England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
CIVIL DIVISION
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
BOW DISTRICT REGISTRY
(His Honour Judge Bradbury)

		The Royal Courts of Justice The Strand London Thursday 18 April 2002

Thursday 18 April 2002

1. MR JUSTICE SUMNER: This is an application by the grandfather for permission to appeal against an order of His Honour Judge Bradbury given at the Bow County Court on 31 January 2002. By his order, the learned judge dismissed the grandfather's application for contact to his two grandchildren, A, born on 14 November 1994, who is 7, and J, born on 28 August 1998, who is three.
2. The application is especially poignant because the grandfather is estranged from his daughter, the mother of the two children, and has never seen his two granddaughters. Permission to appeal was refused by the learned judge. That does not influence me in any way. My sole concern on hearing this application is in relation to the grandfather's present wish to appeal. I should allow him that permission unless I find that his application has no reasonable prospect of success.
3. The hearing before the learned judge lasted three days. He heard evidence from the mother, her husband, the court welfare officer, Miss Morris, and of course from the grandfather himself. Happily, on that occasion both sides were represented by counsel, though this application is made by the grandfather in person. Not only did Judge Bradbury dismiss the application, but he also directed that the grandfather was not to make any further application in relation to his grandchildren without the permission of the court. There was at that time already an existing order to that effect in relation to A as a result of an earlier order of Singer J.
4. The following points emerge from the grandfather's application and skeleton argument. I list them in no particular order of merit but in the order in which he has raised them. He says he did not receive a fair hearing. When the first court welfare officer reported, that report was dismissed and a less, rather than a more, experienced court welfare officer was then appointed. She wrongfully saw the first report. She inadequately interviewed him and in following her recommendations the learned judge was therefore wrong. The two court welfare officers (as I shall refer to them: they are now known as CAFCASS reporters) treated him, he says, with a total disregard of his human rights.
5. The proceedings were not sufficiently related to his application for permission to bring an application for contact to see his two granddaughters. They were much more concerned with history in relation to his divorce and proceedings he had had in relation to his children rather than focussing on what he was applying for. Numerous false allegations were made against him by counsel for the mother to which he had no proper opportunity to respond. The allegations were made against him in unnecessarily emotive terms (such as whether, for instance, he wished his grandchildren to be forced, kicking and screaming, to have contact with him). They were put, he says, in a way which was blackening his good character and making it very difficult for him, in a way which was unfair, to succeed on his application.
6. It was wrong, too, to say that he had been repeatedly bringing his daughter, the mother, to court over the last 20 years. As he reminded me this morning, the last application he made in respect of her was in 1987, though there was a further application involving her younger sister in 1990. He points out that there was a gap from 1987 until 1995, and then there was another gap until the year 2000; to say that he had been continuously in litigation with her is wrong.
7. He added to those reasons today. He points out to me that these were not social workers who were reporting, they were probation officers. They went about it wrongfully. Too little significance was attached to the very considerable health problems that he has had over the last 20 years and more. They relate not only to problems with his back and his leg, but he has diabetes and numerous other problems and difficulties to contend with as well. He repeats the point that too much time was spent at the hearing looking at past history. He points out that part of his daughter's evidence was that his grandchildren are frightened of him. He asks how could they possibly have got that image of him when he had never seen them and never had that sort of influence? It is all part and parcel of a campaign waged by his daughter, involving his grandchildren, in order to ensure that they will not wish to see him. This was something which was not sufficiently taken on board in the course of the hearing and which plainly influenced the proceedings. He points out this is the last thing that should happen. All children, he points out, should be allowed to have a normal, healthy relationship with grandparents. If they do not everyone will be losers at the end of the day.
8. The other side, he points out, will simply not alter their attitude. He points out also that the learned judge at the end, in pointing out that he was a complaining sort of person, highlighted the fact that he had twice gone to the Ombudsman in relation to his health problems. He says that, whilst that is true in one sense, it is not right to hold it against him because on those occasions he was upheld and therefore it only demonstrates that he was justified. He wants now to engage experts to explain the position to the court.
9. I hope that, in summary, those are the main points the grandfather wishes to raise. I turn to the judgment. I would go through it in much greater detail were I not constrained by time today. It is sufficient, I trust, for the grandfather to know that I have read it in detail and that I have read all the papers in the bundle, and in particular the two welfare officers' reports to which he takes such exception.
10. It is correct that the learned judge did set out the history to explain how it was that the mother now has such difficulties in relation to her father, and he went into the question of the history, separation and subsequent proceedings relating to the three children. He points out that it was not until October 1995 (that is, a year after A was born) that the grandfather made his present and only the first, as I have traced it, of his two applications. It was refused, though it was said at the time -- and mentioned by Judge Bradbury -- that the way in which he put his application on paper was modest. Contact was refused at that time because it was held that it would disrupt the children's life. It was in those circumstances that that the grandfather appealed. The matter came before Singer J in February 1996 and he made his order, including the order under section 91(14).
11. The grandfather renewed his application, it is right again to point out, only after a period of some three years. That application came before Holman J. He thought it right to give him permission to renew his application for permission in the Bow County Court. There was then a contested hearing before a district judge and a welfare officer's report was requested from Mrs Stanley. That arrived in due course in June 2001. Putting it shortly, she did not support the grandfather's application.
12. The hearing came before His Honour Judge Bradbury in August 2001 and, so far as I have been able to trace from the papers, he has dealt with all interlocutory and final applications since that time. Matters are set out in relation to that hearing in August 2001 at page 5 of the judgment of His Honour Judge Bradbury. He only proceeded so far as to hear the evidence of Mrs Stanley and her cross-examination by counsel, Mr Waters, on the grandfather's behalf. He says this in his judgment:

"It quickly became clear to me that Mrs Stanley's enquiries were inadequate and unevenly weighted against [the grandfather]. I gave judgment to that effect. I directed that the hearing be terminated and that a fresh Court Welfare Officer's involvement was needed."

13. He explains how unusual that course was and that it was the first time that he had done it.
14. He regretted that when the second court welfare officer came to report, Mrs Morris, she saw the first report. He takes upon himself the responsibility for not making it clear that that should not happen; a responsibility which, if I may say so, I am not sure was right. What he did rightly do was to regard that as very unfortunate. He points out that the grandfather objected to it. Again -- and it must be a matter of regret -- the learned judge had reservations about the second welfare officer. He explained them to be -- and I summarise the position -- that when she went to see the grandfather for the second time, rather than hearing his response to allegations that had been made against him, she told him right at the beginning what her view was. In effect, what the learned judge was saying was that Miss Morris had not retained an open mind about the recommendation that she was likely to make.
15. For that reason he made clear -- and it is an answer to quite a substantial amount of the difficulties that the grandfather has -- that he therefore placed far less weight on her report than he would have done in other circumstances. It is plain in my judgment, from a reading of his whole reasoning in this, that he was principally relying upon his own observations, his own findings, rather than placing the weight he might otherwise have done on the report of the court welfare officer.
16. He relied on the report to demonstrate two matters. First of all, that the grandfather's view of the past and the mother's view of the past are completely different. I think the grandfather would accept that. Secondly, she recorded at the time the mother's view of her own father. He was a controlling and intimidating man, of whom she, her sisters and her mother remained frightened. And, perhaps thirdly, she indicated in clear terms that the whole question of contact between him and her children gave her strong feelings of fear and anger. She made absolutely plain then, as became apparent throughout the entire hearing, that she did not want the grandfather to have any contact with her children.
17. THE APPLICANT: Excuse me, is it possible just make one point? I did emphasise that - I emphasised that what I was aiming should be supervised access, with an adequate qualified person present.
18. MR JUSTICE SUMNER: The grandfather raises now what appears later in the judgment, and to which I have to come, namely that what he was seeking was supervised contact, and he was hoping to be able to achieve that through the well-known Coram Foundation. The learned judge did not criticise the grandfather for that. He did criticise him for failing to anticipate whether that could be done through the Corum Foundation and also for not looking to see how he would in fact occupy his grandchildren through that period of time.
19. THE APPLICANT: I did make suggestions through my barrister.
20. MR JUSTICE SUMNER: What is critical in this judgment is a passage at page 8 where the learned judge, noting that he had read statements from the witnesses, said this:

"I have gained a great deal more from listening to and watching the parties in Court. I felt able to draw a conclusion about feelings and attitude towards each other."

