England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BRENTFORD COUNTY COURT
(HIS HONOUR JUDGE OPPENHEIMER)

		Royal Courts of Justice Strand London WC2 Thursday, 29th March 2001

Thursday, 29th March 2001

1. LORD JUSTICE WARD: This is an appeal against the order made by His Honour Judge Oppenheimer on 22nd December 2000 year when he made a residence order that the two children of this unhappy family should reside with their father, the respondent. The children are C, born on 12th March 1994, so he is seven years of age, and CE born on 1st June 1995 so she is almost six.
2. The parties had married but it was not successful. They separated at the end of 1999 at a time after the divorce proceedings had in fact commenced, after indeed the decree nisi of divorce had been granted. The mother remained in the matrimonial home, which is a modest but perfectly satisfactory home, and the father went to live with his mother, recently widowed, in equally suitable accommodation.
3. There were inevitable difficulties following the breakdown. It is perfectly plain that communication was a real problem for the parties and the lack of communication, in turn, presented problems with their looking after the two children. Father, being concerned, made his application that the children should come to live with him.
4. In many ways this is a sad case – typical though it may be of so many – sad because both parents are manifestly decent people who in many other respects live their lives very reasonably and properly but there is this reaction they have when in each other's company. The case can in a nutshell be explained in this way.
5. Here is a young mother who is striving to improve her position and her children's position by undertaking a course of further study as a mature student, and who has been held by the judge to be admirably engaged in that endeavour, who has satisfied the social services and the court welfare officer that she is a capable mother, well able to look after the physical needs of the children.
6. The father, in his turn, works from home. He enjoys a close relationship with his mother, and there has never been any question but that he and his mother could provide an equally good home for the children. The welfare officer never visited his parents but accepted in the evidence she gave that she had no qualms about the quality of the care that together they could give. The judge was happy to accept that position; in other words, and essentially, these were two good enough parents offering good enough homes.
7. The issues in the case depended upon whether they had shown themselves to be incapable of meeting all the children's needs in other respects. Thus it was that a number of criticisms were made of the father. Many of them the judge accepted - he found him to be arrogant; he found him to have behaved unreasonably at times, especially in the breakdown of the marriage; he found him to have been overzealous, to use a word of the court welfare officer, for example in showing such undue concern about the children's weight that he weighed them regularly. The judge was critical of that, and so would I have been. It was an exercise he conducted in order to build up a case that the mother was not feeding them properly, and that was a matter of concern.
8. The judge criticised him again for over-protectiveness in insisting that if he had the children live with him, the contact to the mother should be supervised. He is fortunate that the judge was not more scathing in that criticism for I would be. Over-protectiveness and obsessive fathers are frequently, or can become, bad fathers, and he should heed my words.
9. There were serious issues to resolve at the hearing as to whether that overreaction was so serious as to undermine his capacity properly to care for the children. The court welfare officer was extremely concerned about the way he reported matters to the social services department which turned out to be unjustified; moreover, the reports upon which he acted were maliciously conveyed to him by friends of the mother who had temporarily severed the friendship with the mother and had maliciously conveyed false information to him. The judge accepted the mother's evidence of their scandalmongering.
10. The other areas of concern related to the way when there was a report by the children in July of this year that an acquaintance of the mother had smashed the windows of his motor car, he not only reported that to the police but, more concerningly, took the children with him to the police station at 10 or 11 o'clock at night when their proper place was in bed far away from any police station. The court welfare officer summed up her anxiety or concern in this way:

"I do have concerns that if residence were to be changed in the light of Mr E's very negative view of Mrs E's parenting this might, in the long term, adversely affect their relationship with their mother. I feel their long-term relationship with their father is less likely to be adversely affected if they remain living with their mother."

