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 THE FAMILY DIVISION
(Mr Justice Bennett)

		Royal Courts of Justice Strand London WC2 Thursday 16 August 2001

Thursday 16 August 2001

1. LORD JUSTICE ROBERT WALKER: This is an application for permission to appeal by a father, who has appeared in person and has addressed me with great skill and courtesy. The father wishes to appeal from an order of Bennett J made on 10 August 2001 (that is, last Friday) after a five-day hearing lasting from 6 to 10 August.
2. The case relates to a child, the father's son J. The case must not therefore be reported in such a way as to identify either J or his stepbrother or his half-brother, and those members of the public who are in court should recognise that, although this appeal is being heard in open court, its subject matter is very confidential.
3. The order was essentially for the return of J to live with his grandparents in Lima, Peru with regular contact with his mother, who lives in Lima, and also for contact with the father, both in Peru and in England, although the father has in his submissions to me this afternoon suggested that there would be real doubts about the reality of contact in England. J is to be returned to Peru tomorrow, and this application has therefore been heard as a matter of extreme urgency.
4. Some of the main grounds of appeal relied on are that the father was not legally represented before Bennett J and that he was emotionally unable and unprepared to deal with his own representation, both because of the difficulties which always attend a litigant in person and in particular because of his grandmother's very sad death on Saturday 4 August. In these circumstances two points should be made at once. The first is that in any case residence with custody and contact with children it is a huge strain on any parent to have to represent himself or herself in a matter of such great emotional significance. That has been considerably increased in the father's case by the death of his grandmother and the period of mourning which followed that. However, the judge recorded in his judgment, as I do, that the father is clearly a man of great intelligence and education, a man of strong character and a man with very good command of English, although it is not his native tongue.
5. I should also record that the father had legal aid, which was withdrawn (in circumstances which I need not go into in) last May. The father tells me that since then he had succeeded in obtaining the reinstatement of an emergency legal aid certificate, but it covered only quite limited purposes. The situation was therefore that, apart from the short-term reinstatement of an emergency certificate, the father has been without legal aid since shortly before a hearing before Hogg J on 21 May 2000. On that occasion the judge granted an adjournment at the father's request. He has therefore had a period of rather over two months in which either to obtain separate representation or to prepare his own case. In saying that I do not in any way underestimate the difficulties of someone in the father's position, with limited financial resources, in obtaining legal assistance in a complicated case.
6. The other preliminary point to be made is that, so far as the father relies, as he does, on fair trial rights under Article 6 of the European Convention on Human Rights, the hearing has not been concerned primarily with the determination of the father's civil rights and obligations but with what is in the best interests of his son on the test laid down in section 1 of the Children Act 1989, which the judge set out at length in his judgment. Although the father had to represent himself, his son was represented by his guardian ad litem, the Official Solicitor, and experienced counsel instructed by the Official Solicitor. An application for J himself to be made a party had earlier been refused by Hogg J on the ground that J (who is 11 years old, having been born on 4 February 1990) is not sufficiently mature to be put in the stressful position of himself giving instructions to legal representatives.
7. Bennett J heard the matter, as I have said, last week over five days including judgment, and he gave a long and careful judgment running to over 50 pages. I must perforce give a much briefer account of the facts than is to be found in the judgment from which the father wishes to appeal. The father is aged 41. His father's family settled in Peru in the 1920s, having originated in the Jewish community in Aleppo. His mother's family were also Jewish, coming from eastern Europe. His parents, who are now aged 70 or thereabouts in the case of his father, and 67 or thereabouts in the case of his mother, have a prosperous home and lifestyle in Lima. They had one son (that is the father) and three daughters. I will quote from the judge's judgment as to the circumstances of the father's marriage and J's birth (the father in this quotation of course refers to the applicant himself):

"When the father was about 17 he left home, not just physically but to a large extent emotionally. Although he has not severed all ties with his parents, he has largely rejected them, in particular his father's political philosophy. In 1980 or 1981, when he was 20 or 21 years old, he met the mother.

The mother comes from a quite different background. Whereas the father was and is Jewish, though not a practising Jew, the mother is Catholic. Whereas the father came from a privileged background, the mother does not. Her family were relatively poor and lived in the Piura region of Peru, that is to say, a part of Peru which borders Ecuador to the north....

As I have said, the mother and the father met in 1980 or 1981, when they enrolled in the social sciences faculty of the San Marcos University. They shared an interest in social science and socialist literature. They were politically active. In 1981 or 1982 they moved to La Paz, the capital of Bolivia, which lies to the south-east of Peru. They lived there until 1986. They ran a bookstall at the universities in La Paz and in Lima. The father says that life was uncomfortable for people of their political persuasion, that is to say, left wing, and they came to England.

On the 10th January 1986 they were married. The father's parents gave them a European tour as a present for their honeymoon. A year or so later they returned to Peru, where the father became employed by the Peruvian wing of the Diners Club run by his father. The father remained in Lima until at least 1992. During those years J was born and the marriage broke down. At some point, when J was about two years old, the mother and the father separated."

