England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SOUTHAMPTON COUNTY COURT
(HER HONOUR JUDGE MARSHALL)
(LOWER COURT No. SO08P00159/SO06P00155)

		Royal Courts of Justice Strand, London, WC2A 2LL
		27th March 2009

Lord Justice Wilson:

1. Following its refusal by Wall LJ on paper, a father, by Mr Travers of counsel, renews his application for permission to appeal against three orders made by Her Honour Judge Marshall in the Southampton County Court on 25 September 2008 under the Children Act 1989 and the Family Law Act 1996. The primary subject of the proceedings was the son of the father and the mother, who would be the respondent to the proposed appeal, namely a boy, S, who was born on 30 April 1999 and is thus now aged almost ten. Unfortunately, however, S has cognitive deficits such that that area of his functioning is more like that of a six year old; and he also suffers from epilepsy. At all material times since the separation of the parents in 2000 S has lived with the mother and, unless either or both of them have recently left home, with her two children by prior relationships, namely a girl, E, now aged 20 and a boy, C, who attained the age of 18 earlier this month. Although the mother recently moved herself and her family to a different home, in order to escape his attentions and indeed, as the judge found, harassment on his part, the father, who at some stage employed private detectives to ascertain information about her, somehow discovered her new address. It is in Waterlooville, Hampshire. The father lives in Bracklesham Bay, near East Wittering, and appears to run a successful garage business in Fontwell.
2. The first order which would be the subject of the proposed appeal is the judge's refusal to make any order for direct contact between the father and S, who have not seen each other since September 2000. Ever since December 2003, however, there have been orders for indirect contact between them and, following the making of an order on 25 January 2007, such contact has been defined as the facility for the father to send presents and letters to S at Christmas and on his birthday in April each year, together with a further letter each August; by her order dated 25 September 2008, and subject to a minor variation, the judge left those provisions in place. The second order subject to the proposed appeal would be her order under s.91(14) of the Act of 1989 ("the subsection") that the father should not issue any proceedings under the Act in respect of S without prior leave for a period of 30 months, namely until 25 March 2011. The third order subject to the proposed appeal would be a non-molestation order made by the judge, of her own motion but of course in the light of submissions from the parties by their counsel, in order, as she said, to help to protect the mother against the father's harassment. The judge readily accepted that the evidence did not disclose a risk that the father might be violent towards the mother and so there is no provision against violence in the non-molestation order. It provided, insofar as material, that the father should not threaten, pester, harass or annoy the mother directly or through a third party; should not enter or attempt to enter her road in Waterlooville; and should not communicate with her or any of her children, i.e. including E and C, in any manner, directly or indirectly, except through her solicitors. For the non-molestation order the judge favoured the same duration that she had favoured for the order under the subsection, namely to endure until 25 March 2011.
3. In the months following the separation in 2000 a residence order was made in relation to S in favour of the mother and contact was granted to the father. A parental responsibility order was also made in his favour. During those months however the father perpetrated acts of molestation and harassment towards the mother which resulted in his being subjected to a suspended sentence of imprisonment. Much worse was to occur on 3 August 2000 when, instead of returning S -- then aged 15 months -- to the mother at the end of a contact period, the father abducted him to Cyprus and kept him there for seven weeks, namely until 20 September 2000, when he brought him back to the UK and was charged with the offence of child abduction under the Child Abduction Act 1984. In December 2000 the father was sentenced to a total term of imprisonment of 54 months, including 18 months for the abduction of S and the remainder for unrelated offences of -- apparently --deception and perjury.
4. In December 2002 the father was released from prison. Not only has he had no further criminal convictions since then but he has apparently built up the successful business in Fontwell. Other than in relation to his continued activities in relation to the mother and S, which, however misguided and inappropriate, are probably at any rate in part born of a genuine love for S and a drive to play a paternal role in his upbringing, the father seems to have turned his life around since 2002 in a way which can attract only admiration.
