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 CANTERBURY COUNTY COURT
(HIS HONOUR JUDGE POULTON)

		Royal Courts of Justice Strand London WC2A 2LL Friday 1 February 2002

1. MR JUSTICE WILSON :Mr S, the father, applies for permission to appeal against orders made by His Honour Judge Poulton in the Canterbury County Court on 5 October 2001. The judge was making orders under the Children Act 1989 in divorce proceedings between the father and the mother in respect of their two children: J, a boy born on 29 March 1995 who was therefore then 6½ years old; and E, a girl born on 16 December 1998 who was therefore two and three quarter years old. Both parents appeared in person before the judge. Mr S has appeared in person before this court today. He has addressed me very clearly and politely for 25 minutes.
2. The father lives alone in Faversham. The mother lives in the village of Challock, which lies 8 or 9 miles to the south of Faversham. At the time of the hearing, as now, both children were living with the mother under residence orders. Also living in that home is the mother's cohabitant, Mr P, and their small child, now about 8 months old.
3. The orders made by the judge on 5 October fell into three main categories:

1. The residence order. The judge reaffirmed an earlier order that the children should reside with the mother.

2. A contact order. The judge made an order for substantial staying contact with the father. In respect of term time, he provided for contact on alternate weekends. In this regard he made specific provision to reflect the fact that, while the contact in respect of both children should take place on the same alternate weekends, J is at school whereas E is not. Thus, in respect of J, the contact was to begin after school on Friday and end at the beginning of school on Monday, whereas in respect of E the contact was to begin on Saturday morning and end on Monday evening. In respect of school holidays, including half term holidays, the judge provided that the children should spend half of them with the father.

3. A prohibited steps order. The judge prohibited the mother from changing the school of the children or taking any significant step with regard to their education or health without, save in an emergency, consulting the father in advance.

4. This is a case where the father attaches great importance to the words used in the court orders, in particular to whether the children should be described, as they were under the order, as living with the mother under a residence order, or, as he contends is appropriate, as living partly with the mother under a residence order shared between the parents. Analogously, he attaches great importance as to whether the children should be described as "having contact" with him for the period specified by the judge or, as he contends is appropriate, should be described as "living" with him during those periods under a shared residence order. I must choose my words carefully in order not to be misunderstood as prejudging this application.
5. The father has little quarrel with the actual amount of time which the judge's order afforded to him. The substantial application which the judge was determining was the father's application for a shared residence order. Nevertheless at the hearing there were submissions about the actual amount of time which the children should spend with him. That was particularly because the previous order which addressed that question had been made at a time when E was only one year old and, predictably, the father's time with her then had had to be relatively circumscribed.
6. The main burden of the father's argument was that there be a shared residence order in favour of himself and the mother and that, pursuant to section 11(4) of the 1989 Act, the order should specify the periods during which the children should "live" in the two households. The father's case was that the sole residence order in favour of the mother had been abused by her so as to exercise a malign and inapt control of the children, to the exclusion of himself and to the prejudice of the children, and that the situation could be rectified only by the making of a shared residence order.
7. The judge refused that application. At the end of the judgment, of which we now have a transcript, the father sought permission to appeal to this court. The judge also refused that application. In respect of that the father said:

"I only wish to appeal the joint residence aspect of it. I am perfectly satisfied with your contact arrangements but I know that this matter will not improve until such time as the power is taken away here."

8. In his Appellant's Notice it is the order for sole residence to the mother that the father identifies as the target of his proposed appeal. In support of his proposed appeal he articulates no less than 25 grounds. I should record that ground 11 states:

"More contact is required, particularly midweek."

