England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
CIVIL DIVISION
ON APPEAL FROM BOW COUNTY COURT
AND THE PRINCIPAL REGISTRY
(HHJJ Hornby & Tyrer and Munby J)

		The Royal Courts of Justice The Strand London Thursday 20 June 2002

Thursday 20 June 2002

1. LORD JUSTICE THORPE: Today there are listed four applications for permission to appeal brought by the mother.
2. The first is from an order made by His Honour Judge Hornby in the county court, requiring her to provide contact to the father of her child. The judge, in the light of the previous history of non-cooperation, attached a penal notice to that order. The mother's application for permission to appeal that order was refused by the judge on paper. This is the oral renewal. A second application is for permission to appeal a second order made by His Honour Judge Hornby, which required government agencies to disclose details of the mother's present whereabouts. This order is the subject of an outstanding application for permission which has been listed for oral hearing today. A third application relates to an order in wardship made by Munby J, transferring the care and control of the child to the father and directing him to collect the child from school. That, too, is an application listed today for oral hearing. The last application challenges an order made by His Honour Judge Tyrer at the substantive hearing of the wardship application about a month after the order made by Munby J.
3. These four applications were listed for hearing this morning not before 11.00 am. The mother did not appear to pursue her applications and accordingly I put them back to be heard later in the day in the hope that she was simply delayed in her journey. However, that hope seemed dashed by 2.30 pm, when the mother had still not appeared. Accordingly, I directed that the application should be called on for hearing in her absence.
4. I do so because there is no doubt at all that she was well aware of today's hearing date. She was notified in the ordinary way and, furthermore, she has had at least one and probably more than one telephone conversations within the last few days with Mrs di Mambro, during the course of which Mrs di Mambro made it absolutely plain to the mother that she was required to attend for the determination of her applications today.
5. I turn now to those applications. This is a case in which there has been a long history of defiance on the part of the mother, and refusal to cooperate with the court in its determination to achieve contact between this child and the father. It is unnecessary for me to consider in any detail either of the applications relating to the orders made by Judge Hornby, for they have essentially been overtaken by the subsequent development of the case into wardship and the court's unhesitating decision to transfer the responsibility for the care of this child from mother to father. It is enough to say that both orders made by Judge Hornby were orders made in the exercise of his discretion and the facts as he found them fully justified the orders that he entered. Those two applications I accordingly dismiss without more ado.
6. I turn then to the application for permission to appeal the order made by Munby J. The note of judgment shows that the judge took considerable care over the case and appropriately so, given that he was being asked to transfer the care of the child from mother to father when, apart from the mother's obdurate opposition to contact, she had served the child well and the child did not wish to leave her care. However, the judge reached the unhesitating conclusion that unless he took this bold step, the child would never know his father. The judge was careful to involve the court welfare officer, Mr Symes, who saw the parties and in particular saw the boy. The judge directed a transcript of the evidence of Mr Symes and, notable amongst his answers to the judge is this passage at page 5 of the transcript of his evidence, line 2:

"The situation seems to be very clearly -- and even clearer today -- that if he returns to his mother, he will only see his father on a supervised basis that is pleasing to her. This appears to me to be, in terms of my investigations and the history of the matter, entirely irrational. It is a strong statement, but I feel I have to make that statement today. It is entirely irrational. And in that sense, it is a great concern to me that a child here is being used by a parent -- perhaps unwittingly, your Honour, I am sure the mother does not wish to harm her child in any way whatsoever. But a child is being used unwittingly by a parent, not in his best interests."

7. On the judge's findings, there is no doubt at all that the order which he made fell well within the discretionary ambit. The application for permission to appeal that order is also dismissed. Like the earlier orders, it is in a sense overtaken by the ultimate order, that made by His Honour Judge Tyrer.
8. Again for that hearing, culminating in the judgment of 12 April 2002, the mother was represented by counsel. There are a number of findings made by the judge that require record. At page 35 in the internal pagination of the transcript, the judge said of the father:

"On the question of credibility I am entirely satisfied that the father is the truthful person and that what he has told me is the truth. I am entirely satisfied as well, I am sad to say, that this mother has not told the truth but what really verges on a pack of lies, assertions of the gravest kind against her former husband, pursued for her own ends to an extent that I very much regret I can only describe as wicked."

9. Of the court welfare officer, Mr Symes, the judge said at page 42 of the internal pagination:

"I am entirely satisfied that his was a professional enquiry, that his principled answers to his investigations were based upon his perception of the welfare of the child and I accept both his evidence and his conclusions without reservation. I accept that mother's claim to be the main keeper of the truth about [N] and his past history is false. I am entirely satisfied that she has not told the truth and that much of what she has asserted over the years and before me in relation to the February 2000 allegation is, sad to relate, manufactured malice."

10. Approaching his conclusion, he said at page 45:

"But it is necessary, I am entirely satisfied, that this seismic change must be maintained for [N's] benefit. Father will not merely manage. I believe he will do extremely well."

11. The judge, even at this last hearing, was left with difficulty over the question of contact. He said at page 48:

"That is because mother instructed counsel not to make submissions and she declined to tell me what contact she would wish if [N] remained with his father. I shall say that there shall be reasonable supervised contact between the child and his mother, supervised at all times and at such times and such dates as can be arranged and agreed in writing between the parties' solicitors or by further order of this court on the lodging of detailed proposals."

12. Those excerpts demonstrate that the judge made the clearest findings both against the mother and in favour of the father. From those findings, both as to credibility and motivation, he was entirely justified in confirming the status quo established by the previous order of the court, namely that N be cared for by his father. That was not only an order arrived at in the exercise of the court's discretion, it was effectively an order compelled by his findings, coupled with the advice from Mr Symes.
13. In the circumstances that the mother refused to make any suggestion or submission in relation to contact, he could hardly have done more than he did when he ordered supervised contact with detail to be arranged. The judgment of Judge Tyrer in its totality extends to 53 pages. They demonstrate the care that the judge brought to his task. His judgment is comprehensive and free from any demonstrated misdirection or error. I have, of course, considered carefully the applicant's written submissions. Nothing in what she has written suggests to me that she would have the smallest prospect of success were permission granted. For all those reasons, the application to appeal the latest order, namely the order of His Honour Judge Tyrer of 12 April 2002 is also dismissed.
14. I further direct that none of these four applications is to be restored to the list. I am in no doubt that that last direction risks no injustice to the mother. Were these applications relisted, nothing would be achieved but a waste of court time.
ORDER: Applications refused