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 THE TAUNTON COUNTY COURT
(His Honour Judge Cotterill)

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

Friday, 30th March 2001

1. LORD JUSTICE THORPE: This is Mr U's application for permission to appeal an order and judgment of His Honour Judge Cotterill, sitting in the Taunton County Court on 22nd December 2000. He had before him contested proceedings for the residence of the two children of the marriage, being a little girl aged 10 and a little boy aged 8.
2. The parties had lived for some time, indeed I think effectively for all the marriage, in Somerset, but at the break down of the marriage, in quite turbulent circumstances, the mother returned to her county of origin, namely the Normanton area of Yorkshire, some 250 miles away from the final matrimonial home. That was obviously bound to exacerbate the difficulties between the parties, and no doubt made its contribution to the need for a contested hearing.
3. Both parties were represented by counsel at the hearing, and I have a transcript of the judge's brief judgment explaining why he was confirming the status quo which entailed giving the responsibility of the residence order to the mother. He also decided, in the light of the considerable distances involved, that contact should be infrequent but of reasonable duration. So he gave the father the half-terms and half the school holidays. In reaching that conclusion he was broadly following the recommendation of the court welfare officer.
4. In support of this application, Mr Hemmingway, who has put Mr U's case with brevity and courtesy, takes four points: first, he says that there has been insufficient reflection of the fact that Mrs U suffers from endometriosis; second, he produces and relies on two letters which the children have written to the family in Somerset; thirdly, he relies on the wife's violent character established by admissions; and, finally, he expresses his client's fear for the children's future, the risk of damage to health and well-being as a result of separation from all that has been familiar to them.
5. I take those points in turn.
6. The endometriosis does not earn a reference in the judgment, but I do not think that is entirely surprising, nor is it a matter of criticism, since it was investigated by the court welfare officer who recorded that (with the mother's permission) she had contacted her doctor who had confirmed the condition, said that none of the alleged associated conditions had been reported and that there had been no psychiatric or psychological referrals. It was, at best, on the perimeter of the case.
7. Secondly, the letters. The first was written very soon after judgment from the children to their paternal grandmother. All it establishes is that they love their granny and they miss the people and the customs to which they have grown accustomed.
8. The letter of the 6th February is a very well-written letter by daughter K to her father. She starts by saying that she is fine, as is her brother, and then she inquires after the family in Taunton. She then poses this question:

"Why can't we see you more often like we used to is something me and R have done or you because we don't get to see as much as we use to. How come the boys that you work with see more of you and there dads than we do with you they have behaviour problems me and R don't why can't we see you every three weeks."

9. Within that passage is a reference to their father's work, which is looking after difficult children.
10. The question is perfectly understandable. Of course, it would not be necessary to ask the question if the distance between the two homes was not 250 miles. What K might not understand is that if there were only a little way between the two homes to permit frequent contact, she would not have the extensive stays with her father which were intended to be compensatory for the loss of frequency.
11. As to the admissions of propensity to violence, two points are to be made. The first is that they are contained within journals which the mother kept as part of a counselling course. Although they are freely admitted to be genuine, I can't overlook the circumstances in which they came into being. Those circumstances do reflect a bit on their value. I also, and more importantly, note that these journals were fully considered by the court welfare officer, but they did not deter him from the conclusion that the children would, for a number of reasons, be better to remain in the care of their mother.
12. As to the fourth point, fear for the future, those fears are certainly not groundless, because it is very widely known that the divorce and separation processes are often quite damaging to children, both in the short-term and in the longer term. But that is just one of the sad facts of life. All that the court can do is to seek to mitigate the risk of harm by making orders that present the best or the least harmful option in order to maintain the contact between the separated parent and children as far as possible; and that is precisely what Judge Cotterill has tried to do.
13. This is a very brief judgment considering the importance of the issue to Mr U. The Judge's determination of the issue of residence occupies only one and a half pages of the transcript. His conclusions in relation to contact are actually more extensive, commencing on the second page of the judgment, halfway down the page, and extending to almost halfway down the foot of the page -- so almost two pages -- going to the contact issue.
14. With great respect to Judge Cotterill, his judgment might have been more acceptable to the father had it been more extensive and considered all or most of the facts and submissions that had been advanced on his behalf. But had the judge taken that course, although the judgment would have been considerably longer, it would plainly not have been any different in its essentials. The judge expressed himself essentially as follows:

"The principal among these is that the children have demonstrated to the Court Welfare Officer, a closer attachment to their mother than to their father, notwithstanding the fact that they are undoubtedly very fond of him. It is quite clear from what the Court Welfare Officer has reported to the court that were I to take the children from their mother's care, they would suffer a considerable degree of emotional distress.

They are, as I find, well cared for, well settled and content in their present circumstances and there is absolutely no basis upon which I could contemplate upsetting those present arrangements."

15. That may be succinct, but it is in my opinion enough to justify the order made. The discretion vested in the judge in circumstances such as this is a very broad one and the judge's discretionary choice was in complete accord with the view of the court welfare officer. Despite the arguments that have been advanced this morning, I reach the conclusion that this is not a case which this court should admit for further review and the application for permission is therefore dismissed.
Order: Application dismissed.