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 BOURNEMOUTH COUNTY COURT
(His Honour Judge Bond)

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

1. LORD JUSTICE THORPE: This is a renewed application for permission to appeal an order made by His Honour Judge Bond in the Bournemouth County Court as long ago as 13th December 2000. The application was provisionally refused on paper on 3rd August. Dr McCormick appears today to exercise his client's right to an oral hearing.
2. In a carefully prepared skeleton argument Dr McCormick relies on six grounds, the first of which is plainly his main plank. He says that the judge placed too much reliance on a decision of Wall J in a reported case of Re M D [1994] FLR 489 and insufficient weight to a later decision of this court in Re S, reported in the following year of the Family Law Reports.
3. I do not think that the criticism is made out by reference to the very words of judgment. The judge deals with the point quite shortly at page 13 between lines 12 and 21. He refers to both cases, but having done so in a very short paragraph he concludes:

"In deciding the application the Court must apply the paramountcy principle and have regard to the checklist."

4. The application was the father's application to discharge a care order which was of relatively recent origin. The judge was undoubtedly right in his brief summary of his obligation to apply the paramountcy principle and to have regard to the checklist.
5. Dr McCormick says that there are a number of other passages within the judgment which shows that he regarded the father as being burdened with some onus which required discharge if he was to succeed. Onuses have very little, if any, place in family proceedings. I think the judge was using the expression loosely to indicate that where a father seeks the discharge of a care order recently made, inevitably he requires to show some material change of circumstance.
6. Even if there were anything in this point, even if there were any need for further guidance from this court as to the proper approach to applications for the discharge of care orders, this would not in my opinion be a suitable vehicle. The judge's decision to dismiss the application was manifestly well-founded on his findings in relation to disputed fact, and most particularly as to the various witnesses who had testified before him. In a careful judgment he reviewed in turn the evidence of each of the witnesses and most particularly within his review of the evidence of the applicant lies the justification for his conclusion.
7. That brings me conveniently to grounds three and four, where Dr McCormick criticises the judge's analysis of the expert evidence as to the father's personality. It is true that there is in this case some history of muddle made by the local authority, confusing this father with a well-known and serious paedophile. But that is quite irrelevant to the determination of Judge Bond and equally to the determination that I make today, since the judge had earlier found that this father was not an abuser and equally and consistently held that this application fell to be decided on that same basis, that this father was not an abuser.
8. However he had expert evidence, including evidence from Dr Shawcross, which he found to be "measured and fair". Having referred to the doctor's first and second reports in writing, he referred to his oral evidence. That he summarised, including the oral evidence given in cross-examination. Dr Shawcross's analysis was that the father's personality restricted his ability to deal with relationship problems and that the father's personality function was the essence of the problem in the case. The judge accepted that evidence, as he was entitled to do. I do not see that he is open to any criticism in that regard.
9. That brings me to the judge's assessment of the mother. True that she had been ambivalent in regard to the application for discharge, but the judge held that she was an embattled mother who was in need of support. The judge said of her in the witness box that she seemed to be exhausted and quite worn out. Dr McCormick criticises the judge for having regard to the needs of the mother. He says that the judge's task was to concentrate on the needs of the child. That submission is in my opinion superficial. It is very important that judges should concentrate on the needs of mothers who are primary carers. Their capacity to provide high standards of consistent care for children depend upon their well-being, and if they are exhausted and embattled their capacity to contribute is accordingly diminished. In having regard to the mother's needs, the judge was indirectly precisely having regard to the needs of the child.
10. I turn to Dr McCormick's criticism of the order made by the judge restricting the father from further application for a period of one year. Dr McCormick has realistically recognised that criticism is blunted by the fact that nine of the twelve months have now expired and the father has only to wait until December to be free from this restraint. Even if this application had come quickly to this court, it would not have had any force in my view since, as a matter of discretion, the judge concluded that the case was exceptional, that the parents had an enmeshed relationship and that there was a real risk that the mother would be subjected to unacceptable strain without the intervention of the court.
11. Finally, Dr McCormick refers to the need for a progression in the level of contact beyond the three Saturdays out of four ordered by the judge. Well that may well be a well-founded suggestion, but it must be materialised by a further application in the court of trial rather than by application to this court to review the prior decision of the trial judge. The order for contact specifically provided that some meetings should be supervised for the purpose of assessment. No doubt in due course there will be some review of the future which, by one means or another, may lead to necessary change. That is all part of the evolutionary process which is the province of the court of trial and not of this court.
12. For all those reasons this renewed application is dismissed.
ORDER: Application for permission to appeal refused; community legal funding assessment of the applicant's costs. (Order not part of approved judgment)