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B (Children) [2008] EWCA Civ 1034

Application for permission to appeal, with appeal to follow, refusal of mother's application to relocate. Permission granted but appeal dismissed.

The mother was seeking to relocate to Germany, her native country, with the two children of the marriage. The father had also sought residence in the same litigation. At this appeal, counsel for the mother argued that the evidence of an expert witness had weighed too heavily in the judge's decision. That expert witness had provided a written report much earlier in the proceedings, described as "anodyne" by counsel, but had not seen the parents for a year before being called as a witness and cross-examined. In court she was "trenchant" that the relocation would harm the children and their relationship with the father, particularly given the mother's depression. Counsel for the mother queried whether that evidence carried any weight.

In refusing the appeal Thorpe LJ sympathised with that argument but pointed out that counsel had not challenged the evidence at the time. The judge therefore was entitled to place reliance on the expert witnesses evidence.


Case No: B4/2008/1059
Neutral Citation Number: [2008] EWCA Civ 1034
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Tuesday, 22nd July 2008


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(DAR Transcript of
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Mr D Walden-Smith (instructed by Messrs Max Barford & Co) appeared on behalf of the Applicant Mother.
Miss R Amiraftabi (instructed by Messrs Buss Murton) appeared on behalf of the Respondent Father.

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(Approved by Court)
Crown Copyright©

Lord Justice Thorpe:
1. This is the application of MS for permission to appeal the order of HHJ Hallon of 21 April, sitting in the Bromley County Court.  There were before the judge two applications: the lead application was the mother’s for permission to relocate with the children to Germany and the father’s response was an application for a residence order. 

2. The background is of some complexity.  The mother is forty years of age, of German origin.  She arrived in this country in 1999.  She is a qualified general practitioner.  The father is a few years older, of Indian origin, and he is also medically qualified -- he is in fact a consultant paediatric anaesthetist.  The parents married in March 1998 and they have three children: a boy aged nine, a girl aged eight and a little girl aged two, conceived and born after a separation between the parties that commenced in August 2002 and endured for some fifteen months.  During that separation the mother and the two children then born removed to her home town in Germany where they lived in a flat attached to her parents’ property.  When returning to England in November 2003 mother and the two children lived at the family home in Kent, and this reconciliation broke down on 24 June 2006 when there was a violent episode that led to the mother’s application for a non-molestation order against the father. 

3. The mother’s first return to Germany had been achieved either consensually or at least without any application to the court, but when she sought a further return to Germany following the incident of 24 June 2006, her application was opposed and there was a two-day contested hearing before HHJ Hamilton QC, culminating in a judgment of 8 December 2006 which dismissed the mother’s application.  The trial before HHJ Hamilton was aided by expert evidence from a Dr Derry.  Dr Derry was in no doubt at all that the mother was suffering from reactive depression as a result of the breakdown of the marriage, and accordingly her desire again to return to Germany was totally understandable.  However, he was extremely concerned by the mother’s rooted antagonism to the father and her inability to contemplate any contact between the children and the father beyond contact that was of the briefest duration and supervised. 

4. The basis upon which HHJ Hamilton refused the mother plainly emerges from her judgment.  She refused the mother on the basis that there had been no proper investigation of the practicalities.  She said:

“Mother’s decision to move to Germany was made in August, after visiting for a holiday.  She has not, however, established the practicality of this move at present.  She has somewhere to live, a child minding service in place. She has not established whether or when schooling will be available to the children, she hasn’t even visited or contacted any local school. 

Similarly she has not investigated the prospect of employment for her as a GP in Germany.”

5. She however went on to balance whether the application succeeded or failed on a welfare test.  She found:

“…that mother is low, lonely, depressed and anxious.  She has been in this state since her first appearances in court this summer, but has continued to provide good enough parenting to the children. Dr Derry said that if she was forced to stay in England, her stress and depression would increase, as would her emotional difficulties.”

