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 PRINCIPAL REGISTRY
OF THE FAMILY DIVISION
(MISS RECORDER BALL Q.C.)

		Royal Courts of Justice Strand London WC2
		Wednesday, 31st January 2001

Wednesday, 31st January 2001

IDENTIFICATION RESTRICTIONS
1. THE PRESIDENT: I will ask Lord Justice Thorpe to give the first judgment.
2. LORD JUSTICE THORPE: The parents in dispute in this case are the 32-year-old mother and the 37-year-old father of a single child (known as "T") who was born on 6th April 1999. The parties were co-habiting by 1998 and married on 7th November. The marriage was of very brief duration, the wife's petition for dissolution being filed on 18th April 2000.
3. There was a flurry of litigation in the Brentford County Court in the first half of September 2000 culminating in a series of hearings before his Honour Judge Karsten Q.C., which terminated on 15th September. On an objective review of that exchange, I think it is fair to say that the mother was probably deeply disappointed at the outcome. On the following day, the 16th, there was an episode at the family home which led a young neighbour to the conclusion that the mother had made an attempt on her own life and on the life of "T". The police were summoned and inevitably child protection procedures were put in place.
4. There was a hearing before her Honour Judge Anwyl Q.C. on 30th October and during the course of the hearing the mother put in a manuscript statement explaining her actions on 16th September, an explanation which suggested that there was simply a hideous misapprehension on the part of the young neighbour. However, there was a serious issue for the court as to what should be the level and extent of the mother's contact with "T" since, following the episode, "T" had passed into his father's safe care.
5. Judge Anwyl considered a number of alternatives and, quite understandably and almost inevitably, preferred the option which was advanced on the father's behalf, namely that contact should be confined to fully supervised contact at the Accord Centre three times per week, each visit to be of two hours' duration. Shortly after the initiation of that regime, the mother was charged with the attempted murder of "T" and bailed to await committal.
6. The need for a further hearing arose as a result of the fact that the Accord Centre was to close for Christmas, so a hearing was arranged before Miss Recorder Ball Q.C. to determine what alternative arrangements (if any) should be put in place. The mother's proposal was that over the Christmas holiday the supervision of contact should be in the hands of her family and close friends, either her brother and sister-in-law or a very old professional colleague who was herself married and whose husband was equally prepared to join the supervisory group. Over the period of Christmas it was either accepted by the father or not opposed that there should be some arrangement put on foot. But the real dispute for the decision of the recorder was as to what should happen when the Accord Centre re-opened after Christmas, when the rules of the centre required them to make a material reduction in the extent of the supervised contact that they would be able to offer after 6th January. Thus each of the three sessions a week would be reduced in duration to one hour. Accordingly, on the mother's behalf, it was suggested that that 50% reduction should be off-set by setting up an arrangement whereby she would meet "T" on alternate weekends in the home of one of the supervising families. That proposal was firmly opposed by the father, who emphasised (as indeed he emphasises in this court) that until the nature of the risk is more clearly exposed by either the conclusion or the progress of the criminal proceedings the welfare of the child demanded the excision of any risk.
7. It is manifest from her judgment that the learned recorder took a lot of trouble over this case. She insisted upon hearing from each of the four proposed supervisors. She arranged for their attendance. She heard them cross-examined by counsel for the father and she herself was at pains to ensure that they understood the seriousness of the responsibility that they undertook in putting themselves forward as supervisors. The order that the judge made is worth examining in its detail. She attached to her order of 18th December a schedule. That schedule reveals that she sanctioned the first home visit after the re-opening of the Accord Centre on 6th January to take place over the weekend of 20th/21st January. The order that she made was an interim order to run until Monday, 26th February. Accordingly, she was providing for only three periods of what I might call family contact: the first on the weekend that I have identified, the second falling on the 3rd/4th February weekend and the third on the 17th/18th February weekend.
8. So all that the learned recorder was providing was three visits with a total duration of six hours, and she had taken careful steps to ensure that those who would be supervising those home visits would be there as a couple, and, if both were not in the room with the mother and "T", then at least one of them would be in the room and the other close by. She made it absolutely plain that if the father himself wanted to be in the house during those visits, then that was a perfectly acceptable arrangement to the court, providing it was agreed within the family. She also made it absolutely plain that her decision in relation to this brief period was without prejudice to whatever argument either parent might want to advance as to the future at the hearing on 26th February.
9. The recorder's ruling was not accepted by the father and on 29th December he applied to this court for permission, permission having been refused by the learned recorder on 18th December when she had fully reasoned her ground for refusal. She said first that she was satisfied that the child needed more contact with the mother than could now be arranged through the Accord Centre; secondly that she was satisfied that the supervisors understood the seriousness of their role; and thirdly that there was, in any event, to be a review on 26th February, at which time the father would have the opportunity of putting to the court any renewed or fresh concerns.
