Case No: B4/2011/0778 
Neutral Citation Number: [2011] EWCA Civ 762
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BRIGHTON COUNTY COURT
(HIS HONOUR JUDGE HOLLIS)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Wednesday 30th March 2011

Before:

LORD JUSTICE WARD
LORD JUSTICE PITCHFORD
and
LADY JUSTICE BLACK
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	In the matter of H (A child) 		

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(DAR Transcript of 
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The Appellant Father appeared in person.

Mr Thistle (instructed by Knocker and Foskett) appeared on behalf of the Respondent Mother.
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Judgment

(As Approved by the Court)

Crown Copyright ©
Lady Justice Black:

1.	The father wishes to appeal against an order made by HHJ Hollis on 25 March of this year.  That is in fact last Friday.  Today we have heard together his application for permission to appeal and, in case we should decide to grant that permission and because the argument covers essentially the same ground, the arguments that each side advances in relation to the appeal.  It will be plain from what follows that we give permission for the appeal to consider the matter as a matter of substance.

2.	The judge's order relates to H, who was born on 27 April 1999.  She is 11, nearly 12. She is the daughter of the father and his ex-wife, the mother. They were married in 1998.  The marriage appears to have broken down by the end of 2009 although it was not until April 2010 that the father moved out of the matrimonial home, leaving H living with her mother.  The father had contact with her.

3.	On 9 February this year the father issued an application for residence of H raising issues about the mother's care of her and her relationship with her.  The first appointment in relation to the residence application took place in front of a Deputy District Judge on 22 February.  A consent order was made setting out contact arrangements, essentially in the form of fortnightly staying contact. That order contemplated that the mother would be taking H for a holiday to South Africa, from where the mother comes and where there are relations including H's grandmother, at around Easter.  Directions were given in relation to the main residence dispute including a CAFCASS report, at that stage in relation to H's wishes and feelings with regard to where she wants to live.

4.	On 22 March, last Tuesday, the orderly progress towards the final hearing of the residence application, which is presently fixed for July, was interrupted by events about which there is a certain amount of dispute between the parties.  What is clear is that the father collected H from the mother's house that day and she has not returned since, nor I think has she been in face to face contact with her mother.  They have only communicated by e-mail.  Today at the court's instigation the mother, the father, and H and a representative of CAFCASS, Ms Jolly, all attended at court prior to the hearing, but I think that probably H has still not met with her mother despite being in the same building today.  

5.	On 24 March the mother applied to the county court for an interim residence order and a specific issue order essentially seeking that H should be returned to live with her immediately and permitted to go with her to South Africa for the proposed trip.  The application came before a District Judge that day and was adjourned to a hearing before the circuit judge on 25 March (last Friday). That day HHJ Hollis made an order requiring the father to return H to the mother forthwith and not to remove her again except for the purpose of the contact set out in the 22 February order.  It was agreed that the return would take place by 10.00 on Saturday morning. 

6.	It appears that H was disturbed by the result of the hearing.  She seems to have been at court. In the immediate aftermath of the hearing the father's case is that she was distraught and threatened to take her own life if she had to return to live with her mother. Her own account is that she was very upset and told her mother that if she had to go back to live with her she would kill herself.  Her father describes her jumping from the car at lights after the hearing because she mistakenly thought that she had seen her mother and then going back to the county court where she told her mother what she thought of the situation.

7.	The father applied immediately to this court for a stay of the county court judge's order pending appeal.  I dealt with the matter on an urgent basis.  I granted the stay for reasons that I set out in an appendix to the stay order and I directed this hearing. 

8.	The father's account of what happened last Tuesday 22 March is that H asked him to come to pick her up from her mother's.  She was threatening to leave and come to him by train if he did not go to collect her.  He says that he contacted the police and they advised him to collect H which he did.  From H's account in material we have from her, she had been waiting in what she would consider to be fraught circumstances with her mother, having had a confrontation with her mother as a result of having been told by her father that her mother was reading her e-mails.  She had her suitcase ready when her father arrived and left without a further word to her mother.  