11. So that issue of over-protectiveness was a live issue properly identified by the judge.
12. As to the mother's concerns about her can be summarised in this way. There were worries about her possible neglect of the children, for example in May of this year when there was a gathering of her friends in home and some drink had been consumed, she, it seems, at 10 or 11 o'clock at night left the home and left her sleeping children and was away for perhaps up to three-quarters of an hour buying pizzas for herself and her guests. When she came home she found there had been the most dramatic fight between her friend and that friend's boyfriend. As she eloquently and no doubt properly described it, "all hell had appeared to have been let loose" and the children were obviously affected.
13. There was the incident in July when the car was smashed (the incident to which I referred), and the judge was moderately critical of the mother in not seeming to accept that the windows of the car had been broken. There was particularly an anxiety expressed about the way the mother, when holding down her part-time job in a launderette, allowed the children to play outside unsupervised close to busy main roads.
14. The second area of concern was that the mother was probably drinking more than she should. There were question marks about her attitude to the father. There were question marks about the number of unsatisfactory relationships that she had made in this unhappy year of separation. That was a matter of concern to the court welfare officer who, in her report of August, had expressed that concern in these terms:

"She [the mother] may wish to reflect that as a single parent she needs to be extra vigilant as to who she allows to come into her flat, particularly with regard to 'friends of friends' about whom it appears she knew very little."

15. In addition to those friends, and "friends of friends", she had two admittedly unsuccessful relationships with men who lived with her for short periods of time it seems, and the latter came to a dramatic conclusion in December when the man concerned let himself into the flat at about 1.30 in the morning. He was drunk; he was violent; he beat up this unfortunate lady, and the children were again alive to what was happening and deeply upset by it.
16. So although they were in many respects nice people, they each had defects of character which were well identified and which needed the examination of the judge. He made these critical findings. Dealing first with the father's overzealous fear that the children were being neglected and his overzealous reporting of those concerned, the judge said this at page 9:

"The mother has criticisms of the father. They are that he has acted unreasonably in involving social services and the police in May 2000. I have indicated my disagreement with that submission and my reasons for disagreeing with it. The welfare officer says that she thinks the father has become overzealous in his concerns, even after social services have checked. I don't agree with the welfare officer's emphasis here. The father's concerns are seriously held and I found no malice in him against the mother. Indeed the history as recounted above gives rise to considerable concern in my mind about the mother's capacity to protect her children from people who would do the mother harm and potentially do harm to the children. I do not agree with the suggestion that all these incidents are just bad luck."

17. He went on to say:

"He arguably overreacted in July 2000 when he took the children with him to the police station, although I am not too sure about that. Certainly his concern about leaving his children in the company of Michael, whom the father justifiably thought had committed criminal damage to his car, was justified. Whether he should have gone directly to the police station – in other words with his children – is another matter."

18. I should amplify that concern about Michael. Michael was the man invited into the mother's home who at the time was sleeping in the bedroom of the children. One can imagine that there was a risk of Michael responding aggressively to his being reported to the police and what might have happened if the children had been left alone in the bedroom with him, if he was in a state of anger.
19. The other central finding the judge made came at the conclusion of his judgment at page 15 where he said:

"The court welfare officer has concerns that if residence were changed, in the light of the father's very negative view of the mother's parenting, this might (my emphasis) in the long term adversely affect the relationship of the mother with her children. But the mother admits that she has sworn at the father, or told him to 'piss off arsehole' in front of the children. The mother in my judgment has an equally poor view of the father, which she has not hesitated to express in front of her children. The Court welfare officer's report at paragraph 60 (iii) is unbalanced in that mother's attitude towards the father, and the matters to which I have just referred, are not mentioned in her report.

I conclude [and this is now at the heart of his finding] that there is good reason to conclude that the children were at some risk from the influences and the violence that have taken place in the mother's home in the year of the separation to today's date and there is no reason to believe that such risks will simply go away. I have given many reasons in the course of this reserved judgment for disagreeing with the Court welfare officer in her analysis and in her conclusion. Both parents are vitally necessary to these children. They express no preference to the Court Welfare Officer as to with whom they wish to live. Both parties recognise the importance of ample contact to the non-resident parent. The father has gone too far in suggesting that, if the children live with him, contact by the children with their mother might have to be supervised. By contrast, with the position as it is at the moment, in my judgment, the children would not be at emotional or physical risk if they lived with the father, and I must make and I do make residence orders in relation to both children in favour of the father."

