England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE GLOUCESTER COUNTY COURT
(His Honour Judge Hutton)

		Royal Courts of Justice Strand London WC2 Wednesday, 26th June 2002

1. MR. JUSTICE WALL: This is an appeal by the father of a young girl, ACR, who was born on 16th August 1993. The appeal is against an order made by His Honour Judge Hutton sitting in the Gloucester County Court on 21st March 2002, in which the judge made orders for contact by the father to ACR relating to future Christmas holidays, a period very shortly after the date of the order, namely from 23rd March to 26th March, and an order for summer holiday contact from 1st July until 15th July and then from 22nd July until 29th July. The order records that, for the avoidance of doubt, contact arrangements provided for in an undertaking given by the mother on 30th September 2001 were to remain in force. The judge ordered the father to pay the mother's costs.
2. During the course of argument I intervened to say that these cases often are not about contact. They are about disputes between the parents and the unresolved issues between the parents. By saying that, I do not intend to imply that the mother and father do not love ACR dearly and have her best interests at heart. I am sure they both do. But, in the circumstances which I am about to outline, it is in the future going to be of the utmost importance that both parties, if possible, put their feelings on one side and concentrate, not on their own pride or hurt pride, but on the welfare of the child. It is indicative of the parents' dispute that the mother calls by her anglicised name and the father calls by her Greek name, thereby demonstrating the different backgrounds from which they come.
3. The happy side of this story is that A, who was born on 16th August 1993, was born at a time when or very shortly after the relationship between the parents came to an end. Her parents have never lived with her as mother and father. A has lived with her mother. Very much to the credit of both parties, it has always been agreed that A should have contact with her father and, although there have been disagreements regularly about the frequency, level and nature of that contact, the principle of contact has always been accepted. The consequence is, very happily and appropriately, that, although A lives with her mother, she has an excellent relationship with her father and one which I hope will endure into adulthood.
4. The reason the matter comes before the court starts with an order made by Judge Hutton towards the end of last year, which gave permission to the mother to remove A from the jurisdiction. That application was investigated by the CAFCASS officer from whom we have a detailed report. The situation the mother found herself in is one that is commonplace, namely that her husband had been posted to or had obtained an appointment or was working permanently in Canada. The family was to move with him to Canada.
5. The application was opposed by the father but, after a thorough investigation by the CAFCASS officer, the judge acceded to it. An order was made giving the mother permission permanently to remove A from the jurisdiction. There were a number of conditions attached to the order and on 28th November an undertaking was given by the mother and signed a few days later on 3rd December, in which she undertook to allow contact between the father and the child as follows:

"(1) Telephone contact each Wednesday and Saturday between 2pm and 3pm. Three weeks during the school summer holidays - split as two consecutive weeks and a further single week. One week during the school Easter holidays. Five nights during the school Christmas holidays, commencing Boxing Day.

(2) to pay into court a sum of money equivalent to two years travelling costs for the said child to travel between Canada and England to facilitate contact as at paragraph 1 above."

6. She agreed to be bound by these promises until 16th August 2009 when A would be 16. These undertakings, as they were proffered and recorded in the court's order, are clear; in particular that the three weeks summer holiday was to be split between two consecutive weeks and a further single week.
7. What appears to have confused the position is that the father sought permission to appeal Judge Hutton's order. There was a delay and no doubt a substantial degree of uncertainty in the minds of the parties until such time as that application for permission to appeal was dealt with. It is not clear to me exactly when permission was refused.
8. In any event the mother then began to make arrangements for her removal to Canada with A which had been put in abeyance. There followed a substantial amount of correspondence between the parties' solicitors as to the contact the father should have before A went and the contact he should have this summer. It does not seem necessary to go through that correspondence in any great detail. The mother's plans did undoubtedly change. She had intended to come back shortly after her departure to attend a wedding and she was proposing that contact with the father should take place then. She made it clear that the summer contact should take place between 1st and 15th July and then a gap of a week and then between 22nd July and the end of July. The father, contrary to what had been proposed in the undertaking, took the view that there was no reason why he should not have three consecutive weeks. Those weeks should take place in August when his sons from his subsequent marriage would be out of school. The position is that the father has two young sons, who are N, born in September 1996, and A, born in 1997, half brothers to A. I am also told that his wife has just given birth to another baby. So there are three half siblings for A to visit when she comes to England.
9. The correspondence failed to result in agreement and, because of the arrangements which the mother had made for her return and the difficulty in obtaining flights, it was not possible to offer the father the week at Easter which he should have had. Moreover, the mother stuck by her guns in relation to the period of contact in the summer; the father insisting he wanted three weeks in August, the mother saying two weeks and a week's gap and then one week in July. Because agreement was impossible the matter came before the judge. The father issued an application on 11th March. The court was able to accommodate the matter quite swiftly, and so it came before the judge on 21st March. We only have a brief note of the judge's judgment. He knew the case well because he had had the hearing in November to which he referred. He referred to the undertakings that had been given. He said that it was the application of the father for specific dates before the mother went to Canada. He said that the term ended the next day, Friday 22 March:

"Dispute by mother. Her point being very tight schedule to pack and leave for Canada. Booked and tickets and she submits would be too tight if contact until 27th. Heard submissions. Father not reasonable. Mother is. For this Easter father have contact from Saturday 23rd to 26th."

