England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SOUTHAMPTON COUNTY COURT
(Mr Recorder Wildblood QC)

		Royal Courts of Justice Strand London WC2 Friday, 4th October 2002

MR JUSTICE BODEY:

1. This is an application by PK (whom I shall call "the father") for permission to appeal an order of Mr Recorder Wildblood QC in the Southampton County Court dated 24th January 2002. By that order the Recorder refused the father's application for direct contact to the two children of the family: J, who was born on 18th December 1985 and was therefore then just 16 and is now rising 17; and D, who was born on 11th November 1987 and who was then 14 and is now rising 15.
2. The Recorder allowed the father indirect contact by cards and gifts at birthdays and Christmas time. He made further orders prohibiting the father from exercising parental responsibility as regards the children's education; specifying the information which the father should in future have supplied to him by J's school; permitting the father to attend one parents' evening per annum at J's school; refusing the father's application for disclosure of the name and address of D's school and of the children's doctor or doctors; and directing that the father should have edited school reports regarding D and no further information from D's school.
3. Lastly, the Recorder made an order under section 91(14) of the Children Act 1989 requiring the father, until 31st July 2004, to obtain the permission of the court should he wish to make any further application for a section 8 order.
4. The father has stated at the outset of his application this morning that, given J's age, he does not wish to pursue an application for contact as regards J. That is a sensible concession, particularly having regard to section 9(6) of the Children Act 1989 whereby, for the court to make an order in respect of a child of J's age, the circumstances would have to be exceptional, which they are not.
5. The parties married in 1984 and separated in 1996. In April 1997 the father appeared at the Crown Court and was convicted of a number of indecent assaults on the mother, by reason of which a sentence of two years' imprisonment was passed on him. The father's conviction and imprisonment were, on the evidence, matters which were well known to the two boys. They have other independent recollections of certain other types of behaviour by the father, which he mostly denies, which are set out in the Recorder's judgment and which I need not repeat.
6. In January 1998, roughly when the father must have been due to be released from prison, the mother moved house with the children and has since then been allowed by the court to keep her address confidential.
7. It does not take much imagination to see that, against this background, the boys will be most likely to have absorbed many of the mother's feelings and attitudes and to have formed what one might describe as an emotional alliance with her, dependent, as they have been, upon her throughout for their stability and welfare.
8. The matter does not end there, since from June 1998 to about the time of the trial in January 2002 the father engaged in a fairly relentless course of correspondence with J's school, making many complaints (some of them seemingly justified) but in a way which the judge held was the converse of collaborative or child-centred. The father did so to the extent that the school was driven to take the extreme, if not unique, step of itself joining in and appearing at the father's contact application to seek directions in its own right as to its position.
9. J became aware of all this aggravation between the father and his school when the father purported to withdraw his consent for him to do any extracurricular activities and instructed the school that he wanted J removed from the school. It is clear on the evidence that this justifiably upset, embarrassed and angered J.
10. The net result of all this, sadly, has been that both boys now express hostility and hatred towards their father and they wish not to see him.
11. In a report of January 1999 the welfare officer, Mrs Barlow, said:

"These are bright, articulate children who have both expressed their wishes, in respect of not wanting to see their father, very clearly. They were also able to explain their reasons for this. They expect that these will be respected. ... I am sure that further Court proceedings will be stressful and anxiety provoking for them. They have suffered a great deal of trauma already as a result of the difficulties the family formerly experienced. I feel that it would be extremely detrimental to their wellbeing if the issue of contact was forced against their will."

12. In her conclusion Mrs Barlow said at that time (January 1999):

"It is my opinion that [J]'s and [D]'s feelings are entirely to be expected given the traumatic experiences they have suffered during and after their parents' marriage. In the circumstances I feel they are as settled and well balanced as one could hope for. I am convinced that [the mother] is not actively dissuading the children from contact and that she would facilitate this if the children wanted it. Any personal feelings she may have about [the father] are entirely understandable in light of her description of experiences with him. She and the children remain frightened of him."

13. Following that report the father sensibly abandoned his then contact application; but later, in September 2001, he made his renewed contact and his other applications which I have referred to at the outset.
14. Mrs Barlow therefore saw the boys again and found their wishes and feelings to be the same as before. In her report of 19th December 2001 she said of J that he is:

"... very angry with his father, both because of his past behaviour and because of his ongoing interference. [J] works very hard at school and told me his father has written to him at school report time to say `do well for me'. [J] resents this as `I am not doing this for him; I am doing it for myself'."

The report then records J as having told Mrs Barlow that he had had to miss certain of his extracurricular activities as a result of the father's letter to the school mentioned above. The report continues:

"[J] also feels that [the father] undermines his schooling as he has `complained to the Head and then complained to the Chair of Governors; then complained to the Education Authorities saying the school is not `Christian enough, as it does not support parental values'."

J reported that he did not want the father to write to him or to be involved in his schooling and said that he "really, really hates" his father. As regards D, Mrs Barlow's report of December 2001 says:

"He is fearful that [the father] `might behave badly again' and does not want to see him. He told me he does not like his father and is angry with him and added `there is nothing he could do to make it up or right or make me want to see him'."

15. I have read a lever-arch file of papers and a ring folder of correspondence between the father and the school. I have read and carefully considered the Recorder's judgment and the father's skeleton argument of 13 pages dealing in detail with his criticisms of the judgment and setting out the orders which he would seek if permission were given. I have also read this morning a most helpful written statement by the father running to some five and a half pages which, if I may say so, was an extremely sensible way for the father to place his arguments before the court.
16. I do not propose to deal with the different paragraphs of the Recorder's orders separately, although I have done so mentally when considering whether permission should be given to appeal as regards any individual part of the order.
17. In order for an aspiring appellant to succeed on a permission application such as this, the court has to consider that the appeal would have "a real prospect of success" or that there is some other compelling reason why the appeal should be heard.
18. The Recorder, who saw and heard the witnesses, covered all aspects of the various applications in a very detailed and thorough judgment. He correctly applied the provisions of the Children Act 1989 and considered article 8 of the European Convention on Human Rights. His judgment was wholly justified, on the evidence, in every respect and was in the interests of the welfare of the two children.
19. In my view there is no reasonable possibility of the Court of Appeal being persuaded to interfere with any part of the order. It would indeed be wholly wrong and unfair to all concerned either to give the father any hint that the Court of Appeal might do so, or to place the mother and the two children in the position of having further litigation hanging over them.
20. On a discrete point the father seeks permission for a psychological expert to assess and report on whether the boys have been, and are, suffering from what he refers to as "parental alienation syndrome". But the learned Recorder refused that application at an interlocutory hearing. In my judgment, no appeal court could say that that decision of the learned Recorder was wrong. Indeed, in my view he was right to refuse that application. These boys have had quite enough to contend with without further intrusive expert engagement; and it would only establish that which the court knows already, through the experienced welfare officer and through the application of its own experience. Of course, there are many cases where psychological and other expert evidence is essential and of huge assistance to the court; but every case turns on its own particular facts and this case is not one of them.
21. I should perhaps also add that the father asked me in the document that I have read this morning to comment on the propriety of the school's attitude to information given or denied to him. That is outwith my province and it is not a matter which a Family Division judge would be likely to deal with as a free-standing matter in such a case as this, which is concerned simply with the welfare of the children and decisions in respect thereof.
22. In all the circumstances I refuse this application.
Order: application for permission to appeal dismissed; transcript of this judgment to be supplied to applicant father at public expense.