Trevona Hettiarachchi looks at the recent case of L v F (2017) EWCA Civ 2121 in which the Court of Appeal reinstated a first instance judgment that refused to grant a mother permission to relocate to Italy with the parties’ child. The case offers a reminder of the approach that the court must take when deciding whether or not to grant an appeal.

This case concerned an appeal by the father against a High Court decision that had allowed the mother’s appeal of an order at first instance. The first instance order had refused her application for permission to take the parties’ child to live in the parents’ home region in Italy.

The facts of the case were not unusual. The father and mother were both Italian nationals, who had moved to England at different stages over a decade before their son’s birth (referred to as “D”). Following the parties’ separation in December 2015, the care of D was shared equally between the parents. The application was a leave to remove to Italy by the mother. She also pleaded in the alternative that if she was unsuccessful in obtaining permission to relocate, that D live with her and stay with the father for five days a fortnight in term time and half of the school holidays.This was opposed by the father, who wanted the existing arrangements to continue. Within the proceedings, the mother alleged that she had experienced emotional, psychological and financial abuse at the hands of the father.

First instance decision

At first instance, Her Honour Judge Owens, having heard from both the mother and father, as well as the Children and Family Court Advisory and Support Service (Cafcass), came to the finely balanced conclusion that it would be in the child’s best interests to remain in the UK and for both parents to share his care (a week on/week off arrangement).

She said in her judgment: “The lack of detail in [the mother’s] plans, coupled with the impact upon D of losing regular and frequent direct contact with his father, when balanced against the impact on D of his mother remaining in England, leads me to conclude that the balance tips against her application.”

The judgment was contrary to the Cafcass officer’s recommendation, which was that mother be given permission to relocate to Italy and that, until that point, the care of D be shared, but with fewer movements between the parties.

Appeal to the High Court

The mother was granted permission to appeal to the High Court and her grounds of appeal were:

1. the judge was wrong to determine at the outset of the hearing that the allegations against the father were not directly relevant to the issues in the case and, as such, should have made findings about these matters;
2. the judge placed too much weight on the absence of precise details in relation to the mother’s relocation plans without seeking similar information about the parties’ prospects in the UK;
3. the judge made certain mistakes about the practical arrangements in Italy; and
4. the judge was wrong to find that D’s cultural heritage could be sustained by way of holidays to Italy.

Ms Justice Russell concluded that:

1. the trial judge’s decision was fundamentally flawed as she considered and decided the mother’s application to relocate prior to deciding on the future arrangements for the care of D;
2. inadequate reasons had been given for why there was a departure from the Cafcass recommendation;
3. the trial judge had wrongly failed to consider or make findings in respect of the complaints of controlling and coercive behaviour on the part of the father; and
4. Brexit had, inappropriately, not been considered by the trial judge.

Accordingly, the mother’s appeal was allowed to be remitted to a different circuit judge for rehearing in the first instance of the arrangements for D, and thereafter, of any renewed application by the mother to relocate to Italy.

Appeal to the Court of Appeal

The father then appealed this decision to the Court of Appeal identifying five respects in which he argued that Ms Justice Russell’s decision was wrong in law, namely:

1. the approach to determining an application for leave to remove;
2. what was said to be the necessity for the trial judge to make findings in respect of allegations of domestic abuse;
3. the circumstances when a shared care arrangement may be appropriate;
4. the extent to which the judge must justify departing from a Cafcass recommendation; and
5. the need for the court to consider the effect of the departure of the UK from the European Union.

The Court of Appeal’s judgment was unanimous, concluding that the first instance decision was neither wrong nor unjust but that the decision on appeal was wrong and unjust because of serious procedural irregularity. Turning to each of the five appeal points, it was held that:

1. the main basis on which the appeal was allowed, namely the submission about the order of priority in determining care and relocation, arose from a legal argument that was not raised in the grounds of appeal by the mother, had not been addressed by either party and was in any event incorrect. The trial judge had been correct to approach child arrangements and relocation together;
2. FPR PD 12J provides the correct approach to be adopted where there are allegations of domestic violence and unless the alleged behaviour had the necessary character, it was unnecessary and disproportionate for there to be a detailed fact finding;
3. the trial judge had provided her reasoning for deciding that alternate weekly care was suitable as it minimised change for D;
4. adequate and sufficient reasons for departing from the Cafcass officer’s conclusions were given; and
5. the issue of Brexit was not raised before the trial judge and, in any event, the consequences of the UK’s departure from the European Union were unclear.

The appeal was allowed and the trial judgment restored.

Stephen Foster, Head of Divorce and Family commented:

“This case is a reminder of the narrow grounds available to parties for appealing a decision at first instance. Furthermore, it is clear from the Court of Appeal’s judgment that they intend to keep the Brexit floodgates in relation to international leave to remove cases firmly shut, at least until the implications of the decision to leave the EU are more clearly understood.”

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