Case No: B4/2008/1328
Neutral Citation Number: [2008] EWCA Civ 838
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CARDIFF CIVIL JUSTICE CENTRE 
(HIS HONOUR JUDGE PHILIP PRICE QC)
(LOWER COURT No: CF07P05614)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Wednesday, 2nd July 2008

Before:

LORD JUSTICE WILSON
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IN THE MATTER OF W (Children)

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THE APPLICANT “FATHER” ATTENDED IN PERSON.

THE RESPONDENT “MOTHER” DID NOT ATTEND AND WAS NOT REPRESENTED.

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Judgment

Lord Justice Wilson:

1.	A father applies in person for permission to appeal against an order made under the Children  Act  1989 by HHJ Philip Price QC in the Cardiff County Court on 15 May 2008.  Although now appearing in person, the father was represented at that hearing by counsel.  The proceedings related to cross-applications by the father and the mother in relation to their two non‑marital sous, namely E, who was born on 27 October 1999 and so is now aged eight, and D, who was born on 3 September 2006 and so is now aged nearly two.  The first application in point of time was that of the father for an order for residence of E to be vested in him; and later his application was amended so as to include also a claim for the residence of D.  The cross‑application was that of the mother for permission to remove both boys permanently to Eire in order that she could live with them in the town of Kenmare, which lies in County Kerry, north of Bantry and south of  Tralee.  

2.	The decision of the judge was to grant the mother permission to remove the boys permanently to live in Eire but to provide that her removal of them should not take place, at least not on any permanent basis, until further order of the court.  As I understand it from the father this afternoon, this postponement of the permanent removal was intended to provide time for the court to consider and make provisions for the appropriate amount of contact between the boys and the father following removal, in terms both of dates or periods and of funding and travelling arrangements.  The judge seems to have hoped that these matters could be resolved at a hearing on 4 June 2008.  The court has, however, been provided with a hand-written copy of the order made by the judge on 4 June 2008; and, although it provided that the mother should have permission to take the boys to Kenmare temporarily between 13 June and 11 July 2008 and that thereafter, until 8 August 2008, the father should have defined staying contact with them, the judge provided that the stay upon their permanent removal should remain and that the proceedings should be further adjourned to a hearing on 14 July 2008.  Such, therefore, may, subject to these proceedings in this court, be the date when the judge specifies the contact to be enjoyed with the boys by the father following removal and when, accordingly, the stay upon the mother’s permanent removal of them is lifted.  

3.	The father is aged 44.  He lives in council accommodation in Cardiff.  He subsists on meagre state benefits.  His last employment was in about 1996.  He says that he has not worked since then because of migraines and depression although he hopes that, once these proceedings are resolved one way or the other and even were the boys to be living with him, to retrain and then find employment.  He tells me this afternoon that his doctor has consistently advised him that he has been in no medical condition to get work again.  He accepts the desirability in principle that he should not remain long‑term unemployed and should obtain the relevant qualifications with which to obtain work.  His father is sadly deceased and his mother lives in Cardiff.  His only sibling, a sister, also lives in Wales.  Prior to his relationship with the mother, the father had another relationship; and by that relationship there were two children, namely a son J, who is now aged about 21, and a daughter V, who is now aged about 16.  Until recently J has been living with the father but he has now moved into independent accommodation with his girlfriend in Cardiff.  V lives with her mother; and the father appears presently to be estranged not only from that ex partner but also, sadly, from V.  It may be seen, therefore, that the father’s roots are planted firmly in Wales.  That feature is subject only to this not insignificant qualification, namely that the father’s mother has a house, albeit in very poor condition, in Kenmare.  This afternoon the father has described the house to me as no more than a stone tent.  I will revert to it in due course.

