England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM DERBY COUNTY COURT
(HIS HONOUR JUDGE ORRELL)

		Royal Courts of Justice Strand, London, WC2A 2LL
		14th January 2013

Lord Justice McFarlane:

1. This is an application for permission to appeal made by a notice dated 13 March 2012 against an order made as long ago as 18 November 2011 by HHJ Orrell sitting in the Derby County Court. The case relates to two children: a boy, C, born on 29 January 2004, and therefore very shortly to be nine years old; and another boy, E, born on 11 July 2008, and therefore now four-and-a-half. The parents of these two boys have been locked in dispute with each other since their separation in 2009. It is plain from what I have read that very serious allegations were made against the father by the mother, and that these were persisted with in the period leading up to, and effectively at, the hearing in front of HHJ Orrell. It is right to record at the beginning of this judgment that each and every one of those serious allegations were found by the judge to have no foundation. Equally, the judge records that the father made a number of significant allegations against the mother; they were not in the same category as those made against the father, the mother's allegations having alleged serious criminal misconduct. But the father's case, at least in part, was that the mother had a significant mental health condition and that this compromised her ability to provide safe care for the boys.
2. The issue before the court was, first of all, in which of the two parents' homes the boys should have their primary home, and secondly, and alongside that, the level of contact and time that the boys should spend with each of the two parents. The father's case at the conclusion was for a sole residence order in his favour, but with generous contact to the mother; the mother's case, which had entertained the idea of a joint residence order, by the end was for a sole residence order in her favour, again with contact to the father. The outcome of the case was that the judge made a sole residence order to the mother and made detailed provision for contact, which amounts to some one hundred nights with the children in the father's care, the regime being that the children would have from Monday morning until Thursday morning every fortnight in the father's care during the school term times and the Christmas holidays, with a division of the shorter holidays and then the long summer holiday giving further time in the father's care.
3. The father seeks to appeal against that order in its entirety and seeks in its place a sole residence order in his favour. When the case came before me first of all in September of last year it was not clear to me what outcome the father was putting forward as being in the best interests of the children. He now has helpfully clarified matters, and he puts forward a fortnightly programme, with the children spending five of the 14 nights in the mother's care, and the remainder in his care, together no doubt with some longer division of the holidays.
4. The matter has been made significantly harder for the father, and to a degree harder for this court, by the unfortunate circumstances in which judgment was delivered. The case seems to have occupied most of the court day on two days, 17 and 18 November 2011. We now have a full transcript of both of those two days. It is clear that by the end of the second day, soon after the last witness ceased to give evidence, and that is at page 60 of the transcript, the judge sought to draw matters to a conclusion. No formal closing submissions were made by the two parties, although it was plain from what had transpired before the judge that the judge will have been well aware of the respective cases of these two parents. The time after the close of evidence was largely taken up with the judge taking down the detail of the contact order that the mother's solicitor was seeking and hearing brief submissions from the father on that point. The judge then announced he was making a sole residence order to the mother, was making a contact order in the terms that he had been told about, and he then went on to hear a short application for costs made by the mother's solicitor. The outcome of that application was that the judge ordered the father to pay one-third of the mother's costs from a date in September 2010 onwards; the rationale for that, which we can now see in a transcript of the costs judgment, being that the judge concluded that the mother made a sensible offer to settle the case by letter dated 29 June 2010, and the judge concluded that by September 2010 the father should have considered that offer and either accepted it or made a sensible counter-offer, which he did not. So the judge concluded that a proportion of the costs from that time onwards should be paid by the father.
5. The complicating feature was that after the close of business on 18 November, the judge reserved judgment, and he was unable to deliver that judgment until 1 May 2012. The reason for that delay is spoken of in the papers that I have read, but the reason is in fact not as important as its impact. Dr F, the father, tells me today, and I entirely accept, that he was left for a further period of six months not knowing what the judge's view was of the very serious allegations that had been made against him, and not knowing what the judge's detailed reasons were for making a sole residence order to the mother. In terms of the appeal process he was thwarted in his ability to progress his appeal, because other than knowing what the bottom line of the judge's conclusion was, namely the order that had been made, he knew nothing of the reasoning.
