England and Wales Court of Appeal (Civil Division) Decisions

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

		Royal Courts of Justice Strand London WC2 Monday, 5th March 2001

1. LADY JUSTICE HALE: This is an application for permission to appeal against an order of His Honour Judge Latham in the Barnet County Court on 18th December 2000 in Children Act proceedings relating to two boys, J, who was born on 9th May 1992 and was then eight and a half, and K, who was born on 11th November 1995 and was then five. The parents married in 1983. They are both well educated, intelligent and successful people. The mother has a Ph.D in psychology and is a management development consultant with the local authority and also has a private consultancy practice. The father runs a successful business from home. The former matrimonial home is a converted public house in a Hertfordshire village.
2. The parents first separated in 1998. They reconciled and separated again in September 1999. The mother left home with the boys to live in a rented house nearby with her new partner. The father has since formed a new relationship with Mrs E who has three daughters based at home with them.
3. The father immediately applied for a residence order. The first order on 7th October 1999 provided for shared residence. The mother was to have the children on weekdays and the father at weekends until mid-December and then the positions were to be reversed until the final hearing. There was a court welfare officer's report from Mr. Watkins dated 11th January 2000. It is not in the bundle before us but it was before the judge. However, the parties reached agreement in principle and on 4th February 2000 His Honour Judge Adams made an order by consent. This provided for shared residence. During term times the children would live with the mother except for two weekends out of three and for Wednesday evenings on either side of the weekends spent with the mother. All the school holidays were to be shared equally between the parents.
4. Shortly after this the mother told the father that she was thinking of moving to the country. She rented a property near Wisbech in Cambridgeshire which had enough land on which to keep horses. This was attractive for Mr. B to set up a business there. Accordingly, the father applied for a prohibited steps order in May. On 2nd June His Honour Judge Adams accepted undertakings from the mother not to remove the children from their present school or to change their address pending the final hearing. Directions were given for a hearing on residence and contact and a further court welfare officer's report. There was then a further application for a prohibited steps order by the father and a further order by His Honour Judge Adams on further more stringent undertakings by the mother. This resulted from the father's concern that the mother was taking the children to the Cambridgeshire property at weekends and he wished to prevent her doing this until the matter had been finally determined. A hearing was fixed for the 14th and 16th November 2000, with a time estimate of three days. A court welfare officer's report was provided by a different court welfare officer because the father had made some complaint against Mr. Watkins which, as I understand it, later turned out to be without foundation.
5. The court welfare officer's report was by Mrs van Schie and dated 20th October 2000. At that stage the mother was still wanting to move to the country but would accept the court's decision that she should stay in Hertfordshire. The court welfare officer's inquiries established that there were no present vacancies in schools in Cambridgeshire in any event. Her conclusions were that the children's wishes had been clearly expressed:

"They love both parents and do not wish to choose but want to divide their time equally between them."

6. As to meeting the children's needs:

"The children's physical needs are probably likely to be equally catered for by either parent. Emotionally, however, I believe that [the mother] is probably more aware of the children's needs and willing to respond to them."

7. Further on:

"The children's educational needs appear to be well provided for at the moment and are satisfactory to both parents as well as both children. In principle it is entirely possible that the children would be able to adapt, settle at a new school and make new friends. However, given the uncertainty surrounding any new school at the moment, it is difficult to be more precise as to likely effects of a change, other than to say that initially it would be hard for the boys."

8. When coming to any possible recommendations, she said:

"It is similarly difficult to come to any definite conclusion regarding a residence order. . . . [the father's] home offers familiarity and consistency to the boys but with a difference. . . . I feel unable at this stage to offer any firm recommendation to the court regarding residence. This, to a large extent, will depend on where [the mother] chooses to live. Should she remain in the area, I believe that on balance it would be better for the boys to remain in her care but with regular, defined contact with their father. Should she move away from the area, it might be preferable for the children to live with their father, in order to maintain some stability but again with regular defined contact with their mother. It will be essential for the boys to know that both parents are still actively involved in their lives."

