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 THE GREAT GRIMSBY COUNTY COURT
(SITTING IN HULL)
(His Honour Judge Hull)

		Royal Courts of Justice Strand London, WC2 Tuesday, 5th November 2002

Tuesday, 5th November 2002

1. LADY JUSTICE HALE: This is a father's application for permission to appeal against orders made by His Honour Judge Hull in the Great Grimsby County Court, sitting in Hull, on 3rd July 2002 in relation to his daughter J who was born on 25th August 1995. Those orders were that J should live with her mother, that there be no order about her contact with her father and adjourning the mother's application from an order under section 91(14) of the Children Act 1989. On the previous day he had made a family assistance order, that the local authority make available an officer to advise, assist and befriend the father. This was with a view to facilitating indirect contact between J and her father.
2. The parents are in their forties. They have both been previously married with children, including D, the mother's daughter, who is now aged 17. They met in 1990 and married in September 1991. There were obviously some problems with the mother's other two children living in the household, and there was a referral to social services in 1999 alleging that the father had behaved inappropriately towards D by looking at her through the bathroom window, pinching her bottom and kissing her on the lips. This was not taken further because it was thought that the mother could protect D. At that time the father mentioned to the police that, when looking through the bathroom window, he had seen D urging J to squirt shampoo between her, D's, legs. That was not taken any further at the time, and indeed has not been since, and that is one of the father's complaints about this whole matter.
3. The mother left the matrimonial home at Christmas 1999, but returned. She left again at Christmas 2000. Thereafter she tried to have the father ousted from the home. The final separation took place in early March 2001. It was extremely acrimonious. There were comings and goings between the former matrimonial home and the premises next door into which the father had moved. The mother was alleging that the father had threatened to kill her; and the father was alleging that the wife had attacked him with a knife. Eventually it was the mother who moved out of the matrimonial home and the father moved back in. There were arguments concerned with retrieving property from the home and, certainly on one occasion at least, the mother broke in in order to collect belongings. The mother obtained a non-molestation injunction on 14th March with a power of arrest attached. There was an incident where the father was arrested at a contact centre in April for alleged breaches of that injunction. There were reports that the school was concerned that the father was making allegations in front of J and other parents. He revived the allegations about D sexually abusing J, and he tried to serve a summons on D at school. So, all in all, it was an extremely troubled and acrimonious period with a lot of accusations flying to and fro on each side, some of them from acquaintances and other family members. All of those contacts with the police and social services are, in fact, listed in the welfare report which was eventually made for the purpose of these proceedings.
4. Matters came to a head in May 2001, when the mother was told by acquaintances that the father was intending to acquire a firearm to attack her and/or D. This was reported to the police. The police searched the father's premises and found copper tubing. Their interpretation was that it had been cut into a form to resemble a gun barrel, and they viewed that as serious enough to assist the mother in relocating out of the area. It was at that point that direct contact, which had previously been happening quite frequently between the father and his daughter, ended. It was agreed that there should be indirect contact by correspondence between father and daughter. I have seen some of that correspondence.
5. Proceedings were begun in relation to J and there was a hearing in December 2001. The father had had legal representation for the Children Act proceedings but had dispensed with the services of his lawyers shortly before that hearing. It began with him acting in person, but it was adjourned after the social worker had given evidence because the father decided that he did want to be represented after all. He obtained legal representation but again parted company with those lawyers. The matter was listed for May 2002, but it was adjourned because the listing clashed with the father's application for permission to appeal against the injunctions the previous year, which application, I understand, was not successful. So the matter was relisted before His Honour Judge Hull, and it was heard from June 24th to June 22th. He reserved judgment until 2nd July, when he handed down a written judgment.
6. The father's case is that he is a loving and committed father and has a close relationship with his daughter because of the care he gave her shortly after she was born. I would say that it would not be in the slightest bit unusual if that were the case: many fathers can produce photographs of themselves feeding their children and cuddling them, and the like. He also alleges that he was unfairly treated by social services: in effect that they accepted the mother's side of the story and did not properly investigate his. He says that it is the mother who is the violent person and not him, and, of course, he is still concerned about D's behaviour towards J.
7. The mother's case, on the other hand, was that she denied the father's allegations about her violent behaviour and alleged that he had behaved violently towards her. Her case as to the allegation about D and J in the bathroom was that this was a tit-for-tat allegation because of what D had said about the father and, similarly, the father's allegations against the mother were tit-for-tat allegations because of what she had said about him.
8. There was a court welfare report from a social worker, Anne-Marie Carlsberg, dated 18th June 2001. This is a long and detailed report. It makes it quite plain that J spoke fondly of both of her parents and of D and that, like so many children of her age, she would like them all to be together still, but that if they could not all be together her view was that she should be with her father because her mother would have D, so that would be fair. That again is a typical little girl's view in that situation. The social worker, of course, had to comment upon that. Her comment was that if J had been living with dad she probably would have said she wanted live with mum, and one can see why.
9. The social worker recommended that, because of some of the behaviour that had been reported and observed on the part of the father and some of the attitudes he had shown, it would be appropriate to have a psychological assessment. The result was that, instructed by the father's solicitors, the father was examined by Dr Trent of the Midlands Psychological Services, and there is a long report from Dr Trent dated 28th September 2001 in the bundle. I have to quote the summary of that report. It included the following two paragraphs:

