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 SOUTHEND COUNTY COURT
(HIS HONOUR JUDGE YELTON)

		Royal Courts of Justice Strand London WC2 Tuesday 29 January 2001

1. LORD JUSTICE THORPE: Lord Justice Buxton will give the first judgment.
2. LORD JUSTICE BUXTON: This is a renewed application for permission to appeal against an order made by His Honour Judge Yelton in the Southend County Court on 19 November 2001. It comes before this court after the application had been refused on paper by my Lord, Lord Justice Thorpe.
3. There is a lengthy and most unfortunate history to this case, which I do not intend to go into in detail, it having been set out at length by the learned judge. It suffices to say that the case concerns a boy, R, who is the son of the applicant and also the son of the respondent, Mrs A, as she now is. R was born in 1990. The parents, both of whom had children by previous marriages or associations, met in 1988. Unfortunately, R having been born in September 1990, the parents separated in April 1991. Therefore, they only had the briefest period together as a family.
4. It is regrettably the case that the period since 1991 has been characterised by continuing and repeated applications in respect of R's welfare and residence. It has occupied the time of the courts extensively over that period. The view of the learned judge who reviewed the whole matter was that this was one of those unfortunately too common cases where neither party appeared to be able to accommodate the other in the interests of a stable upbringing of the child. After a certain degree of uncertainty as to his residence arrangements, by the time the application came before the judge R was living with his mother but visiting his father at different premises every other weekend. In January 2001 the applicant father applied for a residence order. An order was made for interim residence in favour of the mother, that being the arrangement that obtained when the case came before the learned judge. In May of that year an order was made for a CAFCASS report into the case. Mr Eagle, a Child and Family Reporter, so reported on 6 August 2001.
5. A hearing was originally fixed for February 2002. The judge commented that that was an unsatisfactory length of delay. I would agree, but it is clear that the delay was not caused by any lack of zeal on the part of those who bear the burden of administering family law work in that particular part of the country. Those arrangements were potentially derailed by an application taken out by the father in November 2001 for a further welfare report. That application was supported by a skeleton argument, extending over 47 pages, prepared by Mr Larizadeh, who has appeared before us as he appeared before the judge. That application was adjourned to allow the Welfare Officer, whose report was criticised in the skeleton as being "flawed, inadequate, biased and unhelpful in a number of respects", to attend. If the further report was to be obtained, that would put the hearing of the substantive application back to April 2002.
6. The judge explains in his judgment that he was deeply concerned by the whole matter, more particularly by the uncertainty that continued in the case of this child who had already been the subject of substantial, and no doubt damaging, litigation. Most fortuitously, however, because a case in the judge's list had collapsed, he was able to find a further day, the day after the return date of the application for a new report, in November. He suggested that he should hear the residence application as a whole over those two days, including hearing the evidence of Mr Eagle who could then be cross-examined. The judge felt he would then be able to form a correct impression as to whether a further report was required. If it was, it would be ordered; if it was not, he would decide the case on the evidence before him. Both parties initially agreed to this course but later there were a number of applications for adjournments by the father, none of which were acceded to by the judge.
7. As a result of hearing the substantive applications, the judge had the benefit of hearing evidence from both the father and the mother. He was therefore ideally placed to consider the complaints about Mr Eagle's report in the context of the actual attitudes and personalities of the two protagonists, and to assess in that context whether or not he could reliably act upon the information that he received from Mr Eagle. It is that fact that it is essential to bear in mind when considering the criticisms now made.
8. Mr Eagle is a very experienced Child and Family Reporter, but a series of criticisms were made in the skeleton argument by counsel of the way in which he had set about preparing this report. The detail in which it was suggested Mr Eagle should have reported in order to enable the court to determine whether it could properly act upon the information was, in my view, wholly excessive. I would simply instance one example, where complaint is made that Mr Eagle did not carry out a proper parenting assessment of the mother. In paragraph 20 of the skeleton, it is complained that the report discloses no information about a series of matters to enable "the father to assess the quality of the interview". There then followed 14 steps that the interviewing officer should have taken to place the father in that position of knowledge. Further, in dealing with the interviews of the father, it is complained at paragraph 23 that sixteen issues with regard to his modus operandi should have been included in the report. As the judge said, some degree of proportionality must apply here. The complaints about Mr Eagle's method, in my view, are entirely excessive and inappropriate.
9. Turning to matters of more substance, the complaint made before us was that Mr Eagle had not properly or reliably investigated a number of complaints that the father had made about the mother's parenting skills and attitude towards the child; more particularly that he had not properly assessed the truth or otherwise of the complaints made by R, but thereafter ostensibly withdrawn by him, as to whether he was bullied by a half sibling when he was at his mother's home. It was the father's case that those matters were not put on his behalf, and that the mother's parenting lifestyle and general behaviour rendered her unfit to have the child living with her.
10. It is quite right that some doubt exists as to whether Mr Eagle had fully investigated the question of bullying and whether he was in a position to give a conclusive opinion. In my judgement, however, it would have been wholly inappropriate for the judge to have entered into detail about that matter. He had the advantage of hearing from both the father and the mother.
11. In paragraph 35 of his judgment, the judge sets out the father's case and his complaints and allegations about the mother, some of them of a surprising nature. The judge's concern throughout his judgment was that the father was a person of surprising attitudes and behaviour which rendered the judge concerned not only about the reliability of the allegations that he made, but also about his ability to play the role he sought to play in R's life. He said at paragraph 44, in view of the complaints levelled at the Court Welfare Officer:

"It seems to me that the problem with the father's complaints against Mr Eagle is that the father has an agenda, to use one of his own words. He wanted the Reporter to quiz [R] about all manner of facts, such as whether the child knew in advance that [Mr B] was going to live with the respondent...."

(He was a person with whom the mother was living at one time):

"....which is not the function of the Reporter at all."

12. Having seen both parents, the judge formed a favourable view of the mother and, having heard her in the witness box and heard her cross-examined, formed the clear view in paragraph 50:

"....that the suggestions that this child is some sort of prisoner in her house or that he is bullied by [his brother] are a complete nonsense."

13. He pointed out that she was open to some criticism because of her previous lifestyle. Despite that, however, there was very positive evidence about R's progress, academic ability and promise, none of which the judge felt, as he was entitled to feel, would have been the case had R been subjected to the sort of regime that the father alleged that Mr Eagle had negligently and incompetently failed to uncover.
14. Dealing with all those matters, the judge was right to concentrate on the view that he had formed of the parents and of the complaints they made about each other. In those circumstances, he would have been wrong to descend into the detailed analysis and criticism of Mr Eagle's report which, having heard him cross-examined in considerable detail for nearly a day, he found to be unfounded. Further, and overall, the judge was right to hold that the main burden of the father's application (that there should be yet further investigation of the child) is entirely inappropriate. The judge was clear that an early decision needed to be made, and that any further cross-questioning of this child would only serve further to destabilise him in an already difficult relationship. The judge was entirely justified in taking those views and no criticism can be made of him.
15. In the course of his submissions to us, Mr Larizadeh referred to the recent case of Flannery & Anr v Halifax Estate Agencies Ltd (t/a Colleys Professional Services) [2000] 2 WLR at 381 in which this court made some observations about the duty of a trial judge to give reasons for his decision. The complaint in this case is that the judge had not dealt, paragraph by paragraph, with the complaints made about Mr Eagle in the skeleton argument. I am quite satisfied that in Flannery this court did not mean to say that that was the sort of exercise in which a judge needed to engage when he had first hand evidence, seeing with his own eyes and hearing with his own ears the realities of the family dynamics and, in this case, the realities of the relationship between the mother and father. The judge made it entirely clear in his judgment that that was the basis upon which he proceeded. He was not to be deflected from it by criticisms of Mr Eagle's report. In my view, therefore, there is no grounds for reconsidering the judgment of His Honour Judge Yelton.
16. I am surprised that this application has been renewed to this court. I doubt whether those advising the father have sufficiently taken note of what was said by this court, presided over by my Lord, in the case of Khreino [2000] 1 FLR 578 at p580, in which my Lord gave guidance as to the type of case in which it is appropriate for an application to be renewed to this court, and the type of case in which it is not appropriate. Further, I am bound to note that this renewed application is supported by the Legal Services Commission. I would order two things. First, that there be filed with the registrar a copy of the legal aid certificate; and, secondly, that the father's solicitors file within seven days a statement indicating that they did indeed comply with their obligation under the Civil Procedure Rules PD 52 paragraph 4.17 to supply to the Legal Services Commission a copy of the observations made by my Lord on paper.
17. Subject to those two matters I would dismiss this application.
18. LORD JUSTICE THORPE: I agree.
Order: Permission to appeal refused. Detailed Legal Services Commission assessment.