Case No: B4/2010/2546
Neutral Citation Number: [2011] EWCA Civ 585
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LEEDS COUNTY COURT
(MR RECORDER FAIRWOOD)

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday, 7th April 2011

Before:

LORD JUSTICE THORPE
and
LORD JUSTICE TOMLINSON
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IN THE MATTER OF H (A Child)

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Ms Marissa Allman (instructed by Messrs Carters Solicitors) appeared on behalf of the Appellant Mother.

Mr Matthew Rudd & Ms Elizabeth Coleman (instructed by Hartley & Worstenholme, Davies Gore Lomax) appeared on behalf of the Respondent.

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Judgment

Lord Justice Thorpe:   

1.	Mr Recorder Fairwood has had problems in establishing opportunities for a little girl who lives with her mother to have the pleasure of time with her father.  There is clear evidence that the little girl wants to spend time with her father, and there is clear evidence that on occasions the mother has deliberately frustrated contact between her own daughter and the father.  How any mother can sleep easy having behaved in that way I find difficult to understand and I fully sympathise with Mr Recorder Fairwood's determination to ensure for this child the pleasure of spending time with her father and to prevent the mother from frustrating the father's persistent applications for the court's support in achieving his legitimate objectives; legitimate for himself and doubly so in that he seeks to ensure that his child is not further deprived.

2.	So Mr Recorder Fairwood in May had to decide a narrow point as to whether contact between father and daughter should be supervised, as the mother submitted, or unsupervised, as the father sought.  He decided that narrow point resoundingly in favour of the father, supported as he was by the recommendations and advice of the CAFCASS officer.  As he explained in his judgment, he refrained from making detailed findings as to the mother's past conduct given the limited issue for his decision and given his wise conclusion that the making of findings, not strictly necessary to a determination of the issue before him, would prejudice the little girl's prospects of enjoying immediate and future contact with her father.  The recorder set in place a reporting mechanism so that he would know at once of any breach of the order which he was making, so that he could of his own motion launch enforcement proceedings.

3.	Sadly, there were breaches in the summer which were reported and which led the recorder to initiate, or seem to initiate, enforcement proceedings.  There was then a major hearing in October on 5th and 7th.  Between those two days, on the 6th, the father, in frustration I suspect, issued an application for a residence order.  The matter was dealt with by the recorder who made a series of findings and declarations against the mother as a foundation to the order which was to regulate the future.  Amongst the provisions was that the little girl should be represented by rule 9.5 guardian.

4.	The application for permission to appeal was advanced on the ground that there was fundamental procedural unfairness in the recorder introducing into the proceedings in October and into his October judgment findings against the mother which he had been minded to make in May but which he had forborne to make for the sake of the child's prospects.  That application came to me on paper and was refused on 25 January on the ground that, although the course taken by the recorder was unusual, it was nonetheless open to him given the mother's intransigence and the risk of harm to the child.

5.	That paper refusal was renewed at an oral hearing before Munby LJ on 7 March.  Munby LJ gave the leading judgment in the appeal of L-W heard in this court on 4 November 2010, and the essence of that judgment is that where a respondent to contact enforcement proceedings asserts that contact did not take place because of the child's reluctance or refusal, the burden of proving that the child had not refused or was not reluctant rested on the applicant.  The burden was not on the respondent to prove the child's reluctance or refusal.

6.	Of course that guidance was not available to the learned recorder and it puts him into, as it were, retrospective breach, and that explains why Munby LJ gave a limited permission to appeal, which is expressed thus:

"(i) Whether the correct standard and burden of proof were applied in making the findings that the mother was in breach of paragraph 1.1 of contact order of 13 May and paragraph 1.3 of the contact order of 29 July.  

(ii) Whether the learned Recorder treated issues as going to the question of reasonable excuse which should have been treated as going to the question of breach."

7.	In preparation for this hearing it was apparent to this court that the appellant was entitled to succeed on the points identified by Munby LJ.  However, that is something perhaps of a Pyrrhic victory given that, following a further order made by the judge in December, a very experienced guardian has come into this case on behalf of Daniella and Ms Allman has been instructed by the guardian to represent Daniella's interests today.  Ms Allman has prepared a most helpful skeleton argument in which she deals with the point of law.  She informs us as to the steps taken by the guardian since her appointment and she outlines the guardian's proposals for future management.  That contribution only emphasises the extent to which litigation has exacerbated this little girl's deprivation.

