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
WITH APPEAL TO FOLLOW IF GRANTED

		Royal Courts of Justice Strand London WC2 Monday, 11th February, 2002

1. LORD JUSTICE THORPE: This application for permission with appeal to follow has come on at very short notice. The case was referred to the court last week and, in view of the urgency, this hearing was set up at minimal notice. We are very grateful to both Miss Hudson, for the applicant, and Mr Barrett, for the respondent, who have very conscientiously and skilfully put together a relevant bundle of papers for us. They have produced notes of judgment which, although not identical, are clearly highly accurate and one of the notes has already been approved by the judge. We also had the benefit of their appearance at this hearing so we have consistent advocacy all the way through.
2. The case is obviously a sad one in that it is, in large measure, a dispute between a mother and her own father in relation to the welfare of her two children, Joseph who is 9 and Christian who is 6. They are her children by her relationship with Mr Fisher, who is co-applicant with her father, Mr Potts, in proceedings which had their origin with an application for residence order issued by the father alone on 30th October 2001 but brought to urgent life by his application of 3rd January 2002 and Mr Potts' application of 4th January 2002, applications seeking specific issue orders to bring the children into their joint care pending the determination of the application for residence.
3. The issue raised by those applications came before His Honour Judge Catlin on 29th January when he made an order in these terms, the order provides:

"1. With effect from 10th February 2002 both children ..... reside until the final order with their father ..... and grandfather .....

2. Both children have staying contact with their mother .....

A) alternate weekends ..... "

and bizarrely, but so it appears,

"B) for lunch during the Easter school holiday."

4. The order also provided that the final hearing be fixed on a date in April. The application to this court successfully sought a stay and so the order of 29th January has not been implemented and the children remain with their mother pending the outcome of the application.
5. It is unnecessary to say much as to the background since it is all in heavy dispute, but it seems to be common ground that after his retirement Mr Potts started to help his daughter in a very generous way with child care. Certainly he was taking the children to school and collecting them from school, for this was then a working mother with a responsible job and, with effect from 1999, a new partner, Mr Cook, to whom she became married in the summer of 2001. Certainly the arrival of Mr Cook within the family seems to have produced a lot of stress and tension. It is quite impossible to begin to understand what has been going on. But it is probably more than coincidental that there have seemingly been disagreements between Mr Cook and Mr Potts. The relationship between mother and father - between Mr Potts and his daughter Mrs Cook - has completely broken down. Mr Potts is charging Mr Cook with insensitivity and excess of discipline in his relationship with these two boys. All that is going to have to be investigated. I have no idea as to the rights and wrongs. It just seems very sad.
6. There is no doubt at all that those who are suffering most from thesed struggles and conflicts are the children themsevles. For immediately prior thereto they obviously had enviable relationships, being in the primary care of their mother, seeing a good deal of their father in the context of his remarriage and the birth of a child to that marriage, and seeing a great deal of their grandfather. All that has fallen apart.
7. In addition to those aspects that I have already mentioned, the relationship between the boys' father and his new wife has broken down so that the time they share with him is not now within the context of a family of three but in the context of a father on his own.
8. Reverting to more recent events and resting only on the firm ground of what is more or less agreed, on or about 3rd December there can be little doubt that the mother signified to the father that she was going to leave the two boys in the primary care of himself and her father while she and her husband moved to Cheshire where they were hoping to start a new chapter of their family life. This delegation was implemented by the removal of the Cooks to Crewe on 14th December. There is no doubt at all that the mother notified both her father, Mr Potts, and the children's father that this delegation would resume after the Christmas holidays. The children were to break up on 21st December; she would have them on 22nd but would return them from Crewe to High Wycombe on 27th. Those arrangements were implemented.
9. However there is no doubt that the mother had decided that the move to Crewe would, in fact, be more or less permanent. She made arrangements terminating their places in the High Wycombe schools and opening places for them at the local school in Crewe. When she picked the children up on 22nd, whether out of fright at the possible reaction or for whatever reason, we know not since it is yet to be explored, she did not tell either the father or her own father of this termination of the delegation of care. She told the children first on 26th, the day after Christmas. On 27th December there was a flurry of recorded text messages from the mother to the father announcing her decision and then seeking to justify it.
10. That led to the applications to the court of 3rd and 4th January which I have already mentioned. The children started at their new schools on about 8th January. On the following day there was a directions order made in the County Court which it is not necessary to recite. There was a certain amount of contact between the children and the joint applicants prior to the hearing before Judge Catlin. Half a day had been set aside for the hearing on 29th. Mr Barrett tells us that theirs was the only case in the list. The parties had filed statements. Mr Potts had filed his statement on 16th January and his co-applicant did so on the same day. Those statements were very full and detailed and raised a lot of highly contentious issues.
11. The mother responded on 23rd January. Although her statement was equally full and equally raised a lot of contentious issues, the reader of these statements does not get the impression that the mother's statement is directed specifically, paragraph by paragraph, to responding to the statements of the 16th. So, even on an interim application, where, perhaps, oral evidence is not conventional, if the judge was to make any progress towards discovering what was really going on in this family it was crucial for him to hear oral evidence.
12. I should add that Mr Cook had also filed a statement on 23rd January in which he, too, had taken issue with many of the criticisms raised by Mr Potts. The judge did not hear any oral evidence. Mr Barrett says that Miss Hudson twice invited him to do so, but he declined. Seemingly he preferred to adopt a technique of identifying areas in which the statements of the parties were incomplete or failed to match, and then to invite counsel, on instructions, to amplify his understanding. Mr Barrett said during the course of that process a number of concessions were made by the mother or by the mother's counsel, particularly that she had intended to keep the children when she collected them on 22nd December and that she had failed to be open either with her own father or with his co-applicant Mr Fisher.
13. The result is a judgment which seems to me to go far beyond the bounds of what was permissible, given the procedure that had been adopted. We now have a version of a note of judgment which has been expressly approved by Judge Catlin. It is only partially satisfactory in that the note that he was asked to approve was not a note which had been agreed by Mr Barrett. He would have obviously preferred that the judge had the opportunity to approve or disapprove of his proposed amendments. That said, there is sufficient consensus to enable this court to judge the foundation of outcome from the reasoning of the judge. What the judge had to say in relation to the mother's management of the crucial period in the second half of December is to be found in paragraphs 8, 9 and 10 of his judgment:

"Exactly what the mother considered should happen is to be explored in more detail later. Whatever thoughts she had, whatever she may have planned, was not communicated. May be it was after a period of being on her own in Crewe without the children."

14. Having noticed that the mother's thoughts, feelings and motivations remained to be explored the judge went on to say of her in paragraph 10 that the children -

"have been deprived of the status quo because the mother decided to deceive the father and the grandfather."

15. He also said - and this is his second criticism - in paragraphs 8 and 9:

"8. The children were not told about the change of plan until some time in January at a time when they were expecting to go back to High Wycombe.

9. ..... Failure to tell the children shows a lack of insight by the mother into the emotional needs of the children. The mother seems to have put her own needs above the emotional needs of the children."

16. Leave aside the small criticism that the judge has substituted January for 26th December, still how was the judge in a position to indict the mother of lack of insight and selfishness when he had not had her explanation as to the circumstances in which, and the reasons for which, she decided to inform the children that they were in Crewe to stay, not on 22nd December, the day she picked them up, but on 26th December, after she had settled them into the new home? The judge also seems to make an assumption as to the children's emotional reaction to this pronouncement, for he says they would have been hardly overjoyed when they thought that they were going back to discover that they were not. That seems to me to be an assumption which should not be made until there has been a fuller investigation.
17. On that basis is the judge to be defended, as Mr Barrett seeks to defend him, on the basis that he has identified, on the one hand, the risk that after a full hearing it may be decided the children should live in Crewe and, on the other hand, that the children are currently not where they had expected to be and that there may be risk in that in view of Mr Potts' allegations?
18. One aspect of the mother's case which seems to me to have been very important by 29th January was that there was from each of their new schools a letter, a particularly strong letter from Joseph's school, showing that over the first 21 days of term he had settled in remarkably well. The judge simply says, having referred to the letters, that that settling was to the mother's credit and he also notices she no longer works and is available full time for these boys. Having noticed those two factors, he hardly seems to bring them into the equation. He decides the balance simply by reference to the status quo for in paragraph 16 he says:

"It is a difficult decision to make but the principle of the status quo being maintained dictates that the children should be returned to live with their father and grandfather until there can be a full hearing ..... "

19. That seems to me to beg a pretty fundamental question as to what was really the status quo. This was, after all, a mother who had been the primary carer for the older child for 9 years. She was the only one with parental responsibility. She lent upon either the father or her own father to help out, either when her job was demanding or when her own life was in stress. That surely was the true status quo. To identify a status quo which had its origins on either the 3rd or 14th December seems to me to take an entirely erroneous view of the overall perspective of these children's lives.
20. I have reached the clear conclusion that despite Mr Barrett's very eloguqent defence of the judicial reasoning, it is flawed and the judge should not have made the order which he did on 29th January. I would propose to set it aside and say that the children should remain where they are until the full hearing in April.
21. In the first instance I would expect Miss Hudson to agree with Mr Barrett satisfactory arrangements for contact between now and then, contact both to Mr Fisher and to Mr Potts. In default of agreement, the issue could be mentioned tomorrow morning.
22. LORD JUSTICE TUCKEY: I agree.
Order: Application refused