England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
(MR JUSTICE JOHNSON)

		Royal Courts of Justice Strand London WC2 Friday, 23rd November 2001

Friday, 23rd November 2001

1. LADY JUSTICE HALE: This is a father's application for permission to appeal against the order of Johnson J made on 31 July 2001 in the Family Division of the High Court in wardship proceedings concerning his two children: G, who was born on 9th January 1989 and was 12-and-a-half years old at the date of the order; and T, who was born on 22nd July 1993, and was aged eight. The judge ordered that G should live with her father and T with his mother. He also made contact orders, to which I will return.
2. As well as the father's application, G has written to me asking that she be represented by her own solicitor in these proceedings. I have also received a very helpful letter from the National Youth Advocacy Service explaining their involvement in the case. G's letter is not a properly constituted application but I propose to deal with it in the course of this judgment. As a result, I may express myself a little differently from the way in which I otherwise would.
3. The father has represented himself virtually throughout the lengthy litigation in this country. He has presented us with two large well organised bundles, for which we are grateful; they necessarily do not contain all of the information that was before the judges in the court below. Johnson J at one stage had eight ring binders to consider. The father has also sworn a further affidavit for the purpose of this application. He has not made a formal application for leave to adduce fresh evidence, but we have read it, as we say, de bene esse, which means for what it is worth.
4. This case has a long and very unhappy story. The parents married in 1988. There was a substantial age gap between them and the father had been married twice before. G was born in England in 1989. The father's case is that the mother was drinking very heavily, virtually throughout the marriage, and that she is a chronic and incurable alcoholic. In 1993 the family moved to live in Spain and T was born there. They separated in 1997 and the mother was granted custody by a Spanish court.
5. In January 1998 the father removed the children to Gibraltar without the mother's knowledge or consent. Wardship proceedings were initiated there and tried by Chief Justice Schofield. He found that the mother might have abused alcohol in the past but that there was no evidence that she was "a complete drunk". He was satisfied that she was perfectly capable of caring properly for her own children. The reason for the husband's departure from Spain with the children was that he knew that he would not get his own way with the evidence which he could present to the Spanish courts. The Chief Justice therefore made orders permitting the mother to return to Spain with the children.
6. Thereafter proceedings continued in Spain. Johnson J found that the mother was put under sustained pressure by the father. G was involved in making numerous complaints to the police. She also made statements to the courts but that was no doubt part of the procedure there. They had conversations, some of which were tape recorded. One extract, which the father says was made in March 1999, was quoted by Johnson J. It is perhaps worth quoting again:

"Father - All right darling. Say it nicely and clearly because on a tape you can't hear. Can you just tell me for sure, absolutely sure who you want to live with.

G - Daddy, I've told 1,000 times that I want to live with you.

Father - I know, and you've told lots of other people lots of time.

G - 1,020 times.

Father - Now, let's just go over who you've told. You've told the judges...

G - The judges...

Father - You've told the welfare people, plus Maria Garcia and her welfare people, yes?

G - I told the psychologist...

Father - When they came to the school..."

7. Johnson J found that by the beginning of 1999, following months of harassment by the father, the mother's health began to decline. She became clinically depressed. She resorted to alcohol. She had a complete emotional collapse in early May 1999, when G went to the police station and called the police to the house. The court transferred physical care of the children to the father but ordered further investigations with a view to a hearing later in the year. The mother then sought treatment for her depression and her drinking problem (a matter to which I will return). In December 1999 the Spanish court heard an application by the father for permission to move the children's home to another town, to vary the contact arrangements with the mother and to bring the children to England for Christmas. All three applications failed. He was ordered to return the children to their former place of residence and schools and not allowed to take them to England for Christmas. There was to be no change in the arrangements until the psychologist and social worker had reported.
8. The psychologist and social worker's report is dated 22nd December 1999. It contained observations about the mother's health and her drinking problems the and progress that she made with that. It also contained observations on G's character and views. The conclusion, from which Johnson J quoted, was as follows:

"We have not been able to do a psychological study on the father as he has repeatedly refused this. For this reason, we cannot assess whether he has any tendency towards psychological disturbance. The interviews with the Social Worker have shown that his opinion of Kathleen [the mother] is very negative. He considers her an incurable alcoholic. His opinion is projected on to the children, causing them to believe that their mother is unable to solve her problems or look after them properly. As a result of this, they think less of their mother and this may have a negative effect on the normal development of the children.

