G-A (A CHILD)

The mother wished to move with the child, of which she had custody, from the UK to New York, on the pretext that she could obtain a type of work in New York which was not available to her in the UK. The father did not want his child moved, and appealed a county court decision. Her case was treated as a potential violation of article 8.1 (respect for private and family life) while his was under article 8.1 (respect for family life). The judges essentially had to balance her rights with his under article 8.1.

This case shows clearly that a woman's rights under ECHR article 8.1 are somehow far more important than a man's under article 8.1. This was deemed to be the case, even though it is highly doubtful if the type of work a person may obtain is relevant to a discussion about their 'private' life. His lack of any contact with his daughter would certainly interfere with his 'family' life.

The judgement supprts her rights under article 8 to have a job of her choice, and entirely removes his rihghts undrer article 8 to have contact with his daughter. Where is the balance of rights in that ?

We consider that the judges have, as usual, used spurious and unreasonable arguments to deny the man any rights.

We can see the logic applied here. Essentially the judges had to balance the mother's right to select a job in New York rather than one in the UK, with the father's rights to see his daughter at all. Note they would not be preventing her from having a job, but only selecting one in New York.

HE CONTINUES, REFERRING TO THE FATHER'S MONEY, WHICH HE SEEMS TO REGARD AS A 'FAMILY' ASSET, EVEN THOUGH THERE IS NO LONGER ANY REAL FAMILY :

AND THE COMMENTATOR, POSSIBLY A FEMINIST, QUESTIONS, WITH THE JUDGE, WHETHER THE HUMAN RIGHTS CODES SHOULD BE APPLIED AT ALL (NB - FEMINISTS MAY WELL BE WORRIED ABOUT THE EFFECTS OF HRA98/ECHR) :

The order was made on the basis of undertakings given by the parties, and particularly by the mother, in which she promised to litigate all questions relating to contact in the courts of England and Wales, and offered contact by returning the child to the jurisdiction on not less than two occasions each year for a week, allowing the father additional contact if the child was in the country, and permitting contact in New York. All of the contact arrangements were in addition to keeping the father informed by e-mail or by letter.

(2) Article 8 undoubtedly gave the applicant and his child a right to family life but Art 8 also gave the mother a right to her private life. In addition the mother also had a freedom to work where she reasonably choses. Article 8(2) requires the court, not only to act in accordance with the law, but to bring into a balance those conflicting rights. As a result the court should not interfere with the established line of domestic authority.

LORD JUSTICE WARD: This is an application by the father of a young girl, A, who is 10 months old, for a stay of execution of the order made by Mr Recorder Elvidge on 9 February, when he gave permission for the mother permanently to remove A from the jurisdiction in order to take up, if it eventuates, a life in New York. The order was made on the basis of undertakings given by the parties, and particularly by the mother, in which she promised to litigate all questions relating to contact in the courts of England and Wales, and offered contact by returning A to the jurisdiction on not less than two occasions each year for a week, to allow him additional contact if she was in the country, and to permit contact in New York, all of that in addition to keeping him informed by e-mail or by letter. The father seeks permission to appeal against that order. Mr A has appeared in person, and, if I may say so, I do not think that he has done himself any harm at all by doing so because he has presented his arguments in a fine skeleton argument which sets out the submissions cogently, in detail, and with the backing of the authorities that he wishes us to consider.

The history can be shortly stated. The father is 50. A is his only child, and while all children are precious, I can readily imagine that the gift of a child at the later age than usual is a particularly precious gift. The mother is much younger, being aged 28, and this is her first child. She was born following a relationship the parties had together, which has now sadly broken down. The mother’s position is this. She is an accomplished musician but plays that not very portable instrument, the harp, and the opportunities of a harpist are less than those for a violinist. She trained at the Julliard School in New York. She came back to this country some years ago. Following the breakdown of this relationship she has, she says, been offered work in New York, and for that reason seeks permission to take A out of the jurisdiction.

The father is a highly cultivated, intelligent man, but does not seem to have much money, which is an unhappy state of affairs for the family. It poses its own obvious problems for them. His attack on the careful judgment of the Recorder begins with the complaint that the judge, whilst paying lip service to the Human Rights Convention, failed properly to give effect to it. The father, not surprisingly, complains that his right to family life and A’s right to family life, which is acknowledged, has been insufficiently weighed in the balance, and the consequence is that the limited contact which he has will be insufficient to properly establish a relationship with his daughter which can ever be meaningful, and he submits, moreover, that the harsh reality probably is that he will increasingly fade from her life.

