England and Wales Court of Appeal (Civil Division) Decisions

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

		Royal Courts of Justice Strand London WC2 Wednesday, 15th May 2002

Wednesday, 15th May 2002

1. LORD JUSTICE THORPE: I take the background to this appeal from the judgment of His Honour Judge Brandt, sitting in the Colchester County Court on 28th February 2002. He said that the parties met in October or November 1996. The mother had three children: R (born on 8th July 1989), N (born on 6th July 1990) and A (born on 6th July 1993). She had her problems. She was separated from her husband who neither supported nor had any contact with his children. She clearly had difficulty with the children. Social Service records show that in January 1993 the health visitor was concerned that her two children were locked in their bedroom and she was having difficulty in obtaining entry. Her GP has indicated to the welfare officer that the mother had a history of domestic problems.
2. The parties commenced a relationship soon after meeting, but it did not amount to very much. However, E was conceived in January 1997 and born on 19th October 1997. The parties are more or less agreed that the father moved into the mother's home in Colchester after E was born, probably in November or December. They parted in August 1998 according to the father. He soon moved back to his previous abode. This was in September 1998. There was contact between the father and E between the parting in August 1998 and the end of 1999. Just how frequent the contact was is a matter of dispute. Contact continued until it ceased altogether in about August 2000.
3. On 11th October 2000 the father issued his application for contact followed by a residence application on 1st April 2001.
4. Allegations were raised in March 2001 that the father had interfered with the mother's daughter, R. Those allegations were the subject of investigation by the local authority and the police, but no proceedings were taken in the criminal jurisdiction.
5. An order for contact was made in the Colchester County Court in January 2001. Further orders were made in February, April and July, the hearing on 16th July having been originally designed as a final hearing. In preparation for that the court and family reporter filed her written report of 11th July 2001. She was asked to prepare an addendum by a direction incorporated in the order of 16th July and repeated in a subsequent order of 17th September. That direction was not complied with, and Mr Levy has told us that it was probably as a result of the individual reporter, Mrs Ould, falling ill. There was some contact in the autumn 2001 at a contact centre, but plainly it was far from satisfactory.
6. There was, accordingly, an application for the mother's committal for breach of earlier orders. That application came for final hearing in December 2001. In preparation for that final hearing, leave was given by order of 19th November for the preparation of an assessment and report on Mr W, the father. That report was thought to be necessary to aid the judge in resolving the outstanding allegations brought by the mother that the father had interfered with R. The expert was instructed only by the mother's solicitors, which can be explained by the fact that the mother has throughout been eligible for public funding and has been represented by solicitors and counsel, whereas Mr W's financial circumstances render him both ineligible for public funding and unable to fund privately comparable representation. But it is conceded by Mr Levy that the solicitors then acting for the mother considerably exceeded the ambit of the court's leave in the instructions which they gave to the psychologist. We have not seen the letter of instruction, but his subsequent report records - and I assume accurately records - the nature of his instructions from paragraphs 4.9 to 4.13. As well as providing a psychological assessment of Mr W regarding specific questions of risk, residence and contact with respect to his daughter E, the expert continued to list four other areas of instruction which broadly replicated the work that had been done by Mrs Ould.
7. The final hearing was of three separate applications. The first was the committal application in respect of the mother's breach of previous orders, the second was the father's application for a residence order and the third was his application for a contact order. Those applications were all listed before his Honour Judge Brandt, and they occupied five days of the court's time. We are told that they were not full days, because some, or all, were punctuated by other listed business. But for the judge it was an unsatisfactory hearing since, as he said, the days were not continuous but were fragmented and spread over several months. So it was that his reserved judgment was not delivered until 28th February.
8. The judgment is full and careful, and fully explains why he reached the conclusion that there should be no order on the father's application to commit, that the father's application for residence be adjourned generally (not to be restored without the permission of the court) and that the mother do afford contact to the father on specific instances at a local contact centre in the afternoon on three Saturdays in March and April, and thereafter on alternate Saturdays, commencing 4th May, for a longer day. The order concluded with the provision:

"(c)such further or other contact as may be agreed between the parties."

