B1/01/0799

Neutral Citation Number: [2001] EWCA Civ 1338
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE GLOUCESTER COUNTY COURT
(Mr Recorder Greenwood)
                                    Royal Courts of Justice
                                    Strand
                                    London WC2
 
                               Monday, 30th July 2001
B e f o r e :

LORD JUSTICE THORPE

MR. JUSTICE ASTILL

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H (CHILDREN)

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MISS A. PAUFFLEY Q.C. and MISS C. DUTHIE (instructed by Messrs Davies & Partners) appeared on behalf of the Appellant.

MISS M de HAAS Q.C. and MISS T. CRONIN (instructed by Messrs Langley Wellingtons) appeared on behalf of the Respondent

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J U D G M E N T
1.	LORD JUSTICE THORPE: JH was born and brought up in Northern Ireland. He left at the age of about 16 and seemingly severed family ties for some years, although resuming them after his marriage to D in 1988. In the years after his removal he has lived principally in the Gloucester area. DH was born and brought up in this country, although her parents originated from Northern Ireland, with the consequence that she has still uncles, aunts and cousins in the Belfast area. There are two children of the marriage, SJ, who was born in July 1991 and who is 10, and R, born in February 1996, now aged 5.
2.	The separation occurred in December 1997 when S would have been about 6 and R not quite 2. Unusually, at the point of separation it was the mother who left the family home and the children to make an independent life for herself. Having briefly stayed with her parents she then found a two bedroomed flat of her own. The father gave up his work in order to become a full time carer for the children. He has been dependent on state benefits since. By contrast, the mother has worked throughout. She is an administrator in a firm, either designing or manufacturing aircraft parts. She earns a salary reflected in CSA assessments to pay £300 a month to the father for the maintenance of the two children. Sadly, the mother has become psychologically dependent on alcohol, a dependency which has been treated for some time now by a local consultant psychiatrist, Dr. Fear.
3.	The parties divorced in July 1998, and in April 1999 the father announced his intention of returning to Northern Ireland with the two children. That prompted a court application by the mother, issued in June 1999, for, firstly, a residence order; secondly, a prohibited steps order to stop the threatened move and, thirdly, for a contact order. The father's cross application of October 1999 was, first, for a residence order and, second, for a specific issue order enabling him to remove himself and the children to Northern Ireland.
4.	Those applications came for hearing before His Honour Judge Hutton on 23rd and 24th March 2000. We do not have a transcript of his judgment, but counsel who appeared at that hearing have agreed a note. Within that note I cite the following excerpts: First:
“Subject to the mother being cured of her alcoholism, I find the mother entirely suitable to care for the children. She appears more sympathetic of the children's needs and would be the preferable carer. . . .
Second:
I am not convinced by the father's supposed desire to move to Northern Ireland where members of his family live. I suspect that his supposed desire to do so has rather more to do with thwarting the mother's application for residence or out of spite. From the age of 16 or 17, when he joined the Army, he has been very little in Northern Ireland and indicated no wish to return there. He has visited no more than once a year on average, at most. He has no accommodation fixed up and no employment. He hopes he would be able to get both. I have no doubt that he would be able to sort out suitable accommodation and employment.” 
5.	The third citation:
“I reject, at least for now, the mother's application for a residence order. I grant interim residence to the father. I have decided, on the submissions of mother's counsel, to make an interim order because it might be preferable for the children to be living with their mother. I reject the father's application to remove the children from the jurisdiction.” 
6.	The order drawn to reflect that judgment provided for a detailed contact order, including two weekends out of three, staying contact from Saturday morning to Sunday evening, with a return in December 2000, and for a relisting of the mother's application for residence in nine months with a time estimate of one day. In the interim, the court ordered the submission of tests to substantiate whether the mother could achieve abstinence from alcohol in the interim.