4.	The mother, who is aged about 34, also had her roots in Wales.  But in 1993 her parents moved from Wales to Kenmare; and she moved with them. Furthermore two of her three sisters also live there; and one of her sisters has a son of about E’s age.  The mother’s case before the judge was that, if granted permission, she and the boys would stay first with her parents in Kenmare but that they would soon move to council accommodation there which would be made available to her.  It may be seen, therefore, that the current family on the mother’s side is now very largely situated in Kenmare; and the simple case of the mother to the judge was that, in the light of the breakdown of her relationship with the father, she wished to make a life for herself and the boys close to her family.

5.	The parents met in Kenmare in 1998 when the mother was living with her parents and the father was staying in the house owned by his parents there.  They began to cohabit in October 1998 and chose to do so in Cardiff, in particular so that the father should be able to maintain his relationship with J and V.  The father stresses to me this afternoon that the judge should have inferred the extent of his commitment to his children from – among other things - the fact that he had full and regular contact with J and V while they were growing up in Cardiff.  The parties remained living in Cardiff from 1998 until the breakdown of their relationship in July 2007.  Thus, until then, Cardiff was the home of the boys.  That said, however, the parties frequently went to Kenmare on holiday.  Although it is part of the father’s case that he could not reasonably have the boys to stay with them in what is now his mother’s house there, because it is so dilapidated, it seems that he usually stayed in that house during the family visits to Kenmare because he did not, at least in the later years, get on well with the mother’s parents and did not want to stay with the mother and boys in their home; and thus that at any rate the later pattern of family visits to Kenmare was that he would stay in his parents’ property, notwithstanding that it had no running water, no electricity and no sewerage arrangements.  Thus it is that he describes his stays there as a form of camping.  He did add in his submissions to me that on occasions E camped there with him, albeit for no more than a night or two.

6.	The breakdown of the relationship occurred in July 2007 at the start of the summer visit to Kenmare.  The mother told the father that the relationship was at an end and that she did not wish to return with the boys to Wales.  He returned there alone.  It does seem -- and this may be relevant in the light of the father’s complaint that he lacks the funds to visit Kenmare -- that during the next three months he made a visit to see the boys in Kenmare, albeit with borrowed money.  The mother enrolled E in primary school in Kenmare.  E’s half-term holiday ran from 26 October until 5 November 2007.  The mother told the father by telephone that, were he to collect E from Kenmare, he could take him to his home in Wales for the half-term holiday, provided that he returned him to her there on 3 November 2007.  So, again, the father managed somehow to fund the travel to Kenmare; he collected E and he brought him to Wales.  On 3 November 2007, however, the father told the mother, presumably by telephone, that he was refusing to return E to her in Eire and, in particular, that E wanted to stay in Cardiff.  As a result the mother immediately flew to Wales alone.  

7.	On 5 November 2007 the father issued his application for a residence order in respect of E.  Although the judge considered that it was significant that in his application he made clear that his application was solely in respect of E, in whom, so the judge considered, the father had greater interest than in D, the father contends, and this cannot be gainsaid, that he had instructed his solicitors also to include an application in respect of D.  The judge also observed that, when applying for parental responsibility, the father had applied for it only in respect of E; but the father points out to me that he did not need to apply for it in respect of D in that his name was on D’s birth certificate and the law had been by then amended so as thereby to invest him with parental responsibility for D.  Confronted, I believe, with the legal proceedings and with probable legal advice that she would not be able, at any rate swiftly, to secure permission to remove E back to Eire, the mother collected D from Eire and came back to Cardiff to stay in separate accommodation while the issues proceeded in court.  Her cross-application was duly issued.  Meanwhile, with the help of solicitors and a district judge, an arrangement was reached for the care of E and also of D to be shared, on a fairly equal basis, between the two parents in Cardiff.