8.	Behind all the fine legal argument there emerges from the guardian's investigation clear evidence that the mother is continuing to frustrate.  Of course that is not conceded; it has not been investigated; and the case that the guardian outlines would no doubt attract a vigorous rebuttal from the mother and may ultimately have to be investigated by the judge.  But nothing is more important than that the future be addressed in the county court at the earliest possible opportunity.  The essential issue of when and where the father and daughter meet has become bogged down in this legal erudition about standards of proof, in relation to some issues being the criminal standards as in relation to the other issues the civil standard.

9.	So there is a simple disposal which is proposed by the court to the Bar, namely that we set aside such findings made by the learned recorder in October which fall foul of the substantive judgment of the court in LW.  Setting aside those findings would not prevent a father from relying at any future hearing on any evidence as to the past that may still appear to be relevant and necessary for decisions as to future; and Mr Rudd, supported by Ms Coleman, suggests that all we need do is purify the order of the court to reflect the decision in L-W is to delete the declarations (i) to (iii) inclusive on page 1 of the order and to delete the findings numbered 2 and 3 in the schedule on page 6 of the order.  Ms Allman has said that does not go far enough, because paragraph 1 of the order reads "the respondent mother is frustrating contact by not allowing Daniella to enjoy the regular contact with the applicant father".  That point is met by redrafting, deleting the single word "is" and substituting the three words "has on occasions", so that the finding that stands will now read "the respondent mother has on occasion frustrated contact".

10.	That is all that is necessary to dispose of the appeal, but Ms Allman by her supplemental skeleton has thought of a new point which she never advanced below, namely that she might have submitted to the recorder that a contact enforcement application under section 11 could not be entertained because a residence order had not been made in favour of the mother under section 8 of the Children Act.  She says that the argument rests on a paragraph in a judgment which I gave in the case of S [2011] 1 FLR 183.  The judgment was actually delivered on 23 February 2010, and the single paragraph reads:

"As Ward LJ observed in para [9] of his judgment in the case of Re B (A Child: Contact) [2001] EWCA Civ 1968, 1 ALL ER 349, necessarily the contact order cannot be made unless it can be attached to a residence order providing there for the child to live with a person."

11.	The language of that paragraph, taken in isolation, is open to misinterpretation.  What Ward LJ had said in paragraphs 8 and 9 is as follows:

“’a residence order’ means an order settling the arrangements to be made as to the person with whom a child is to live;
‘a contact order’ means an order requiring the person with whom a child lives, or is to live, to allow the child to visit or stay with the person named in the order, or for that person and the child otherwise to have contact with each other;
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A residence order means an order settling the arrangements to be made as to the person with whom the child is to live.  It seems to me to follow that one cannot have a contact order without having first determined who the person is with whom a child lives because it is that person who has to allow the child to visit or stay with the applicant for the contact order."

12.	So of course what Ward LJ envisaged in the ordinary case is 1) a residence which settles the person with whom the child is to live; and 2) a contact order which binds that person into the contact arrangements.  That is all that I had in mind when I dealt with the issue in the case of S between paragraphs 8 and 11 of my judgment.

13.	However, I do see that there is room for the submission that Ms Allman contemplates and it would be sensible to ensure that it is not raised in future to vex judges and recorders at trial.  Of course what the statute requires is not in every case that there should be a residence order to which a contact order exists, but that there should be a person defined or capable of definition with whom the child lives.  So if the parents agree that, say, the mother should be the primary carer, but do not trouble to get a residence order enshrining her role, still a contact order can be made against her as the person with whom the child lives.

14.	Although the point is not in issue in this case, I amplify what has been said in both Re B and Re S to alleviate Ms Allman's anxiety that on the North Eastern Circuit there is some debate as to how these two decisions should be read and applied.

Lord Justice Tomlinson:   

15.	I agree.  I hope that the mother will not regard the outcome today as a victory.  I hope that she will bear carefully in mind everything that my Lord has said and in particular that she will also have in mind what my Lord, Munby LJ, said when giving permission for the bringing of this appeal.  At paragraph 24 of his judgment he said this:

"I do urge the mother to consider very carefully where this is all going and where it might end up."

16.	If it is the case that this 11-year-old girl wishes to continue to enjoy a loving relationship with her natural father, and if in due course it appears to her as she grows older that her mother has in any way frustrated the continuation of such a relationship, she will not thank her mother for it, and that is something upon which her mother would do well to ponder at this stage as the girl grows older.

17.	There is, however, nothing else which I can usefully add to what my Lord has said.

Order: Application allowed