7.	The next hearing was not listed in front of Judge Hutton as, in my opinion, it should have been. It is important in these cases that there should be continuity of judicial decision‑making. The case came on in front of Mr. Recorder Greenwood, of whom I make no criticism at all. He dealt with the case thoroughly and conscientiously in place of the previous judge. The evidence before him established plainly that the mother had not achieved the abstinence that the first judgment gave opportunity for. As well as expert evidence from Dr. Fear in that quarter, the judge had a further appraisal from the court welfare officer who had reported to Judge Hutton. The order that the Recorder made was to enlarge the father's interim to a full residence order and to dismiss the mother's cross application. He then went on to make an order prohibiting the father from removing the children to Northern Ireland, save for periods of more than 14 days for the purposes of holidays. In paragraph 4 he more or less continued the contact regime provided for by Judge Hutton, and he set up a further hearing in December 2001, in preparation for which he sought an additional welfare officer's report and a further report for Dr. Fear. The judge's reason for setting up another full hearing was his hope that the mother might during this year achieve the abstinence which she failed to achieve in the year 2000, so that it would be possible to enlarge the regime of contact to include staying contact in the holiday and unsupervised staying contact. I have been told by Miss de Haas that a date has been identified in December, and that neither Judge Hutton nor Mr. Recorder Greenwood will be on the bench that day. It is said that Judge Hutton does very little family work now and that the Recorder will be retired by December. It seems to me most important that there should be a real effort made in the county court to see that the listing in December is before Judge Hutton to avoid yet a third judge having to come into this quite difficult case.
8.	At the conclusion of his order the Recorder gave the father permission to appeal the third paragraph prohibiting the removal to Northern Ireland. That appeal has been skilfully argued today by Miss Pauffley QC. She says in essence that the father's application in the court below for a specific issue order was misconceived. She points to the statutory language, in particular the terms of section 13(1) of the Children Act, which provides:
“13(1) Where a residence order is in force with respect to a child, no person may ‑
(b) remove him from the United Kingdom;
without either the written consent of every person who has parental responsibility for the child or the leave of the court.” 
9.	So, says Miss Pauffley, since her client sought only a relocation within the United Kingdom, inferentially the decision was for him, as the parent with the residence order, and he was under no obligation to seek the court's leave. She accepts that there are circumstances in which the court has jurisdiction to impose conditions upon a residence order under section 11(7) of the Children Act 1989. Section 11(7) provides:
“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.” 
10.	However, says Miss Pauffley, the decision of this court in Re E (Residence: Imposition of Conditions) [1997] 2 FLR 638, demonstrates that such a condition is only to be imposed in truly exceptional circumstances which are not to be found in the present case.
11.	Next, she says that her client is entitled to the protection of Article 8 of the European Human Rights Convention. He has the right to choose the place of his family home. She says that the judge was wrong to impose a prohibition in this case since the evidence did not support his conclusions.
12.	The contrary submissions from Miss de Haas are to this effect. First, she says that section 13(1)(b) means that the court's leave must be sought on a removal from the jurisdiction rather than a removal from the United Kingdom. She accepts that section 5 of the Interpretation Act 1978, taken in conjunction with Schedule 1, has the effect that the United Kingdom means Great Britain and Northern Ireland. However, she seeks to establish a contrary implication or intention from a number of features of the Children Act 1989. She draws attention to the side note to section 13, which is thus expressed:
“Change of child's name or removal from jurisdiction.”
13.	She also refers to section 108(12) which applies particular provisions of the Act to Northern Ireland but not the provisions of section 13. She relies upon the power contained within section 101 to make delegated legislation and points to the exercise of that power in the Children (Prescribed Orders – Northern Ireland, Guernsey and Isle of Man) Regulations 1991, SI 1991/2032.
14.	Secondly, Miss de Haas says that the test applicable to an application to relocate outside the jurisdiction has been radically altered by the decision of Munby J in the case of Re X and L (Leave to remove from the jurisdiction: no order principle) [2001] 2 FCR 398.
15.	Thirdly, she submits that this case was exceptional by any standard and that the judge's conclusions were well founded on the evidence of the court welfare officer and Dr. Fear.
16.	I will deal first with the rival submissions as to the law. The answer to these seeming uncertainties suggested by the skeleton arguments lies in two recent decisions of this court, namely Payne v Payne, widely reported, including [2001] EWCA 166, and Re S, decided on 11th May 2001 and not, I think, as yet reported. From Payne v Payne I draw the following propositions: (a) an indication that section 13(1)(b) means what it says (see paragraph 36); (b) the test to be applied in cases of relocation (see paragraphs 40, 41, 83 and 84); (c) the European Human Rights Convention has not affected the test to be applied in determining relocation cases, a test developed through decisions of this court over the course of the last 30 years (for that see paragraphs 35 and 82).
17.	The decision in Re S demonstrates the following propositions: (a) again, the proposition that section 13(1)(b) must be given its plain meaning (for that see paragraph 15 of the judgment); (b) there is an obvious need for consistency of principle in the determination of relocation cases both within and without the United Kingdom (see paragraphs 17 and 18); (c) the test in determining cases where the application is for internal relocation is less stringent than where the application is for external relocation (see paragraph 18), and (d) the severe limit on the court's power to impose a condition under section 11(7) in order to prevent internal relocation is explained in paragraph 24.
