England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM TAUNTON COUNTY COURT
HIS HONOUR JUDGE BROMILOW
(LOWER COURT No.: HD05P00946)

		Royal Courts of Justice Strand, London, WC2A 2LL
		19th October 2007

Lord Justice Wilson:

1. A father applies in person for permission to appeal against orders made by His Honour Judge Bromilow in the Taunton County Court dated 8 March 2007. In fact the hearing took place on 8 March 2007 and the judge reserved his judgment. Later, on I think 14 March 2007, it was handed down by despatch through the post to the parties by their solicitors.
2. In that the father filed his Appellant's Notice on 26 July 2007, it will be seen that, apart from needing permission to appeal, he would need a substantial extension of time for so doing. When I say that a substantial part of the judge's order was to permit the mother of the two children of the family to take them to live in France and that, in the interim between March and July 2007, she did take them to live in France, it may be seen how unfortunate it is that the Appellant's Notice has been filed so late. It is clear from the mass of documentation filed for my use this afternoon, including a substantial file sent to this court at the father's request by the Chief Clerk of the Taunton County Court, that, very promptly after the orders were made, the father was approaching the county court with a view to appealing against them. For various reasons, however, his attempts to appeal got bogged down. No one, whether officers of the county court or the mother's solicitors, to whom he had also sent a copy of his proposed appellant's notice, informed him that such a notice had to be filed here in the Civil Appeals Office.
3. Eventually it was only on 26 July 2007 that he approached the right court, namely this court, with the right documentation. In the light of the implementation by the mother of the permission given to her to take the children to live in France, there is obviously a particular difficulty about attributing to this proposed appeal any real hope that it would result in the return of the children to England, even were it in principle to have sufficient merit to attract permission to appeal. Before the judge the father was represented by counsel and solicitors at public expense; and I presume that, although they may have been unable to support his wish to appeal to this court with the benefit of further public funding, they, or at least counsel who alone was present at the hearing with him on 8 March, would have advised him about the need for a swift appeal and for a collateral application for an interim stay of execution pending its determination; but whether, if there had been a swift appeal and an application for a stay of execution so as to prevent the mother from removing the children to France until the appeal had been heard, the application would have succeeded, is an open question.
4. The first names of the children each begin with the same letter. Therefore it seems better to say that the two children are a boy, to whom I will refer as B, who was born 28 September 1995 and who is thus now aged twelve, and a girl, to whom I will refer as G, who was born on 7 September 1997 and who is thus now aged ten.
5. Before the judge were two applications, first the father's application for an order for contact with the children and second the mother's application for leave to remove them permanently to live in France. I have already indicated that the mother's application was successful. In effect, however, the father's application was unsuccessful. Of course it would have been possible in principle to devise contact with him even were the children to be living in France rather than in England and Wales. The order for contact made by the judge, however, was only that there should be indirect contact between the children and the father, through CAFCASS in Taunton, in the form of reports to be sent by the mother to the father every two months about their activities and of photographs of them to be sent by her to him every six months, with the facility for him to send them written communications and presents whenever he wished to do so.
6. At the hearing on 8 March, at which she was also represented by counsel, the mother was permitted not to disclose her proposed address in France, nor even its broad area, to the father. He remains unaware of her address and of its area. I expect that the refusal of any order for direct contact with the children hurt the father as much as, and probably more than, the decision to allow them to relocate to France. One can readily understand the feelings of a father whose two children have disappeared to an unknown destination in France on the basis, in effect, of no significant continuing relationship with him. Irrespective of whether his appeal has a real prospect of success, I suspect that, were I in his shoes in having to confront the effective loss of two greatly loved children, I would be here today, as he is, pleading with the Court of Appeal for relief.
7. The father is of Asian-British ethnicity and tomorrow attains the age of 50. The mother is of white-British ethnicity and is aged 43. They were married in 1994 and lived in addresses in Yorkshire. Prior to his recent bankruptcy, the father was a successful businessman. The parties separated in 2001 but until February 2006 the mother remained living with the children in Yorkshire, not far from the residence of the father. During that time he continued to have fairly regular contact with the children.
