Case No: B4/2010/2000 
Neutral Citation Number: [2010] EWCA Civ 1137
IN THE COURT OF APPEAL  ( CIVIL DIVISION )
ON APPEAL FROM THE READING COUNTY COURT
(HIS HONOUR JUDGE D HAMILTON)
(LOWER COURT NO: SL10P00504)

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Wednesday, 1st September 2010

Before:

LORD JUSTICE PILL
LORD JUSTICE WILSON 
and
LORD JUSTICE SULLIVAN
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Between:

	In the matter of R (A child) 
		
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( DAR Transcript of 
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Miss Barbara Mills (instructed by the Family Law Partnership LLP) appeared on behalf of the Applicant Father.
The Respondent Mother appeared in person.

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Judgment
Lord Justice Wilson:

1.	A father applies for permission to appeal against an order made by His Honour Judge D Hamilton in the Reading County Court on 11 August 2010.  Before the judge was an application by the mother for leave to remove the child of the family permanently to Australia.  The child of the family is a boy, namely L, who was born on 6 June 2005 and who is thus now aged five years and three months.  The judge granted the mother's application.  Before the judge both the mother and the father appeared in person.  For this proposed appeal, however, the father has consulted solicitors and is today represented by Miss Mills of counsel.  The mother appears, as before, in person.  

2.	Today's hearing has been fixed at short notice, in the light in particular of the mother's wish to remove L to Australia, namely to Perth, before the start of the new school term later this month.  A direction has been made not only for this application for permission to be heard today on notice to the mother but also to the effect that, were permission granted, the hearing of the substantive appeal would follow forthwith.

3.	The mother is aged 45.  The father is aged 44.  They were married in 2004.  I believe that, for the mother, it was a first marriage.  For the father, however, it was a second marriage; his first marriage had ended in divorce.  His ex-wife lives with the two sons of that marriage, now aged 16 and 13, in Bournemouth; and it seems that, at any rate now, the relationship between the father and those boys is good and that he has regular staying contact with them. 

4.	During the marriage between the parents they lived in a house in Windsor. The father left the home in June 2008 and a decree absolute of divorce was pronounced in October 2008.  The mother continues to live with L in the home in Windsor.  But the father has no settled home and has not had a settled home since early in 2009.

5.	The father does not suggest that it would be appropriate for L to continue to live otherwise than with the mother.  The only issue before the judge, substantial though that was, was whether they should live in Windsor or in Perth.  

6.	Both the mother and the father have substantial international connections.  Although her parents, who appear to be divorced, each now lives in Devon, the mother has a brother who lives in Spain, and a number of relations who live in Australia.  The mother was born in England but in about 1982, when she was aged 18, she moved with members of her family to live in Perth. She lived there for some 18 years, namely until about 2000, and acquired Australian citizenship in addition to her original British citizenship.  In Perth the mother obtained a Masters degree in psychology and she is a chartered psychologist.  Her work in Australia was in the field of organisational development consultancy.  In about 2000 she came back to England in order to pursue a job opportunity in management consultancy here. At that time she intended to return to Australia in due course but her marriage and the birth of L have to date precluded her from doing so.  

7.	The father was born in Minnesota but had an upbringing in England.  His mother and stepfather lived for a number of years in France but they now live in Hong Kong.  The father has a degree in electronics and a diploma in electric and electronic engineering. As a young man, he served in the Hong Kong police force.   

8.	At the time of the breakdown of the marriage, namely in June 2008, both parents were working.  The father was working as a self-employed IT consultant.  In particular he was under contract to work for ITV.  He was earning about £97,000 per annum or, as he told the judge, £420 per day.  The mother was in only part-time employment in the light of her need to care for L, then aged only three.

9.	Following mediation a consent order was made in respect of the parties' financial obligations; the mother was to buy out the father's interest in the home in Windsor on a clean break basis and he was to pay £950 per month by way of contribution to the support of L.  But, only a few days after a consent order to that effect was made, the father revealed to the mother that ITV would be terminating its contract for his services with effect from December 2008.  He told her that he intended thereupon to take a year out.  

10.	The judge regarded the father's history since December 2008 as of considerable importance.  For the last 20 months he has lived a very unsettled and peripatetic existence, surely at any rate in part out of choice.  For four months from January 2009 the father resided in the French Alps and took a job in a ski shop.  After April 2009 -- according to the mother's evidence, not challenged by the father -- he spent several months either busking outside Windsor Castle or on elaborate foreign holidays, including to Canada, Hong Kong and Australia.  Between January and April 2010 he was back in the French Alps and, I believe, back in the ski shop.  In about November 2009 he bought a boat which he kept at Runnymede but, in that he lacked mooring rights of his own, he tied it up against another boat moored there.  He may himself have lived in the boat to some extent but he accepted that it was not in a good enough condition to be occupied by L during periods of staying contact.  He told the judge that, by the time of the hearing, he had obtained temporary work as an engineer in a boat yard and was earning only £75 per day. 

