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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> K (Children), Re [2001] EWCA Civ 553 (5 April 2001)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/553.html
Cite as: [2001] EWCA Civ 553
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE WARRINGTON COUNTY COURT
(His Honour Judge Elystan Morgan)
Strand London WC2 Thursday, 5th April 2001 |
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B e f o r e :
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| RE: "K" (Children) |
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Smith Bernal Reporting Limited
190 Fleet Street London EC4A 2AG
Tel: 020 7421 4040 Fax: 020 7831 8838
(Official Shorthand Writers to the Court)
The Respondent Mother did not appear and was not represented.
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Crown Copyright ©
- LADY JUSTICE HALE: This is a father's application for permission to appeal against four orders in relation to his children. His application was sealed on 18th October 2000. That is well outside the time limit for appealing against each of the orders which he wishes to challenge, and so he also needs permission to appeal out of time.
- The father and mother were married for the first time in 1988. Their oldest child, O, was born on 27th August 1988, and so he is now twelve and a half. They were divorced in 1991. They remarried in 1993. Their second child, J, was born on 8th August 1995, and so he is now five and a half. Their youngest child, C, was born on 4th March 1997, and so he is now just four. They separated in July 1997, when the mother left the former matrimonial home and was soon joined by all three children. Divorce proceedings were then begun. However, there was some degree of reconciliation between September 1997 and May 1998. Battle began in earnest after that, and has continued without much interruption since then.
- There were injunction proceedings, undertakings and committal applications. In some of those there were hearings in which a favourable view was taken of the father, and in others a less favourable view was taken. There were cross-applications for residence orders for the children, which were heard by His Honour Judge Elystan Morgan in the Warrington County Court. Both parties were represented. There were reports, and these included a report from a psychologist relating to O.
- The judge delivered a very long judgment on 15th January 1999. He decided that the boys should stay with their mother. He made findings about the credibility, the personalities and the capacities of both parents to meet all the children's needs. He found that the father's obsession with his belief that the mother's experience of sex abuse in childhood had affected her capacity to care for the children was unfounded. Nevertheless, the children had a good relationship with their father - in particular O, who had spend a lot of time with his father earlier - and clearly there should be contact between them.
- That is the first of the orders against which the father wishes to appeal. But he tells me that he was quite happy to accept it at the time, given that there was to be contact between himself and the children. In any event, it would be quite impossible to give permission to appeal against that order so long after the event and in those circumstances.
- The case came back before the court in July 1999, and a contact order was made by consent on 23rd July. This provided for contact with the father from 6.00pm on Saturdays to 6.00pm on Sundays. O was to spend Thursday afternoons from the end of school until 7.30pm with his father. It also provided for a review in 12 months' time, in July 2000.
- There was also before the court an application for a specific issue order about the secondary school that O was to attend when he moved on. On 23rd July 1999 His Honour Judge Elystan Morgan gave another long and careful judgment, resolving this issue in favour of the school preferred by the mother, basically because it was the nearest school and the one to which most of his classmates were going, although it was probably not the academically better school.
- The case next came back before the judge on 16th December 1999. The father had made an application to vary the contact order of 23rd July and also for a specific issue order to determine whether or not the mother had a full driving licence. The issue between them was whether the mother should bring the children to the father for contact or whether he should collect them from her. It appears that the father, regrettably, lost his temper in the course of that hearing. The judge dismissed the application to vary. He also made an order under section 91(14) of the Children Act 1989 prohibiting the father from making further applications without the permission of the court for nine months. That was to carry the prohibition beyond the period when the case would next come up for review.
- Nevertheless, the father did make an application, which came before His Honour Judge Hughes on 13th July 2000. His Honour Judge Hughes adjourned that application to be heard by His Honour Judge Elystan Morgan when the matter came up for review at the end of the month.
- Again, the father would like to appeal against the order of 16th December 1999. He would like to appeal against the order of His Honour Judge Hughes. He would also like to appeal against the order made by His Honour Judge Elystan Morgan on 31st July 2000, when the matter came back for review.
- As far as the application to appeal against the December order is concerned, again this is obviously way out of time. It was not an order which seriously disadvantaged the father because it maintained the existence of the contact order. But the problem, it appears, has emerged since then. The father tells me that he has not seen the children since January of last year, when there was a serious argument during which he was assaulted by the mother's new boyfriend in the presence of the children, and the whole matter broke down. He is still in touch with O, who has written to him and has recently acquired a mobile phone through which they can communicate, but he has not seen anything of the younger boys.
