England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
(Mr Justice Johnson)

		Royal Courts of Justice Strand London WC2
		Monday, 9th July 2001

1. LORD JUSTICE THORPE: This is an application brought by Mr M for permission to appeal the judgment and orders of Mr Justice Johnson given on 2nd and 3rd April 2001. The judge had before him one application by Mr M for variation of the residence order in favour of his former wife, the mother of his two children, a girl born in 1990 and a boy born in 1992.
2. The judge recorded that there had been far too much litigation in the family, to the prejudice of the parties and the children. He said that it was the sixty-seventh court hearing. Mr M does not accept that: he maintains that it was only the twentieth court hearing. Even if it was only the twentieth, the judge was fully entitled to say that there had been too much litigation in the family. The judge noted that one of the good results of the litigation was that the father had succeeded in establishing a warm and important relationship with both children, which two or three years ago would have seemed rather a dubious development - dubious in the sense that it was doubtful of achievement. The judge referred to the expert evidence of a doctor and of the Official Solicitor's representative, which clearly established that both children wanted to share their time equally between mother and father.
3. The judge went on to consider the parents. He made very clear and very critical findings of Mr M. He said that, although presenting himself as a concerned father who was focused on child welfare, the reality was quite otherwise, and that he had used the litigation to harass the mother and to achieve his own personal ambitions in relation to the children. The judge said:

"He is as manipulative of the Court process as he has been manipulative of the mother."

4. He took two specific examples of the father's manipulative behaviour. He then made his assessment of the credibility of the parents. He said:

"... wherever there is a conflict of fact between the mother and the father, I prefer the evidence of the mother. ... I thought her a very impressive witness indeed, particularly when she was being questioned by [the father]."

5. He then came to his conclusions. He had no difficulty at all in rejecting the father's application for a residence order. He said: "... the reality is that in my judgment [the father] is so obsessed with seeking to achieve a change in the residence and have his own way in all matters relating to the children that he lacks the insight necessary to enable the children to grow up in a properly rounded way."
6. The judge proceeded to consider whether he should make a shared or joint residence order. He obviously referred to the children's clear and firm wishes. He then came to his conclusion. He said: "So there is much to be said for the making of the order that [Mr M] asks. However what seems to me to outweigh those advantages is Mr M's perception of the power, because I am sure that is how he sees it, that he would obtain by the making of that order. I am quite sure that he would use it to interfere, not simply on a basis of equality but domineering the family situation and seeking to override whatever the mother wished.
7. He would see himself not as being an equal party but as being in control.
8. I want to emphasise again that I recognise the advantages of an order for shared residence but in the particular circumstances of this case, as between this father and this mother, I am sure that it would certainly not ease the tension. It would increase it."
9. Mr M this morning has pointed to the court's obligation to have regard to the wishes and feelings of the children; and he has criticised the judge for not having exercised a discretion to achieve a status that would accord with the children's wishes. But the short answer to that is that the judge's greater obligation is to promote the welfare of the children. He has explained fully and decisively why, in the light of his findings of fact and his assessment of the credibility and personality of Mr M, the seemingly right order would in fact be contrary to the welfare of the children. I can see no possible basis for this court interfering with those findings, which are so essentially the responsibility of the trial judge.
10. Mr M's further complaints relate to orders which were not formally sought by either party but which were made by the court of its own motion. At the end of the trial, the judge said that he wished to make additional orders. He said:

"I would like to hear submissions as to orders that both the mother and the father be ordered not to harass the other or to attend at the home of the other save for the purpose of contact and not to telephone the home of the other except in an emergency."

11. He then asked counsel for the mother if she objected. The mother said that she did not. He then asked the father:

"Mr [M], do you resist that?"

12. Mr M said:

"My Lord, I cannot see why I should because if we have any emergency, any important issue arises, can contact."

13. Then the father said:

"On that aspect, my Lord, yes, because [inaudible words not recorded] yes. I agree with that."

14. So it is quite plain that Mr M did not oppose the judge's idea to put equal boundaries on both parents. He now says that he raised no objection because he was too frightened of the judge. I cannot place any weight on that submission.
15. Mr Justice Johnson went on to consider whether the existing order under section 91(14) should be continued. The mother's counsel welcomed that continuation. Mr M then made submissions in relation to that, ending with the statement:

"... that option should be left open for the children."

16. The judge thanked Mr M for his submissions but, in the exercise of his discretion, determined to make the order. Again Mr M says that he was frightened of the judge because of some threats the judge had made in November 1998. But it is quite plain to me that Mr M did not seek an adjournment in order to give him the opportunity to consider the judge's intention.
17. Mr M has founded his application for permission on the basis that applications of this sort, if not made by either party, should not be imposed or produced by the judge without proper opportunity being given to the parties to consider their position. There is authority which supports the proposition, I accept; but it is quite obvious from the transcript that on the day no application for an adjournment was raised, and the judge is not to be criticised for not having granted it.
18. Mr M did make an application for costs against the Official Solicitor. That was an application that was extremely difficult to justify, and there can be no surprise in the judge's rejection of that.
19. Finally, Mr M complains that the judge did not set aside earlier orders made on the assumption that he was not a legally aided litigant. He says that he was in a position to show the judge that at the material time he had the benefit of a certificate, even if he appeared before the court in person, and accordingly the judge should have set aside the orders. However, the transcript reveals that the judge dealt with that submission in a perfectly just and compassionate way. He said that such issues of fact were to be investigated not by him but by the Commission. He drew an order which protected Mr M from having to pay any of those costs. He said that enforcement of the costs order should be stayed to enable further inquiry to be made by the Commission, in particular but not limited to whether at the date Mr M was to be regarded as a legally assisted person for the purpose of section 17. That is a perfectly just order and one that is simply not open to criticism.
20. So despite Mr M's forceful submissions this morning, I can see no substance whatsoever in this application for permission. Albeit that it is advanced on a number of separate foundations, none of those foundations seems to me to have any merit. The application for permission is accordingly dismissed.
Order: application for permission to appeal dismissed; copy of transcript of this judgment to be provided to the applicant at public expense.