11.	The father's defence of his nomadic lifestyle since January 2009 was that he had made numerous unsuccessful applications for conventional employment in the IT field and, so he told the judge, he proposed to continue to make such applications.  

12.	The fact was, however, that the father's unusual personal arrangements since January 2009 created considerable difficulties for the mother.  With effect from 1 February 2009 he ceased to pay the agreed sum of £950 per month towards the maintenance of L.  Indeed since then he has paid virtually nothing for him, namely only small sums totalling less than £400 in all.  Pressed by the judge at the hearing to explain his proposals for L's future support, the father said only that he had some weeks earlier offered the mother a contribution of £38 per week.  In effect the whole burden of maintaining L has fallen upon the shoulders of the mother since January 2009.  And, when she lost her part-time employment in August 2009, her financial situation became acutely problematical and clearly helped to precipitate the application for leave to remove which she issued in April 2010.  Since August 2009 she has managed to find only intermittent freelance work.

13.	The father's lack of identifiable accommodation in England also contributed greatly to interruptions in contact and arguments with the mother in relation to contact arrangements.  Before the judge the mother contended that the father had been erratic and difficult in relation to contact arrangements and that her inability to know in advance where L was to be taken by the father for contact periods caused her, and for that matter also L, great unsettlement.  The father, by contrast, suggested that the mother had been unreasonably inflexible in relation to the contact arrangements because she was not committed to the principle of his having a continuing relationship with L at all.  Having read their witness statements, and having heard them give oral evidence albeit relatively briefly, the judge found firmly that the mother did not have an agenda of seeking to eliminate the father from the life of L and that, on the contrary, she had wanted him to play a substantial part in L's life on a conventional regular basis.

14.	It was, of course, a major feature of the mother's case that she had spent many years in Australia -- and indeed had Australian citizenship to which L would also be entitled -- and that, but for the marriage and the birth of L, she would already have returned there.  She put forward detailed proposals about life for herself and L in Perth and for the contact which L should have with the father following any move there.  Her detailed proposals for their life in Perth were not said by the father at any stage to be unsatisfactory in themselves.  Thus the mother proposes to rent accommodation in Swanbourne, apparently a pleasant suburb of Perth in which the mother has previously lived and in which she has friends with young children known also to L.  A place is available for L at Swanbourne School, at which he would spend one term in the pre-primary class before moving into the primary department at the start of the academic year in February 2011.  Most importantly the mother has the offer of a job, from a consultancy already known to her, in which she would act as a management consultant throughout the public and private sector in Western Australia but particularly within the mining industry, which was a principal area of her expertise prior to coming to England.

15.	The mother placed before the judge a detailed programme for the father's contact with L following any move to Australia.  The basic pattern, at any rate in the short term, was for three separate weeks of staying contact each year but with a view to later increase, in particular in the long, seven week holiday in Australia in the summer, namely in December and  January.  For the time being the mother proposed that the father should spend one week during that holiday with L at the home of the paternal grandmother in Hong Kong, one week with L in Australia over Easter and one week with L in the short July holiday in the UK.  Aware that the paternal grandmother and her husband had been in the habit of paying for the fares of the two half-brothers to visit Hong Kong, the mother suggested, not unreasonably in the absence of evidence to the contrary, that they would also be prepared to pay for L's fare from Australia to Hong Kong in December/January.  She proposed that she should herself pay her own fare to Hong Kong and back when accompanying L and that the father should pay his own fare from and back to the UK.  In relation to Easter she proposed that the father should pay his fare to Australia and that, since he has old friends in Sydney, he might care to take L across Australia to stay with them.  She proposed that she and the father would equally share the cost of L's trip to the UK in July and that she would bear the cost of her own fare to and from the UK when accompanying him.  She also proposed that there should be frequent contact at other times by telephone and through Skype.  

16.	Even though the mother's case was put on the basis that she did not expect the father to make any continued contribution to the support of L, otherwise of course than when he was having contact with him, the father objected to the judge that he would not be able to bear the costs of fares encompassed within the mother's proposals.  The judge, who was clearly unimpressed with the father's efforts, or lack of efforts, to create a stable home for L during periods of contact, and, in particular, to continue to make any significant contribution to his support, rejected the father's case that, even if relieved of the obligation to pay child support, he could not afford the suggested fares.  He said that "…it is difficult to imagine that the air fares would really be a barrier to a man capable of earning £425 per day".  In her skeleton argument Miss Mills submits that "this was clearly a mistake".  With respect to her, I do not accept that it was a mistake.  In oral evidence the father had said that, when working for ITV, he had been charging it £420 per day and the difference between £420 and £425, which may be attributable to an error in transcription either of his evidence or of the judgment, is of no consequence. The judge was well aware that at the time of the hearing the father was earning only £75 per day and he was referring instead to what he found him to be capable of earning in the reasonably near future if he were more substantially to apply himself to that end.

