IN THE SUPREME COURT OF JUDICATURE B1/2002/0568

OF THE FAMILY DIVISION

(His Honour Judge Ryland)

Royal Courts of Justice

Strand

London WC2

Wednesday 17th April, 2002

B e f o r e:

LORD JUSTICE THORPE

LORD JUSTICE BUXTON

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S (CHILDREN)

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(Computer Aided Transcript of the Palantype Notes of

Smith Bernal Reporting Limited, 190 Fleet Street,

London EC4A 2AG

Tel: 020 7421 4040

Official Shorthand Writers to the Court)

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MR R TODD (Instructed by Messrs Russell Jones & Walker, London WC1X 8NH) appeared on behalf of the Applicant/Father

THE RESPONDENT/MOTHER did not appear and was not represented

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J U D G M E N T

(As approved by the Court)

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©Crown Copyright

LORD JUSTICE THORPE: Judge Ryland sat in the Family Division on 13th March 2002 to hear cross-applications for residence orders in respect of two children: J, who is five, and A, who is approaching three. The cross-applicants were their parents, who had married in 1996 and separated in September 2001 in fraught circumstances immediately preceding the application of their cross-applications, the mother's being first in time, 6th September, and the father's following shortly thereafter, 18th September.

The facts of this case are certainly unusual. The father is some nine years older than the mother and is a specialist in the sailing and chartering of yachts. It was in that sphere that he came to meet the mother, who is plainly a lady of very high ability and achievement, having succeeded in sport to an Olympic level and having succeeded in her chosen profession to the extent that she was at the time of judgment managing partner for a city firm of US origin, and earning a gross salary of about a £330,000 a year.

The husband's comparable earnings were minimal, partly because he is competing in a less well-remunerated field and partly because, by agreement between the parents, he was throughout the house husband. With the dramatic end of the marriage, he lost that function. He left the final matrimonial home, a fine house in Dulwich worth over £1 million. The mother took over care for a short period, until an agreement was reached for what is essentially shared parenting on an interim basis. The father was enabled to deliver his half of the responsibility from a house rented in the vicinity and financed by the mother's earnings.

By the time the case came for trial the issue for the judge was easily defined, but by no means easy to decide. His definition of the issue appears at page 7 of his judgment, and then again at the foot of page 8. The second summary is the more succinct:

"If the mother is granted residence of the children, the mother will move up to Linlithgow; if the father is granted residence, the mother will stay in London. They are both agreed about that and they are both agreed about the generous contact that the non-residential parent should have."

Having so defined the issue, the judge immediately evaluated the mother's evidence. He said:

"I found the mother's evidence to be highly satisfactory in every regard. I found her to be a person with great intelligence, of great integrity."

He was equally complimentary about the father, whom he described as being very charming, more emotional than the mother, and an excellent mixer. He then went on to pose the question which he had to decide. He said this:

"The situation therefore resolves itself into this question that I have to answer: should the interests of the children require me to grant a residence order to the father, with the father's plans of staying in London, of sending the children to the same fee-paying schools as the parties have attended prior to September of last year, with the mother having to continue to work (whether or not a full-time basis or on a less frequent basis) but with the mother continuing in the role of breadwinner and supplying the money and the means to pay for the children's schooling and houses from both these parents in different houses; or, should the situation be that the interests of the children require me to give residence to the mother, who proposes to take these children up to Linlithgow, to buy houses for the father and herself, and send the children to local educational schools?"

Of the father's proposals he said:

"... I am quite satisfied [that they] are dependent upon the continued financial support of the mother to a very high degree. It seems to me that the consequence of his proposals will entail that the mother will have to work at least probably three days a week in her current job in order to earn enough to support the way of life that the father's proposals entail."

The judge went on to make findings against that background.

He said that he accepted the mother's evidence when she said that it was her desire to give up work until A went to school in about two years time. He accepted the opinion of the reporting officer that the mother does have this desire to give up work, and he accepted the mother's reasoning and her wishes, that she wants to go to West Lothian, as being genuine and a wish that she intends to fulfil. This, in my opinion, is a crucial finding. It is repeated towards the end of the same paragraph, where the judge says, in relation to her future plans:

"I think that she is genuine with that, and I think that that is what she genuinely wants to do."

He then turned to consider financial issues, before reverting to further findings. The first, at page 14, was the judge's finding that the mother was accurate in her description of state education in Scotland as very high indeed. He also accepted her evidence when she said that the way of life in Scotland is a way of life that she wanted not only for herself, but more particularly for the children. He added a finding that all the mother's evidence, investigations and enquiries were of a very much greater depth than the father's, and on those findings almost inevitably came to the conclusion that the mother's solution was the best solution in the particular circumstances of the case.

Mr Todd, who appeared below, submitted a very thorough and careful skeleton argument in support of an application for permission, and he has had the opportunity this afternoon to expand it orally. He complains that this is essentially gender discrimination on the part of the judge. That if you reverse all the roles, a father who proposed to abandon a lucrative career with the consequence that his wife and children would suffer a dramatic downturn in the standard of living, he would not have the smallest chance of being given a residence order as his reward. That submission seems to me to ignore the realities, namely the very different role and functions of men and women, and the reality that those who sacrifice the opportunity to provide full-time care for their children in favour of a highly competitive professional race do, not uncommonly, question the purpose of all that striving, and question whether they should not re-evaluate their life before the children have grown too old to benefit.

The crucial evaluation that the judge had to make was as to the mother's sincerity and motivation. If he had reached the conclusion that all that she was trying to do was disingenuous and manipulative, then I do not doubt there would have been a different outcome. But as the judge correctly perceived, the husband's counter-proposal was entirely founded on the mother's continuing financial contribution through high city earnings. If that was no longer a possibility, then inevitably his proposals disintegrated.

Despite all Mr Todd's endeavours, I am not persuaded that there is any realistic prospect of success on appeal, given the discretionary nature of the judge's jurisdiction. I should perhaps in fairness to Mr Todd only add that I was not impressed by his complaint that the judge should have eschewed any findings in the financial field. If such findings were necessary, Mr Todd said that they should have been conducted in the ancillary relief hearing and this inquiry as to residence should have been adjourned for simultaneous trial.

The litigation chronology is all against that submission. As I have already said, these applications were issued in September. There had been a first appointment in the ancillary relief in November, but the financial dispute resolution was not to be heard until May. I think the judge dealt with this issue entirely sensibly. He treated it as a relocation case, where forecasts as to the future, including financial forecasts, were no more than that, and he was entitled to make his appraisal on informed guesswork as to what would eventuate financially. That is, as it were, a footnote to my principal reasoning of the rejection of this application.

LORD JUSTICE BUXTON: I agree.

ORDER: Application for permission to appeal refused.

(Order not part of approved judgment)