England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
CIVIL DIVISION
ON APPEAL FROM CROYDON COUNTY COURT
(His Honour Judge TAC Coningsby QC)

		The Royal Courts of Justice The Strand London Thursday 4 July 2002

Thursday July 2002

1. MR JUSTICE WALL: This is an application by a father for permission to appeal against an order made by His Honour Judge Coningsby, sitting in the Croydon County Court, on 3 April 2002. The case relates to the applicant's son, H, who was born on 23 January 1996 and so is six and a half years old.
2. The judge ordered that the next hearing of the father's application would take place on 25 November 2002, with a day set aside starting at 10 o'clock; and that the CAFCASS officer who had previously reported in the case was to file a supplementary report by 20 November and was to attend the hearing on 25 November in the morning. The judge then went on to deal with the father's contact with H for the time between 3 April and 25 November. He directed staying contact every fourth weekend, starting on 12 April, with the arrangement that during the school term the father was to collect H from school and return him to school; that during the holidays he was to collect and return H to his mother's address; and that he was to have holiday contact during the school summer holidays for a period of two weeks. Those arrangements were meant to the finalised by the end of May. The father told me this morning that contact has been arranged, although he told me it was not for the full two-week period.
3. The judge attached a number of conditions to the contact order: firstly, that the father was not to make any adverse remark about the mother or her mother, H's the maternal grandmother, in H's presence; he was to be prompt in his timing for collection and return; he was to telephone if there was to be any delay; there was a liberty to the parents to agree such further or other contact as was appropriate; and a transcript of the judgment was ordered. The judge refused permission to appeal that order on the basis that an appeal would have little chance of success, and in any event the case was to be reviewed fully at the hearing on 25 November.
4. Before I deal with the father's grounds of appeal, I need to put the order into context. The order made by the judge was not, as might be apparent, the first contact order which had been made in the case. Following the separation of the parties, it appears that the father had contact every weekend. The father had met H's mother in 1994. They had started living together in 1995 and H, of course, was born in January 1996. The separation took place in November 1999, when the mother moved with H to her mother's home. The father applied to the court in February 2000, initially for contact and then for residence, but on 22 June the court made a residence order in favour of H's mother, with contact to the father. As I indicated earlier, the matter has returned on a number of occasions to court. The latest order represents, on any view, a substantial reduction of contact from that which the father was initially enjoying. From every weekend it had gone down on the first order, as I understand it, to three weekends out of four, and on the subsequent reduction, the one which Judge Coningsby as it were confirmed, to one weekend in four.
5. The reason for this, as explained by the judge in his judgment, was really threefold. The first was complaints that the father had been very erratic in his approach to timekeeping; secondly, there was evidence that the father had said things, both to his former partner and to H's maternal grandmother, which had been picked up by the child and which upset him; and the third was that the father had a very hostile view of his former partner and appeared unable to understand her concerns about his conduct.
6. It is apparent from what the father has told me this morning that those feelings are reciprocated. Indeed, it is the father's case that it is his former partner who has throughout behaved badly; his former partner who throughout has upset H by her remarks about the father to the child. It appears to be the case -- and this again is confirmed by the father this morning -- that the relationship between him and his former partner has not improved; indeed, certainly it would appear that, whether he sees her or not, he retains very strong feelings about her. One of the factors which impressed the judge was that he was unable, when asked, to say anything positive about her at all. The judge recorded that the father accepted that H may well have heard observations which he had made about his former partner, he said under his breath, such as the word "bitch", which H might well have overheard, and the father accepted before the judge that he had very hostile feelings about the mother and the grandmother. The judge was concerned about that. The judge took the view that any reasonable man would be able to say at least some good thing about the mother of his child and likewise about the maternal grandmother, but it was clear that the father was unable to do so. There was also, according to the judge, some evidence of rude gestures being made which once again, even if provoked, the judge thought wholly unacceptable. The judge in terms said that the sort of conduct he was describing was not responsible behaviour by a father.
7. On the positive side, both the judge and the CAFCASS officer who investigated the case were clear that in many ways the father was an excellent father who loved H and no doubt H loved him, but the judge said that the father had these feelings of hostility which he had not managed to control. When he did manage them, so that there was no further risk that the child would be emotionally pulled away from his mother, and her secure position of being responsible for the day-to-day care of the child was no longer threatened by the father's attitude and remarks, then, in the judge's view, contact could be expanded. In this respect he was following the recommendation of the CAFCASS officer that there needed to be a period during which those propositions could be tested to see if at the end of the period the father could come to a more balanced position and be more positive and supportive of the mother. That is why the judge adjourned the matter to November. It was most unfortunate that the CAFCASS officer who was reporting would not be in a position to make a report until just before that time and that was, no doubt, one of the reasons why the judge allowed such a large gap to take place. But the judge took the view that in November, once the court had the opportunity to assess how the summer holiday and the monthly contact had gone, and the father's behaviour in the course of them, the matter could then be reviewed and, if all had gone well and feelings had moderated, then contact could no doubt be increased.
8. The father criticises that approach in a number of ways. He is very critical of the CAFCASS officer for the inadequacy of her report; for the lack of time spent getting to know H, the lack of time spent really ascertaining H's true wishes and feelings; and effectively what I am sure the father regards as bias on the CAFCASS officer's part in her favouring of mother rather than himself. I think it has to be said that the CAFCASS officer was sympathetic to the father in a number of ways. The CAFCASS officer was quite clear that H and the father had a very strong and powerful relationship, and that in many ways the father was an admirable father. But the Child and Family Reporter said a number of things which I have to say are conventional wisdom, which really the father needs to hear and take on board. She says this:

"[H] will flourish if he is allowed to enjoy relationships with the adults in his life without having to hear what his parents feel about each other or his maternal grandmother. He will feel secure if he believes that his parents support arrangements that have been made for him, and if they make handovers as amicable as possible. This will lead to him being able to move between the two homes easily and free him emotionally to focus on the time he has with each parent."

9. Slightly later in the report, the CAFCASS officer says:

"[H] will benefit if he grows up maintaining relationships with both the maternal and paternal side of his family. However, these benefits need to be weighed against the disadvantages of growing up in an environment where the security and love he gets from both parents is being undermined. Children's emotional attachments will vary in depth as they develop. Both are equally as important at different times of a child's life. Having these attachments damaged can disadvantage a child later in life."

10. Accordingly, the conclusion reached by the CAFCASS officer was that which I have indicated, and that recommendation was accepted by the judge.
11. I have some sympathy with a number of things that the father said. First of all, I agree with him that it was quite inappropriate that when there were difficulties in contact the mother, through her solicitors, abruptly terminated contact on 8 November 2001. That they had no right to do. It was quite the wrong thing to do. What they should have done, of course, was to have gone to the court and invited the court to vary the order. I have no doubt that that conduct on their part in November 2001 has gone a long way to fuelling the father's anxiety that his former partner's intention is, if possible, to cut off H from him.
12. I have to say, however, that nothing in the documentation that I have read, and certainly nothing in either the CAFCASS report or the judge's judgment, comes anywhere near supporting that proposition. I am quite satisfied that the judge was anxious to facilitate contact in an atmosphere that was free from acrimony and hostility. There is no question of the judge seeking to terminate contact. Indeed, the strategy employed by the judge was to try and restore contact to its previous state. That, he felt, could not be done until such time as feelings had cooled and the father had been able to demonstrate that, whatever his feelings about her, he could keep them under control.
13. I regret to say that I have not been greatly encouraged by what the father has said today. He frequently used quite strong language in his submissions to me. He talked about himself being persecuted and about the difficulties that fathers had in getting anywhere; he said that he was being eliminated from his son's life slowly but methodically and that he had been threatened by the barrister acting for his former partner who had suggested in terms -- which, if what the father says is correct, was grossly unprofessional -- that if they wanted to they could get the father put in Belmarsh by accusing him of sexual abuse. The father accused the CAFCASS officer of failure to investigate sufficiently and said that effectively the responsibility for H's present difficulties lay with his mother and his maternal grandmother.
14. There is always in these cases, where there is strong feeling on both sides, an element of counter-accusation, but I think that the judge was quite right to emphasise that what needed to happen was that contact should, if possible, take place in an atmosphere where there was no acrimony and that as a first step it was very important for the father to be able to demonstrate that he could moderate his conduct which has been found by the judge to occur, both in terms of late timekeeping and in terms of remarks made in the presence of the child, or possibly to the child, which are derogatory of his mother. Parents find it very difficult after separation, when their feelings about each other are very strong, to recognise the damage which is done to children by one parent abusing the other in the presence of the child. If the mother is doing that, it is of course inexcusable; but it is equally inexcusable if the father is doing it. Two wrongs, as I put to him, do not make a right; and he must recognise that if he cannot contain or restrain his powerful feelings about his former partner, then he is damaging H, because H is living with her, H undoubtedly loves her and H needs to be supported by both his parents and not be in the middle of a battle between the two of them.
15. I am very sorry about the time gap, because in my judgment it is a long time gap, but all in all, the strategy employed by the judge, relying on the CAFCASS officer, was one that he was entitled to adopt. As I explained to the father at the beginning of the hearing, when a judge makes an order in the exercise of his discretion which is one he was entitled to make, that is the end of the matter whether or not I agree with it. There is no arguable point on appeal.
16. I understand the father's anxieties about the CAFCASS officer, but he is in something of a bind here because he wants the CAFCASS officer to get to know H and if there were to be a different CAFCASS officer undertaking the further enquiry, that officer would have to introduce himself or herself to H and start again from first base.
17. I am sorry about the delay until November but, as I indicated a moment ago, in my view this is an order which it was within the discretion of the judge to make. My advice to the father in these circumstances is to make the contact work between now and November, to restrain his feelings about his former partner between now and November, not to criticise her to H in any way between now and November; and to come back in November to tell the judge, as I hope he will be able to do, that things have gone well and contact can now be expanded.
18. In these circumstances I see no basis on which the appeal could be successful before the full court, and therefore this application for permission to appeal must inevitably be refused.
ORDER: Application refused