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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 >> T (Children), Re [2002] EWCA Civ 882 (13 June 2002)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/882.html
Cite as: [2002] EWCA Civ 882
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE WORCESTER COUNTY COURT
(Miss Recorder Wilson)
Strand London WC2 Thursday, 13th June 2002 |
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B e f o r e :
and
MR JUSTICE COLLINS
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| T (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)
Mr R Tolson QC (instructed by Messrs Hancock Caffin, Truro, Cornwall) appeared on behalf of the Respondent Father.
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Crown Copyright ©
- LORD JUSTICE WARD: This is a troublesome application. On 27th May Miss Recorder Wilson, sitting in the Worcester County Court, directed a change of residence for the two children with whom we are concerned: a boy, B, who is eight and a girl, R, who is six.
- The parents separated in January 1998. An order was made by consent for the children to live with mother, with reasonable contact to father. However, contact has been fraught with difficulty. There were allegations made in April 2001 that father had assaulted B. Nevertheless, contact continued by order of the court backed by a penal notice. That contact was very unsatisfactory indeed. By November the children were refusing to see their father at all. No attempt has been made to enforce the contact by committal proceedings, which is an understandable decision, but what the father did was to seek a change in residence. The mother, in turn, applied to suspend the contact altogether.
- It was those applications which came before the recorder, and she heard the matter over some four days. Her order was, as I have said, to change the residence. Although the recorder gave no directions as to when that should happen, His Honour Judge Morris the next day said that the change should be virtually immediate. That led to an application for a stay of the order, which I granted on the papers and renewed last week, and I directed that the matter be listed on notice for consideration of the continuation of that stay and for permission to appeal.
- I am grateful to counsel, Miss Seddon and Mr Tolson QC, for their cogent submissions. They both appeared in the court below.
- The nub of the mother's complaint is that the recorder erred in two respects in dealing with the evidence of a child psychiatrist, Dr Newth, who had been appointed on the joint instruction of the parties pursuant to a direction given by the court to advise on the likely effect of a change of residence on the children, short or long term, on questions of contact to mother and, of course, on how that change might be managed. Her conclusions in the written report are to the effect that that change would have a serious effect upon the children, would be extremely difficult to manage, and that contact to the mother might be as bedeviled as contact to the father has been. She was against the proposal. On the other hand, it was supported by the psychiatrist who had earlier been appointed, Dr Knowles, but whose involvement in the case came to an end after she, Dr Knowles, had been involved in an accident. The change was also supported by the child reporting officers who had listened to the evidence as it unravelled. The judge did not follow Dr Newth's opinion and recommendation, and the first challenge to the judgment is that no sufficient reason was given for discounting that expert evidence, which was the up-to-date expert evidence in contrast to the views which had been formed by Dr Knowles some two years earlier.
- The point is met by Mr Tolson, who directs our attention to the passage in the judgment (which is probably the main passage in which one can find the reasoning of the recorder) expressing the view that Dr Newth had failed to take into account the impact of the parenting difficulties the mother and her new husband had encountered in dealing with the children. I see the force of Mr Tolson's argument but, given the importance of the evidence of Dr Newth, I would have preferred a more careful explanation by the recorder for coming to her conclusions. I fully accept that it was common ground that there would be distress, and I take full account of Mr Tolson's argument, which has real force, that the difficulties are difficulties brought about by the parenting style of the mother and her husband, demonstrated not least by the early attempt made to change the children's name, to adopt them and generally to supplant the father by the step-father.
- There is another area of anxiety. The child, B, raised allegations of sexual abuse in January of this year. Apparently the abuse occurred, as best as he could recollect it, some four years earlier. The judge discounted those allegations and, in view of the mother's own evidence at the time that she did not believe B, a view shared by those who investigated the complaint, that may not be a surprise. What is a little troublesome is that, in giving her reasons for that conclusion, the judge referred to a video and a transcript of that interview as justification for her conclusion. Miss Seddon tells us that the video in fact placed before her was the video of the physical assault, not the sexual abuse. It may be a small point and it may be a forgivable error in an extempore judgment but, since the recorder may have placed some importance on the falsity of the allegation and the implication that it was mother who had put the boy up to it, that too is a matter that causes me anxiety.
- I am satisfied, having looked at the matter carefully for the limited purpose for which we are here this afternoon, that there is a real prospect of success, as those words have to be interpreted: that is to say, that the appeal is not a fanciful one. There might even be another compelling reason: namely, that this is a draconian order to make. It may be justifiable at the end of the day, but it is a strong thing to do, given the common ground that the children will, at least in the short term, be deeply upset by it. So I am driven to conclude, without giving any further reasons for that conclusion, that permission to appeal must be granted. It follows, as Mr Tolson accepts, that the stay should continue until the determination of the appeal.
- I will direct that the appeal be expedited, but I have indicated to the parties already that I can make no promises as to an early hearing. It may therefore be inappropriate to say anything by way of direction for contact in the meanwhile. If contact is offered, so be it. That will be looked at if, when and how it occurs, but I will not make any present direction for contact pending the listing of this appeal. I would direct that, because of the real difficulties in this case, the appeal being proper but not necessarily one which will succeed, this matter should be listed before a court of two lords justices and, if necessary, a High Court judge, but a complement of three.
- It is to be listed for a day and, in order that the day can be used, I would invite counsel to assist the court in the following way. First, Miss Seddon must amend her grounds of appeal to set out her complaint about the finding of sexual abuse, which does not feature in the grounds at present. Secondly, it would be useful for counsel to supplement their skeleton arguments, and I would not object - indeed, I would find it of assistance - if they were perhaps to start again with supplementary skeleton arguments in which the relevant passages of evidence (both in the papers before the court and in the transcripts of that evidence) are identified, so that the court can see in advance where to look for the point that is being made. If necessary, there can be some addendum to the skeleton arguments, setting out the material passages upon which each party principally - I emphasise principally - relies to support the various submissions that are being made. I do not want pages and pages, but some help through what is now a voluminous bundle would be appreciated and, indeed, would be necessary to accommodate this hearing within a day. Any further help as to essential reading would likewise be gratefully received by the court.
- MR JUSTICE COLLINS:I agree.