Within the other scale the judge was to find:

“I have no doubt that if it were left to MS, [the father] will be excised from their lives, to their great detriment, given mother’s anxious attachment and the need for an agent to assist in their separation from her and to achieve autonomy.”

Accordingly, on the alternative weighing of welfare interests the judge concluded that the application also failed.

6. Mr Walden Smith, who has presented the mother’s case in this court this morning with attractive moderation, has at once accepted that HHJ Hamilton’s conclusion was unimpeachable. 

7. However, in the interim much had happened.  HHJ Hamilton had contemplated a state of affairs where the order for contact was of the most limited.  It was the order of 18 August 2006, making the children available to the father for supervised contact only, for very limited periods -- 12 noon to 3pm -- on a number of occasions in August 2006, and thereafter on the first and third Saturday of each month, commencing 7 September 2006. 

8. So Mr Walden Smith submitted that the error into which HHJ Hallon fell was to focus on the mother’s inability to recognise the benefits of contact to the father when she had demonstrated such progress since the trial before HHJ Hamilton.  The father’s contact to the children had normalised.  He was having significant staying contact both at weekends and holidays.  That is demonstrated by the order of 30 July 2007, which had been made by HHJ Hallon and which provided a pattern of alternate weekend contact supplemented by a week of summer holiday contact, all on the premise that holiday contact beyond the summer would be dealt with at a subsequent interlocutory hearing, since by paragraph 1 of that order the judge had set down the mother’s renewed application for permission to relocate for a three-day hearing on the first available date after 1 November 2007. 

9. In fact, the first parent to re-engage the court after HHJ Hamilton’s order was the father, who by letter of 19 March 2007 applied to HHJ Hamilton for an early directions hearing on his renewed application for a residence order.  That directions hearing took place on 19 April and it was only on 30 July that the case passed into HHJ Hallon’s court.  It must have become obvious at that directions hearing that the mother had equally renewed her litigation position.  The judge treated her prospective application as the lead application, and her application on form C2 was issued on the following day.  It is perhaps unfortunate that the trial date fixed by the judge on 30 July for January 2008 slid into an April listing because apparently the parties increased the time estimate from three to four days.

10. So what then was the evidence before the judge in April?  Obviously the parents gave oral evidence, as did the social worker who had written a section 37 report on the court’s directions.  The writer, Miss Jagger, adopted a position that was clearly critical of the father, but it did not impress the judge because she concluded that the writer had not paid sufficient heed to the findings of fact made by HHJ Hamilton on the domestic violence issues and accordingly had founded herself on assumptions as to the level of domestic violence that had simply not survived the county court trial.

11. Dr Derry was not a witness before HHJ Hallon because there had been an agreement between the parties that an expert with child and adult psychological experience should be instructed, and the instructions had gone to a Mrs Beazley-Richards, who had last seen the mother on 5 June 2007, and whose report was filed in July 2007.  The report had focussed on the father’s application for the residence order, which was the only live application at the time of Mrs Beazley-Richards’ investigation and report.  The renewed relocation application had yet to be issued, so it is hardly surprising that she did not consider that application anywhere in what Mr Walden Smith has described as “an anodyne report”.  So she was a relevant witness at the April trial on the father’s residence order application, but that was essentially responsive and so it is perhaps mildly surprising that the father’s instructing solicitors gave notice that they required her attendance for cross-examination.  No such notice, understandably, came from the mother’s solicitors.  She was, it seems, not available in April and she gave evidence by telephone link from France.  Again surprisingly, the judge suggested to Mr Walden Smith that he should question her first.  He did not demur and did so.  When it came to Miss Amiraftabi’s turn, she led some pretty strong evidence from the witness on the relocation application which post-dated her written report.  At page 17 of the transcript of her evidence Miss Amiraftabi takes it up with the question:

“In your opinion, Mrs Beazley Richards, what is the impact on the children if this situation is allowed to continue, where they are at risk of emotional harm, where they are not able to speak out freely about the other parent -- what impact is this going to have on them, on their development?”