18.	However, it is necessary to say more in order to do justice to Miss de Haas's full argument as to the construction of section 13(1)(b) and in order to remove uncertainties that have sprung up in the light of the recent report of the judgment of Munby J in the case of X and Y. Miss de Haas says that by implication section 13(1)(b) requires application if the primary carer seeks to move from the jurisdiction. The sidenote upon which she refers in my judgment can be of no weight set beside the clear words of the section. Pedantically the side note should have jurisdiction in the plural, but I can understand why the draftsman, providing a new statutory code for England and Wales alone, adopted the singular. The later references to Northern Ireland and the exercise of the delegated power to make regulations are all within the sphere of implementation or execution. The later references to Northern Ireland and the exercise of the delegated power to make regulations are all within the sphere of either implementation or execution in Northern Ireland of orders made in England and Wales. I am satisfied that Miss de Haas's valiant attempt is readily dismissed as unfounded.
19.	Does it matter? In practice, probably not much. The relocation within the United Kingdom may be highly problematic, as this case illustrates. The primary carer will invariably give notice, directly or indirectly, of an intended move. The court has power under section 8 to make a prohibited steps order or to impose a condition under section 11(7) to the residence order. Whilst the primary carer may not have an obligation to apply under section 13(1)(b), he will still have to defeat the challenge of an application for a prohibited steps order or for the imposition of a condition to the residence order. Perhaps the only certain constant is that, where there is a dispute between the parents, incapable of resolution by negotiations or mediation, it must be decided by the court. In making its decision the court must always apply the welfare test as paramount, whether the relocation is internal or external. The test, in the case of external relocation, is clearly laid down in Payne v Payne. As to the decision of Munby J in X and Y, it is important to notice the timing. He gave judgment on 18th December 2000, three days before this court heard argument in Payne v Payne. The constitution in Payne v Payne was designed to reflect the submission of counsel at the directions stage, to the effect that the profession required an authoritative reconsideration of the principles in earlier authority in the light of the advent of the Human Rights Act 1998. Clearly Munby J was not informed of the task this court was about to undertake. Equally, had counsel instructed in Payne v Payne been aware of his prolonged and erudite research, his judgment would have been cited to us. Equally, had we known of it belatedly, we would have valued the opportunity to consider his approach. However, now that it has been cited, and within the month of its appearance in Butterworths Family Court Reports, it must be quickly considered, for, as it stands, thanks to its unfortunate timing, it throws doubts about the validity of the decision that this court subsequently reached in Payne v Payne. Munby J's foundation for departing from previous authority and propounding a new test, as he did in paragraph 11 at page 430 in the report, were dicta in the House of Lords in the Scottish case of S v M (Access Order) 1 FLR 980, and the case of Dawson v Wearmouth [1999] AC 308. But I do not consider that these dicta will bear the weight of the edifice that Munby J sought to build on them. In relocation cases there is an acute dissension between parents, which is usually expressed, as here, in cross applications. The mother may apply for leave and the father counter with an application for a residence order. Alternatively, as here, the father may seek a specific issue order and the mother a prohibited steps order. No order is simply not an option. The court has to impose one order or the other in the application of the paramount principle of welfare. Accordingly, in my judgment the decision in X and Y should not be followed. Trial judges should direct themselves by reference only to the decision of this court in Payne v Payne.
20.	What then is the rationalisation for freer movement of the primary carer within the United Kingdom? It seems to me to be obvious. Within the same sovereignty there will be the same system of laws, with the same rights of the citizen, rights for instance to education, health care and statutory benefits. Equally, it can be said that within Europe, whilst perhaps the burden on the applicant may be greater, it is equally mitigated by the fact that within the Community there is the same fundamental approach to social issues and a real endeavour to achieve harmonisation, obviously in social policy but also in family justice. If, moving to the third alternative, the application is for relocation outside the European region, the necessary adjustment may be rationalized on the basis that the social and other circumstances involved in relocation may require much greater adjustment for the children; alternatively, that the obstacles to contact may be enhanced. However, attempts to rationalize gradation of the hurdles that the applicant must clear are always liable to be tested by specific example, as this case suggests. What is the rationalisation for a different test to be applied to an application to relocate to Belfast, as opposed to, say, an application to relocate from Gloucester to Dublin? All that the court can do is to remember that in each and every case the decision must rest on the paramount principle of child welfare.