The judge approached the question upon the proper lines; that is to say, he directed himself fully in accordance with the consistent range of judgments coming from this court, beginning with the well known case of Poel v Poel in 1970, and, more recently, the judgment of Thorpe LJ in Re H (Application to Remove from Jurisdiction) [1998] 1 FLR 848. Thorpe LJ’s conclusion in that case was that nothing has been said in this court or elsewhere which conflicts with the approach established by Poel v Poel; that is to say, in essence, that, if the custodian parent takes a reasonable decision, then the court ordinarily will not interfere with that unless there is some compelling reason in the child's best interests to the contrary. That is how the judge approached this question.

The difficulty for the father in advancing his Human Rights argument is that, whereas Art 8 undoubtedly gives him and A their right to family life, Art 8(1) also gives the mother a right to her private life. Article 8(2) requires the court, not only to act in accordance with the law, but to bring into a balance those conflicting rights. It is necessary to have regard to the rights and freedoms of others. In this case, it is the right of the mother and her freedom to live her private life as she wishes and to have the freedom to work where reasonably she chooses to do so. Therefore, for my part, I can see no prospect of this court at this stage interfering with the established line of authority which binds us at the moment and which the judge applied. I am very doubtful indeed that matters will be any different in October when the Convention comes into force of law.

The father’s complaint that meaningful contact has been denied him is an understandable one, but the judge was satisfied that the mother intended to ensure that there would be contact, albeit very limited, and that the child would grow up in the knowledge that she has a loving father in this country. It was a balance for the judge to strike, and I cannot see that he was plainly wrong in that conclusion.

The applicant mounts the very difficult challenge of findings of fact made by the judge. He complains that his acceptance of the mother’s job proposals was quite wrong because all of this was very speculative indeed. He had the father’s case well in mind, and at p 22 of his judgment referred to the father’s complaints about the vagueness of her job application and of the difficulties she faced. The father submits that the administrative position which is available to her will not justify the hope she has to use that as a platform for the making of a concert career or a career as a performing artist in America. The father complains that the mother has not fully explored the job opportunities that are available to her in this country. Unfortunately, the findings of fact are clear. The judge was satisfied that the job was available, that it was reasonable for her to take it up, and that moreover:

He came to that conclusion bearing in mind the father’s cross-examination that advertisements showed just what opportunities were available to the mother in this country. The judge’s conclusion was that her job prospects were prospects of ‘a very exciting job from the mother’s point of view’. He was satisfied that her hopes and expectations fairly would lead to engagement as a harpist in orchestral or chamber performances in sharp contrast with what faced her in this country. The father complains that she will not be able to realise those opportunities because she does not have the time to practise. Those are matters which the judge must have had in mind. He complains that her visa difficulties are much more serious than either she or the judge have taken cognizance of. Even if she gets a visa for an administrative job, that is no assurance that she will have a visa extended to enable her to play on the concert platform in New York. Those are matters peculiarly for the judge to weigh and assess. The judge was satisfied that this is a mother who had every reasonable prospect of finding accommodation in New York, of having care arrangements for the child which were satisfactory or which would be made satisfactory by her, and that she would have a sufficient system of support in New York to ensure that A was properly cared for. In the result, therefore, the judge had to ask himself whether her choice was a reasonable one. He concluded that:

The complaint is that the mother’s evidence did not extend that far. It was a submission made to him by counsel and accepted by the judge, but it is an inference to be drawn from the evidence which was within his power to draw in a way which we should not and cannot interfere with.

The summation of it is this. The judge addressed himself correctly as to the principles to apply. He found the mother to have genuine reasons, not spiteful reasons, for going. He found that it was reasonable and he asked himself the important question:

He concluded that it was. He said this:

He found that they were not. He held:

‘I think in this case at A’s age and with the proposals for contact as set out by the mother, given the full undertakings, it is in the child's best interests to go to New York with her mother, and the level of contact being afforded and suggested for Mr A will be sufficient for her to develop the kind of proper, full, loving relationship which she will need in the future. So my judgment as a whole is that leave should be granted in this case.’

I am acutely conscious, from sitting in the Family Division, that these are awful decisions to take and that inevitably the father of the child will feel that he has lost an opportunity to give full benefit to the upbringing of his child because he cannot fully participate in it. I readily appreciate the argument that in today’s climate shared parenting is an ideal, and that both parents participating in the child's upbringing is the best for the child. But the principles of law in these unhappy cases are clear. The judge applied them. He came to conclusions on facts which we could not say were wrong, and he exercised the balancing of benefit and harm in a way which likewise is beyond attack. Thus, while I have great sympathy indeed for the father, I am afraid that it is not enough to lead me to conclude that there is any reasonable prospect of success on an appeal. Accordingly, I would dismiss his application for permission to appeal and the stay falls with it.