To that, of course, not surprisingly, the expert said that it would have a very negative effect on their emotional development.  So from that the questioning developed:

“Well, what if mother is allowed to remove the children?”

12. To that Mrs Beazley Richards gave strong evidence to the effect that the consequence would be the portrayal of father as a negative influence not only by the mother, but also by her family in Germany.  That would be very regrettable.  It was inevitable because the mother regards the father as a vile person, and it would not only be regrettable but it would be harmful.  This passage culminates with this observation from the expert:

“That’s why it’s so difficult, isn’t it, because if she doesn’t go to Germany and she stays here, she’s going to feel more resentful, more victimised and they will be exposed to that, she will blame him, and so that will be negative for them, and if she does go, I think that there is a likelihood that they will lose the relationship with their father.  So, I think it’s such an impossible situation for the court.”

13. The judgment makes the clearest findings about the oral evidence and the presentation of each of the parents.  The judge said of the mother:

“The experience I have had in this hearing of the mother has been considerably more extreme.  Her evidence was very lengthy, much of it not dealing with what had been raised or was being investigated by the questions asked.  She was insistent on giving the evidence that she wanted to give.  Attempts to curtail her failed entirely and her persistence in going in detail into matters she wanted to air led her to spend much of her time giving evidence in tears.  When she was recalled to continue cross-examination after Mrs Beazley Richards had given her evidence, so on the afternoon of the second day, she was unable to proceed at all and the court had to rise somewhat early.  She had to leave court during submissions being made by father’s counsel and the only time that I observed her to be calm, and indeed had a smile on her face, was when the father was being cross-examined.  She demonstrated that she is not exercising any control over her emotions, that she is single-minded in her determination to portray herself as a victim and she is contemptuous of anyone who disagrees.  I noted that when being asked about the concerns which Her Honour Judge Hamilton had expressed in her judgment, the mother said, according to my note, ‘I think my application in December 2006 failed because there was concern I would stand in the way of contact and there were a couple of other excuses.’  I accept that she has been diagnosed as suffering from reactive depression but her presentation cannot be explained entirely by that.  Unhappily, those caught up in the difficult and acrimonious family disputes which come before the courts do on occasions suffer from psychological difficulties, including depression.  Much of the mother’s presentation seemed more to be linked to her personality and her determination to achieve her ends.  That is something which I found profoundly worrying.”

By contrast she said of the father:

“Turning then to the father, although he was clearly under pressure when giving evidence, he was careful, thoughtful and to an extent insightful.  He is still highly critical of the mother and frustrated by the intransigence of the problems and the effect on the children’s welfare resulting from the adult dispute, but it was clear from his evidence that he has been patient, he has complied with the mother’s wishes and demands and has endeavoured to ensure that the children are able to enjoy their time with him.”

14. Before the judge much was said about the arrangements for contact that would be proposed if the application succeeded.  The judge considered this important question at considerable length in paragraph 12 of her judgment.  She noted and accepted that contact had progressed from supervised staying contact as it had been, to what I have described as normalised contact, but she did not simply read that on the face of the court orders.  She noted that the mother had frustrated additional staying contact in the period beyond September 2007, both at the Michaelmas half-term and within the Christmas holidays.  She carefully considered the mother’s oral evidence in relation to future contact, which was in many respects open to criticism as being ungenerous.  She then referred at length to the evidence of Mrs Beazley Richards on all this, and finally came to the submission from Mr Walden Smith that the mother’s attitude was in a sense of secondary importance, since contact would be controlled by orders of the court which would be made in England, certified by the judge and automatically enforceable in Germany.  Of that proposition the judge said:

“That undoubtedly is correct, but what it does not deal with is the fundamental difficulty, which I think must be apparent from the evidence which I have already alluded to, that these children will become alienated from their father and that is the mother’s overwhelming desire.”