6. Once the judgment was available in May he was able to finesse the documents before this court. The matters came before me in September for an oral hearing, but that too had to be postponed, partly because of a lack of documentation that was in front of me at the hearing, but was documentation upon which Dr F wished to rely. The reason why that was a difficulty is that Dr F attends this court via a video link from Sheffield, and it was neither physically nor electronically possible for him to transmit the documents to me during the hearing. We were also without the judge's judgment on costs. I therefore adjourned, requested the judge to provide further information as to the contact order and his reasons for it, directed transcripts, and invited Dr F to submit the documents to me physically that he had been relying upon at the September hearing.
7. All of that has now happened. We now have a complete clip of documentation and, despite one hiccup with the video link, I have been able to communicate with Dr F this afternoon as he has highlighted the points that he wishes to make.
8. In trying to focus in on the points behind the appeal for the purposes of this short judgment, I find myself in some difficulty, because this is a proposed appeal which is couched in very wide and detailed terms by Dr F. The skeleton argument that he has produced lists in summary the 23 particular points that he wishes to rely upon; these are then fleshed out in the remainder of the skeleton argument, which runs to no fewer than 263 paragraphs. In the course of his oral submissions today, he has helpfully referred to the material that he has to back up each of the 23 points, which are in 23 separate files available to him. The points are matters of detail, and it is therefore really not practicable for me in the course of this judgment, which is designed to be a judgment given in the compass of a 30-minute hearing, to do anything to summarise the detail of the points that he seeks to make.
9. I therefore do not propose to do so. I have read, both in September and then again over this weekend, for the purposes of this hearing, all of that detail, together with the underlying documentation. It is right to record that virtually every point that Dr F seeks to make relates to the process, and the court hearing, and the presentation of his former wife at that hearing, and very little is said about the children at all. That is also a characteristic of the 29 points, as I think they were, that HHJ Orrell records Dr F as wishing to make at the first instance hearing, and it is certainly a matter that HHJ Orrell spoke of in regretful terms in the course of his judgment, where he indicates that at early directions hearings he tried to get both parties to move away from making allegation and counter-allegation against each other and to focus upon the children.
10. For my part, coming to this case afresh, it seems from my perspective that Dr F has been singularly unable to accomplish that task. It is very difficult for me to pick out anything about these two boys and their lives from the case papers, virtually all of which are concerned with allegations and counter-allegations as between the adults and/or criticisms of the professionals involved.
11. That this is so may be, I entirely accept, a consequence of this father facing very serious criminal and personal allegations made and sustained against him by the children's mother; it would be difficult for any human being to be on the receiving end of those sorts of allegations and not end up being mesmerised by them, with an inability to focus upon the bigger picture, which is the welfare of the children. So in making the observation that I do about the way in which the case is presented, I do not do that without understanding as to how it might be that Dr F has been, and remains, in the position that I have described.
12. An example of Dr F's inability to focus on the children in preparation for and during the hearing before the judge is his inability to state his own proposal for their care. Dr F seems to understand the judge's criticism on this point as being a technical matter to do with the absence of a statement of his position in the bundle prepared by the wife's solicitor. If that is his understanding, it is a total misunderstanding. Dr F also says that as 'a layman' he believed that it would be over-presumptuous of him to suggest to the judge what the outcome of the case should be. Layman or not, as the children's father, with parental responsibility for them, it was incumbent upon Dr F to tell the judge what he considered to be best for his children. His inability to do so during the hearing, and indeed before me in September, was striking evidence of the lack of focus on these two children.
13. The points that he makes are perhaps able to be considered by taking one or two by way of example. The first is this, and it is a matter that I give prominence to because that is what Dr F does in the more recent material that he has submitted. The bundle for the use of the judge at the hearing was prepared by the mother's solicitor. Dr F's complaint is that the bundle was delivered to him on a day or so before it was submitted to the judge for the judge's pre-reading, that the bundle contained documents which Dr F had never seen before; they were sent electronically as scanned PDF documents and were not orientated within the compass of the PDF file in a way that was easily readable, and he was effectively ambushed by the preparation of the bundle; and, to pick up a phrase which I think I heard correctly over the link, he was 'ambushed against a guillotine', because the time for submitting the bundle had almost expired, and there was nothing he felt he could do about it.
