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 PETERBOROUGH COUNTY COURT
(His Honour Judge McKittrick)

		Royal Courts of Justice Strand London WC2 Wednesday 14 November 2001

Wednesday 14 November 2001

1. THE PRESIDENT: This is an application for permission to appeal the decision of His Honour Judge McKittrick at the Peterborough Crown Buildings on 15 October 2001. On that occasion he made an order that a boy, J, born on 18 September 1989 and therefore 12, should move from living with his mother and her family to living with his father and his family. The mother seeks permission to appeal from that order.
2. There are to be considered three children of two families. The parents were married and they had two children, N born on 1 January 1988 and then J, the subject of these proceedings, about 21 months later. The marriage did not prosper, the parents divorced and each parent married again. The mother has throughout, until August 1999, had the two children living with her and her new husband and she in 1992 had a third child, H, born on 11 April 1992. (There is also a fourth child, born to the father, who is a baby and does not enter into these proceedings.) Unusually in so many of these cases, the parents and the step-parents managed to get on extremely well. They had a friendly relationship, as a result of which the two children moved easily between them.
3. The father's family (himself, his wife and now their baby) live in Cambridgeshire and the mother and her family lived in West Sussex. The stepfather has a job that requires him from time to time to change his place of work and it was convenient for them to move at one stage to the Cambridgeshire area, where they still live. When they moved to the Camebridgeshire area they chose to move very close to the father's family, I think in the next village. N went to the local community college and J in due course followed her. Although they are nearly two years apart in age there is only one school year between them and therefore they are one class apart at the community college. For reasons which are not relevant to this case N, who had stayed a great deal with her father and his family, chose (and everybody agreed that it was appropriate) to move to live with her father in August 1999.
4. The stepfather's job has required him to work near Wimbledon in Surrey, as a result of which the family had the difficult decision as to where they should live and whether they should, to use an Australian expression, relocate. They decided that they would go back to West Sussex for a number of reasons. Among the reasons is that the youngest member of the family, H, has medical problems. It is not necessary to detail them but they require him to have special attention, to be on drugs from time to time and to be under the supervision of specialist paediatric help. That has required the mother to spend a very considerable amount of time looking after the youngest member of the family. She also suffers quite severely from asthma. The judge set out the various reasons the mother gave for moving which included the care of H, some support from her own mother and her extended family, some of her problems of asthma, and the convenience for the stepfather.
5. There have been times when, both because the mother had to care for H and because she had been suffering ill health, it was very convenient that first N and then, after N went to live with her father, J should stay in the father's home for periods longer than just ordinary contact periods. It appears that in the year 2000, between November and December in the school term, J joined N living with his father and, again, for the entire school term of April to mid-July of this year 2001, the boy lived in his father's family. So J has spent in the last year something in excess of three months living with his father.
6. When the mother and her husband decided it would be a good idea to go back to West Sussex the father sought to retain J in his household by a residence order which would have the effect that J would continue at the school where he had started in September 2000 - of course that is important because it is his secondary education - and where he woud be in the same school as his elder sister. As a result of these proceedings, initiated I think by the father, the two families, for the first time, fell out. It has been a serious breach between them and a very sad one, particularly for the two children.
7. At the initial directions hearing before the district judge, the district judge took the course so often taken by district judges (and one which I respectfully entirely support) which was to send the parties off to see the court welfare officer, now the CAFCASS court reporter. At that stage the father was represented and the mother was representing herself. We have a note of what happened. The CAFCASS officer was impressed that the parties had managed to discuss and agree matters concerning their children in the past and that co-operation had been their theme, placing the children's interest first, including N's residence, but she noted that the rift this time was too wide for agreement. There was no issue on the contact, the issue was residence.
8. She explained to both the mother and the father the consequences and the potential for a CAFCASS court reporter section 7 report, and this is what she has noted down as her view of it:

"Both Parties were clear that [J] is stuck in the middle, he loves them both, he wants to be with both, he is close to N and H and he is becoming stressed. They were adamant a report looking at him, his relationships and his wishes and feelings would cause [J] more pressure and on this basis neither wished a report to be prepared. They both also considered the matter could be decided upon the facts alone. [The mother] especially did not want the delay involved in the preparation of a report."

9. I was told that the urgency was on the side of the father, but that certainly was not the perception of the court reporter.