8. Before the judge there was -- on paper -- a vast issue between the parents as to how the father had treated the mother from the time of the marriage onwards, including and perhaps in particular during the four years following separation. In her written statement the mother recited a catalogue of very serious physical, emotional, and indeed sexual, abuse perpetrated by the father upon her on a regular basis during and after the marriage, to much of which, so she said, the children had been exposed. The father totally denied the allegations and pointed to the entire lack of corroborative evidence to support what the mother was saying. What at any rate was clear was that in the autumn 2005 the mother had told the father that she proposed to move with the children to live in France. It seems that by that stage she had planned to marry a Mr Cross but at that stage she did not divulge to the father that her plan to move with the children to France included a future husband. To the extent that there had been serious tensions between the parents prior thereto (and the father admits arguments between them while entirely denying violence), the news of a proposed move to France seems to have exacerbated the differences between the parents. There was, again, on paper an issue before the judge as to whether at that time, as the mother alleged, the father had uttered dreadful threats to her in earshot of the children.
9. On 2 December 2005 the father applied for an order for contact with the children and for a prohibited steps order against their removal from their present home. No doubt the mother, with Mr Cross, took legal advice. I suspect that they learnt that, were they to continue to aspire to move with the children to live in France, the mother would have to apply for leave to do so; that leave, even if it could be obtained, would be unlikely to be obtained swiftly; but that, short of his applying, however unrealistically, for an order for residence of the children to be granted to him, the father could do little to prevent their interim removal to another part of England and Wales. Such may well, I think, have been the background to the fact that in February 2006, following the mother's marriage to Mr Cross in January 2006 and its disclosure to the father, they moved with the children to an address near Barnstaple and made clear that this was intended as an interim move pending determination of a proposed application by the mother, ultimately issued in May 2006, for leave to remove the children on a permanent basis to live in France.
10. Following the move to Devon the father has never seen the children again. Of course there were logistical difficulties in the way of contact, particularly in that, by then, the father apparently had no funds and suffered -- still suffers --from a back problem which made travel to Devon, or even to some midway point between Devon and Yorkshire, difficult. Nevertheless it was soon made clear on behalf of the mother that the children had become totally opposed to continuing to have a relationship with him. The father's riposte was, of course, that the mother had alienated them from him and that, now that she was embarking upon a new family life with Mr Cross, her agenda was to exclude the father from the lives of the children, as well as from her life with Mr Cross, as fully and firmly as possible.
11. Thus it was that, in the pending applications by the father for contact and by the mother for leave to remove the children to France, which were ultimately directed to be heard together in Taunton, directions were made for CAFCASS reports to be prepared. So Mrs Walton, an officer based at the Taunton office, wrote two reports dated 13 June 2006 and 8 September 2006. Before writing them Mrs Walton saw the mother and, separately, the children on at least two occasions. She never, however, saw the father prior to meeting him in the precincts of the court on 8 March 2007. She had offered the father various appointments in her office in Taunton but the father had consistently said that he was unable to travel to Taunton and had invited her to travel to see him in Huddersfield or Leeds. She had not been prepared to do so; CAFCASS policy would allow travel of that distance only in exceptional circumstances and it seems that Mrs Walton took the view that, just as he proved able to attend both the hearing in Taunton on 8 March 2007 and an earlier hearing for directions in Exeter on 25 January 2007, it should have been possible for the father to make the visit to her. It is not clear from the terms of his judgment that the judge considered Mrs Walton's views in that regard to have been reasonable. At all events it became a substantial complaint on behalf of the father to the judge that Mrs Walton had filed her reports and made her recommendation, which was in support both of the mother's application for permission to relocate to France and of her opposition to any order for direct contact between the father and the children, before she had managed to meet the father. I understand the father's grievance in that respect. In the course of his extremely clear, articulate and intelligent submissions to me this afternoon, spanning 35 minutes, he has, in the course of making a number of relevant points, told me that the short encounter with Mrs Walton in the precincts of the court, which lasted a maximum of 20 minutes and was subject to various interruptions, proved a wholly inadequate opportunity, and in the circumstances an opportunity in any event which came far too late, for him to communicate to her his position in relation to the applications. I should also say that I was sorry to note in his written presentations an allegation of racial discrimination on the part of Mrs Walton towards him. When I upbraided him about that, and in particular about the complete absence of any evidential foundation for that assertion, he was very quick to withdraw it and to apologise for having made it.
