COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
HIS HONOUR JUDGE MURDOCH QC
CANTERBURY COUNTY COURT
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE WALL
| In the matter of S (Children)
Mr Martin Frank Stringer – present but not represented
Mr P Hepher (instructed by William Simmonds of CAFCASS Legal) as Counsel's Advocate to the Court
In the matter of E (A child)
Mr C Wall (instructed by Vivian Thomas & Jervis)
Mr P Hepher (instructed by William Simmons
on behalf of CAFCASS Legal) as Counsel's Advocate to the Court
Mr Armstrong (instructed by Max Barford & Co)
|For the Appellant
For the Respondent
Crown Copyright ©
Lord Justice Wall :
This is the judgment of the court
Is it permissible for the court, when making a section 91(14) order), to impose conditions on the order, restricting or otherwise identifying the circumstances in which an application for permission to apply can be made, and / or specifying the evidence which the applicant must obtain before such an application will be entertained?
The nature of the case in the first application
The facts in the first application
"The events of the period when the father would come to the house at periods of day and night, drunk, abusive and controlling must have been traumatic, and I have no doubt that she has tried to shut these matters out of her mind. To show the extent to which that must have shocked her, there was at least one occasion (I accept it occurred) when the father deliberately urinated over her."
"One thread to be found throughout the mother's approach is that she was desperately anxious, whatever the cost to herself, that her child should have a father and the result of that was that she was willing to put up with the type of behaviour, the type of abuse that most people would have regarded as outrageous. But it did not seem to her outrageous, if she was making that sacrifice for the child. She was also anxious that the father should get himself stabilised and get himself on his feet. Indeed, she made a fairly substantial loan to him which was never repaid, to assist him financially. "
"His evidence and the manner in which he gave it, corroborated the mother's account that he was an aggressive and controlling individual whose moods fluctuated wildly, who was unable to see beyond his own demands and quite impervious to any counter suggestion that he might be wrong."
"….. unable to put the protection of the child above his demands. He well knew that his arrival at the mother's safehouse would cause her distress. That distress was part of getting the mother to do what he wanted. It proves precisely what the mother had been saying all along. The father says that he now regrets this. His demeanour, whilst giving evidence, was far from reassuring on that point. The reason why he says he has learned his lesson is that he is now being prevented from seeing the child, in other words because he is not getting what he wants."
"In addition to the above, further investigations and consultations provide evidence to support the view that there are a number of ways Mr Everett is out of touch with reality and experiences distortions of perceptions of thinking. It appears that he creates a web of fantasy and wishful thinking to justify and validate his view of the world. His primary concern seems very much to be himself and his own needs and he has consistently shown that he will not conform to the rules which others are governed by. Somehow there is all some justification for the rules to be broken or a lack of acceptance that they apply to him as well as to other people. There have been clear indications that he finds it very difficult to tolerate frustration and is driven to try to control those he perceives as weaker than himself. Thus, I remain of the opinion that any direct contact between C-W and her father would almost inevitably result in giving rise to significant psychological harm and is therefore strongly contraindicated."
"The child is entitled to a degree of stability and peace in her life in order to enjoy her youth. If she is to be manipulated and to be the subject of an obsession, her life will become distorted and unhappy. The child is still very young but she will, in the near future, undergo the changes needed partially because of education and possibly also because of the presence of a stepfather. There is, in my view, the prospect of serious harm should this child have direct contact with her father and who is incapable, unlike the mother, of meeting the child's needs to be regarded as a person to be protected rather than as the father indicates as a prop for the father's seriously damaged personality."
"I regret to say that the father has obviously become totally obsessed with what he regards as, first of all, the wrongness of the decision of 30 November 2000 and the failures of the Courts of Appeal (sic) to give him any relief from it, and the perjury, as he sees it, of the mother, and the damage to his good name. He has totally ceased to have any idea by normal standards that what he was doing is damaging, and will put the mother in fear, if his story is correct. I regret to say, I think this is a deliberate planned effort by the father to intimidate the mother."
The application for permission to apply
"20. I understand in the past that I may have been brash but I have now realised that this must be a softly softly approach to re-establish contact."
21. I am not asking for contact just to be re-instated, as I know that I will need to prove myself to the court that I am a reliable person.
The hearing before Judge Murdoch
Judge Murdoch's judgment
"The issue before me must be addressed on the basis of this test: Does the material before the court today demonstrate the need for a renewed judicial investigation? That is the way the matter has been put before me by Miss Topping. I do not think it is seriously disputed by Mr Wall although he also refers to the test as being whether there is an arguable case. I certainly very much take on board that it is not for the father to show that there is some reasonable likelihood of success before he should be allowed to have permission to make an application for a contact order.
