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 HIGH COURT OF JUSTICE
FAMILY DIVISION
(Mr Justice Connell)

		Royal Courts of Justice Strand London WC2 Tuesday 11th September, 2001

1. LORD JUSTICE THORPE: This is an application brought by Dr M S for permission to appeal an order and judgment given in the Family Division by Connell J on 29th June 2001.
2. The hearing before the judge was initiated by Dr S, who sought the variation of an order in relation to his contact with his two children made by a deputy judge, Mr Roderick Wood QC, sitting on 13th January 2000. In the interim Her Honour Judge Bevington had directed that a court welfare officer investigate the wishes and feelings of the two children to advise the judge who would hear Dr S's application. The court welfare officer duly performed that task and for her purposes did not see the children with their father but only saw them individually.
3. At the outset before Connell J Dr S launched an application for an adjournment and an order for a much fuller and more comprehensive welfare officer's report. He relied upon a decision of Johnson J Re P [1996] 2 FCR 285. The judge perfectly properly in my opinion distinguished that case, whilst recognising that in the generality of cases a report should be comprehensive. He rightly distinguished this class of case where the direction to the court welfare officer was a limited direction for a specific purpose. That was a discretionary decision which is simply not open to challenge in this court.
4. Dr S has also complained, and understandably complained, at the negativity of the outcome before Connell J. He has been striving to see his children for years since the breakdown of his marriage, and the courts have availed him nothing.
5. Connell J said in the course of his judgment that he agreed with the welfare officer's assessment that if Dr S wants to create a relationship with his children, his only hope now is to withdraw from the route of litigation and embark upon the much more difficult course of trying to convince the children that he has changed his attitude towards them and that he is nothing but supportive and loving.
6. The judge accordingly went on to reinforce that assessment by granting the mother's application for an order under section 91(14) of the Children Act 1989 preventing Dr S from issuing any further applications within the next 18 months without the permission of a judge.
7. Dr S has complained that that order was made unjustly, since he had no notice of the application and he was unprepared to deal with it. That submission simply disintegrates in the face of paragraph 15 of the only statement made by the mother in response to Dr S's application. Within that paragraph she made it plain that she was asking the court to bar the father from any further applications for the foreseeable future without leave of the court. It is manifest from the judgment that Connell J went to some pains to explain to Dr S as a litigant in person what was the force and effect of this subsection and his reasons for making the order.
8. This is a tragic case. I have every sympathy with Dr S and his sense of frustration at the futility of the court proceedings. But no area is more difficult than private law contact litigation. The court's powers are inevitably incomplete and it is notable that there is currently awaited a report from the Children Act Subcommittee of the Lord Chancellor's Advisory Board in this very difficult area. I am in no doubt at all that the decisions taken on 29th June by this very experienced judge were manifestly within the discretionary range. Indeed, I would go further and say that they were plainly the right orders on the evidence before him, and particularly in the light of his acceptance of the analysis of the court welfare officer.
9. So this application for permission simply fails. I would only wish to reiterate to Dr S that there are other avenues than litigation. If the prime objective is the restoration of human relationships, the court has inevitably a limited power and limited function to improve human relationships after there has been a catastrophic breakdown. Dr S would do well to ponder the conclusions that have been reached by very experienced professionals that however hard it may seem for him, his better chance of making a future relationship with these two children is to back off from litigation and to see whether he cannot reach through to them by alternative means.
10. The application for permission is accordingly dismissed.
ORDER: Application for permission to appeal refused; application for permission to appeal to the House of Lords refused. (Order not part of approved judgment)