealed to the Court of Appeal. The present appeal is from the second order of Judge Ellis made on 28 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 V to live in Cornwall. We reserved our reasons for that decision.
The history[2] V was born on 18 March 1993 and is nine and a half. She suffers from Down’s 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.
[3] The parents married on 17 August 1991 and separated when V was 18 months old in August 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 V 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 V is loved and cherished by both parents.
[4] Both parents and V live in South London. After the divorce the mother thought she might settle in New Zealand and then that she might settle in Australia and take V with her. In October 1995 she married her second husband. A son was born to that marriage, J, in August 1996. J is five and a half and he is very close to his sister V. In December 1996 V 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 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 V and J have to share. Both the size of the house and the problem of stairs make it unsuitable for the future care of V.
[5] 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[6] 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 s 8 orders under the Children Act 1989, a residence order, a prohibited
steps order and a contact order. On 24 October 2000 Judge Ellis gave his first judgment in this case. One expert witness was called, Dr B who is a chartered educational psychologist. There was, and is, no dispute that V 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, 18 months 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 V 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[7] The mother appealed to the Court of Appeal with permission of the judge on 11 May 2002. The Court of Appeal remitted the case to the county court for a rehearing. 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 V of a move. It did not give any indication of the impact on the family and in...
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