5. Following the father's release from prison the forensic struggle in relation to S began again. The father applied for contact and the mother cross-applied for an order under the subsection. In July 2003 His Honour Judge Milligan dismissed the application for contact and granted the order under the subsection on the basis that it would endure for five years. In December 2003 this court allowed the father's appeal against the orders of Judge Milligan only to a limited extent: it introduced the regime for limited indirect contact between the father and S and reduced the duration of the order under the subsection to three years.
6. In 2006 there was a further round of proceedings which culminated in the further order of Judge Milligan dated 25 January 2007 to which I have referred: this court's provision for indirect contact was then marginally increased and the judge expressly permitted the father, through his solicitors, to contact S's school and GP for the purpose of procuring his school reports and information about his health.
7. It had been the stance of the father in the proceedings in 2003 and in 2006/7 that he had been quite wrong to abduct S abroad; that he had paid a heavy penalty for having done so; and that the mother should move on and accept that such conduct was a matter of ancient history which would never recur. It was the contention however of the mother that it was not possible for her to brush the abduction in 2000 and the other events in that year out of her mind with such ease. Her case was that she remained deeply fearful and distrustful of the father; felt that he would lose no opportunity to follow her and to hound her, if not literally then metaphorically; and wanted him to play no part whatever in the life of herself or of S. For the hearing in January 2007 the parties jointly requested a report by Dr Blincow, a consultant child and adolescent psychiatrist, who reported that, although he was not an adult psychiatrist, he considered that the mother had been traumatised by the events in 2000, that she was still suffering post-traumatic stress disorder and that her anxiety level was high. He recommended at that time that the safest course would be for the provision for contact to remain as it had been set by this court; that a slightly less cautious approach might be to increase the indirect contact, and in particular the flow of some information to the father about S, such as, I would add, was in due course provided by the order dated 25 January 2007; but that the risks attendant upon an introduction of direct contact between S and the father were too great in the light, in particular, of the mother's understandable mental and emotional condition.
8. The next part of the damaging struggle was to culminate in a hearing before a district judge of the Chichester Magistrates' Court. In about summer 2007 the mother had complained to the police that, from a date soon after the hearing on 25 January 2007, the father had been harassing her and in particular making telephone calls to her. The father's response to the complaint was, on the face of it, surprising. His case was that on 5 February 2007, only 11 days after the order had been made, the mother had telephoned him, told him that she wished to sort things out with him face to face and supplied him with her telephone numbers; and that in the following weeks and months she had made a number of further telephone calls to him and in response he had sent a number of text messages to her. In the event the father was charged with the criminal offence of harassment towards the mother but on 14 February 2008 he was comprehensively acquitted by the district judge. Most unusually the district judge acceded to the request of the father's then counsel that she should supply the father's lawyers with a short written note of her views on the evidence which had been given to her by the mother and the father. Her note was before Judge Marshall at the hearing which began on 24 September 2008 and concluded on the following day but, it having no direct relevance to today's application, it has properly been excluded from the bundle compiled by the father's solicitors for our use today. My understanding of the note, however, is that the district judge -- perhaps curiously in that her task was only to determine whether the prosecution case against the father had been established -- gave as her opinion that the evidence given to her by the mother was false, whereas that of the father was true.
9. Perhaps emboldened by his victory in the magistrates' court, the father swiftly issued a further application in the county court for an order for direct contact with S. The mother countered with an application for a further order under the subsection.
10. For the purpose of the further enquiry Dr Blincow was instructed to make a second report, to which end he again interviewed each parent and on this occasion also interviewed S himself. By his second report dated 15 September 2008, Dr Blincow made a recommendation different from that which he had made in 2006. It was for limited direct contact between S and the father to begin on a trial basis. It is clear that, at any rate in his written report, Dr Blincow was much affected by the comments made by the district judge in the magistrates' court. Dr Blincow considered that the mother's post-traumatic stress disorder was less significant than it had been in 2006 and added that, if she had initiated the contact with the father as had been asserted, her condition was less severe than her self-report would indicate.
11. Dr Blincow wrote:

"A further consideration is that [S] is growing up in an atmosphere of marked distrust and fear of his father that may now be significantly at odds with the reality. This view is based upon [the father] being exonerated from harassing the mother […]

I am not in a position to make a judgement as to who bears responsibility for the events of the last eighteen months involving the harassment charge except to note the District Judge's conclusion. As mentioned above, I would understand its impact as exonerating [the father] from blame and this would add further weight to his claim to have reformed and to pose no future threat to the mother or [S] […] For all these reasons and in light of the considerations detailed above, I would support moves towards establishing some form of direct contact between [S] and his father […]

In the initial stages, I would suggest that contact is planned to occur monthly on three occasions before review. The contact would be for no more than an hour […]

My recommendation is based on a view that [the father] has not been involved in any way recently in the harassment of the mother and household and that there are current considerations that indicate a trial of direct contact may hold significant benefits for [S] and not expose him to overwhelming risk."

12. Dr Blincow gave oral evidence to the judge at an early part of the hearing and indeed on the first day. The judge had of course indicated that the father's acquittal of harassment to the criminal standard in no way precluded her enquiry, on the civil standard, as to whether the father had continued to harass the mother in 2007 and 2008, as was the mother's firm contention. Thus Dr Blincow was asked to consider what was then only a hypothesis, namely that Judge Marshall's ultimate conclusion about harassment would be different from that of the district judge. As the judge was fully to explain in her judgment, it was Dr Blincow's oral evidence that, even had the father been engaging in harassing behaviour towards the mother during the preceding period of almost two years, he considered that, although there were attendant risks, it was still worthwhile in S's interest cautiously to attempt to reintroduce contact with the father in order, in particular, to banish the apparently negative views which S has developed about the father over the years.
13. There followed an energetic dispute in the witness box between the mother and the father as to whether it had been the mother who, on 5 February 2007, had initiated the communications between them which had ensued thereafter. To this end Mr Travers was instructed to cross-examine the mother about telephone records which ostensibly suggested that the mother had initiated the first call and perhaps also subsequent calls.
14. The mother hotly denied that she had initiated any call and complained about a variety of matters indicative, so it was said on her behalf, of an intention on the part of the father to harass her, to unsettle her and, metaphorically speaking, to stalk her.
15. Thus, for example, the father had made payments referable to S's maintenance into the bank account of the mother. How entirely appropriate (the father no doubt contended) that he should want to pay maintenance! But the wife protested that she had never given the father details of her bank account and could not understand how he had obtained details of it. Then, at around the time of the hearing before the district judge in the magistrates' court, the mother had received a letter aaddressed to her at her new home in Waterlooville, the address of which she then believed was unknown to the father and indeed to which she had moved specifically in order that it should be thus unknown to him. How had the father learnt of it? The letter, which was from a firm of solicitors in London, enclosed a curious letter to her from an accountant. He explained that, on behalf of the father, he had arranged for a new company, to be called "[S] and Son Ltd" to be set up and that S was to be the recipient of 300 shares, amounting, I believe, to 30% of those issued. The letter invited the mother to act as S's trustee of the shares which, so it was said, would be likely to result in substantial dividends for S's benefit; and the mother was also invited to act as a director of the company. How very reasonable (the father no doubt contended) that he should wish S to be the beneficiary of some of his business success! How entirely inappropriate (responded the mother) that the father should be seeking to draw S and herself into his business activities in that way, knowing, as he would have done, her desperate wish to have no further dealings with him at all. Then, on S's birthday in April 2008, the father sent him nine presents. No doubt he expected the court to compliment his generosity. But through solicitors the mother had identified a particular present which S wanted. That was not among the nine; indeed at least one of the presents was for children aged over 14 in circumstances in which, of course, S then had a cognitive age of five.
