England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE PRINCIPAL REGISTRY, FAMILY DIVISION
(MR RECORDER ULLSTEIN)

		Royal Courts of Justice Strand, London, WC2A 2LL
		30th April 2008

Lord Justice Thorpe:

1. This is an appeal brought against the order of Mr Augustus Ullstein QC made on 6 February 2007. The Notice of Application was filed by the father in person and after a number of false starts he finally came in front of the single Lord Justice, Ward LJ, on 3 December 2007.
2. In a brief judgment, Ward LJ explained why he was adjourning the application to be heard on notice, with appeal to follow before two judges of the court. His reasons were twofold. First, he worried that perhaps mistakes made by the CAFCASS officer had contaminated the judge's reasons and, secondly, he doubted whether the judge had correctly attached a Power of Arrest to a non-molestation order, which he had made for the protection of the mother.
3. It is unnecessary to record the history in any detail. Enough to say that the case concerns a little boy, Yvan, who is now 11½ years of age. The parents met when they were medical students and from their relationship was born Yvan. The relationship, commencing 1995, terminated by the year 2003 and the post-separation regime was effectively set by District Judge Harper in an order of 21 January 2004. His conclusion was that the welfare of Yvan would be best met by placing him in the primary care of his mother, who was to have the residence order, with generous contact to his father, who obviously has a great deal to offer a boy of Yvan's age.
4. The subsequent litigation between the parents can be construed as a failure on the part of the father to accept that that was the state of the regime and that it was in the best interests of his son. There were periods when, in addition to a mid-week contact night on Wednesday, he was having Tuesday as well but, subject to that sort of fluctuation, the pattern chosen by the district judge continued.
5. The hearing before the Learned Recorder apparently lasted two days and at its conclusion he delivered a judgment which was plainly supportive of the mother and her position. He preferred her evidence to the evidence of the father, wherever they conflicted, and he expressed the view that the conflict in the period after the order of 21 January 2004 was largely the responsibility of the father.
6. The order that he made is probably an order drawn in the court office since both parents appeared before him as litigants in person. The order is by no means a model and it certainly led Ward LJ to the preliminary conclusion that the non-molestation order and the Power of Arrest were unlimited in time. That certainly seems to be the effect of the non-molestation order, which appears at page A35 in our bundle. However, the order at A34, which dismisses the father's application and settles the extent of telephone contact, contains paragraph 3 to this effect:

"There be a non-molestation order and a Power of Arrest attached to it against the applicant father to continue for a period of 12 months.

The matter is put beyond doubt by the order at pages A36 and A37, which prevents the father from approaching within 100 metres of the mother's home and forbids him communicating with her, save by e-mail and then only for the purpose of arranging contact. That order specifically states its expiry on 5 February 2008.

7. The father has since had the great benefit of representation in this court, perhaps as a result of arrangements made by the Pro Bono Unit. Ms Jane Rayson has filed a skeleton argument in relation to his attack on the orders made under the Family Law Act 1996, that is to say the non-molestation and Power of Arrest orders. In her oral submissions she has divided her presentation into the matters of law covered by her skeleton argument and then her oral submissions in relation to the Section 8 orders made by the judge. The skeleton argument succinctly demonstrates my conclusion that the judge was wrong in law to attach the Power of Arrest provision to the non-molestation order. The legal framework, amply set out by Ms Rayson, is that the court's jurisdiction to make a non-molestation order is defined by Section 42(2) of the Family Law Act 1996. The criteria for a non-molestation order is defined in Section 42(5) and judicial embellishment is to be found in the case of C v C [1998] 1 FLR 554, when the then President said:

"It is a matter that has to be considered in relation to the particular facts of particular cases. It implies some quite deliberate conduct which is aimed at a high degree of harassment of the other party, so as to justify the intervention of the court."

8. She goes on to demonstrate that the court's power to attach arrest is only to be found in Section 47, which obliges the court to attach a power of an arrest if it is appears to the court that the respondent has used or threatened violence against the applicant or a child unless the court is satisfied that in all the circumstances the applicant or child will be adequately protected otherwise. Ms Rayson, then reverting to this particular case, demonstrates that the Learned Recorder said nothing to explain his orders other than what appeared in paragraph 50 to this effect:

"The mother asked me to make a non-molestation order and to attach a Power of Arrest. I have come to the conclusion that since, as I have already said, I prefer her evidence about what happens at rugby, this is a case in which most unfortunately it is necessary for such an order to be made and I make it for a duration of 12 months and attach a power of arrest to it."

What happens at rugby is recorded in the earlier paragraph 33 of the judgment, when the judge said:

"There is a conflict of evidence over what happens at rugby. The father says that he simply coaches Yvan, that he referees the mini-rugby and on occasions dresses Yvan in his kit. The mother's version is very different. She says that that father extends the time by giving Yvan extra coaching or by throwing him up in the air, and indeed by insisting on coming over and speaking to her, not merely saying: "Hello", but raising issues of the type which fill the 317-odd pages which are in the bundle."

That finding is justification for the making of a non-molestation order, but it is simply no justification for the attachment of a Power of Arrest. There is simply nothing in this to suggest that the father has used or threatened violence against the applicant or Yvan.

9. Ms Rayson recognises that the impermissible order is no longer in force, as it is time-lapsed, but nonetheless she is, in my judgment, entitled to pursue the appeal on this ground and to seek the deletion of that part of the order which the judge had no statutory jurisdiction to make. That correction can be achieved by amendment to paragraph 3 of the order at page A34 and by the setting aside of the order that appears at A36 and A37.
10. I turn briefly to Ms Rayson's valiant endeavour to advance the arguments contained in the appellant's in-person skeleton going to the judge's discretionary conclusions on the Section 8 application. She first of all draws attention to the fact that the CAFCASS officer was at mathematical fault in saying that, if the father had the Tuesday access added in, he would have more time with Yvan than the mother. Correctly, he would have had only precisely equal time. She was also incorrect in saying that with the Tuesday contact only the father would have equal time, when in reality he would have five out of the 14 days. She says that that error contaminated the judgment. I cannot accept that. The judge at paragraph 14 of his judgment said:

"The father says that the report is inaccurate in material respects and biased. In my judgment it is neither. Such factual inaccuracies as there may be as, for example, Yvan's background is not Grenadian but Guyanian are, as it seems to me, of no materiality whatsoever."

Perhaps the judge should have more extensively acknowledged the mathematical error in paragraph 13 of the CAFCASS officer's report and considered whether it had impacted on the views that she expressed in paragraphs 25 and 28, but in my conclusion I do not think that the judge's ultimate discretionary conclusions can be impeached on this somewhat technical ground.

11. Secondly, Ms Rayson criticises the judge for placing inadequate weight on the wishes and feelings of Yvan. That is always a very difficult submission to advance when it is evident that the judge did in fact consider the child's wishes and feelings. The judge expressly did so in paragraphs 37 and 38 when embarking on a conscientious application of the welfare checklist, so there is nothing in this submission, in my opinion. Finally she says that the judge unfairly criticised the father in paragraphs 15 and 16 of his judgment, when he charged him with having, as it were obstinately, pursued a case for equal time when, says Ms Rayson, he had only ever insisted on his equal rights. I cannot read the passages in the judgment to that effect. It seems to me that the judge was entitled to take the evidence as to the father's attitude as indicating a father who would not rest until he had parity of time.
12. So I would grant permission; allow the appeal to the extent indicated in relation to the Family Law Act Order; and dismiss the appeal in relation to the Section 8 order.

Mr Justice Charles:

13. I agree. I add my thanks to counsel who appear for the father in this case.

Order: Application granted, appeal allowed in part