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S (A Child) [2002] EWCA Civ 1795

Appeal by mother against an order restraining her from moving her daughter to Cornwall.

Case No: B1/2002/1455

Neutral Citation Number: [2002] EWCA Civ 1795




(His Honour Judge David Ellis)

Royal Courts of Justice

Strand, London, WC2A 2LL

Wednesday, 4th December 2002.

Before :





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(Transcript of the Handed Down Judgment of Smith Bernal Reporting Limited,

190 Fleet Street

London EC4A 2AG

Tel No: 020 7421 4040, Fax No: 020 7831 8838

Official Shorthand Writers to the Court)

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Mr Mark Twomey (instructed by Grants) for the Applicant

Mr David Vavrecka (instructed by White and Sherwin) for the Respondent

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As Approved by the Court

Crown Copyright ©

Dame Elizabeth Butler-Sloss, P. :

1. This appeal arises in unusual and difficult circumstances. It is the second time the mother of a child called Victoria has appealed to the Court of Appeal. The present appeal is from the second order of His Honour Judge Ellis in the Croydon County Court made on 28th June 2002. Permission to appeal was refused by the judge but granted by Thorpe LJ. At the hearing of the second appeal we dismissed the appeal and upheld the imposition of a condition on a residence order prohibiting the mother from moving Victoria to live in Cornwall. We reserved our reasons for that decision.

The history

2. Victoria was born on 18th March 1993 and is 9½. She suffers from Downs Syndrome and has a serious heart condition and respiratory problems. She has a limited life span and she will be fortunate to live beyond the age of 20. She has moderate learning difficulties.

3. The parents married on 17th August 1991 and separated when Victoria was 18 months old in August of 1994. The child has always lived with her mother. She is the only child of the marriage. The parents divorced in 1995. Up to now Victoria has had regular and frequent contact with the father with whom she has a close relationship. She also meets her paternal grandmother regularly and has a close relationship with her. There is no doubt that Victoria is loved and cherished by both parents.

4. Both parents and Victoria live in South London. After the divorce the mother thought she might to settle in New Zealand and then that she might settle in Australia and take Victoria with her. In October 1995 she married her second husband. A son was born to that marriage, Jamie, on 18th August 1996. Jamie is 5½ and he is very close to his sister Victoria. In December 1996 Victoria was very ill and her survival was viewed by the doctors as nearly miraculous. After this illness the plans to go to Australia were abandoned. In May of 1998 the mother and the second husband separated. The mother has continued to live in South London in a house jointly owned by her and the second husband. It is small with stairs and only two bedrooms so that Victoria and Jamie have to share. Both the size of the house and the problem of stairs make it unsuitable for the future care of Victoria.

5. In March 1999 the mother met her new partner, C. He is a Cornishman and came to London to earn enough money to repair and refurbish a bungalow owned by him in Cornwall. C has had a job since 1999 in the London area. His plan was, and remains, to return to live in his bungalow once the refurbishment is complete. His widowed mother, who is dependent on him to a considerable extent, and other members of his family live in the same area as he has his bungalow. The mother and C do not live together but they spend weekends and holidays together and he visits the mother and the children regularly during the week. They go together with the children to visit C's mother in Cornwall. The journey between South London and Cornwall is approximately seven hours by car. The mother wishes to marry C and move with him and the children to Cornwall. The plan in 1999 was to move 18 months to two years later. In 2000 the father married his second wife, G.

The first proceedings

6. The father made applications in 1999 in order to forestall the move of the mother to Cornwall. The mother did not make an application. The father sought section 8 orders under the Children Act 1989, a Residence Order, a Prohibited Steps Order and a Contact Order. On 24th October 2000 His Honour Judge Ellis in the Croydon County Court gave his first judgment in this case. One expert witness was called, Dr Bichard who is a chartered educational psychologist. There was, and is, no dispute that Victoria should continue to live with her mother. The dispute in 2000 was in relation to the anticipated move to Cornwall then, as I have set out, 18months to two years from the October 2000 hearing. It was accepted that, until the move to Cornwall, there would be regular and frequent staying contact between Victoria and her father and his family. The judge made a Residence Order to the mother and attached to the Residence Order a condition that she was not to move to Cornwall without leave of the court.

