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 MANCHESTER COUNTY COURT
(HER HONOUR JUDGE KUSHNER)

		Royal Courts of Justice Strand London, WC2 Thursday, 10th October 2002

1. LADY JUSTICE HALE: This is a father's application for permission to appeal against part of an order made by HHJ Kushner QC in the Manchester County Court on 18th July 2002. The parties are both of them accountants. They were married in August 1999 after living together for some three years. Their daughter, E, was born on 5th January 2001, so she is now 21 months old. The mother took maternity leave until mid May, and then returned to work three days a week. The father has a well-paid and responsible job, and at that stage he was working very long hours. He accepts that the mother was the primary carer for their daughter during that time.
2. There appear to have been difficulties in their marriage from only a few weeks after the birth. The mother left home with the baby, another house was bought in her name, and there is, on the papers, a disagreement about when and how they got back together again. The judge referred to the marriage as "limping on" and considered that there had not been a full reconciliation until the end of 2001.
3. In January 2002 the mother got a new full-time job and was clearly under considerable pressure at work at that time. The father had to take more responsibility for E. The arrangements are that she is at a nursery on Monday mornings, all day Tuesday, and on Friday mornings, and spends the rest of the time with a child minder. The father was also left in charge when the mother went on a business trip to Bulgaria in May 2002. So the father regards himself as having been an equal sharer in the care of E from the time when the mother went back to work full-time.
4. The crisis seems to have taken place on 22nd June this year. The mother left home after an argument. She returned the next day and took E and some belongings with her. The father was planning to go on holiday on 26th June, and indeed booked a holiday just for himself soon after that. They met at the nursery the following morning, and there was clearly some argument then. Both parents were advised to seek legal advice. E stayed with her mother and, indeed, the father did not see for her for some time, though he did not go on the holiday.
5. On 26th June the mother applied ex parte for non-molestation and occupation orders under the Family Law Act 1996, and also for a residence order. The district judge refused the Family Law Act orders, but did make a residence order. The father has made various complaints about the tactics of the mother's solicitors in making those applications without telling the father's solicitors and in not serving the orders until some time later. He feels that the mother had changed her solicitors in order to find one who was prepared to make an ex parte residence order application, which is an unusual application and is normally only granted in exceptional circumstances, which he does not feel these were.
6. Once he knew about the orders, he applied fairly swiftly for a residence order on his own account. He also applied for a prohibited steps order, and that was granted. Basically, he wanted shared residence and that is what he still wants. He was, of course, entitled to challenge the ex parte residence order, and that matter came before HHJ Kushner. There was a hearing of some three days' duration at which evidence was heard.
7. Her order provided for holidays with each parent over the summer, for a Cafcass report by 14th October, and the listing of the principal dispute for two days, beginning on 31st October. So far, as far as the father is concerned, so good. But in the meantime the order provided that E was to live with her mother, except that she was to live with her father overnight from each Tuesday to Wednesday, and from Friday to Saturday from after nursery to 6 o'clock one weekend, and Saturday to Sunday from 6 o'clock to 6 o'clock the next. It also ordered the father to pay £2,000 in costs to the mother.
8. The reasons for making that order were that the judge took the view that the father would have much more difficulty in juggling the arrangements than he anticipated. This was based, in part at least, on the demands of his job. He does have a senior position with a developing company, for which he is highly paid, and the judge took the view that he had perhaps underestimated the difficulties. She felt that the mother would be better able to juggle the demands of her work and her responsibility for E, and that she would be better able to run E's day-to-day life in an area where she had family and had been brought up. The note of judgment which was taken by the father's solicitors uses the phrase "she has been a primary career", although the father had contributed. The judge also took the view that E needed a routine and the stability of knowing that the home where the mother lived was her primary home, "where she has her bath, throws her tantrums, and goes to bed".
9. She did acknowledge that it was an attractive argument that E should, on an interim basis at least, split her time half and half in the week as well at weekends, as E was a flexible child used to dividing her time between different carers, but nevertheless she took the view that E needed to spend the bulk of her time at the mother's home.
