England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LEICESTER COUNTY COURT
(HIS HONOUR JUDGE MAYER QC)

		Royal Courts of Justice Strand London WC2 Thursday, 7th February 2002

1. LORD JUSTICE THORPE: The parties to this appeal are the parents of a boy named A, who is nine and a half years of age.
2. The parents finally separated sometime in the year 2000 and contact between the father and A, post separation, was achieved consensually until a breakdown in March 2001. That led to proceedings which came before HHJ Mayor QC, sitting in the Leicester County Court on 27th of September 2001.
3. He, in the exercise of his broad discretion, made an order for A to stay with his father once a month. In so ordering he struck middle ground between the father's proposal of every other weekend and the mother's proposal of six times a year.
4. He also made an order which, in my experience, is unusual. It appears thus:

"There will be additional contact for 2 hours every Christmas Day, with the same collection and delivery arrangements, unless agreed otherwise by the parties. There will be no additional staying contact in the school holidays, save by agreement of the Mother and Father of this child."

5. The prospect of agreement between the parties was far from good given the animosity that was evidenced, not only by their written submissions to the court, but also by the oral evidence that the judge heard.
6. The mother made many complaints about the father, which the judge dealt with no doubt sensibly, saying, and I quote from the first page of his judgment:

"I do not find it necessary or helpful to deliver a detailed judgment on each and every particular conduct which has been raised. Rather, it seems to me, that Mother and Father (Respondent and Applicant) do have rather different lifestyles and rather different attitudes to life and that perhaps they will influence their son in different ways. I do not wish or intend to undermine the Mother's care for her son or her manner of bringing up her son and nor, since there are those differences in attitudes between his 2 parents, do I want to overexpose Aston to those differing influences."

7. The father was dissatisfied with the outcome and sought permission to appeal, which I provisionally refused on paper on 20th of November.
8. Mrs Allingham-Nicholson renewed the application at an oral hearing on 21st of December, when, in addition to all the points which had not impressed me in her grounds, she raised the serious assertion that the mother had deceived the judge at the trial by concealing from him the fact that she had recently left Leicester, moving with A to Tipton.
9. That change, of course, necessitated a change in A's schooling. Mrs Allingham-Nicholson obviously emphasised the mother's breach of her duty of full and frank disclosure to the Court. Indeed she asserted that this was a plain deception. She also emphasised that it was an obvious breach of the mother's obligations to a father holding parental responsibility.
10. The application was stood over to be reconsidered at this hearing, with appeal to follow if permission granted.
11. In the interim Mrs Allingham-Nicholson has taken advantage of the opportunity to amend her notice and to adduce fresh evidence as to the mother's deception.
12. Very fortunately the mother consulted solicitors on 11th of January. She had appeared in person before the judge. She received an offer of public funding on 1st of February. Miss Ferguson was instructed on her behalf on the 4th.
13. Mrs Allingham-Nicholson has submitted that the mother's lack of candour invalidates the judge's decision as to the frequency of A's weekends with his father. She points to the judge's finding at the outset of his judgment. He had said, again at page 1:

"I am concerned about the amount of time that he has to spend away from the home, his own home, and the company of his principal carer, his Mother. I think for him to spend every other weekend away from his home and from her would be too much."

14. That, she submits, is derived from a passage in the mother's evidence, when she said that she lived at Hamilton in the Leicester area. When asked about the weekends:

"Question: How does A spend his weekends? What sort of things does he do?"

15. There followed this exchange:

"Answer: We usually go shopping, then after that he will probably be playing with some friends.

"Question: With you, is it shopping?

"Answer: Yes, with myself. He will go and visit some of his friends in the area. Just general things like I visit my family quite a lot, my sisters, they've all got kids so he plays with them. And he's just a very, very happy child.

"Question: Where are her kids? Are they in Leicester?

"Answer: They live -- yes, they live in Leicester.

"Question: So they are~--

"Answer: They are in the area, yes."