On the other hand, the father has emotional ties with the children, especially with G who idolises him. This appears to be influencing her desire to live with him, leading her to believe that his values are the only ones which count and to blame all the problems that have occurred in the family on the mother. All this has affected G, in particular. She is heavily influenced by her father. This prevents her from forming her own opinion about the family's problems and also hinders any form of dialogue between G and her mother, which is of vital importance to ensure the girl's normal psychological and social development."

9. They recommended psychological support for G, and referred to the mother's treatment for which the prognosis was good, and indeed:

"For the reasons stated above, we believe she is able to assume responsibility of her family and social life and to take physical custody of the children."

10. On 3rd January 2000 the father brought the children to England without the mother's consent. In fact he arranged for a friend to bring them through as being the children who were named on her passport. They settled in East Anglia in Gorleston. G saw a general practitioner, a consultant psychiatrist and a psychiatric nurse, and she was adamant that she did not wish to return to her mother in Spain. She wrote to her mother telling her so in no uncertain terms. The first letter, dated 1st February 2000, was described by Wall J and Ward LJ as "very sad". Another letter, dated 23rd March 2000, struck Ward LJ as "rude". The nurse was concerned that the father had said that if G was returned to Spain he would not go with her. This was all in the context of proceedings under the Hague Convention on the Civil Aspects of International Child Abduction. Those proceedings had been invoked through the English Central Authorities in the usual way. In February, in the father's absence the Spanish court had given custody to the mother. There was also an application to enforce that judgment in this country.
11. On 3rd March 2000 Wall J ordered the children's return to Spain. G's views on the matter were perfectly clear, but he did not regard them as determinative of the issue. However, on 16th April 2000, the Court of Appeal allowed the father's appeal. This was based principally on G's objections to returning. Once the court had accepted that G should not be obliged to return in the face of her strenuously maintained objections to doing so, the court took the view that T would be placed in an intolerable situation were he to be ordered to return without her. That case is reported as Re T (Abduction: Child's objections to return) [2000] 2 FLR 192. I refer to that report for two reasons. The first is that Ward LJ emphasised (on page 221) that "we have not been looking at the merits", and he pointed out that that should be done with expedition. Sedley LJ made some interesting comments (at page 222):

"There is no shadow of doubt that the father has played a conscious role in alienating the children from their mother, both before and after the abduction. The mother for her part has tried, but with less success, to do the opposite. But there comes a point at which, for better or for worse, an intelligent and articulate child's views, whatever their genesis, have to be taken for what they are - and the views of G, who at 11 is perceptibly both intelligent and articulate, are now made disturbingly apparent by the letter she wrote to her mother on 1 February 2000...

This is not the work of a child whose mind has simply been poisoned, though her father has played a sedulous part in shaping her views; nor does the letter itself show any obvious sign of being written under dictation or pressure from the father, though it will certainly have had his tacit or overt encouragement. It is the work, in my view, of a child made shrewd beyond her years by parental warfare and family breakdown, who detects in her mother's behaviour the pathos and shifting of a defeated woman. I have great sympathy for the mother, with all her failings, and none for the father, who seems to me a calculating individual accustomed to getting his own way and not too concerned who gets hurt in the process."

