England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM TUNBRIDGE WELLS COUNTY COURT
(HIS HONOUR JUDGE HARGROVE)

		Royal Courts of Justice Strand London WC2 Tuesday, 13th March 2001

1. LORD JUSTICE THORPE: This is a tragic application for permission to appeal an order made by His Honour Judge Hargrove sitting in the Tunbridge Wells County Court on 30th November 2000 when he ordered no more than indirect contact between Mr E and his daughter C, who was born on 25th December 1996. Her mother is AK and the cohabitation between Mr E and Miss K commenced in the year preceding C's birth.
2. It ended in March 1999 in circumstances which were turbulent, and investigated by Judge Hargrove during the course of the hearing. There is no doubt at all that between C's birth and the summer of 1999 Mr E played a significant part in her life. Even after the separation he continued to see her regularly and to have free contact with her. All that changed when an incident in the month of August 1999 at Miss K's home led her to refuse further contact. She says that she was the victim of violence on that day. He says that there was really nothing for her to complain about beyond the fact that he was insisting on his entitlement to understand what part her current partner was playing in C's life.
3. But inevitably it marked a significant deterioration in the relationship between the couple and that went to C's disadvantage. There were solicitors brought in on both sides. Court proceedings were initialed; mediation was tried. Seemingly, it was understood that Mr E had agreed to a psychological assessment and a Mr Clowry was instructed as the psychologist in the case. Having assessed Mr E, he reported to the Court and proposed that there should be a phased re-using a contact centre and supervision not only by himself but also by Miss McNulty with the mother close at hand in an adjoining room.
4. That regime moved relatively successfully with some extension of contact culminating in a visit out from the contact centre until the whole edifice was destroyed by a fortuitous intervention because of action and protest the whole country was starved of petrol. Mr Clowry took it upon himself to cancel the contact visit that was fixed for the following Saturday. He did that without reference to the Court. He said that it was inevitable since he had no petrol to get to the contact centre, and he said that the mother was in the same state. Mr E was first of all outraged and then determined to circumvent this intervention. He believed that the starvation of fuel was already at an end. He believed that Mr Clowry was being either pusillanimous or, alternatively, manipulative. He took it upon himself to call at the mother's home in breach of undertaking and leave her a supply of petrol sufficient to get her to the contact centre on the following Saturday.
5. It is said by Mr E, and I think quite forcefully, that that whole episode was misinterpreted and blown out of context by all the professionals in the case. It may be that the judge too attached more weight to that development than it deserved. But it certainly had some impact on Mr Clowry's assessment which, in his written report to judge Hargrove, was expressed in these terms:

"It seems to me that the patterns of behaviour shown by Mr E indicate significant personality difficulties and may have a borderline personality disorder. His overall presentation is that of an unstable, impulsive, immature and emotionally labile personality."

6. Mr E had obtained the Court's leave to instruct a psychologist of his choice. He chose, or his solicitors chose, a Mr Baeza, who prepared a report which was not relied on at the trial. The judge characterised that as a waste of public money. Mr E tells me that he did not call Mr Baeza since he was effectively one rung from an earlier favourable opinion by a direct intervention by Mr Clowry. Be that as it may, the only evidence before the judge was that of Mr Clowry.
7. Since the trial Mr E has through his general practitioner obtained a referral for assessment to the local mental health services in Tunbridge Wells and has put before me two reports by the consultant psychiatrist in post in Tunbridge Wells, Dr Hamdi, so there is a question for me to investigate was the judge misled by the assessment of the psychologist. Dr Hamdi's opinion is expressed thus:

"In my opinion Mr E probably has ongoing and maybe long term personality difficulties that in my view do not warrant a specific diagnosis of a Borderline Personality Disorder. If anything any personality disturbance might be detected as one of a cyclothymic or hypothymic variety. However this is only an initial impression and we agreed that I will need to review all the available documents that he might have on the issue of custody of his children."

8. Following that review, Dr Hamdi wrote:

"I am still not convinced that the diagnosis of a Borderline Personality Disorder is valid. The diagnosis of Personality Disorders has poor reliability compared to other psychiatric diagnostic categories. Even with such a diagnosis parenting abilities are a separate issue and cannot be inferred to be abnormal from the diagnosis itself. I make this opinion clear. Mr E's main difficulties are with his inability to let go with the intense ambivalent feelings he has towards his ex-partner and his own grandiose sense of self abilities. Both are largely understandable within the context of his current grievance."

9. There is not, in my opinion, a sufficient difference between these two professional assessments to warrant any intervention by this Court. Mr Clowry did not diagnose a borderline personality disorder. He merely said that that might be within the range of possibilities. His more direct assessment as significant personality difficulties indicated by unstable, impulsive, immature and emotionally labile behaviour are not sufficiently different from Dr Hamdi's assessment of long term personality difficulties, so I cannot see that Judge Hargrove was misled by, alternatively led into error by the opinion of Mr Clowry.
10. Had I been trying this case in the Tunbridge Wells County Court might well have opted for another sustained try at direct contact using whatever local resources were available to improve the prospects of success. This judge opted for a more draconian outcome. Can I say that that was beyond his discretionary ambit? Clearly, in my opinion, I cannot. It is the function of the trial judge in the County Court to decide outcome providing he does not fall into error and providing he does not misdirect himself. There is no demonstrated error or misdirection. I have to respect the discretion of the county court judge. It would not be right in those circumstances for me to grant permission in this case and the application is accordingly refused.
11. I would only like to say that I am grateful to Mr E for putting his case before me with such clarity, and I do respect the passion with which he has addressed the Court, and the intensity of his natural feeling as the father of this little girl that he must play a direct part in her life. But all that said, I have to apply the practice of this Court which is to respect the function of the trial judge and not to grant permission to appeal unless there is demonstrated some manifest error.
(Application dismissed)