10. She did, at least according to the note of the judgment which I have read, make it clear that her approach might be different when she had more evidence. And it is noteworthy that instead of expressing her order as a residence order that E should live with her mother, having contact with her father, she expressed it as a shared residence order, with E spending some of her time living with her mother and some of her time living with her father. Such an order is only justified where, in effect, the child has two homes. That is the point of it. Thus, the judge must have anticipated that this was a case in which it might be appropriate for shared residence to continue into the future, which in turn might indicate that the distribution of time between the two homes might alter in the future. The costs order was made because the order she had made reflected the arrangements that there had been since the beginning of July, and in her view a three day hearing could have been avoided.
11. The father wishes to appeal against that decision. His main arguments are as follows. Firstly, he says that the judge should not have regarded the mother as the main carer for E. She had been the main carer for the first year or so of E's life, but in more recent times they had been sharing the responsibility much more evenly, and the judge should have acknowledged that.
12. Furthermore -- and this is linked to that argument -- the judge should have preserved what had been the status quo before the bust up in June, rather than the one that had been established after that. That had been established as a result of an improper pre-emptive strike by the mother in seeking an ex parte residence order when there was no proper basis for doing so.
13. The judge was reluctant to go into the rights and wrongs of how the various solicitors had conducted themselves, and I completely understand that reluctance. But, of course, that is how the father will see it. He feels flabbergasted at how the judicial process has worked to date: that they were a couple living together in a family home sharing the care of their daughter, both of them in full-time work, they separated and that that position is not maintained on an interim basis. What he wanted was to maintain it, having three nights one week and four nights the next. But he says, very fairly, that he was given the impression from the outset that this was a non-starter, although that was what he went into the hearing arguing for.
14. He also feels that he was unfairly treated by the judge, who had made up her mind in advance, and was given a grilling by the judge, which was rigorous in comparison with the treatment his wife suffered in the witness box.
15. I understand entirely the force of all of those arguments. The difficulty that I face is that it is not the business of this court to try the case as if it were the judge who is hearing it on the ground. These decisions are a mixture of fact and impressions of the witnesses, and the exercise of discretion in weighing up the various factors which are relevant to judging what will be in the best interests of the child concerned. The father quite rightly says the interests of the child should determine what happens. This court, therefore, cannot interfere with what the judge who has seen and heard the witnesses, and listened to all the arguments has done, unless that judge is plainly wrong, or has erred in principle in some way. The difficulty in this situation is that this court was not there, this court did not see the witnesses, this court did not get the feel of how things were in the court room.
16. It is also the case that the courts always have to ask themselves, once parents have stopped living together, how they are going to have to adjust to the inevitable difference that that makes in their everyday lives. Until comparatively recently, shared residence orders were not thought to be in the best interests of children. It was thought that children needed one secure geographical and personal base in order to feel secure and confident, given the upheaval that there had already been in their lives. More recently, however, the courts have adopted a much more flexible attitude, and are willing to entertain such arrangements in appropriate cases. But it is also the case that they may take a more cautious attitude in relation to a very young child, who is already both in nursery and at a child minder. The view might be taken that such a child did indeed need to spend more time in one parental home than in the other in order to develop a proper sense of stability and security. I say they might take that view. But equally, they might take a different view, depending upon the advice that they are given and their overall assessment in the light of all the evidence in the case.
17. This is, of course, an interim arrangement. I have emphasised that the judge saw it as an interim arrangement and did say, as she should indeed have said, that she might change her mind when more information was available. I will put it more strongly than that. Any judge hearing this case on a full basis ought to approach it with a completely open mind as to what would be in the best interests of this little girl, because clearly this is a duel career family, where both parents have played a substantial part in looking after her in the past, and continue to play such a part. It may very well be that the evidence is that she is the sort of little girl who thrives on variety.
18. But that is for the future. I cannot say that this judge was plainly wrong to take an interim view that for the time being somewhat more time in one home than the other was more appropriate. Given that she had to make the choice as to which home more time was spent in, it was perhaps unsurprising that she concluded in favour of the home which was her current home before the break up, and in favour of the parent who had, over the 21 months of her life, spent more time as her primary carer.