20. Then he added this:

"I should just say, I think I omitted expressly to mention that I have, in the course of my deliberation, which has been overnight and this morning as you well know when I read my judgment, considered the status quo argument very carefully. The matter is in the forefront of my mind."

21. So he made the order which now comes under attack by the mother. That attack was directed principally at the way the judge dealt with the court welfare officer and her evidence. The attack is that the judge failed satisfactorily to explain why he differed from the conclusion expressed by the welfare officer and, secondly, that he failed to voice his concerns to the welfare officer so as to give her an opportunity to deflect them, or allay them, or somehow to give evidence which would compel him to change his mind.
22. Dealing with the first point, it is now well-known that a judge ought not to differ from a firm recommendation by an experienced court welfare officer without explaining satisfactorily why he does so. That is by now pretty trite law. The first point to note is that in this case the court welfare officer in her written report made no firm recommendation, indeed made no recommendation at all. She very properly laid the facts and her concerns before the Court, and in her conclusion addressed both the possibility that the children might remain with their mother or might be moved to the father. Her written conclusion was:

"If the court were to decide that Mr E's concerns are justified and he has proved his case for a change in residence then a decision will need to be made on whether his request to supervise their mother's contact with them is justified."

23. So she left that matter open.
24. The trial of this unfortunate matter started in October. The court welfare officer was present. We were at given a transcript of the evidence she gave, that transcript having been procured not by the mother, whom I thought would be more anxious to have it, but by the father. It has been helpful to look at it.
25. In cross-examination by Mrs Moore, who appeared for the mother below, as she does here today, the first question asked was whether the court welfare officer saw any reason to change the children's current residence with their mother, the answer was:

"No. As I said in my report, Mr E made some very serious allegations, all of which I investigated as far as I could. His reasons for wanting to change the children's residence were because of his concerns. He was not giving other reasons - that the children were more attached to him - but it was because of his concerns. From my enquiries they appear to be not substantiated."

26. When cross-examined by Mr Waters, who appears for the father and appeared then for the father, the court welfare officer was referred to evidence of a witness, Jacqueline Rochford, evidence which had in fact impressed the judge, and counsel was about to ask detailed questions of her but the judge intervened and made this observation:

"If the Welfare Officer's sanguinity, if I can put it this way, about the mother's conduct is proved to be false and the basis of her recommendation is undermined by virtue of proof before this court, then I will come to my own conclusion obviously with the assistance of the Welfare Officer's observations, which are as valuable as no doubt your client's evidence and that of any witnesses he may summon up."

27. He was making it plain that he was the judge of fact and that he would have to discharge the duty to find the facts.
28. The cross-examination continued. There came a time when reference was made to the May party and the fight that had taken place between the friends Tracy and Gerry. Counsel, referring to the mother leaving the house to get the pizzas, put the question that it was a classic example of neglect. The Welfare Officer replied:

"That is the one example I found and I covered it my report, and I said---"

29. The judge interrupted and asked the question:

"It was very concerning?

A. It was very concerning. Of course it was concerning. I hope Mrs E - I think Mrs E does realise how concerning it was and I made comments about being careful upon who she lets into the home, particularly with regard to 'friends of friends'."

30. She was repeating the concern she had put in writing.
31. She also dealt, at page 14, with her other concern and she said this:

"The only concern I expressed in my report was not so much to do with the contact. I think either way round certainly Mrs E has demonstrated, while the children have been with her, that contact arrangements have gone ahead as they should have done. There have been no concerns about that. I do have some concerns that because of what Mr E fears is happening to his children he might undermine their relationship with their mother if he were to get residence, whereas I saw less evidence and I had less concerns about Mrs E seeking to do that. I would have to say that to the court and I have said that in my report."

32. So there again she was confirming the two principal areas of concerns she had - one about the mother the other about the father.
33. Evidence ended with the judge inviting her to add anything she wanted to add and she had nothing to say except this:

"I mean, as your Honour pointed out if things emerge from the witnesses that I didn't know about, clearly had I known about them my report might have been written differently. It was based on what I observed and what I read. If it turns out that Mr E's allegations are substantiated by the witnesses, that might well put a different complexion on things that your Honour will of course take care of in your judgment."

