England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE STAINES COUNTY COURT
(His Honour Judge Bishop)

		Royal Courts of Justice Strand London WC2 Friday, 19th October 2001

1. LORD JUSTICE WARD: This is an application by the mother for permission to appeal an order made by His Honour Judge Bishop on 17th October. By that order he directed that the two boys with whom I am concerned should in the interim reside with the applicant, E.C. The boys are L who is 10 1/2 and J who is 5. They are the children of the applicant mother, Miss N, and her erstwhile partner, Mr. P F.
2. The history which emerges from the papers is that mother and father lived together, although unhappily, with mother making allegations of domestic violence against him. The children remained with him after their separation, but it appears to be practically common ground that she had such difficulties in coping with them that in about February 1999 she asked the father to look after them. They have resided with him ever since. He began an association with Miss C some time in 1999 or thereafter, and during the course of that association she got to know the boys. She moved in to live with him in December 2000, and since that time has been heavily involved in looking after the two boys and her own daughter, a girl J who is 7.
3. From what I understand, the father was arrested some time in the summer of 2000. He has been charged with another of attempting to murder a traveller on 30th June, when it is said that they attacked him with a machete. I also understand, as I try to piece the history together, that, possibly in retribution, the attacked man and/or his supporters ransacked the father's house, causing them to flee. The importance of that fact, which is not a point that seems to have been taken by the judge, is that L and his brother were removed from their school and simply assumed to have disappeared, though I am told that they were placed at some other school for the remainder of the summer term. What is important and what is worrying, for me at least, is that it was already known by June 2000 that L is such an emotionally disturbed boy that he is in need of what is called a pastoral support plan. That plan was written because L appears to be or at least to have been at severe risk of permanent exclusion from school. If that is right, that indicates the degree of his emotional disturbance and it may indicate that father is not doing a conspicuously brilliant job in caring for him. I have no evidence before me to suggest that there is a lack of proper care on the part of father and Miss C. But it is a worrying state of affairs.
4. Continuing to deal with schooling, at the beginning of the current term, that is to say, early in September 2001, a new plan was written. The good thing to emerge from that is that there appears to be some co-operation, in that the mother is involved in the plan and seems to be doing her best to do what she can to talk to L about his good certificates on their weekends together.
5. To resume the history, the judge seems to have proceeded upon a basis, from the notes that he has supplied, that:

"Mother seems to have known or at least suspected that the father is in trouble with the police and in custody. She knew he was in hospital early September. (Spoke to him from hospital). She said she suspected he was in custody - made inquiries with police - but no confirmation."

6. The date he gives is early September. On 19th September she went on holiday. On her return on 5th October she was apparently given a cutting from the local newspaper, which is dated 27th September, reciting the offence of the attempted murder charge, which I have already set out. She took advice and seems to have proceeded upon a basis that because as mother she had parental responsibility, she would be entitled to keep the children and did so after a weekend's contact. That led Miss C to apply for permission to apply for residence which was granted and then to making this application to the judge. The judge formed a provisional view that he should leave the children with the mother because she was the mother, and that she accordingly had a better claim than Miss C, whom we have chosen to call the stepmother. He was also worried about the charges preferred against the father. He was impressed by the fact that the mother was no longer working and was well able therefore to cope with her children, that not having been her position when she had to give them back to the father. But he changed his mind, and he appears from the notes I have to have taken the view that it was largely irrelevant

"whether the mother thought father was imprisoned or hospital. What was relevant is that the first respondent thought it was appropriate to leave both children with [the stepmother] even when she knew the father was not there and when she was suspicious that he was in trouble with the police."