16. She also relies upon the clear indications, given by the mother in her evidence, that A was at Kestrel Fields School, Leicester, under the supervision of the headmaster, Mr Axton.
17. That is to be found, not only in her written statement at pages 81 and 82, but also in her oral evidence.
18. Miss Ferguson responds by saying there is nothing in all this because what the judge held, at page 1 of his judgment, is of equal application wherever the mother lives.
19. She responds to the evidence as to A's relationships with his cousins by saying, despite the move to Tipton, the mother is, effectively, continuing to weekend in Leicester by staying, with A, with her sister.
20. In explanation for this seemingly deliberate deception of the Court Miss Ferguson says the mother did it out of apprehension; that if the father knew of her move and whereabouts he would make a nuisance of himself. It does seem to me, although we have heard no oral evidence, that this was not only a serious breach of the mother's obligations to the Court and to the father, but also rather a stupid one, since it was inevitable that the cat would come out of the bag pretty quickly.
21. Miss Ferguson's primary submission is that the order should stand. If she does not succeed in that she says that there should be a re-trial rather than a determination by this Court.
22. Mrs Allingham-Nicholson in her reply, although anxious for a swift amelioration, accepts that the circumstances probably point towards a re-trial.
23. The other major issue in the case is, of course, the validity of the provision that, effectively, gives the mother power over the extension of the regular weekend pattern into the school holidays.
24. I am in no doubt that the order of 27th September cannot stand. It is manifestly more than possible that HHJ Mayor QC might have made a different order had he known the true facts. Beyond that, it seems to me that the order as to holiday contact was not sensible, given the animosity between the parties. To that extent I do not think that it was covered even by the width of his discretion.
25. For those reasons, separate and distinct, I would set aside the order of the 27th of September. Although initially tempted to write something in its stead, both for the advantage of achieving certainty well in advance of the Easter holiday, but also in the hope of saving a further hearing and further expense in the County Court, in the end I have reached the clear conclusion that we simply do not have sufficient material to embark on the task with any safety.
26. Accordingly I would direct a re-trial. I would direct that it be expedited and that it be fixed for hearing in the County Court on or before Friday, 15th March.
27. That will enable the judge to settle the extent of the Easter holiday visit. It is just worth recording what is the position of the parties today as to that: whilst the father seeks respectively one week Easter, one week Christmas, two weeks summer, the mother's counter-proposal is 3 days Easter, 3 to 4 days Christmas, 7 days summer. She would be prepared to agree that Christmas Day should alternate between the parents.
28. I would also direct that within 14 days the mother file a full statement explaining to the Court the circumstances in which she came to give false evidence and a false impression and equally explaining fully the general location of the new home, what it amounts to, full details of the school, details of how A has settled in and details of her ordinary routine; ie how she spends her time at the weekends, whether or not she goes invariably to Leicester.
29. It may not be necessary for the father to file a further statement, but if so advised, his statement had better be filed 7 days thereafter. That is the disposal that I would propose today.

SIR ANTHONY EVANS:I agree.

LORD JUSTICE THORPE: Any improvements, any additions to the suggested directions?

MISS ALLINGHAM-NICHOLSON: My Lord, simply in relation to contact between now and the hearing of this matter on or before 15th of March.

I know that your Lordship has indicated that the order of 27th of September ought to be set aside. However, could the provision for monthly contact continue until 15th of March?

LORD JUSTICE THORPE: When is the next visit due?

MISS ALLINGHAM-NICHOLSON: Certainly the last visit was at the end of January. I will just check that it is the end of February.

The father thinks it is 22nd of February, but he is not quite sure of the date.

LORD JUSTICE THORPE: We will confirm that the February weekend will take place in the interim.

MISS ALLINGHAM-NICHOLSON: I am very grateful, my Lord.

LORD JUSTICE THORPE: Public funding on both sides; certificate.

MISS ALLINGHAM-NICHOLSON: I am very much obliged.

LORD JUSTICE THORPE: Anything else?

MISS FERGUSON: No, thank you.

LORD JUSTICE THORPE: Thank you both very much.

ORDER: Order of 27th September 2001 set aside. Re-trial ordered.