8. That summarises the family history down to about 1992. The father said that he found out that his wife was a lesbian and that was one of the principal causes of the break-up of the marriage. The judge did not accept that account of the matter. However, it seems clear that the mother did have a close friendship with another woman, Aurea, of which the father disapproved. After their separation, followed by divorce, the mother lived at first with J (who was the only child of the marriage) at the home of her parents in law. Then she moved to live with Aurea, with J staying with his grandparents.
9. The father was travelling abroad for much of 1993. In 1994 he moved to England and enrolled as a student at the London School of Economics. He has lived in England ever since. In 1997 he obtained a BA degree in history and in 1998 MSc degree in political economy from the London School of Economics. He is about to take up a university teaching post. In 1995 he met his present wife. She was married with a son, A, born in 1992. On 7 August 1997 she had a son, C, whose father is the applicant. They married in 1999 and live in Brixton in south London.
10. During 1998 and 1999 the father had extensive contact with J in Peru. The father took him off on an extended trip to see some parts of Peru which J had never seen before and it seems quite clear that that in more than one sense extended J's horizons and knowledge of his native land. J was at this time a pupil at the British Peruvian School in Lima. He was living with his grandparents and had regular contact with his mother (although there seems to be a conflict of evidence as to quite how regular that contact was). When the father visited Peru he was, as I have indicated, given very full contact with his son and took the fullest advantage of it. I should mention that on the occasion of the divorce there was a separation agreement dated 28 September 1994 made under Peruvian law which provided for the father and the mother to have joint parental authority with the mother's view to prevail in matters concerned with the child's care and the father's to proevail on matters of education and housing. The judge recorded that in his judgment but did not, as I understand it, attach any particular legal significance to that provision of the separation agreement.
11. In 1998, which was one of the years when the father spent a good deal of time with J in Peru, he applied to the Peruvian court for permission to take J to England for a holiday. The mother opposed this on the ground that he would not be returned and consequently lengthy proceedings ensued in Peru. The father has explained to me that family law in Peru is very different from what it is in England and that proceedings tend to take a long time, although regrettably they can also take a long time in this country.
12. The upshot was that the Peruvian court did in April 1999 give permission for J to have a holiday (not exceeding 45 days) with his father in England and on 10 January 2000 the father, who was then visiting Peru with his wife, his stepson A and his son C, flew back to England with J. J has been in this country ever since. The mother's fears about his not being returned proved well founded.
13. Peru was not at that time a party to the Hague Convention on child abduction, a convention with which this court is all too familiar. If provides for the very difficult situations which can arise when a child who has been living (usually with one of his parents) in one country ends up (usually with the other parent) in another country. The judge was evidently told, and recorded in his judgment, that the position has recently changed and that Peru has become a party to the Hague Convention since 1 August 2001. The father has told me, after consulting sources in London, that he does not accept that the treaty is fully in force as between England and Peru. It seems to me that was in no way decisive to the judge's main decision on J's future, although it may have some bearing on contact arrangements for the future. Such contact arrangements will be necessary wherever J is to spend the next few years.
14. The mother and the father's mother sought to secure J's return, not under the Hague Convention but by initiating more conventional legal proceedings in England. There were also proceedings in Peru in which the father seems to have taken no part, although it is fair to him to say that Cazalet J in the English court made on order in June 2000 prohibiting J's removal from the English jurisdiction, so obedience to the order of the Peruvian court might not have been possible without that order being changed. The father has this afternoon told me that the provisional custody order in favour of the mother, made in Peru and referred to in the judge's judgment, was not in fact a fully effective order but a recommendation by an official attorney which was not accepted. In the absence of closer scrutiny of the documents than is possible this afternoon, I cannot express any final view on that point, but it seems to me that the question of the interim custody order in Peru was referred to in the judgment as part of the narrative of the facts and did not form an essential part of the judge's reasoning.
15. On 13 December 2000 Hogg J decided (at a hearing which had been directed by the President of the Family Division) that J should not be summarily returned to Peru and that his welfare should be fully investigated in this country. That investigation was therefore undertaken and has now taken place with the assistance of the Official Solicitor and a very distinguished child psychiatrist, Dr Hamish Cameron, whose many qualifications I need not set out. I should mention (because the father attaches great importance to it) that J was also seen by another distinguished and experienced child specialist, Miss Doolan, who put in a written report which was before the judge but did not give oral evidence. The judge referred to that report and gave it such weight as he thought fit but he gave it much less weight than the evidence of Dr Cameron, partly because Dr Cameron is such an eminent specialist and gave oral evidence, some of it elicited under cross-examination by the father, and partly because Miss Doolan had not seen either J's grandmother or his mother.
16. Apart from Dr Cameron's evidence the judge also heard oral evidence from the mother, from the paternal grandmother, from a private investigator called Miss Clough, from the father and from the father's wife. She is a lady who is also gifted academically and is studying for a Master's degree in social anthropology to add to that which she already has from the University of Trujillo. Apart from this oral evidence, the judge also had numerous written reports and affidavits. I have already mentioned the written report of Miss Doolan. Apart from that there was a great volume of documentary evidence. The father has shown me some 500 pages of affidavits and other documents which he himself prepared and placed before the court.
17. The judge correctly stated the issues which he had to decide, as follows:

"(1) Is it in J's best interests that he should be returned to Peru and live with the grandparents or that he should remain living here with the father, [his wife, A and C]?

