Case No: B4/2010/2502 (A) + 2502 
Neutral Citation Number: [2011] EWCA Civ 1001
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM PORTSMOUTH COUNTY COURT
(HIS HONOUR JUDGE MARSHALL)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Wednesday, 6th July 2011

Before:

LORD JUSTICE THORPE
and
LADY JUSTICE BLACK 
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In the matter of B (A child)

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(DAR Transcript of 
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Mr T Conconnan (instructed by Lamb Brooks Solicitors) appeared on behalf of the Appellant father.

Mr Geoffrey Kelly (instructed by Southfields Solicitors) appeared on behalf of the Respondent mother.
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Judgment

Lady Justice Black:

1.	This appeal concerns orders made on 7 October 2010 by HHJ Marshall in proceedings concerning the appellant father's child C who was born on [a date] 2005 and so who is now six years old.  The respondent to the appeal is C's mother.  

2.	The parents separated in November 2005 and C has been living with her mother since then.  The father had been having unsupervised contact on alternate Saturdays and Mondays in the run up to the hearing before HHJ Marshall.  That hearing began on 5 August last year.  The judge then circulated a draft judgment dealing with contact and held a further hearing on 1 October for oral representations to be made about orders ancillary to her determination.  That was followed by a comprehensive reserved judgment provided on 7 October last year.

3.	This was not the first time that arrangements concerning C had been considered by the court.  Litigation about her began in 2006 and HHJ Marshall herself gave an earlier judgment at the end of 2009.  There are also a number of other judgments by other judges.  HHJ Marshall decided in October last year that there should be no order as to contact.  I will explain in  due course why she did so.  She also granted a series of orders designed to regulate the father's communications with the mother over C: 
(1) She granted an injunction under the Family Law Act 1996 prohibiting the father from contacting the mother about C or any matters concerning her care except where the mother instigated the exchange between them; 
(2) She granted a specific issue order requiring the mother to keep the father informed of various matters to do with C's upbringing for example her schooling and important medical treatment and so on; 
(3) She granted a prohibited steps order restraining the father from contacting C's child-minder; and 
(4) She granted an order under Section 91(14) of the Children Act 1989 prohibiting the father from making any applications under the Children Act without leave of the court until 30 September 2012.  This was in fact an extension of a similar order that she had granted in December 2009. She also reserved the case to herself.

4.	The father appeals with the leave of Baron J.  There seemed in the run up to this hearing to be some uncertainty with regard to the grounds of appeal which Baron J had given leave to pursue.  I think it is fair to say that Mr Concannon who represents the father was in agreement that the essence of the appeal for which permission had been given was contained in grounds 1 and 4 of the notice of appeal. The other two grounds are in fact ancillary arguments along the way to advancing the appeal on grounds 1 and 4.  I do touch on them in this judgment simply because they are there in the papers.  

5.	The first ground of appeal is that it was wrong of the judge to make no order. It is argued that she should have imposed contact obligations on the mother.  Ground 4 of the grounds of appeal is that it was inappropriate to impose a Section 91(14) order.  These two grounds tie together and Mr Concannon has addressed them together in his submissions this morning, in that it is submitted that the combined effect of making no contact order and imposing a Section 91(14) order is unsatisfactory.  Grounds 2 and 3 challenge aspects of the judge's approach to the evidence; specifically they suggest that she erred in her treatment of the evidence of the psychologist, Dr Derry, and failed properly to take into account the effect of the cessation of unsupervised contact on C.  

6.	In order to evaluate these grounds, it is important to appreciate the findings of fact made by the judge against which there is no appeal.  I do not propose to go through all the matters that she considered in her careful and comprehensive judgment of 7 October.  She made a considerable number of adverse findings about the father's behaviour and its actual and potential effect upon the mother and her care of C.  

7.	In paragraph 20 she said:

"There is plenty of evidence available in this case to lead the court to conclude, with some confidence, that the way in which F has behaved in the past and continues to behave in the present is unreasonable, likely to cause harm to C, and unlikely to change in the future."

8.	Many examples were given in the judgment of behaviour which was almost bound to lead the judge to that conclusion.  Just dealing with the period following the previous hearing, the father had "continued to bombard M with correspondence that is unreasonable in amount and tone" (that is paragraph 22 of the judgment).  He had questioned the mother's mental health; he required full disclosure of her mental health history and spoke of asking for a mental health review by a psychiatrist if she was not forthcoming with it.  He requested full details of her current boyfriend so that he could have a criminal records check carried out on him and a review of the “Paedophile/sexual predator register".  He told the mother that her mother and stepfather could not be left alone with C until he, the father, was satisfied that the mother's mother had “no mental health or defamatory behaviour that would put C's best interests at risk”.  The father had overnight contact with C on the basis that they would stay in a hotel near the Chessington World of Adventures.  Then he welshed on the agreement and without telling the mother took C to stay at his mother's with, as the judge called it, a complete lack of regard for the need for C to be informed earlier as to this contact or the potential for distress to be caused to M in the event that she had discovered at the time that F and C were not where they indicated they would be, and failing to take into account the possibility that C would have been told they would be staying in a hotel near Chessington and might reasonably have anticipated visiting the World of Adventures which did not in fact happen.

9.	He had a most inappropriate telephone call with C in which he was pressing her to tell him who was bullying her when she had not alleged that anyone was and said that C would go to live with him and everything would be alright.  He was restrained by the earlier Section 91(14) order from actually making child related applications but his correspondence with the mother was, as the judge put it in paragraph 23 of her judgment, "peppered with threats to make applications". 