The way in which the matter is put by Miss Topping on behalf of the mother is that when one looks at the father's statement it, in a very clear way, demonstrates that the approach by the father to his understanding of the difficulties he caused in 2000 and in 2001 has not changed at all. Although there has been a lapse of in excess of four years with no contact from the father to the mother, the father is still approaching matters on the basis that they are really the mother's fault. There is no indication either that the father's personality characteristics have changed or indeed that he has sought any kind of treatment in relation to what was seen as his personality difficulties by Mr Clowry and accepted as such by His Honour Judge Hargrove.
The court must have regard to whether the fact that the father is now married and has another child alters the way in which the matter should now be considered so that those changes create a need for a further and renewed judicial investigation. Mr Wall says that the fact that these matters have occurred, the birth of the child and the marriage, taken together with the absence of any contact over a period of four years, is enough to warrant a further judicial investigation. And, of course, Mr Wall relies and heavily relies on the general principle as to the benefits for a child of having a relationship with a father and relies on the general principle that even where direct contact is not possible that it is generally at least not contrary to the interests of a child to have indirect contact.
It seems to me, however, that this is quite an exceptional case. It is a case in which the father singularly demonstrated over a lengthy period of in the order of two years an obsession and a lack of control which convinced Mr Clowry and equally convinced His Honour Judge Hargrove that future contact between the father and C-W was contrary to her interests.
I am satisfied that the full circumstances of this case are such that it would require considerably more than the matters which have been brought before the court by the father at this time to justify imposing upon the mother and the child a renewed judicial investigation. I have regard to what His Honour Judge Hargrove said in his judgment in November 2000 ….
His remarks in that judgment were directed to direct contact but they were extended, it seems clear from the order he subsequently made, to indirect contact in view of the way in which the order for indirect contact was operated by the father.
It seems to me, therefore, that nothing that has been put before the court at this hearing on behalf of the father justifies the grant of leave to apply for a contact order at this stage and I will refuse the father's application."
The post judgment discussion
"Mr Wall, it seems to me that it is not really a proper consideration for this court when considering how to deal with an application to have regard to whether a person is publicly funded or not. What you invite me to do is rather than, as I was proposing to do, dismiss his application on the basis of how it was presented today, instead of adjourn it, really as a device for the father to obtain further evidence to put before the court.
It seems to me that if you had at the start of this application invited me to take that course, that might have carried a little more weight. But for me to do that now I think would be an improper exercise of my discretion which would be based on the consideration that your client is publicly funded. It may be that the father could persuade the Legal Services Commission to fund the making of a fresh application. It may be that the father would be able to, in the course of some fresh application, obtain public funding for a suitable expert to be instructed. But I am not disposed to adjourn this application for the reasons you have suggested.
I am also concerned about how reliable the report would be in the light of what Miss Topping has said in reply. It certainly seems to have been the case that it was only after some time that Mr Clowry was able to form a full impression of the father's personality. So that is a further reason why I am not disposed to adjourn the application and grant the leave that you have requested."
The application in Stringer v Stringer
"These proceedings have been dragging on for five years. These children's lives have been emotionally in turmoil as a result of Mr. Stringer's applications to the court. That they are not maladjusted is really a tribute to the mother and her partner Mr. Piper, because one knows that the sort of behaviour that Mr. Stringer has exhibited cannot be other than detrimental to these children. As I say, it is fortunate that they have the mother's strength of character to protect them from the worst of his excesses.
In those circumstances, I propose to make the order."
"It will bear the attachment that any such application should come before me if practicable. I am well aware that, as a judge, one cannot look to the future but for entirely unforeseen reasons I may not be here. I also take the view that that part of the order will recite that really no consideration should be given to it unless there is some form of report from a psychiatrist or a psychologist indicating some progress so far as Mr. Stringer is concerned so that Mr. Stringer will realise when he gets the order that that is what the court has in mind and also so that any other judge who might be seized of this matter might realise that that was in the court's mind when the order was made." (emphasis supplied)
"The father shall not make any further applications to the court regarding the residence of the children or his contact with the children without leave of the court until the children have reached 16 years of age. Such application will require a psychological or psychiatric report indicating that the author has had sight of the guardian's report dated 17 September 2004 and the report of Dr Conn dated 1 August 2004 and that father has engaged in treatment. The application to be heard by His Honour Judge Mitchell if practicable.
Leave to father to disclose the reports of the guardian dated 17 September 2004 and Dr Conn dated 1 August 2004 to his general practitioner and any treating psychiatrist or psychologist." (emphasis supplied)
The submissions of the advocate to the court
On disposing of any application for an order under this Act, the court may (whether or not it makes any other order in response to the application) order that no application for an order under this Act of any specified kind may be made with respect to the child concerned by any person named in the order without leave of the court.
(It is to be noted that the sub-section uses the word "leave". Following the introduction of the CPR the word "leave" has been superseded by the word "permission". We will use the word "permission" in this judgment. We do not think there is any difference in meaning or effect between the two words.)
