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 WALSALL COUNTY COURT
(HHJ RUNDELL)

		13th December 2005

Tuesday, 13th December 2005

1. LORD JUSTICE THORPE:  This is an appeal from an order made by His Honour Judge Rundell on 23rd August 2005.  He had before him a long-running and difficult family dispute.  The facts he summarised most briefly since he had given comprehensive judgments on history, issues of fact and credibility on 16th January and 20th May 2004.  His brief résumé is in these terms:

"These parents married in 1989.  By mid 2002, at the latest, father was behaving quite clearly in a manner calculated to turn the children against the mother.  They separated in January 2003.  The mother left.  She returned for a short period and finally left in about March."

2. Later in the same judgment he summarised the history from the children's point of view.  He said:

"These children have suffered a turbulent last three years or more.  For many months they witnessed in the matrimonial home father's constant denigration of their mother.  They saw their mother admitted to hospital.  They then spent nine months with father.  Their residence was then changed to live with mother.  They then enjoyed four months of regular contact and they clearly did enjoy that.  They have had no contact for the past fifteen months."

3. The issue for the judge on 23rd August was whether or not the children's contact to their father should be reinstated.  The father's case was that he had, in the months prior to that hearing, had regular therapy with a very experienced and senior psychologist, Mrs Cox.  Mrs Cox had formed the view that the father posed no threat to the children and that direct, unsupervised contact should resume swiftly.  The judge rejected the evidence of the expert.  The judge said:

"I am satisfied that Mrs Cox, as an experienced expert, is well aware of her professional duty to the court, and was not behaving in a partisan manner... Mrs Cox is dependent to a great extent on the information provided to her by the father.  He told her, for example, that mother, in the earlier proceedings, lied under oath and that mother was committing adultery long before she admitted to that.  Those statements, which Mrs Cox inevitably had to accept, were contrary to my findings in January 2004... In my judgment whilst unhesitatingly acquitting [Mrs Cox] of any partisan approach, or unprofessional approach, I think she may well have formed a slightly too sympathetic view of father and his position."

4. The judge had the opportunity of hearing from the parents in the witness box on that occasion.  He reached the very firm conclusion that the father had not changed his attitudes in relation to the central issue in any way whatsoever.  Accordingly he concluded:

"As I say, I do not think that he has changed at all.  I do not think it is safe at the moment for him to see the children, even supervised, because of his attitude."

5. In a later paragraph he did urge the father to reconsider whether he should continue therapy in an effort to develop greater insight into his difficult position and to change his attitude.
6. Although refusing the application for direct contact, the detailed order of the judge made important provisions for the future.  First and foremost, he ordered the introduction of a guardian ad litem to represent the children.  Secondly, he provided for a full review on 9th January, with directions to enable the parties to file further evidence by 30th December and the guardian to file her report by 4th January.  Perhaps given that that reduced the effect of the judgment of 23rd August to something of an interim status, it is surprising that the judge himself gave permission to appeal.  The appeal has been strongly argued this morning by Miss Seddon. 
7. Before coming to her submissions I record that the guardian was duly appointed on 21st September.  She appointed solicitors two days later, who, about seven days later, wrote to the father's solicitors requiring the court papers necessary to enable her to read into the case.  The chronology which has been prepared by the guardian's solicitor was sent to the court, to the mother who acts in person, and to the father's solicitors on 25th November, and reveals a very worrying position.  Their initial letter of request had to be supported by a chaser.  It took the father's solicitors a month to deliver any papers and what they delivered were clearly inadequate. 
8. A letter for further papers of 7th November led to a chasing letter of 17th November.  Miss Baker, who has appeared this morning for the guardian, tells us that there was a brief directions appointment before the judge on 2nd December when the father's solicitors undertook to make good these deficiencies by Monday next, 19th December.  If there is any breach of that informal undertaking I have no doubt that Judge Rundell will take a serious view of the solicitors' performance.  It was obviously vital that the guardian get off to a swift start if she was to provide the judge with the full contribution that he plainly needed at the next fixture. 
9. Clearly the guardian's capability has been prejudiced, but at least we have been told that she is to meet the children, initially on Monday next, and in the first week in January she will take the children for an outing.  Those two visits will be reported on in her written report, the judge, on 2nd December, having extended her time for filing to 6th January.
10. I have detailed these intervening events with some elaboration because obviously they affect the disposal of the appeal.  It would plainly be counterproductive for this court to intervene in a running case with an important fixture so imminent unless there were demonstrated some fundamental injustice or procedural error on 23rd August. 
11. Miss Seddon has done her best.  She has challenged the judge's entitlement to reject the opinion of Mrs Cox, and to elevate his own assessment of the father's attitude and emotional state above the assessment of Mrs Cox.  That submission, in Miss Seddon's presentation, is founded on a decision in this court in Re M [2002] 2 FLR 1059.  There are the most obvious distinctions between the underlying facts in the two cases.  I accept that the judge's rejection of the evidence of Mrs Cox was robust, but, nonetheless, it was a justifiable course if properly explained.  In my opinion the explanation offered by the judge for his rejection of Mrs Cox's evidence was legitimate and sufficient. 
12. It might also be said that, even given the firm view the judge has taken of the merits and of the credibility of the parties, there is still no rational foundation for his rejection of supervised contact, since it might be said that the presence of an experienced supervisor would be a complete safeguard against the particular risk that the father poses.
13. However, given that the judge was, on 23rd August, investing in the investigation, assessment and report of a guardian, it was plainly open to him to make no fundamental change until he had the advantage of the guardian's independent assessment.
14. So, for all those reasons, I conclude that the order of 23rd August was within the ambit of discretion open to the judge, given the findings and assessments he had made having heard oral evidence.  I would therefore dismiss the appeal.
15. LORD JUSTICE SCOTT BAKER:  I agree.
16. LORD JUSTICE RICHARDS:  I also agree.

ORDER: appeal dismissed; assessment of both parties' publicly funded costs.