12. Following on from Ward LJ's words the mother instituted wardship proceedings. She returned to England although she did apply for permission to take the children back to Spain. The official solicitor was appointed to represent the children. G was very soon showing dissatisfaction with his efforts and wanting to instruct her own solicitors. She had previously approached the National Youth Advocacy Service in the course of the abduction proceedings.
13. The official solicitor instructed Dr Lucey, a consultant child psychiatrist, to investigate and report. Again the father played little part in her inquiries. He took objection both to her and to the official solicitor's representative. This meant that Dr Lucey was not able to see G with her mother, although they were in contact during her inquiries. Dr Lucey's report is a very full and detailed one. Although she had not had the benefit of including the father in her assessment she had of course had access to the papers. In the circumstance it is an extremely well balanced report. For example, she says this about the alcohol problem:

"... I consider there is more truth in this than Mrs T says. I expect there were periods when Mrs Trussler's care of the children was very good but then the marital disharmony intervened. At the same time I take very seriously what G said to me. The consequences of the parents' mutual warfare lay at both parents' doors. I do not excuse Mrs T's abuse of alcohol but I suggest it was contextually determined and that in different circumstances her level of risk is much less. Of course, this would be very difficult for G to know or appreciate."

14. She says this about G's maturity.

"The question of G's maturity has been subject of debate with Dr McIvor, [her] Middle School and ultimately the Court of Appeal suggesting she is mature beyond her years. But they never explain what they mean by this. I agree G has had to cope with a dysfunctional family life beyond what one would hope any child could manage. In this way her experiences have been too adult for her. But maturity must mean something about wisdom, the capacity to evaluate information objectively, to avoid taking sides, to seek to resolve problems and conflict, to move beyond blame and retribution and to develop the capacity to think less of self and more of others.

In my view, G is a post pubertal early adolescent girl who is as mature as one could expect given her experiences so far, many of which have been very abnormal. I do not think she has a wisdom beyond her years, or a capacity to objectively evaluate the relationship of her parents beyond her years, or the capacity to weigh up truth and lies beyond her years or to consider the needs of her brother as separate to herself beyond her years.

So it is my view that this responsibility rests with the court to do this maturational task for her and it is a distortion of her emotional development and indeed needs at this point in her life to vest all decision making with her. I agree that much thought needs to be given to her views but that is not the same as allowing her [to] decide."

15. When referring to the specific questions which she had been asked, Dr Lucey said this:

"In my view neither [child] is displaying evidence of psychiatric disturbance. G is a post pubertal adolescent girl with a parentified role within her family and a pseudo powerful position. She can be manipulative and in my view she is not mature beyond her years in that she does not demonstrate a wisdom indicative of mature adult function. I do not suggest G is lying.

T is a shy reserved child. He is sad and misses his mother. He keeps these feelings to himself. He maintains his academic performance though his social relationships may be suffering. T's demeanour and behaviour alters very much in the presence of his mother and he is an entirely different child."

16. She then went on to recommend that T should return to the care of his mother "as this is the environment most likely to facilitate his personal growth and development". She would urge G to return also but noted her objections and their force, and that she might therefore refuse and remain with her father. She did not advocate splitting the siblings but she recognised that it might be inevitable as:

"T needs to be with his mother, and G's views had become entrenched. I also recognise that this gives the parents the opportunity to continue to fight each other using the child they retain. If this happens the contact across the divide will break down and the split in the family inevitably become complete. It is now time for the parents to stop and to focus on cooperation."