12. Mrs Walton reported to the judge that the children were "absolutely adamant" that they did not wish to see the father ever again. When she sought to explore with them why they were so hostile to a further relationship with him, they cited alleged threats on the part of the father to kill the mother, their exposure to alleged violent scenes between their parents, their alleged feelings of fear and intimidation engendered in them by the father, and, in particular, an alleged fear on their part that he might kidnap them.
13. In her written statement in support of her application and in opposition to the father's application the mother not only recited, albeit in general terms, the history of alleged violence on the part of the father towards her but also, of course, explained the nature of the proposal of herself and Mr Cross to move to France. She said that she and Mr Cross proposed to set up a country holiday business, including holiday accommodation, caravans, camping, riding, pony-trekking, etc. Attached to her statement was a Business Plan in that regard. At least some independent support for her allegations against the father might be said to have been derived from a report by her GP in Devon, which she also attached and in which he stated that she had a major depressive illness and disabling panic attacks in respect of which she was being prescribed medication and was undergoing a course of counselling with a clinical psychologist. In fairness to the father, however, I should state that the judge did not refer to the medical report in the course of his judgment. The father has also, this afternoon, stressed that it would have been much more significant if any doctor in Yorkshire treating the mother during the eleven years between 1994 and 2005 had written any report corroborative of the profoundly serious allegations which she had mounted against him. In answer to the statement of the mother the father filed a written statement; he also filed numerous letters from friends and colleagues who attested to his apparent devotion to the children.
14. In his judgment the judge explained that the hearing on 8 March had begun shortly before midday and, with only 40 minutes taken for lunch, had continued until 5.15 pm. Even on that basis it can be seen that the entire hearing occupied only four and a half hours. Today, however, the father tells me that it is his clear recollection that the period from midday to 5.15 pm was interrupted not only by the need to take lunch but also by the judge's hearing of another case, and thus that the hearing was even shorter than the judge in judgment has suggested. Even taking the judge's version of the length of the hearing, as perhaps I should, there was on any degree a very short enquiry. Certainly, had I been the father's advocate in court today, I would have submitted to it that four and a half hours of time in court is hardly a lengthy period in which a court should take a decision that a relationship between a father and his children should be accepted, broadly, to be at an end and that, apart from letterbox contact, the children should disappear from his view until that perhaps unlikely future moment at which they might wish again to make contact. In short I accept the profoundly serious nature of the judge's determinations; and, frankly, I am exercised by the shortness of the hearing which led to them.
15. One of the reasons why the hearing was so short was an agreement, reached between counsel, that, although the judge would need to make a finding as to whether the mother was genuinely fearful of the father, there was no need for him to adjudicate upon the substantial issues between them as to whether there had in the past been actual physical and sexual violence and threats of violence, to which (as was alleged) the children had been exposed. There is, of course, authority in this court that generally there is no escape from the need for a court to adjudicate upon issues relating to domestic violence in circumstances in which children are ostensibly refusing to have contact with the non-residential parent by reference to their alleged experience of, or exposure to, such violence. I can assume only that counsel took the view that the evidence of Mrs Walton as to the profound strength of the children's opposition to a continued relationship with the father rendered irrelevant the reasons why they had developed that degree of opposition. It seems to me to be very difficult for the father -- notwithstanding that he tells me this afternoon that his counsel had no authority to present to the judge an agreement that there was no need for these issues to be determined -- to complain that, in such circumstances, the judge failed to adjudicate upon the issues; and a considerable part of his oral argument today was devoted to a prima facie attractive argument that there was in effect none of the sort of corroborative evidence of violence referable to the years in Yorkshire which one would expect, had the allegations been true.
16. The agreement between counsel, as presented to the judge and as acted upon by him, does mean, however, that, when I searched the judge's judgment for explanation as to why early in 2006 the attitude of the children, who had been having contact with the father, changed so fast and firmly into unqualified opposition, I found the explanation to be thin. No doubt, had the judge, at an extended hearing of the sort which is generally required to be conducted, heard evidence on the disputed issues and had chosen to accept the evidence of the mother, that gap would have been filled.
