Saturday, 12 July 2014

“A Narrow Textual Analysis”: Re P (Relocation) [2014] EWCA Civ 842

Last month, the Court of Appeal allowed an appeal against a trial judge’s decision to refuse to allow a mother to relocate permanently with two children, aged 3 and 2, to Germany. The basis for that appeal was that the judge had made a key finding about the mother’s motivation for seeking to relocate which was unsupported by the evidence. However, that conclusion relies on what the House of Lords once described as “a narrow textual analysis which enables [appellate judges] to claim that [the trial judge] misdirected himself”, and thus allows the appeal court “to subvert the principle that they should not substitute their own discretion for that of the judge”.

The crucial passage of the trial judge’s judgment was at para 16, where she said this:

"What is the mother's motivation to relocate to Germany?  The mother's case is that she and the children will live in Germany where they will enjoy a better standard of living.  I do not accept that that is her true or primary motivation.  I am satisfied that the mother's primary objective for relocation is to limit the involvement of the father in the lives of the children.  It is the mother who wishes to control the father's relationship with the children and not the father exercising control over the mother.  Living in Germany with the children I am satisfied that the mother perceives that she would be the parent with control.  Maintaining the father's relationship through contact is not high on her list of priorities."

In the Court of Appeal, Ryder LJ considered that, aside from this issue about the mother’s motivation, “the other factors that are identified in the judgment would have left the cases of the mother and father relatively evenly balanced” (para 9).

Two concerns therefore arise out of the Court of Appeal’s decision to allow the mother’s appeal (aside from the cost and delay of a re-trial).

The first is the basis on which the Court of Appeal criticised the judge for her conclusions about the mother’s motivations. There was some discussion in the Court of Appeal about how, bar one short period of time, the mother had always complied with the contact arrangements which had been put in place by consent. Ryder LJ criticised the judge for “eliding” (a) a motivation to limit contact to that set out in the order, and (b) a motivation to limit the father’s role in the children’s lives. The Court of Appeal also considered that a transcript of the evidence did not support the conclusions reached by the judge.

With respect to Ryder LJ, none of these points necessarily undermines the trial judge’s conclusions. When a judge sees a witness give evidence, far more is communicated to her than the mere words said. The judge is able to, and is entitled to, assess the demeanour, tone and attitude of a witness, and the judge may not be able to express in exact language why she reached the conclusion that a witness was honest or not, evasive or not, and so on. As Lord Hoffmann once put it:

specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence. His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance. . . of which time and language do not permit exact expression, but which may play an important part in the judge's overall evaluation.

A judge with 12 years’ experience as a full-time judge sitting in family cases is entitled to use her judgment to assess a witness’s motivation, both from things said and by inference, and then to rely on that assessment. That is what judges are paid for. If it were only a matter of recording the words said, oral evidence would be a complete waste of time. The skill and experience of the trial judge goes far beyond that, and needs to be respected by the Court of Appeal.

The second point of concern is the apparent weight that Ryder LJ appears to give to the fact that, aside from the mother’s motivation, the case might be seen as finely balanced. Leaving aside the motivation point, the mother was bringing an application and therefore faced the task of persuading the judge that making an order for relocation was better for the children than making no order at all: Children Act 1989, s 1(5). If the matter was finely balanced without regard for the mother’s motivation, and if the mother’s motivation is one relevant factor (which clearly it is), it is very hard to see that the decision which the experienced trial judge took to refuse the application was “wrong”.

Re P shows the Court of Appeal engaging in a narrow textual analysis to overturn a decision with which it disagreed, but which was reached on a legitimate basis and cannot genuinely be said to be wrong. Any judgment can be criticised for the precise way in which issues are put or the details included or omitted. That cannot be the way for an appeal court to operate, both because the appellate system would become unworkable and because it misunderstands the overall point of a judgment, which is to give sufficient explanation of the reasoning process undertaken by the judge in reaching her conclusion. 

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