16. In the event the findings of the judge were that, in her emotional way and without seeking to hide her bitterness towards the father, the mother had given to the court a truthful account of matters; that the telephone records with which Mr Travers had been equipped in order to cross-examine her had been forged, mostly by or on behalf of the father; that the mother had in no way initiated any contact with the father whether in February 2007 or later; that the way in which he had traced her new address and details of her bank account and the way in which he had sought to involve her even in his business affairs had been inappropriate and highly unsettling to her; that he remained manipulative and controlling; and that, although S harboured a negative view of him and was probably scared of him, in part no doubt because of what the mother had said to him and in front of him, there was a plain risk that, were the father granted any direct contact, he would so act as to undermine S's relationship with the mother. The judge did not, of course, question the acquittal of the father in the magistrates' court but, at any rate implicitly, she rejected the district judge's view that the mother had not told the truth. Inevitably, once she had found that the father had sought to win the argument in her court with forged documents, the judge proceeded to conclude that the mother would rightly fear that the father would stop at nothing in order to obtain a false verdict in his favour in any forensic struggle with the mother.
17. It was from the foot of her grave findings of harassment that the judge proceeded not only to refuse the father's application for direct contact, on the basis that it would be used as a foundation to destabilise the mother's household, but also to seek to protect the mother from his harassment on the ground, by the non-molestation order, and through the courts, by the order under the subsection.
18. So how would Mr Travers put his proposed appeal? Wisely he has accepted that there is no way in which this court would set aside the judge's highly adverse findings of fact about the father's conduct and motivation. The basis of his proposed appeal against the refusal of direct contact would, of course, be the evidence of Dr Blincow, in particular his oral evidence, ultimately given upon the hypothesis that adverse findings about the father might in due course be made by the judge. Although Dr Blincow's written report was clearly founded upon the contrary hypothesis, as I have shown, the judge did not disregard the fact that in his oral evidence Dr Blincow had on balance recommended a careful reintroduction of contact even in the event that the mother's allegations about harassment were to be accepted. We should pause to note, however, that it was not put to Dr Blincow on the first day of the hearing that he might care to give advice to the judge upon a hypothesis that the judge might find that documents, put to the mother on behalf of the father, had been forged. It was the judge's conclusion that, in giving the evidence which he had given orally, Dr Blincow had overestimated the benefit to be gained for S from an attempted reintroduction of contact and, in particular, had underestimated the likely impact thereof upon the mother. This morning, in the course of his particularly able submissions which lasted for 30 minutes, Mr Travers has taken issue with the way in which, in that sentence, the judge saw fit to put to one side Dr Blincow's oral recommendation. It seems to me, however, that, in that the judge had heard extensive evidence from each parent, particularly when exposed to no doubt penetrating cross-examinations by the other's counsel, the judge's rejection of Dr Blincow's tentative recommendation is something with which not even Mr Travers, with all his ability, could persuade this court to interfere. Cautious though his contention to the full court would be, namely, firstly, that there should be three occasions of trial contact, supervised either by Dr Blincow himself or by some other professional, prior to further court review, I see no prospect that this court would consider that it was open to it to substitute such a provision for the judge's rejection of direct contact. This court would feel hugely handicapped in reaching its own assessment, independent of that of the judge, as to the effect upon the mother of such provision.
19. Foreshadowed by his written skeleton argument, the alternative and subsidiary argument of Mr Travers, considerably pressed by him this morning, is that at any rate the judge should, following her judgment in relation to factual matters, including to harassment and indeed to the forgery, have adjourned in order that Dr Blincow should be enabled to read the transcript of her judgment and, in the light of all her findings, to offer further advice whether, in his view, there should nevertheless be a trial period of contact between S and the father. Mr Travers tells us that he did suggest that possible course to the judge and it is clear that she rejected it. It seems to me however that it was pre-eminently a matter for her discretion whether further to prolong the forensic struggle by an adjournment in order that Dr Blincow's views could be collected upon the then stark facts, not only that the mother's charge of harassment against him had been proved to the civil standard but that he had even procured, or caused, forged documents to be used by his counsel in an attempt to secure a false verdict from the judge upon the issue as to the identity of the initiator of the calls.
