England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BARNET COUNTY COURT
(HIS HONOUR JUDGE PETER LATHAM)

		Royal Courts of Justice Strand London WC2 Tuesday 31st July 2001

Tuesday 31st July 2001

1. LORD JUSTICE THORPE: Mr Justice Wilson will give the main judgment.
2. MR JUSTICE WILSON: The applicant ("the father") applies for permission to appeal against an order for contact between himself and his three children made by his Honour Judge Peter Latham in the Barnet County Court on 26th March 2001, wrongly dated 23rd March 2001. The father, who appears in person, first made his application without notice to the respondent ("the mother") before my Lord on 5th July. The application was adjourned for hearing on notice to the mother, who today appears by Mr Pryce of counsel; and my Lord directed that, were permission to be given, the appeal should directly follow. The father is a day out of time in issuing his application in this court; that negligible delay was not his fault and Mr Pryce agrees that, if the proposed appeal were apt for permission, time should be extended.
3. The three children are G, a boy who was born on 6th May 1988 and so is now aged 13 and a quarter years, and twins, H and E, a boy and a girl who were born on 3rd August 1990 and so will attain the age of 11 on Friday. All three children live with the mother in Watford. G attends a secondary school in Watford. Until the recent end of term the twins have been attending a junior school in Watford; and in September they will join G at the secondary school. The father also now lives in Watford, about ten minutes drive from the home of the mother and the children. Until February 2001, namely shortly prior to the judge's order, the father lived in Wargrave, a village which lies a few miles south of Henley.
4. There is no doubt that the mother is a good, loving mother to the children and no question but that they should continue to make their home with her. There is also no doubt that the father is devoted to the children; and, notwithstanding some criticisms of his care of the children articulated by the mother, the judge found that he was a responsible parent who cared for the children appropriately during periods of contact.
5. Prior to the order made on 26th March, the father's contact was regulated by an order, also made by His Honour Judge Latham, dated 17th May 1999. Under that order the children had staying contact with the father from 10.00 am on Saturday to 7.00 pm on Sunday once a month during term-time and for a fortnight each summer holiday and a week each Christmas and Easter holiday. Before the judge in March 2001 the mother, who was the applicant, was contending that unsupervised contact should be suspended for three months and that the father's contact should be confined to fortnightly visiting contact at a contact centre, whereas the father was contending that unsupervised contact should be increased to staying contact from after school on Friday until the beginning of school on Monday every other week during term-time and for one half of each school holiday.
6. The judge's decision on 26th March was to reject the contentions on each side. He had no hesitation in rejecting the suggestion that contact should be restricted to a contact centre; and I confess that it is not easy to discern any rational basis for the mother's suggestion to that effect. Apparently she was contending, on what the judge described as a misconceived and flimsy basis, that the father was suffering a psychiatric condition which should be the subject of expert appraisal. Equally, however, the judge rejected the father's proposals for an increase in contact. His order provided that, as before, the children should go to stay with the father from 10.00 am on Saturday until 7.00 pm on Sunday once a month, namely on the third weekend of the month, and that contact during the holidays should take place for a fortnight in the summer and for a week at Christmas and Easter. He directed that, as before, the children be handed over by the mother to the father at the beginning of contact, and by the father back to the mother at its end, at McDonald's in the town centre in Watford. He made a number of subsidiary provisions which it is unnecessary to recount.
7. The gist of the father's appeal would be that, in making the above provisions, the judge lost sight both of the wish of all three children to have greater contact with him and of the recommendations of the court welfare officer, Ms Sharp, to the effect that the "absolute minimum" would be three nights of contact per month during term-time, namely on one occasion each month from Friday after school until Monday prior to school.
8. The parents married in 1988 and separated in about 1996. Proceedings began in the Reading County Court and led to a decree absolute of divorce in 1998. Meanwhile, on 25th April 1997, in that court, an order was made, apparently by consent, for the father to have contact with the children every other weekend from Friday afternoon until Sunday afternoon during term-time and for approximately one half of each school holiday. Unfortunately, however, the history over the last four years has been one of extreme conflict between the two parents. In the judgment under proposed appeal, there are valuable comments about the personalities of each of the parents: the mother is described as over-anxious and insecure and the father as stubborn, self-willed and unreceptive to the views of others. Both of them attract significant criticism as lacking the maturity and selflessness necessary to make any contact arrangement run smoothly for the benefit of the children. It appears that the parents are not on speaking terms; that is indeed a desperate burden for them to inflict upon the children.
9. The judge's order made on 26th March was the twentieth order made in the proceedings. Soon after the order in the Reading County Court in 1997, the proceedings were transferred to the Barnet County Court and came under the direction of Judge Latham, who has to date reserved them to himself. Prior to his making his substantive order on 17th May 1999, the matter had come before him on four occasions. The order in May 1999 was the product of no less than ten days of evidence and submission, spread unfortunately over many months. Further interlocutory hearings followed the substantive order. And the order under proposed appeal was made after some two or three days, again not consecutive, of evidence and submissions.
10. An unusual feature of the hearing in March 2001 was that, at the judge's direction, which replicated a direction which he had made in the proceedings in 1999, the parties had prepared a Scott Schedule. In addition, each party had filed three statements, of which those by the mother ran to 101 pages. The schedule identified 63 incidents occurring since May 1999 upon which one or other of the parties sought an adjudication. The judge described them as "63 angry incidents" and "63 triable issues of fact"; and he said that the hearing had been set up as a trial for the finding of facts. I have to say, with the benefit of hindsight, that in my view the judge was mistaken to allow himself to be drawn into hearing evidence of numerous lamentable, but mostly very minor, incidents of conflict and non-cooperation between the parents in implementing the contact arrangements. In the event the judge upheld the father's version of 41 of the incidents; upheld the mother's version of 20 of them; and declined to make a finding in respect of the two which remained. The judgment, which has been transcribed, runs to 88 pages. It clearly reveals an admirable attempt by the judge to lead the parties to feel that nothing had been neglected in the decision- making process. But, where the parameters of the enquiry as drawn as widely as this judge allowed them to be, there is a risk that central issues may lose their focus.
11. The judge was clearly right to address in detail one incident which had occurred at the twins' school in April 2000, although, with respect, it might have been preferable to address it just once or twice in the judgment rather than to visit it on pages 9, 23, 41, 44, 51, 52 and 64. The incident arose out of the fact that the judge's previous order had provided for the father to have contact at Easter not by reference to a part of the Easter holidays, but by reference to the date of Easter itself. In 2000 Easter fell very late and the children went back to school almost immediately afterwards. The judge's order had thus provided for the father to have contact with the children over a period which included the first couple of days of the Summer school term. The father took the view that, subject to attending school, the children should continue to be with him during those days. On the afternoon of the first or second day of school, the mother and the father both appeared at school to collect H. There was an ugly scene, about which the headmistress of the twins' school gave oral evidence. Having heard all the evidence, the judge came to the conclusion that the father had behaved aggressively, unreasonably and offensively, both to the mother and to the school authorities. The judge's conclusion was that the father's behaviour had been outrageous and I have no reason to consider that that finding was unjustified.
12. By his order in May 1999, the judge had provided that the handover of the children by the mother to the father for contact, and back again by him to her at its end, should take place at McDonald's in Watford rather than at her home. Apparently the mother's home had been the venue for appalling confrontations between the parents which had even included violence. In his judgment underproposed appeal, the judge noted that the change of venue for handover to McDonald's had been a significant improvement. In his words:

"The hand-overs have remained very tense and controversial but at least there has been no direct violence between the parents since the order of 17th May 1999."

13. But the provision for hand-overs at McDonald's did, of course, require the parents to come into contact with each other to a limited extent; and, unless the children and the parents were to be subjected to anxious waiting at the restaurant, the arrangement required their occasional liaison by telephone. For example, there was evidence that, on one occasion when, in returning the children, the father was stuck in traffic and so likely to be late to arrive at the restaurant, the children had in vain begged him to stop and telephone the mother in order to inform her that they were to be late.
14. I turn now to the evidence of Ms Sharp, the welfare officer as she was then called. She filed a report dated 9th January 2001. She had not understood the mother to be suggesting that contact be confined to a contact centre. At the time of her report, the father was still living in Wargrave but was shortly to move to Watford. She reported that all the children told her that they would like to spend more time with their father but that they hated the journey to and particularly from Wargrave. It may be that Wargrave is less than 40 miles from Watford as the crow flies; but the journey, particularly the part up the M25 on Sunday evenings, is very slow. The children told Ms Sharp that, at the start of the monthly weekends, they sometimes felt that they could not bear the prospect of the journey; but that, once they arrived at the father's home, they had a good time and got on well with him so that, on Sunday evenings, they did not want to go home, particularly again in the light of the journey. All the children told Ms Sharp that things would be much better following the father's move to Watford.
15. Ms Sharp concluded her report as follows:

"I am inclined to suggest that the Court leave staying contact at one weekend a month, Saturday to Sunday. If Mr W moves to Watford as planned, then the potential for greater contact is increased and should be facilitated. It may be that if contact runs from collection from school on Friday evenings to return to school on Monday mornings, then this offers a compromise, but only on the understanding that school uniforms are to hand and either laundered by Mr Williams over the weekend or he provides a spare set. This suggestion also obviates the need for the parents to meet..."