14. Within the point about the bundle is a small but not insignificant, matter of detail. It seems that there was a document omitted from the bundle. It may be part of an affidavit, in which the mother at an early stage of the process as saying that the father had "done nothing wrong", but that it was very shortly after that that she began to make the significant and serious allegations against him that were to dominate the proceedings. Dr F wished to rely upon that document, but in some way was thwarted from doing so. It is not a matter that surfaces in the judgment, and for my part, whether or not she had said such a thing through her solicitors would have been part of the evidence before the judge if it was to be of any great import, and it is difficult for me to understand why Dr F was not able to use that document if it was available to him, and he clearly knows about it and knew about it at the time, whether or not it was in the bundle. Again, in terms of its impact upon the prospects of any potential appeal, the judge's conclusion was that he rejected all of Mrs F's allegations in any event.
15. That discrete point aside, I do not understand the bigger point that Dr F seeks to make about the bundle. It was delivered to him on 24 October; the hearing did not start until 17 November, and it is now not a feature of the case, either on the papers before me or when I asked him this afternoon, that he is able to point to any document (other than the one that recorded his wife's view about whether or not he had done anything wrong) that was not put before HHJ Orrell. It is hard to see that this point about the bundle has anything to do with the children, or had any impact on the hearing when it eventually started three weeks or so after the bundle was delivered.
16. Another point that Dr F makes is that at an earlier directions hearing the parties were required to limit the allegations that they sought to make against each other to no more than ten allegations. He stuck by that direction, made his ten allegations, the mother made nine, but Dr F complains that the judge did not abide by that process and went away from the directed course and looked at the matter on a wider compass. Again, it is not clear to me quite what effect that is said to have had on the determination that the judge made about the children's welfare. That is an example, of which there are many, where the narrow, dry and technical points that Dr F seeks to make do not have a consequence on paper or in argument from him in terms of the order that was made at the end of the day. They appear to be arid technical points that have no impact upon the issue of the children's welfare.
17. In his more recent documents submitted for the purposes of this hearing, where he sought to draw matters together, Dr F seeks to argue that he, as between the two parents, is to be seen as honest and trustworthy, and that he should have a residence order in his favour because it is in the children's best interests for them to have a parent who is straightforward, honest and credible when dealing with the children themselves when dealing with professionals. He puts in contrast the mother's position, which is that she has been found to be unreliable, and he would say dishonest, in the way in which she has made allegations against him which have not been found proved by the judge, and he says that it is not in the children's best interests to be brought up by a mother who is capable of saying grossly untrue and damaging things about the father, both because the children should not be hearing that from their mother and also because the professionals will not be able to trust the mother if the children are in her care.
18. I understand that point. Having read the judgment, I do not think it is possible for Dr F to put himself into the entirely positive and rosy light that he seeks to do, because of course the judge rejected Dr F's own allegations against the mother, in particular in relation to her mental health. On that point, Dr F in the course of his documents for this hearing has sought to say that all he was doing was challenging the mother's psychological functioning; but it is plain from what I have read, and from the judgment, that in fact he was at times putting forward a case which was that she had a mental health condition, a personality disorder, and that the children were not safe in her care.
19. Drawing away from the detail, and trying to make sense of the case as a whole and having absolutely at the forefront of my mind that this is a case about the future of these two children, and not one that is entirely about the past relationship and forensic and other behaviour of the adults, I look to see what the criticism at bottom is about the outcome that the judged favoured, namely that the children should live predominantly with the mother but see the father regularly. It is on this point that I consider that Dr F's case can only fail, and this is a point which HHJ Orrell seemingly had at the forefront of his mind. If the father's case is that the mother is so unfit, so dishonest, so psychologically compromised, so unable to meet the child's health needs, that the children are not safe in her care, how can it be, one asks rhetorically, and HHJ Orrell himself asked this, that the father can sanction, as he did before HHJ Orrell, a 50/50 split in care, or he now does before this court a 30 per cent/70 per cent split? It is not possible to understand the father's case in this regard. HHJ Orrell raised the point firmly with Dr F through the course of the judgment, but Dr F in his response to these points really fails to understand the issue when he deals with it. The judge says at paragraph 100:

"[Dr F] is an intelligent man but his case has a flaw which could be spotted with ease by a person with less intelligence but who is not caught up in the emotional turmoil. If the mother was only one quarter as bad as he describes her, [Dr F] would not have countenanced permitting the boys to remain unsupervised in her care for any length of time."

20. When Dr F is dealing with these matters in the course of his document before the court he states:

"The fact is, I did have concerns. However it is also true, and evident, that I only knew of the level of the problem after the separation. I did not know of this letter from the psychologist, and what it showed, until was revealed by the court. Had I known, I would have taken more care than I did".

With respect to Dr F, his response completely misunderstands the flaw identified by the judge which did not relate, or only relate, to the past but was grounded in the present with Dr F saying it was in the children's best interests to spend 50% of their time in the mother's care.

21. In short, this seems to me to go to the core of the case. Looking at the matter irrespective of the points that Dr F seeks to make, and concerned as I am to ensure that the process as a whole and the conclusion as a whole is not one which is open to challenge on appeal, it does seem to me that, despite the passage of time between the end of the hearing and the writing of the judgment, HHJ Orrell has approached the case on a proper basis for reasons which he has now given clearly. The judge preferred the case of the mother to that of the father on the basis that he describes. Given the antagonism between the two parties, the concept of a joint residence order was, in my view, one that HHJ Orrell was entitled to reject. He also rejected the idea of the two children living 50/50 as between the two households, again because of the very high level of conflict as he identified it to be. That was also an outcome which was well within the judge's discretion.
22. It seems to me, therefore, that the procedural and technical points that Dr F lists and seeks to take really progress the matter no further. The substantive conclusion of the judge, which was to favour the mother as the primary carer, was one that was open to the judge on the evidence and is now one that I see is unappealable, with no reasonable prospect of success.
23. That leaves two further matters to consider. One is the order for contact, and the other in relation to the costs. The point on contact is one that has taken some time to tease out. The judge plainly adopted the template for contact that the mother's solicitor put before him. However, in the judgment written six months later the judge says in terms at the conclusion of his remarks:

"Contact should and, because of the mother's progress, I feel reasonably confident, will be generous and along the lines suggested by Mrs Cook."

Dr F tells me, and he reads from the report he has available to him, that Mrs Cook, the CAFCASS Officer, was in fact recommending that the children would spend four nights of every week with their mother, and the other three nights with their father.

24. That is plainly not the order that the judge made on contact. When this court asked the judge to clarify his approach to contact in the course of the note dated 21 September 2012, the judge sets out a number of quotes from the transcript, and then says this:

"I took the view the mother's proposal reflected Mrs Cook's suggestions."

Unless Mrs Cook changed her suggestions during the oral evidence, which neither Dr F nor I think she did, then it seems, as Dr F says, that the judge was in error in believing that what he was putting forward was endorsed by Mrs Cook.

25. Be that as it may, the judge in the course of the note he has now provided, underlines the thrust of his approach as described in the written judgment. He did not favour splitting these children between the two households, given the level of conflict that was found to have existed in the past and plainly continued to exist in the way the judge saw the parties before him at the hearing. On that basis, some regular overnight contact, but not a 50/50 split, was justified, and again it is not possible to say that the judge was plainly wrong in the order that he made.
26. Finally, in relation to costs, the order for costs is the one that I have described, and the judge's reasons were the reasons to which I have already referred. The question of attribution of costs, if any, in a Family case, is a matter which is under the judge's discretion; and judges have a wide discretion on these matters that will only be the subject of any appeal if it is plain that the judge has gone outside the discretion or has applied the law in some erroneous manner. If the judge had ordered Dr F to pay all of the costs from September 2010, then that might be a matter of complaint. But here the judge, it seems to me, took a proportionate approach; he considered that there was a need to mark the fact that the litigation had gone on for over a year, but ended up at the point almost precisely at which the mother had pitched it in her letter of June 2010. It was also the case that the father had signally failed to put forward any counter proposal at any stage. The judge therefore visited his marking of that situation by saying that the father should pay one-third of the mother's costs from September 2010. Again, it is not possible in my view to say that the judge was in error there or plainly wrong.
27. For all these various reasons that I have done no more than summarise, I am afraid that the application for permission to appeal made by Dr F must be refused, and that is the outcome of this hearing.

Order: Application refused.