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 MANCHESTER COUNTY COURT
(HER HONOUR JUDGE KUSHNER)

		Royal Courts of Justice Strand London, WC2
		5 November 2004

Friday, 5 November 2004

1. MRS JUSTICE BLACK: This is an application for permission to appeal two decisions made by Her Honour Judge Kushner in relation to JT, who was born on 5 November 1999, and I note is five today. His father is DT. His mother, ST, is the proposed appellant. She has appeared in front of me today in person and has put her case extremely eloquently.
2. There has been considerable litigation with regard to J during his life. The father also sought contact originally with A, who is the mother's child by another relationship who was born on 13 January 1991 and is 13, but because of A's attitude towards his stepfather that was not ultimately pursued. There were then three judgments made by Judge Kushner with regard to J. There was one on 22 January 2003, which I have not seen, making findings with regard to domestic violence and allegations of physical and emotional abuse of J by his father. In essence, what the judge did on that occasion was to dismiss the allegations. She found that there was nothing of any significance for contact, which was the context of the court being involved at that stage.
3. The second judgment was on 17 February 2004. That is the first judgment against which Mrs T now wants to appeal. That was concerned with the residence of J, which was transferred from his mother to his father.
4. The third judgment was that of 9 June 2004. It related to the costs of the children proceedings. The judge ordered that the mother should pay the following costs incurred by the father: (1) The costs of the finding of fact hearing in December 2002 of approximately £15,000, which led to the judgment of January 2003. (2) The costs of the hearings in May and August 2003, when there had been a resolution achieved about allegations of sexual abuse that had by then been made against the father. These sums were about £2,500 for the May 2003 hearing and an unspecified figure for the August 2003 hearing.

The judge referred the amount of the costs for detailed assessment and also ordered the mother to pay the costs of the costs application itself.

5. I will give a brief history with regard to the matter. The parents' relationship had begun in 1991. They married in 2001, but that marriage soon broke down, with the father moving out in March 2002. Ultimately, he moved back and lived in the former matrimonial home, and the mother has had to find alternative accommodation, initially with both A and J. Ultimately, there have been ancillary relief proceedings and the mother received a lump sum of £60,000. However, she had a costs bill of £20,000, and she had to pay the DSS £5,000 in relation to benefits which should not have been paid. It was acknowledged by everybody that she would not be able to buy her own property. The father, in contrast, earns a good salary in the IT business. He was ordered to pay £1,100 a month maintenance to the mother, and would nonetheless be able to be an owner-occupier of a property.
6. After the way had been cleared by Judge Kushner's findings of fact at the beginning of 2003, contact was ordered with the handover at somewhere called the "Pro Contact Centre", which was thereafter to feature considerably in the history of this case.
7. An order was made on 24 January 2003 working on a four-week cycle, and included some staying contact for the father. There was another hearing in March 2003 when things seemed to be progressing satisfactorily. The mother was saying that she wanted to put the unpleasantness behind her and work amicably with the father. However, there was then a review in May 2003, by which time it was clear that contact was not working out. The judge thought that the honeymoon period had been only eight days, although mother says that it was longer than that.
8. The question of sexual abuse had arisen by then. It came, according to the mother, from something that J had said. Contact had been suspended and the father was trying to enforce it. The judge recognised that the sexual abuse allegations had to be tried and gave directions. She ordered that contact had to resume pending the determination of that matter. The father had meanwhile indicated that he wanted to apply for residence of J.
9. There was some staying contact in the early spring, but then on 8 April J said something else, which the mother interpreted as an allegation of sexual abuse against the father. Both parents at that point (for their own reasons) agreed that there should be supervised contact at Pro Contact until the court sorted things out.
10. In May 2003 the judge considered that the matter was becoming increasingly complex, and that there was an issue about J's developmental ability and whether he could articulate the things that he was alleged to have said. Thus the psychologist, Mrs Valerie Mellor, stepped in to report at short notice with regard to what J had said, and his abilities. The whole matter was then listed for determination in August 2003.
11. At the hearing in August the court had reports, among others one from the Pro Contact Centre which was favourable about the father's contact and also one from Mrs Valerie Mellor. The Pro Contact report concluded (in relation to the question of J and contact) that to prevent him from having an ongoing significant involvement with his father would be inexcusable without there being a very clear indication that contact with his father put him at risk of serious harm. It continued:

"If contact is deemed to be in J's best interest... then it needs to become unsupervised and to include overnight stays as soon as possible. Mr T would continue to help J feel secure despite moving between two parents. Mrs T has also demonstrated that she is capable of promoting contact and it is anticipated that this would be easier for her once her mind is at rest on the issue of abuse. Mr T must then be allowed to develop the involvement he has in his son's life without further disruption."

