England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM PORTSMOUTH COUNTY COURT
(HIS HONOUR JUDGE SHAWCROSS)

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

Lord Justice Wall:

1. This is an application by the mother of the children concerned in the case for permission to appeal   against an order made by HHJ Shawcross sitting in the Portsmouth County Court on 30 October 2007.
2. The judge dismissed the mother's application to vary the previous order made in relation to the two children of the family, a boy, now aged 9 and a girl, now aged 6. The previous order which she sought to vary was for shared residence with the children essentially making their home during term-time with their father, although spending alternate weekends with their mother, and one day in the intervening weekend with their mother as well as sharing the holidays with her. The variation sought was that the order should be converted into a sole residence order in her favour and that the arrangement should effectively be reversed. As I say, the judge refused that application although he thought it warranted, and he made no order as to costs.
3. When the matter came to me on paper on 21 January I took the view that although the mother would face an uphill struggle in this court, it might well be arguable that the judge's findings of fact should have led him to a different conclusion and that his conduct, of what has been described rightly as the balancing exercise under the Children Act, had been flawed.
4. I say at once that like the judge I find this a difficult case. I would undoubtedly grant permission to appeal. I also make no secret of the fact that had I been the judge at first instance I might well have decided it differently. However, I remind myself that is not the test. This is a court of review. We are here to review the exercise of the judge's discretion, and if the judge has reached a conclusion which was properly within the exercise of that discretion this court should not, and indeed cannot, interfere.
5. The case has a somewhat complex history which it is necessary briefly to summarise from the judge's judgment. The parties married after the birth of the children but the marriage did not last very long. The mother left home. There was an incident which resulted in the children returning to live or living with their father, and an order made by the court on 2 September 2004 that the children would remain, effectively, with him. They have of course done so ever since.
6. However, shortly after that order was made the first set of allegations arose against the father and he was accused of an unhealthy interest in young underage teenage girls. Indeed he was charged with a number of offences, something in the order of 20, ranging from what would in the old days be called indecent assault, that is tapping a girl on her bottom, and other offences of effectively soliciting for sexual purposes, plus the discovery on his computer of a large amount of pornographic material including material relating to underage teenage children, that is girls. The result of these allegations against the father unsurprisingly provoked the mother into her first attempt to reverse the previous order in relation to the children's care.
7. The father was charged but the charges were not pursued, and when the matter came before s fsmily judge, in August 2005, the position was that the criminal proceedings were still underway and had not been abandoned. The judge decided not to interfere with the status quo. In fact, in December 2005 the police decided to discontinue the criminal proceedings and they were indeed discontinued.
8. We have an amount of material from that period and it is plain that when interviewed at that time one of the factors put forward by the father for his innocence was the risk he ran of losing the care of the children if he behaved again in this way. It was also argued by him, and not accepted subsequently by the judge, that much of the material had appeared on his computer by accident, and that he had not deliberately accessed the substantial amount of pornographic material that was indeed found on his computer.
9. Be that as it may, the result was that the mother, wisely I think in the circumstances, accepted that the essential shared care arrangements would have to continue and indeed there was then the consent order to which I have already referred, which was a shared residence order, with the children essentially making their home with their father.
10. However, unbeknown to the mother at the time she entered into that agreement, the father was about to be the subject of a second round of charges, and these included the more serious charge -- indeed the most serious charge -- that he had indeed had full sexual intercourse with an underage girl. This involved the intervention of the local authority and on this occasion the father did indeed stand trial.
11. He was acquitted. We have the criminal papers in our documentation, although we have not been substantially referred to them and indeed, although the judge recognised that the father's acquittal in the criminal proceedings was something which was not binding on him in the family proceedings, he nonetheless did not reinvestigate the criminal offences. The girl in question was not called to give evidence and the judge took the case on the basis as it stood, namely that the father had indeed been acquitted of the allegations. So the children remained with their father.
12. Developments have occurred on both sides of the family, in that the mother has remarried and has a small baby by her remarriage. The father has met a young woman on the Internet. She is aged 20 and she has a baby -- not by the father -- but she has, it appears, come to live with the father and the children and appears to be reasonably well integrated into that household, although, as the judge wisely observed, the relationship was a new one and no one was able to say how long it would last.
13. The father's position before the judge was 'well, I have been acquitted. The children are happy, they are well, they are being properly looked after. I am a good father. Don't interfere with the status quo'. The mother on the other side said 'well, this has happened twice now. There is a real risk that the father has unhealthy predilections towards teenage girls, he is a very poor role model for his own daughter and there is every likelihood of a recurrence when his own daughter becomes a teenager', even though she accepted that there was no real risk that the father would interfere in any way with his own children.
14. The judge heard both the mother and the father. He also had the advantage of hearing the CAFCASS officer who had reported and who favoured retention of the status quo. He heard a social worker who had been engaged during the second period of allegations against the father, which had resulted effectively in the local authorities closing its file once the criminal proceedings had been concluded, and he also heard evidence from a consultant, a Dr D, a psychiatrist, who had been invited to assess the father and the father's predilections towards young children.
15. That, therefore, was in essence the evidence which the judge heard and the judge essentially concluded, contrary to the father's protestations, that the father did indeed have an unhealthy interest in girls aged 13 to 16; and the judge reached that conclusion irrespective of the fact that the criminal proceedings had failed. He took into account the admitted behaviour in relation to certain young girls and the father's enjoyment of their company; he took into account, rightly in my view, various messages which the father had sent over the internet, particularly to one young girl, one of which effectively amounted to an invitation to the young girl to have sexual intercourse; and the third matter which the judge took into account was the sheer volume of the pornographic and other material on the father's computer and, to the considerable surprise of the judge, that the father also had on the computer a very large number, several hundreds, of quite apparently innocent shots of young girls, fully clothed, head and shoulders. The judge was also, I think, slightly concerned, although he eventually weighed the factor going the other way, that the father was living with a young woman, albeit someone who was not a teenager.
16. However, the judge's view was that the father had been a good father to the children; through the good sense of both parents, the children had been protected against the father's extremely irresponsible behaviour and the judge was therefore faced with a balance as to risk to the children posed by the father as against the security of their position in the household, the status quo, the fact that the move would be disruptive if they had to move to their mother despite the amount of time she was spending with them. It might well involve a change of schools; it would involve her telling the children the reasons, perhaps, for their move, and so on.
17. So the judge had to weigh those risks. He is criticised by Mr Young, on behalf of the mother, for putting into the scales and giving apparent weight in the scales to two particular factors which the judge regarded as safeguards. Having found the father to have an unhealthy predilection for young girls, the judge took comfort in the presence of the 20-year-old young woman in the father's household as a first consideration, and, as a second consideration, took comfort in the fact that the father had, as he put it, "had a fright". The judge said:

"Twice now he has been the subject of serious allegations against him and on each occasion he has as I say 'got away with it' without suggesting he was necessarily guilty, but he has not ended up in prison as he could easily have done, and not only in prison but he would have lost the children and as he said repeatedly to the police when he was being interviewed by them that is the last thing he would really want."

18. Speaking for myself, I agree with Mr Young that neither of these two considerations should have been given any particular weight by the judge. The first point, as the judge indicated, was that the young woman aged 20 in his household had not been there very long. He had met her on the internet. Although she had fitted well into the household it was entirely speculative as to how long that relationship would last. Furthermore, although this is a point for which I think the judge cannot be criticised, there was evidence that during the course of the parties' cohabitation, the father had, according to the mother, had sexual intercourse with a teenage girl notwithstanding the fact that he was also having a sexual relationship with her at the time. It is fair to say that the father vigorously denied that he had done anything of the kind; and unfortunately neither counsel saw fit to raise the matter in oral evidence, although it was in the papers, with the consequence that the judge made no finding about it. Nonetheless, speaking for myself, I do not find the presence of the 20-year-old in the father's household as particularly reassuring in all circumstances of the case.
19. Secondly, I am entirely unimpressed with the argument that this man has had a fright. He had a fright in 2004 when the first set of allegations arose and that did not stop him getting himself into precisely the same sort of trouble all over again, and in my judgment the judge put too much weight on that consideration which in my view does not bear any weight at all.
20. However, the true balancing exercise which the judge it seems to me undertook, as my Lord pointed out during the course of argument, appears in paragraph 37 of his judgment, where he says this:

"Now, my conclusion of this is that it is a difficult case. I have to weigh the risk that undoubtedly exists from the father's sexual preferences on the one hand against his undoubted ability as a father and the close relationship that he has with his children together with the undoubted disruption that will be caused by moving them now to live with their mother."

"38. I have come to the conclusion that the child and family reporter, the CAFCASS officer's views are correct. I think that this is not an appropriate time to make a move. I accept that there is a risk and I also take the view that there are safeguards in place. I am impressed by the fact that the children are not harmed at present. They are happy with the arrangements as they are at present. I am also satisfied, as the mother accepted in her evidence, that it would be disruptive to move them."