"There are some indications that Mr S tends to harbour grudges and tends to `bank' hostility. While there is no indication that he has any overt intention to do harm to his daughter, clearly the level of hostility combined with his history of explosive actions would put his daughter at risk should that occur in her presence. Additionally, Mr S appears to be strongly focused on his current difficulties with his former wife. As such, it is likely that he will have difficulty placing himself in her position and recognising risks presented to her. He will therefore have some difficulty in empathising with her and/or placing her needs above those of his own should the two come into conflict.

It cannot be recommended that Mr S have sole complete unsupervised care of daughter at this time. While there is indication that he cannot spend limited periods of time alone with his daughter, it is unlikely that his ability to respond to her appropriately will be influenced strongly by his interactions with her mother. It is therefore recommended that any contact with his daughter be initiated and terminated at a neutral venue with no contact between him and his former partner. Should his contact with his daughter become inappropriate, or if there are any indications of Mr S using his daughter either to gain access or as a lever against his former wife, any contact between him and his daughter should be re-evaluated with a view to termination."

10. The father is concerned that Dr Trent's examination was not what he expected it to be and that Dr Trent was biased and misinformed about some matters. But, if one looks at his report carefully, and particularly at the two paragraphs which I have just quoted, they are not strongly against Mr S. They understand the limits of what Dr Trent was able to say. But that is what his view was.
11. There was then an addendum to the court welfare officer's report dated 1st November, in the light of Dr Trent's report and also in the light of the correspondence which the father had sent to his daughter in the intervening period. Some of that correspondence was thought to be inappropriate for two reasons mentioned by the social worker:

"Given the content and presentation of the letters, I would argue that they have been used as a lever against Mrs S which suggests that even indirect contact is not appropriate at the present time.

J appears to already feel some responsibility for her father. If she were to receive and understand the letters sent, she would feel the need to parent and care for her father."

That is the real source of the problem. The difficulty always in these cases is that parents find it very hard indeed to control their emotions in respect of their children, to look at it from the child's point of view and not to put too great a pressure on the child. It is very hard. But, of course, from the child's point of view that sort of pressure is only going to make a very difficult situation even worse, and that was the reason behind the social worker's report.