16. In her oral evidence Ms Sharp stressed the limitations attendant upon staying contact beginning on one day and ending on the next, i.e. upon the absence of any entire day of contact with the father. She said:

"I think the argument for Friday to Monday is that it would mean that things would not have to be crammed into the time that they currently have and they could plan ahead to go away for a weekend or something like that."

17. Later there were the following exchanges between the father and Ms Sharp:
18. Father: "would you say that reducing contact between [the mother] and myself would be a good thing for the children"?
19. Ms Sharp: "Yes".
20. Father:" ... Does it therefore follow that contact from school, to and from school Friday to Monday, would help to reduce the tensions felt by the children"?
21. Ms Sharp: "I think it would in terms of the face-to-face contact between yourself and them. I observed a hand-over and I think that there is ... a tension that creeps into it, yes".
22. Father: " ... Do the children want to see more or less of me"?
23. Ms Sharp: "they would like to see more, but I think I explained to you that whilst the handover is better, once a month isn't enough, although they hated that journey, as you know, but it wasn't enough for them, they wanted to see more of you."
24. In answer to a later question by the father Ms Sharp said:

" ... the difficulty was that, including the journey, the actual quality time they had was very little, because it was only Saturday to Sunday, so that certainly wasn't enough. That's why, in trying to achieve a balance for them and everyone concerned, I thought that if they had the Friday to Sunday (sic) that would balance that up."

25. At the end of his questions, the father asked Ms Sharp about her compromise suggestion between what she understood to be the two contentions of the parents. The exchanges concluded as follows:
26. Ms Sharp: "But it's trying to achieve a minimum, the absolute minimum for them, which would be three nights, wouldn't it?
27. Father: "So you are saying that once a month is a minimum that you would regard as ... once a month as being an absolute minimum"?
28. Ms Sharp: "Yes, that was my thinking; yes, that would give the children a minimum of time spent with you in which they could go away for the weekend, or you could plan ahead."
29. With some hesitation, I have formed the view that the central message contained in Ms Sharp's recommendation became lost during the long judgment.
30. At page 35 the judge said of Ms Sharp:

"Essentially she recommends continuing a broad programme of defined contact in the way that it has been defined previously."

31. In fact the welfare officer was recommending a significant extension at each end of the monthly staying contact period.
32. At page 38 the judge said:

"She agreed that staying contact from Friday to Sunday (sic) would balance the long journeys that are not needed now."

33. If the judge understood the welfare officer to be saying that, now that the father had moved to Watford, there was no need for an extension of the monthly contact so as to begin on Friday afternoon and end on Monday morning, then, with respect, he misunderstood her.
34. At page 50 the judge said:

"In broad terms, I accept the conclusions of the court welfare officer ... especially in so far as she reaches the same conclusions as [a previous welfare officer] about the overview in the situation... The fact that broadly I accept Ms Sharp's conclusions about the overview of the case does not mean that I must, in my view, necessarily translate all the concessions that Ms Sharp made in cross-examination to [the father], into, as a matter of discretion, translating those into the full pattern of contact that father requests. The conclusions I reach at the end about the order to be made in this case have to take into account not only the court welfare officer's investigations, but the findings of fact that I make on the disputed issues of fact that Ms Sharp does not have to be involved in. It also very significantly has to take into account the findings of fact that I make about the evidence of the headmistress..."

35. In the event the judge decided to reject the suggestion of the welfare officer that the father should collect the children from school at the beginning of periods of contact and return them to school at the end of them. He decided to continue the arrangement for hand-overs at McDonald's. He said:

"It is my conclusion that the most important change that I should make is that the order should now make clear that father has no contact with any of the three children at or through their schools. I have thought very carefully about that, as I have explained in argument. Potentially it is quite a serious erosion of father's civil liberties. Father's contact with the children at and through the school has a number of dimensions. One is the possibility of picking up or returning the children from contact to school."

36. At page 81 he said:

"I reject father's case that handovers should be at school. For the reasons that I have explained, the father is not to have contact with the children at the school. He has shown he cannot be trusted to behave himself at the school so far as contact with the children is concerned."

