Case No: B4/2010/1027
Neutral Citation Number: [2010] EWCA Civ 789
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SCARBOROUGH COUNTY COURT
(HIS HONOUR JUDGE CLIFFE)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday, 20th May 2010

Before:

LORD JUSTICE THORPE
LORD JUSTICE ETHERTON
and
MR JUSTICE MORGAN
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IN THE MATTER OF H (a Child)

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The Appellant father appeared in person, assisted by a McKenzie Friend.

Mr Geoff Hunter (instructed by B & C Solicitors) appeared on behalf of the Respondent mother.

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Judgment

Lord Justice Thorpe:

1.	The parties to the appeal lived together for some years in the late nineties and early years of this century and they have one child who is now nine years of age. 

2.	It is difficult to establish the litigation history with confidence.  We have no chronology and we have only a bundle that is directly relevant to this appeal but Mr Hunter, who is counsel for  the mother, tells us that the case has been consistently listed before HHJ Cliffe in the Scarborough County Court on the last twelve occasions.  We know that the principal issue of contention has been the appellant father's contact with his daughter who has been in the primary care of her mother since the parties separated in either 2003 or 2005, there being some dispute between the parties even as to the date of separation.

3.	We also know that the father issued a residence order application sometime in August 2008 and that issue may have prompted a district judge to confirm the mother's position by granting her an interim residence order in that same month.  We know that there was an investigation into past events by HHJ Cliffe, a fact finding hearing which resulted in a judgment of the 7 October last.  It seems that the outcome of his investigation opened the way to continuing increased contact, and we have been told that at the end of the hearing the mother's current partner proposed himself as a facilitator of future contact.  We also know that shortly thereafter the Cafcass officer, Mr Wolfe, had to take long term sick leave and was replaced by a Mrs Dean.  We know that there was a provision for review hearings and there was one such hearing before HHJ Cliffe in mid December.  The issue then seemed to be only one of quantum of contact, father's residence order application being as it were in reserve, and the new Cafcass officer prepared a written report on 15 February for the benefit of the judge who was conducting a further review hearing on that day.  

4.	But the landscape was changed in the second half of January when the father wrote to the judge, having wind of the mother's intentions to apply to relocate, and in his letter he indicated that he was reinvigorating his residence order application.  The mother's application for leave to relocate to Australia -- which was no secret to anybody, it had been much vaunted -- was issued on 26 January.  The Cafcass officer delivered a further report on 9 April which was specifically directed to the relocation application.  That led to a trial that commenced on Thursday 22 April.  The judge heard oral evidence from the parents, from the Cafcass officer and from the mother's new partner by video link from Australia.  The father has himself got a new partner, a medical practitioner, but she did not give evidence either by statement or orally.  

5.	The judge delivered an ex tempore judgment at about 4pm on Friday 23.  He refused an application for stay or permission to appeal but recorded an agreement between the parties that Jessica would not be informed of the grant of permission to relocate pending the outcome of the application to this court for permission.  The application was sealed on 30 April and referred to Wilson LJ who on the 10 May directed an oral hearing on notice with appeal to follow, and it is that hearing which we conduct today.

6.	The father's case has been very ably presented by Mr John Junk who is his Mackenzie friend and who has acted for him on a number of occasions in the county court.  There has equally been consistency of representation on the mother's side, she being represented by counsel, Mr Hunter.  

7.	Mr Junk has attacked the judgment below on three principal grounds.  He says that this is a judgment which is simply unacceptably brief and which fails to fulfil the minimum requirement which is an explanation to the parents that encompasses all the considerations that are set by s.13 of the Children Act 1989.  Secondly, he says that the mother has a record of consistently blocking contact and that it was essentially naive or unrealistic for the judge to conclude that her proposals for future contact would be honoured.  Thirdly, he says that the process of trial was deficient since Jessica had no separate representation.  She should have had a Rule 9.5 guardian.  She had very clear views that the judge should ordain her future with her father here in England.  She had more fun with him and she did not want to go with her mother to Australia.  Those views were subordinated by the welfare officer in a recommendation to the judge that the mother's permission application should be granted.

8.	Mr Junk adds by way of aftermath that, without a guardian ad litem, who is going to tell this little girl of the outcome of the case and the future that confronts her?  

9.	Mr Hunter in response says that the judgment is the judgment of a very experienced and senior circuit judge, it is well reasoned and concise and that there is no obligation on a judge of the standing of HHJ Cliffe to go through the welfare checklist as some sort of parrot exercise.  

10.	The father in his skeleton argument has opened with a section that is colourfully headed "Leave to remove post Payne  A ‘cold house’ for the non-resident parent opposed to relocation?".  Mr Hacking then refers to debate in this jurisdiction and in the practitioner community as to whether the longstanding principles applied in this court require radical revision.  

11.	Well, two things can be said of that.  The first is that the judge certainly directed himself by applying the suggested approach in the judgments in Payne v Payne [2001] EWCA Civ 166; that is clear from paragraphs 18 and 19 of his judgment.  