21.	Before turning to the judge's findings and to the facts, I note only one point that has been raised in argument in the court below but which has not been pursued in this court, and that is that here the application is the application of a father primary carer. In Payne v Payne I made the point that generalisation in this field is securer, partly because in every reported case, or perhaps almost every reported case, the applicant primary carer was always the mother. An instance of an application by a male primary carer comes but months after the publication of that decision. In the court below it was said that there is some discriminatory practice at work here for, if the mother had been the stay at home carer and the father were the worker with a struggle against alcoholism, the court would be much swifter to allow the mother's relocation.
22.	It seems to me that this argument was wisely not revived in this court, since it must be fundamental to say that there can be no such discrimination between the male and the female primary carer. The male primary carer has precisely the same grounds for seeking the court's leave, and here the judge did refer specifically to the evidence led below, of the hardship to the father in refusing him leave, particularly perhaps in prejudicing his chances of finding the part time work in the Belfast area that has eluded him in the Gloucester area.
23.	I turn to the judgment in the court below. The primary findings upon which the conclusion is based are not hard to identify in what is a relatively short judgment. The judge referred to the conclusion of Judge Hutton, that the mother would, all things being equal, be the preferred carer, not only because of her warmth and the closeness of the children to her emotionally, but also because of the father's personality which, despite all his many achievements in providing for his children, was less sympathetic and perhaps more authoritarian. The children complained quite constantly of their fear and dislike of being shouted at by him.
24.	The next crucial issue found by the judge is an extension of the impression formed by Judge Hutton. The mother's warm nature allowed the children's emotional connection and dependence on her. By contrast the judge noted the father as strong, determined and possibly obstinate in character.
25.	I then move to what is a very crucial finding. That is the welfare officer's assessment that, were the children removed to Northern Ireland, their sense of loss of their mother as a close and regular contact would be akin to a bereavement. That emerged in the course of her oral evidence. I would say, by way of comment, that it would be hard to think of a stronger way of expressing the consequential loss to the children.
26.	Next, I come to an equally fundamental finding, namely a finding drawn from the evidence of Dr. Fear, that, if the father's application were granted, the effect upon the mother would be devastating. The judge noted that to devastate the mother would be to indirectly devastate the children. He might also have noted that to devastate the mother would inevitably jeopardize her capacity to do a demanding job and to produce for the family the financial benefits that are expressed in the C.S.A. Assessment.
27.	Finally, the judge refers to the bleak comparison of a contact regime were the application granted to the contact regime that was on foot and potentially capable of expansion in this jurisdiction. He said in relation to that:
“Although I have no doubt that opportunities would arise for her to see them by going to Northern Ireland for short periods of time and staying in the area, at some considerable expense, and even for them to return to England to stay with her as well, the logistics of this, bearing in mind her present problems and father's attitude towards them, and his general hostility to that regime once he departs, makes it in my view almost impossible to imagine the children having a meaningful contact with their mother, once he has departed. That, in my view, would be a devastating blow to the children at this particular time and in the foreseeable future.” 
28.	Miss Pauffley has attacked these findings and particularly the last. Accordingly, we invited her to review, first, the evidence of the court welfare officer, both in writing and orally, and, secondly, the evidence of Dr. Fear, both in writing and orally, to see whether the judge's conclusions were soundly based on clear evidence. The passages that she was to cite as being the highest point of the expert evidence for her client proved in part to be passages relied on by Miss de Haas in seeking to demonstrate that the judicial conclusions were indeed properly founded on evidence. In this exercise there can be no doubt at all that Miss de Haas had by far the easier task. There is no doubt at all that the court welfare officer, during her oral evidence, did expressly liken the children's potential sense of loss to a bereavement. There is no doubt at all that Dr. Fear described the effect on the mother of the children's removal as being devastating and potentially capable of, not only defeating her search for abstinence but plunging her into an accelerated alcoholic decline. As Miss de Haas also pointed out within the evidence, particularly the live evidence of the welfare officer, there are the clearest passages as to the extent of loss in the essential quality of contact, and indeed as to her misgivings at the whole plan of moving to Northern Ireland.
29.	I do not intend to lengthen this judgment with more than one citation. I take this from page 26 of the transcript: To the welfare officer:
(Q) “So what is your recommendation?
(A) In terms of the children, they need to be able to maintain a relationship with their mother for their emotional development. It is going to be very difficult for them if that doesn't happen, I think. This is why, you know, my concern is about them being in Gloucester. My recommendation was, you know, major change could be a problem.