"In addition, the process of carrying out enquiries, interviewing adults and the children involved, in a situation where both parents have indicated that they believe such a report is unnecessary would be extremely difficult."

10. I interpose that it does look as though the welfare officer made it very clear that the report would go beyond just asking the boy which parent he would like to live with. It is not the practice of welfare officers to ask that question in such a bald way, and I have no doubt that this welfare officer would have done nothing of the sort.
11. Then she went on to say:

"In this case [J's] parents told me that they did not want their son to be observed and interviewed prior to a residence decision and that, as he would not want to express a preference, such a report would not advance matters."

12. As a result of that, the district judge sent the case on to be tried by the circuit judge, and the district judge directed that there would be no CAFCASS report.
13. Before the hearing before the circuit judge it was agreed, owing to the element of urgency, that the case would not be heard in Norfolk but in Peterborough because there was a judge available there to hear the case more quickly.
14. When the case came before Judge McKittrick, through a variety of misfortunes, the mother did not know, although her lawyers did, what the case was being put forward by the father and she did not have a great deal of time to talk to her lawyers. Nonetheless, the lawyers did not suggest that they should seek an adjournment for that reason. It appears that the judge was asked to adjourn the case in respect of perhaps rather more peripheral witnesses and adjudicated that there would not be an adjournment to deal with them, but he was never asked to for an adjournment to enable the mother herself to be properly informed of the proceedings. Her lawyers clearly felt that they could carry on.
15. The judge himself asked questions as to why there was no CAFCASS report. It appears from Mr Richards (who represents the father and who, unlike Miss Zimbler, who is for the mother, did appear below) that the judge investigated in some detail why there was no CAFCASS report because it would be normal to have one. The parties had agreed there should not be a court welfare officer's report and that indication was given to the judge. Consequently, the judge was asked to go ahead on the basis that he would hear the case that day and would decide it on that day on the evidence of the parents and any other evidence the parents called.
16. He looked at the various points I have raised (and a number of others that I do not think it is really necessary to raise). He then went conscientiously through every one of the criteria relevant to this case in the welfare checklist under section 1(3) of the Children Act 1989. He started with the ascertainable wishes and feelings of the child concerned and he said:

"He is a bright, clever twelve-year-old. I find he is a boy who fits in, who has taken the differences in his fortunes in his stride. There is, because of the great urgency of this case, no welfare report but I am quite satisfied, and the parties put this openly to me, that he would wish this decision as to residence to be left to the court and that he would cope and be prepared to cope perfectly adequately with any order that the court could make. That seems to me to betray considerable maturity and wisdom. So I am satisfied that [J] could live with either the Applicant or the Respondent, and I am satisfied that his welfare would be catered for under each arrangement."

17. It is right to say that Miss Zimbler, who has said everything that could possibly be said for her client in this case, does not disagree with this assessment of the judge that the boy could live with either person. But she says that the judge was wrong not to leave the child with his mother or, alternatively (the point I am coming to) to order a CAFCASS report or to allow an adjournment.
18. The judge went on to say, looking at J's educational needs:

"I note that his educational needs are clearly and emphatically being met in his present environment. I also have to consider whether at the age of twelve, with just over one school year under his belt ... whether his education should be subject to upheaval again so comparatively soon after it was subject to upheaval when the family uprooted and came to Cambridgeshire."

19. He also raised his concerns about the emotional needs of J when he was being looked after by the mother, who has some very obvious problems with the younger son. "There is a risk [he put it no higher than that] ... that J's emotional needs may not be catered for." Then he went on to say:

"If I look at it the other way, it is quite clear that during the period that J has been with the Applicant, he has fitted in well with his sister, his material needs are being provided for, and from the evidence given by [the father] himself and the witness who was called on his behalf to give evidence just before lunch ... I am satisfied his emotional needs are being catered for there."

20. Then he went through the change of circumstances and he says:

"I have come to the conclusion that he has moved seamlessly into the household of his father and his father's wife. He has apparently, subject to child-like bickering, got on well with his sister ..."

21. Then he came to these conclusions:

" ... in the light of those findings I come to these conclusions ... no complaint is made about the general standard of care provided by [the mother] to [J]. But there are a number of features that I consider are at risk of affecting his welfare. First of all, there is [the mother's] asthma ... that condition at the present time is a stable condition and therefore that clearly cannot be regarded as a matter of detriment.