12.	Second, it is the fact that consideration is being given to the development of standards that would be applied internationally to relocation applications in any jurisdiction the adopted the international standard.  The Hague conference is fostering this work and has recently convened a conference in partnership with the State Department of the United States and the well known American charity, the National Centre for Missing and Exploited Children.  This is a development with which the United Kingdom is fully engaged but where it will lead is essentially uncertain since the process is only in its infancy.  If it were to result in a protocol to the 1980 Convention, the test would then be to see which jurisdictions chose to accede to the protocol, and, whilst this process is advanced within our jurisdiction the application for relocation is a matter for domestic and not international law and the previous decisions of this court remain in full force and effect.

13.	In a sense in the present appeal those observations are all peripheral because, for reasons which I will explain, I do not think that the decision in Payne was of direct application. The decision in Payne is directed to the paradigm relocation application where the judge has to choose between permitting the mother to go, with detrimental effect on the father's contact regime, or refusing the mother, confining her in this jurisdiction in order to succour the contact arrangement.  Here the judge had a very different choice.  He had to choose between the mother's residence order application, which was for her responsibility as primary carer discharged in an Australian community with her new partner, and the father's competing residence order application, which proposed an English future and the continuation of an English childhood in the family created by his new relationship.  

14.	Whichever choice the judge made, the successful parent was proposing more or less identical and generous contact provisions to the other parent.  Thus the mother was saying, if I have my permission I guarantee that there will be twice yearly visits for Jessica to England and the father will be welcome to have contact in Australia. The father in his residence order application equally proposed generous contact for Jessica in Australia.

15.	So where there are cross residence order applications, the judge has to apply the ordinary principles that apply in any competition by parents for the responsibility to provide primary care.  It is of course an unusual case in which one parent will be proposing care on one continent and the other on some other, but it does not change the essential character of the issue raised by the trial or the essential task that the judge has to undertake.  

16.	All that said, I will turn to Mr Junk's submissions.  He fairly says that, given that this was a two day trial in which the judge had heard oral evidence from four important players, given the huge importance of the outcome to both parents, given the huge consequences for Jessica of his decision, an ex tempore judgment extending to something under four typed pages is at the margin of acceptable brevity. It is very important, he submits, that the loser in an issue as desperate as this should have confidence in the essential fairness of the procedure and the quality of the judgment, a judgment that should be comprehensive and which should deal adequately with all the relevant factors and considerations.  

17.	Against that it can be persuasively said that this judge was very anxious for the parents to know at once where they stood.  He made that plain in his opening paragraph.  Given that he was delivering an ex tempore judgment at the end of the day, given that he had delivered judgments on earlier occasions dealing with history and background, given that he had a very thorough knowledge of and understanding of this family, it was permissible for him to be brief and to confine himself to the essential considerations.  That in my judgment he did. He recited the history very briefly and then recorded at some length the mother's case and the evidence that she had adduced in support of it.  Those exercises comprised the first two pages of his judgment.  He then recorded more briefly the father's case.  He dealt quite extensively with the contribution of the Cafcass officer.  Having recorded Jessica's clear wishes he said: 

"…in my judgment Jessica is a child in turmoil and she has been in the middle of an unseemly conflict for far too long.  At nine years old, she is too young for her views to be determinative; nor should she ever be put in the position of anyone indicating that she actually made the decision in this case."

18.	In the following paragraph he recorded that, despite Jessica's views, the Cafcass officer was plain that the most suitable order was for Jessica to live with her mother in Australia, provided that she could have regular and meaningful contact with her father.  The judge accepted that recommendation and was at pains to ensure that contact would be as full and as generous as the circumstances would permit.  He required assurances and undertakings before granting the application.  Those assurances and undertakings were given by Mr Hunter on behalf of the mother and so the case concluded.

19.	Mr Junks' submission that Jessica should have had a Rule 9.5 guardian is simply answered by noting that there was no application for such an appointment during the interlocutory stages and that the Cafcass service had a considerable investment in the family and was continuing to discharge its advisory function.  It should be recorded that the appointment of a Rule 9.5 guardian remains an exceptional course and the circumstances in which it should be done are defined by a practice guide issued by the President.  

20.	The issue of breaking the news to Jessica will arise following the determination of this appeal, and I would very much hope that an agreement can be reached between the parents as to how that is to be done.  It needs to be done as soon as possible since Mr Hunter tells us that his client has made a provisional arrangement to depart on 30 May.  

21.	So having reviewed the respective submissions of the parties, I have reached the unhesitating conclusion that the attack on the judgment of HHJ Cliffe fails.  Perhaps in an ideal world it would have been fuller but there was no obligation on him to take the welfare checklist paragraph by paragraph.  He had the commendable desire to let the parties know where they stood without having to adjourn to prepare a reserved judgment.  All the essential ingredients of reasoning and fairness are to be found in the four pages as they are transcribed.  This was essentially a discretionary choice and the parties were fortunate that a judge who had much experience of the family and great expertise in family justice was the judge chosen to make the choice. Whichever way he had chosen, whether for father or for mother, an appeal in this court would be unlikely to succeed.  He did not misdirect himself in law, albeit he did not take the approach which I perceive to be the ideal.  He explained himself sufficiently, albeit briefly, and in those circumstances his conclusion is not open to revision here.

22.	Given the care with which the application has been prepared in the court bundle and presented by Mr Junk, I would grant permission but refuse the consequent appeal.

Lord Justice Etherton:  

23.	I agree

Mr Justice Morgan:  

24.	I also agree

Order: Application granted; appeal dismissed