12. Mrs Mellor found that there were good relationships between mother, A and J, and also the father and J. She considered that some of what J was reported to have said was in fact a guess that the mother had made interpreting J's indistinct speech. She thought that J would not have been able to articulate some of what the mother thought that he had said. She did not think that J was demonstrating the sort of behaviour or responses that would be expected from a child who had been sexually abused, and she felt that his problems were the common ones of children caught up in hostility between parents. She said that contact should continue, with supervision gradually being removed. She also commented that the mother should have some sessions with someone to reduce her anxiety about the contact. I will quote directly from what Mrs Mellor said, which is important when I come to consider the question of the costs judgment. She recommended:

"For Mrs T to have some sessions with someone who could help her to reduce her level of anxiety regarding contact with her son with his father. I believe that ST does believe that something bad has happened to her son at the hands of his father and without help, I think she is going to find it very difficult to relinquish those beliefs."

13. At court in August 2003 Mrs T accepted what Mrs Mellor said about J, and she did not contest an order for contact similar to that which there had been before, but phasing out the Pro Contact Centre. The application for residence by J's father was adjourned until January 2004 to see how things went in the meanwhile. Contact did take place according to the schedule that had been fixed, and there was some additional contact at Christmas. But it is clear that the additional contact was not at all as much as Judge Kushner had hoped. At the half-term holiday it was not possible to agree anything, but Mr T took an extra day anyway with J. He pursued his residence application when the matter came back before Judge Kushner. He said that the mother had not moved on in relation to her approach to the case.
14. The judge made a number of findings. Firstly, that Mrs T had told lies about her means in order to promote her case, transferring capital to her mother. That was relevant to the ancillary relief proceedings. Secondly, in not acknowledging that J was attending nursery, and that she had done that in order to keep Mr T out of that part of J's life. The judge also made the finding that there had not been an extension of staying contact from Saturday nights to include Friday nights, as she had hoped, and that the mother had failed to explain properly to the father certain minor injuries that J had suffered. The judge thought that this showed that the mother was so much involved still in the aftermath of the separation that she could not bring herself to communicate even when that was for J's benefit.
15. She also notes in her judgment what she considers to be certain other examples of the mother's persistence in creating a stark division between her life and the father's, which she considered had impinged on J's upbringing. They start at paragraph 2.22 of the judgment. One of them relates to the change of J's name to the mother's maiden name, which had happened between the evidence and judgment being given in the previous hearing, and of which the judge did not approve. There were other matters, including a reference to the mother failing to reply to a text message about whether Mr T's niece could drop round some eye drops.
16. She also made findings about the autumn 2003 half-term when the father had kept J for an extra day, of which the mother challenges the accuracy. The mother's reaction was said to be extreme, really frightened, anxious and angry.
17. The judge made a number of findings about the mother herself, which were important as they were central to the decision that she then took. They are set out in section 3 of her judgment. At paragraph 3.4, she said that the mother had said that she has great difficulties but has tried her very best. The judge continued:

"I think she believes that but, although she can intellectualise about what is needed, she cannot put this into action. She acknowledges that she feels she cannot do right for doing wrong, and her response is therefore to do nothing in the hope that everything will sort itself out. Mr Holmes described this it as a sort of 'siege mentality'. Moreover, he is of the view that she will always feel under siege."

At paragraph 3.6, she said:

"Mrs T continues to be a very anxious mother. She is a very caring woman who feels that she is putting her children before all else. However, she seems to have a fundamental resistance to the idea that Mr T may have an equal claim to J as she does."

18. She pondered on why it was that Mrs T had taken the approach to the case that she had, and concluded that it was as if Mr T had simply been of secondary account in the life of J and, if convenience demanded it, expendable. She found that although there had been a hope that Mrs T could relax somewhat after the August 2003 hearing, that has not happened. She also quoted from the CAFCASS officer, Mr Holmes, who had commented on the mother's anxiety, saying:

"... it was almost palpable at times. She had not taken on the message of the past twenty months of the proceedings, despite the clarity of what was needed after the August hearing. He felt that Mrs T's evidence demonstrated that there was not a great deal of optimism that Mrs T would accept the judgments and act on them. There was no great prospect for immediate change."

19. Having made those findings, the judge set herself the correct welfare test and made reference to the checklist in section 1(3), then went on to what is, in my judgment, to be the crux of her decision, saying at paragraph 4.4 that if she left the arrangements as they were, she had no confidence that the parties would not be back in court over an argument relating to contact. She said:

"There is little hope that Mrs T, as the residential parent, will now start to become more flexible, or, if she does, that the flexibility will be sustained.

4.5. If I were to transfer residence to Mr T, I think that there is more chance for generous and flexible arrangements for contact to Mrs T as the non-resident parent."

