England and Wales Court of Appeal (Civil Division) Decisions

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

		Royal Courts of Justice Strand London WC2 Monday, 17th December 2001

1. LADY JUSTICE HALE: This is a father's application for permission to appeal against the order of His Honour Judge Ellis in the Croydon County Court on 4th October 2001. The essential elements of that order were that he refused the father's application for face to face contact with his two children and provided expressly that there should be no direct contact, but he did provide specifically for indirect contact. He also prohibited the father from making any further applications for orders under section 8 of the Children Act 1989 without leave of the court.
2. The father has not attended court to present his case today. I understand that he telephoned this morning wanting the court to provide him, virtually immediately, with a car parking space. He had not made prior arrangements, which is the usual way of securing such a facility. This is in any event only done in cases of disability or other exceptional circumstances. The court does not have parking facilities for everyone who wishes to attend court in their own interests. The father did not have evidence to establish such a disability as would justify making an instant exception in his case. His request was therefore not granted. His reaction was to refuse to attend court at all. Nevertheless, the case was put back in the list while others were dealt with. That would have given him an opportunity to find car parking facilities nearby or even, as things have turned out, to return home and return to court by public transport. In those circumstances it is in my view appropriate, as I have read the bundle of documents presented by the father for the purpose of this application, for me to proceed to determine it now.
3. This is a case about contact between a father and his children, with whom he is not living. These cases are always sad and they are often complicated. There are particular complications in this case. The parents met in 1989 and began a relationship. The mother had a daughter, A, by an earlier relationship. The parents' accounts of what happened after that differed considerably, but the judge, having heard evidence from them both, preferred the mother's version. This was partly because in many respects it was supported by other evidence or information and also to some extent by expert opinion, and partly because the mother came across to him as an honest and truthful witness.
4. Their first son, Ka, was born on 9th February 1991, and so he is now getting on for 11. The mother left for the first time while he was a baby. The father was imprisoned for unrelated offences in early 1992. There were reports prepared for the purpose of those proceedings. In March 1992 a social enquiry report recorded that he had reported an extremely deprived childhood and observed that he was an anxious, volatile man, much in need of personal help. The offences indicated a substantial lack of self-control and a tendency to agitation and aggression when under stress. There was a psychiatric report at the same time from a Dr Gundy indicating that he needed help with problems of anxiety, fear and panic attacks and the fact that he loses his temper too easily.
5. On his release from prison in 1992 the couple reconciled and their second son, Ki, was conceived. He was born on 25th May 1993, and so is now aged eight and a half. The mother's account was that she left him again while she was pregnant because of an assault upon her which was witnessed by her two other children. She went to a refuge and he was charged with causing grievous bodily harm to her. There was a psychiatric report from a Dr Potter in November 1992 for the purpose of those charges. The mother, however, later withdrew them. There was also a psychiatric report from a Dr Annear in April 1993, which referred to his "possessive, controlling and occasionally aggressive features" in the relationship and to his personality traits, including a number of paranoid features. The report said that he was diagnosed as having a mental disorder, paranoid disorder and possibly a conduct disorder, but that there was no evidence of mental illness. The records of the local authority's mental health team indicate that they had thought him sufficiently dangerous that two staff should see him together.
6. The mother's case was that they had never lived together after that assault, although she did let him see the children, but his attitude was that he could come and go as he pleased. It seems to me quite possible that someone with the father's personality traits could misinterpret her willingness to let him do so as a continuation of their relationship. There was an incident in early 1995 when the mother discovered that he had ill-treated her daughter. The police were called and he left with them. As a result of that, the mother wanted the contact situation regularised by a defined contact order. The outcome was a consent order made by the Family Proceedings Court in May 1995 for contact every Sunday between 10.00am and 4.00pm. The mother's case, however, was that the father continued as before, thinking that he could come and go as he pleased.
7. Matters came to a head in June 1996. She returned home from shopping and the father was at the house. Her daughter was distressed. The father was aggressive and threatening towards the mother, saying, "You're dead, you're dead." The police were called. It took six of the police to restrain him. There was an enormous struggle, witnessed by the children. He was later convicted of two counts of assault on the police and sentenced to two months' imprisonment. As a result of that incident the mother stopped contact. In fact, the boys have not seen their father since.
8. The father applied for shared residence and contact in October 1996. There was a court welfare officer's report from a Mrs Biffin dated 24th February 1997. Her view was that the father loved and cared for his children, but there was deep professional concern about his mental health. The children were frightened of their father, yet he had a dismissive attitude towards the June incident. She recommended that there be a full psychiatric assessment before any order was considered.
9. The case was transferred to the County Court. In the meantime, the father was referred by his general practitioner to Dr Gayford's clinic for assessment and report, and there was a report from a Dr Sivaloganathan dated 16th September 1997. The father had painted a much rosier picture of a happy childhood with foster parents after the premature death first of his father and then of his mother. He presented as a pleasant man, relaxed and co-operative, and there was no evidence of any psychiatric or psychological illnesses that that doctor could detect.
10. The father also raised concerns about the mother's care of the children. He made allegations that the mother's new partner (now her husband) was sexually abusing them. These were investigated, but found to have no substance. On the mother's case, he also began making abusive telephone calls to her. No doubt as a result of those allegations, His Honour Judge Ellis requested a report from the local social services authority. The report of a Miss O'Neill dated 2nd January 1998 gave no cause for concern about the mother's care of the children. She had no reason to doubt that the father genuinely cared for the children, but she did have concerns about his lack of insight into the effect upon the children of the violent events which they had witnessed and that his continued threats against the mother might have a detrimental effect upon their well-being. Her view was that contact was not in the children's interests and she recommended an up-to-date psychiatric assessment.
11. Hence various directions were given aimed at securing that. It took a regrettably long time to do so, but the outcome was that the London Child and Family Consultation Service, which is headed by Dr Arnon Bentovim, undertook the task, technically instructed on behalf of the father. Dr Ikkos reported on the father's psychiatric condition and Dr Bentovim reported upon the children, although he did not see the children with their father.
12. Dr Ikkos's report is dated 15th December 1998. It reviews most of the previous reports. He comments, in paragraph 14:

"It is also important to note, however, that in practice it is often difficult to draw the boundaries between paranoid personality disorder and paranoid schizophrenia and some academic psychiatrists with an interest in paranoia talk of a spectrum of paranoid disorders rather than distinct paranoid illnesses."

