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Re N (Children) [2006] EWCA Civ 872

Mother’s appeal against residence order for child, and his trial relocation to Canada, allowed.

Court of Appeal: Thorpe, Arden and Wilson LJJ (14 June 2006)

Mother's appeal against residence order for child, and his trial relocation to Canada, allowed.

The parties to these proceedings married in 1990, and they had two sons aged 11 and eight at the time of the hearing. The father was a serving army officer and, in 1999, was posted to Canada, where he and the family stayed until 2001. During that time, the family apparently decided to emigrate to Canada and, in 2002, they applied for residence there.

Shortly after arriving in Canada in April 2004, the mother issued an application in Canada for permission to remove the children to England; before that application was decided, the mother and children left Canada in June 2004 and returned to the UK. At a hearing in February 2005, the judge granted a residence order in respect of both children to the mother, with contact to the father. At an emergency hearing in November 2005, following the older son's refusal to return to his mother at the end of a weekend visit, the same judge, having had the benefit of an oral report from a CAFCASS officer, concluded that the child must remain with his father in the interim.

At the hearing before a different judge in April 2006, to determine the father's application for a residence order in relation to both children and for permission to relocate to Canada, the father made two major concessions: first, that the younger son should remain with his mother and, consequently, his residence order application should be withdrawn; and, secondly, that, if his application to relocate with the older child were rejected, he would stay in the UK to continue to provide the primary home for him. The judge granted the residence order in respect of the older child to the father, and tentatively granted the application to relocate, ie a trial relocation for a period of 11 months, with a review in July 2007.
The mother appealed on the following grounds: the judge had made findings that were 'adverse to the father which were not reflected in the decision of the court'; secondly, the judge failed to make findings on core factual matters which were central to her decision; thirdly, she failed sufficiently to evaluate the older child's wishes and his needs; and fourthly, she failed to give sufficient weight to the need to maintain a close relationship between the brothers and also to the effect on the younger child of the permission for the older child to relocate.

Held, allowing the appeal, that the judge's decision was not supported by her findings and her reasoning, even though it may have had a pragmatic justification.

On a detailed analysis of the judgment in the court below, the court found that the judge had essentially decided the question of the older child's residence on the basis that it was, practically speaking, impossible to reverse the status that had been established by the interim order made in November 2005; however, the crucial question that she had to decide at the end of the hearing was not so much the question as to where the residence order for the older child should go, but the very difficult question of whether the relocation application should be granted or refused.
Accordingly, the case would be remitted for further trial, but not from first beginnings as the judge's findings should be permitted to stand.
The court also recommended that the children should be separately represented: the older child should have his own solicitor and counsel to take his instructions directly and put his case to the court, as he faced the loss not just of the move to Canada but also of living with his father as his primary carer; the younger child would benefit from the appointment of a CAFCASS guardian.

Finally, the court pointed out that the parties would avoid the need for further proceedings if they could contemplate a sensible sharing arrangement that would keep the boys together, giving them the advantage of shared residence; if there were any possibility of a mediated settlement, the court would make immediate arrangements, under its ADR scheme, for the appointment of a mediator with experience in the resolution of cross-border cases.

Digest prepared by Peter Smith, Barrister

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