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
SITTING AT NORTHAMPTON
(His Honour Judge John Wilson)

		Royal Courts of Justice Strand London WC2 Wednesday, 7th March 2001

1. LORD JUSTICE THORPE: This is a renewed application for permission following a paper refusal on 25th January 2001. The application relates to a decision of His Honour Judge Wilson, sitting in the Northampton County Court as a judge of the Family Division on 9th November 2000. The judgment is well structured. The judge's task was to determine contested residence applications by the parents of D, who was born on 6th December 1998 and who was therefore, at the date of trial, just under two years of age.
2. The judge set out the history following the marriage of the young parents in 1997. At the end of that chronology he correctly directed himself that, in the light of the fact that each parent was able to offer adequate physical care, he had to decide the case on his assessment of the parties and their rival proposals for the child. He proceeded to his assessment of the mother. He said:

"As far as the mother is concerned she made a very good impression upon me when she gave her evidence. It seemed to me that she was honest and straightforward, making admissions against her interests on occasions. When I consider her conduct, what she has done since July, it is difficult to fault her conduct, save perhaps she did acknowledge a certain selfishness and a failure fully to appreciate D's interests when she was giving evidence about future contact."

3. He proceeded in the following paragraph to assess the father. He said:

"As far as the father was concerned he also impressed me as an honest witness and he too acknowledged inappropriate behaviour when he was asked about certain matters that have occurred. But although I was impressed with him in that way as an honest witness, my consideration of what he has done and how he has behaved gave me the impression that he has been acting selfishly and without proper concern for D. My view is that he has been treating this matter as a contest or battle between himself and the applicant, and perhaps also between their extended families. I am sorry to say that I get the impression that he has considered D as something of an object, a commodity, rather than really concerning himself for her welfare."

4. That is a serious criticism of parental capacity.
5. The judge also, perhaps less importantly, criticised the reliability of the father's evidence on two points of detail.
6. Having made those findings about the recent conduct of the parents, the judge correctly continued to say that he had to concern himself with the welfare of the child and to have particular regard to the welfare checklist. He identified a number of matters which persuaded him that the welfare of D would be better served by a residence order to the mother. First of all, he found that the father's proposals imported a certain artificiality since she would be brought up by a single parent rather than two people, albeit only one of them will be a parent, with the father choosing to sacrifice himself and his work and his career in order to look after the child. Then, perhaps more importantly, he held that contact between D and her maternal grandparents was very important. He noted that that had not occurred during the period when D had been in her father's charge. He could not see how, for the future, there was any material prospect of improvement. He then made this finding:

"I am confident that if the child is with mother there will be good contact with everybody. I am not so satisfied if the child remains with father."

7. Miss Smith, who appeared in the court below, has done her best with what is undoubtedly a difficult application. She settled the skeleton argument of 6th December and she has appeared this morning to renew the application. She has said everything that could possibly be said in support of her case. In the end, she has been driven to the submission that the judge's findings of fact were contradicted by the evidence. That is an extraordinary submission to advance in this court, and rare indeed are the cases in which permission is given on that basis. It is the function of the trial judge, whether in the county court or in the High Court, to choose what he accepts and what he rejects, what he regards as important and what he regards as irrelevant. Equally, it is very important that this court should respect the responsibility of the judge to make assessments of the parties and to arrive at a balanced judgment as to which offers the grater degree of parental responsibility and capacity. This judge reached a clear conclusion in that area, and it is simply unrealistic to think that this court would differ were permission granted.
8. For all these reasons I do not differ in any degree from the opinion that I formed on the papers, and I confirm the refusal provisionally expressed on 25th January.
Order: Application refused; legal aid assessment.