England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR PERMISSION TO APPEAL
ON APPEAL FROM LEEDS COUNTY COURT
(HIS HOUNOUR JUDGE KAMIL)

		Royal Courts of Justice Strand London WC2 Wednesday, 30th January 2002

1. LADY JUSTICE HALE: This is a father's application for permission to appeal from two orders made in Children Act proceedings in respect of his son, D, who was born on 24th January 1993 and so is just 9 years old. The first order was made in Huddersfield County Court, sitting at Leeds, on 3rd May 2001. His Honour Judge Kamil ordered that D should live with his maternal grandmother. The father's application for contact was refused. His undertakings not knowingly to attend within 100 yards of any school the child attended or address where the child lived were renewed and there were various ancillary orders. The second order was made on 5th October 2001. His Honour Judge Hunt ordered that the father should not make an application for an order under the Children Act 1989 of any specific kind without leave of the court. He also refused applications made by the father for specific issue orders in relation to D.
2. D's parents were not married but the father has parental responsibility. D was born while the father was serving a sentence of 30 months' imprisonment for offences of fraud. D lived with his mother. On release from prison the father battled to achieve contact with D and was given considerable assistance in that battle by the court welfare officer Mrs Walker and His Honour Judge Walker in Huddersfield County Court. He eventually achieved D staying with him in his home in Yorkshire every weekend. The mother's lifestyle was unsettled and this was having a bad effect on D. The grandmother, with whom D now lives, accepts that the mother had fallen into bad associations with a violent partner and with her own sister who had a history of drug abuse. The grandmother attempted to remain in touch and to help out for D's sake.
3. Early in February 1996 the mother alleged that D had made a remark which might have been understood to indicate some form of abuse by the father. He was seen by the child protection officers in Slough, but, as later reported by the court welfare officer, Mr Bull, they came to `no great conclusion'. The father, on the other hand, had made an application for an interim residence order. Mr Bull's report was favourable to him and the proceedings effectively resulted in a reversal of the situation, D living with his father and seeing his mother at weekends.
4. In November 1996 the mother was arrested on drug offences, initially remanded in custody and on bail and, from February 1997, again in custody. She was eventually sentenced to 18 years' imprisonment which was reduced to 14 years on appeal. D continued at this time to visit his grandmother. There was also on the scene his step-grandfather from whom his grandmother was divorced, but they remained on very good terms.
5. In the meantime the police reported increasing concerns from their own observations, from complaints by neighbours and from the child's nursery school of bizarre behaviour by the father, including shouting to them and to others that he was not a paedophile. There was a particular incident in September 1996 at a petrol filling station which His Honour Judge Kamil found been proved on the first-hand evidence of Mrs Wilkinson, the manageress. The father was arrested more than once for breach of the peace and D was present. He was also at the same time under investigation and charged with further offences of dishonesty in February and April 1997.
6. After the father's arrest on 10th April 1997 for a breach of the peace, which was obviously very distressing for D, D was looked after first by foster parents, then by his aunt and then the grandmother, and an interim residence order was made. It is alleged that the father came round to her house on his release, snatched D from her and pushed her downstairs, causing a sprained ankle and fractured arm.
7. His Honour Judge Walker allowed D to return to his father but after the father's further arrest on 12th May 1997 D returned to his grandmother and has lived with her ever since. The original court welfare officer Mrs Walker reported in May 1997. There were concerns about the father's mental state which would be completely understandable given the range of pressures under which he was suffering, and an inability on his part to appreciate D's relationship with his grandparents and the importance of that to D. His Honour Judge Walker shared those concerns. This was reinforced by the father's behaviour at a court hearing in June, described in his judgment of 11th July 1997. That resulted in orders for psychiatric examination of the father and, for the sake of balance but not because there was any indication that it was necessary, of the grandmother. Accordingly, there was a psychiatric report from a consultant forensic psychiatrist, Dr Isherwood, dated 28th July 1997. Dr Isherwood's opinions were based upon the material that had been disclosed to him and his interview with the father. The father's medical records had not been disclosed. There is also a psychiatric report on the grandmother from Dr Tamlyn dated 2nd September 1997.
8. The father was in custody charged with offences of dishonesty from September 1997 until November 1998. In November he was sentenced to 22 months' imprisonment and released. Soon after his release the matter came back before the court.
9. His Honour Judge Walker had also ordered in June 1997 that D be separately represented by his own solicitor. That solicitor was given leave to instruct an expert. So the view taken was that there would be no order until an expert had reported. Eventually Mrs Whittaker was appointed to report on D's behalf. Mrs Whittaker's CV indicates that she is a qualified social worker with experience as a social worker in a social services department, and since 1985 a full time guardian ad litem. That is just the sort of person who is appointed to provide reports to the court on behalf of children in proceedings about their future brought by the state. They are particularly well suited to perform that role. It is of great benefit to the courts if arrangements can be made for them to perform the same role in private law proceedings such as these.
10. Mrs Whittaker's interim report is dated 20th June 1999. She found that D was thriving with his grandmother and step-grandfather. His views were very clear that he did not want to see his father. They were based on his recollections of his father and, in particular, D's recollection that the father had pushed the grandmother downstairs. Mrs Whittaker was conscious that the psychiatric assessment of the father had not been based upon the full disclosure of his medical records. She recommended assessment by a forensic psychologist to whom those records were disclosed. Until then she could not recommend any change.
11. There then was a stand-off. The father would not agree to disclosure unless he had some interim contact. His Honour Judge Walker, who had unrivalled knowledge of the father's case would not allow him to bargain with the court in that way. Lord Justice Thorpe, in the course of hearing an unsuccessful application for permission to appeal in December 1999, did his best to persuade the father to give way, but failed.
12. The father was sentenced to a further term of 12 months' imprisonment for offences of dishonesty in July 1999. In February 2000 a three-year conditional discharge was imposed. There were various hearings during 2000 still under the control of Judge Walker, who had by now retired but was sitting as a deputy circuit judge. These included a challenge to Mrs Whittaker's expertise in June 2000 which was declined by the judge, as were the father's applications to have D examined by a child psychologist. Eventually the matter was listed for March 2001 with a time estimate of five days. Mrs Whittaker provided her report in February 2001. The position was effectively unchanged. D's views were the same and the happy picture presented of D in that report was the same. Mrs Whittaker expressly said that if the father had adopted a different attitude she would have been prepared to work with D on his unwillingness to see his father. The father made various attempts to delay the hearing but it was ordered that it should go ahead on 3rd April with a time estimate of four days. Various applications for a new expert and for the vacation of the trial date were refused.
13. His Honour Judge Kamil began the hearing on 3rd April. He heard evidence from Dr Isherwood who was cross-examined by the father. It was then adjourned, part heard, until 30th April. In the meantime the father obtained - despite the order refusing leave for further expert evidence - a report from Kathleen Cox, a chartered psychologist, giving a critique of Mrs Whittaker's report which we have seen. The father withdrew from the hearing in protest at the judge's attempts to control the proceedings. This was during his cross-examination of Police Sergeant Bilton, who had come to give evidence as to the contacts the police had with the father in 1996 and 1997. We are told, however, that apart from the earlier day there were five hours of hearing during which the father was present.
14. Judgment was given on 3rd May and again the father was present. The issues identified by the judge were three. The first was the father's mental state and his ability to have meaningful contact with D. The judge quoted from Dr Isherwood's conclusion in 1997 which was that there was no evidence of major mental illness, that the father had had -

