L v F, Court of Appeal - Civil Division, December 20, 2017, [2017] EWCA Civ 2121

Issuing Organization:Civil Division
Actores:L v F
Resolution Date:December 20, 2017
 
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Case No: B4/2017/2473

Neutral Citation Number: [2017] EWCA Civ 2121

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM MS JUSTICE RUSSELL

2017/0021; OX16P00167

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 20/12/2017

Before :

LORD JUSTICE PETER JACKSON

LORD JUSTICE NEWEY

and

LORD JUSTICE SINGH

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Between :

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Damian Garrido QC and Rob George (Bar Pro Bono Unit) for the Appellant

Michael Bailey (Direct Access) for the Respondent

Hearing date : 7 December 2017

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JUDGMENTJUDGMENT: Re L (Relocation: Second Appeal)

Lord Justice Peter Jackson:

Summary

  1. This is an appeal from a decision of Ms Justice Russell, by which she allowed an appeal from a relocation decision of Her Honour Judge Owens in the Family Court at Oxford. It is the first occasion on which the Court of Appeal has considered a second appeal from the High Court since the introduction in October 2016 of the new routes of appeal in private law family cases. Permission to appeal was granted by Macur LJ on 18 September 2017 on the basis of what she described as flaws in the appeal judgment that provided a compelling reason for this court to hear the case.

  2. The task of the High Court when acting as an appellate court in family proceedings is governed by Rule 30.12 of the Family Procedure Rules 2010, which is equivalent to Rule 52.11 of the Civil Procedure Rules 1998 as it applies to the Court of Appeal. Rule 30.12 reads:

    ``Hearing of appeals

    30.12 -- (1) Every appeal will be limited to a review of the decision of the lower court unless--

    (a) an enactment or practice direction makes different provision for a particular category of appeal; or

    (b) the court considers that in the circumstances of an individual appeal it would be in the interests of justice to hold a re-hearing.

    (2) Unless it orders otherwise, the appeal court will not receive--

    (a) oral evidence; or

    (b) evidence which was not before the lower court.

    (3) The appeal court will allow an appeal where the decision of the lower court was--

    (a) wrong; or

    (b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court.

    (4) The appeal court may draw any inference of fact which it considers justified on the evidence.

    (5) At the hearing of the appeal a party may not rely on a matter not contained in that party's appeal notice unless the appeal court gives permission.''

  3. So, in normal circumstances an appeal is to be a review of the decision of the lower court, based on the evidence available to that court and circumscribed by the matters raised in the notice of appeal. The appeal court will allow the appeal where the lower court's decision is wrong, or where it is unjust because of a serious procedural or other irregularity.

  4. In the present case, my conclusion is that the decision of HHJ Owens was not wrong or unjust in any way. Instead, the decision on appeal was regrettably both wrong and unjust because of serious procedural irregularity. The main basis on which the appeal was allowed by Russell J arose from a legal argument that had not been raised in the grounds of appeal, had not been addressed by either party, and was in any event incorrect. Her other criticisms of the approach of the trial judge cannot be sustained, and in certain respects she went beyond the proper reviewing role of an appeal court.

    The background

  5. The case concerns D, a boy now aged 5. His parents are both Italian nationals, who have known each other for over twenty years. The father moved to England in 2001 and the mother in 2003. The following year, their relationship began and they lived together, with each of them working.

  6. In 2012, D was born. Both parents were involved in his care. In mid-2015, the father lost his job and remained at home for a time. By then there were difficulties in the parents' relationship, and they considered moving to live elsewhere in Europe. However, their relationship finally broke down after a visit to Italy in November 2015. On their return, they continued to live together in a state of great unhappiness until the father moved out of the rented home in April 2016 and the mother moved elsewhere in May. Care of D was shared equally between them from then on.

  7. On 4 April 2016, the mother issued an application in the Family Court seeking permission to remove D to live in the parents' home region in Italy. If she was unsuccessful in obtaining this permission and had to remain in England, she proposed that D should live with her and stay with his father on five days a fortnight in term time and half the school holidays. The father opposed the mother's application to relocate and proposed that they should share the care of D equally.