10. The application for permission was first considered on 19th January on paper, when my Lady adjourned to an oral hearing on the 22nd. At that oral hearing she granted permission and set up this expedited hearing. It is important to stress that at the time my Lady took those decisions she did not have available to her a transcript of the judgment of the learned recorder. She only had a note, which, like all notes, has inevitable deficiency since it does not capture the verbatim reasoning.
11. Mr. Marshall for the father has emphasised that the recorder had accepted the basic approach of Judge Anwyl, namely that there should be maximum supervision during this uncertain period. She specifically said that, had the Accord Centre been available as a full option, she would have preferred that, just as Judge Anwyl had preferred it. But I see no illogicality in her progress from that decision to her end conclusion. She quite rightly identified the importance to "T" of good quality, continuing contact with his mother. The Accord Centre could not offer any contact over the Christmas period. But even beyond Christmas, the contact that the Accord Centre was able to offer was only 50% in duration of that which had been sanctioned by Judge Anwyl. So the learned recorder had to balance the detriment to "T" of confining contact to the Accord Centre between 6th January and 26th February, a confinement which she held to be detrimental to "T"'s welfare, against the risks involved in moving supervision from a professional contact centre to one of the family homes.
12. It seems to me that it is extremely difficult to mount any criticism of the recorder's discharge of her discretionary choice when she took such trouble to ensure the responsibility of the family supervisors and equally to ensure that they understood what it was that the court was asking of them. In general, it should be emphasised that it is rarely necessary for this court to interfere with what are essentially short duration, interim orders made in the court of trial. There needs to be some fairly exceptional irregularity to justify such an intervention by this court.
13. I can see absolutely no case for intervention here. I would indeed express my opinion that the learned recorder dealt with this case sensibly and conscientiously.
14. There is further confidence to be drawn from the additional evidence which Mr. Amos on behalf of the mother has supplied for the purposes of today's hearing. There is, within that evidence, statements from the mother's brother and her sister-in-law which make it plain that the contact that has been set up under the order of 18th December has proceeded in just the sort of way that the learned recorder hoped and envisaged. There are within Mr. Amos's skeleton a number of other powerful considerations which go in support of the judgment in the court below; but I do not consider it necessary to say any more to explain why it is that I think that this appeal should be dismissed.
15. THE PRESIDENT: I agree with the judgment of my Lord and would only add a few words.
16. The mother faces an extremely serious charge and consequently it is entirely right, until that matter has been disposed of, that any relationship between her and her child should be monitored with particular care. On the other hand, this little boy of 20 months or so has a close and loving relationship with his mother, and it is extremely important that he should not suffer any more than is necessary during this period. Consequently there is the important element of the continuing relationship between the child and his mother, and equally there is an extremely important element in protecting him from the danger that his mother might pose.
17. In October Judge Anwyl had no problem: there was the Accord Centre. In December, Miss Recorder Ball had the problem that the Accord Centre was no longer available, firstly over Christmas at all, and secondly, following Christmas, to a degree which would provide to the detriment of this little boy.
18. The transcript of the judgment of Miss Recorder Ball, which I had an opportunity to read for first time yesterday, demonstrates the enormous care and conscientiousness with which she approached the new problem that had arisen since the hearing before Judge Anwyl. I agree with my Lord that she approached it not only carefully and conscientiously but entirely in the right way. She balanced the particular risk in this case against the needs of this child. She gave perfectly adequate attention to the seriousness of the risk. Since the allegation is that this child was the subject of an attempted suicide with the mother taking the child with her (and therefore attempted murder), it is not likely that she would be assaulting the child or otherwise behaving improperly to the child in a situation where she was with other people. The danger would lie in letting her go off on her own with the child.
19. The recorder, with very great care, satisfied herself that every one of the proposed supervisors understood the dangers and would be alert to them, although naturally, as relatives and friends of the mother, they would not believe that the charge against the mother could be true. With the hindsight of the additional evidence presented to us, it is obvious that the contact has been conscientiously supervised by those members of the family and friends. The matter will be reviewed at the end of February, and it will be for the mother and father to set out to the judge or recorder at that hearing what the future arrangements should be. But I am entirely satisfied, not only that it would be wrong for this court to intervene, but that there is absolutely no reason for any criticism whatever of the approach of the recorder to the very difficult problem presented to her last December.
20. I agree, therefore, that this appeal should be dismissed.
ORDER: Appeal dismissed; identification restrictions; leave given to adduce additional evidence; stay removed; two hours' contact extended to three; costs of the appeal to be paid by the appellant. (ORDER NOT PART OF APPROVED JUDGMENT) -----------------