(2) If I decide that J should live in Peru or in England, what contact should the father have to J or the mother and the grandparents to J respectively."

18. The judge then continued:

"There is no dispute that I am being asked to determine the long term future of J. This is not now an application for his summary return so that the Peruvian court can determine his long-term future. I am therefore clear that I must apply the full ambit of s 1 of the Children Act 1989, which, in case this judgment has to be shown to a judge in Peru, I will set out in full.

He then proceeded to do so.

For present purposes I must concentrate on the first point, although I do not lose sight of the way that the questions of contact also impinge on the first question. The judge went very carefully through the well-known statutory checklist in section 1(3) of the Children Act 1989. He made findings of fact where necessary, based on his assessment of the witnesses. The father has told me without undue resentment that the judge resolved a number of questions of fact against him and suggests that this might not have happened had he been legally represented. It seems to me that the findings of fact made by the judge were essentially findings which the judge made on his assessment of the oral evidence given by the witnesses, together with his knowledge of the surrounding circumstances and the probabilities of the matter, and it is extremely unlikely that legal representation would have altered any of the findings of fact made by the judge.

The judge found that J had been happy, well cared for and well-educated in Lima, with a circle of schoolfriends, even though his home life had been, as the judge recognised, staid and protected - indeed, by the standards of a child of any class growing up in London, it might be said over-protected. The judge also found that J had been happy, well cared for and well-educated since he came to England. The father has told me, and I accept, that J has flourished in his school work in England and is now in the top 5 percentile of what is a very good school. The judge did not accept the father's view that the father's parents and sisters were a dysfunctional family. The judge said (and, to some extent, the father himself has echoed it) that it had been tragic to see the father cross-examining his own mother in an English court. The profound differences between the father and his parents on political and social questions do seem, very sadly, now to have permeated the whole of their relationship.

The judge accepted that J has said repeatedly and has also said in letters (although the spontaneity of some of those letters may be in doubt) that he, J, wanted to stay in England with his father's present family. The judge said that that, however, had to be weighed against the influence of the father, whom Dr Cameron described as "dominating, controlling and a driven man so far as J is concerned". Dr Cameron spoke of the father's obsessional "focused intensity" on J. After a full discussion of all the numerous points placed before him (and it is quite impossible for me in the time available to cover all of them) the judge reached a clear conclusion. He said:

"I have, of course, to balance all these matters, and to make a decision, bearing in mind that J's welfare is my paramount consideration. In my judgment, for J to remain with the father in England is not in his best interests. I am afraid that I am driven to find the father is obsessive about J."

19. That is the finding that the judge made and although (as I reiterate) the father has this afternoon addressed me with the greatest moderation and courtesy, I cannot close my eyes to the finding which the judge made after a five-day hearing.
20. As I explained to the father at the beginning of this hearing, in explaining the nature of the appellate process, the English system of family law has always placed very great importance on having questions of child welfare decided by a family judge who has specialised training and experience in this very difficult and delicate area of the law, touching as it does on the deepest human emotions. Decisions have to be made in child cases as swiftly as is consistent with proper consideration of them (and this matter was considered by the judge over five days) especially in a case where a child has been uprooted from one country and has started to put down roots in another. A process of deferring the final hearing and of then embarking on a long appeal process is almost always detrimental to the child's interests, whatever the ultimate decision. There is therefore a very strong policy against appellate tribunals interfering, except in the clearest possible cases, with decisions of experienced family judges who have seen and heard the witnesses and exercised their discretion on the facts as they see them.
21. I have listened, I hope with anxious attention and certainly with natural sympathy, to the father's submissions. However, none of them has persuaded me that there is a real prospect of the full Court of Appeal reversing the main decision of Bennett J as to J's return to Peru. That was a decision which he made in the exercise of his discretion after seeing and hearing witnesses during a week long hearing. Questions as to the fine-tuning of the access provisions may well have to be the subject of a later application to the Family Division, especially if it should happen (although I trust it will not happen) that there were to be any breach of the solemn undertakings given to the court by J's mother and his grandmother.
22. In his closing submissions, the father urged upon me that if I was not prepared to grant permission to appeal on this occasion, I should at least grant a stay of execution in order to enable him to seek legal advice. I have carefully considered that possibility. However, realistically speaking the position is that he is most unlikely to obtain assistance from the Legal Services Commission unless and until he obtains permission to appeal. He has, in the short time available to him, placed before me all the points which would be likely to be raised on an application for permission to appeal. I must therefore harden my heart and rule that I should on this occasion refuse both permission to appeal and a stay of execution.
ORDER: Application refused. A copy of the transcript of this judgment to be provided to the applicant at public expense. (Order not part of approved judgment)