  8. The key dates thereafter are these:

    · On 26 May 2016, the Cafcass safeguarding letter was filed.

    · On 1 June, the mother's application came before a District Judge for the first time.

    · In July/August, the parents filed their first statements.

    · On 23 August, the Cafcass officer filed her report.

    · On 24 August, there was a second hearing, this time before a different District Judge.

    · In December, the parents filed their second statements.

    · On 23 December, the Cafcass officer filed her supplemental report.

    · On 12/13 January 2017, the final hearing took place before HHJ Owens. Both parents were represented by counsel, as they had been at the hearings before the District Judges.

    · On 5 February, the mother sought permission to appeal to the High Court. The matter was listed for an oral hearing of that application, with the appeal to follow if permission was granted.

    · On 5 May, the hearing before Russell J took place. The mother was represented for the first time by Mr Michael Bailey, who has represented her in this court. The father appeared in person with a McKenzie Friend.

    · On 26 May, the judgment of Russell J was handed down in draft.

    · On 27 May, the order of Russell J was sealed.

    · On 9 June, the judgment of Russell J was published: http://www.bailii.org/ew/cases/EWHC/Fam/2017/1377.html

    · On 4 September, the father sought permission to appeal to this Court, the delay being due to time spent finding pro bono representation.

    · On 18 September, Macur LJ granted permission to appeal.

    · On 7 December, the appeal hearing before us took place, and we reserved judgment.

    The decision-making framework in the Family Court

  9. The ultimate decision in this case of course turned on the court's assessment of D's welfare, having regard to the matters in the welfare checklist at s.1(3) Children Act 1989. Procedurally, the case had to be dealt with in accordance with the Family Procedure Rules 2010. In particular, the overriding objective required the court to deal with the case justly, having regard to any welfare issues involved (r.1(1)), and in a way that was proportionate to the nature, importance and complexity of the issues (r.1(2)(b)).

  10. More particularly, the procedure for an application of this kind is laid down in Part 12 of the Rules, where Rules and Practice Directions make provision for every aspect of the process. For present purposes, the central procedural pillar is contained in Practice Direction 12B - the Child Arrangements Programme (CAP). This comprehensive code is designed to promote safe, child-focused solutions, preferably by agreement. Some salient features for present purposes are:

    · The applicant can complete a Supplemental Information Form C1A to accompany the main application form. This makes the court aware of any domestic abuse that they or the child has experienced; the respondent is given a copy of the form on which to reply.

    · Regardless of whether Form C1A has been completed, there is an obligation on Cafcass to carry out safeguarding enquiries and identify any safeguarding issues in a letter to the court at the outset of the proceedings.

    · In all cases, parties are strongly encouraged to attempt to resolve the disputes outside the court system, and specifically through mediation.

    · Where the parties cannot reach agreement, there will be a staged series of hearings designed to lead to an early decision. Each hearing has a specific agenda and purpose. The first is the First Hearing Dispute Resolution Appointment (FHDRA), which amongst other things considers the safeguarding report, the need for a welfare report from Cafcass or other forms of investigation or assessment, and the case management directions that need to be given (including consideration of what the key disputed issues are, whether the matter should be listed for a fact-finding hearing, and what statements are required at that stage). The next hearing, unless it is dispensed with, should be the Dispute Resolution Appointment (DRA). Here, the court will have the evidence that it has ordered at the FHDRA, and it will seek to further identify and narrow the issues, direct the gathering of such further evidence as may be needed, and give case management directions for the final hearing.

    · One issue that should be considered at the FHDRA and subsequently is the question of whether a Children's Guardian should be appointed for the child under Rule 16.4. Where this is a possibility, the court should first discuss the matter with the Cafcass service manager, so that it can consider any advice in connection with the prospective appointment.

  11. As well as these general procedural requirements, Practice Direction 12J sets out in greater detail what the Family Court or the High Court should do in any case in which it is alleged or admitted, or there is another reason to believe, that the child or a party has experienced domestic violence or abuse perpetrated by another party, or that there is a risk of such violence or abuse. The version of the Practice Direction that was in effect at the time of the previous hearings in this case underwent some amendment with effect from October 2017, but the changes are not significant for the purposes of...

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