34. I have read extensively from that transcript because it demonstrates to me that the witness made plain her two main concerns, that she had a full opportunity to express those concerns and the judge undoubtably was able to understand exactly what worried her. Equally it is obvious and right that the ultimate decision was one to be taken by the judge in the light of all the evidence including, and importantly including, that given by this experienced court welfare officer whose function in life is to assist the Court as the eyes and ears of the Court. But it is significant, in my judgment, to observe that her crucial evidence fulfilling the role of the eyes and ears of the Court was not with relation to matters of which she was giving the primary evidence but of inferences to be drawn from facts which ultimately had to be found by the judge.
35. The judge dealt with her evidence in this way – and I tried to extract the passages in the judgment where he referred to that evidence. He drew attention to a statement by a police officer who visited with the social services lady who felt that the mother's flat was generally untidy although there were no signs of alcohol. He referred to the social worker who had no concerns about what she saw on the same occasion and he observed that when the welfare officer attended on the 3rd August she found the mother's flat clean and uncluttered.
36. The welfare officer, at page 9 in the passage I have referred to, expressed her worry about the overzealous concern of the father. The judge disagreed with her because he found, having heard the father, that there was no malice in his reporting those matters to the police. He said at page 5:

"... I do not doubt that the father did go to the social services and the police in good faith because he was genuinely concerned about his children in the care of the mother."

37. That was a clear indication of why he did not agree with the welfare officer and it was a proper discharge of his duty.
38. The judge commented that the welfare officer had not visited the grandmother's home. It was in a sense a fair criticism because she had not done so. The judge concluded at page 11:

"I have therefore a substantial advantage over the welfare officer in coming to my own conclusions about the result of this case."