9. Having invested heavily in the investigation of this complex family problem, no doubt the judge hoped that he had set the case on the way to an evolution that would promote the welfare of E. He had made during the course of his findings some clear criticisms of the mother and of the witnesses called on her behalf. He had, by contrast, expressed himself as impressed by the evidence of the father. In those circumstances he had dismissed the mother's allegations and anxieties concerning R as having no factual foundation.
10. If the judge had the expectation that his judgment of 28th February would obviate the need for further litigation, he was quickly disappointed since by 16th April he was contemplating an application by the father for the enforcement of the contact provisions contained within the primary order, since the mother had quite simply stated that she was not prepared to comply.
11. The order made on 16th April had two principal provisions. The first was to dismiss the father's application for enforcement by way of committal. That was inevitable since the father's enforcement application was not in correct form. Further, the father himself was the first to say that he did not seek the mother's imprisonment: all he wanted was contact with his daughter.
12. The second order that emerged on 16th April was an order granting leave for the restoration of the father's residence application. The judge gave firm directions for its determination. He said that the father's evidence in support, which of course was essentially updating evidence, had to be in place by 26th April. He said that the mother's response had to be there by 1st May and that the case would be listed for final determination on 3rd May. The importance of the father's updated evidence was that he had entered into a comparatively recent relationship with a lady named Mrs C, who was divorced and the mother of two teenage sons for whose primary care she was responsible. The plan between the two of them was that Mr W would move into her home on the outskirts of Sudbury, relinquishing his tenancy of a converted barn that he was then occupying.
13. The directions for the filing of evidence were broadly complied with, and on 3rd May the judge heard oral evidence from the father, from Mrs C and from the mother. He reaffirmed his favourable impression of the father, and he found himself equally impressed with the evidence of Mrs C. He delivered a judgment which was essentially supplemental to his primary judgment but which, nonetheless, carefully and fully explained his reasons for acceding to the father's residence application and ordering that E should move to live with her father at 4.00 p.m. on 10th May. The father's application was posited on the basis that there would be full contact between E, her mother and her half-sisters. After this transition he was indeed proposing that E should spend every week end with her mother and half-sisters. The judge was asked by Mr O'Toole, who represented the mother on 3rd May, for permission to appeal. The judge refused that application.
14. Accordingly, an application was lodged on paper in this court on 9th May seeking a stay of the judge's order and permission to appeal. I, as the single judge to whom the case was referred, refused the application for a stay and directed that the permission application be listed on 13th May without notice. That order was conveyed to the mother's solicitors on the evening of 9th May, and it was made plain to them, and indeed to Mr O'Toole on the following day, that the mother's obligation to comply with the judge's order and to hand E over to her father at 4.00 p.m. on Friday afternoon stood. However, once again the order was not obeyed. There seems to have been some confusion as to whether on 13th May there was only an application for permission or whether there was a renewed application for a stay.
15. As I understand the rules, the right of oral renewal following a paper refusal is strictly limited to applications for permission. Accordingly, the refusal of stay on 9th May meant precisely what it said: it was not a provisional refusal.
16. It is perhaps just worth explaining that there is no inconsistency in the two provisions. Having read the paper application, I formed the clear view that it was not a case in which permission should be granted on paper. Accordingly, it was not a case in which it would be appropriate to grant a stay. However, had I refused the application for permission provisionally on paper, that would only have created the right to oral renewal, and, so left, there might be a delay of two, three or even four weeks before that oral renewal was listed for determination. So, as a matter of management, by abstaining from paper refusal but directing an oral hearing of the permission application on the next working day but one, it is possible for this court to ensure that there is no unnecessary delay to the prejudice of the child in situations like this, which are necessarily fraught, where there is defiance to orders and problems over enforcement.
17. On 13th May we were persuaded by Mr Levy QC to adjourn the application for a fuller hearing on notice, with appeal to follow if permission granted. We were able to list that hearing the next working day but one, and we have heard extensive argument from Mr Levy this morning. In those circumstances, it seems to me right to grant the application for permission and to treat the argument for what it essentially was: the argument of the appeal.
18. Mr Levy has drawn on all his skill and unrivalled experience in this field in order to advance the mother's case as robustly and as cogently as possible. He has said by way of headlines that the judge was plainly wrong; the evidence before the judge was inadequate to support such a draconian conclusion; that the judge could not possibly assess the best interests of E without further and full investigation by experts; that the judge was guilty of flaws and misdirections; that he should have granted an adjournment; and, finally, that the appeal raises some point of principle. He refers to a number of paragraphs in Wall J's recent report "Making Contact Work", particularly paragraphs 14.2.6 and 14.5.5, and he submits that those paragraphs are only reflective of a recent trend in the authorities in this court that a change of residence is a remedy of last resort and that the best interests of the child are never to be sacrificed on the altar of compliance with previous court orders.
19. In developing those submissions, Mr Levy has said that the judge should have been alerted by a recommendation within Mrs Ould's report of 11th July to the effect that this was a suitable case for directing a report under section 37 of the Children Act 1989. In my opinion there is no force in that submission. Section 37(1) effectively creates a gateway to such a direction when it states:

