Re W (Children)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lloyd,Lord Justice Elias |
| Judgment Date | 30 March 2011 |
| Neutral Citation | [2011] EWCA Civ 345 |
| Docket Number | Case No: B4/2010/2586 |
| Court | Court of Appeal (Civil Division) |
| Date | 30 March 2011 |
[2011] EWCA Civ 345
Before: The President of the Family Division
Lord Justice Lloyd and
Lord Justice Elias
Case No: B4/2010/2586
TQ09P00572
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Exeter County Court
His Honour Judge Tyzack QC
Helen Matuk (instructed by Eastleys) for the Appellant
The Respondent appeared in person
Hearing date: 23 February 2011
Sir Nicholas Wall P
Introduction
This is a "relocation" case in which the judge hearing it (HH Judge Tyzack QC sitting in the Exeter County Court) has refused an application by the mother of a girl of 12 and a boy of 8 for permission to relocate to Australia with the two children. The judge's order is dated 18 October 2010. In addition to refusing the mother permission to relocate, the order adjourned the father's application for contact with the children, directed a further report from the CAFCASS officer in the case, and refused the mother permission to appeal.
As will be apparent from the foregoing, this is, in my judgment, a case in which reporting restrictions should be imposed, and this judgment is being written anonymously, I shall refer to the parents throughout as "the mother" and "the father" respectively; to the children as "the girl" and "the boy"; and to the "CAFCASS Officer". Whilst I appreciate that this reads somewhat artificially, it is done in the interests of anonymity, and nothing must be published which identifies the children or the case beyond the material disclosed in this judgment.
The mother was represented before us by Miss Helen Matuk of counsel. The father appeared in person. His submission to us was all the more powerful in coming from the heart, and I do not feel that he had been in any way disadvantaged on this appeal by the face that he acted in person.
On 13 December 2010, Thorpe LJ had directed an oral listing of the mother's application before the full court on notice to the father, with the appeal to follow if permission was granted. We invited Miss Matuk to open her application as if for a full appeal, and, speaking for myself, I am in no doubt that we should grant permission to appeal, whatever the outcome of the ensuing appeal. At the conclusion of the argument, we reserved judgment.
Like all "relocation" cases, this application is highly fact specific and very difficult. All three member of this court have enormous sympathy for the dilemma facing both the adults and the children in this case. Added to which, of course, the case goes to the very heart of the current debate about Payne v Payne [2001] Fam 475. The father's resistance to the mother's application is based very substantially if not exclusively, as it seems to me, on the potential damage likely to be caused to the children if their relatively newly acquired relationship with their father and the paternal side of their family is, at worst, destroyed and, at best, attenuated by enforced separation. On the other side, as it seems to me, the strongest argument open to the mother is that in his application of the principles set out in Payne v Payne the judge has so erred in is conduct of the "balancing exercise" that he is "plainly wrong".
Given the outcome in the court below, I propose to spend a little time examining the proper approach both to appeals of this nature and to relocation applications. It also occurs to me, however, that if we are to do justice to the case, we need to examine with care both the evidence heard and read by the judge and the way in which he went about his task. The result, I fear, will be a judgment longer than is strictly necessary to explain why I have reached the clear conclusion which I have.
We are plainly in the area of judicial discretion, and there is abundant authority for the proposition that this court does not lightly interfere with the exercise of discretion by a first instance judge. Indeed, I have recently issued Guidance in relation to case-management appeals ( [2011] Fam. Law 189) to the effect that this court – and appellate courts generally – should respect brave discretionary decisions made at first instance. In addition, the recent decision of the Supreme Court in Re B (A Child) [2009] UKSC 5, [2010] 1 FLR 551 is a timely reminder that the court must be on secure ground if it is to reverse the exercise of discretion by a court of first instance.
However, the decision of the House of Lords in G v G makes it clear that it is open to this court to interfere with the discretion of a first instance judge in a child case, and I propose to begin this judgment with an examination of G v G and the basis upon which the court can – in certain circumstances—overset the exercise of discretion by a trial judge in such a case.
Giving the leading speech in G v G, Lord Fraser of Tullybelton, cited extensively (and with approval) from the judgment of Sir John Arnold P in the same case in this court. I propose to do the same. Sir John Arnold, discussing the outcome of what were then custody cases between parents involving children, had said ( [1985] 1 WLR 647 at 650B-D):
"Those cases exhibit some degree of homogeneity, of course; but they also seem, at first sight, to exhibit a degree of semantic dichotomy. It is a discernible thread running through, I think, every one of those cases and the cases cited in them, that it is not decisive of an appeal in this court from the decision of the court below, exercising the particular discretionary jurisdiction of deciding the custody of children (but also, I think, any discretionary jurisdiction), that the result of the exercise of discretion would, or might, have been different if the members of the Court of Appeal had themselves been exercising the discretion. There has to be more than that before the discretionary decision can be overturned. The question, if there be one, is: How much more?"
Sir John Arnold had then stated his conclusion in the following passage (ibid at p 650D-G)::
"I believe that there is a way of reconciling these cases. I believe that if the court comes to the conclusion, when examining the decision at first instance, that there is so blatant an error in the conclusion that it could only have been reached if the judge below had erred in his method of decision – sometimes called the balancing exercise – then the court is at liberty to interfere; but that, if the observation of the appellate court extends no further than that the decision in terms of the result of the balancing exercise was one with which they might, or do, disagree as a matter of result, then that by itself is not enough, and that falls short of the conclusion, which is essential, that the judge has erred in his method. I cannot think of any case in which this particular issue had to be faced, in which that method of determination is not intellectually satisfactory, logically supportable or consistent with the result of any of the cases in the appellate courts; and I shall approach this case on the footing that what this court should seek to do is to answer the question whether the court discerns a wrongness in the result of so striking a character as to make it a legitimate conclusion that there must have been an error of method – apart, of course, from a disclosed inclusion of irrelevant or exclusion of relevant matters."
Lord Fraser expressed his own agreement with these passages in a part of his speech which includes references to the well-known statement as to the breadth of judicial discretion, and to the case of Re F (A Minor) (Wardship: Appeal) [1976] FAM 238. Once again, the citation is a long one, but, in my judgment, important (ibid) at pp 651F to 653G: —
"……. The reason for the limited role of the Court of Appeal in custody cases is not that appeals in such cases are subject to any special rules, but that there are often two or more possible decisions, any one of which might reasonably be thought to be the best, and any one of which therefore a judge may make without being held to be wrong. In such cases, therefore, the judge has a discretion and they are cases to which the observations of Asquith LJ, as he then was, in Bellenden (Formerly Satterthwaite) v Satterthwaite [1948] 1 All ER 343 apply. My attention was called to that case by my noble and learned friend Lord Bridge of Harwich, after the hearing in this appeal. That was an appeal against an order for maintenance payable to a divorced wife. Asquith LJ said, at p. 345:
It is, of course, not enough for the wife to establish that this court might, or would, have made a different order. We are here concerned with a judicial discretion, and it is of the essence of such a discretion that on the same evidence two different minds might reach widely different decisions without either being appealable. It is only where the decision exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong, that an appellate body is entitled to interfere.'"
I would only add that, in cases dealing with the custody of children, the desirability of putting an end to litigation, which applies to all classes of case, is particularly strong because the longer legal proceedings last, the more are the children, whose welfare is at stake, likely to be disturbed by the uncertainty.
Nevertheless, there will be some cases in which the Court of Appeal decides that the judge of first instance has come to the wrong conclusion. In such cases it is the duty of the Court of Appeal to substitute its own decision for that of the judge. The circumstances...
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