39. That advantage having been given to him because the police officer had visited the grandmother's house and had expressed a favourable opinion as to what he had seen. This is a much less significant aspect of the case in the light of the cross-examination of the welfare officer who had accepted, in cross-examination, that she had every confidence that the grandmother and the father together would satisfactorily care for the children.
40. The next reference to the welfare officer is in a passage I have read in which the judge comments about the lack of balance in her report in that she expressed concerns that the father's negative attitude might undermine the placement or the relationship with the mother. The judge again, in my view, was perfectly entitled to make that comment because the mother in her evidence admitted her swearing at the father in front of the children, indicating her equally poor view of him.
41. Moreover, the judge accepted the evidence from the witness, Mrs Rochford, that the mother frequently referred to the father as "bad dadda" and, interestingly, again to the credit of the mother, she frankly admitted that CE had referred to that witness in derogatory terms and not as the witness had heard it of "there goes naughty Jackie" but "there goes shaggy Jackie", which is much more vituperative language and unacceptable language from a young girl of five or six. In my judgment therefore the judge most clearly indicated why he disagreed with the court welfare officer and on each and every respect he was entitled to come to a different view of the facts and the concern, and I see no error in his approach.
42. The next criticism of the procedure is that when the hearing resumed in December, the welfare officer was not recalled by the judge in order that he should be able to explore with her the new matters which had occurred between October and December. They were two important matters. Mrs Moore elevates them to being very, very critical to the final outcome, as probably they were. They were, firstly, the photographs showing the children playing near the busy road and, secondly, the fight earlier in December with the mother's former boyfriend.
43. The mother faces an insuperable difficulty in putting forward this part of her case. The judge in his judgment recorded that it was common ground that there was no need to recall the court welfare officer. In order for the mother to attack that part of the judge's recollection, she has to produce something to show that he completely misunderstood the case he had been hearing for the past two days. Nothing is placed before us. On the contrary, the recollection of the father and of his legal advisors is that it was in fact it was discussed and it was common ground that there was no need to call the welfare officer to be asked as to whether the latest incidents changed her recommendation.
44. In my judgment, the point fails for that reason. If it was common ground there can be no complaint that the court officer was not called. Moreover, in this particular case, I agree with the decision not to recall the welfare officer, for nothing effective could come of it. Either the welfare officer would say I hear these two concerns, it does not affect my view that this is a capable mother, or she may have said these two concerns coming on the top of the warning I gave to the mother to take care of who she allowed into the house does change my recommendation and I now think that the father should have them.
45. But the mother's case was not likely to be substantially improved and at the end of the day the judge had to make up his own mind as to what those two features of the case meant in the overall content. I am afraid therefore I see no possible ground for complaining about the fairness of the way the judge proceeded, on the justice of his conduct at the trial, or of the conclusions about the welfare officer's concerns.
46. Thus, the case depends upon an attack on the weight that the judge gave to this factor or that factor. That, too, I regret to say forthrightly is a virtually impossible ground of appeal to present in a difficult case of this kind. If there are facts to support the judgment, and there were, then the weight the judge gives to those facts is entirely a matter for him. Unless he can be demonstrated to have abused the advantage he has as the trial judge of seeing the witnesses, giving their evidence and coming to conclusions about their character and their personality, this Court cannot interfere.
47. When it comes to the exercise of a discretion, the law is so well-established that I hardly need refer to G v G [1985] 1 WLR 647. The judgment of the House of Lords is abundantly plain. Unless the judge has exceeded the generous ambit within which there is reasonable ground for differing views to be taken, unless he was plainly wrong, the Court of Appeal does not interfere.
48. The judge appears to me to have been fair in finding this for the father and that against him; this for the mother and that against her. At the end he had two crucial factual matters to resolve, the two concerns of the court welfare officer. He had to make up his own mind. He did. The choice came down in favour of the father. I regret therefore that I can see no ground whatever of concluding that he was plainly wrong.
49. It is a most unhappy outcome for the mother. It may be another judge would have decided differently. It may be I might have taken a different view of some aspects of the case, but that is not the function of the Court of Appeal. Having failed to show that he was plainly wrong, in my view the appeal has to be dismissed.
50. I add the postscript so that it is on the record, a consequence of this judgment may be, as Mrs Moore was explaining it to us, that the mother will have financial difficulties in pursuing her course of further education as a mature student if she does not have the child benefit and if she does not have income support, which gives due recognition to the fact that the very generous contact in this case amounting to, says Miss Moore, to 169 days in the year, means that she loses the income support element attributable to her caring for the children. She has a great need of money because she maintains a separate home for them. I was concerned about that aspect.
51. I am happy to record, and this is the purpose of the addendum to the judgment, that the father has agreed, as a result of my intervention, to leave the child benefit payments with the mother. I hope, as I said when I heard it, that that gesture is the beginning of an easier relationship between these parties who have so much to offer their children that it would be very sad indeed if what is in many respects a virtual sharing of the care of these children, were to break down because of continuing bad feeling between them.
52. I offer them my congratulations on their move towards each other and I hope it is but the first step of an increasing rapprochement. They both have much to offer the children, and I hope they will continue to be able to do so, but regrettably the judge's order must stand.
53. LORD JUSTICE RIX: I agree. The judge had a difficult decision to make. He gave wholly adequate reasons for disagreeing with a view in support of the mother expressed by the welfare officer in her evidence, albeit not in her report.
54. It was submitted by Mrs Moore on behalf of the mother that the judge should of his own motion have adjourned the hearing in December to permit the welfare officer to give her views as to the incidents which had occurred since the case had been part heard in October.
55. But I disagree: both parties were anxious for the hearing to be concluded. Even if it be the case that there was no discussion or agreement to continue with the hearing without adjournment, the judge was fully entitled in the absence of any application to adjourn to continue the case and to draw his own conclusions from all the evidence. In doing so, he carefully balanced both the pros and cons of the parents' conduct so far as it related to the children. He gave consideration to the value of the status quo. In the end he was influenced among the other considerations by three acts of violence which had been committed by visitors to the mother's home.
56. He concluded that such risks and the influence of such intrusions would not simply go away. He also concluded that the children would not, on the other hand, be at emotional or physical risk if they lived with the father. It is impossible to say that the judge was not entitled to come to that conclusion. Like my Lord I can find no error in his judgment which would entitle this Court to interfere with his discretion.
57. I agree that this appeal must fail but like my Lord I hope that the parents might come to think that the conclusion of this litigation has been a basis for a new beginning in their care of and love for their children.
(Appeal dismissed; no order for costs; legal aid assessment)