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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> S (Children), Re [2002] EWCA Civ 449 (25 March 2002)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/449.html
Cite as: [2002] EWCA Civ 449
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE READING COUNTY COURT
(His Honour Judge McIntyre)
Strand London WC2 Monday, 25th March 2002 |
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B e f o r e :
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| RE: "S" (Children) |
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Smith Bernal Reporting Limited
190 Fleet Street London EC4A 2AG
Tel: 020 7421 4040 Fax: 020 7831 8838
(Official Shorthand Writers to the Court)
The Respondent Mother did not appear and was not represented.
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Crown Copyright ©
- LORD JUSTICE WARD: This is an application brought by the father of three young children for permission to appeal the orders made by His Honour Judge McIntyre in the Reading County Court on 21st January 2002. By that order the judge varied an order he had made on 24th September 2001 which provided for contact to the three children of this unhappy family.
- The eldest child is B, who is six and a half; E is nearly five, and R is three. The parties separated two years ago, in February 2000, and there has been a great deal of to-ing and fro-ing to the County Court to try to resolve the problems which have inevitably arisen both with regard to finance and property following the breakdown of the marriage and particularly, so far as I am concerned today, with the arrangements for contact. I am told that the hearing in January was the sixteenth hearing in the County Court. As was observed in the course of the exchanges that took place then, there is almost an air of waiting for one or other or both of the parties to run out of steam and to allow lethargy to dictate the course of conduct. That would be an unfortunate way in which to deal with this dispute, which does now need to be fully managed by the court.
- What is happening is that B, for a reason not clear to me, refuses to spend weekends with her father, as the two younger children happily do. The very fact that two young children (and they are young to have staying contact) are able to do so and to do so happily and the elder child - only 18 months older - does not would suggest that something has gone wrong somewhere. If the other two can enjoy good contact, then it is extremely difficult on the face of it to understand why B should not be willing to do so. She would only have been four and a half or thereabouts at the time when the parties separated and one would have thought that her life's experiences could not have been so devastating that she would have good reason not to join her sisters.
- Those, of course, are the first impressions of the case and the facts may reveal something very different. The facts have been fully explored by an expert who was apparently appointed by the court to consider the difficulties that had arisen. The court has had the benefit of his report and would have considered it, I am told, in September. In addition, the court has the benefit of Mrs Budd from CAFCASS, who will report again to assist the court next time the matter comes before it.
- Dr S was concerned enough by what he sees to be a lack of progress that he wished the matter to be transferred to the High Court, believing that the authority of a High Court judge might be more capable of impressing upon Mrs S the need to comply with the orders of the court. Although Dr S himself made no complaint about other non-compliance, and the fact that he made no complaint about it might be significant in itself as indicating that he has not come before me at least to cause difficulty, yet at my prompting he revealed that the financial matters had been resolved by an order of the court that was made as long ago as 23rd June 2000. It will soon be the second anniversary of that order. By that order the matrimonial home was to be sold forthwith. For whatever reason, that has not taken place. If it is an indication of the mother's general attitude, then the court will have to grapple with that frame of mind and deal with it in such a way as may be appropriate to enforce orders of the court. Orders of the court are made in order that they be obeyed, and they are to be obeyed whether they are effective against a mother or a father, a husband or a wife. There is no distinction between the parties and between their sexes in this regard. Dr S wished to impress upon his former wife the need for compliance with the contact orders by pointing out the possibility of penal notices being attached to the orders for contact. That is the first step on a long road to enforcing orders by committal. Orders for committal can be made as a matter of very last resort. They sometimes work and they are sometimes wholly counter-productive. It requires a delicate balance to begin to assess which approach should be taken - whether the carrot or the stick or a mixture of those two. It will be a matter for the judge to decide.
- The judge was told, as the papers themselves will have told him, that there was an application for the transfer of this matter to the High Court. He did not rule upon that. Of course, he ought to have done. The question is whether I should give permission to appeal in order that the Court of Appeal can consider the dry formality of an appeal because the judge failed to deal with the matter before him and failed to give reasons for not acceding to the application. But that would be utterly sterile in the context of this case and disproportionate to any benefit that would come from it. If the judge had applied his mind to the question, he would have been perfectly entitled to have said, at this stage of the matter at least, "I am perfectly able to deal with it in the Reading County Court. There is no need to go to the High Court, where in any event it would probably take months and months to get the case fully effective before a High Court judge and, listing being such, the matter would probably be heard, not by a fully fledged High Court judge, but by a recorder, and absolutely nothing would be gained by that move." So I would refuse permission to appeal against that part of the order.
- The other orders made by the judge were standard orders giving directions for a hearing. That a hearing is necessary is self-evident. The judge has ordered statements to be filed but, more importantly, he has ordered a supplemental report from Mrs Budd. I hope that she will be present at that hearing to assist the judge because her help might be vital. That hearing is fixed for a day. It may be that the court will need every bit of that day to begin to grapple with the difficulties that confront these parties. If it be right that B talks only in a whisper, that would indicate to me that there are more deep-seated problems that she faces than emerge from the few papers before me. It may be that the court will need to consider arranging for some psychological help for this child who, if that is all we know about her, may be suffering from some kind of emotional damage. Why that has occurred I have no idea at all, but it does not portend well for the future. The most obvious way to allow for her development would be for her to participate fully as a member of the family visiting father with her sisters. That is always the ideal. Why it cannot be attained I do not know. That is why the date of 17th April is necessary to investigate that matter.
- Nothing would be gained from the Court of Appeal interfering. Everything is to be gained from Judge McIntyre dealing with this matter sympathetically but firmly, in order that firm conclusions can be reached so that this family can move forward. They may need help, all five of them. But those are matters that Judge McIntyre can grapple with on 17th April. Nothing I have said in this judgment is intended to bind him in the way he deals with matters. The court must leave that to him with confidence and with my hope for these three children that matters can be sorted out.
- The application must therefore be dismissed.