21. That, therefore, in my judgment, seems to me the essential balancing exercise. It may be said that the judge did not put into it the fact that the father had demonstrated himself to be an extremely poor role model and that the risk of abuse, indirect abuse from the father's conduct, would be eliminated were the children to live with their mother.
22. But the essential balancing exercise was one which the judge performed. He had also to weigh in the balance, as I think he did, the opinion of Dr D, the psychiatrist. We do not have a transcript of Dr D's evidence, and Dr D's first report has the disadvantage that it was based entirely on self-report from the father, with little access to documentation. However, Dr D produced an addendum in which he was critical of the father, not least for not being fully frank with Dr D when first interviewed, by denying that he had any criminal convictions, by diminishing the extent of his viewing of the internet, and by his disingenuous behaviour and language in relation to the girls who had visited his property.
23. Dr D, albeit cautious, came to the view that it may well be that the father has a sexual deviance, the deviance being a sexual interest, arousal or behaviour that involves a focus on inappropriate persons or objects:

"(i.e. those that fall outside the realm of what is considered legal or conventional in consenting adult sexual relationships). It may be manifest in many ways, and it is irrelevant whether the manifestations of sexual deviation are accepted or enjoyed by the person."

24. However, it does seem to me that the judge fully weighed the evidence of Dr D and indeed accepted that the father posed a risk and, in the final analysis, when the chips are down, I have come to the view that the judge was entitled to reach the conclusion which he did. It is not one which I can say is so plainly wrong that it requires this court to intervene. The judge had the views of the CAFCASS officer in particular, and his own assessment of the parties, and, if I may say so, the extreme good sense of the mother, who had not sought in any way to exploit the situation but had acted in the best interests of the children by helping to shield them from this man's behaviour.
25. The judge ended his judgment with a homily to the father, which the father would be well advised to read and re-read; and I propose to repeat it, because it seems to me important. He said this:

"I do, however, take the view, as does the guardian, that this move would be I think almost inevitable if any further allegations were made against the father, whether they are true or false. So I dismiss the mother's application, but I do say this, that she was absolutely right to bring it, she was confronted, twice now she has been confronted with a very, very difficult situation, more than any mother I think can really be expected to deal with on her own. We are here as judges to hear the evidence and deal with this, that is what we are paid to do, and I think she was absolutely right to bring the matter before the court but having considered it carefully I am not going to go along with it.

I make two observations as far as the father is concerned. The first is this, that I hope he thinks that he is a lucky man to have not ended up in much more serious trouble than he has done and, secondly, this, if in fact I am right, and Dr D is right about the sexual preferences, this is not an illness or anything like that, it is not a sin even, it is a fact. Dr D' strong advice was that he could seek psychiatric help but he could only do so if he admitted it. I suggest and he can reject it if he wishes obviously, that he gives serious consideration to that. He could do so completely privately. He does not need to tell anybody. Nobody need know about it, and it could well be that it could help him and through helping him could help the children. As I say, it could be done without anybody knowing about it. So I merely make that observation in the light of what Dr D has said. My final decision is that the mother's application, although rightly brought, will be dismissed."

26. I entirely echo those sentiments of the judge. In my view, this father has given little thought to the welfare of his children in giving in to the sexual predilections that he has demonstrated, and I am entirely of the same view of the judge and indeed the CAFCASS officer that if there is even the whisper or the hint of any further conduct of this sort, the likelihood is that the present arrangements will be reversed and the children will be given to their mother's care. In my view, their mother comes out of this extremely well. She could have damaged the children by exploiting the situation; she has not done so. It is clear the children enjoy a good relationship with her and a good relationship with their father, and it is the fact that they are settled in their father's care and that the move will be disruptive to them which finally influences me to the conclusion that the judge was in the circumstances entitled, when drawing up the balance, to find that there was no particular risk to these children themselves and that the move would in the circumstances be disruptive.
27. It was in my view a very fine balance but it is a truism in this court that, in a way, the finer the balance, the more difficult it is for this court to interfere; and despite my criticisms of the judge's judgment, in particular the reasons he gives for bolstering the conclusion, I have come to the conclusion in the event that the judge's decision cannot be described as plainly wrong. There was a rationale employed under section 1 of the Children Act 1989, and in those circumstances it seems to me the appeal must fall to be dismissed. I therefore would dismiss it.

Lord Justice Ward:

28. As the judge said, this father is a very lucky young man. His weaknesses have been fully exposed, and if he has even the merest modicum of good sense he would heed the judge's advice to seek medical help lest he fall into the trap which has undoubtedly afflicted him already. This is a good mother, for whom I have a considerable amount of sympathy, but, for the reasons given by my Lord, on which I am cannot improve, I too, whilst giving permission to appeal, would be bound to dismiss it.

Order: Application granted; appeal dismissed