The father, represented pro bono by Access Law Solicitors and by Frances Judd QC, Edward Devereux and myself from Harcourt Chambers, applied to appeal again to the Supreme Court. To be clear, there is no 'right' to take a case to the Supreme Court. You have to get permission. The Court of Appeal can, in principle, give permission, but very rarely does - it is considered better to allow the Supreme Court Justices to decide for themselves which cases they take. Most applications are turned down, as can be seen from the Supreme Court's published list of applications and the results. If the case is turned down, that's the end of the matter - there is no further appeal within the domestic courts. If the case is accepted, then it proceeds to a proper hearing in the Supreme Court.
The application to appeal Re F involved a 41-page document setting out the grounds of appeal, which fell into three broad categories:
- the question of whether the guidance given by the 2001 Court of Appeal decision in Payne v Payne amounted to an unjustifiable gloss on the welfare principle as set out in section 1 of the Children Act 1989;
- the question of whether, regardless of the answer to that question, it was right to say that such guidance could be applied (with or without modifications) to cases where the applicant was not the primary carer of the child in question, as had happened in this case and as Black LJ had suggested in the 2011 case of K v K;
- the question of what, if any, guidance should be given by the senior courts to trial judges about how to determine international relocation cases.
- the increasing mobility of families in recent decades;
- the increasing sharing of children's care arrangements by parents after separation, such that guidance based on there being a single 'primary carer' may often no longer hold true;
- the need not to discriminate between parents based on their gender or their parenting roles;
- the apparent difference of opinion between different Court of Appeal judges about whether the guidance given in Payne applies to all international relocation cases or only to some (see K v K);
- the apparent controversy over the way in which that guidance is stated, as seen in court judgments, counsels' submissions, academic writing and elsewhere;
- the different way in which other jurisdictions approach international relocation cases.
The Supreme Court customarily gives very brief reasons when an application to appeal is refused. The reasons in this case were twofold. First, that this case did not demonstrate a matter of general public importance that should be considered by the Supreme Court at this time (which is a fairly standard reason). Second, it was said that, on its facts, this case was clearly a borderline welfare decision, and therefore that an appeal as to the outcome was unlikely to be successful.
Of course, counsel had attempted to show that this was a matter of general public importance, and I think that it is. While international relocation disputes make up only a small minority of cases in the family courts (best guess, 200-250 cases per year), they are amongst the most difficult, and have potentially life-long consequences for the children involved. But of course it is a judgment call - the Court of Appeal hears relocation appeals reasonably often, and has a broadly consistent line about how these cases should be assessed. One might think, therefore, that there is no need for a Supreme Court appeal.
The second reason given by the Supreme Court is more tricky. There is a general rule that appeal courts should not interfere with borderline decisions in welfare cases because, where a case is on the borderline, the judge who heard all the evidence and met the parties is better placed to decide which side of the line it should fall. That's fine - but in order to have any force, it relies on an assumption that the judge understood and applied the correct legal principles. Here, the very argument was that the principles which the judge applied were wrong.
In particular, the guidance which he applied assumed that the applicant was the child's primary carer, which she was not. If the case was borderline when the legal guidance assumed that the applicant was the primary carer, it would probably not have been borderline had that inappropriate guidance not been applied. Indeed, the strong argument in favour of leaving the child in the high quality care of his primary carer father would, one would think, have tipped the case decisively against allowing the relocation case. The only reason the decision appeared to be a borderline one was the influence of the very guidance which the father sought to show was inappropriate.
It is a loss for this child and this father that the case has ended as it has, and a loss for the development of relocation law in general that the Supreme Court turned down this opportunity to review the English courts' guidance on how international relocation cases should be assessed.
The author was involved in the father's application to appeal
in a pro bono advisory capacity. All views expressed
are the author's own, and are not necessarily shared
by the other lawyers in the case, or by the father.