"Where in any family proceeding in which a question arises with respect to the welfare of any child it appears to the court that it may be appropriate for a care or supervision order to be made with respect to him, the court may direct the appropriate authority to undertake an investigation of the child's circumstances."

20. Here the judge apparently took the view that this was not such an appropriate case, since he was simply choosing which of two available parents should exercise the responsibility of the residence order and it was not a case in which he was for a moment contemplating either a care or supervision order. Such an approach is simply not open to criticism on the facts of this case. Mr Levy says that often section 37 reports are ordered without strict regard to the provisions of sub-section 1 and that the judge could easily have availed himself of this aid had he so wished. Mr Levy referred more than once to "the device". That is as may be, but a judge who has regard to the restriction of the statutory language and abhors the device is certainly not to be criticised.
21. Then Mr Levy says - and this is perhaps his strongest submission - that really the judge should have brought Mrs Ould back into the case before moving to such an ultimate sanction. He says that there had been no external assessment of Mrs Cox. He says that there was no-one there to represent E or her interests. This constituted a huge hole in the evidence and led to a perfunctory determination. At the very least, Mrs Ould should have been there in court to give her reaction to a series of critical thoughts that were plainly running through the judge's mind when he came to compare what the mother had to offer and what the father had to offer for E's future. In this area Mr Levy has referred us to a number of authorities, particularly the case of Re CB [1995] 1 FLR 622 and the case of Re A [1998] 1 FLR 354.
22. Since this is perhaps Mr Levy's strongest complaint, I think it right to put it within the context of the litigation as a whole. Let it be remembered that the judge had conducted a major hearing in the months of December, January and February before arriving at a comprehensive judgment on the issues between the parties. He had not had any supplemental report from Mrs Ould to aid him in that, and she had not given evidence during the course of the hearing. He had arrived at clear conclusions, which had not been the subject of any application to this court for permission to appeal and so were to be regarded as unchallenged. He had then held what was essentially a directions hearing on 16th April in which he had laid down the preparatory stages for the outstanding application for a residence order. If on the mother's behalf it was to be said that a supplemental report from Mrs Ould was necessary, that application should have been advanced on 16th April. If it was to be said that Mrs Ould had to be there in court for the determination of the father's residence order application, that application had to be made to the judge on 16th April.
23. The application insofar as it came from Mr O'Toole on 3rd May is clearly recorded by the judge at page 4 of his judgment, when he says:

"Mr O'Toole for the mother says that this application is misconceived or at any rate premature, and even if it is neither of those things, he says that I should not deal with it today but that I should order various inquiries to be made. In particular he says that I should order a further welfare officer's report and I should order a psychiatric report on the mother. Those are submissions which are entitled to serious consideration and I will return to them in a moment."

24. It is hard for Mr Levy to criticise the judge's recognition that the submission should receive his serious consideration. He reverted to give the application that consideration at page 14 of his judgment, when he explained why he thought that unnecessary. He said:

"So far as Mrs Ould is concerned and indeed if the matter were put back for a further report to Dr Bailey, it seems to me that the only change of view they might have would be a change of view which is more favourable to the father and less favourable to the mother. I do not see any better outcome from the mother's point of view than that their opinions do not change. I am prepared to assume that Mrs Ould would still express a preference for residence with the mother, but I have to balance that against the mother's attitude to contact and the effect that that has on the welfare of the child. "

25. Of course, from the judge's perspective, this application came against the background of oral evidence from the mother on that day, which the judge recorded verbatim thus:

"Reluctantly I have to say that I have no intention of complying with any contact order."

