England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ALDERSHOT AND FARNHAM COUNTY COURT
(HIS HONOUR JUDGE MILLER)

		Royal Courts of Justice Strand, London, WC2A 2LL
		29 June 2011

Lady Justice Black:

1. The appellant in this case is the father of two small children, whose names must not be given in any report of this matter and who must not otherwise be identified, but who are E, who was born on [a date] 2006 and is five years old and C, who was born on [a date] 2008 and who is three. HHJ Miller considered the arrangements with regard to those two children at a hearing on 17 December last year. She made an order which contained various details, but in essence provided for the children to live with their mother and stipulated the contact that they were to have with their father.
2. The father would have liked to appeal to us in relation to the residence order. Indeed it seems that that is the only matter that he seeks to take up in this court. He advanced a number of grounds of appeal contained in a notice, challenging various factual findings made by HHJ Miller and challenging the order that the mother should have residence. His application for permission to appeal on the basis of those grounds went before Ward LJ at on oral hearing. The judge refused permission to the father to argue any of the proposed grounds of appeal, except in relation to the issue of contact. That meant that there was no further life in an appeal in relation to residence. This morning the father asked us to reconsider Ward LJ's decision about permission and to grant him permission to advance an appeal on the question of residence. We considered that matter, and in particular the rules and the practice direction related to the CPR part 52. That made clear that there a proposed appellant had no right to renew an application for permission in relation to grounds which had been refused at an oral permission hearing. So it is that the only question that remains live in this appeal hearing is the question of contact.
3. The position is somewhat difficult in relation to that because the father has explained to us that although it looked in his grounds of appeal as if he was appealing in relation to contact, he had only in fact advanced the matters that are contained in his grounds of appeal on the subject on contact in an effort to show this court how it was that the trial judge was biased in favour of the mother who had been, on the father's case, hostile to the question of contact throughout and who the judge had, as the father would see it, rewarded by giving her the bulk of the children's time. The paragraph in the grounds of appeal which sets this out is as follows:

"According to the order the Respondent Mother has 65% of the weekend, every week and do not see any reason for the shifting of the contact to Wednesday, which deprives me completely every 6^th week of a weekend contact unfairly for which one I insist. In her judgment HHJ Miller said that the contact would be from Friday to Sunday but did not put it in writing, that is why the illogical contradiction. I am against having only a contact, but the facts show that it is not practical and justified."

4. Notwithstanding what the father has said to us about the purpose of including that paragraph in his grounds for appeal, I propose to deal shortly with this matter by considering what Ward LJ thought that he was giving permission for, which is an appeal in relation to the judge's determination about contact. I do not need to go very much into the facts of this case to determine that issue. The trial judge commented that there had been "prevailing hostilities between the parties ever since the matters first came to court". Various allegations and applications have been made and it appears from the submission made to us by the father this morning that matters have not settled down since the time of the hearing in front of the trial judge.
5. The parents separated in 2008 and the children had been living with the mother since then; the father has grievances about the way in which he was not able to have contact for a period of about six months and then started with contact rather belatedly, as he would see it, in a contact centre. However, he did begin to have contact, which developed into staying contact by January 2009. By May 2009 a settled pattern of contact had been established, which endured right up to the hearing in front of Judge Miller. It involved the children staying with the father from 6 pm on a Thursday until 6 pm on a Saturday every week, so the father had a full weekend day, a week day and two nights each week with the children.
6. In March 2010, the father made an application for residence; he has made a number of points to us this morning about the way in which that residence application has been presented to the court. In September 2010 he added to it an application for holiday contact and for the enforcement of contact. The mother then applied for a variation in contact, seeking to have one weekend in four, as the judge records it - the father says one weekend in two - without any contact. The judge therefore had to adjudicate on residence and contact and on some ancillary matters about which I make no further mention. The Cafcass officer recommended that there should be no change in residence or contact, except that there should be some flexibility to allow the mother the occasional full weekend with the children, with the father's contact being made up during the week. The mother explained her request for a full weekend with the children on the basis that it was important for them to have time to play when they did not have to rush to go to school and they could have "fun time", as she put it and also E had friends that he wanted to spend time with. The trial judge recorded that the father had said in evidence that they could make a compromise if the mother wanted the occasional weekend with the children for the whole time, but that he would have to be compensated. Accordingly the idea of a full weekend was not apparently a problem for the father at that stage. The difficulty may be that - and this is how Ward LJ understood the father's case - he considered that he should have like for like compensation for the weekend time that he lost every sixth weekend. Whilst he does have two nights still with the children he does not have the weekend day with the children that he had under the previous arrangement.
7. As Ward LJ perceived the father's argument, it seems to have been that the trial judge was inconsistent in that she had said there should be no reduction in contact and then she had reduced the contact. That argument, however, requires one to take a rather narrow approach to contact and break down the contact order to daytime and night time contact, thus identifying that the father has lost, as I have said, the advantage of the Saturday daytime with the children and got instead a school and working day, a Thursday, once every six weeks. I do not consider that the judge was looking at the matter in that narrow sense; she replaced two nights staying contact with two nights staying contact, albeit at a different time during the week. I can see that that would be disappointing for a parent, but it has not been established that the judge did something that she had not intended to do by ordering Wednesday to Friday contact, or that she was inconsistent with anything else she had said in the judgment. The order that she made had a good foundation in providing the mother with an occasional full weekend with the children; the judge considered that that was in the children's best interests and that was a proper exercise of her discretion. She arrived at her decision and explained it in a well-constructed and thorough judgement. Accordingly the appeal is dismissed.

Lord Justice Patten:

8. I agree.

Order: Appeal dismissed.