9. Before the judge the father had argued that the children should stay with him for one night each week during term time as well as on alternate weekends. The judge found, on balance, that that would be disruptive, particularly in terms of J's school routine. Such was the predictable child-centred conclusion. This court would not entertain an appeal against a discretionary decision of that sort. I need say no more about it and I proceed to analyse the merits of the proposed appeal against the sole residence order.
10. Anyone listening to, or reading a transcript of, my judgment in this matter so far might assume that this was a case of parents who, in the wake of marital breakdown, had developed a degree of conflict over the optimum arrangements for the children but were otherwise behaving, for the sake of the children if for no other reason, in a reasonably civil manner towards each other. Nothing, I am sorry to say, could be further from the truth.
11. For the purpose of his judgment on the application for a shared residence order, the judge rightly surveyed some of the history. He did so, in my judgment, with an even-handedness, a benignity and a tolerance of inapt behaviour of which, as a trial judge myself, I am frankly envious.
12. I must concentrate on the material found by the judge. But the father has chosen to place a mass of material into the bundle which, of course, I have read. I have concluded that it is of no direct relevance to the application, but of some indirect relevance. It shows a man who, in the aftermath of family breakdown, has become consumed with grievance, distrust, anger and an appetite for forensic revenge. Within minutes of the judge urging the parties to "bury the hatchet" the father was informing him that he intended to launch a private prosecution for perjury against the mother. The father tells me that that prosecution is close to launch.
13. In this material the father accuses a host of officers of public authorities and holders of public office (such as the Kent Constabulary, East Kent Social Services, Children and Family Reporters and judges, including Ward LJ, Johnson J and circuit and district judges) of corruption or bias against him as a father or interference with his right to respect for his family life or other breaches of their duties under section 6 of the Human Rights Act 1998. Even if there was some kernel of justification for any of these complaints, and it would not be judicial for me simply to say without any investigation that every single one of them must be absurd, the father's struggle has clearly become an unhealthy obsession.
14. The breakdown of the marriage, which had been celebrated in 1993, took place in May 1999, when the mother left the home in Faversham taking the children with her. The previous order for residence and contact was made in December 1999. The father had then opposed the making of the residence order in favour of the mother. In September 2000 Ward LJ refused him permission to appeal against it. The father makes strong complaint that the mother has not been frank with him or with the court either about the timing or the development of her affair with Mr P, whom she had known prior to marriage, or about where she and the children have at times been living since the separation. The father also complains, and this complaint was upheld by the judge at the recent hearing as a serious example of the mother pushing him aside, that in April 2000 she changed J's primary school without notice to him.
15. At about the same time, when approached by the Child Support Agency, the father did not accept paternity of the children. The judge described that as very foolish and commented that the father now accepted that it had been a serious mistake. But the judge added that people feel very strongly at such times. Such is a good example of the judge's benignity.
16. The judge's overall survey of events since December 1999 was to the effect that the contact order then made had not worked satisfactorily and that the father had had to fight to secure his contact. The mother, so the judge found, felt genuinely frightened of the father and that he was seeking to bully and control her, whereas the father felt that the mother had marginalised him in the lives of the children. The judge concluded that in both their stances the parents were suffering a degree of misconception born of mutual distrust. He was rightly critical of the mother for writing into the children's passports that, in the event of an emergency, contact should be made with Mr P and making no mention of the father. The judge was less critical of the father for having unilaterally kept the children for an extra night beyond the contact directed by the court. He observed that that had not been "an enormously big deal". I respect the judge's observation but trust that the father will not misconstrue his indulgence towards him as encouragement ever to do the same again without the mother's consent. Again, with conspicuous moderation, the judge also criticised the father for having written in J's homework book some "pretty obstreperous" comments about what Mr P had written in the same book.
17. How did the judge approach the father's application for an order for shared residence? Sensibly, the father pressed upon the court the decision in D v D (Shared Residence Order) [2001] 1 FLR 495, which, as the judge accepted, marks a shift towards of making a shared residence order in a wider set of circumstances than had hitherto been considered apt. The judge's reasoning was as follows:

1. It is wrong to consider that a sole residence order entitles its holder unilaterally to determine major issues relating to the child, whether about health, education, contact or otherwise.

2. The parents have equal parental responsibility and subject to a court order, such issues fall for their joint determination.

3. The optimum division of the children's time between the homes of the parents was in accordance with what, ultimately, he was to set out in the contact order.

4. The father's joint right to determine major issues relating to the children would be better reinforced by a prohibited steps order against unilateral decisions on the part of the mother than by a shared residence order.

5. A shared residence order would belie the reality that the children should "live" with the mother but see the father frequently and would thus give a false impression of the true circumstances.

