England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LEICESTER COUNTY COURT
(HIS HONOUR JUDGE O'RORKE)

		Royal Courts of Justice Strand, London, WC2A 2LL
		12th February 2008

Lord Justice Ward:

1. This is an application brought by the mother of three children for permission to appeal an order made by HHJ O'Rorke on 16 April of last year, when the judge ordered that the younger two of the three children of this family, a girl whom I will call C -- in order to preserve their anonymity, which I think is in their interest -- C then 15 but now 16 years old and her brother K, now 6. The judge ordered that the children should reside with each of their parents for equal periods: in effect, week in, week out, with mother and then with father and so on through the school term and for half the school holidays.
2. I observe that the order as drawn does not fully reflect the judge's decision. It reads:

"Upon hearing Counsel for the Respondent father and the Applicant mother having failed to attend, and consideration of the following matters:"

There is then a blank space.

3. At the hearing on 16 April the judge in fact dictated the order he wished to make and the matters that he had taken into consideration were expressed to be the following:

"i) This matter was adjourned part heard from… 20 October 2006, on which date the court heard the evidence of Cafcass Officer, Mr Cain, of the Applicant mother and of the Respondent father (subject to some outstanding cross examination);

ii) The signed statement of the Applicant mother dated 12 February 2007 filed with the Court in which she indicated that she felt unable to engage further with the Court, confirmed to the Respondent's Solicitor by telephone this morning;

iii) The further evidence of the Respondent father in response to the Applicant mother's said statement;"

So those were the matters the judge wished to emphasise for the record when the order was drawn.

4. As is apparent, the mother was not present on that occasion. She had written to the court on 12 April expressing, in essence, that she was emotionally and financially exhausted by these proceedings and by the claims for ancillary relief which were being heard by the district judge at about the same time. She explained her position and her objections to shared residence in respect of the little boy and she also complained about the fact that the hearing dates had been changed to her disadvantage. She stated in that letter:

"It has been brought to my attention that the court date was changed from the 13th April without reference to my solicitors and this was done solely to accommodate Mr Butler [he was counsel for the father] who I understand is based in Nottingham. One of the lesser reasons for my non attendance is that I am legally bound to give my employer six weeks' notice for time of(f) work.

I am completely overwhelmed and distraught by the whole proceedings despite the fact that Mr Butler will at the earliest opportunity point out that I am a professional woman. That does not make it any less daunting emotionally and financially. I am a layperson in the eyes of the law.

In the circumstances I do not feel able to further engage in this hearing both emotionally and financially and I still have outstanding legal fees to take into account on the ancillary relief hearings."

5. One of the mother's complaints in her application to us today is that to proceed in her absence was unfair. She was, as she wrote, a layperson and, not understanding that she could seek an adjournment, she simply let the matter pass. Her solicitors attended that day, simply to go off the record, and they did not seek, and in fairness to them I assume they did not have instructions to seek, an adjournment, which was the way in which the "mother" as I shall call her could have protected her position.
6. The matter has been before me on a previous occasion, and when I adjourned this application to be heard on notice I rather hoped that I would receive some explanation from the father's solicitors as to what happened and why it happened; but they too seemed to have disappeared off the record and the father also appears in person before us.
7. I am sorry for this hard-working professional lady. She is a consultant at a local hospital and I readily understand that her commitments to the National Health Service prevent her from taking time off as and when she wants it. This was very short notice indeed of an adjournment but, sympathetic as I am, I cannot find in the absence of an application to adjourn that the judge was so egregiously lacking in a sense of fairness in failing himself to adjourn the matter that the appeal could be allowed on that ground.
8. Let me therefore describe a little of this fraught allegation, so passionately and resolutely conducted by these intelligent parties. The husband, or "the father" as I shall call him, is also a medical man. He is a general practitioner but sadly, like so many intelligent people, they often allow their intelligence to get in the way of their reason and they fail not infrequently, in my experience, to behave reasonably and sensibly with regard to their children.
9. The proceedings began in 2004. At that time the parties were living together under the same roof. Mr Cain, the Cafcass Officer recommended in his first report of 24 September 2004 that the children's best interest was for a shared residence order to be made and on 27 October the district judge did in fact order that the children should live with both parents during such periods as may be agreed. In time, and I think it was about January 2005, the father moved out of the matrimonial home; tensions were running high. There is in the papers a record of police involvement as the police attended on a number of occasions when allegations of domestic violence were made by the mother against the father. Sadly, one of these incidents spilled over into an unseemly attack by the eldest child, who is soon to be 18. The girl slapped her mother's face and was appallingly rude to her by all accounts. It has led to the estrangement of mother and daughter, a matter which is most regrettable, and I record the fact that the father told us today that all this child is waiting for is mother to hold out an olive branch and she will readily endeavour to resume contact with her mother and restore good relations between them. I do hope the mother will accept the invitation to write to this child, for she is still a child, and seek some rapprochement. Valentine's Day seems an appropriate time to make that approach.
10. This appeal is bedevilled by those allegations of domestic violence. The judge heard evidence about some of it but he expressed the view, in reasons he has given for his order, that the main allegation which led to the father being charged in criminal courts with common assault was not that serious and was not in any sense a part of a pattern of domestic violence. In fact the father has been acquitted but nonetheless the mother, passionately and tearfully, tells us that her son is still deeply affected by his witnessing assaults upon her and she complains that the judge made no proper attempt to investigate those matters and come to a reasoned and full conclusion about them. Again, I cannot accept her complaint. The judge was entitled in my judgment to view the matter as isolated and as not deeply affecting the children and, on the evidence, he was probably fully entitled to reach that conclusion.
11. The bad blood that was being spilt in the early part of 2005 resulted in contact between father and K ceasing from about June to November 2005. In November contact was ordered. It was to be contact on alternate weekends from 10:00 on Saturday to 6:00 on Sunday, the child then living with her mother. Two days were set aside for the final hearing of these disputes. On the first day, 19 October 2006, HHJ O'Rourke heard evidence from Mr Cain. He was called to give evidence in support of his second report in which he concluded in paragraph 72:

"In my view [K] should be able to stay at his father's for more than one night a fortnight and a possible compromise could be if [K] was to have staying contact with his father each Wednesday from nursery to Thursday AM nursery and alternate weekends Friday from nursery until nursery on Monday morning, with the school holidays shared equally".

"73. This pattern could continue once [K] starts school, and would in my view work equally well within the provisions of a shared Residence Order or a Residence Order to mother and a Contact Order to the father".

12. By the time the case got to court the mother had made moves to compromise the dispute. She indicated her willingness to extend contact from after school on Friday until the beginning of school on Monday on the alternate weekends as had been recommended and she was willing to allow one week-day, not the two suggested by Mr Cain. Mr Cain, in giving evidence, was asked about shared care and a joint residence. He pointed out that the joint residence order that had first been made was never really given the opportunity to work because of the breakdown in relations in February 2005. He was asked at page 11 of the transcript about whether it had worked and he said this :

"[In September of '04] I had suggested a shared care arrangement and clearly that hadn't worked because otherwise the matter wouldn't have come back into the court arena and I didn't want to apportion blame as to why it hadn't worked, I simply accepted –

Q: Just wanted something that would work.

A: Yes and the proposal I put forward --

Q: Paragraph 73"

And that is shown to him.

13. He also said, at page 14 of this transcript:

"Q Is there any reason why equal care of [K], that is to say his having the same amount of time with each parent as his sister [C], should not work?

A Well, it didn't work.

Q: Well, that is because mother stopped it?

A: That is the position I had started from.

Q: But if that were the decision of the court and if the mother complied with the decision of the court, is there any reason why it should not work?

A: I don't know, only time would tell".

14. Those were answers given to the father's counsel and he repeated this important evidence:

"I am glad that I am standing here today and that the contact is carried on throughout the year and it is my view that that contact does need to be increased and I don't really think it matters. I can see why it would matter to father and mother whether that was under the terms of a residence order or a contact order. In my view the fact that contact was happening and happening regularly is what [K] needs".

And he repeated again:

"Yes, in my view, from [K]'s point of view, it doesn't matter what it was called."

So that was his evidence to the judge.

15. The case on the second day, the 20^th, was protracted and inconclusive. The judge appears to have been irritated by the extent of the cross-examination particularly by mother's counsel, of matters that he did not think of particular relevance and so at the end of that day the judge simply adjourned the matter to 26 March and he made an order which was to this effect. He ordered that K should reside with each of his parents on the following four-weekly cycle. After school on Thursday until return to school on Friday and then after school on Thursday until return to school on Monday morning. So that was the regime he imposed.
16. The case was adjourned from March to 13 April. As I have indicated it was then adjourned again to 16 April. On 16 April the father gave evidence and he was asked:

"How has contact with C and K gone since the last hearing in October?

A: Extremely well sir. I have been very, very pleased. I am grateful for the [whatever he said was inaudible]. It has gone very well.

Q: It is suggested by their mother that the joint residence order is not working for the children?

A: That is an unfortunate remark. It has worked very well for the children. Yes it has been no problem at all".

17. Having heard that very short evidence from the father, which takes no more than a page of the transcript, the judge indicated this:

"I have looked very carefully at this statement and I do remember both what was said on the last hearing and the general disposition of both parents and I do not find it necessary to go into a lot of matters she sets out in the statement here. I am quite satisfied I have got to the bottom of this with the assistance of Mr Cain and the Cafcass Officer and I am amenable to making an order which you suggest."

And he then made the order which I have recited.