The first appeal

7. The mother appealed to the Court of Appeal with permission of the judge on 11th May 2002. The Court of Appeal remitted the case to the County Court for a re-hearing. In his judgment, Thorpe LJ identified a lacuna in the evidence before the trial judge, in that the evidence concentrated on the emotional impact on Victoria of a move. It did not give any indication of the impact on the family and in particular the effect on the mother of the frustration of her proposal to make this important move with her family to Cornwall. I will return later to closer consideration of the judgment of the Court of Appeal reported as re S (a Child)(Residence Order:Condition) [2001] 3 FCR154,

The second proceedings

8. The second stage of this case was the gathering of further evidence before the trial judge. Judge Ellis offered to withdraw since the case had been remitted by the Court of Appeal to the County Court. Both parties and their legal advisers asked him to continue to try the case. Dr Bichard was asked to prepare a second report although it was agreed that she should not see the child again. Dr Judith Trowell, a Consultant Child and Adolescent Psychiatrist, was asked to provide a report about the family and the child. She wrote a report and gave oral evidence. The judge heard the case second time round over several days in June and gave judgment on 28th June 2002. The judge again held that the mother should not take Victoria to live in Cornwall without leave of the court and again attached the condition not to move to Cornwall in his Order.

The second appeal

9. This is the second appeal to the Court of Appeal by the mother. On this occasion the evidence from a child and adolescent psychiatrist filled the gap in the evidence identified on the previous appeal. The same problems however arises on this appeal as on the former appeal and they raise two competing principles:

i) The appellate court, in accordance with the decision of the House of Lords in G v G (Minors: Custody Appeal) [1985] FLR 894; [1985] 1 WLR 647 ought not readily to interfere with the decision of a competent and conscientious judge who has taken into account the relevant factors and has exercised his discretion to arrive at his conclusion in favour of the child remaining in the London area.

ii) The principle enunciated in Re: E (Residence: Imposition of Conditions) [1997] 2 FLR 638 that the court ought not in other than exceptional circumstances to impose a condition on a Residence Order to a primary carer who is providing entirely appropriate care for the child.

The law

10. Section 1(1) of the Children Act 1989 applies the paramountcy principle. Section 1 has to be read subject to Article 8 of the European Convention which provides, inter alia, for the rights of the mother, the father and the child. There are issues relating to the rights of the parents but, in my judgment, the welfare of this child in her very special circumstances is the most important factor for the attention of this court as the court below.

11. The starting point is section 11(7) of the Children Act which states that a section 8 order may-

a) contain directions about how it is to be carried into effect;

b) impose conditions which must be complied with by any person-

i) in whose favour the order is made;

ii) who is a parent of the child concerned;

iii) who is not a parent of his but who has parental responsibility for him; or

iv) with whom the child is living;

and to whom the conditions are expressed to apply;

(i) c) to be made to have effect for a specified period, or contain provisions which are to have effect for a specified period;

(b) d) make such incidental, supplemental or consequential provision as the court thinks fit."

12. The statute therefore provides for the imposition of conditions on a parent with a residence order under section 8. In re E (above) this Court considered the circumstances in which conditions should be imposed on a parent granted the primary care of a child. In that case there were cross-applications for a residence order by the mother and father of two children. The mother wished to remove the children from London to Blackpool. The mother's family lived there. The father sought similar orders to those in the present case. His side of the family lived, as he did, in the London area. The judge granted the mother a residence order subject to a condition that the children continued to reside at an address in London.

