England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE BARNET COUNTY COURT
(His Honour Judge Latham and
His Honour Judge Laurie)

		Royal Courts of Justice Strand London WC2 Tuesday, 12th February 2002

1. LORD JUSTICE THORPE: There has been excessive litigation, mainly in the Barnet County Court, between SA and IZ, who are the parents of two children: a little boy, who is just four, and a little girl, who is almost three. The parents had an extremely brief relationship, during the course of which they married. It seems that the father is of Egyptian origin and the mother's connection is not only with this jurisdiction but with Switzerland, because she has a Swiss passport. The litigation in the County Court has mainly surrounded contact arrangements to the two children and conditions and safeguards to ensure that they are not abducted from this jurisdiction. Obviously the principal anxiety rests in the mother, who fears that the father will remove the children to Egypt, where his elderly father is resident. There may be some comparable anxiety in the father, who has brought proceedings to restrain the mother's use of her Swiss passport.
2. The judge in the County Court who has had the principal burden of dealing with this family is Judge Latham. He conducted a major review of contact on 8th October 2001. The order which he made on that date was a milestone order since it extended the father's contact, which had for some time been restricted to relatively brief exits with the children from a contact centre in Colchester, to a pattern that would give the father, in every month, one period of visiting contact from the same Colchester contact centre but, in addition, one weekend of staying contact (Saturday morning to Sunday afternoon). In addition, the judge made a number of other directions and orders filling three pages of a County Court order form. He imposed a penal notice to ensure the mother's compliance; and he imposed restrictions to ensure that the father's passport was placed under restraints, so that his opportunity to disappear with the children was, as far as possible, eliminated.
3. The mother sought permission to appeal, which was granted by Lord Justice Ward at the beginning of November. There was thereafter no doubt that this court would have to carry out a review of Judge Latham's judgment given on 8th October. But in addition to that, the parties have sought permission to appeal aspects that were not the subject of permission within that order. The mother has sought permission to appeal Judge Latham's refusal to transfer the proceedings immediately to Colchester. She has also sought to appeal the judge's refusal to recuse at a later sitting in November. The father has sought permission to appeal a prior order made by His Honour Judge Laurie, sitting as a judge of the High Court, on 17th August 2001. He has sought to appeal an earlier decision of Judge Latham on 10th September 2001, when he refused to order separate representation of these two young children. Finally, he has sought permission to appeal those paragraphs of the order of 8th October that impose restraints on his possession and use of his Egyptian passport.
4. In order to clear the way, I would say first of all that the mother's two applications for permission to appeal have been rendered otiose by an application that the father issued (on a date which I have not recorded) in which he sought, in the Family Division, orders in relation to the mother's Swiss passport. That application was fortuitously, but happily, listed in front of the President on 22nd January, when, by consent, she made a number of orders to secure the children, to ensure that they should have United Kingdom passports only and that they should not have either Swiss or Egyptian passports. In addition, the President ordered that all applications, including the outstanding application for ancillary relief in the Barnet County Court, be brought in to be heard by her; that all files in the Barnet County Court be brought in to be dealt with by her; and that the existing fixture in the Barnet County Court for review on 1st February be vacated. So obviously that very significant development in the court's management and control of this family's squabbling has rendered it quite unnecessary to look at either the application for permission to appeal the refusal of transfer to Colchester or the refusal of the application to Judge Latham to recuse.
5. So moving on to the applications for permission that remain live, the father's application is for permission to appeal the orders of Judge Laurie of 17th August 2001 and the orders of Judge Latham of 8th October 2001 relating to his passport. Both those applications are, in my judgment, plainly hopeless. These were matters for the discretion of the trial judges and it was manifestly important to impose whatever restraints on the father's use of his passport that could be devised, partly to protect these children against the risk of unilateral abduction, but also to try to reassure the mother's fears, however unreasonable they may be. His application for permission to appeal the refusal of separate representation for the children equally, in my opinion, must fail, since that was entirely a matter for the discretion of the trial judge. Furthermore, since the reorganisation of services for the representation of children in private law disputes, there are very stringent restrictions on cases in which this unusual service can be afforded and this case does not come within a mile of the definitions that are to be found in the relevant Practice Direction.
6. For the avoidance of any doubt, therefore, I would dismiss all applications outstanding for permission, whether initiated by either the mother or the father.
7. That leaves to decide only the two issues which have been the subject of permission. First of all, there is the mother's appeal against the imposition of a penal notice. In resisting that appeal Mr A quite rightly points to the judge's findings, which are clear from page 16 of his judgment, where, having preferred the father's evidence to the mother's, he made the finding that she had deliberately blocked the father's contact on 25th August. On the following page he recorded his overall conclusion that the mother remained obstructive of contact in the way that he had found and he accepted the father's complaints about the mother's repeatedly seeking opportunities to evade delivering contact as ordered. He said in his judgment that there was a sufficiently clear and present risk that the mother would not deliver contact as ordered. He said that it was therefore with considerable reluctance that he felt bound to impose a penal notice.