8.	The court commissioned the making of a report by CAFCASS-Wales.  By his report dated 14 February 2008 Mr Harrington reported that, upon interview, E at once responded to his enquiry about living in Eire by saying: “I don’t want to live in Ireland”.  However, shortly afterwards, he told Mr Harrington that he had “a good time when [he] was living there”.  Mr Harrington decided not to seek to unpick with E the arguable conflict between those propositions; and the judge observed that, at any rate in his view, it was unfortunate that Mr Harrington had not attempted to do so.  Although in his judgment the judge does not refer to the drift of Mr Harrington’s oral evidence, his report certainly seems to favour a grant of the mother’s application for permission. He praised the mother as a caring and responsible parent and observed that she was looking for a “legitimate” fresh start for herself and the boys in Kenmare, where she considered that she would be better suited, would have improved financial circumstances and greater security of accommodation and that there would be a better quality of life for the boys.  He observed that the refusal of the application would undoubtedly have a negative impact on her.  He said that he had sympathy for the position of the father in that the removal of the boys to Eire would inevitably affect the frequency of his contact with them.  But Mr Harrington spoke of telephone and other non face-to-face contact, as well of course as contact both in Wales and in Kenmare, and concluded that, although neither parent was wealthy, the frequency and duration of contact would be likely to depend more on the intentions of the parents than on the extent of their resources.

9.	In his written, reserved judgment, handed down on 15 May 2008, the judge noted that, were the application for permission to be refused, the mother proposed to remain living in Cardiff.  Thus, for the judge, the choice to be made in the interests of the boys was between a life with the mother in Kenmare and a life in Cardiff, whether residing with the mother but at least having extensive staying contact with the father or along the lines of the arrangements for shared residence which had been in operation since November 2007.  In that regard the judge acknowledged that the father had demonstrated a capacity to provide basic care for both children but he found that, in terms of their emotional development, the primary carer for both children had been the mother.  The judge said that the mother had impressed him as energetic, caring and competent.  The father, by contrast, he considered to be self-absorbed and with a tendency to withdraw from difficulties and from social interaction.  The mother accused the father of having said, while they lived together, that he did not “do” mornings, families or schools.  The father denied that he had ever said so.  Irrespective, however, of whether he had said it, the judge found that it was accurate to say that the father had left the mother to attend to those important facets of the life of the boys.  The judge found that the needs of the boys would be better met by a life with the mother than with the father; this implies that, had he refused permission, he would have granted residence of the boys to the mother, albeit with extensive staying contact in favour of the father.

10.	The judge reminded himself that E’s expressed preference to Mr Harrington had been to live in Cardiff.  The judge speculated that his remark may have been attributable to his pleasure at being back in the school in Cardiff at which he had attended prior to July 2007.  

11.	The judge found that, were permission refused, the mother would be frustrated and unhappy and that, in the light of her family ties with Kenmare, it was entirely reasonable for her to aspire to live there with the boys.  Then, after necessarily attending to suggestions that E had been bullied in the school in Kenmare which he had attended in the few weeks in September and October 2007, and having concluded that such problems had been very minor and not such as to impinge upon his decision, the judge turned to the major objection to the mother’s plans, namely that, particularly in the light of the father’s exiguous resources, it would be difficult for the relationship between the father and the boys to be maintained.  In this regard the mother’s proposal was that the boys should spend one half of all school holidays, including apparently half-term holidays, with the father in Cardiff and that the father should also have weekend contact with them in Kenmare whenever he wished.  She also offered to share the cost of the travel of the boys to and from Wales, for example by collecting them, and funding her collection of them, from the father at the end of each period of contact there. In this regard the judge looked at the facility for air travel between Cardiff and Cork, which is about a two and a half hour drive from Kenmare, and for travel by ferry from Fishguard, itself no little distance from Cardiff, to Rosslare, being over 100 miles further east from Kenmare than is Cork.  Thus the facility for the father, even though he has a motor car, to travel to Kenmare to collect the boys or to visit them there, and in the case of his collection of them to bring them back to Wales, was not straightforward; and far from easy for a father apparently unable to work and in receipt of benefits of, as he tells me, only about £138, after necessary deductions, each fortnight.  On the other hand the evidence showed that he had been able to visit Kenmare in 2007 on his own and that he had found his mothers’ property there to be just about habitable, even if only in effect for himself.

