H (Children), Re, Court of Appeal - Civil Division, July 30, 2001, [2001] Fam Law 870,[2001] 2 FLR 1277,[2001] 2 FLR 77,[2001] 3 FCR 182,[2001] EWCA Civ 1338

Resolution Date:July 30, 2001
Issuing Organization:Civil Division
Actores:H (Children), Re
 
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B1/01/0799

Neutral Citation Number: [2001] EWCA Civ 1338

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE GLOUCESTER COUNTY COURT

(Mr Recorder Greenwood)

Royal Courts of Justice

Strand

London WC2

Monday, 30th July 2001

B e f o r e :

LORD JUSTICE THORPE

MR. JUSTICE ASTILL

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H (CHILDREN)

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(Computer Aided Transcript of the Stenograph Notes

of Smith Bernal Reporting Limited

190 Fleet Street, London EC4A 2AG

Telephone No: 0171-421 4040

Fax No: 0171-831 8838

Official Shorthand Writers to the Court)

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MISS A. PAUFFLEY Q.C. and MISS C. DUTHIE (instructed by Messrs Davies & Partners) appeared on behalf of the Appellant.

MISS M de HAAS Q.C. and MISS T. CRONIN (instructed by Messrs Langley Wellingtons) appeared on behalf of the Respondent

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J U D G M E N TSMITH BERNAL

1. LORD JUSTICE THORPE: JH was born and brought up in Northern Ireland. He left at the age of about 16 and seemingly severed family ties for some years, although resuming them after his marriage to D in 1988. In the years after his removal he has lived principally in the Gloucester area. DH was born and brought up in this country, although her parents originated from Northern Ireland, with the consequence that she has still uncles, aunts and cousins in the Belfast area. There are two children of the marriage, SJ, who was born in July 1991 and who is 10, and R, born in February 1996, now aged 5.

2. The separation occurred in December 1997 when S would have been about 6 and R not quite 2. Unusually, at the point of separation it was the mother who left the family home and the children to make an independent life for herself. Having briefly stayed with her parents she then found a two bedroomed flat of her own. The father gave up his work in order to become a full time carer for the children. He has been dependent on state benefits since. By contrast, the mother has worked throughout. She is an administrator in a firm, either designing or manufacturing aircraft parts. She earns a salary reflected in CSA assessments to pay £300 a month to the father for the maintenance of the two children. Sadly, the mother has become psychologically dependent on alcohol, a dependency which has been treated for some time now by a local consultant psychiatrist, Dr. Fear.

3. The parties divorced in July 1998, and in April 1999 the father announced his intention of returning to Northern Ireland with the two children. That prompted a court application by the mother, issued in June 1999, for, firstly, a residence order; secondly, a prohibited steps order to stop the threatened move and, thirdly, for a contact order. The father's cross application of October 1999 was, first, for a residence order and, second, for a specific issue order enabling him to remove himself and the children to Northern Ireland.

4. Those applications came for hearing before His Honour Judge Hutton on 23rd and 24th March 2000. We do not have a transcript of his judgment, but counsel who appeared at that hearing have agreed a note. Within that note I cite the following excerpts: First:

``Subject to the mother being cured of her alcoholism, I find the mother entirely suitable to care for the children. She appears more sympathetic of the children's needs and would be the preferable carer. . . .

Second:

I am not convinced by the father's supposed desire to move to Northern Ireland where members of his family live. I suspect that his supposed desire to do so has rather more to do with thwarting the mother's application for residence or out of spite. From the age of 16 or 17, when he joined the Army, he has been very little in Northern Ireland and indicated no wish to return there. He has visited no more than once a year on average, at most. He has no accommodation fixed up and no employment. He hopes he would be able to get both. I have no doubt that he would be able to sort out suitable accommodation and employment.''

5. The third citation:

``I reject, at least for now, the mother's application for a residence order. I grant interim residence to the father. I have decided, on the submissions of mother's counsel, to make an interim order because it might be preferable for the children to be living with their mother. I reject the father's application to remove the children from the jurisdiction.''

6. The order drawn to reflect that judgment provided for a detailed contact order, including two weekends out of three, staying contact from Saturday morning to Sunday evening, with a return in December 2000, and for a relisting of the mother's application for residence in nine months with a time estimate of one day. In the interim, the court ordered the submission of tests to substantiate whether the mother could achieve abstinence from alcohol in the interim.

7. The next hearing was not listed in front of Judge Hutton as, in my opinion, it should have been. It is important in these cases that there should be continuity of judicial decision-making. The case came on in front of Mr. Recorder Greenwood, of whom I make no criticism at all. He dealt with the case thoroughly and conscientiously in place of the previous judge. The evidence before him established plainly that the mother had not achieved the abstinence that the first judgment gave opportunity for. As well as expert evidence from Dr. Fear in that quarter, the judge had a further appraisal from the court welfare officer who had reported to Judge Hutton. The order that the Recorder made was to enlarge the father's interim to a full residence order and to dismiss the mother's cross application. He then went on to make an order prohibiting the father from removing the children to Northern Ireland, save for periods of more than 14 days for the purposes of holidays. In paragraph 4 he more or less continued the contact regime provided for by Judge Hutton, and he set up a further hearing in December 2001, in preparation for which he sought an additional...

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