9. Perhaps unsurprisingly, in response to that report the mother abandoned her suggestion of a move to Cambridgeshire. She made proposals in a letter to the father which made that clear, but suggested that there should be a residence order for the boys to live with her and some reduction in the contact with their father to alternate weekends and no mid-week contact. The father responded wishing to maintain the status quo and the mother then modified those proposals, still suggesting an order that the boys were to live with her alone but reverting to the pattern of two weekends out of three.
10. The hearing took place on 14th and 15th November and part of the 14th December, and was then adjourned until 18th December for judgment. That judgment is unusually long, detailed and careful. Significantly, the judge points out that the case had been quite hard fought. He also refers to acrimonious correspondence, and that is borne out, in my view, by the drafting of the grounds of appeal on behalf of the father which are expressed in unusually forceful language, given the comparatively small ambit of the dispute between the parties. The judge sets out the applications, the family, the undisputed history, the father's case, which was essentially that the status quo should be maintained, and the mother's case which I have already outlined. He sets out the evidence, the issues and the law, and in doing this he properly refers to the relevant provisions of the Children Act 1989 and to the then leading case ofA v A (Minors)(Shared Residence Order) [1994] 1 FLR 669.
11. He goes on to his findings of fact, dealing firstly with the personalities and temperaments of the parties. In his view the mother had a flexible personality and attitude, combined with a steely business-like determination. She was able and willing to make concessions in the interests of the children. She was the most subtle of the adults involved in issues of human relationships. The father was more calculating and rigid. The judge accepted the mother's case that he had a rigid and controlling streak in his personality which she reasonably and understandably found difficult to cope with. He accepted that the father's controlling and rigid temperament had led to the shared residence order. He also took the view that the father was "trying to nail down a stability and certainty in the children's lives that satisfies both his own emotional needs and that helps his tactical position in relation to the financial issues in the case."
12. Amongst his detailed findings of fact he took into account that the children had expressed clear wishes that their understanding of fairness was that they should spend equal time with each parent. He found that Mr Watkins' report had been careful and well balanced, following a thorough investigation, and that there was no support for any suggestion of bias. He also accepted Mrs van Schie's assessments of the parent's comparative ability to meet the children's emotional needs. Her evidence was also that the mid-week contact during term time was not helpful and that alternate weekends were in general fairer. As to shared residence, if the parents could not work together it was better to have a residence order for one or the other and for that to be the mother. The judge concluded that the amount of acrimony generated was out of all proportion and that it revealed clearly that there was not a sufficient working relationship on pure children issues for a shared residence order to work. He made reference to letters written by J which indicated the pressure that he found himself under. The court welfare officer had also drawn attention to J's feeling that he could not rely on the accuracy of either parent's account of a disputed incident. He drew the inference that the children needed a clearer understanding of whom they lived with. He pointed out that the certainty sought by the father was false, that factors had to be rebalanced, that things changed and that, in his view, the mother could be better trusted to make such decisions in the best interests of the children. A shared residence order was not going to be workable and manageable. It was going to lead to too much friction.
13. His conclusion was that he should make an order that the children were to live with their mother, that they should have contact with the father on alternate weekends and for half of the summer and Easter holidays, for the last full week of the Christmas holidays, including New Year's Eve, but not including Christmas Day, so that the children knew where their home was, for the first half of the autumn half term and all of the spring half term, and also on the father's birthday and the day before each child's birthday, but that they should have no contact on the mother's birthday or on Mothering Sunday. He also made a specific issue order that the mother could control the choice of the children's schools because in his view she would struggle to keep them at their present school, but he provided that she should give two months' notice to the father if she wanted to change. The mother was also to be in control of their religious upbringing.
14. The draft grounds of appeal have no less than 14 paragraphs. However, Mr Tse on behalf of the father concentrates on grounds 1 to 6 which deal with the way in which the judge conducted the Children Act exercise. It is argued that the judge failed to conduct a proper balancing exercise. In particular, he did not have sufficient regard to the non-intervention principle and to the effect of change on the children. He was concerned that the judge had not taken proper account of the court welfare officer's oral evidence. He referred us to several passages in that evidence. However, it became clear in the course of his arguments that his main complaint was that the parties' negotiating positions had been set out in November, as I have explained them, yet the outcome of the three day hearing had been less favourable to the father and the father's position than the mother had been prepared to concede in November. His argument was that the judge's function was to negotiate the difference between the parties and not to depart from the status quo unless there were sound arguments and evidence persuading him to do so.
15. It is axiomatic in children cases that the court must regard the welfare of the children as its paramount consideration. It is not limited to the proposals put before it by the parties. The court has a positive duty to consider all the available options in the case. That is part of the balancing exercise which the judge has to conduct. This judge took the view (and he was the one who saw the parents give evidence and heard them stringently cross-examined on either side) that the shared residence arrangement was not likely to work satisfactorily in the future because of the parties' personalities, as he found them to be, and in particular the father's attitude. It is clear that the court welfare officer in her evidence was attempting to keep an open mind and to promote agreement between the parties, but there is nothing in her evidence which is contrary to the judge's findings, and a considerable amount in her report which is supportive of his eventual conclusions. I, for my part, can see nothing in the argument and the evidence to suggest that the judge's conclusions were plainly wrong or in any way that he erred in principle so as to justify this court in interfering. I would refuse permission to appeal.
16. LORD JUSTICE THORPE: I agree. The application is refused.
Order: Application refused with costs. (Order does not form part of approved Judgment)