37. The evidence about the father's behaviour at the school primarily related to the incident that occurred after Easter 2000; but there was also some evidence about an unpleasant moment between the parents at a school function during the autumn 2000. The father's complaint is that, if logically examined, those two incidents cannot lead to a conclusion that his collection of the children from school on Friday afternoons and delivery of them back to school on Monday mornings would be likely to cause trouble. Those incidents, argues the father, were the product of the negative chemistry between himself and the mother; and, he suggests, there is nothing to indicate that, were he alone to attend at the school gates to collect or deliver the children, there would be any difficulty at all. [He adds, however, that, when the twins join G at secondary school in September, all three children would be able on Fridays to take the school bus to a point near his home and on Mondays to catch it at the same point]. I confess to a concern that there is a substantial hiccough in the judge's reasoning in this regard; and I cannot associate myself with Mr Pryce's suggestion in his skeleton argument (not really pressed by him orally today) that such an arrangement would "involve the school" in any significant or potentially damaging way.
38. Of even greater concern, however, is the fact that, along with the rejection, logical or illogical, of the welfare officer's suggestion for the venue of handover, came – in effect automatically – a rejection of what I take to be her central recommendation, namely that the monthly period of staying contact should be, as an absolute minimum, for three nights. As Mr Pryce has been constrained to accept this morning, it was not expressly recognised in the judgment that she had made such a recommendation; and so, unsurprisingly, reasons for rejecting it are not offered by the judge. Even if it would not be in the children's interests for them to go to and from their father directly from and to school, it would clearly be possible for them to be handed over by the mother to the father at McDonald's on a Friday evening rather than on a Saturday morning, although I accept that a hand-over back to the mother, other than at her house, on a Monday morning might be more difficult to arrange. Be that as it may, the curious result is that the judge professes broadly to accept the conclusions of Ms Sharp but proceeds, without explanation, to reject their central feature.
39. It seems churlish to criticise a judgment which was the product of such meticulous care. But, as a trial judge myself, I know how easy it is to lose sight of central points within a morass of scarcely relevant details. Here were three children, G being then 12 and the twins being then 10, who, as the judge accepted, were clearly saying that they wanted to have more contact than at the level set in 1999, which was unusually restrictive in terms both of frequency and of duration. Here was a welfare officer clearly recommending a fairly modest extension so that the father's plans with the children should not be subject to the curtailment of an assignation on each day of it at McDonald's. I do not consider that the requisite exercise for the discretionary determination of the issues raised was properly performed; nor was the professional recommendation properly surveyed.
40. In those circumstances, I have considered closely whether the course which I should propose to my Lord for despatch of the appeal would be for this court to direct that the question of contact be re-heard by another judge; or whether it is open to this court to exercise the discretion not properly exercised below. I did consider that, particularly if the mother wished to have another judge hear her, put her point of view, there might be something to be said for directing a re-hearing. But her point of view is very clear. The welfare officer's point of view could not be clearer; and, with the greatest respect, I cannot see how any judge conducting a re-hearing could reasonably come to a conclusion on the issue of monthly staying contact during term-time other than in line with her recommendation. I consider that the proposal for contact to begin directly following school on Fridays and to end directly prior to school on Mondays obviates the continuing difficulties, which the judge recognised, attendant upon an arrangement for meeting at McDonald's, and would not, properly analysed, be an arrangement likely to cause any difficulty or conflict.
41. In those circumstances my suggestion is that we should not only set aside the order which the judge has made for monthly term-time contact, but make our own order for it, monthly, namely that it should last from Friday after school until Monday prior to school on the third weekend of each month.
42. With great wisdom Judge Latham himself has, so we are told, at times raised with the parties whether a fresh judicial mind should be brought to bear upon the intractable problems which confront the family and which, through no fault of their own, oppress these children. He has to date reserved this case to himself. In the event that there were further proceedings between the parties in relation to the children, I do, with great respect to the judge, consider that it might be helpful to the parties, and fairer to him, were a fresh mind indeed to be brought to bear upon the issues raised; and I would propose that we should direct the transfer of these proceedings from the Barnet County Court to the Watford County Court, in principle now more convenient for both parties, and to direct that, if practicable, the designated family judge should hear any applications referable to the children made therein.
43. LORD JUSTICE THORPE: I agree with all that my Lord proposes.
ORDER: Applications for permission to appeal and an extension of time granted; paragraph 1 of the order of 26th March in the court below to be varied as agreed; the case to be transferred to the Watford County Court; future hearings, if any, to be listed before the designated judge if available; copy of the judgment to be provided at public expense. (Order not part of approved judgment)