20. I have already indicated that it was from that finding of harassment of a particularly unscrupulous kind that the other two orders under proposed appeal were made. The order under the subsection was, of course, not the first such order made against the father. Mr Travers is right to stress the absence of any history of repeated, abusive applications issued by the father in recent years; and he is right today to bring to our attention that, in giving her short judgment explaining why she was making the order under the subsection, the judge started with the proposition that there was a history of applications in the case. There was a history; but it was not a long history of vexatious, abusive or indeed, in effect, repeated, applications; and I have no difficulty in subscribing to Mr Travers' general proposition that it is usually such a history which justifies an order under the subsection. But very properly he has drawn our attention this morning to the summary, by Butler-Sloss LJ in Re P (Section 91 (14) Guidelines) (Residence and Religious Heritage) [1999] 2FLR 573 at 593 of the legal principles which should inform the exercise of the discretion conferred by the subsection; and, in number 6 of her propositions, Butler-Sloss LJ made clear that there did not need to be a past history of unreasonable applications for an order to be justified, but that, in the absence of such a history, the court would need to be satisfied that the facts were of an unusual character which justified the making of what is still, after all these years, regularly described in this court as a draconian order. It seems to me, in the light of the judge's findings about harassment, including forensic harassment of a particularly serious character, that the judge was clearly entitled to make the order under the subsection in order that the mother should feel as protected as possible against further assailment in the courts, unless, of course, the father were to show good reason for yet a further round of litigation. I should add that Mr Travers this morning also attacks the length of the order under the subsection. We have been provided with a transcript of the judge's judgment in relation also to that matter. She said that she favoured a duration of 30 months in order, in particular, that S should achieve an age at which he had started secondary school and had, hopefully, been enabled to settle in that school before the father could start proceedings without prior leave. That seems to me a perfectly adequate explanation for the duration favoured by the judge.
21. The non-molestation injunction, made upon the judge's own initiative, falls into the same category. Insofar as the injunction was likely to make the mother feel safer, it was worthwhile both from her perspective under the Act of 1996 as well, of course, as from that of the boy for whom she cares. Mr Travers raises two minor objections to the form of the injunction, made of course under s.42 of the Act of 1996. Part of the prohibition, as I have explained, was against communication on the part of the father with the mother "or any of her children". Mr Travers points out that the oldest of her children, namely E, was already 18 when the order was made and indeed that her second child, C, has since attained that age. Concentrating upon E, Mr Travers submitted, obviously correctly, that provision referable to E could not fall within s.42(1)(b), which enables provisions to be made "prohibiting the respondent from molesting a relevant child". It seems to me, as Mr Travers was almost constrained to accept in the course of our dialogue earlier, that there are two clear answers to that particular objection: first, that, in that E and the father once lived in the same household, E counts as a person "associated with the respondent" pursuant to s.42(1)(a) and s.62(3)(c); and, second, that she and the father are relatives and thus associated with each other pursuant to s.42(1)(a), s.62(3)(d) and s.63(1) of the Act.
22. Mr Travers' second, as I think, minor objection is that the prohibition on communication with the mother was made subject to the words "except through her solicitors". Mr Travers makes the point that, in that the mother was publicly funded in the proceedings, her solicitors are unlikely to be able to maintain any role on her behalf in the future, in the absence of further proceedings. But that would not be, so I conclude, a ground of appeal to this court. Indeed it is not clear whether there was any discussion before the judge about the form of words in this respect which were ultimately incorporated into her order. It seems to me that, were the father to attempt to communicate with the respondent through her solicitors, and were they to fail, for whatever reason, to act as an appropriate conduit as envisaged by the order, the father, by his solicitors, should invite the mother to accept a minor variation in the wording of the injunction so as to substitute a different, more viable, mechanism for the permitted communications. Were the mother to refuse a reasonable proposal in that regard, the father could apply to the court for variation of the injunction and, in that regard, of course, he would not even need prior leave under the order under the subsection in the Act of 1989.
23. I foresee no prospect of success for any part of this proposed appeal and I would refuse permission for it to proceed.

Mr Justice Holman:

24. I agree.

Order: Application refused