17.	Following issue of the mother's application for leave to remove, the matter came on 3 June 2010 before a district judge, at which the parents each appeared in person.  In that the mother had already filed a very full position statement, the district judge directed that the father should file a statement in opposition thereto and that the mother should then file a statement in reply.  At that hearing the father invited the district judge to direct a Cafcass officer to prepare a report.  Today we have learnt that the district judge thereupon invited a Cafcass officer into his chambers and discussed with him, in the presence of the parties, the likely value of a report.  The basis of the father's suggestion to the district judge was that it was important to assess the quality of his relationship with L.  When, however, the mother conceded that there was in principle a good relationship between them, the Cafcass officer recommended that there was no need for a report; and the district judge refused the application.  The father did not appeal to a circuit judge against the district judge's refusal; and he made no suggestion to Judge Hamilton at any stage on 11 August that the hearing should be adjourned for such a report to be prepared.

18.	Nevertheless the primary ground of the proposed appeal, the objective of which is to secure a rehearing of the mother's application before a different judge, is that the judge was plainly wrong to proceed without the benefit of a Cafcass report.  In my experience, confirmed by Miss Mills, Cafcass reports are by no means invariably prepared in relation to applications for leave to relocate.  The Cafcass officer is usually in no position to assess the merit of the applicant's proposals for life abroad and it is sometimes said that, as a result, Cafcass reports have less of a role in relocation cases than in other issues in relation to children.  Nevertheless Miss Mills is correct to say that a Cafcass report is quite often prepared in relocation cases.  Of course, in circumstances in which the age of the child is such that his wishes need to be collected and conveyed to the court, the Cafcass report is the conventional conduit for them.  At age five, L is clearly too young to express a wish of any real significance about the proposal to move to Australia.  Of course s.1(3)(a) of the Children Act 1989 refers to a child's “feelings” as well as to his “wishes”; and the former noun applies in particular to younger children.  Yes, the “feelings” of L about a move to Australia and about the loss of frequent face-to-face contact with the father might have been gauged; but it is impossible to consider that they would have had any significant impact upon the judicial determination.  Equally a Cafcass officer might have observed a period of contact between the father and L and reported upon her or his assessment of the closeness of the bond between them.  But, as I have said, it was not disputed by the mother that there was in principle a relationship of value between L and the father. That concession was recorded, rather grudgingly, by the judge when he said only that "I do not doubt that [L] has some relationship with his father".  But the judge was clearly entitled to add that the father's "conduct in this matter of contact does not put [L's] welfare at the top of his priorities".  Later the judge accepted that, in opposing the application, the father was motivated by concern for L's welfare rather than by some mean attempt to thwart the wishes of an ex-wife with whom he was no longer on cordial terms.

19.	The judge expressly weighed the loss to L of frequent contact with the father attendant upon the mother's proposals.  The father also urged upon him that there were other losses for L in terms of his relationship with those members of the wider family on both sides who lived in England, including in particular the mother's parents in Devon and the half-brothers in Bournemouth.  The father's evidence was that many of his contact periods with L had been spent in the presence also of the half-brothers and that the three boys got on extremely well.  Another ground of appeal is that the judge was too dismissive of the importance of the relationship between L and the half-brothers.  In that, however, within a few years the half-brothers will be adults and probably living away from home, the judge was in my view entitled to consider that L's relationship with them was not of primary importance.

20.	There were, submits Miss Mills, yet other issues raised in the case which demanded a Cafcass enquiry.  It was certainly part of the father's case that a substantial motive behind the mother's application was to eliminate or at least curtail his relationship with L.  This, submits Miss Mills, should have been investigated by a Cafcass officer.  In the event, as I have indicated, the judge felt able, in the light of the evidence which he had received, categorically to reject that part of the father's case.  In my view -- and contrary to the submission of Miss Mills today -- he had the material upon which to do so and it follows that, in order to decide that issue, he did not need the assistance of a Cafcass report.  There is also a faint suggestion that a Cafcass report was necessary in order to investigate allegations which the father had made in his affidavit to the effect that, when living in Perth, the mother had been admitted to hospital for depression and that, following L's birth, she had been admitted to a psychiatric ward in a hospital in Ascot for observation overnight.  In her statement in reply the mother had denied that she had been admitted to hospital for depression in Perth but had conceded the overnight admission in Ascot in the months after L's birth.  That was, of course, almost five years ago.  In circumstances in which the father had seen fit to allow the mother to assume full care of L, with negligible assistance from himself, and in circumstances in which he did not raise the issue as to her mental health before the judge, it is fanciful to suggest that the judge clearly fell into error in not adjourning for a Cafcass report into that feature.

