England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
PRINCIPAL REGISTRY OF THE FAMILY DIVISION
(His Honour Judge Hamilton)

		Royal Courts of Justice Strand London WC1N 1NZ Thursday, 17th January 2002

1. LORD JUSTICE WARD: This is a mother's application for permission to appeal His Honour Judge Hamilton's order of 12th September 2001, when he granted permission to the father to remove their son, T, permanently from the jurisdiction to live in Spain. The judge made an order for contact which gave the mother four weeks in the summer holidays, a week at Christmas and Easter and alternate half-term holidays. He also made a prohibited steps order, quite draconian in effect, which prevented the mother telephoning or contacting T; telephoning the home in Spain or the father's partner, save in a genuine emergency; telephoning or visiting the school unless she had the father's written permission to do so; visiting or attempting to visit the address at which the boy is living; and even, finally, going within two miles of Sotogrande, where the home in Spain is situated.
2. The mother seeks permission to appeal. I do not know that she actively pursues the application in respect of the permission granted to take the child out of the jurisdiction. She does complain that the father told lies to the court in the earlier proceedings when he said that he had no intention of going to live in Spain. But if he did so, those aspects affect the previous orders, not this order, and the Court of Appeal has already dismissed her applications in that regard. The judge, I am satisfied, looked at the application for permission perfectly properly and applied the right test. I cannot see any prospect at all of the court interfering with that order.
3. As for contact, again I do not believe the mother seriously applies to upset the contact order, though she complains that it is not working as fully and as efficiently as it should. There are two aspects to this. The first is that she is having great difficulty making arrangements with the father. That is highly regrettable. I have suggested that there be an attempt to make the plans a lot earlier than they have previously been made. She should write to him courteously, making her proposals and inviting an early response. She should keep copies of that correspondence. If the father does not respond with equal courtesy, then it is a matter that the court may well take against him when it has to look at this in more detail.
4. The second aspect which is not working well is that the father apparently told the judge (as he reports on p.10 of his judgment) that there could be more contact if the boy wanted it. The mother complains that T's wishes are being denied, but there is no evidence of that. Again it is a matter which needs to be monitored. Significantly, the judge ended his judgment by saying (at p.17):

"The mother should realise that the way in which she could hope to encourage the father to depart from [the order] is to demonstrate over say at least the next six months that she does not intend to do anything except but to abide by the orders of the court."

5. She is doing so at the moment. But by the same token, the father might need to make sure that he monitors his behaviour and honours his promises, to T in particular.
6. Another complaint relates to the denial of telephone contact between mother and son. The difficulty here is that the mother has been found by the court to have been defiant of the court's orders on many occasions. That is why these draconian steps have been taken against her. Judge Hamilton cites from the judgment of His Honour Judge Callman. A sentence gives the flavour:

"I have no doubt at all that when [the mother] says it is out of love she may be right; but it has become not just love but, as the father says, he is virtually living under siege."

7. Her Honour Judge Anwyl was reduced to having to make a restraint order under section 91(14) of the Children Act 1989 precisely because the mother had flouted the orders. In her judgment she said:

"She loves [T] very much, but her harassment of him - and that is what it is - can only be destructive."

8. I see no prospect of appealing the permission order and no prospect of appealing the contact order in the light of the unhappy events that have occurred.
9. I confess to being troubled by aspects of the prohibited steps order. The mother is not to telephone or contact T. I understand why that order was imposed, in the light of the few citations I have read from the judgment, and I think it is unappealable. But it may be deeply worrying that T has not telephoned his mother, when it is said by the father to the court that he is free to be able to do so. It is worrying that V, his sister, who lives with mother, cannot speak to her brother. It is worrying, if it be true, that the telephone in Spain is locked away from the boy. If any of those facts are established, it puts the case in a different light.
10. My concern is that this is a deeply unhappy boy, who was also made unhappy at his boarding school in Oxford. The court may need to look at the position again in the light of the letter which he has written and which has been handed to me by the mother. In it he complains that life in Spain is not happy for him; that he sees little of his father; that he continues to get on badly with his father's partner; and he concludes by saying:

"I want to come back with my Mum in September 2002, to start a new term at a new school."

11. I am afraid it seems to me that this case will continue to rumble on.
12. The mother is restrained from telephoning or visiting the child's school. She can write, and she has written for reports. There is no reason whatever why she should not be furnished with reports. If the father does not provide them, it is a hallmark, in my judgment, of his failure as a father to honour and respect the parental responsibility of the mother, and that is unacceptable.
13. The question for me is whether there is any real prospect of any of those matters being rectified on an appeal. I come to the unhappy and worrying conclusion that I cannot see that they will succeed on an appeal. But the writing is on the wall. It is as obvious as night follows day that this case will have to come back for a fresh look. The boy continues to be very unhappy indeed and it is inevitable that the court will be concerned about the case again. But an appeal is not the right way to deal with it. The mother would be better advised to continue to do what the judge required: that is, to stay calmly in the background. But if T has not already voted with his feet, then I anticipate that an application will have to be determined before the end of July to consider whether this arrangement is a good one for him. He will be 16 in January next year and will then in any event be able to decide for himself what he wants to do. But the sooner his parents begin to face the fact that T is deeply unhappy the better. The sooner the father begins to take a slightly more charitable view of his son's unhappiness the better.
14. I am going to dismiss the mother's application, but direct that a copy of this judgment be transcribed at public expense and sent not only to the mother but also to the father, through his solicitors, so that he may carefully consider taking the following steps to ease his son's unhappiness:

(1)Actually give the boy freedom to telephone his mother and his sister when he wants to. He will be judged by the court if he fails to do so.

(2)Honour his promise that, if T wishes to come here more frequently than the contact ordered, he will undertake that journey (see p.10 of Judge Hamilton's judgment).

(3)He will enable the mother to have reports from the school and will allow the school to communicate with the mother. I hope that the school, if shown a copy of this judgment, will accept that as a matter of English law the mother is as fully entitled to information about the boy's progress and to copies of school reports as is the father, and nothing in the orders prevents that being done.

15. The father, therefore, is on some notice that things are not going well. He would be wise to be a little more flexible in his dealings with a very unhappy 15-year-old boy.
16. Unfortunately, the Court of Appeal is not the vehicle to make the adjustments and the application has to be dismissed.
Order: application for permission to appeal dismissed; copy transcript of this judgment to be supplied to both parties at public expense.