10. Then the crucial part:

"The next issue is contact during summer period. Originally contact in block of 2 weeks and further week. Father wants to have A for block of 3 weeks starting 26th/27th July. Strongly disputed. Dates not convenient. Maintains original agreement with a break. Father wants 3 weeks to take A to Cyprus, to meet friends and relations. Disputed by mother. Father would have to make an application. Find for the mother. For this summer staying contact for two periods. Dates 1st-15th July;22nd-29th July."

11. There were other issues in relation to a web-cam. The judge said on the issue on costs:

"Costs application by the mother for father to pay her costs. Heard submissions. Father has not behaved reasonably. If sensible and reasonable it would not have been necessary to bring to court. To be taxed if not agreed. Happy to include Christmas. Times agreed between 23/03/02 and 26/03/02."

12. Ward LJ gave the father permission to appeal, both on the timings of contact and on the issue of costs. It seems to me that, looking at this case now that the Easter dates are water under the bridge, the father's difficulty in this appeal is that the undertakings which the mother gave in relation to contact, two weeks, gap, plus one week, were recorded as long ago as 3rd December, and that it was only at a relatively late stage that he sought to change them, and to move the goalposts to seek three consecutive weeks during August. It seems to me that that is what the judge may be meaning when he refers to the fact that the father would need to make an application about that. It was, in the judge's view, too late for that to be argued at this point in time.
13. Speaking for myself, I find it difficult to see how the judge's approach to the problem can be faulted in the circumstances that the case came before him. True he knew the case well. He was faced with a difficult snap decision which he had to make at short notice, given the impending date for contact in March. As far as what had been agreed in relation to the summer holiday contact and his refusal to interfere with that on the basis that the material before him was inadequate, it seems to me that his decision, made, as it was, as speedily as it had to be, is not one with which this court can or should interfere. Having said that, I do hope very much that for the remainder of this year, after this summer and next year, it will be possible for the parties to think clearly in advance and agree arrangements well in advance which are clear and incapable of misunderstanding. It may be that the order of the court will need to be altered if it is common ground that the child should have three consecutive weeks holiday with her father. The child is 10 next year. She has brothers. If that cannot be agreed it will have to go back to the judge. If it has to go back to the judge it must go back with cogent arguments on both sides so that both parties know where they stand.
14. This year the mother says, in her statement submitted through the skeleton argument, that she has made arrangements during the August period. It will have to stand as it is. I understand the father did not take up the contact given to him by the judge in the order of 21st March. It is submitted in the skeleton argument put forward on the mother's behalf that the father has not communicated with the little girl since she has been in Canada. We are not able to enter into that dispute. Merely because either parent does not get what he or she wants should not be a reason for taking it out on the child. It is important that she is kept apart from this particular dispute. I would dismiss the appeal.
15. In relation to the issue of costs it is unusual in a child case for a judge to make an order for costs. There are authorities in this court in particular which demonstrate that there has to be some unreasonable litigation for that order to be made. At the same time, costs are always in the discretion of the trial judge. In this case the mother is able to point to the fact that, not only did she put forward a proposal in correspondence before the hearing that was accepted by the judge, but the father was seeking to change the goalposts by seeking to alter the contact to three consecutive weeks. The order for costs is one within his discretion and it is not one with which I would interfere.
16. LORD JUSTICE THORPE: I agree. I have perhaps more misgivings about the order as to costs than my Lord. The position adopted by the parties in correspondence was the position that was argued out. There is superficially an appearance that the judge was doing little more than applying the rule that costs follow the event. On the other hand, he did refer to the father's unreasonable conduct. We do not have a transcript which might reveal fuller reasoning. Given that the judge was exercising a very broad discretion, if there is room for doubt it should be resolved in upholding the discretionary exercise in the court of trial. I am therefore in agreement with my Lord on both points. I particularly support his reasoning and his plea to the parties to enter into sensible negotiations to settle contact for the future and to avoid, as far as possible, a return to the county court. The appeal is dismissed in its entirety.
Order: Appeal dismissed with costs.