8. Mr Cross's contrary submissions reveal that the application for a penal notice was issued by the father whilst in person. When appearing by counsel on 8th October, the application for the penal notice was not effectively pursued. Miss Spiro, for the father, conceded that it was not an appropriate case, on the facts and the history. Accordingly, Mr Cross, although recognising that the application still had to be decided, was lulled into an assumption that it would be dismissed and he did not draw to the court's attention the two authorities which in his skeleton argument he relies upon, namely, In Re N (Access: Penal Notice) [1992] 1 FLR 134 and Re F (Contact: enforcement: representation of child) [1998] 1 FLR 691.
9. There is no doubt at all that the judge's findings against the mother in this sphere appear harsh, viewed against the overall perspective that, over the course of possibly 18 months in which the court has struggled to impose controls and to achieve contact between the children and the father, she has almost always been compliant in meeting the court's requirements. The breach on 25th August was a breach that was clearly foreshadowed, not only by a warning of an intention to breach, but also by efforts to achieve agreement as to some alternative date. The mother's reasons for seeking to vary the order were not insubstantial. Any condemnation of her conduct on that day needs to be measured in that light.
10. I reach the conclusion that, although seemingly this was a conclusion resting on findings of fact, it was a conclusion flawed procedurally. It was a conclusion that Mr Cross had not, understandably, resisted as he would have resisted had Miss Spiro not made the statements which she did. On overall balance, it does seem to have been a premature imposition. Of course, in a sense it matters not: if a parent is sincere and intends to obey the court's orders, it hardly matters to him or her whether or not the order is reinforced by a penal notice. But I have reached the conclusion that Mr Cross is entitled to succeed on this point, although plainly this area of obedience will be surveyed by the President hereafter and, if she sees the least sign of intransigence on the part of the mother, I have no doubt that she will bear in mind the history in determining whether or not it is then appropriate to move to the imposition of a penal notice.
11. The attack on the judge's extension of contact on 8th October is eloquently answered by Mr A, who points to all the efforts that he has been making ever since March 2000 to move contact on. He points out that, by the time he came before the judge on 8th October, he had been having the same pattern: one hour and 50 minutes of freedom with his children, for a period of 15 months. The judge was plainly likely to hold that the time was right for the extension, providing that the expert analysis of the reporter was favourable. Here, Mrs Jennings was quite clear in noting the good relationship between father and children, dismissing the mother's somewhat fanciful anxieties about the father's accommodation and, importantly, recording the mother's own acknowledgment that the time was right to move on. Of course, the court welfare officer did not embark on an assessment of the risk of abduction. Of course, that was a matter for the judge. Mr Cross says that it was such a huge risk, given the judge's inability to trust the father, that any commendation from the court welfare officer evaporates on a judicial assessment of risk.
12. I myself cannot see that the risk factor was of an order or degree to, as it were, checkmate the court welfare officer's assessment that the time was right for progress. Obviously, the father had had his opportunity to act irresponsibly and dishonestly every time he took the children away from the contact centre. Obviously, extending his opportunity to a 24 or 36-hour window once a month was an extension, but not anything more than an extension of degree. I am satisfied that Mr A effectively answers the two essential points taken by Mr Cross: namely, the risk of abduction and the effect on the mother (and, through the mother, on the children) of her appreciation of the risk. The judge had had the management of this case throughout. He was the best person to balance the need for progress against the risks involved. He reached a discretionary conclusion on that. He was largely supported in that by the court welfare officer. In my opinion it would be unprincipled for this court to interfere with that provision in the order.
13. However, that said, there has been in the interim the imposition of a stay by Lord Justice Ward, and there is evidence before the court as to the occasions on which the father has seen the children since 8th October. Whether it is because of his need to go abroad (either to Egypt or to Spain, where his brother lives) or for whatever reason, contact between the father and these two children since 8th October has been limited to a visit on 13th October, supplemented by contact to the older child whilst in hospital and by a visit on 8th December and a visit on 5th January. So there has been a loss of momentum over the course of the last three months. The recovering of momentum is something that needs to be handled sensitively and it requires a fuller and wider examination of the circumstances, both as they have been during the course of this interim and as they will be in the immediate future, than we are able to mount. Accordingly, I would propose that the staying contact remains suspended simply until this matter can be re-listed before the President, when she will be conducting the review that would have been conducted in the Barnet County Court on 1st February.
14. It is very important that the matter be restored to the President as quickly as possible. Unfortunately, neither party has sought to get a date in her diary. She is currently sitting in the Court of Appeal and will be sitting in this Court for two weeks beyond this present week. But the parties must combine in applying at once to the Clerk of the Rules for a date, and certainly they may represent to the Clerk of the Rules that this should be a priority listing.
15. In sum, I would allow the appeal to the extent of setting aside the penal notice, but dismiss the appeal against the extension of the contact order.
16. LORD JUSTICE TUCKEY: I agree that the five applications for permission to appeal listed before us today should be dismissed; that the mother's appeal against the penal notice should be allowed; and that her appeal against the order for staying contact should be dismissed, but that the order should be stayed, for the reasons given by Lord Justice Thorpe.
17. SIR ANTHONY EVANS: I also agree.
Order: all five applications for permission to appeal dismissed; mother's appeal against penal notice allowed; mother's appeal against order for staying contact dismissed, but that order to remain stayed; no order for costs save assessment of mother's public funded costs.