21. He pointed out that when the mother gave evidence the grandfather was unable to stop muttering throughout the whole of her evidence. He held that the mother's anxieties were real and that the children would be genuinely damaged, not only because of what he might do –- which would be running down her and her grandmother before them – but, equally, by the enormous distress that he found it would genuinely cause the mother. Because of that he said:

"It is inevitable that the children will be aware of her anxiety and be affected. They would be affected adversely."

22. He pointed out that it was a question of emotional feelings. He was satisfied that the grandfather was not capable of meeting the children's needs:

"I am not satisfied that he would keep them happy and entertained. Rather I am satisfied he would seek to undermine the status of parents and other members of the family."

23. There is a whole series of findings of fact which the learned judge made. I have read through them. I have looked at them in the light of the various matters which the grandfather has both raised today and raised in the various notices that I have read. I am left at the end of the day with a very clear view. I see no realistic prospect of any chance that on a hearing of an appeal -- which is not a retrial -- the grandfather would be able to upset any of those material findings which made it, sadly, inevitable that his application for permission would not succeed and that he would not be able to have contact with his grandchildren.
24. This is, in my judgment, a fair and balanced judgment from an experienced family judge who made up his own mind on the evidence that he heard and read. He made findings of fact which, in my judgment, are unassailable in this court and make any realistic prospect of success, I am afraid to say, entirely hopeless. It is right that in relation to the grandfather's application under section 91(14) the judge did not understand that the complaint to the NHS Ombudsman was justified. But the whole tenor of the history, the manner of the hearing and everything else, makes that finding, in my view, not only justified but wholly impossible for the grandfather to set aside on appeal.
25. There is a great deal in that judgment which the grandfather, if I may say so, could most helpfully use. He should understand that both this court, and I believe Judge Bradbury, really wish that he could have contact with his grandchildren. But if he does not understand the essential reasoning in that detailed and clear judgment, then I fear that the prospects for that are remote.
26. Accordingly, for the reasons that I have only shortly set out, I am wholly satisfied that there is no prospect of a successful appeal on those findings of fact on the approach of the judge, who rightly applied the section 1 checklist and went all the way through it. In my judgment it was a fair and full judgment from which there is no reasonable prospect of a successful appeal. The application is refused.
27. MR JUSTICE SUMNER: For those reasons, I have to, I am afraid, refuse your application. There is a great deal which somebody could read in this judgment, I believe, and assist you with understanding so that your application, which no doubt you will make again, really does then stand a chance of success. But I am afraid to say it is going to need a shift of attitude by you. And it will have to be one where you say, "Whatever may have happened in the past, and however great or small the wrongs that have been done to me, I must now look to the future. I must not involve anybody else in my views of the past, least of all my daughter and my grandchildren." If you demonstrate that your prospect of success is going to be much higher.
28. THE APPLICANT: Can I come back?
29. MR JUSTICE SUMNER: I am afraid not before me today.
30. THE APPLICANT: No; could I just respond? My crux of my argument, as I said before, if Judge Bradbury was so concerned, why was there a reluctance to involve an expert? And if all the experts I have seen have come to a contrary decision ... And also the medical evidence that I introduced in February 1987 was dismissed by Miss Cudby, my daughter's barrister. She dismissed it, just completely dismissed it.
31. MR JUSTICE SUMNER: I am just going say a final thing. I am afraid to say, it is not a question of medical evidence.
32. THE APPLICANT: No, it is not, no. Children's expert. Children's expert.
33. MR JUSTICE SUMNER: It is not a question of children's expert, it is not a question of medical evidence. It is a question of attitude. Whatever the mother's attitude, there is yours as well. If you can demonstrate that you understand that, then you----
34. THE APPLICANT: Why do you think I want to see an expert? And if an expert -- all the experts I have seen have ruled in my favour. I mean, I will see 20 experts and I have no doubt they will all rule in my favour. No doubt whatsoever.
35. MR JUSTICE SUMNER: I hope I have both understood and tried to help.
36. THE APPLICANT: Could I thank you for your time and make an application for a transcript of proceedings, please.

(The judge conferred with the associate and the shorthandwriter and granted a transcript of the judgment at public expense.)

ORDER: Application refused. Copy of the judgment to be supplied to the applicant at public expense. (Order not part of approved judgment)