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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 >> B (Children), Re [2005] EWCA Civ 719 (17 May 2005)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2005/719.html
Cite as: [2005] EWCA Civ 719
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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MIDDLESBROUGH COUNTY COURT
(HIS HONOUR JUDGE TAYLOR)
Strand London, WC2A 2LL |
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B e f o r e :
____________________
| B (Children) |
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(Computer-Aided Transcript of the Stenograph Notes of
Smith Bernal Wordwave Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
The Defendant did not attend and was not represented
____________________
Crown Copyright ©
- LORD JUSTICE THORPE: This is Mr B's application for permission to appeal the orders and judgment of His Honour Judge Taylor sitting in the Middlesborough County Court on 16 February 2000. The judge made three distinct orders. The first dealt with all issues of residence and contact; the second was an injunction against the father preventing threats of violence or harassment of the mother; and the third was a power of arrest order. The applications for permission were received in this court on 1 March. In the court below Mr B was assisted, and indeed represented, by His Mackenzie Friend, Mr Christophorou and here I have permitted Mr Christophorou to act as Mr B's advocate.
- The issue before the judge was theoretically who should have the residence order in relation to two children - L, who is 4, and C, who is 2. Mr B is the biological father of the younger child and the psychological father of the older child, whose biological father has not had any part in the proceedings. The judge quite rightly regarded these cross-residence order applications as being only background, since the reality was that the children live with and have lived with their mother. The sad thing is that contact with the father has gradually diminished, despite an endeavour to set up a regime of supervised contact which failed because the father did not comply with the conditions set by the mother in order to bolster her confidence. The three conditions were: no photographs, no involvement of his parents and only modest presents. All three conditions the judge found to have been breached. The judge rejected the father's explanation that the conditions had been agreed by his lawyers and that he was unaware of them. The judge found that he had been in deliberate breach.
- There was a CAFCASS report of June 2004 which, despite all the history, suggested that supervised contact at CAFCASS offices in Middlesborough might be the best option for the children. But by the time the case came for trial in February 2005, the CAFCASS officer, Mrs Moore, had changed her view and recommended that there should be no direct contact to the children.
- The judge made it plain, when he moved from the history to the applications then before him, that he was anxious to reignite and reinforce the relationship between father and sons. He then considered the options and ultimately came to the conclusion that the best was to introduce a period of indirect contact between February 2005 and March 2006, and he laid down a detailed pattern. He also imposed a section 91(14) order to prevent any intervening applications, and he made the injunctions to prevent the father from harassing or intimidating the mother over that same period.
- Mr Christophorou has sought to advance the permission application essentially, in my judgment, clutching at straws. He makes the complaint that the approved transcript does not accurately reflect the very words of the extempore judgment. The judge who delivers an extempore judgment has the opportunity and the right to correct the transcript within reasonable bounds to tidy up infelicities, or even to embrace some further consideration. Thus the fact that Judge Taylor took advantage of that opportunity is not a ground for the grant of permission.
- Mr Christophorou has said that the judge should have restored supervised contact. That is, in my judgment, a hopeless submission since, plainly, the preference for indirect contact was well within the judge's discretionary ambit and had he immediately restored supervised contact he would have been rejecting the advice of the CAFCASS officer and would have had to explain with considerable care a discretionary decision which would have been very vulnerable to appeal in this court had the mother sought permission.
- Mr Christophorou then complains that the injunction orders and the order under section 91(14) were not properly founded on any applications issued by the mother of which the father had notice and against which he had the opportunity to defend himself. I accept that there may be some technical merit in those submissions. This is undoubtedly the robust management of a no nonsense judge but, as a matter of proportionality, I would not consider granting permission on those technical grounds since it is transparent from all this transcribed judgment that the judge's determination was to do the best for these children, where necessary support the mother as the primary carer and, as far as possible, impress upon the father that he did have the opportunity to prove his responsibility during the period of indirect contact with the prospect of moving to direct contact and to a parental responsibility order.
- Finally, Mr Christophorou has said that there has been an insufficient regard of Mr B's Article 8 rights to family life and that the welfare checklist is incompatible with the Article since it nowhere refers to the importance of the right to family life. As Mr Christophorou knows well, that submission is only theoretically valid in the most unreal context. The judge was very conscious of the rights of the primary carer. He was very conscious of the rights of the children. Those rights all had to be brought into the balance against the rights of the father, and in the end the Strasbourg jurisprudence does little more than to affirm the fundamental approach that has been taken in these courts for well over 40 years, namely, that the welfare of the children is the paramount consideration in the exercise of a judicial discretion. Despite the charm and courtesy with which Mr Christophorou has advanced this application, any analysis demonstrates that there is simply no ground for the Court of Appeal to embark upon a more profound investigation of a very full extempore judgment, in which the judge has carefully dealt with the history, linked that into the application currently before him and looked to the future to see what could realistically be achieved to restore relationship over the course of the following 13 months.
- The only message that I would like to give to Mr B today is that unless he seizes the opportunity given by the judge to re-establish relationship through the indirect contact regime, he risks to lose knowledge and relationship with these children over a long period of their minority. It is hopeless for Mr B to get caught up in the notion, as the judge explained, that the family justice system is unfair, that CAFCASS is unfair, because the pursuit of those convictions is the most destructive factor in the disintegration of the relationship between him and these boys. So I would urge Mr B, I would plead with Mr B, to think again and to see that the only viable way forward is to observe the opportunity of indirect contact meticulously in the knowledge that Judge Taylor is a fair-minded, compassionate man who means what he says when he expresses his determination to restore relationship but at a pace which is compatible with the welfare of the children.
- All that said, these applications for permission are refused.