One of the difficulties with making such an order, however, is that unless the situation as to the precise contact arrangements is spelled out, there may indeed be a necessity to come back to the court. But the object of making such an order is to prevent unnecessary and disruptive applications to the court. It is, therefore, most undesirable in those circumstances that applications for leave pursuant to such a provision, particularly in a case such as this, are made ex parte. It would be much more satisfactory if the applications for leave had to be heard inter partes so that it could be ascertained whether there was a genuine need to invoke the court's assistance in the problem that had arisen".
It seems to me undesirable to over-complicate the judicial task where a bar has been imposed and where the person restrained seeks leave to move. In that instance, I would favour the simplest of tests. Does this application demonstrate that there is any need for renewed judicial investigation? If yes, then leave should be granted. All that the courts commits itself to thereby is to survey the material presented in the form of statements supporting the form C1 application and probably the contents of a report from the court welfare office. The discretion that a court holds under the Children Act in relation to the conduct of any application relating to a child is so wide as to be almost unfettered. In appropriate cases the application may be determined at a directions appointment if the content of the statements and the court welfare officer's report indicate that the application should go no further. In other words, the grant of leave to apply is not the grant of a right to a full trial."
(9) A restriction may be imposed with or without limitation of time.
(10) The degree of restriction should be proportionate to the harm it is intended to avoid. Therefore the court imposing the restriction should carefully consider the extent of the restriction to be imposed and specify, where appropriate, the type of application to be restrained and the duration of the order.
…. it is a partial restriction in that it does not allow him the right to an immediate inter partes hearing. It thereby protects the other parties and the child from being drawn into the proposed proceedings unless or until a court has ruled that the application should be allowed to proceed. On an application for leave, the applicant must persuade the judge that he has an arguable case with some chance of success. That is not a formidable hurdle to surmount. If the application is hopeless and refused the other parties and the child will have been protected from unnecessary involvement in the proposed proceedings and unwarranted investigations into the present circumstances of the child."
"the prohibition needs, above all, to be compatible with the primary drive and objective of the court to restore the relationship. Compatibility is, in my judgment, best achieved by limiting the section 91(14) prohibition to any application for direct contact and by setting the moratorium at a 2-year duration to enable the bespoke solution of video contact to be given a fair chance to shift attitudes and inhibitions."
"….. the court will need to be satisfied first, that the facts go beyond the commonly encountered need for a time to settle to a regime ordered by the court and the all too common situation where there is animosity between the adults in dispute or between the local authority and the family and secondly, that there is a serious risk that, without the imposition of the restriction, the child or the primary carers will be subject to unacceptable strain."
"Manifestly, if circumstances change – and to some extent there have been fresh developments which I will mention briefly in a moment – it is open to Mr. RF at any stage to go to the court and to demonstrate that he has a case which requires judicial investigation."
The advocate to the court's argument on the power to attach conditions to a section 91(14) order
(7) A section 8 order may –
(a) contain directions about how it is to be carried into effect;
(b) impose conditions which must be complied with by any person –
(i) in whose favour the order is made;
(ii) who is a parent of the child concerned;
(iii) who is not a parent of his but who has parental responsibility for him; or
(iv) with whom the child is living, and to whom the conditions are expressed to apply;
(c) be made to have effect for a specified period, or contain provisions which are to have effect for a specified period;
(d) make such incidental, supplemental or consequential provision as the court thinks fit.
The argument of the advocate to the court in relation to procedure
(1) Where the leave of the court is required to bring any proceedings to which this part applies, the person seeking leave shall file -
(a) a written request for leave inform C2 setting out the reasons of the application; and
(b) a draft of the application (being the documents referred to in rule 4.4(1A) for the making of which leave is sought together with sufficient copies for one to be served on each respondent.
(2) On considering a request for leave filed under paragraph (1), the court shall –
(a) grant the request, whereupon the proper officer shall inform the person making the request of the decision, or
(b) direct that a date be fixed for the hearing of the request, whereupon the proper officer shall fix such date and give such notice as the court directs to the person making the request and any local authority that is preparing, or has prepared, a report under section 14A(8) or (9) and such other person as the court requires to be notified, of the date so fixed.
The advocate of the court's submissions in relation to the individual applications
The argument for Mrs. Kemsley in this court
(1) Is it permissible to attach conditions to a section 91(14) order?
(2) What is the correct approach both for the court and for a person subject to a section 91(14) order when an application for permission to apply is made?
(3) In what circumstances is it appropriate to make a section 91(14) order expressed to be without limit of time or to last until the 16th birthday of a relevant child;
(4) Is it necessary for notice to be given to the other party
(a) when an application for an order under section 91(14) is to be made?
(b) when an application for permission to apply is being made?
(5) How do these considerations apply to the applications currently before this court?
(1) The attachment of conditions
(2) The correct approach to an application for permission to apply
The circumstances in which a section 91(14) order should be made either without restriction of time or until a relevant child attains the age of 16
Notice to the other party
The application of these principles to the applications before the court