England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE PORTSMOUTH COUNTY COURT
(His Honour Judge Price)

		Royal Courts of Justice Strand London WC2 Tuesday, 12th September 2000

1. LORD JUSTICE WARD: I hope that the applicant will not mind me being so patronising, but I think it only right to begin this judgment by recording the impression I have, that he is a thoroughly nice man, and having read the papers my heart went out to him. Having seen him today I am even more sympathetic to his predicament.
2. He seeks permission to appeal Judges Davies' order made in the Portsmouth County Court on 4th February 2000 in relation to his daughter, R. R is three years old. I can imagine how precious a three year old child is to a 69 year old father, perhaps there is an inverse proportion to affection the older one enters into paternity. The judge was satisfied that he is utterly devoted to R and loves her dearly, but the sad fact which confronts him and which confronted the judge is that R's mother is sadly quite inadequate to care for any child. She has five other children, ranging from 17 to 7. All of them have been removed from her and placed in care. One can be sympathetic towards her from what I have read about her. She is a woman who was unloved as a child and sexually and physically abused as a child. It is hardly a wonder that the vicious cycle is repeated. This father is one who has done his best for his daughter and his best for his wife. Therein lies his dilemma. He has been found, for reasons which seem to me to be wholly acceptable and right, not to be able to separate his loyalty to his wife and his loyalty to his daughter. Thus, when there was an intensive programme to assess the ability of this couple to look after R, and they attended the Cassel Hospital for the purpose of that assessment, the mother's inadequacies were sadly exposed. The Cassel reported:

"There is concern that [the father] is unable to accept that safety is an issue between his wife and daughter, and his anxiety to protect his wife in our view compromises his capacity to protect his daughter when they are together."

3. In the result, that assessment failed.
4. The local authority, who had begun the care proceedings when R was born, moved for a final care order. It was made by His Honour Judge Price on 17th July 1988. I have looked at the judge's decision in that case. I note, and it really needs to be emphasised, that the applicant sought permission to appeal Judge Price's order but was not allowed to do so. He is bound, and I am bound, and Judge Davies was bound, by the findings and the order there made. But Judge Price said this in his judgment. I read one passage:

"If he decides to separate from his wife in order to bring up his daughter he must make that decision, difficult though it undoubtedly is -- one's heart goes out to him -- on the basis that the likelihood is he will never live with his wife again until the child is old enough to look after herself."

5. Thus the judge, with a degree of reluctance, made a final order, leaving the door open for father to separate from his wife. He did not do so, or certainly not to the satisfaction of the local authority. They placed the child with prospective adopters. That placement was made in June 1999 and the judge, Judge Davies, has recorded the improvement from her slightly disturbed behaviour in earlier days. Judge Davies said:

"She now, I am pleased to say, is apparently a year ahead on her developmental milestones. This is to the credit of the applicants and to an extent the father."

6. That was not the only passage in her judgment in which she praised the father. She observed of him that he was devoted to his daughter. Of that she had no doubt:

"I accept the father is genuine in putting forward this case and that he loves his daughter dearly."

7. The sad fact is, however, that he has not seen R since about March 1999. He made an application for a residence order but effectively sought contact. He wanted to see her one weekend each month and one week in the year. The judge dealt with that, recognizing that that question was determined by what was best for the child. Her welfare was paramount, but she concluded that the father's proposals cannot be in R's interest. There was no prospect of rehabilitation. She said:

"It is clear from the evidence that if there is continuing contact with the father, there will be continuing contact with the mother and that would be an unacceptable risk to the child. I do not accept that there should be contact and I therefore dismiss the contact application."

8. Sadly, the judge was convinced, even at the time that he appeared before her in February, that although separated physically from the mother, he still could not bring himself to say that he would not introduce R to the mother if he were to have contact.
9. To succeed he has to persuade me that the judge was plainly wrong; that is to say, that she exceeded the generous ambit within which there is reasonable room for disagreement. Sympathetic as I am, there is no such prospect. This was a judgment which was almost inevitable in the sad circumstances of the case. I cannot therefore grant permission to appeal the contact order. The father does not seriously object to the adoption order as such. He really wants to see his daughter even though adopted. Open adoptions are much more common. Frequently they do a great deal of good. They may even have done good in this case. But the judgment is not outside the range of reasonable decisions. I must refuse his application but, and it is a big but, I record this so that he can take this judgment to the local authority and stress what the judge observed. She said this:

"As far as contact post adoption is concerned, I believe it is best left to the indirect contact and I am happy that the applicants will comply with that."

10. If it turns out that this father is not being permitted to make any indirect contact, that all his attempts to keep his image alive in the mind of his daughter are frustrated, then he may have a quite different complaint, and he is fully justified in drawing to the Social Services Department the basis on which the judge proceeded, a basis which I thoroughly applaud. I hope henceforth that he will be allowed to have some indirect contact for the sake of his child. I see no breach of human rights in this case. The judge has proceeded properly. With a heavy heart, therefore, I am afraid that I must refuse the application. I will arrange unusually for a copy of this judgment to be made available at public expense.
Order: Application refused; copy of judgment to be made available to the applicant at public expense.