7. The judge pointed out that, if the mother was truly concerned, she would have dropped everything, made her application to the court and cancelled her holiday if necessary. Her response is that she was not worried about the children's welfare with the applicant but believed that they were better off with her.
8. The mother was in person. It clearly put her under some forensic disadvantage, but the judge did his best to engage with her in the factors which had begun to trouble him. The first was that residence with the mother had broken down on a previous occasion; secondly, that the mother had not acted when her suspicions first arose, and then the status quo argument. The mother explained that the children wished to stay with her but the judge felt that he could not place weight on that assertion. His approach is not challenged before me. The gist of his judgment is that the judge thought that it would be better for the children to remain in the home where they had been for the past two and a half years or more, where they were familiar and in a school environment that they knew and that knew them. Notwithstanding his earlier instinct to leave them with mother and in a delicately balanced situation, having heard the parties, he concluded that the children ought to be returned to the stepmother. He emphasised that it was an interim order. He gave firm directions for the matter to be heard at the earliest date after December, and I am told that 2nd January is fixed for the hearing.
9. As the judge indicated, this was a delicately balanced case. I confess that my first inclination was that the application for permission was pretty hopeless, but Mr. Widdup has admirably attacked the judge's conclusions in a restrained way. He submits that the position of the mother as mother has been given insufficient weight. He submits that the past history is irrelevant, by which I think he really means that it was given undue weight by the judge. He seeks to diminish the force of the judge's concern about the mother's inactivity once she knew or suspected that the father was in trouble, and he submits that the status quo argument assumes that the children should have remained with the stepmother, when in fact that is leaving them in a position which had itself been changed by the father's arrest.
10. The facts which emerged at the hearing which cause me grave anxiety are, firstly, that given L's disturbed behaviour, he has already been moved to one school at the end of last summer. He is back at his old school this term. That does not speak well of father, but to move him from his school at a time when there is a support plan in progress, when arrangements are being made for speech therapy, is a dramatic move for the boy at a time when there is uncertainty as to what the future holds for him. It is by itself a justification for the judge's conclusion. The second factor which worries me is that I am now told that the father may not stand his trial at the Central Criminal Court until March. It had been expected that the result of the trial would be known by the time the judge came to deal with it. The unsatisfactory position is that in January the judge will have no clearer idea about the future almost than he has at the moment. In those circumstances, there is the temptation to grasp the nettle.
11. I have come to a conclusion that it would be wrong to grant permission to appeal. It is partly, I confess, founded upon purely pragmatic considerations, that I cannot, with the best will in the world, ensure that an appeal would be heard before 15th November. That is in the middle of the term. It gives this court no decent opportunity to make any effective change, even if an effective change can be made. It seems to me that in the interests of the boys' stability they should, as the judge found, remain where they are for the time being. I am grateful to Miss C for offering an extended period of contact over half term and, in the light of the fact that this application will be dismissed, she might even consider that she can be more generous than offering to have the children with her for an extended period up until Wednesday, and might be willing to consider that they can stay with mother for the whole of the half term. It may give her some respite and it will not do them any harm. I doubt whether the welfare officer would be able to see them in the mother's home during that time, but the solicitors could try to see whether they can be observed in their mother's care. The important thing, it seems to me, is that on 2nd January the court should be in as good a position as it can be to judge the mother's fitness at present to resume the care of the children. I hope that arrangements will have been made for a full welfare officer's report to report on her current ability to cope with at least one if not two difficult boys. I hope that this may be conveyed to the school that she has in mind, that a place can be kept available at the school in which the mother would wish to place them, so that they can go there at the beginning of the year if that is necessary. The worse thing that could happen is that they are moved back to mother today to be moved back in January. Even in January the court will have a difficult task. If the court is satisfied that mother is capable of resuming the reins of responsibility, I hope that the school placement will be available for the transfer to be effective there. I derive some comfort from the mother's concession (she is to be praised for it), that she has no real qualms about Miss C's ability to care for the boys. That is a responsible view to take. I congratulate her for it. I wonder whether similar acknowledgement may now be made about her ability to care for her boys, given her present state of confidence, the fact that she seems to have a new partner which is a good thing for her (I think he sits at the back of the court), that she has a more stable existence, that she is happy and that life is altogether better for her. In the long run, this is not going to be an easy case. This father has let his boys down by getting himself into a situation where his house is ransacked, where the children's lives are in a state of upheaval. He is in a position where he has been unable to persuade a court to grant him bail, so that he will have been in effective custody for nigh on six months waiting this charge. It does not read well for him. I cannot find any serious error in the judge's approach which justifies my giving permission, and I take the robust view that it is better that the parties prepare for a full hearing on 2nd January. I hope that they will be in a position then to lay all the facts before the court. I hope that the solicitors will convey this court's express wish (a) to the listing officer at Staines to ensure that this date is effective, and (b) to pass my compliments to the hard working welfare officer. It is extremely important that he is ready with his report for that hearing and I would expect, for the avoidance of doubt, that he will be reporting, not just on contact, but principally on the mother's present fitness to look after her own two boys. I have already indicated that I hope that a place will be kept for them at the school of the mother's choice. I am afraid that the application should be dismissed.
Order: Application refused.