17. The official solicitor's recommendations to the court followed Dr Lucey's opinion.
18. The mother had also instructed Dr Drummond to report in relation to her own mental health. She did have recurring episodes of depression but there was no evidence of her continuing abuse of alcohol. Those findings were consistent with the observations of Dr Lucey and the other professionals who had met the mother.
19. The case was tried over several days before Johnson J in February 2000. He rejected an application for G to instruct her own solicitor. By the time of that hearing, of course, the children had been living with the father since May 1999, and in England since January 2000; so he approached the case with a reluctance to disturb that status quo. Nevertheless he did disturb it. He rejected the father's extreme case on the mother's alcoholism. There had been problems, undoubtedly, but the expert opinion of the current position and the prognosis was to the contrary. He was impressed with Dr Lucey's evidence, the more so when she gave it orally and responded to the father's questions. He concluded that T needed to be with his mother. G had been put under great pressure by the father; this was apparent from the tapes which he had heard (let alone all the other evidence) and her emotional needs were not being met. The judge hoped to keep the children together and also to protect T from similar pressure. On 23rd February 2001, therefore, Johnson J ordered that care and control of both children should be given to the mother. T was to be handed over that very day, G no later than 1st March 2001. There was to be contact every other weekend with the father, and for a 21, 7 and 7 days respectively during the summer, Christmas and Easter holidays.
20. T was not handed over that day. There was a seek and find order which was executed by the tipstaff in relation to T on 1st March 2001, and he has lived with his mother since then. G however ran away to evade the tipstaff. She was taken to court the next day and interviewed by the court welfare officer, Mr Mellor, and made her views plain in no uncertain terms. Hogg J adjourned the matter for further consideration by Johnson J but she suspended the contact order.
21. Permission to appeal against the orders made on 23rd February was refused by Thorpe LJ on 13th March 2001. He pointed out that these were factual findings and the exercise of the court's discretion with which this court would not interfere.
22. On 16th March Johnson J made an order designed to enforce his previous order with a penal notice attached. The father was to take G to the mother's home at around 2.00pm on 20th March 2001. There was thereafter to be no further contact without the prior consent of the mother and the official solicitor or the order of the court. This did not happen.
23. On 27th March 2001 Johnson J declined to send the father to prison for contempt of court in failing to implement that order. Instead, he ordered the local Social Services Authority to make a report, under section 37 of the Children Act 1989, into whether there were grounds for bringing care proceedings. It is understandable that he should have taken this gentle approach as the dilemma had been recognised from the start. He also provided for supervised contact between the children as directed or arranged by the official solicitor.
24. Arrangements were made for Coram Family to be involved in arranging and supervising contact between the children. The father has, however, refused to sign the referral form because he believes that it contravenes the children's rights. G herself also objects to the need for supervision of her contact with her brother. G was continuing in her efforts to have separate representation, but these failed because counsel advised that an application would not succeed and so public funding was not available.
25. Permission to appeal against the orders of 16th and 27th March was refused by Thorpe LJ on 21st June. By that time the section 37 report was available and he commented that it was an important development and would require investigation of whether others had misread the signs. That section 37 report was compiled by a Mrs Pleban, a senior social work practitioner. She was only recently qualified as such, although she had previously been qualified as a nurse and had counselling experience. The father did take part in her inquiries. One feature of her report is that it does not list Johnson J's judgment of 23rd February amongst the documents read. She found that G's behaviour and demeanour did not convey a child who had suffered significant harm. But she observed that both children had been harmed by what had gone before. She could not agree that it was solely or particularly the interactions with the father which had caused the children's emotional needs to be neglected. She acknowledged that there were no easy answers; the way forward she proposed was to promote contact between the children themselves, and efforts through counselling, mediation and contact to heal the rift between G and her mother. The conclusion was that no social services action was proposed.
26. Compared with Dr Lucey's, of course, this report had very limited terms of reference. Johnson J called it "disappointing". It did not address the underlying problems which had given rise to G's present attitude. The matter came back before Johnson J on 13th, 26th and 31st July. On 13th July he was told that G was dissatisfied with her representation by the official solicitor whose role had now been taken over by CAFCASS. Both the father and G accused the two representatives of inaccurate and misleading attendance notes. However, the judge did not permit separate representation.
27. Before him there was a CAFCASS report from one of those two officers, Ms Oliver. She remained concerned about G. She made the important point that G's views of her mother were based upon her memories of a time when the mother was very ill, and they had not been balanced by different memories had she been allowed and supported in her having contact with her mother in her current surroundings. She concluded that the litigation must now cease:

"I would be extremely concerned about any action which undermines T's placement with the mother. Both children have a right to live outside the constant threat of litigation. T should be able to rebuild his life with his mother. I accept Dr Lucey's view that the litigation should cease and there be no further involvement of the court in the issues with respect to contact and residence. This only creates pressure for G in particular."