13. On appeal this Court followed an earlier decision in re D (Imposition of Conditions) [1996] 2 FLR 281 where a restriction on with whom the mother would live was set aside. I said at page 642C

"A general imposition of conditions on residence orders was clearly not contemplated by Parliament and where the parent is entirely suitable and the court intends to make a residence order in favour of that parent, a condition of residence is in my view an unwarranted imposition upon the right of the parent to choose where he/she will live within the UK or with whom. There may be exceptional cases, for instance, where the court, in the private law context, has concerns about the ability of the parent to be granted a residence order to be a satisfactory carer but there is no better solution than to place the child with that parent. The court might consider it necessary to keep some control over the parent by way of conditions which include a condition of residence. Again, in public law cases involving local authorities, where a residence order may be made by the court in preference to a care order, s 11(7) conditions might be applied in somewhat different circumstances.

The correct approach is to look at the issue of where the children will live as one of the relevant factors in the context of the cross-applications for residence and not as a separate issue divorced from the question of residence. If the case is finely balanced between the respective advantages and disadvantages of the parents, the proposals put forward by each parent will assume considerable importance. If one parent's plan is to remove the children against their wishes to a part of the country less suitable for them, it is an important factor to be taken into account by the court and might persuade the court in some cases to make a residence order in favour of the other parent. But, on the facts of the present appeal, it is clear that the welfare of the children points firmly to their living with their mother, and the advantage of remaining in London is outweighed by the other factors leading to granting a residence order to the mother."

14. My judgment at page 642 appears to have been read in later cases as creating, in effect, a total bar on the imposition of conditions unless there are doubts about the suitability of the primary carer or for some other reason it is necessary to keep some control on the resident parent. In the first appeal in the present case, re S, Thorpe LJ set out in his judgment the submission of Miss Gumbel QC, then acting for the appellant mother, in the following terms at page 158

" Miss Gumbel particularly submits that in so far as Butler-Sloss LJ contemplated the possibility of there ever being a condition as to location, that contemplation was restricted to cases where the court had direct concerns about the ability of the primary carer to achieve satisfactory standards."

15. He continued at page 160 paragraph 24

"I am in no doubt that, in defining the possibility of exception, Butler-Sloss LJ was guarding against the danger of never saying never in family law litigation. The whole tenor of her judgment is plain to me, in that she was giving the clearest guide to courts of trial that, whereas it was not safe to say never in cases in which the imposition of such a condition would be justified, it would be highly exceptional and probably restricted to a case, as yet unforeseen and may be difficult to foresee, in which the ability of the primary carer to perform to a satisfactory level required the buttress of a s 11(7) order.

Certainly, in my opinion, her judgment is not to be interpreted as giving trial judges a general latitude to strive for some sort of ideal over and above the rival proposals of the available primary carers. As is well argued in the appellant's skeleton, that approach could lead to quite unsustainable restrictions on ordinary adult liberties, extending even to the secondary carer's chosen way of life."

16. Clarke LJ in his judgment said at page 162

"I do not read Butler-Sloss LJ as specifying precisely what cases would amount to exceptional cases and what would not. She simply gave some particular examples. I do not read her judgment as limiting the exceptional cases to the cases where the court was concerned about the capabilities of the primary carer. To my mind, it could scarcely do so given the words of the statute. However, I entirely accept the proposition that the court should not ordinarily dictate to the primary carer where he or she should live. Thus Butler-Sloss LJ made it clear, for example, that the court must not impose conditions simply because the proposals for the particular child are not ideal.

I entirely agree with Thorpe LJ that the subsection should not be interpreted as giving trial judges a general discretion to strive for some ideal situation. A condition should only be imposed in genuinely exceptional cases."

17. In accordance with the decisions which I set out above, the general principle is clear that a suitable parent entrusted with the primary care of a child by way of a residence order should be able to choose where he/she will live and with whom. It will be most unusual for a court to interfere with that general right of the primary carer. There will however be exceptional circumstances in which conditions will have, in order to protect the best interests of the child, to be imposed albeit those conditions will interfere with the general right to choose where to live within the United Kingdom. I did not intend in my judgment in re E to exclude the possibility that an exceptional case might arise in which a parent against whom there is no complaint might nonetheless have to face some restriction of movement. Section 11(7) provides a safety net to allow for the exercise of discretion under the provisions of section 1 where the paramountcy of the welfare of the child exceptionally requires the court to impose restrictions upon the primary carer which otherwise would be unacceptable. I could not, as Clarke LJ pointed out in paragraph 34, in accordance with the wording of section 11(7) shut the door on the exceptional case. I respectfully agree with the interpretation given by Clarke LJ to that passage in my judgment.