(Q) Yes, obviously change? (A) I mean it is difficult for me because I don't know at the minute whether the court, I mean although it is about residence the court is looking at residence for me in terms of children's needs. It is also about removal from the jurisdiction because what I said is, you know, they are safe with dad, they are safe with dad, but they need the emotional warmth of their mum to get the best of both but that isn't going to happen if they are removed from the jurisdiction. It can't happen geographically.” 
30.	 In the end, I am in no doubt at all that Miss Pauffley's attack upon the judge's conclusions fails totally. I am in no doubt at all that in what was a very difficult case the judge reached a discretionary conclusion that was solidly founded on evidence, particularly from the court welfare officer, and from Dr. Fear. There is no basis, in my judgment, for this court interfering. It is no doubt rightly classified as a highly exceptional case. It is inevitably not to be taken as any sort of precedent for any other sort of case where there will be a different factual matrix. But whilst I welcome the opportunity that the case presents to clarify some uncertainties in this area of the law, I am in no doubt at all that, on the facts and on a review of an exercise of discretion, there is little to be said for this court's interference. Miss Pauffley has put the case as clearly and as persuasively as it could be put, but she has not persuaded me that, on the facts and on the merits, there is any error for correction. I would dismiss the appeal, with the hope that the parents can see how much the children need both of them at this stage of their lives and how important it is that proximity of homes enables those contributions to be delivered to the full. There may be many changes ahead and the regime that was provided in the year 2000 may call for all sorts of variations before these children can achieve their majority, but for this year, 2001, I hope that the parents will come to accept that what the judge prescribed is what is best for these two children. For all those reasons I would dismiss this appeal.
31.	MR. JUSTICE ASTILL: I agree, and I hope that my lack of experience in this area of law, certainly compared with the considerable experience of my Lord, will allow me to comment on it.
32.	Miss de Haas QC submitted that there is no decision of any court which allows for Northern Ireland to be included within the terms of section 13 of the Children Act 1989 and that there is uncertainty as a consequence. Section 13(1) states:
“Where a residence order is in force with respect to a child, no person may ‑
(b) remove him from the United Kingdom;
without either the written consent of every person who has parental responsibility for the child or the leave of the court.” 
33.	Miss de Haas submits that, because section 13 does not make clear whether Northern Ireland is included, it is necessary to look elsewhere in the Act to see if it is possible to gain assistance for its proper interpretation and construction. She referred this court, first, to section 92 which deals with “Jurisdiction and procedure etc”, amongst other matters. Section 92(7) states:
“For the purposes of this Act 'the court' means the High Court, a county court or magistrates' court.” 
34.	Subsection (8) states:
“Subsection (7) is subject to the provision made by or under Part 1 of Schedule 11 and to any express provision as to the jurisdiction of any court made by any other provision of this Act.” 
35.	We were then referred to section 108(12), which states:
“The following provisions of this Act extend to Northern Ireland.” 
36.	There is then listed under subsection (12) two sections of the Act and a number of subsections and paragraphs in various schedules to it. By this route Miss de Haas submits that it is unnecessary to include section 108(12) as extending various provisions to Northern Ireland if section 13 included Northern Ireland in its meaning. Further, Miss de Haas has referred us to section 36(1) of the Family Law Act 1986, which states:
“This section applies to any order made by a court in the United Kingdom prohibiting the removal of a child from the United Kingdom or from any specified part of it.
(2) An order to which this section applies shall have effect in each part of the United Kingdom other than the part in which it was made...”
37.	It is unnecessary to continue the quotation for the present purposes. Her submission is that section 36 would be meaningless and otiose if Northern Ireland was included within section 13. Section 13 deals with the prohibition without leave of an action which is of the substance of the Act. The matters referred to by Miss de Haas are concerned with the meaning by which the acts legislated for should or should not be brought into effect. Those provisions are the working provisions governing (inaudible). Section 36 of the Family Law Act is the same, in the sense that it is to do with the way in which the law is put into effect rather than the law itself.
38.	I draw no assistance from those other parts of the Children Act or from the Family Law Act in deciding whether section 13 includes by definition Northern Ireland. It seems to me that section 13 is clear. The United Kingdom, without further definition or reservation, of which there are none in the Act, includes Northern Ireland.
39.	My Lord has made clear the decisions of this court to be relied on in considering matters such as this for decision by the court. For all of the other reasons given by my Lord, I entirely agree with his conclusion.
Order: Appeal dismissed; no order as to costs; public funded assessment.