England and Wales Court of Appeal (Civil Division) Decisions

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

		Royal Courts of Justice Strand London WC2 Tuesday, 23rd April 2002

1. MR. JUSTICE SUMNER: This is an application by the father for permission to appeal against the judgment of His Honour Judge Platt given on 24th January 2002. He refused permission to appeal on 8th February. This followed a hearing in January of this year, firstly on 7th and 8th January, on the 9th when a series of tapes were seen both by the applicant and by Mr. Hemingway, who has appeared today as his McKenzie Friend, and then two further days on 21st and 22nd January.
2. I have seen transcripts of the application made by Mr. Hemingway on the applicant's behalf on 8th January for permission to instruct a paediatric specialist in relation to an incident that took place in December 2000. I have also seen a transcript of the evidence of Mr. Kane of 22nd January 2002, the judgment of His Honour Judge Platt handed down on 24th January and running to some 13 pages, and finally a transcript of the short hearing on 8th February when Mr. Hemingway applied for permission to appeal, which was refused.
3. In addition to those documents, I have noted in the bundle before me, all of which I have read, the detailed judgment given by Judge Platt in relation to that same matter in May 2000. It ran on that occasion to some 20 pages.
4. I have already mentioned the position of Mr. Hemingway. I noted to my surprise that he had acted not only as a McKenzie Friend, assisting and advising the applicant, but he had also conducted examination and cross-examination during the course of the hearing. I questioned the reason for this at the beginning of this hearing.
5. Mr. Hemingway explained that his understanding was that the applicant suffers from epilepsy and that if he gets in any way excited that could lead to a fit. I asked the applicant to explain it to me. He said that he becomes so upset on these occasions that he is quite unable to articulate what he wants to say, let alone ask questions or cross-examine anyone. He told me that he finds it almost impossible to follow a logical train of thought, and, as I understand it, he would almost be unrepresented, even by himself, if he did not have assistance. I hope that that is a fair way of putting what I was told.
6. I have also noted that His Honour Judge Platt gave credit to Mr. Hemingway in relation to the manner in which he had carried out his task on behalf of the applicant. Having heard Mr. Hemingway for something over half an hour or so, I can well understand why he did so. He raised the various points that are set out under the application for permission to appeal. He made his points clearly and was at all times both deferential and polite. I therefore consider that I have been assisted, unusual though the circumstances are, both by his presence, which I have no doubt has assisted the applicant, and by what he has said.
7. I remind myself that this is an application for permission to appeal. I grant such an application unless I come to the conclusion that there is no realistic prospect of success were I to give such permission. I have, in going through the papers, had that very much in mind.
8. The matter starts with the judgment, to which I have already referred, of His Honour Judge Platt in May 2000. He recorded on that occasion that there had been over 40 applications in relation to an ongoing dispute which the applicant has had in relation to contact to his three sons. It has now risen to over 50.
9. In order to make sense of the matters to which I wish to draw attention, I propose to sketch quickly the background. I am concerned for three children, D, born in November 1987, 14, and twins, A and J, born in October 1992, who are 9. They were born, as Mr. Hemingway reminded me today, by artificial insemination by donor. The applicant has been treated throughout as if he were the full father in every sense. No criticism is made that he has at any stage been treated as less. That is, of course, wholly appropriate.
10. The parties (that is the father and the mother), who had been married, separated in 1995. The mother remarried a Mr. W and she now has a further child, V. There has been continuous litigation since about 1996, a great deal of it before His Honour Judge Platt. I will refer to the parties in the course of this short judgment as the father and the mother because that is the vital role which is at the heart of this present application.
11. In reading the first judgment of His Honour Judge Platt, I note that at the beginning he made it clear that he regarded the father as wholly committed to playing a considerable part in the lives of his sons. He also noted that the father felt that he was the victim of the mother's alienation syndrome, a theme which started early and has run fairly continuously throughout the lengthy litigation.
12. As a result of the judgment of His Honour Judge Platt in May 2000, D, who said that he no longer wanted to see his father, has not seen him since that time. I think that the last contact was 5th July 1999. At that time the mother's declared position was that she wanted contact to continue, but she was concerned that the extreme hostility shown by the father, both to her and to Mr. W, was affecting contact itself.
13. The judge made a series of findings in relation to incidents between D and his father. He recorded that D resented the pressure put on him by his father. There were incidents involving the use of physical force by the father. In relation to the pressure, it included unpleasant comments about the mother made by the father. He referred to Mr. W as "maggot". The judge accepted D's account for the reasons that he enumerated on that occasion. He noted that such was the level of the father's hatred of the mother that he was unable to suppress it in front of the twins even during the course of an interview with a child psychiatrist, Dr Fitzpatrick.