15. So, having made those findings, the judge went on to weigh -- as HHJ Hamilton had done fifteen months earlier -- on the one hand the mother’s depressive state, likely to be exacerbated by refusal, and the judge’s evaluation of the consequence for relocation, namely the loss of relationship between the children and father.  That of course was precisely the analysis that Mrs Beazley Richards had presented in the passage of oral evidence that I have cited.  So the judge had to take the impossible decision.

16. Mr Walden-Smith has submitted that she took the wrong decision for the reasons which I have already recorded.  He goes on to criticise the evidence of Mrs Beazley Richards, which had progressed from an anodyne written report to trenchant evidence on the newly arisen issue: relocation or no?  How, says Mr Walden Smith, could she offer the judge any useful advice on that difficult question when she had had no cummunication with mother since 5 June; no contact with the case since that date, and openly accepted that she was quite unaware of what had been the developments in the father’s contact arrangements and what was the present state of those arrangements. Effectively Mr Walden Smith says that he was ambushed.

17. I have some real sympathy with that analysis, but the problem for Mr Walden Smith is that he raised no objection at the crucial moment with the witness there before the court answering questions in her live evidence.  He had to challenge; he had to say: “Surely, this is an issue beyond your instructions.  This is not an issue you were asked to consider.  It is not an issue you are capable of considering, because you are bereft of the essential information”.  There is not a hint of that in the transcript.  All Mr Walden Smith requested in re examination was confirmation that she had last seen his client on 5 June.  That concession does not go nearly far enough to support the submission that the evidence was in some way unfair, or should have been disregarded by the judge. The judge was not warned of the qualifications that Mr Walden Smith now seeks to put on Mrs Beazley Richards evidence.  The judge was entitled to place reliance on it.  She was entitled to proceed on the basis of the essential analysis that whichever judgment she issued would harm these children. 

18. She accordingly had to choose between two bad alternatives.  The choice for her was which of these two bad alternatives was the worse.  And the judge was very plainly aware of that because, having reasoned her refusal in paragraph 17 of her judgment, she emphasises the importance of parental cooperation -- an issue that Mrs Beazley Richards had raised in her report of July 2007.  Mrs Beazley Richards had specifically recommended a referral to a specialist clinic.  That had not borne fruit at the time, but at least in his oral evidence the father had indicated a willingness to accept a referral to that clinic.  Unfortunately, the mother in her oral evidence refused to contemplate a referral on the ground that she could not bear to be in the same room as the father.  Accordingly the judge, refusing the application, fully conscious of the impact that that would have on the mother’s well-being and indirectly on the children, said:

“The remedy to a large extent lies in the mother’s hands; her willingness and ability to take the assistance which can be provided.  However, it is not solely in the mother’s hands; it also requires the father to continue further with those aspects, on which I regarded him as insightful, to be able further to understand the mother’s difficulties and to work with whoever actually undertakes, if they do undertake, the counselling which I urge the parties strongly to take, so that he too is better able to work with the mother in the best interests of these children’s welfare.”

19. This is a tragic case, in which the outcomes of two hard-fought applications to the court have both been, if not certainly, then predictably damaging to these children.  It seems to me that that damage will endure until such time as the parents can work together for the sake of the children.

20. So it seems to me that the exhortation expressed by the judge was entirely apt and it should be repeated today at the outcome of this appeal.  The case is highly unusual on its facts and it has been carefully presented by Mr Walden Smith.  Accordingly I would favour granting the permission application but refusing the subsequent appeal on the very simple ground that, although on its face an application with good prospects of success, it failed on the judge’s very clear findings as to the oral evidence and personality of the parties, and on the judge’s clear conclusions as to the fatal effect on the children’s relationship with their father for permitting the application.

21. I would accordingly dismiss the appeal.

Lord Justice Rix: 
22. I agree

Lord Justice Longmore: 
23. I also agree.

Order:  Application granted; appeal dismissed