19. In saying that, I emphasise again that that has to be just an interim view. Were the case to be coming on as originally planned on 31st October, then there would be nothing, in my view, that could be done to change the arrangements, other than the parents agreeing to do so. I am told, however, that that date will have to be put off because the Cafcass report will not be available until the middle of November. It will depend upon availability of time at court as to whether the case can be listed soon after that, or rather longer into the future.
20. The father says that, in some ways at least, he would like as long a delay as possible in the sense that it would enable the matter to be considered as fully and as deeply as possible. He has acquired a new property, which is seven minutes' drive away from the mother's home, and is very close to the nursery where E is during the day. And if he is settled there and has demonstrated that he is coping very flexibly and easily with the care that he has of her at the moment, he will be better able to demonstrate the case for the shared residence that he wants, and I see the force of that.
21. A further point he makes in relation to the order is that the judge did contemplate that E might go for tea on another evening in addition to the one full day at the weekend and the one overnight during the week. But that was not actually incorporated in the order, and the solicitors seem to have been fighting about it ever since. That seems to me to be unfortunate. The judge was quite clear in the judgment: "if it could be arranged, perhaps she could go for tea an extra night". There would have to be a very good reason for not making those arrangements in the light of what the judge said, and in the light of everything that I have said about the interim nature of these arrangements.
22. For the reasons I have explained, this is not a case in which the Court of Appeal could interfere with what the judge did, but things have changed: the hearing is having to be delayed from when the judge contemplated it; the father's circumstances have changed; the contemplated going for tea an extra night does not seem to have happened. It may very well be that were the father to apply to the court for a variation of the interim arrangements because of the delay to the final hearing, then the court might be willing to entertain a variation. That would be a much better way of doing it than taking the time on an appeal which would be almost bound to fail, for the reasons that I have explained. I cannot, of course, say that a variation would work, but I do make it plain that the fact that I am refusing permission to appeal against an order that was made on 18th July should not be taken as any indication of a view about what order might be appropriate on an occasion when the case will have to come back before the lower court for the purpose of giving varied directions for trial. So to that extent, I can give some comfort.
23. As far as the costs order is concerned, it is quite unusual to make a costs order in a child case. The court does normally take the view that both parents are acting in what they believe to be the best interests of their child, and so unusual circumstances are required for such an order to be made. The unusual circumstances here are a three day hearing on an interim basis. This court is even more reluctant to interfere with decisions on costs than it is to interfere in decisions based on the subtle interplay of people's personalities, characters, and plans in children cases. But I would not like there to be any impression that because the judge made that order there is any suggestion that the father has behaved unreasonably in relation to the conduct of this litigation. I make that completely plain. There is nothing in what I have read to indicate that that is the case, and so although I cannot see a real prospect of success in a appeal against that order, I want that to be on the record for the future. It was at the very limits of what was open to the judge to do in this particular case.
24. With that in mind, I would also express the view that the father feels that he has not been well treated by the judicial system to date. It is not for me to say that that is or is not the case, but that feeling ought to be taken into account in re-listing the case. I would therefore express the view that it might be appropriate, if practical, for the case to be listed before a different judge. I merely express that view, I do not have the power to direct it, but it is a view that in the light of what I have read and heard I feel able to express. So, Mr Moulding, you understand?

POST JUDGMENT DISCUSSION

MR MOULDING: The way forward is for a variation.

LADY JUSTICE HALE: That is a possible way forward. I cannot say whether it would succeed, but certainly there is -- given the opportunity that is presented by the further delay in the case -- the opportunity of saying the judge made the order on the basis that that case was going to come on at the end of October. It is clearly not going to come on for another month, and maybe not for considerably longer than that. We must not let the present status quo turn into the long term status quo, for all the reasons that I have said.

I advise you to get a copy of the transcript of this judgment. You can have such a copy, but in the light of your financial circumstances I regret to say -- and I do regret to say this because I actually believe you should have a copy, but I am not allowed to give you one if you can very well afford one yourself. So, I have to say that, but of course you can have a copy. We will try and get it as soon as possible because I think it is quite urgent.

ORDER: Permission to appeal refused.