Shulamit Mitchell v Elman Ali Mitchell
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE NOLAN,MR JUSTICE HOLLIS |
| Judgment Date | 27 July 1992 |
| Judgment citation (vLex) | [1992] EWCA Civ J0727-2 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 92/0741 |
| Date | 27 July 1992 |
[1992] EWCA Civ J0727-2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EDMONTON COUNTY COURT
(HIS HONOUR JUDGE MEDAWAR, Q.C.)
Royal Courts of Justice
Lord Justice Nolan
and
Mr Justice Hollis
92/0741
MR JOHN DOWNING, instructed by Messrs Makanda Bart & Co., appeared for the Appellant (Respondent).
MR GARY CRAWLEY, instructed by Messrs Jane Coker & Co., appeared for the Respondent (Petitioner).
I shall ask Mr Justice Hollis to give the first judgment.
This is a father's appeal from an order made on 18th June of this year by His Honour Judge Medawar, Q.C., sitting at the Edmonton County Court whereby he granted the mother leave to remove the parties' two children permanently from the jurisdiction to Israel.
We are most indebted to Mr Downing for presenting the case on behalf of the appellant, because it appears that at the very last moment the appellant has been denied a legal aid certificate. It passes my comprehension why that should be so, because, to put it at its lowest, I would have thought that the appellant must be seen to have an arguable case to this court. Nevertheless, as I say, Mr Downing, not really knowing what his position may be, has represented his client before us.
The brief facts are these. The mother comes from Israel where she was born. She came to this country in 1978 or 1979, as did the father, he hailing from Trinidad. The mother is now some 34 or 35 years old and the father 47. The parties started living together in 1980 and they had two children, first Elman, born on 5th October 1980 and so he is now approximately 11 and three-quarters, and Norma, born on 15th September 1981 and so she is approximately ten years and ten months. Those ages have significance in this case. The father having been previously married, that marriage was dissolved and so these parties married in 1983, but unhappily they separated in 1986. There was some sort of reconciliation soon afterwards in 1987, but in due course divorce proceedings were commenced (I think probably by the mother although we were not told specifically), and that marriage has now been dissolved. However, from 1987 up until the end of 1990 the parties were still living under the same roof although not as man and wife. The importance of that is that the father had of course continuing close contact with the children, although no doubt the brunt of their care fell upon the mother, as is only natural, although in due course both children were to tell the welfare officer that both parties shared their care.
Since at any rate the end of 1990 and probably for some time before that the mother has dealt with the finances and has financially kept the children without help from the father because he has been out of work. He, the father, has some cultural attainments apparently because he helps out as a teacher from time to time. Apparently quite recently the mother, who is well qualified both in business administration and as a secretary, has been made redundant, but apparently she knew that she was going to be made redundant for some considerable time. I think she was made redundant probably about the end of May of this year.
During 1991 she launched her present application. The judge had the opportunity of reading affidavit evidence by both parties and of hearing their oral evidence. Of course we have not heard oral evidence in this court. He also had the benefit of two welfare officer's reports. The first of those was dated 21st February 1992. Mrs Cairns, the welfare officer, sets out the background to the case and points out, as was a fact, that in the divorce proceedings the parties were granted a joint custody order, no doubt by consent, but with care and control to remain with the mother and reasonable access, as it was then called, to the father. At page 23 of the bundle before this court, dealing with the question of access over Christmas and the New Year, she said:
"There were some problems over the arrangements for this, but when I saw the children in January they were quite clear that they had enjoyed staying with him [that is the father] and that they would like an increase on the current access arrangements, which are two evenings a week after school."
As far as the mother is concerned, she said:
"She still wants to move to Israel with the children, despite their wish to remain here and have regular contact with Mr. Mitchell."
On page 29, under the heading "The Children Concerned", the welfare officer says:
"On both occasions when we saw the children they were quite clear that they wanted to stay in England and to have good contact with their father.…
Elman told me he could not understand why his mother wanted to move them to Israel. He did not want to move. He liked his school here and would like to see his father more—if possible every day. Norma agreed with this and said she would also like to be able to stay with him. They told me that on the last two Summers, when they had visited their relatives in Jerusalem, their mother had sent them on alone and gone on a training course in York, or on holiday in America, joining them later. Last Summer they had stayed with their grandparents, who they had found very over-protective. They had not been allowed to go out and play and, while their grandparents were nice to them, they had found it very boring staying with them. They did not like being in a strange country, where they did not speak the language and had no friends. They both particularly made the point that they did not like their Uncle Danny, with whom their mother planned to live. They had only met his children once and had not made friends with them last Summer."
Pausing there, we are told by Mr Crawley, on behalf of the mother, that they are fluent in Hebrew, but that does not seem to be in accordance with what the welfare officer has reported the children were telling her. She goes on:
"Neither of the children wanted to change schools and both said they would very much miss their father if they went to Israel to live."
So far as changing schools is concerned, the boy has to change school in any event in September to move up, as it were, from his present school, but if he does so in this country apparently he will go with some, at any rate, of his friends at his present school. Of course it would be quite different if it were in Israel. She continues at the bottom of page 30:
"Both children wanted staying access to continue and they told me they hated their Hebrew classes and saw no benefit in the extra English coaching their mother has arranged for them on Saturday afternoons. They would much prefer to go to their father every weekend, after swimming on Saturday morning, through till Sunday evening. They would also like to see him during the week and spend part of each school holiday with him. Norma told me that he was fun to be with because he had time for them and did things with them.
Elman could see no good points in their going to Israel.…
Norma was also clearer than ever that she wanted to stay in England and to see both parents, though she was also clear that she loved her mum and wanted to go on living with her.
When I rang the children's school, Mrs. Firby...
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