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 PETERBOROUGH COUNTY COURT
(HHJ DE MILLE)

		Royal Courts of Justice Strand London, WC2
		20th December 2005

1. LORD JUSTICE SCOTT BAKER: This is an application for permission to appeal by a father in respect of three different orders of HHJ de Mille in the Peterborough County Court. The first was made on 3rd October 2003, the second on 10th March 2004 and the third on 30th September of this year. The applicant is out of time, very considerably out of time, in respect of his applications with regard to the first two orders. He has advanced his application today to me through Mr Ian Tyes, his McKenzie friend, who has put his application forcefully and succinctly.
2. As regards being out of time, he relies on a detailed chronology setting out his reasons in a document that I have seen and read this morning. Broadly, the problem initially was his attempt to obtain public funding to launch an appeal. After a significant period of weeks, he was unsuccessful in that regard. The document then outlines the various other steps that he took thereafter. What he did not do, and should have done, was to make an early application to the court for an extension of time in which to apply for leave to appeal. But he never appealed against the first of the orders and indeed the second hearing in March 2004 took place and even then he did not set about launching an appeal in respect of the first order. He is, in my judgment, hopelessly out of time and where there is a delay of this length there would have to be quite exceptional reasons before the court granted an extension. Mr Tyes has gone through a number of matters, outlining what he submits were deficiencies in one way or another about the original trial process. I am not even persuaded on a prima facie basis about any of them and, in these circumstances, this is a case where the court simply cannot grant an extension of time.
3. Let me now turn to the facts and merits of the matter. The applicant has three children: K, born on 5th November 1991, who is now 14; P, born on 13th April 1993, who is 12 and a half; and H born on 6th December 1995, who is 10. He met the children's mother in 1990, went to live with her in January 1991 and married her in January 1992. The mother already had two children of her own: D, who is now 21, and R, born on 15th November 1995, who is now 20.
4. In June of 2000, R went to live with a family next door called West. It is unnecessary to go in any detail into the unhappy circumstances in which that came about. In September 2001, R disclosed to the next door neighbours that the applicant had been abusing her sexually since the age of nine. The father was, I think, in Scotland at the time and the mother, on learning of the allegations, changed the locks and would not let the father back into the house. Social services were informed, a Child Protection Conference was called and it became apparent, happily, that none of the other children alleged that they had been sexually abused. However, the picture did emerge of emotional abuse by the father in the household and he had been described as very intimidating. The police interviewed the father, having interviewed R about the allegations. They were vehemently denied by the father and the police decided that they would bring no criminal proceedings.
5. On 3rd May 2002 the father applied for contact with his children, an application that was opposed by the mother on the basis that he had abused R and that he was grooming K with a view to going down the same lines and that, in any event, contact would not be in the children's best interests. The judge found in favour of the mother's case, noting, as he did so, the father's admitted interest in pornography. He accepted that the father had abused R. He accepted K's evidence about the father's sexualised behaviour when she, K, was present and, on occasions, required to sit on his knees. The judge concluded that there should be no contact and made an order under Section 91(14) of the Children Act 1989, prohibiting the father from making any further applications without first obtaining the leave of the court. He refused at that stage to make a Prohibited Steps Order. However, on 10th March 2004, the case came back before HHJ de Mille. The mother wanted a Prohibited Steps Order, preventing contact by the father, either directly or indirectly, including through any third party. This came about because K and H had been sent cards on their birthdays and Christmas, appearing to come from a anonymous friend of the father. The judge found that, if the father himself had not sent the cards, they had been sent on his behalf. He concluded that contact of this nature was not in the children's best interests and he made a Prohibited Steps Order and extended the Section 91(14) order to run for 4 years from 10th March 2004. On 30th September, the father made an application under Section 91(14) seeking leave to apply for contact with his children. In summary, the judge's conclusions were these:

"In all the circumstances, it seems to me that the applicant father has again failed to show that he has an arguable case, or that there is any need for a new judicial investigation by this court.

"He seeks, through the document to which I have referred, one of a number of different alternatives. Firstly, he seeks permission to apply for supervised contact. I am afraid that is not possible, because he has not demonstrated that he understands the harm that he has caused to his children in the past, and he cannot be trusted to keep to boundaries at all. If this were refused, he asks for some form of indirect contact, perhaps by telephone. The request for telephone contact, too, demonstrates that he has simply failed to accept the rationale for the previous orders. If this were refused, he then asks for some kind of regular one-way communication, so that he can at least find out about how they are doing at school. I understand that as a request. I understand that he may feel deprived of information in relation to his children. But the sad fact is, he has brought this upon himself. The way he bandied the information to what appears to be little more than casual acquaintances, in relation both to his grievances and the children's circumstances, demonstrates, I am sad to say, that he cannot be trusted with information that he has been given. Until he addresses that, then it is not right, in my judgment, even for that amount of information to be given to him at this time. Finally, if that is refused, then permission to appeal is requested. For the reasons which I have just given, I refuse permission to appeal."

6. The grounds advanced to HHJ de Mille were all advanced in written form to me in similar terms. Additionally, Mr Tyes, who is the applicant's McKenzie friend, has made oral submissions. He submits that a Section 91(14) order is disproportionate in all the circumstances of this case and he submits that the father is in an impossible situation because, until he accepts that he has abused his stepdaughter and until he accepts the behaviour that HHJ de Mille found against him on the first hearing, all these things being matters which he has throughout vehemently denied, he will not see the error of his ways and therefore, in the eyes of the judge, cannot be permitted to have contact with his children.
7. The difficulty with that argument, so it seems to me, is that HHJ de Mille made clear and unequivocal findings of fact at the first hearing that he was fully entitled to do on the evidence before him. It is submitted that he did not have a fair trial at that stage because, amongst other things, he was unable to cross-examine R, whose evidence was given by way of video link. But I am satisfied that he did have a fair hearing. It is not appropriate, in all the circumstances, that the alleged victim of abuse should be expected to give oral evidence and be cross-examined by or on behalf of her abuser in family proceedings. It is plain that the judge went into the case with the greatest care and he looked at the whole picture, which involved the younger children, the applicant's own children, and the whole family picture. I do not know why it is that the police, in the exercise of their judgment, decided not to prosecute. It may be that Mr E was extremely fortunate not to find himself as the defendant in criminal proceedings.
8. In the end, as I have said, there is no basis for granting an extension of time and going in any detail into the first two hearings. As regards the third hearing in September of this year, the judge was exercising a discretion. It seems to me that he was fully apprised of the whole circumstances of this case and he was abundantly justified in reaching the conclusion that he did in refusing to allow the father to apply for contact. It is very regrettable that he has not seen any of his children now for four and-a-half years but I am bound to say, having read with care the papers in this case, that that is something which in the circumstances appears to be entirely his own fault. When he amends his ways and comes to terms with what he has done the position may be somewhat different.
9. As far as an application for permission to the appeal is concerned, this court only grants permission if an appeal has a real prospect of success. I regret to say that, in this applicant's case, Mr E has no realistic prospect of success and therefore I am bound to refuse the application.
10. Thank you for your assistance Mr Tyes.

Order: Application for permission to appeal refused. Application for extension of time refused.