20. She clearly recognised fully the serious consequences for J in a move from mother to father, including that he would be separated, not only from the mother who had always cared for him, but also from his half-brother, A. She recognised that Mr Holmes, the CAFCASS officer, was more wary about the prospects of J settling down than Mrs Mellor, the psychologist. But she found that the father's home was better equipped to provide a healthy, emotional atmosphere than the mother's.
21. The mother makes a number of criticisms with regard to the substantive judgment of Judge Kushner's in support of her application. She says that there are a number of errors in the judgment, notable amongst them are errors with regard to the half-term holiday position. I have looked very carefully at those. I do not think that those errors, if they are errors at all - and I am not convinced that they are - impugn the way in which Judge Kushner decided this matter.
22. The second issue that the mother wishes to raise is that the judge made the transfer despite there remaining a possibility of sexual abuse of J. I know that it is difficult for lay people to understand that once a court has determined that it is not proved that there has been sexual abuse, everybody must proceed on the basis that nothing happened. There is no evidence at all that anything did happen in this case. Thus it is a case in which the law accords with reality. It is therefore a matter of which the court cannot take any account, and I want to assure the mother that she should not take any account of it either. It is not relevant to the judge's decision.
23. She points to the fact that the CAFCASS officer was not recommending a transfer, and it is right that if the judge differs from the CAFCASS officer he or she must give reasons for doing so. But Judge Kushner did give her reasons for differing from the CAFCASS officer. She took into account all the detriment that may flow from a move of J, but she had received support from Mrs Mellor, who felt that it would be possible for J to move from one home to the other. I do not, therefore, consider that that is an arguable ground of appeal.
24. She challenges Judge Kushner's assessment that she could not operate a flexible contact arrangement, and points out that she was able to represent herself in front of Judge Kushner, as she has done so ably in front of me, and presumably she would also say that there is evidence that she wanted to make this work if she could be given some assistance. Nevertheless, Judge Kushner had proper regard to the history of the matter and made findings with regard to what she thought was likely to happen in the future and, in the light of those, the decision that she took was an entirely tenable one.
25. The mother complains that there was not a proper psychological assessment of herself and A before the judge arrived at her decision. But it does not seem to me that that is in any way a flaw in the judge's reasoning. She was very conscious of the complexity of the situation. She had received help from a child psychologist. It does not seem to me that it was a necessary part of her consideration to adjourn the matter, causing attendant delay which would not be in J's interests, for further psychological investigation.
26. In all those circumstances, having looked very carefully at the matters that the mother would like to advance by way of an appeal, it does not seem to me that there is a real prospect of her succeeding on appeal. I would not, in those circumstances, give her permission.
27. I do take into account what she has told me about the current situation, which is really very promising in that it is not a case in which J has been deprived of seeing his mother. She and his father have managed now to split his time 60/40, so that he is with his father 60 per cent of the time and his mother 40 per cent of the time, and from what she has told me she now sees that he has settled down, although it was difficult at the beginning, and she is able to talk with his father about the situation. I know that she has worries about things. She would like, for example, to look after J more herself rather than the father using an au pair, and it may well be that that is something which could be sorted out for the future. But I am bolstered in my conclusion about the appeal by a very firm view that it would not be a good idea to start rearranging things for J now, after a time of considerable change and upheaval for him, when things are actually working.
28. It is a different question with regard to the costs issue. It is not normally expected that a costs order will be made in children proceedings. Such orders are only made in exceptional circumstances, although of course from time to time they are made. They can be made, amongst other situations, where a party has been unreasonable in their conduct of the litigation over their child. In this case, the judge identified in the costs judgment that the mother's personality gave rise to what the judge classed as unreasonableness in her approach to the litigation, rather than any, as I might put it rather colloquially, bloody-mindedness on the part of the mother. In the February 2004 judgment she had also recorded the advice of Mrs Mellor that the mother should have sessions with someone who would help her to reduce her level of anxiety. I recall, as I have already mentioned earlier in this judgment, that Mrs Mellor had said that she believed that Mrs T does believe that something bad would happen to her son at the hands of his father, and that she would need help to relinquish those beliefs. At paragraph 3.10 of the costs judgment there is the judge's acceptance that the mother did believe the allegations and had not completely manufactured them, and that in part they related to the mother's concern about J's welfare, although the judge went on to criticise her for being unreasonable in her easy acceptance of the possibility that J had been abused by his father.
29. With those findings with regard to the mother's personality, her belief in what she thought had happened to J, and the fact that her bringing of the proceedings was, at least in part, related to her concern for his welfare, it seems to me that there is a reasonable prospect of success in appealing on the basis that the costs order was not a correct exercise of the judge's discretion, and that by relying on what was (as the judge put it) "fair in all the circumstances" as her test, at least for part of that decision, the judge went wrong.
30. I am going to refer the matter, giving permission to appeal only on the costs issue, to be heard by two Lords Justices with a time-estimate of one hour.

(Application granted only on issue of costs, to be heard by two Lords Justices; no order for costs).