28. The judge also had the comments from Dr Lucey and reports from Coram Family on the children's contact. They sensibly suggested that they should continue to facilitate and supervise contact but not in a context of reporting to the court. That is consistent with Ms Oliver's suggestion that the mediation services at Coram Centre should be offered to both parents so that progress could be made, indeed along the lines suggested by Mrs Pleban.
29. The father complains that the judge restricted cross-examination. He heard evidence from Mrs Pleban in person, but rejected the father's application for Dr Lucey and Ms Oliver to be called for cross-examination. Those were discretionary decisions in the exercise of his functions and they were well within the scope of his discretionary powers in a case in which he had himself heard so much evidence so recently.
30. His conclusion was to accept the inevitable. As I have made plain it was already foreshadowed by the earlier reports. His order of 31st July therefore de-warded the children. It ordered that G was to live with her father and T was to live with his mother. There was to be monthly supervised contact between the children at Coram Family Centre at times and dates to be arranged by them. There was to be further contact between the children, similarly as arranged by Coram Family. Contact between each child and the other parent was to be by agreement between the parents in consultation with Coram Family. He summarily dismissed the father's application to reconsider T's residence, having meticulously considered the relevant factors laid down by the Court of Appeal in Re B Minors Contact [1994] 2 FLR 1. He also dismissed the father's application for the appointment of an independent expert and for disclosure of the social services records leading to the section 37 report.
31. I come now to this application. Essentially, the father wants the order of 23rd February, and indeed the whole trial which led to it, set aside and the whole matter retried. His objective is for T as well as G to live with him. In his powerful observations to us today he has made it plain that that is what he wishes. He relies very heavily on the judgment of the Court of Appeal in the Hague Convention proceedings. He does so partly because of its emphasis on G's maturity, but also, and perhaps mainly, because it accepted the force of her objections to returning to Spain, and on the back of that acceptance concluded that T should not return either. He therefore finds it hard to understand why the outcome of the proceedings in this country should be that the children are living separately. He also relies heavily on the section 37 report which detected a good relationship between himself and his daughter, and saw no reason to believe that he had been emotionally abusive of her.
32. It is important to understand the distinctions between these various proceedings. The Hague Convention proceedings deal only with whether children should be summarily returned to the country from which they have been taken in breach of another person's custody rights. The court, as Ward LJ made clear, does not try the merits of the issues between the parties. It does not decide what will be best for the children. It does not hear oral evidence except in very unusual circumstances. Still less does the appeal court hear oral evidence or try the merits. Whatever impression Ward LJ may have had of the factual background when deciding on the issue of return is in no way determinative of the issues in the later proceedings.
33. Wardship proceedings are about the merits of the dispute between the parties. They are governed by the paramount consideration of the welfare of the children. They are considering what will be best for the children in the future, not only in the short-term but also in the medium term and in the longer term. The past is relevant only in so far as it can cast light on that. The present is often much more important. There is often extensive evidence and expert investigation as there was in this case. The children's wishes and feelings are an important component in their welfare, but, as Dr Lucey explained in the extracts which I have quoted, they cannot ever be determinative. Children often have very strong views and very clear wishes. They are, I have to say, often right, but they are not always right. They cannot always know what is best for them, nor should they be placed in the position of taking that responsibility. Generally speaking parents who care more about their children's welfare than they do about getting their own way not only cooperate fully with experts appointed to assist the court and assess what is best for the children, but also try their best to protect their children from having more involvement and taking more responsibility for the outcome of the proceedings than is absolutely necessary. Of course, in those proceedings the judge has an unrivalled opportunity to see the parties and the other witnesses, to hear evidence for them and to form his own opinions about the matter.
34. Care proceedings on the other hand can only be brought by local social services authorities. The outcome is either a care order or a supervision order. These can only be made if a child is suffering or likely to suffer significant harm; and even then only if that would be better for the child than leaving things as they are. The object of a section 37 report, therefore, is to enable the local authority to investigate and advise the court on whether such proceedings are appropriate. Obviously there was a concern that a child expressing the views expressed by G may be suffering significant emotional harm. But the conclusion that the local authority would not bring care proceedings in relation to G in no way means that it is inconsistent with the other inquiries that had been made and the other conclusions reached.