9.	We have a statement from a police officer, who went round to see H and her father on the evening of the next day, the mother having contacted the police about her removal from home.  The police officer's statement cannot have been available to the judge as it is dated 29 March.  The police officer had a discussion with H about what had happened and checked her living arrangements.  She formed the view that H was "genuinely happy and wanted to stay with her father".  She says:

"I had to reassure her several times that I had no intention of taking her anywhere and that I wanted and needed to know what she herself wanted as I was acting in her best interest. "

10.	We have seen a number of communications from H addressed to various people to which I will come in due course. A further piece of information that has become available since the hearing in front of the circuit judge is a letter dated 30 March from CAFCASS in the local region where H and her mother were living.  The family court adviser, a Ms Doolin, has spoken to both parents.  She has not seen H yet to explore her wishes and feelings because the events of last week meant that the appointment that had been fixed could not take place. 

11.	She says in her letter of 30 March: 

"Ultimately, given her age it appears that [H] has ‘voted with her feet’ and chosen to reside with her father at present, although this has been disruptive to her schooling and I would respectfully express to the Court that her educational needs must be addressed as a matter of urgency by [her father].  In the interim it appears that H should remain with her father until my assessment can be completed. 
I also understand that [the mother] wishes to take H away to South Africa, although upsetting for her I have advised [the mother] that at H's age it is simply not practically possible to force her to go abroad and is likely to further damage their relationship."

12.	We have also had the benefit today of the assistance of Ms Jolly.  She is a CAFCASS officer, who is based in the national office in London and she has come to court -- for which we are extremely grateful -- to meet H so that H's wish to tell us what she thought about things could be fulfilled, if only through the medium of Ms Jolly, who has spoken to her for upwards of an hour today.  I think it is fair to say that the conversation that they had, whilst gently probing on the part of Ms Jolly, was along very much the same lines on H's part as the lines that one can see from her other recent communications. She told Ms Jolly that she wished to live with her father and she was not deflected from that by alternative suggestions by Ms Jolly that she could perhaps in the interim, whilst the court had a fuller look at things, go back to live with her mother and go back to school and resume her normal life for the moment.

13.	HHJ Hollis set out his reasons for making the order that he did in a short judgment.  We have seen a note of the judgment, and there has clearly not been time to provide a full transcript.  He was dealing with a difficult and urgent situation that had blown up over the course of the week, and which was, as we have seen, to continue to develop after his decision, with the result that we have considerably more information now than the judge did when he took his decision.

14.	HHJ Hollis took the view -- and one can see why even from the limited material that is before us -- that the parents, and he thought particularly the father, had drawn H herself into the dispute so that she was in a difficult position with regard to her relationship with both parents.  H has written quite a number of letters about her feelings which, she says in all of those letters, are presently that she strongly wants to live with her father and that she has difficulty at the moment with her relationship with her mother.

15.	It is difficult to know which of the letters were before the trial judge or indeed what other material he had on which to make his urgent decision.  His judgment refers to a letter to the court in which H expresses her own views.  The judge said of it that he was unsure whether it expresses her own views, views she holds through concern for her father or views coloured by her father, but he said that he was prepared to respect what H was saying.

16.	We have seen a lot more than one letter.  We have seen two emails from early February from H to her father setting out why she wants to live with him in terms which appears to be designed to show to other people, no doubt in support of the father's application for a residence order.  Secondly, a handwritten letter by H, with the date on the bottom of it of 20 or 22 February, entitled “Concerns” in which H sets out her feelings about her mother and says:

"Some times I feel like running away and I can always picture myself living with Dad."

In that document she refers to anxieties about her mother looking at her emails, which of course foreshadows what happened in the course of last week.

17.	Thirdly there is a handwritten letter to the county court from H dated 24 March this year after she had gone to stay with her father on the 22nd setting out what happened on the 22nd, the catalyst for which was, according to this letter: 

"...because my dad had told me only about my mum reading my emails, and sending them to her solicitor”

That handwritten letter ends: 

"Please do not make me go back to Kent because I will run away."

18.	Fourthly there is a handwritten addition to that letter, the handwritten addition being dated 25 March (so the date of the hearing in front of the judge) which begins: 

"Please do not make me go back to my mum's.  As I said before I am willing to run away or take my own life."

It also says that H is scared of her mother and does not want any contact with her.

19.	Lastly there is a long typed letter, which begins "Dear Judge", and is dated 25 March.  The contents of that make it clear that it was written after the hearing in front of the circuit judge.