10.	All of this was a continuation of earlier themes albeit with variations.  For example in 2009 the father had commenced civil proceedings against the mother's employer and against C's childminder and had threatened proceedings against the headmistress of C's school in addition to bringing Children Act proceedings against the mother.  HHJ Marshall's long judgment of December 2009 sets out the details of the problems at the time.

11.	I will just give one example of the problems identified by HHJ Marshall in that December 2009 judgment.  It is contained in paragraph 71 of the judgment where the judge said this:

"The pattern I observe in [the father] is that, having raised issues -- some of which I acknowledge it might be considered reasonable for him to raise – [the father] is relentless in the way he pursues them.  He deliberately makes what are intimidatory threats to take action in relation to these complaints, however he dresses that intimidation up, and offers nothing constructive.  He then fails to engage in, or take up, any constructive suggestions made by those he complains to.  I give, by way of example, his dealings about [C's] school.  He offered no constructive suggestions in response to Miss Paul when she sought his input, but has acted in a very destructive manner in terms of his engagement with the school and the complaints that he made."

In one of her summarising paragraphs the judge said at paragraph 79 of that judgment:

"I do find his behaviour to be obsessive, destructive (certainly by result rather than necessarily by design) and disproportionate in the actions taken to any given situation."

She found that the father's behaviour in "bombarding the mother with unreasonable requests for information in unreasonable amounts" was affecting the mother adversely. 

12.	Returning to the October 2010 judgment, the judge made findings that the father was not to be trusted in his assurances that things would change.  She said for instance in page 17:

"[The father] has continued in this behaviour, escalating his attacks on [the mother] in the run-up to this final hearing, particularly in relation to challenging her mental health.  [The father] demonstrates no insight as to the risks posed by his behaviour and no capacity to change."

13.	It is against this background, and there is much more of it with which I will not burden this judgment, that the judge decided that contact could not be unsupervised because there was a need to monitor the father's behaviour towards C and control it in a way that could not be done by a family member. She determined that the right thing to do was to leave the question of contact in the mother's hands.  She made very favourable findings about the mother's approach to C's interests, which findings entitled her to say that she was confident that the mother would be able to make appropriate decisions about contact that were in C's best interests and had "demonstrated a commitment to promote C's contact with F whilst also wishing to protect C".

14.	She determined that the mother is best placed to assess whether C will benefit from supervised contact which will be largely dependent upon F's behaviour towards M as well as to C.  She said: 

"36. On the basis of the expert evidence, I would not expect M to consider it appropriate to allow contact while F's behaviour continues as it has."

15.	This was perhaps a slightly unusual situation in which to make no order but the judge justified it with perfectly rational considerations including, importantly, her view, that: 

"The absence of a court order also reduces the risk of continued applications to this court to amend or vary prescribed arrangements.”

16.	I am not persuaded that the making of no order was anything other than a proper exercise of the judge's discretion in the unusual and in some ways quite extreme circumstances of this case.  It is plain that in making the order the judge was acutely aware that if there was no contact C would be distressed and also that her long term relationship with her father would suffer and the judge cannot validly be criticised for failing properly to take into account the effect of the cessation of unsupervised contact.  She did so but obviously concluded notwithstanding that that if things remained unchanged, continuing unsupervised contact was more harmful than stopping it. 

17.	The judge is criticised for inconsistency in reposing confidence in the mother to make appropriate decisions for C whilst also saying that the mother does not always manage to deal with the father and would prefer not to do so.  I do not see any inconsistency in this.  The judge clearly contemplated that the future of contact was dependent on the father changing his approach.  If he continued to behave as he had been doing then, as the passage I quoted earlier makes clear, contact would not be appropriate on any view and the mother would not have to deal with the father.  If his behaviour improved then the mother could be relied on to do the right thing in relation to contact. 

18.	Insofar as the criticism of the judge's treatment of the psychological evidence is concerned, that was not really pursued in front of us but there was in fact a clear foundation for Dr Derry's view at the hearing, which had been foreshadowed by his earlier reports, which was predicated on the information which was provided to him at the hearing after he had written his last addendum report. 

19.	It appears to be argued on the father's behalf, building on a view expressed by Dr Derry in his first report, that the father's behaviour may very well have been a response to the restrictions placed on his contact; that failure to make a contact order was a wrong exercise of discretion because it would leave the father feeling even more disempowered and feeling that the system was weighted against him.  In this connection we were taken to a decision of the now President, then as Wall LJ, Re B, Re O [2007] 1 FLR 530 and in particular to his observation made in the context of a particular set of circumstances concerning a litigant and contained in paragraph 39 of his judgment to this effect: 

"In the trite but valuable phrase, the case was not about justice being done, but about it being seen to be done."

20.	It seems to me that Re O was being relied on in some way as containing some sort of principle that in circumstances such as the present it was imperative that an order be made so as to avoid a disadvantageous effect upon the cooperation of the (as in this case) father, but any parent who is not the parent with primary care of a child.  I did not draw that principle from Re O.  

21.	This particular case, it seems to me, turns entirely upon its own facts.  The judge was entitled in my view to make no order for contact for the reasons that she set out.  In the light of the findings overall she was then also entitled to go on to impose an order under Section 91(14) in order to protect the mother and C from the stresses and strains of continuing proceedings even in conjunction with there being no order as to contact and even bearing in mind that she made other restricting orders including a Family Law Act injunction.  She set out for herself the correct principles contained in the case of Re P and her decision was a proper application of those principles.

22.	For all of these reasons I would dismiss this appeal.  Before I part with it, it may be of assistance simply to say that this is an ex tempore judgment.  It is concerned with the facts of this particular case and is intended to apply existing principles of law rather than developing them in any way.

Lord Justice Thorpe: 

23.	I agree.

Order: Appeal dismissed