- All of this was material for his application before His Honour Judge Hughes. The father finds it difficult to understand why His Honour Judge Hughes did not deal with that application. But the reason must have been (although I have seen no judgment) that His Honour Judge Hughes took the view that this was a case which had been dealt with throughout by His Honour Judge Elystan Morgan, who had heard a great deal of evidence. It is generally preferable for family cases to remain before the same judge for all sorts of obvious reasons; and, as a review was due very shortly, it was entirely within his discretion to take the view that these matters should be looked at then.
- Unfortunately, when it came back before His Honour Judge Elystan Morgan on 31st July 2000, it came before him in Llangefni, which is a very long way away, and the father was not present. Nevertheless, the judge did take what appears to be quite a serious view of the matters that the father was raising. He directed that there be a trial of the father's application to vary the contact order and a further court welfare officer's report. The father wishes to appeal against that order; but in fact it was quite favourable to him, because the judge might have taken the view that it was not worth putting the children through further proceedings, with more inquiries, more uncertainty and more litigation. But he did not take that view: he thought there might be something in it.
- There was therefore another court welfare officer's report. Unfortunately, the father took the view that he would not see the court welfare officer. He was afraid that whatever he said might be misrepresented in the report, as he felt had been his previous experience, and he thought that he could put in writing everything that he wanted to say. That is unfortunate, because it put the court welfare officer at a disadvantage in investigating what had been said. The other thing that emerges very clearly from that report is how fed up O is about the whole situation. O refused to see the court welfare officer who compiled this report. That is an indication of the damage that the continued conflict is doing to him at least.
- The recommendations were that, on balance, the contact order should remain as it was. But the welfare officer said that it was important to recognise that the current arrangements (although they were not arrangements which were working at the time) prevented the children spending a full weekend together as a family with their mother, and it was important that she had some quality time with them at the weekend. It was also important that contact between the children and the father did not undermine their relationship with their mother. He recognised the emotional impact that the court proceedings appeared to be having on the children and suggested that the court consider an order under section 91(14) of the Children Act 1989.
- Most regrettably, the father took the view that that report did not address the main issues that he wanted to have addressed: that is, the assault and, in particular, whether the mother was right to say that she did not have a full driving licence and could not therefore be transporting the children, when in his view he had clear evidence that she was transporting the children, whether with a full or a provisional driving licence or whatever.
- He did not attend the hearing before His Honour Judge Hughes, which took place on 11th December 2000. He has not put in an application to appeal against that order. But His Honour Judge Hughes dismissed the father's application to vary the order of the previous December. He made an order prohibiting the father from making any further applications under section 8 of the Children Act 1989 without permission for a period of two years: that is, until 11th December 2002. He allowed an application made by the mother then and there to vary the order from each weekend to alternate weekends. As I say, the father did not put in an application to appeal against that order, and that would be out of time in any event.
- I can understand how the father feels perplexed by what he thinks is the passing from pillar to post between two judges; but, as I have tried to explain, there are sensible reasons for that. His Honour Judge Elystan Morgan has concluded that it is not sensible for him to continue to hear this case in Wales and that it should now go to His Honour Judge Hughes. If the father had co-operated with the court welfare officer and turned up at the hearing before His Honour Judge Hughes in December, who can say what the outcome would have been? I certainly cannot speculate. There is obviously a dispute of fact between these parties that needs to be resolved. Furthermore, although the father would like this case to be looked at by the Official Solicitor, it does not at the moment fulfil the criteria for the Official Solicitor to take over a case.
- I conclude that, most regrettably, the father, by not co-operating with the continuing proceedings which he himself wanted to be brought, has put himself in a position whereby an appeal against any of these orders would stand no chance of success whatsoever. I would not be doing either him or the children any favour were I to grant him permission to appeal. The applications must therefore be refused.
- There is this comfort: there is still a contact order in place. The judge did not discharge that contact order, as he might have felt tempted to do. The father, therefore, has to give careful consideration about what steps, if any, he wants to take in order to re-establish his relationship with his children. That is a matter for him to consider carefully, perhaps with the benefit of legal advice. This court cannot give him any further assistance.