England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
CIVIL DIVISION
ON APPEAL FROM SOUTHEND COUNTY COURT
(His Honour Judge Yelton)

		The Royal Courts of Justice The Strand London Monday 15 April 2002

Monday 15 April 2002

1. LORD JUSTICE THORPE: On 13 November Judge Yelton, sitting in the Southend County Court decided the father's application for contact and parental responsibility negatively on both counts.
2. The only child of the parties, L, was born on 19 May 1999, and we can see from the photographs in the bundle what a pretty and engaging little girl she is. Tragically for her, she succumbed to a rare and devastating attack in December 2000 which has involved prolonged treatment at Great Ormond Street, and has left her with what seems to be permanent renal damage. Through all this, her mother has cared for her magnificently and done everything that a single parent could possibly have done to advance her child's survival and recovery.
3. The parents were never married. Their relationship commenced in June 1997, the year in which they became engaged. They cohabited from April 1998 but separated before L was born, and have never had any relationship since. The mother's case is that this is a violent man at whose hands she has suffered greatly. In consequence she says that she is and will always be frightened of him.
4. Contact was established in the year 2000, and seemingly it was good quality contact. In so far as photographs can establish anything, the photographs between pages D1 and D15 in the bundle seem to verify that. However, very sadly, the animosity between the parents destroyed the continuation of the development of a relationship between child and father. For there was an incident at the end of October in which the father was abusive to the mother and in consequence she declined to take L to further contact.
5. As an aside, I would only observe that since this is one of those common cases in which the relationship between the parents is inclined to ignite into explosion to the detriment of the child, it would have been far better if the contact arrangements had ensured that the parents never came face to face, but it is too late now to remedy a breach which has become profound. And, of course, immediately after that breakdown L suffered this devastating illness which has thereafter been the dominant feature of the case and has certainly dominated judicial decisions as to whether or not contact should be resumed. Judge Yelton decided against any resumption of contact. He explained himself at the foot of page 7 of his judgment, saying that the imposition of a burden, given L's fragile condition, would not be in her interests. That is, of course, a burden on the mother because of her past experiences.
6. That discretionary decision is simply not open to any criticism. It is a case, however, in which I would have expected the judge to have gone on to consider the lesser option of indirect contact: cards at regular but not too frequent intervals, presents at Christmas and birthday. That is not considered in the judgment. Miss Twydell, who represents the father this morning, says that it was his wish that that should be considered by the court but that she, on his behalf, reacted to judicial indication that she was not going to succeed on that lesser front either. There is nothing, therefore, that we need consider, since she did not press the point to ruling. Since there is no ruling on the point, it is not an area that she can open in this appeal.
7. There was, however, some consideration of indirect contact in the reverse direction, namely reports from mother to father. Four a year were offered, and the judge expressed a preference for a recital rather than an undertaking. I am not quite clear why he regarded an undertaking as inappropriate, but that point can be passed, since it is agreed between counsel that we should amend the order to insert a recital in these terms:

"And upon the respondent agreeing to furnish reports and photographs as to [the child]'s progress quarterly in the months of March, June, September and December."

8. That clears the way for the real subject of this appeal, namely, was the judge justified in refusing the father's application for parental responsibility?
9. The judge dealt with the second application extremely briefly. He directed himself by citing a passage from a case decided in 1995 to the effect that the court should have regard to commitment towards the child, attachment between the parent and the child and the reasons for those requirements. He then went on to the considerations that he found relevant in this short paragraph:

"... these parties never actually lived together with the child as a family. That is not itself a bar. There has been a very long gap in this case in which there has not been contact. The overwhelming fact of the child's illness has meant that the Mother has had to devote herself exclusively to the child. The Father is committed in the sense that he wants to see the child, but it seems to me there is really nothing else but a biological connection between him and the child at the moment, and I do not think it is appropriate that there be an order... "