LORD JUSTICE BUXTON: I also would dismiss this application for the reasons that my Lord has given. I wish to add only one short word by way of footnote to what my Lord has said about the impact of the European Convention on this case. I accept that the judge was prepared to approach this matter on the assumption that the Convention is already binding on domestic law in this country, which is not the case. However, even granted that, it seems to me that the way in which the judge dealt with the Convention issue cannot be criticised. In his skeleton argument and in his submissions, Mr A places particular weight on the case in the European Court of Human Rights of Berrehab v The Netherlands (1989) 11 EHRR 322. I mention that case because I venture to think that it demonstrates the difference between cases in which the European Court of Human Rights has felt able to intervene under Art 8, and a case such as that with which we are concerned here.

Mr Berrehab was a gentleman who had gone to the Netherlands from Morocco. Under Netherlands domestic law he required permission, as an alien, to stay in that country. He was given that permission for the reason of enabling him to live with a Dutch lady to whom he was married. They had a child. Some years after the birth of the child and when the marriage had broken down, he was, under the operation of the Netherlands’ immigration law, deported to Morocco, being given, however, a visa for the purpose of coming back to the Netherlands for contact. The question for the European Court under Art 8 was whether an act that undoubtedly interfered with Mr Berrehab’s private and family life, insofar as it interfered with his contact with his children, could none the less be justified under Art 8(2). In determining that question, the court had to look at what the grounds were for Mr Berrehab to be deported. The aims and object and reason for that act, adduced by the government of the Netherlands, was, as the court said in its judgment, the preservation of that country’s economic well-being and the regulation of the labour market: familiar grounds upon which a country, consistently with the Convention, may, prima facie, operate an immigration policy. On the facts of that case, it was the judgment of the European Court of Human Rights that the balance between the interests of Mr Berrehab and his family to family life on the one hand, and the interests of the State of the Netherlands in operating immigration law, had not been correctly struck. The interference with his family life was disproportionate. That was, if I may say so with great respect, the appropriate test to be applied under Art 8(2).

It will be seen from the facts of that case that it was wholly different from the case with which the judge below had to wrestle, because he had to consider under the Convention, not a conflict or clash between a right to family life on the part of the family as a whole, which was the case in Berrehab, and a national, economic or political policy, but, as my Lord has stressed, between, on the one hand, the rights and interests that Mr A has in contact with his child, and, on the other hand, the rights and interests to family life of the child herself and of the child's mother. That is a balance quite different from that which arose in the Berrehab case. I think it doubtful, and no case has been put before us to suggest otherwise, whether difficult balancing questions of that sort fall within the purview of the Convention at all. But one does not need to decide that point. The point is that the judge had asserted before him a series of rights, all of them family rights, all of them rights to family life, and all of them falling in principle under Art 8. In those circumstances, he had to balance out the interests of the parties, and, more particularly, the interests of the child in the way that he did. There seems to me no possibility whatsoever of saying that, in terms of Convention jurisprudence, he acted in any way to which the Convention could take objection. Of course, he came to a conclusion different from that which Mr A would wish to see. He came to a conclusion that in its practical effect will be to limit Mr A’s contact with his child, but a decision in a contrary sense would have equally been open to difficulty and complaint. In those circumstances, the judge had to make an extremely difficult decision. I entirely agree with what my Lord has said: first of all, that that decision cannot be challenged on Convention grounds, and, secondly, that it was carefully and conscientiously made in a difficult situation, and the judge reached a conclusion with which this court cannot interfere. I, like my Lord, understand the pain that this causes Mr A. But, in the circumstances, he has no possible ground of complaint about the way in which this case has been decided.

For these reasons, which are merely a supplement to those advanced by my Lord, I also dismiss the application.

Perhaps the most interesting aspect of this judgment is the remarks of Buxton LJ that:

‘[The judge had to consider] not a conflict or clash between a right to family life on the part of the family as a whole … and a national, economic or political policy, but … between, on the one hand, the rights and interests that [the Applicant] has in contact with his child, and, on the other hand, the rights and interests to family life of the child herself and of the child's mother … I think it doubtful, and no case has been put before us to suggest otherwise, whether difficult balancing questions of that sort fall within the purview of the Convention at all.’

These remarks might appear to suggest that Art 8 will have limited application in the field of family law (and other areas). That is because family law clearly is often concerned with the conflicting interests of different members of the family. However, Art 8 cannot be said to have no application merely because a decision involves such conflicting interests. For example, in K and T v Finland (2000) unreported, 27 April the European Court of Human Rights held that Art 8 had violated by the decisions of national authorities in care proceedings. The justification given by the state for the care orders was the need to protect the children. Clearly the state was trying to balance the conflicting rights of the child and parents but despite this the court held that Art 8 rights were within the purview of the Convention and that they had been violated as ‘[d]espite the margin of appreciation enjoyed by the national authorities in assessing the necessity of taking a child into care, the court considers, in the light of the case as a whole, that the reasons adduced to justify the care orders were not sufficient and that the methods used in implementing those decisions were excessive’.