18. I make one further point about my judgment in re E, for the avoidance of doubt. I expressed the view at page 643 that the principles set out in a long line of authorities on the provisions of section 13(1)(b), the requirement for leave to remove a child permanently from the jurisdiction, had no application to section 11(7) conditions. Thorpe LJ said in re S at page 158

"The jurisprudence in those cases that are now caught by s 13(1)(b) had been established over the course of more than 30 years by the decisions of this court which recognise the great importance of not imposing on primary carers' restrictions on their freedom to choose their preferred way of family life and their preferred place of residence for two good reasons. The first is that often the notion of such restrictions are simply contrary to good sense and, secondly, because the imposition of restrictions is likely to have an adverse effect on the welfare of the children indirectly through the emotional and psychological disturbance caused to the primary carer by denial of the freedom to exercise reasonable choice."

19. Thorpe LJ then referred to the case of Payne v Payne [2001] 1 FCR 425 in which he and I in our judgments reconsidered the correct approach to the permanent removal of children from the jurisdiction. He said at page 159

"With that I am in complete agreement in the sense that it is not ordinarily necessary for primary carers who seek to make a local move to have to clear the various hurdles that confront an applicant for permission to move out of the United Kingdom. In such cases the applicant has to demonstrate that he or she has made a thorough research and exploration of the circumstances and conditions in the country to which he or she aspires to relocate and that the proposals are practical and reasonable. Such an applicant also has to meet whatever opposition there may be from the secondary carer on the front of reduction of contact or other suggested adverse consequences of relocation. Whatever tests are applied to the applicant under s 13(1)(b), they must inevitably be more stringent than the tests applied to the primary carer seeking a purely local relocation."

20. I do not consider there is any real difference of approach between Thorpe LJ and myself as to the relevance of the principles under sections 11(7) and !3(1)(b) of the Children Act. An applicant for a residence order within the United Kingdom is not expected to overcome the hurdles set out in the judgments in Payne. Thorpe LJ said in re S at page 158

"…..there is an implicit consequence that within the United Kingdom the court will not ordinarily seek to dictate the primary carer's place of residence."

21. I respectfully agree. Clarke LJ in re S set out the relative positions of the two types of application with, if I may respectfully say so, admirable clarity at page 163, paragraph 37

"Thus the rule is clear in both classes of case. The principal carer will ordinarily be entitled to move to wherever he or she wishes. However, in the Payne v Payne class of case, the application to remove the child from the United Kingdom will ordinarily be granted unless the court concludes that it is incompatible with the welfare of the child. In the present case, no condition restricting the area of residence will be imposed save in exceptional cases. As I see it, no case will be an exceptional case unless the absence of such a condition would be incompatible with the welfare of the child."

Application of the law to this appeal

22. There is a strong case for the mother to move. She has always wanted to do so. She has found a new partner and wishes to marry him and make her home with him. Naturally she wishes to take Victoria and Jamie with her as part of her new family. C is a Cornishman and wishes to return to his own area, his widowed mother who depends on him and his wider family and friends. He has a suitable, recently refurbished bungalow for the family and the present accommodation is unsatisfactory. The mother is and always has been the primary carer and there is no suggestion that Victoria will not remain with her for the rest of her childhood and probably her life. C is torn between his strong desire to return home and his relationship with the mother. There is medical evidence that the mother has been suffering from depression and it is clear that a decision not to allow her to take Victoria to Cornwall will be a bitter blow to her and to C. In any but the most exceptional circumstances it would be unthinkable not to permit this mother, against whom there is no criticism for her care of Victoria, live where she chooses within the United Kingdom.

23. An exceptional case means truly exceptional and there will be few of them. The question, therefore, in the light of the mother's case to support her proposed move to Cornwall, is whether this case comes within that exceptional category.