"over-valued ideas which are normally associated with an abnormal personality. He has significant traits, a pervasive distrust and suspicion of others, and a suspicion without sufficient basis that others are deceiving him. He is preoccupied with unjustified doubts about trustworthiness of others, and prone to reading hidden meanings into benign remarks or events. There is also a tendency to bear grudges. It is not mental illness, but a particular personality style."

The judge recorded that Dr Isherwood's opinion had not altered.

However he had not had sight of the father's medical records. Furthermore if accounts of the father's bizarre behaviour were true, that would indicate the presence of some mental illness. This would not be good for the child. The judge concluded, on the basis of that evidence of Dr Isherwood and on the basis of the evidence of Mrs Wilkinson about the incident in the petrol station, that there was undoubtedly a significant mental health problem.

15. The second issue was D's wishes and feelings and the weight to be afforded to them. He accepted Mrs Whittaker as a witness of truth. D did not want to see his father. He had graphically described some of the father's behaviour. D's reaction was that if he saw his father it would all start again. The judge referred to the fact that delay would be harmful and continued applications would have a detrimental effect on D.
16. The third issue was the opinion of Mrs Whittaker as to what would be in the best interests of D. Her initial concern about the father's mental health had been heightened by her observation of his behaviour at court hearings. Regretfully, she could see no positive role for the father in D's life. Exposure to the father's views could be damaging to him. He had an obsession with getting his own way and saw D as a possession he wanted to control. Hence, although the judge accepted the general assumption in favour of contact between a child and parent with whom he is not living, which it is an extreme thing to deny, and he alluded to the fact that the father had been thought suitable enough to gain an interim residence order in 1996, but he pointed out that he had to deal with the situation as it now was, and D's wishes were clear and had to be taken into account. All the admissible and probative evidence pointed to the dangers of emotional harm to D if the father were permitted to have any form of contact.
17. The judge prophetically referred to a possible order prohibiting further applications. He also referred to the possibility of depriving the father of his parental responsibility. As the father had withdrawn during the hearing, however correct such an order might be, he felt it unfair to make one. If the matter came before another court that court might wish to consider it.
18. It is worth noting that the father had tried unsuccessfully to appeal the order of 3rd April 2001 when the hearing had been adjourned part heard. That application had been refused on paper by Lord Justice Thorpe but was renewed. Lord Justice Thorpe had heard the renewed application on 11th May, after His Honour Judge Kamil had given judgment. He pointed out that it was now pointless and wasting the time of the court. He mentioned that the father had already made three previous unsuccessful applications to the Court of Appeal. He mentioned that the father had on the previous day telephoned the Civil Appeals Office asking for an afternoon time marking and had been abusive to the listing officer and hung up on her.
19. The father - in his grounds of appeal, his skeleton argument and his admirably clear representations to this court - has relied on four points. The first was the conduct of the trial judge. He complains that the trial judge interrupted him many times and, in effect, prevented him from properly cross-examining the witnesses as he wished to do. It was as a result of that that he left the hearing; he calls this a structured withdrawal. There is however nothing before us which would justify leaving the hearing. The applicant father puts himself forward as a responsible, reasonable and intelligent man and in those circumstances it is for him to stay and weather the storm if he is genuinely interested in producing the right result in a hearing which is not about him but about the best interests of his son. The father having left, there is nothing to criticise the way in which the judge went on to deal with the case.
20. Secondly, he complains of abuse of process; this has two limbs. The first deals with Mrs Whittaker's report. He makes various complaints about Mrs Whittaker. As I have already explained, she was amply qualified to do the job and an attempt to dislodge her had already been refused. In those circumstances the judge had had to take account of what she said in D's interests. The father also complains of procedural irregularity in connection with the evidence of Mrs Wilkinson. This is based on illegibility of the note which she relied on to refresh her memory in the course of giving her evidence. There is nothing necessarily irregular in doing that. The judge heard Mrs Wilkinson give evidence. He was impressed by that evidence and he believed it, as he was entitled to do. There is nothing in those or any other matters that comes anywhere close to abuse of process or such procedural irregularity as would entitle us to overturn the judge's judgment.