20.	Having considered all of that material it seems likely that it was the letter of 24 March that the trial judge had before him.  The longer 25 March letter clearly post-dates the hearing and the mother's counsel accepts in his skeleton argument that the letter of 25 March, which must mean the shorter one appended to the 24 March letter, was not seen by the trial judge.

21.	The judge was sceptical about the account that the judge thought the father had given that the father had received advice from CAFCASS.  I have inferred that this was the advice "Pick [H] up".  Indeed the judge was right to be sceptical about that if the father did indeed give that account to the judge because, as the father's later letter to CAFCASS makes clear, he was unable to get hold of anyone from CAFCASS at the time that matters arose in relation to H's request to be collected and it was the police to whom he turned for advice about what he should do.

22.	The judge took the view that the father had taken H from her settled home, which had resulted in her missing school and not seeing her mother.  In contrast, before that she had been living in a settled home, seeing her father and going to school.  That was the status quo and the judge thought that it should be restored.  The judge was not obliged to do as H asked him, although he was obliged to take her wishes and feelings into account and it is plain from his judgment that he did.  The difficulty about his decision is that it may not have been clear to him, probably because the information was simply not available at that short notice or developed since, that whatever the reasons for H's view, which will have to be explored properly in due course, and whatever the downsides of the current arrangement, her feelings are presently so strong that it is difficult as a matter of practicality to see how one can get her to return to live with her mother and stay there.  The judge did not have the advantage of course of the additional material that we have, both from the local CAFCASS officer that I have referred to earlier in this judgment and from Ms Jolly, as to the up-to-date position with regard to H's wishes and feelings.

23.	In the circumstances it seems to me that there is no alternative in this case but to overturn the judge's interim order requiring the return of H to her mother immediately and I would therefore allow the appeal to that extent and consider further shortly what directions ought to be given with regard to the future handling of this matter. 

24.	There is just one final thing that I want to add to that.  As Mr Thistle says in his submissions, it is most unusual for there to be a successful appeal against an interim order whether with regard to residence or with regard to contact.  Interim arrangements are very much a matter for the discretion of the judge who deals with the case in the presence of the parties.  If events develop after he has made his decision, it will normally be appropriate for one or the other  party to return to him seeking a variation rather than to attempt to appeal to this court, which is not equipped, generally speaking, to deal with the practicalities of making front-line decisions with regard to children.  It is only because of the peculiarly individual circumstances of this case that we have taken the course that we have.

Lord Justice Pitchford: 

25.	I agree.

Lord Justice Ward: 

26.	I also agree and I particularly associate myself with what my Lady has said in that postscript to her judgment, for I do view this as a case where we have more information than was available to the judge and where there is therefore a very real risk that this child, aged 12, so of an age where her views are to be taken into account, a child who is said to be bright and articulate and who therefore demonstrates some understanding of her position, where she will, if forced there, simply run away, which will in the long run cause more harm to her and to her relationship with both parents; and I emphasise to both parents.  She is in a vulnerable position at the moment and needs careful loving handling from both.  A significant aspect of her account to the welfare officer was her threatening, inappropriately one may think, that she will not see her mother unless her wish is satisfied to live with her father to the extent that this appeal has succeeded and her wish has come to fruition.  The court will no doubt look extremely carefully to see to what extent she does effect a rapprochement with her mother and resumes contact with her mother before this matter returns to the court in July, and it is the father's responsibility to remind her of that and to ensure that she does resume contact with a mother who quite obviously loves her and for whom she will have a need in these next few important years as she goes through puberty.  It is crucial that this relationship be maintained and that it is not lost, and the primary person responsible for that is the father.  He should note it very carefully indeed.

27.	But I would, for the reasons given by my Lady, allow this appeal.  

28.	The question then is this, Mr Thistle, what do we do for the future conduct of this hearing?  It seems to me at the moment to be a case where we should invite CAFCASS to represent this child so that she has a voice of her own which can be placed before the court independently and I am minded, unless you direct otherwise or you object, Mr H, to invite CAFCASS to represent her in the proceedings so that she has joined as a party and can appear as such.  I cannot guarantee but I have some reason to hope that Ms Jolly, who helpfully intervened today, could be that guardian for that purpose and so I shall join her and invite CAFCASS to help with representation of her.  

Order: Appeal allowed