18. He was asked by Mr Butler, counsel for the father, whether he intended to give a judgment and the judge responded that there was no need; that if the matter goes further the Court of Appeal would invite him to give reasons for his judgment. He felt that to give judgment and make detailed findings was unnecessary and so he left the matter there.
19. Mother duly sought permission to appeal. The Court of Appeal office requested the judge give his reasons and he did so ten weeks later, or thereabouts, on 29 June 2007. There are passages in those reasons which the mother now challenges. He said in paragraph 10 that Mr Cain gave oral evidence and was questioned by the parties and recommended that:

"Contact between [K] and his father be increased to a shared care arrangement whereby [K] would stay with his father at the same time for the same periods as his sister [C] ie alternate weeks with each parent."

20. Now I have read the transcript of 19 October carefully and I do not see Mr Cain saying that his position was more contact for the father and I do not mind whether you call it contact or shared residence. It is what actually happens that is important.
21. So the judge was, I am afraid, guilty of a false impression of the events of 19 October but I exonerate him because he would not have had a transcript and would have had to refresh his memory of events that were many months in the past. The judge also said in paragraph 13 of those reasons that:

"In the six months that had elapsed from the making of that order and the resuming of [inaudible]on 16 April at Mansfield these arrangements were reported as working well for [K] The applicant father was recalled and confirmed that the arrangements had worked well but asked they be extended to coincide with those in place for [C]. Mr Cain attended and confirmed that his recommendation for shared care remained the same."

22. Now again I regret that Homer has nodded. Mr Cain did not attend on 16 April. There was no other report of contact working well than the evidence of the father and again the judge has sadly, and I am sure uncharacteristically, made a mistake. The mother of course relies upon that, but she puts at the centre of her argument the fact that the father was expressing satisfaction with the arrangements that were in place and that were working well, and she argues as a result that there was therefore no need to further increase the amount of time the boy should spend with his father to a full week on the same basis as operated for the daughter.
23. That is what the judge did because he concluded in paragraph 16 that:

"Notwithstanding the difficulties in communication between the parties and the reservations expressed by the mother, K was flourishing, and that his welfare was best served by a defined share care arrangement co-extensive with that enjoyed by C. The difficulties between the parents would persist whatever order is made and a final order was in his interests at that stage."

24. As I say, I am sympathetic to the mother, who did not have an opportunity fully to present her case before the judge. I am concerned that the judge was in error in his recollection of some aspects of Mr Cain's evidence but at the heart of this appeal has to be an attack on the conclusion that the boy's welfare was best served by his moving between the homes in the same way as C was moving between the homes. Was it better for the boy to have this long weekend with his father as well as a night in between, moving therefore between the homes twice a week, or was it better that he spend a whole week in one home and the whole of the next week in the other home? That is a finally balanced decision. The judge was perfectly entitled, in my judgment, to conclude that having the same regime for brother and sister had the advantage that they would be together all of the time together and that in that way the boy would see as much of his sisters as was possible, and would see an equal amount of each parent, which was equally desirable especially in the circumstances where that was the regime provided for the elder two girls even though the oldest was not taking up her opportunity to see her mother.
25. The question, as I tried to explain to the mother when she began, is whether the judge was plainly wrong in coming to that conclusion. In my judgment, despite the errors of recollection, it was well within the generous ambit to make an order of that kind and although I would, for my part, grant the mother permission to appeal I would nonetheless dismiss that appeal.

Lord Justice Wall: I agree.

Order: Application granted; appeal dismissed.

Post-Judgment Discussion

LORD JUSTICE WARD: So I am sorry Dr Ngwu, but please don't exaggerate the importance of this and enjoy the boy's company for the week. Please try and effect a reconciliation with your eldest daughter. I know how hurtful, and especially in the light of your saying you would not look your mother in the eye and disagree with her, and that shows a good and proper respect of daughter to mother, and I know that your daughter's treatment of you was appalling, but sometimes parents have to be big enough to take the first step. Please write to her and see if she will come back.

DR NGWU: Alright.

LORD JUSTICE WARD: It will make a huge difference to the family if you can be reconciled. So make a special attempt, saying you are writing because of what father said, and its up to father, this is for you now. You are the one who told us that all the girl is waiting for is an olive branch and if she gets a nice letter from her mother on Valentine's Day saying "I love you, I'd like to see you", it is your duty, your solemn duty as a father, who stood by when this girl slapped her mother's face and called her a lesbian and you did nothing. You weakly stood by and did nothing to preserve mother's honour in the eyes of her daughter, as every demand of your culture required you to do. You weakly took advantage of the position and now it is your solemn duty, in the light of what you told us, to make that girl respond to her mother's letter, and to effect a reconciliation between mother and daughter, because in that way the happiness of your whole family will be increased. Do you understand?

DR NGWU: I, I do, my Lord. I….

LORD JUSTICE WARD: Well then go about and do it. Thank you.