The evidence before the judge

24. The trial judge has nonetheless twice held that the welfare of Victoria required him to impose a condition on the mother not to move Victoria to Cornwall. In coming to that decision he relied to a great extent on the evidence of the mental health professionals. I turn first to the expert evidence called at the first hearing, since Dr Bichard gave a report and oral evidence at both hearings and her recommendations remained the same. The judge found her evidence to be very impressive. Her evidence was supported by the court welfare officer who did not give evidence. Mrs Bichard gave a firm indication that Victoria should remain in the Croydon area. Her prime concern if the move took place to Cornwall was the effect on contact between Victoria and her father. She said that the attachment of Victoria to her father and his second wife, G, was very strong and affectionate. After the move, there would be a burden on the father and his second wife and a burden on Victoria having regard to her health problems. The effect of a move on Victoria would be considerable because of her lack of ability to understand abstract ideas or conceptualise. Her approach to all matters was a very concrete one. Consequently she would lack the ability to understand the loss of her father when she moved further away from him. Long gaps might cause Victoria to be anxious and begin to feel rejected. A distinction was drawn between Victoria and an able child who would be less affected by the absence of regular and frequent contact. An able child would be able to have longer staying contact which was less frequent and in between use the telephone or email. Victoria has a limited tolerance to change and might find it difficult to adjust to a new school and a new home. The paternal grandmother was also an important figure. At the first hearing the judge accepted the opinion of Dr Bichard. He held that the special needs of Victoria, her significant learning disability and her reduced life expectancy placed her at serious risk of emotional harm. The court would be failing to put Victoria's welfare first if a condition was not imposed.

25. At the second hearing, the up to date evidence about Victoria was that she had had unsuccessful surgical intervention and was found to be suffering from irreversible pulmonary hypertension which was not capable of improvement. She remained moderately disabled in the learning range with a mental age of under five. She continued to have good staying contact with her father including holiday staying contact. Her relationship with her paternal grandmother had remained very close. The present home of the mother who occupied it with the two children was as, if not more unsuitable, than it had been at the previous hearing. Clearly a bungalow would be better. The father's second wife, G, had made an offer to make a financial contribution to the purchase of a new house in the South East. There was no issue on the school. The judge found a change of schooling was not crucial to his decision.

26. Dr Bichard reiterated her concerns that there would be long gaps in the time between contact visits and this would provide for anxiety by Victoria and she might feel rejected by her paternal family. Dr Bichard stressed that a child of Victoria's limited ability needed frequent contact to ensure that the father and paternal grandmother remained an important part of her life. Long gaps between visits would engender anxiety and she would begin to feel rejected. Children with lower IQs had a limited ability to tolerate change as they could not draw abstract conclusions about experiences in their lives. Physical contact with and the physical presence of the non-resident parent were very important for such children. Victoria needed stability and reassurance that the level of care and attention she had received from both parents was to be maintained. Unlike an adult a child in Victoria's position had no strategies available to her to cope with disappointment.

27. Dr Trowell prepared her report in conjunction with her team at the Tavistock clinic. She felt it would be impossible to say for certain whether moving to Cornwall would have long term adverse emotional and psychological effects on Victoria. She might be assisted by role play and listening to stories which involved moving house. It would be important to make sure that Victoria was helped to make the same kind of social and emotional connections that she might lose as a result of moving to Cornwall. Victoria was of an age when longer, less frequent contact could work as well. Change would not be easy for her but she could manage it if well prepared. She tired easily physically and her heart condition meant that she would decrease in what she could do. She was quite frail and vulnerable. The Down's Syndrome and her heart condition left her very restricted. She had no sense of time and her concentration was very brief. She thought in a very concrete way and had difficulty in holding on to ideas. She found it difficult to follow and remember what was happening and where anyone was.

28. Dr Trowell commented on the emotional investment made by the mother in her relationship with C. She had become distressed and depressed during the proceedings and would be very distressed indeed if she could not move with C. She was emotionally vulnerable.