17. Nevertheless, having heard the mother give oral evidence, the judge felt able to find that she was "a truthful and plainly honest person" and that "her fears are genuine and sufficiently strong to encourage her to seek a life with her children and her husband that is beyond the reach of [the father]".
18. There is no doubt that, in relation to the mother's application for leave to remove the children to France, the judge directed himself at length in accordance with the leading case of Payne v Payne [2001] Fam 473. It appears that, as the judge found, both the mother and Mr Cross had significant capital; and that their proposals to purchase and manage a country holiday centre in France, and there to accommodate, educate and otherwise care for the children, were realistic. In my view the father would have no chance of persuading this court to set those findings aside. One sentence in the judge's reasoning has caught my eye, namely his finding that the mother "is not motivated by desire to eliminate [the father] from the children's lives". It seems to me evident, as the judge had already in effect found, that the purpose behind the proposed move to live in France was to place the new family unit not only in a new environment but also in an environment to which the allegedly malign shadow of the father could not extend. So was there not, in the mother's proposals, a motivation to eliminate the father from the children's lives? It seems to me that it would have been more consistent with the evidence, and with his other findings, for the judge not to have made the comment to which I have referred. It would not be fatal to the permissibility of a proposed relocation abroad that such was part of the applicant's motivation so long as it was established that the applicant and the children were in real fear of the other parent and deeply and reasonably yearned for escape abroad from his sphere of influence. Such would not be the "selfish" desire to exclude the father from the lives of the children which, in Payne, at [40] (a), Thorpe LJ held should lead to refusal of an application for relocation.
19. I have said enough to indicate that I accept that the judge was confronted with a profoundly important issue, particularly in relation to the mother's claim for cessation of all direct contact between the father and the children. Nevertheless, in the light in particular of the evidence given to the judge by Mrs Walton, to the effect that she had never in her twelve years experience come across children as keen to move forward in their lives as were these two children and that in her professional opinion the hostile views expressed by them about their father were genuine, the judge was clearly entitled - in the sense that this court would be highly unlikely to set his judgment aside as being outside the boundaries of his discretion -- to make the order which he did.
20. In the course of his submissions this afternoon the father has reminded me that, even in relation to children of this age expressing the degree of opposition to contact which these children were apparently expressing, the courts would often reach for an expert psychological, or other, assessment of why the children were so entrenched against contact and what nevertheless could perhaps be done to preserve the important link between them and the father. I know not whether that was a course suggested at any stage to the judge; I see no reference to it in the papers. It seems to me, however, that this court could not say that it was essential that such a course of action should have been taken before the judge decided not only that the children should be allowed to move to France -- that would seem to me to have been an application overwhelmingly likely to be granted -- but also that there should, other than in relation to indirect contact, be no contact or attempt at direct contact in the future until further order.
21. The father must have worked for weeks to produce the mass of typed written arguments filed for today's application. I have read them all with great care. I have listened to, and my heart has gone out to, the father this afternoon as, occasionally reducing himself to tears from which he quickly recovered, he pleaded with the court to intervene in a situation in which he faces the apparently permanent loss of his children. As he and I discussed the merits of his case and the difficulties confronting it, about which he was quite realistic, particularly in relation to the fact that the children have now moved to France, I discovered the fact that the two children have in Yorkshire four uncles, one aunt, nine first cousins and a grandmother, with all of whom they had, until January 2006, a very close relationship. The effect of this order is not that these children simply lose a father; it is that they lose fifteen other close members of their family on their father's side. I am worried that that point never seems to have seen the light of day in this case. But if it was never put properly to the judge, could this court say that he was at fault in not addressing it? And again in the last analysis one returns to the bedrock problem of the children's complete and utter opposition to contact, whatever may have been the reasons why they had developed it.
22. I am profoundly sympathetic to the father's situation. I do not feel entirely comfortable about the way in which this case was presented to the judge or disposed of by the judge; but, guided as I must be by my intellect and not by my emotion, I must say that there is no reasonable prospect of success for the father's proposed appeal and I hereby refuse permission for it to proceed.

Order: Application refused.