England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CANTERBURY COUNTY COURT
(His Honour Judge Russell-Vick QC/Mr Justice Johnson)

		Royal Courts of Justice Strand London WC2A 2LL Wednesday, 27th September 2000

Wednesday, 27th September 2000

1. LORD JUSTICE WARD: Mr S seeks permission to appeal two orders. The first is the order of His Honour Judge Russell-Vick, which was made as long ago as 10th December 1999. By that order the wife in this unhappy dispute was to have the residence of the two children of the family. J was born on 29th March 1995, so he is now 5, and E was born on 16th December 1998, and so at the time of that hearing she was about a year old. The marriage had broken down and the parties had separated in May 1999. The second order which Mr S would wish to appeal is the order of Johnson J made on 15th May in which he made different contact arrangements from those imposed by Judge Russell-Vick.
2. There is no adequate or proper excuse for the delay between December and the making of the application for permission to appeal; but, notwithstanding that, I will look at the matters because they clearly trouble Mr S to a very considerable extent and probably lead to this case being perpetually bedevilled.
3. Mr S has, essentially, a considerable complaint against the court welfare officer. He accuses her of lying to the court and, by way of example of that, he draws to my attention the fact that in her report she referred to having had conversations with the Domestic Violence Officer at the Sittingbourne Police Station. He says that the wife's allegations of his violence were quite untrue. He says that he explained to the court welfare officer the involvement of a lady at the Canterbury office, who was not in any way connected with them other than by giving advice to his wife, and he asked the welfare officer to check on this matter. When cross-examined the welfare officer said that she had no recollection of telling Mr S that she was going to be contacting Canterbury Police Station. There is, therefore, a flat conflict between the evidence of the father and the court welfare officer.
4. The judge dealt with domestic violence in this way. He said:

"The father I find to be a person capable of manipulating other people. Whether it is deliberate or whether it is just a question of his personality I know not; but I am satisfied that he was the dominant figure in this marriage. I cannot find, because there is no independent evidence about it which is admissible - although there are documents in the bundle which I have seen but the authors have not been called to give evidence - that this was a particularly violent relationship. I suspect that it probably was, and that the applicant father in this case, being as I have said a manipulative individual, also likes to have his own way. He is the stronger personality of the two, although I am quite satisfied that the respondent herself is on occasions able to respond in like manner.

The actual break-down of the relationship was, as I find, really an emotional problem, probably brought about by what I have said is a suspicion of some violence between them, and it is not the over-riding factor."

5. The difficulty that the father faces in this court is persuading the Court of Appeal that those findings were plainly wrong. There was some evidence before the judge, not a lot, and his findings amount to no more than suspicion; and it seems to me impossible for this court to be satisfied that there was perjured evidence by the welfare officer or indeed, at this stage, by the wife.
6. There is a second complaint lying beneath all of this. The husband is now utterly convinced that the wife left him for another man and that she has deliberately withheld that fact from the court. I will deal with that in a moment.
7. The father's second complaint against the welfare officer is that she was guilty of general bias against him and was quite unfair in recognising the part he had played in looking after the children. I have read her report very carefully. I cannot see any evidence in it of gender bias. She pays proper tribute to the father as being competent enough to leave with the children, as having a good relationship with both children and, therefore, as being a father who was well-qualified. But the gist of her report was that since he had had little contact with E since May, at which stage she was five or six months old -- she is now a year old -- it would be wrong to remove her from her mother, who had been her primary carer at least in the last six months, to the father. That was a tenable view, whether right or wrong, and was one that the judge was well able to accept; and really that formed the basis of his judgment.
8. The judge decided two things, which no-one could say were plainly wrong. The first is that this young baby, having been in her mother's care for the past six months, needed to continue to be in her mother's care, and that, secondly, it would be wrong to split the children and move the boy and not the girl. They should be kept together. That is wholly conventional thinking in a case of this kind, and although it is upsetting to a good father who had done more than his share, it seems, in the past to look after his son, it is not a conclusion which is plainly wrong.
9. I should define that for Mr S so that he can try and understand my problem in the Court of Appeal. I am not able to grant permission to appeal simply because there are two views of the matter. Clearly there are here. I can only interfere if the decision of the judge exceeded the generous ambit within which people are reasonably entitled to disagree. The harsh reality here is this. Little baby; with mother for the past six months; still only 12 months old: remain with mother or move to father? The balance of convenience, I feel, strongly comes down on leaving her with her mother. Little boy; aged then 4 years and three quarters, or thereabouts; good relationship with father: but so good that you should move him in isolation? No, says the judge. I cannot find in that exercise any error which can be regarded by the Court of Appeal as plainly wrong. Therefore, I am afraid, that that application should be dismissed.
10. The judge went on to deal with contact. What he ordered was that father should have contact in this way. On the first weekend of the month he should see J from Friday at 4 o'clock until Saturday at 7.00, on the second Saturday both children should visit him on the Saturday, on the third weekend it was J on Saturday, from 9.00 to Sunday at 6.30, and on the fourth weekend it was Saturday for both children. In effect, the father was having two staying contacts a month for J, but only visiting contact for E, on the basis that at that stage the baby was too young to spend time with dad. Again I can see nothing wrong with that approach.
11. The judge also said that the father was to have contact with J for half the school holidays -- and these are important qualifications -- at dates and times to be agreed between the parties. Sadly, this order, made on 10th June, with Christmas holidays a few days hence, was never fully implemented because the parties could not agree. They both had different views as to what "half of the school holidays" meant. So that there was no division of the school holidays and father was, if not angry, he was certainly disappointed about that breakdown in the arrangements.
12. In the result, most unfortunately, no contact took place, and so he applied to the court to enforce the order. That was heard by Johnson J. He dealt with the matter in this way in his judgment:

"The father and mother had tried to make detailed arrangements for the imminent Christmas holidays, but that was unsuccessful. I do not find it necessary to decide how to allocate responsibility for that, except to say that having heard the mother it seemed to me that her proposals were sensible in that they recognised that a move to a situation in which J was spending half the holiday with his father was one that needed to be approached cautiously.

However, what then happened was, in my judgment, absolutely unforgivable. Having listened to the father address me this afternoon, and having watched and listened to his questioning of the mother, I find him to be arrogant and domineering. His approach to the mother in his questioning was overbearing. Her reaction was that of a woman who is still very frightened indeed of him and I am in absolutely no doubt but that the anxiety which she portrayed so vividly in court was not put on for this purpose but represents her true feelings.

The father is a man who clearly wants to have his own way ... not having got the form of order that he wanted he decided not to see the children at all. His attitude seems to me to have been that if he was not to see the children on his terms then he would not see them at all, and that is why the children have not seen their father since 10th December last year, it being now 15th May."

13. Those were very harsh words to have spoken to the father. I am bound to put on record that in his submissions to me he has been thoroughly courteous. He has been moderate in his submissions and I have seen nothing which justifies that conclusion. But that, by itself, does not justify me in interfering with the judgment. It was for the judge to make that assessment, and he was justified, in my view, in being highly critical of the father for not having sent any Christmas cards or presents to the children, nor any card or present to J on his birthday in March. That was not only a silly mistake but, the father ought to realise, was a cruel rejection, or so it would seem, of the son who he clearly loves and is devoted to.
14. So the judge had, therefore, to try and pick up the pieces. He applied the paramount interest of the children. He felt there needed to be a sensitive attempt to re-establish a relationship between J and his father -- he accepted that J had been bitterly hurt -- and he made alternative arrangements for contact. They were essentially that there would be visiting contact in June and July on the first and third Saturdays, in August and September there would be staying contact for J, but not for E, and in October and November there would be visiting contact and staying contact; and he built in a review of this case on 13th November.
15. That order has not worked well. The mother apparently has made no nomination of the time he was to have in the long vacation. If that proves to be so, it will be a matter which no doubt will require her to explain herself and may leave her open to considerable criticism when the matter comes back. But, once again, the test is: is this plainly wrong? In my judgment Johnson J had to deal with a situation, as it appeared to him, where there had been a breakdown in the relationship of the contact plans, and they needed to be approached carefully and sensitively, gradually working up to the overnight contact for both children. He imposed that gradual pattern of increasing contact. It seems to me that it was utterly sensible to have done so, and I cannot see anything wrong with the order.
16. The events that have happened, of course, fuel the father's belief that the mother has been pulling the wool over the court's eyes. He produces to me this morning a school report from the Boughton Under Blean Methodist Primary School. He shows me a report at the end of term: July of this year. It indicates that the boy had been at school for 92 days. That takes us back to April, a date before the matter was before the judge. He says the judge was not aware of the fact the boy had changed schools -- he says the boy could not have changed schools unless he had been living within the catchment area of the school (that is close to him) -- and was not in fact in the seat of the old school on the Isle of Sheppey. The judge was not informed of that material fact. He was not informed of it, says Mr S, because in fact the wife was concealing from the court the fact that she had begun to live with another man at an address close to the Boughton Under Blean school.
17. Those, I am afraid, are not matters which justify the granting of permission to appeal. The sad fact, and the reality of life, is that, even if I gave permission for this matter to be reheard, it would not be reheard before 13th November in any event because the Court of Appeal would not deal with it by then and it would not be back to the County Court by then. The proper course for this matter to be thoroughly investigated is for it to stay in the list for 13th November and for the new judge, Judge Andrew, to investigate all of these matters thoroughly. I will direct that a copy of this judgment be placed on the file of the Canterbury County Court and drawn to Judge Andrews' attention so that she can conduct a proper inquiry into exactly what has been happening, and so that she can ensure that a new court welfare officer look closely at the father's contact with the children and take a fresh view of the matter. I emphasise fresh because there may well be matters that have not yet come to the court's attention that should come to the court's attention. I hope, therefore, that full opportunity will be given to the father to explore those matters on 13th November.
18. As for giving permission for this court to interfere, I am sorry; I cannot help. Both applications are dismissed.
Order: Application dismissed. Copies of judgment to be sent (1) to the Canterbury County Court; (2) to be provided to the Applicant at public expense.