21.	In my view it is not arguable that, in all the circumstances to which I have referred, the judge fell into appealable error in failing, of his own motion, to abort the hearing and to reverse the district judge's decision by ordering a Cafcass report.

22.	Another major ground of the proposed appeal is that the judge did not make any actual order for the father's contact with L following the permitted move to Australia and/or did not require the mother, as a condition precedent to removal, to obtain a mirror order for contact in the Perth court.  In my view this ground of appeal is misconceived.  Although a contact order is, as I have noticed, now occasionally made by way of attachment to a grant of leave, it is contrary to principle.  A contact order would be an order taking effect until further order of the English court.  But, on a grant of leave, the English court is, if only for practical reasons, surrendering its control over the child to the foreign court.  As was undoubtedly necessary, the judge in judgment extensively addressed the mother's proposals for the father's contact with L following any move to Australia and in effect the judge approved them.  The tenor of his judgment was that the mother was committed to contact and would be highly unlikely to renege on her proposals without very good reason.  But, were she to do so, it would of course be to the court in Perth that the father would turn; for any further order of the English court would not have effect in Australia.  With the leave of the English court, he would be likely to present the judge's judgment to the judge in Perth and seek an order for contact with L along the lines therein set out.  Had the judge not in judgment addressed issues of contact fully, the father would have had a solid ground of appeal; but, for the reasons which I have given, he has no arguable complaint in respect of the absence of any actual order for contact.  Nor does this court automatically require a foreign, mirror order to be in place before the child leaves England and Wales.  In the circumstances in which the court has some doubt about the applicant's bona fides in relation to the other parent's contact, that precaution is often taken; but, in circumstances, like the present, in which the judge made the firmest conclusion about the mother's commitment to contact, it would not be usual to put her to the expense and delay of obtaining a mirror order.

23.	The judge directed himself very carefully in accordance with the now controversial decision of this court in Payne v Payne [2001] EWCA Civ 166, [2001] 1 FLR 1052.  That decision is, for the time being, as binding upon this court as it was upon the judge.  One of its most controversial features is, of course, the substantial value which it attaches to an enquiry into the effect of refusal of the application upon the applicant parent. Thus the judge duly addressed that feature. He said that: “…if the mother is not allowed to go to Australia, she will, as I have said, suffer significant psychological and emotional impact from the frustration of her realistic proposals for life there, and that may impinge on the welfare of [L]."  It is the ground of appeal in relation to this finding which has given me most pause for thought.  Miss Mills is right to say that neither in her position statement nor in her witness statement in reply nor in her oral evidence did the mother address the effect on her of the refusal of her application.  In this court today the mother has filed fresh evidence in an attempt to repair that deficiency; but there are no good grounds to admit that evidence so late and we have not granted her permission to adduce it.  Miss Mills is therefore able to say that the judge had no evidence upon which to have based that important conclusion.  I would respond that he certainly had no direct or express evidence in that regard.  It would no doubt have been wiser for him to have asked the mother about her assessment of the effect upon her of refusal and to have sought to penetrate the validity of whatever she said in answer to him.  But the need for the court to penetrate validity of what is said in this regard highlights the limited value of what in such circumstances the applicant does say.  It is so easy for an applicant, and would no doubt have been so easy for this mother, to have said how devastated she would be by a refusal of leave.  Thus the conclusion about the impact upon the applicant of refusal is usually to be reached more by way of inference from the surrounding circumstances than by reliance upon an answer so easy to give.

24.	In the end, however, I consider that there is another conclusive answer to this point.  The effect of the evidence was surely that it was in effect no longer viable for the mother to live with L in England. The father's track record since the separation inspired no confidence that he would arrange to pay any substantial amount by way of contribution to the support of L on a regular basis.  As for the mother, faced with the task of caring for a still young child single-handedly, she had lost her part-time employment; and the father produced no evidence to challenge her assertion that she could not readily find other suitable employment.  Thus, so it seems to me, the thrust of the mother's case was less that she could continue to live in England but would be profoundly to have to do so than that she could not reasonably continue to live in England at all.  By way of comparison, the likely financial stability of the proposed home in Perth was not challenged.  Thus it is that, in the end, I have concluded that Miss Mills' best point, although initially troublesome to me, carries no real prospect of success.

25.	I would refuse permission to appeal.  To cater for the highly unlikely contingency of litigation in Perth in relation to L, I suggest that we should at this stage grant leave to the father (and for that matter to the mother) to place before any court in Perth the transcript of the judge's judgment and also the transcript of our judgments delivered today.

Lord Justice Sullivan:

26.	I agree.

Lord Justice Pill:  

27.	I also agree.

Order: Application refused