12.	There is no doubt that the difficulties surrounding contact presented a serious problem for the mother’s application.  It seems to me that the judge must be said sufficiently to have addressed that problem.  Although he was satisfied that the father’s objection to the removal of the boys to Kenmare was born not of a wish to obstruct the mother’s plans for its own sake but of concern about the diminution in his relationship with them, in the end the judge expressed himself “satisfied that realistic and effective contact with their father can be provided for these children” and that, in the course of their visits to Wales, they could also maintain their links, if significant, with J and V.  As I have said, however, the judge observed that the precise programme of contact needed further clarification; indeed, as I have pointed out, it stands to be clarified at the forthcoming hearing on 14 July.  It is in a sense up to the judge then to deliver the practical programme for contact which he has already concluded in principle to be achievable.  

13.	In his skeleton argument in support of his proposed appeal, and in the course of particularly clear, polite, well-crafted submissions made orally to me this afternoon notwithstanding an horrendous journey which the father has faced in travelling from Cardiff to these courts today, the father complains that the judge failed properly to consider the financial constraints upon his ready movement between Cardiff and Kenmare.  The father complains that he had explained to the judge that his mother’s home in Kenmare lacked electricity and water and was thus no place in which to take the boys overnight.  He also complains that the judge was wrong to find that he had a greater interest in maintaining a relationship with E than with D and placed, as I have said, the wrong constructions upon the original formulation of his application for a residence order and upon his application for a parental responsibility order only in respect of E, which I should add was quickly granted.  He also complains that the judge placed insufficient emphasis upon the wish of E, expressed to the CAFCASS officer, to remain living in Cardiff.  This afternoon the father has added a further complaint to those made in writing, namely that Mr Harrington failed to interview him with the children or indeed to observe him with the children, with the result that professional evidence of his close bond with the children was not able to be communicated to the judge and with the further result that the judge failed to appreciate its importance not only to the father himself but also, more relevantly, to the boys.

14.	I understand the weight of some of these points, in particular, obviously, the protest about the likely difficulties in relation to contact.  I have had only a snapshot of the father addressing me for half an hour this afternoon; but from that snapshot I do consider that there may have been more positive things that the judge might reasonably have said about the father than appeared in his judgment.  Nevertheless the fact is that both the CAFCASS officer and then the judge, following independent assessments, were upbeat in concluding not only that the mother had a genuine wish to facilitate contact, and indeed to contribute to its cost, but that the father would, one way or another, be able to manage to travel to Kenmare and to bring the boys back to Wales at least for half of the full school holiday periods, notwithstanding the financial difficulties.  Furthermore the father, who appears to have had some experience in the construction industry, seems at one stage to have planned to do some elementary works of improvement at his mother’s property in Kenmare; indeed, as I have observed to him in the course of our dialogue this afternoon, he, not being presently in work in Wales, can presumably, once he manages to get to Kenmare, stay there for rather more than a day or two and at least then see the boys even while the house remains unsuitable for them to occupy for more than the occasional night.  I cannot imagine that this court could find that it was not open to the judge to have reached his conclusions.  In truth he had a difficult balancing exercise to perform, for in my view the attraction of a life for the boys with the mother in the bosom of her family in Kenmare was very obvious.  This was a decision of a discretionary character with which this court would interfere only if satisfied that the exercise in reaching it had in some way been misperformed or that it was plainly wrong. 

15.	In the end I conclude that the father’s case is not arguable.  On a human level I have considerable sympathy for him;  I warmed to him as he addressed me this afternoon and I could see aspects of him which indicated very considerable love and concern for the boys and a wish to play a full fatherly role in their lives.  Nevertheless the cold legal analysis expected of judges in this court requires me to refuse him permission to appeal.

Order: Application refused