His own conclusion was that this was more likely to be a paranoid schizophrenic illness than a personality disorder. If so, of course, this would actually be helpful for the father in the current dispute, because there would be reason to think that there might be a substantial improvement in his mental state and relationships with appropriate treatment. However, because of his paranoid beliefs, Dr Ikkos considered that he was not then capable of conducting litigation on his own behalf.

13. Dr Bentovim's conclusion pointed to the evidence that the children had been traumatised by their previous contact with the father and that contact was not in their best interests.
14. The case came back to court before His Honour Judge Coningsby in April 1999. He invited the Official Solicitor to act for the father. The Official Solicitor accepted that invitation. In the light of the reports, he was prepared to ask for the case to be withdrawn. It was, however, adjourned generally.
15. There were also in April 1999 criminal proceedings against the father because of a threatening telephone call to the mother made on 3rd April 1999. Judge Ellis read the transcript of that telephone call and said that it was clear that it was a threatening call of an extremely abusive nature designed to distress the mother. The father was eventually convicted in relation to that phone call. There was another referral to Dr Gayford for the purpose of those proceedings. His report was dated 23rd February 2000. It concluded that the father was not mentally ill, but the judge quoted an important passage from it:

"... I would agree that due probably to his past there is evidence that he suffers from an emotionally unstable personality disorder of the impulsive type, with a marked tendency to act unexpectedly without consideration of the consequences; a marked tendency to quarrelsome behaviour, and to conflict with others especially when impulsive acts are thwarted and criticised; a liability to outbursts of anger or violence with inability to control the resulting behavioural explosions."

16. Eventually the Official Solicitor applied to be discharged and this was granted on 3rd August 2000. The father therefore restored his application for contact. There was a further report sought from Dr Gayford. This is dated 22nd March 2001. He had thought long and hard about Dr Ikkos's diagnosis. He quoted the passage which I have read about the spectrum of paranoid disorders. He confirmed his earlier opinion which the judge had quoted. It is, however, obvious to anybody reading that report that he had suggested that the father should not pursue his application for contact any further.
17. There was a CAFCASS report from Miss Barnes dated 8th August 2001. She did not see the children herself. This was because there had been clear recommendations before the court for the purposes of the earlier proceedings that there should be no contact. The children had now had the benefit of a period of time without trauma, were settling down well and should not be destabilised further.
18. The judge took the view that the violence by the father against the mother was of a very serious kind. It had been witnessed by the children. It was damaging for them. The father was not able to recognise this. There was no recognition of his need for change. He quoted the decision of this court in Re L [2000] 2 FLR 334: that the court has to weigh the seriousness of any violence, the risks involved and the impact upon the children against the positive factors, if any, of contact. The ability to recognise and make positive efforts for change would be an important factor. The judge pointed out that the children's welfare was the paramount consideration. He had also considered Article 8 of the European Convention on Human Rights. The father and the children had a right to family life, but he pointed out that interference could be justified in order to protect the rights and freedoms of others, including the children. The children had rights and interests under the Convention.
19. The judge considered whether the Child and Family reporter, Miss Barnes, should have seen the children, but he pointed out that they had been seen four times by three different professionals during the earlier proceedings. Their wishes and feelings were clear. They were now settled down. It was safe to infer that their wishes would not have changed to any significant extent. It is relevant that the judge also considered that, not only had the mother facilitated contact, she would be prepared to do so again if she thought that it would be safe. The judge also considered whether there should be experimental supervised contact, for example at the Coram Centre. This would be against the children's wishes and this would become apparent to the father. Dr Gayford's view was that the father would not be able to handle this and any visit would become a disaster.
20. We have, therefore, the situation in which the father's own psychiatrist has obviously taken the view that he should not pursue this application and has given evidence that an attempt to introduce the father to the children would be a disaster. In those circumstances it is difficult to see how the Court of Appeal could interfere with the decision reached by the learned judge.
21. The arguments put forward by the father say simply that it was wrong of the court to delay contact without using the contact centres. The father has every right to have contact with his children and a contact centre is a place of safety for the children. It should have made no difference whether the father was mentally ill or not. He also points out that it is easy to make a false accusation and this leads to constant trouble-shooting rather that painting a positive picture. He says that it is clear that the authorities do not like it when the father replies back to them. He says:

"It is rare to find this directness in our society today, because of fear of showing their true identities regardless if others may find this offensive or not."

He points out that Dr Ikkos had said that he was a "very likeable chap".

22. It is obvious from this careful and impeccable judgment that the judge had considered all of those points. The father has made it clear (indeed he has included counsel's advice on appeal within his bundle and presumably waived privilege in relation to it) that he was advised that an appeal would fail. That advice was clearly correct and this application must therefore fail.
23. I will, however, direct that a transcript of this judgment be provided to the applicant at public expense.
Order: application for permission to appeal dismissed; transcript of this judgment to be supplied to the applicant father at public expense.