12. Later on, another social worker updated matters, reporting that J had a close relationship with her mother and was happy in her new home, but that she would still like to see her father and was concerned about him. That was the evidence that was before His Honour Judge Hull.
13. His Honour Judge Hull, of course, heard both the mother and father give evidence, and he heard the evidence from Dr Trent and from Ms Carlsberg. He found that the father's prime object in initiating the proceedings was a desire to get back at the mother, that he was obsessed with the rights and wrongs of the dispute with her and was even unbalanced to a degree. The judge acknowledged the father had strong feelings towards his daughter but thought him oblivious her best interests. An example of that was that he proposed taking her into care rather than leaving her with her mother. He considered the correspondence almost entirely inappropriate, and he took into account the views of Miss Carlsberg and Dr Trent, whom he found to be impressive witnesses. He rejected the father's allegations of violence against the mother. He found that the mother had shown a great deal of restraint and she impressed him as a good and sensible woman who had tried to cultivate contact. He therefore considered the check-list of factors in section 1(3) of the Children Act 1989 and found that the mother was exceedingly capable of meeting J's needs, whereas the father, in his view, was not.
14. The problem for this court in considering whether an appeal could have a real prospect of success is that the appeal court does not rehear the case. The appeal court does not hear witnesses. It does not go into all of it all over again. It considers whether, on the basis of the findings of fact made by the trial judge and the law as he found it, there is some reason to consider that he was plainly wrong in the difficult decisions he had to make.
15. In his grounds of appeal and also in his submissions to me, which have been entirely appropriately put forward with not a hint of the sort of excitability that other people have seen, the father has concentrated very much on his desire to reinvestigate the matters which took place in March of last year, in particular around the separation and the injunction and the like; and he complains that, no doubt because he was not legally represented, his attempts to have various matters put before the court were unsuccessful. The difficulty with that is that those matters are of very limited relevance to what His Honour Judge Hull had to decide in June of this year, and, as they have already been the subject of legal proceedings, it is very unlikely that they would have any effect upon what conclusion he reached.
16. He also complains about the way in which he was intimidated by the police during the proceedings. That, of course, is not a matter which affects His Honour Judge Hull's decision. It is a matter he has already taken up elsewhere and that is the appropriate way to deal with it.
17. He points out that the firearms incident, which led to the breaking off of contact, was all based on anonymous reports to the police and there was no objective evidence to support it. I see no real evidence that His Honour Judge Hull took that very much into account in any event. What he did take into account was the father's anxiety to relitigate those matters because it indicated that in His Honour Judge Hull's view he was more concerned with them than about his daughter and her needs; and that is a judgment with which this court could not really interfere.
18. He is concerned about Dr Trent's report. I believe he now realises that he should have taken the questions a bit more seriously than he did, even if he could not see the point of them, but I have no reason at all to believe that Dr Trent is anything other than a conscientious professional conducting an assessment in difficult circumstances.
19. He makes various complaints that the social services have not properly investigated his concerns about D and her behaviour, or properly investigated his concerns generally, and he wants a more full investigation with a view to protecting his daughter from what he perceives to be the risk of harm. Again, that is not something which is going to overturn the current decision that His Honour Judge Hull made on the evidence that he heard. If it is a matter to be taken on board at all, it should be taken on board in the way he himself considers it should. But it is of some concern that he appears to want D prosecuted for what he says that she has done, because that, perhaps, indicates that he has let this matter rather take over his concerns, when the real concern should be that of a loving father who wants to do his best to be back in touch with the daughter that he cares so much about.
20. I was glad to learn that the Family Assistance Order has resulted in the local authority trying to facilitate indirect communication with his daughter. He is concerned that they have not been able to get a response from the mother. If the position is that the mother is refusing to accept such communications even if they have been drafted with the assistance of social services and, therefore, not thought by social workers to be inappropriate, that is a matter which legitimately the father could take back to court: because His Honour Judge Hull clearly made that order with a view to helping the father to try and communicate with his daughter in a constructive fashion. So, if that is not happening, that is something that could be brought back to court with a view to an indirect contact order being made. That is not a matter for this court. There is no point in this court dealing with that.
21. It was a sensible order that His Honour Judge Hull made, and, for the reasons I have tried to explain at some considerable length, it does mean that an appeal would have no prospect of success. But I very much hope that the father's attempts to get back in touch with his daughter in a proper fashion will have a prospect of success in the future.
Order: Application refused. A copy of the transcript of this judgment is to be made available to the Applicant at public expense.