26. In such a circumstance it seems to me that the judge has a wide discretion. He has to have regard to the fact that the application for the reintroduction of Mrs Ould comes at the very last moment. He has to have regard to the reality that, if he accedes to it, he is only creating a further period of vacuum in which the mother will continue to refuse any contact to the father. In those circumstances, it seems to me that the exercise of this judge's discretion on 3rd May to refuse Mr O'Toole's application is simply not open to criticism.
27. A very similar point is advanced by Mr Levy in relation to Mr O'Toole's unsuccessful application for an adjournment coupled with a court direction for a psychiatric report on the mother. It seems to me that there is even less merit in this point. Mrs Ould in her report of 11th July (in its concluding paragraph) had said that there appeared to be issues about the mother's mental health and that the court might be assisted by medical and psychiatric reports. Once that marker had been put down there was an obvious opportunity for the mother to safeguard herself against future speculation or innuendo by commissioning and filing just such a report. It is notable that she did not do so. Instead she sought the court's leave to obtain a psychological report on Mr W. Against that background the application on 3rd May is likely to be viewed by the judge even more clearly as simply a delaying tactic.
28. Mr Levy has suggested misdirection in the judge in that, since the judge was presiding, not over adversarial proceedings, but was himself partially an inquisitor, there was an obligation on him to investigate the mother's psychiatric condition where she had herself failed to put forward expert evidence. That submission is, in my opinion - and I mean no disrespect to Mr Levy - somewhat far-fetched. What could a psychiatric report do other than to evaporate possible anxiety as to the mother's psychological stability? It could at best constitute a clean bill of health. If it did not reach that best level, it was going to go to the prejudice of her case. It seems to me that there was absolutely no obligation on the judge. He had had ample opportunity to make his assessment of the mother during the course of the primary hearing, culminating in his judgment on the 28th February, as well as in the brief hearing on 3rd May.
29. In sum, what Mr Levy essentially submits is that in every difficult case the court must, almost as a matter of rule and obligation, seek the contribution and aid of available expertise: here the court and family reporter and (as he submits) either Dr Bailey or a consultant psychiatrist either instructed by the mother or appointed by the court. Manifestly, there is no such rule or practice confining the judicial management of these difficult cases. It is entirely within the discretion of the trial judge either to invoke such aid or to determine that it would be superfluous to the satisfactory completion of his task.
30. The judge's judgment was not available to us on the 13th, other than in the form of a note taken by the mother's advisers. But we have for the purposes of this morning's hearing been furnished with an approved transcript. That demonstrates again how full and clear were the judge's reasons for making the order which he did. I have referred to his consideration of Mr O'Toole's applications for an adjournment, but I would also draw out from this judgment that he very carefully considered the relative qualities of both the mother and the father to provide E with future primary care. He analysed the facts and background, which had, of course, been the subject of profound investigation at the primary hearing, and he concluded that, leaving aside the contact problems, the father had a perfectly arguable positive case to be the primary carer. He had many good qualities. He was completely committed to the development of his relationship with E. He had the support of Mrs C, who the judge found to be an experienced and able parent.
31. The judge then went on to consider what he described as the negative aspects of the mother's continuing care. He identified four factors: that over the course of his observations of the mother he had formed the conclusion that she was, as he labelled her, "somewhat odd". Mr Levy has criticised that assessment (and perhaps there is some force in Mr Levy's submission) by saying that the judge explained his conclusion on somewhat insubstantial material. But the judge went on to say that it was not just a question of his assessment, but the assessment of other professional people, as recorded by a Mrs Ould in her written report.
32. He then went on to point to the mother's attitude to state education for the children. The judge pointed to the fact that the mother had withdrawn two of her three older children from school and anticipated doing the same for the third. He pointed to the fact that she had withdrawn E from nursery school and that it was her intention to educate E at home once E had reached primary school age. The judge found that a matter of concern. Mr Levy has relied upon a letter which was written by the senior practitioner in the Learning Services Team to the effect that the local authority were satisfied with the content and amount of educational work that the girls are producing at home. That is as may be, but, nonetheless, I think the judge was fully entitled to express anxiety at the arrangements which the mother had introduced. The judge stressed, as he was entitled to stress, that the mother had no educational qualifications, let alone teaching qualifications, and in the circumstances it was a matter of concern to him.
33. Lastly, the judge expressed his concerns at what was perhaps, in his assessment, an over-close relationship between the mother and her four daughters. Mr Levy has criticised that as being without proper foundation. But the judge did rest his conclusion upon one matter of fact, which Mr Levy has not challenged, namely that both R and E share their mother's bed. The judge said of that:

"That really cannot be a good thing. It shows a closeness of dependency of children which in the case of E is undesirable enough at the age of rising five, but in R's case was really rather worrying."

34. The judge, having put those negatives beside the father's positives, nonetheless reached the conclusion that, contact problems aside, he would not have been minded to accede to the father's application. In reaching that balance he had particular regard to the opinions of both Mrs Ould (expressed in July 2001) and Dr Bailey (expressed in December 2001) that it would be quite contrary to E's interests to contemplate uprooting her from the only home she had known with her mother and half-sisters. However, the judge went on to say that he was not considering this choice against the background of assured contact to the absent parent. He plainly recognised the factors that militated against transfer. He said at page 13 of his judgment:

"There are very obvious reservations about transferring residence of this child. The father accepts all of them. He does not need to be persuaded of them. He accepts that initially she is going to be very upset and that there is going to be a very difficult period of adjustment."

35. That brief review of this judgment demonstrates (certainly to my satisfaction) that the judge had regard to all the relevant considerations and properly brought them into the balance before arriving at a discretionary conclusion. He faced that conclusion at page 17 of the judgment, identifying three options that were open to him. The second of those options was not strictly open to him on that day because he defined that as committal. Of course committal would be an option, once the appropriate technicalities had been observed, but as things stood on that day, of the three options, only two were immediately live. He defined them thus:

"First all, I simply bow to the mother's wishes and say, well, if that is your honestly held belief, nothing is going to shake you from it, then I must in effect rule that my order is not to be enforced and that Mr W is not ever to see his daughter again or not at any rate until she is grown up and may or may not wish to see him."

36. The belief to which the judge referred was, of course, the mother's unshaken belief that Mr W was a risk to young girls, a risk that the judge had, of course, dismissed by his prior judgment, a judgment that the mother had not been prepared to accept.
37. The alternative choice as defined by the judge was expressed thus:

"The third choice is to say that this child need her father and the only way she is ever going to achieve that end is that she goes to live with him."

38. The judge said:

"It seems to me that I am faced starkly with those choices. I cannot see that putting them off to another day is going make them any less stark or any more easy to determine. As I have already said, the mother's opposition is not based on some primeval psychiatric difficulty. It is based on a belief which in my judgment is not sustainable. In the end I am driven to saying that this child should go to live with her father. I cannot see any alternative. There ought to be generous contact with the mother and her father. But that is the only way we are going to resolve this case and to be resolved in the interests of the welfare of the daughter. It is in the daughter's interests that she grows up with the father and with the mother and if this is the only way that it can be achieved, then so be it."

39. As I have already indicated, I do not see that that judgment is open to the least criticism. The experienced judges in the county court have the responsibility of deciding these most difficult and intractable cases. Of course, the alternative preferred by the judge is by no means risk free. It is easy to surmise a very poor outcome. On the other hand, the first alternative discerned by the judge is equally by no means risk free, and it is just as easy to surmise very poor outcomes from a selection of the first alternative. In the end those difficult choices are to be made by the judge in the court of trial, and it is not for this court to interfere absent some demonstrated misdirection or a conclusion that is manifestly wrong. Of course, it may be that another judge before whom this difficult case might have been listed over the series of hearings, culminating in the hearing of 3rd May, might have taken a different course, might have sought the reinvolvement of the court and family reporter, might have sought the introduction of some new expert. But all that only demonstrates the latitude of the discretion vested in the trial judge.
40. For all these reasons, I am of the opinion that, despite Mr Levy's efforts, there is no merit in this appeal and I would dismiss it.
41. LORD JUSTICE RIX: I agree.
42. LADY JUSTICE ARDEN: I also agree.
Order: Appeal dismissed with costs. Public funding assessment of the Respondent's costs.