10. I find it hard to understand from that paragraph precisely what it was that the judge was putting into the scale, both for and against the granting of the application.
11. Miss Twydell, for the father, this morning has argued cogently that there was good quality contact between father and child, as was conceded. The only problem lay in the relationship between the parents. She continues by saying, well, what more commitment could this father have shown once the contact regime was terminated by the mother? He applied to the court and pursued his applications through the court assiduously, discovering as he proceeded through the court process the crisis that his daughter had undergone in December 2000 and the story of her subsequent treatment and partial recovery. She adds that he is prepared to submit to specific issue orders granting the mother sole responsibility on the medical front and also injuncting him from locating or attempting to locate the address at which the child resides. She points to the very clear movement of authority over the course of recent years towards granting these applications, unless plainly contrary to welfare. She says that this is not a case in which it could be said that the application is contrary to welfare, and she points to the report that was before the judge from the psychiatric social worker, in which there is this paragraph:

"A condition like the one that [L] has can lead to feelings of 'being different' and a negative self-image can develop unless self esteem is encouraged by close family members. Mother appears to be very aware of all aspects of care regarding her daughter as observed by me and comments from PCN team."

12. Miss Twydell says that her client could make his contribution to the development of L's self-esteem. He is her father. He always wants that responsibility to be known and recognised.
13. Miss Spratt-Dawson, in seeking to uphold the judge's order, points to her client's fragility and the importance for L of not risking any further upset that might lead her client into flight. She particularly stresses the risk of inadvertent disclosure, should the father receive reports from third parties that included, either specifically or non-specifically, pointers as to L's home.
14. I have reached the conclusion that on the authorities as they now stand, the judge did not have sufficient heed to the distinction between the application for parental responsibility and the application for contact. He does not sufficiently refer to, and certainly does not sufficiently reflect, the direction contained in the decision of this court in Re: C and V [1998] 1 FLR 392. The factors there emphasised do not emerge in his explanation for refusing the application in the paragraph that I have cited. This deficiency opens the way to a fresh consideration in this court and a fresh exercise of the discretion.
15. It is undoubtedly the case that the development of case law in this area over the course of the last few years has been, and continues to be, towards the grant of what is essentially an acknowledgment of status. This is in line with government policy, where amendments are proposed, to widen the automatic grant of parental responsibility without the exercise of judicial discretion. This father may have much to regret in his relationship with L's mother. He may have a good deal for which to blame himself. But none of that bears upon his relationship with his daughter, which he seeks to establish as a matter of law and in the exercise of which he is prepared to submit to clear restrictions.
16. It seems to me that this appeal is entitled to succeed on this short point, providing that the order of grant is hedged by, first of all, a specific issue order in the mother's favour, permitting her sole responsibility for all decisions relating to any medical treatment required for L. The grant should also be limited by a prohibited steps order, preventing the father from locating or attempting to locate the address at which L resides whilst in her mother's care. Further, father must understand that, should he seek to exercise his grant in any way that is unreasonable, intemperate or threatening to the mother, further orders will undoubtedly be made in the court of trial for her further protection. The notion that he should involve himself profoundly with the consultants and other professionals treating L is completely inconsistent with his acknowledgment that in that area the mother has sole responsibility. There is simply no basis upon which he could justify an involvement with medical services equal to, or anywhere near approaching, the involvement of the mother. He is to receive from the mother quarterly reports of progress and that should suffice. It may be that occasional major medical reports might be copied to him, but I would not suggest the imposition of any such burden on the specialist team. This is essentially an acknowledgment and declaration of his parental status. It is hopefully something that will take effect to the benefit of L in years to come so that she knows she has two parents, both of whom, in very differing ways, have a manifest responsibility for her continuing well-being.
17. So, to that very limited extent, I would allow the appeal, amending the order of 13 November, granting the application for parental responsibility and enlarging the order to include the recital and orders as I have drafted them.
18. MR JUSTICE MOSES: I agree.
ORDER: Application for permission to appeal allowed. Appeal allowed on the basis set out in the judgment. Community funding assessment of the parties' costs. (Order not part of approved judgment)