In Y (Children)  EWCA Civ.1287 the Court of Appeal heard the father’s appeal from the decision of His Honour Steven Wade (Deputy Circuit Judge in Gloucester & Cheltenham County Court) dismissing the father’s application for leave to permanently remove 2 children from the jurisdiction to Missouri, USA.
The application concerned 2 boys, aged 11 and 7 years, the children of the father’s first marriage.
The father also had a 2 year old child by his second marriage to a US national.
Permission to appeal was granted on the basis that the Judge at first instance had failed to consider the potential breakdown of the father’s second marriage as a result of refusal to allow him and the children to relocate and that the judge had failed to adequately consider the implications for the father’s youngest child by his second marriage.
It should be said that the father and his second wife were primary carers for the 2 children of the first marriage as well as their own child.
- Ryder LJ said it was a case of balancing the welfare factors e.g. looking at the nature of and harm to the first wife’s relationship with her 2 children as against the damage caused by preventing relocation, the potential for breaking up the second marriage and the circumstances of the “non-subject child of the second marriage”.
- The Judge at first instance was entitled to make “a value judgment” having heard all the evidence. In this case (and all cases are fact sensitive) the Judge heard that the fragmentation of the second marriage was simply a remote possibility and it was, therefore, a circumstance which he had to consider along with all the others. At first instance the Judge made his decision based on this evidence and Ryder LJ held that he did so “loyally accepting the written evidence put before him by the parties”.
- Ryder LJ held that it was unnecessary for the Court to consider the human rights implications of all the children including the “non-subject child of the second marriage”. He said this was a private law application with no public law implications. Accordingly, he held that the Court was not required to undertake a human rights assessment where the State (as opposed to the parents) was not interfering with family life.
- Once again, practitioners should be aware of the difficulties of appealing Children Act Orders when the Judge at first instance has clearly had regard for all the circumstances and has “made a value judgment” as he is perfectly entitled to do so.
- It is equally important to be cautious of running fresh assertions on appeal which have not been prominent in the Court below.
- Clients frequently ask their practitioners to consider Article 8 rights and the “right to family life” is in common usage. Ryder LJ made it clear that running the human rights argument would be unlikely to succeed in the Family Court on a private law children application.