14. Contact between D and his father had come to an end as a result of a court order following an incident when it was said that the father had grabbed D by the throat. The judge highlighted the father's denigration of the mother and Mr. W. This was a mother who had by that stage been representing herself for the previous two years. He made findings adverse to the father, in relation to his inappropriate attendance at school and his late delivery of the twins latterly, back after contact, which he held to be deliberate. In the circumstances, he reduced the level of contact between the father and the twins but held that that contact was to continue.
15. The present situation started with an incident on 19th December 2000. The incident arose when the father found blood in A's pants. Of that there is no dispute. How it got there was before the judge in dispute. The father alleges that it was as a result of abuse by Mr. W and that there was an injury (I presume deliberate injury) caused by him. The children's account was that A had had a nose bleed in the course of a tussle with J. He had used a tissue and put it in his pants and that is how the blood got there.
16. The matter escalated from there. It is set out in the subsequent judgment of 24th January. The father, understandably as a result of the conclusions he had reached, made a complaint. He did not bring to the attention of the mother what it was that he had either found or was proposing to do. The first she knew was when Social Services recorded that the father had alleged that A had been sexually abused by Mr W. There was an investigation. The police were involved.
17. In due course it was not Mr. W who was arrested but the father. He was arrested on suspicion of indecent assault and cruelty. Charges were never made and, so far as the police are concerned, it did not go further than that. In the course of those investigations there were video interviews of all three boys. It was those tapes which, as I have already mentioned, on 9th January the court, Mr. Hemingway, and the father saw. It is to be noted that the mother did not see them. She said, as the learned judge accepted, that she had not questioned the boys about what they had said in those interviews.
18. He records in his judgment how it was that she became increasingly distressed as the nature of the matters raised by the boys in those interviews became apparent, as they had to do if the matter was properly to be investigated before the judge.
19. Hitherto, she had supported contact. On hearing of the nature of those allegations, which amounted to both physical and sexual abuse by the father, and I will come to the precise findings made by the learned judge, she felt that restricted contact was no longer possible, in her view, even if it was supervised. In the course of the proceedings the judge had asked for a section 37 report from the local authority. A senior practitioner, Mr. Kane, had been appointed. The mother welcomed this, as she felt that he had a very good relationship with the three children. In due course, he discontinued his investigations and another court welfare officer, Mr. Angel, took over. Mr. Kane had, however, been involved in the various interviews.
20. In the course of his judgment the judge set out in summary form the background but in greater detail precisely what the mother's case was, and then the father's case. The father's case was, and has remained since then, that he has never been involved in any conduct which could be called inappropriate in relation to any of the children, and certainly not physical chastisement. Nor did he do anything which could be regarded as sexually inappropriate, let alone anything that would amount to an indecent assault. That does overlook the fact that the same judge had made a positive finding that on an earlier occasion the father had assaulted D, when he had grabbed him by the throat.
21. Having set that out the learned judge then started at paragraph 22 of his judgment to set out his findings. He does so over a whole series of matters which he highlighted as he went through the judgment. He dealt firstly with the injury to A's penis. He was not satisfied that there had been any injury. He found the father's evidence unconvincing in a whole series of different aspects and he found that the more probable explanation was that given by A about the nose bleed.
22. The judge went on to find, again positively, that despite the clarity of his judgment on the first occasion, the father had continued to denigrate the mother and Mr. W. That was based on his hostility which he observed that Mr. Angel, the court welfare officer, had seen himself. He found that the father had persistently been bringing the boys back late from contact and there is, I have noted, the quite bizarre incident of the father driving them back with a car following, stopping 200 yards short of the mother's home, and then the rented car, whatever it was, taking them for the last 200 yards.
23. He pointed out that he had given the father the clearest possible warning about that in his judgment. He found as a fact that the father had disregarded the prohibited steps order in relation to the giving of presents. He found that that was deliberate. He also had to consider the allegations of physical abuse. He had had the benefit of seeing the videos. He had also heard what Mr. Kane had to say about them, and as a result of his observations and those of Mr. Kane he found that those allegations were made out. He said this:

"I find as a fact that both of them have been physically assaulted by their father during periods of contact on a number of different occasions".

24. He had to deal with the allegations of sexual abuse. He said that they were most clearly articulated by D. What he found was this:

"My finding is that the father has engaged in inappropriate touching of A's penis and displayed an unnatural interest in his genital areas. This has caused both A and J real embarrassment and distress."

25. He then went through the welfare checklist under section 1(3) of the Children Act. He noted and found as a fact the twins' better performance at school in the 10 months since they last saw their father, that they had an excellent relationship with Mr. W, and that there was no evidence that they had missed their father. They had suffered physical and emotional abuse at their father's hand. He noted that quite a considerable amount of cross-examination of the mother was devoted to her relationship with Mr. W, as far back as 1995. He put it this way:

"This demonstrates with chilling clarity the father's complete inability to move on. He remains living in the past, unable to accept that he is in any way to blame for the breakdown of the marriage or for the subsequent breakdown of contact".

26. He noted that Mr. Angel was recommending supervised contact. Mr. Kane was recommending no contact at all.
27. Though this is not a judgment in relation to an appeal but an application for permission to appeal, it is right that I should quote once more from the judgment of the judge, paragraph 47:

"I accept of course as a starting point that it is the right of every child to grow up with a loving relationship with both father and mother and I do not for a moment suggest that this father in this case is in any different position by reason of the fact that he is not the biological father of these children. In fairness to the mother I should add that she has never sought to rely on this point. It is equally the duty of the court to foster and encourage this relationship and the duty of each parent to do likewise. But if over a period of time the court finds that the father is simply unable to develop that relationship, and that his involvement in the children's lives is detrimental to their overall development instead of fostering it, then the basic welfare principle must take precedence. It is the paramount consideration.

In this case the welfare principle demands that the court accepts the reality of the situation. The evidence in this case clearly shows that the children's welfare will be endangered by a resumption of direct contact and that termination of direct contact will positively benefit them."

28. He went on in clear terms to say why he preferred the recommendation of Mr. Kane over that of Mr. Angel. He had not been involved in interviewing the children, nor had the benefit of seeing the children.
29. Against that background I come shortly, because they were taken shortly, to the points raised by Mr. Hemingway. He said, first of all, that the father had not received a fair trial. He said that the application for a specialized paediatric examination had been refused. Indeed, it had. As a result he said that the father felt shortchanged. He is now accused of paedophilia while the mother, having done the same sort of examination as he did, is regarded as being concerned for the child's welfare.
30. The judge explained with care why he had refused that application. First and foremost, he thought it highly improbable that it would lead, after more than a year, to the remotest sign which would support or not support the father. At best, it would be neutral. Furthermore, he saw no reason to subject the children to that sort of examination. Not least he had in mind that the children had to go through the ordeal of being interviewed on video.
31. Next, it was said that the evidence of Mr. Kane was tainted, that he should not have been regarded as a proper witness and that his evidence should have been disregarded. The reason for this was, on the findings of the judge, that the mother had subpoenaed Mr. Kane. She did not know whether he would turn up at court. She had no written statement from him to put forward as a substitute in the event of non-arrival.
32. He arrived. The mother hugged him. That, it is said, when he was no longer directly involved in the matter and was involved in other cases for the previous four months or so, tainted his evidence. It went, it is argued, beyond the realms of proper conduct. I do not understand there to be any dispute but that it was the action of the mother. Whether the allegation is that what Mr Kane should have done was to have pushed her off on that occasion, I do not know. It was an expression of her relief at him appearing at court when she had concerns that he would not turn up. I see nothing in that point at all.
33. There is a further allegation that at one particular point he went too far in demonstrating to A what was said to be inappropriate touching by giving three examples. The judge accepted that perhaps it was rather suggestive to have done it in that way. In considering the evidence the judge had that point very much in mind.
34. It is said that there has been a breach of Article 6, the right to a fair trial, and the father's rights under Article 8 of the European Convention. The judge plainly had these in mind.
35. This application is part of a continuing tragedy. The tragedy is that the father has learned nothing from a detailed, careful and concise judgment in May 2000. He cannot understand the part that he has played in leading to the present events. In my judgment, there is little prospect that there will be any continuing contact other than indirect contact in the future until he does and is able to demonstrate that he has learned.
36. I have been through both these judgments with care, the latter one today. I find that not only is there no realistic prospect of a successful appeal but I see no prospect at all. These are quite admirable judgments. They set out the background and are concise in summarizing the case of each party. There are clear findings of fact and conclusions which, on any reading, have to be inevitable, given the history of this matter.
37. I am no less convinced than Judge Platt that this is a father who genuinely loves his children and wants to play a role in their lives, on which the applicant addressed me at the conclusion of the matter. I have no reason to believe that he is other than genuine in expressing those sentiments. Until he can acknowledge what has happened, until he can learn to separate his personal feelings from those of the children, until he can understand that he must separate his own feelings for their mother and Mr. W, I see little prospect of hope for future contact. It is entirely a matter for him whether he does or does not wish to take advantage of what I would refer to as the learning of His Honour Judge Platt, with which I wholly concur. It is all there for him to grasp. If he does, if he is able to see what has happened, I see prospects for the future, prospects which are in the boys' interests. Otherwise they will grow up with a picture of their father which he can and should correct.
38. I would like to think that they are sufficiently important for him to see that he has a great deal to learn. As it is, I have no alternative, for the reasons I have endeavoured to give in a deliberately extended judgment, than to dismiss his application for permission to appeal. I have extended the judgment because I am anxious to demonstrate to the father that I believe that there is hope for the future. He has been thrown a lifeline time and again. He can use it to help himself. He shakes his head. I despair for those boys.
39. If he is unable to resume contact with them they should at least know that their father had the chance and declined to take advantage of it. I am going to dismiss this application.
40. In the light of my judgment I am going to add a direction to this matter. It is that, in the event of any further application being made by either party to the court in relation to any of these children, that application should come before His Honour Judge Platt. I would consider, because of my present involvement in this matter, saying that, in the event that he is unable to deal with it, I would deal with the matter myself. But, in any event, it is right at the moment that this matter should stay in the hands of the judge who has demonstrated clearly both his understanding of the issues and given judgments which I find it impossible to criticize. For those reasons this application will be dismissed.
Order: Application refused.