29. She considered that Victoria could adjust to change. She would find it difficult to cope with her mother's distress or her father's distress. In her conclusions she set out the advantages and disadvantages of each course of action. Unlike Dr Bichard, she did not give a clear recommendation to the judge. She said

" Victoria is in a no win situation. If [the mother] cannot move to her new life with [C] she will become distressed, resentful and bitter and Victoria will feel the impact of this as the cause of her mother's dissatisfaction.

If [the mother] can move to Cornwall and Victoria goes with her, Victoria will be very aware of [the father's] deep distress and she will have to cope with contact changing considerably in terms of the context and all the activities [the father] and [step-mother] provide. The journey will be long and tiring and the duration of contact reduced although this could be compensated for by longer holiday stay."

30. Dr Trowell said that both families were desperate about the situation.

" The dynamics in the two households and between the two households impact on Victoria causing confusion and distress. Victoria's lack of abstract and hypothetical thinking mean she cannot grasp the situation……..

On balance given Victoria spends 10 days of every two weeks with her mother and her household, the emotional environment there has the most impact. The distress and instability of her mother could have a major impact on Victoria.

If [the mother] and [C] could set up home together in the South East this would seem the best compromise and the Cornwall house could be for holidays and the future, or if need be sold and a new property purchased at a future date.

Ideally the two households should be in close proximity. If staying in the South East really is not possible [the father] and [G] would need to have long weekends in Cornwall and longer holiday visits with Victoria as well as weekend contacts in London where she was brought up. This arrangement would not be easy for any of them."

31. She and Dr Bichard discussed their views and in a letter from Dr Trowell on the 20th May 2002 she said that they agreed that

" Victoria' s relationship with her father is important and should be sustained and if possible the mother and C should be encouraged to live in the South East. As Victoria deteriorates, whenever this is, long journeys will become a problem.

However we disagreed about the importance of [the mother's] relationship with [C]. It did seem to me that if this relationship foundered because of the constraints of victoria and her father the consequences could be worrying.

[The mother] has made a major commitment to [C], this relationship is very important to her. It would be detrimental to her mental health and thence to her care and relationship with Victoria and to some extent Jamie if this relationship could not be sustained."

32. At the second hearing the judge had the evidence about the impact on the mother of the proceedings and the concerns for the future. It is clear from the first page of his second judgment that he had in the forefront of his mind the adverse effect on her of a refusal to allow her to move Victoria to Cornwall. The bungalow in Cornwall was now ready for occupation and the mother and C wished to marry and wished to move there in the summer 2002. There was a psychiatric report on the mother by a Dr Khan dated 22nd October 2002 which set out the mother was suffering from a reactive depression and was on antidepressants. There was evidence before the judge that the effect of the court proceedings had also been adverse to the father who was unable to work. The judge held in his second judgment that

" the crucial aspect of the case turns on Vicky's emotional needs, the likely effect of any change in her circumstances and the risk of her suffering emotional harm."

33. He summarised the evidence of the two experts and concluded that their difference of opinion about the direct impact on Victoria of the move to Cornwall resulted from their different perception of the continuity of contact following the move. Dr Trowell was more sanguine about the practicalities of contact than Dr Bichard. The judge identified the effectiveness of future contact as a factual issue which he had to decide. He considered in detail the proposals and found that the mother continued to under-estimate the difficulties of contact after the move. He found that the probabilities were that the parties would not be able to maintain the regime of regular and frequent contact that Victoria needed. He found that Dr Trowell's assumption of continuing regular and frequent contact were not borne out by the conclusions to which he came on the practicalities of future contact. That finding is, in my judgment, crucial to the outcome of this case. The judge concluded that there was a very real risk as identified by Dr Bichard, that Victoria would suffer emotional harm if she moved to Cornwall.

34. Mr Twomey, for the mother in his admirable submissions to us, criticised the judge for failing to give reasons for preferring the evidence of Dr Bichard to that of Dr Trowell. On a rereading of the judge's judgment, it seems clear to me that it was on the basis that he found the contact could not, on the balance of probabilities, be effectively maintained that he preferred the evidence of Dr Bichard to Dr Trowell.