Secondly and importantly, the draining effect of coping with the needs of [H] ... and the prospect of further hospitalisation. ... the draining effect of her present husband's job [with the commuting he has to do and so on] ... uncertainty about the extent of the local support [from the mother's extended family] ...

The fact is that over nearly two years [J] has lived here and thrived. He has spent increasing amounts of time with his father, including substantial residential periods. His good relationships with his stepmother are there to be seen. He will be living with his sister, who is at the same school and a year ahead of him. The school is a settled one at an important stage, and I find it will be an upheaval to go to a new school ... I of course consider the relationship between [H] and [J], and from the evidence there is clearly a bond between those two stepbrothers. But I find on what I have heard of this case that there is a still greater bond between [J] and his sister [N], close in age, close in schooling and having shared much of their life together."

22. So he made the residence order in favour of the father.
23. This court starts on the basis, in a child case - as we are reminded by the House of Lords in G v G - that we do not interfere in a case unless the judge approached the case in the wrong way and took into account what he should not have done, or did not take into account what he should have done, or was not given the right information (which may come later, just occasionally, in family cases) or, standing back and looking at it, the judge was plainly wrong.
24. It would be in this case quite impossible to say that the judge was plainly wrong, unless there were certain factors that do not appear on the face of it. Those points were, I think, mainly three put forward by Miss Zimbler. The first was that the judge was not in a good position in the absence of a CAFCASS report to come to a conclusion as to the better place for this boy to live because he clearly could live in either home. The absence of a CAFCASS report was an intentional decision of both parents at an early stage. The judge queried it and neither side suggested at that stage that the agreement before the district judge should be changed. In an ideal world, there would be CAFCASS reports in all cases. With older children, in this modern time, I am always a little concerned as to whether a boy of this age ought not to have an opportunity to say what he thinks about being moved from one place to another. But this is a case in which both parents came to the conclusion - and the welfare officer's note is crucial in this case - that they did not want this boy, whom they thought would be under stress, to be troubled with, in effect, having to make a decision. So, although I am left with the concern that he might think his voice had not been heard, it was a decision of both parents. By the time the case came before the circuit judge it was too late, unless it was raised by counsel on one side, that at that stage there should be a welfare report. It is too late to say so to the Court of Appeal. You cannot have a bite at the cherry before the trial judge and then, when you think, well, maybe you ought to have had further evidence before the trial judge, say "Well, I was wrong not to ask for it and now I will come to the Court of Appeal and I will ask for that evidence to be provided by a second hearing." I am afraid that that is not the way the Court of Appeal operates.
25. The second point made is that the judge was not justified in making the findings of fact that he made. But the appellate court cannot entertain such an application except in rare circumstances where it is extremely obvious that the judge misunderstood the evidence or put in evidence that did not exist or left out evidence that was absolutely crucial. In this case, where he heard the evidence of both parents, he chose between them. It is fair to say that parents' evidence may not be as objective as all that, but it is the job of a judge to choose between them and the judge found that the boy had a closer relationship with his sister than with his brother. The mother queries that, but it is too late because it is a finding of the judge with which we cannot interfere.
26. The third and last point that Miss Zimbler makes is that the judge was "unfair" (in inverted commas because he did not know) in the way in which the case was conducted because it was not conducted on a level playing field. The mother was at a disadvantage at the hearing because there was no CAFCASS report, because there was no application for an adjournment and because the judge did not realise that she had not had an opportunity to meet the father's case. Her lawyers had it, but she did not. But in the absence of an application for adjournment, in the absence of a request at the late stage for a CAFCASS report, none of those points can possibly be said to come either within Article 6 or within the general proposition, which is identical to Article 6, that people are entitled to a fair trial on a level playing field. This mother had exactly the sort of trial that any other mother or father would have had in any case, and there is no basis for the criticism of the judge.
27. The judge balanced the evidence that the parties agreed he should have available to him and on that evidence he came down in favour of the father. No doubt the mother thought he would come down in her favour and because she lost she has brought the case to us. In the circumstances of this case, the exercise of the court's discretion, taken with considerable care by this judge, cannot be faulted and we have no right in this court to interfere with it. I would refuse permission to appeal.
28. LORD JUSTICE KEENE: I agree.
ORDER: Application refused