18. What would be the father's arguments if permitted to appeal against the refusal of the shared residence order? He will not mind my saying that, not being a lawyer, he has, not surprisingly, included in his 25 grounds of appeal a collection of complaints which in law bear no relation to the alleged merits of a shared residence order. All this court can do in such circumstances is to help such a litigant by identifying what it perceives to be his main points.
19. I first address his reliance on the case of D v D. In that case the children were girls of 13, 11 and 9 years old. A pattern had arisen over the previous four years whereunder the father had had the girls to stay with him for more than half the term time weekends, as well as for one half of the holidays. It had been calculated that 38 per cent of their overall time was spent in his home. Notwithstanding considerable animosity between those parents, a shared residence order was made and the mother's appeal against it was dismissed. It was held that exceptional circumstances were no longer necessary to justify a shared residence order; that the proper analysis of the situation on the ground was that the children were, in effect, living with both parents; and that a shared residence order only reflected that reality. Butler-Sloss LJ, as she then was, said that a shared residence order, was not, even nowadays, the standard order made following breakdown of marriage. She quoted statutory guidance which had been issued at the time of the introduction of the 1989 Act to the effect that most children needed the stability of a single home. She said, and Hale LJ had put this somewhat higher, that an applicant for a shared residence order had to demonstrate that it was in the interest of the children that such order be made.
20. The problem for the father in the present case is that, having considered the case of D v D, the judge found that, under the optimum arrangements for dividing the children's time between the mother and father (which the father does not significantly challenge), it could not be said that the children would be "living" with both parents. I find that conclusion unassailable.
21. The father makes points under the Human Rights Act 1998. He complains that the order of this judge, like the orders of a number of previous judges (and he told me that he had been to court in relation to these and financial issues no less than 35 times in the course of the last three years), broke the right of himself and of the children to respect for their family life; being a right given to him and them under Article 8 of the Convention. He goes on to complain that in the enjoyment of his rights in this respect, the order, like previous orders, discriminates against him because of his sex (ie because he is a father rather than a mother). In that regard he cites Article 14 of the Convention.
22. For this purpose I need not address his general complaint that anti-father bias is endemic in recommendations made by children and family reporters and in the decisions of judges who work in the family justice system. I need say only that the law which gives him equal parental responsibility, coupled with the judge's prohibited steps order in this case which buttresses the father's parental responsibility and the judge's order which gives him extensive contact with the children, in my view affords full respect for the family life of the father and the children. There is nothing in Article 8 which requires a judge to skew the order settling the arrangements as to the parent with whom the child is to live away from reality, whether in favour of a father or of a mother.
23. The father complains that the judge breached his right to a fair hearing under Article 6 of the Convention. No transcript of the hearing, as opposed to the judgment and the subsequent exchanges, has been bespoken. But the father complains, for example, that he was placed under unacceptable strain by the temporary presence in court of the mother's sister. It seems to me, judging from the father's composure, lucidity and palpable intelligence in court today, that that point is something of a makeweight. The father also complained that the mother was allowed to file and serve a statement in support of her case on the day of the hearing. When I asked the father about that, he was far from clear that that statement had been filed or considered by the judge. In those circumstances I need not consider that complaint further. He also complains that he was not allowed to put his case properly before the judge. Again, the absence of a transcript of the hearing precludes my looking at that argument closely. All I can say is that it seems to be inconsistent with the judge's very full judgment, touching with conspicuous generosity on, as I consider, all the relevant points.
24. The father complains that the judge conducted an irrelevant trawl through the earlier history, particularly, for example, through his refusal 18 months earlier to admit the paternity of the children for the purposes of financial responsibility. My experience is that it is essential for judges, in our family work, to seek to obtain from the history an insight not only into the relief which a litigant seeks and into why he says he is seeking it, but into what may, in reality, be prompting him to do so.
25. The father also complains that a Child and Family Reporter, who had been the appointed officer under a family assistance order earlier in the year but who had not written a report or been asked to write a report referable to the residence issue, was wrongly allowed to give oral evidence at the hearing in the course of which he articulated a philosophical objection to the making of shared residence orders. Certainly the reporter's observations are not cited significantly by the judge, who seems to have reached his own conclusions as to whether such an order was appropriate.
26. Let the father not forget that the judge's decision to refuse this order was a decision made in the exercise of his discretion and that on any appeal to this court the father would have to show either a fault in the decision-making process of the judge or that it had been plainly wrong. In my opinion the whole judgment, including the conclusion upon residence, was one of conspicuous wisdom. The father was asking for a label to be applied to the arrangements which belied their reality. The father turns that round and says, cleverly, that, if it is only a label, why does there need to be such strenuous argument about it? But that argument cuts both ways. In any event the issue must be looked at from the point of view of the children. J and E are not, and for many years will not be, sufficiently sophisticated to be able to say to themselves, "it is only a label". For them, as they grew to understand that the court had required them to 'live' in two different homes, I apprehend, as did the judge, that such order would be a likely source of perplexity and confusion, with a resultant risk of emotional damage.
27. The father's proposed appeal stands no realistic prospect of success and his application for permission is refused.
Order: Permission to appeal refused. Transcript of judgment to be provided to both parties at public expense.