21. Thirdly, he argues contravention of the European Convention on Human Rights, Articles 6 and 8. For the purpose of Article 6 he relies on the procedural irregularities which, he argues, meant there was no real trial of the case. For the reasons already explained that is not an argument which can succeed. There was nothing irregular about the trial itself. He argues that the outcome, in refusing his application for contact, was in breach of his right to family life under Article 8. The judge recognised, of course, that this is a substantial interference and a serious thing to do. But he was persuaded by all the evidence before him that the interests of D required it. The court is entitled to interfere in the right to respect for family life if it is proportionate to achieving a legitimate aim, in this case the protection of the interests of a child.
22. Fourthly, he argues that the judge did not consider all the relevant evidence and, in particular, how to restart contact. It is of course the case that the court has to consider not only the temporary upset that might be occasioned to a child by a change in a settled routine but also the long term interests of a child in maintaining important relationships. But the evidence was quite clear as to what D's current interests were. There was also the willingness of Mrs Whittaker to work with D with a view to changing matters in the future had the father been the slightest bit prepared to co-operate with that. It is therefore wrong to say that there was no material relating to the restarting of contact.
23. The judge was entitled to reach the conclusion that he did on the question of contact. Having read the two large bundles of material before the judge and having approached it with the same caution as the judge said, quite expressly, that he had approached it, I see nothing to criticise the way in which he resolved this sad and difficult case. D is an intelligent, strong minded, obviously lovely lad who has the misfortune to have two parents who, for various reasons, have let him down but the good fortune to be looked after by a grandmother with the help of her former partner, the step-grandfather, in whose care he is thriving. The judge was entitled to preserve that situation.
24. I would refuse permission to appeal against his decision.
25. Turning to the second application, prophetically only two-and-a-half months later, on 18th July 2001, the father made various further applications: for the case to be transferred to near where the child lived and the specific issue orders relating to D's religion, his private education, his maintenance and indirect contact, in particular, the supply of photographs. His Honour Judge Hunt refused those applications. He also made an order prohibiting further applications without leave of the court under Section 91(14) of the Children Act 1989. He pointed out that if the father had really been concerned about D's religion and education that should have been raised in previous proceedings. The maintenance application was a mischievous one for an order against himself. The time had come to protect D. There was evidence that matters were affecting him and that he would suffer if proceedings were not drawn to a close. The judge also referred to the father's attempts to derail the final hearing in the proceedings.
26. All those comments are amply justified on the evidence I have related. They fulfill the criteria for a Section 91(14) order. The father is, in many respects, using these proceedings both for purposes other than those for which they were designed and in a way that is harmful or potentially harmful to the child.
27. Before us his main concern was the question of indirect contact. He was having indirect contact in the form of exchange of cards, presents and photographs. There is nothing in the order made by His Honour Judge Kamil to prevent the father sending cards and presents to D. Of course, such offerings should be moderate and not too frequent. It is good parenting practice to acknowledge such gifts and for someone looking after a child to encourage the child to acknowledge them himself, either by returning a card or by a letter. But bearing in mind the delicacy of the situation, it is one in which an order requiring that to be done would be quite inappropriate. I point that out for the sake of the future. This is a case in which D should be spared any other applications relating to his future launched by his father unless and until the father can convince a court that there is a very good reason to permit him to proceed with it.
28. I would refuse the second application.
29. LORD JUSTICE CLARKE: I agree. It follows that the applications in both cases are refused.
Order: Applications refused. Permission to appeal was refused