England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM WORTHING COUNTY COURT
(His Honour Judge Barratt QC)

		Royal Courts of Justice Strand London WC2 Friday, 30th March 2001

Friday, 30th March 2001

1. LORD JUSTICE THORPE: Mr McKinley has done his best with an almost impossible forensic task. He renews an application for permission which was refused on paper for these reasons:

"Objectively viewed the outcome of the proceedings that culminated in the written judgment of 13 December 2000 was a generous contact order to the father coupled with a restriction intended to spare the family, and particularly the child, from further litigation for a period of eighteen months. These conclusions are fully reasoned within the judge's findings and conclusions. Each one of the grounds asserted within the application for permission can be simply answered by stating that the decision criticised was plainly well within the ambit of the judge's discretion. I see no evidence of misdirection or error. Accordingly I see no realistic prospect of success on appeal."

2. Mr McKinley this morning has sought to place added emphasis on three points neither of which individually is of any weight, and even in their totality they do not weigh a feather.
3. The first point he takes is not so much a criticism of the judge, but a criticism of the local authority unit responsible for the investigation of a complaint of disclosure of sexual experience by the child `F' leading to the father's involvement with social services on 10th August. The nature of the father's concern is described at page 210 in this voluminous bundle of documents, where he said:

"... F made a number of disclosures to me with regard to inappropriate sexual behaviour and comments made in her presence by the Applicant and her boyfriend..."

4. The report from social services (which is to be found at page 301 and following) shows that in fact the mother was equally concerned about F's sexualised conversation and that she herself had drawn attention to a worrying episode on 8th September.
5. The local authority was sufficiently concerned to try and interview `F' but without overlooking the fact that the community paediatrician had not been able to engage `F' or to examine her. The local authority had no greater success. At an interview set up on 18th September `F' declined to participate. The local authority thereafter did not persevere, particularly having regard to the fact that the school said that she was now more settled and that they had no on-going concerns. Equally, her general practitioner expressed his satisfaction with the state of affairs. However, during interviews with the three adults, the local authority discovered that both sides were culpable of laxity. The father was sharing a bed with `F' during contact and he was bathing her: the mother and her partner were frequently walking about the house naked. The local authority concluded that, whilst there was concern, it was impossible to determine the validity of the allegations or from where the behaviour or knowledge had emanated. The conclusion was that `F' was a child suffering emotional effects due to the on-going disputes between her parents. They went on to say that she could be safely monitored by the professionals who were involved; and they advised both sides to be more careful in future.
6. Seemingly, the father is extremely critical of the local authority's conduct of the investigation and its conclusion. As an outsider, it is extremely hard to see why he should be concerned, as they appear to have done a sensible job. But how on earth can this be related to any criticism of the judgment in the court below?
7. It is said by Mr McKinley that the judge should not have accepted such a report from the local authority and should, himself, have demanded further investigations. The judge dealt with it in this way. He said at paragraph 19:

"I have to take into account the outcome of the investigations carried out by the social services department and attach to them what weight in the light of all the evidence which it seems to me appropriate and just to do. I am satisfied that it is neither part of my function or within my powers to require the authority to review the merits of their decision. I have decided in this case that I should not adjourn ... so that they can be ordered to do so. I am not satisfied that the father's complaint about the lawfulness in public law terms of the decision which they have reached would justify ... [an adjournment] ... . The appropriate procedure for the father to pursue ... is in another place and at another time. Were he to succeed and a further investigation were to produce a different outcome, then the merits of any renewed application by the father for residence would have to be determined in those circumstances at that time."

8. That seems to me to be a perfectly impeccable disposal of what was a decidedly unmeritorious submission.
9. Mr McKinley raises two further points which are really little more than trivial. He says that there is some error in paragraph 39 of the judgment, where the judge, having noted the appalling relationship between the father and mother's partner and that there were current criminal proceedings facing the father as a result of some sort of fight with the mother's partner, said that the incident occurred at the previous court appearance. Mr McKinley says he is wrong about that; it was on some other occasion. Perhaps the judge was wrong. But so what? It does not bear in any way on the conclusions or on the order made by the judge. If judges are to be criticised for every slip, every misstatement, the system would collapse under the investigation of completely irrelevant flaws.
10. Finally, Mr McKinley, or his client, criticise the judge for having imposed an 18 month moratorium. The imposition is fully reasoned, if briefly reasoned, in paragraph 40. The judge said:

"Finally and because of the difficulties in this case, I propose exceptionally to exercise the powers I have to prohibit the father from making further applications to this court about residence and contact without prior leave ... for a period of 18 months ... . Both parties need space and it is in the best interests of the child. The girl should be spared a direct or indirect awareness of further tension and acrimony between the parties which further applications ... by the father might otherwise occasion. I do so conscious that such a decision is to be made only exceptionally. In my judgment the father's actions in this case have been exceptional."

11. In short, there seems to be not the smallest reason to vary the provisional opinion that was expressed on 9th February, and this application is dismissed.
Order: Application dismissed.