35. The problem in this case was recognised from the start of the wardship proceedings: that G's views were so clear and so entrenched that it would be difficult to establish any sort of relationship with her mother until the issue of her residence was sorted out. T's need to live with his mother was identified during the proceedings for a variety of reasons, and not only because of the position in relation to G. That finding cannot realistically be challenged. It was also recognised that splitting the children may be the only practicable solution. It is clear that Dr Lucey thought that that was preferable to leaving things as they were. Thus there is no basis at all for saying that the matter should now be reconsidered just because things have turned out as was feared. If G wants to see more of her brother then the remedy lies in her father's and her own hands. The opportunities which are presented by the order should be grasped with open arms and made the most of. The progress made with those opportunities should be such that very soon the family centre, who help so many families in similar circumstances, would be able to recommend more contact and different contact. So there is no basis for re-opening the decisions made by the judge.
36. I should, however, say a few words about G's application. It is the usual practice if children are to be represented in proceedings between their parents for that to be done by the official solicitor whose role has now been taken over by a specialist branch of CAFCASS. That, in itself, is rare enough. In most disputes between parents, children are not separately represented at all, although there is a report of a rather different nature from a CAFCASS Child and Family Reporter. It is very rare indeed for the child to be represented by anyone else unless the child is making an application independently of the parents. The situation is rather different in care proceedings; and the communications from the National Youth Advocacy Service may be confusing the two. It is much more common for older children to be represented separately from the children's guardian who is safeguarding their interests. The issues are of course completely different: the question of taking a child into care and what might be done with the child when taken into care obviously raise issues for the child which are quite separate from the issues raised between the local authority and the parents.
37. G's position as a person is of course separate from her father's position. Her view of the world and of her needs certainly ought to be separate from his by now. But as the father has said to us today he regards his position as the same as that of his children. He has no position other than theirs. Certainly the view that G has been presenting to the court has been crystal clear throughout. It does not matter whether or to what extent that was influenced by the father; it would be very odd if it had not been influenced by him to some extent, but it will have been influenced by a great many other things as well. G has difficulty in seeing things from any other point of view than the one which she has formed. That is much more understandable in her case than in the father's, and she wants exactly the same in these proceedings as the father does. Therefore, if there is no basis for interfering with Johnson J's order on the father's application, equally there would be no basis for interfering with it on G's. That is no doubt why counsel advised that the chances of obtaining an order that G be separately allowed to instruct her own solicitor would not succeed.
38. I make one further observation. It is quite apparent from the letter which G wrote and from all the other evidence about her that she is an articulate, intelligent and determined nearly 13 year-old. Some of us have experience of articulate, intelligent and determined nearly 13 year-olds. They are wonderful people. She is doing well in other aspects of her life. But, as Dr Lucey pointed out, there are two vital ingredients of full maturity. One is the capacity to see things from another point of view than one's own; and the other is acceptance of legitimate authority. Adults have to obey the law and court orders whether they agree with them or not. Children cannot expect to participate in their own right in legal proceedings in the same way as adults, unless and until they are prepared to accept the authority of the courts whether they agree with them or not.
39. For those reasons, I would refuse the father's application and similarly respond to G's request.
40. LORD JUSTICE RIX: I agree, for the reasons given by my Lady, Lady Justice Hale.
41. This is, of course, a sad case. Nothing the courts can do can make up for the absence of a loving family environment in which both parents join in the parenting of their children. When that union fractures, and particularly when mutual suspicions of each parent of the other makes their cooperation difficult and prevents them from placing the care of their children at a higher level than their suspicions of each other and their belief in themselves, the solutions which are available to the court cannot wave a magic wand over the very real difficulties which then arise.
42. I think that in this much litigated case the judge below has finally reached a determination which best meets the difficulties and practicalities of the situation. But, for the judge's ultimate solution to work requires above all the cooperation of the parents to make it work. Neither parent has all that each wants. It is now time for them to set aside what they want, which I quite understand they believe to be in the best interests of their children, and to concentrate instead on seeing what cooperation and helpful contact can achieve within the framework laid down by the court. Only in that way can the parents fulfil their obligations to their children, and in this case to both G and to T. It is time for the parents to put litigation and conflict aside and to power their energy as well as their love into more constructive ways.
(Applications refused; no order for costs; transcript to be provided at public expense).