35. The judge then carefully considered the impact on the mother and on C and their relationship if they were not allowed to take Victoria to Cornwall. Dr Trowell told the judge that the mother would do her best to cope and and accepted that the mother would manage her distress to avoid it impinging on Victoria. C was torn between the mother and his commitment to Cornwall. He would not be happy living in the South East but they would defer the planned move. The judge then said

"I conclude, for the reasons given, that although there is a significant risk that the mother will suffer distress if the court prevents her from moving to Cornwall, it will not adversely affect her capacity to meet Vicky's needs and the risk of it having an adverse impact on Vicky and causing her emotional harm is not as great as the risk to Vicky of suffering serious emotional harm if there is a move to Cornwall……….

In my judgment Vicky's special characteristics combined with the significant risk of her suffering serious emotional harm, which can be avoided by the imposition of a condition, make this a highly exceptional case."

36. As Dr Trowell said, this is a no win situation. Although Dr Trowell laid stress in her report and subsequent letter on the risk to the mother's emotional welfare of a prohibition on the proposed move to Cornwall, the judge found that her assumption of continuing good contact was not sustainable in the light of his finding on the evidence. It is clear from the way in which Dr Trowell expressed her conclusions in her report that the best compromise would be for the mother and C to be encouraged set up house in the South East and ideally for the two households to be in close proximity.

37. I am satisfied that the judge was entitled to treat this as an exceptional case. He was faced with an impossible task which he carried out carefully and conscientiously and with understanding of the conflicting emotions and issues which faced him. He considered and applied the principles set out in re E and had regard to the rights of the parents under Article 8. He carried out the unusually difficult balancing exercise and came to a conclusion which in my view cannot be faulted. His exercise of discretion on the facts and on his view of the witnesses is not to be set aside by an appellate court without very good grounds to do so. It is not for the Court of Appeal to substitute its own view of the outcome where the judge has heard all the relevant witnesses and has the inestimable advantage of getting the feel of the case unless the judge has failed to direct himself correctly or has otherwise come to an obviously wrong conclusion. There is no obviously correct decision in this exceptionally difficult case which turns on the assessment of future risk to the emotional wellbeing of a delightful but seriously disadvantaged child. This is pre-eminently a case in which G v G should apply and the exercise of discretion by the judge should not be set aside by the appellate court. For these reasons, in my judgment, this court was right to uphold the decision of the trial judge.

Lord Justice Laws:

38. I gratefully adopt the account of the facts, and the review of the learning, given in the President's judgment which I have had the advantage of reading in draft. I agree that this appeal should be dismissed for all the reasons given by her. With great diffidence I add a few words of my own only because, as the President indicates at paragraph 15, her judgment in E [1997] 2FLR 638 at 642 appears to have been understood as indicating that there should be a total prohibition upon the imposition of conditions under Section 11(7) of the Children Act 1989 save only where the primary carers' suitability is in question.

39. The jurisprudence shows that the imposition, under Section 11(7), of conditions upon a residence order is something to be contemplated only in exceptional circumstances. However, to borrow a phrase from another area of the law, the categories of what is exceptional are not closed; nor was my Lady suggesting in E that they were. Indeed they could not be: to formulate a definition of exceptional circumstances, whether inclusive or exclusive, would be to transform a broad principle into a hard-edged rule. But hard-edged rules are made if at all by the statute, not by the courts.

40. Here, applying the general principle, the Judge was in my view wholly entitled to treat the case as exceptional. The combination of this little girl's disability and medical problems, the limits of her understanding, her foreshortened life expectancy, and the practicalities of travel between south London and Cornwall amply suffice to produce that result.

Waller L.J.

41. I have had the opportunity of reading in draft the judgment of the President and the judgment of Laws L.J. I agree with them, and there is nothing I can usefully add.

ORDER: Appeal dismissed

(Order does not form part of the approved judgment)