England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BIRMINGHAM CIVIL JUSTICE CENTRE
(HHJ EVANS-GORDON)

		Royal Courts of Justice Strand London, WC2
		15th September 2015

1. LADY JUSTICE BLACK: I have before me an application by a mother who wishes to appeal against an order made by Her Honour Judge Evans-Gordon on 8th July 2015. In old terms what that order did was to transfer residence of 3-year-old A from the mother to the father. The mother has been A's primary carer since her birth and the parents have been separated for much of A's life. The father has contact. I think it is common ground that he has a good relationship with his daughter. However, difficulties have occurred particularly in relation to staying contact. According to the judge's summary in the judgment there has been constant litigation for over 2 years with 17 hearings since May 2013. I think that the mother takes issue with some of the detail that the judge recorded of the history in the judgment, but the basic position was that an order for a progression from visiting contact (which on the whole has not caused problems) to overnight contact was first made on 29th August 2013. I do not think that any overnight contact then took place in fact until September 2014.
2. It seems that, taking matters as they appear in the mother's skeleton argument for the moment, both parents sought a variation of that order and the start of staying contact was suspended pending a CAFCASS report. When the case came before a District Judge in May 2014, it seems that the mother did not want the contact to progress to staying contact, at that stage, because she was still breastfeeding the child, who was going to be 2 in August of that year. The District Judge therefore allowed time for the mother to wean the baby and provided for the contact to be overnight, starting in September.
3. The father appealed against that order and the matter came before Judge Hindley. She allowed the appeal and the order that she made then is what is at the centre of the present debate. She ordered the contact on an overnight basis to commence in September, as had the District Judge, but she ordered it to progress to two nights at a time in mid-October 2014 and then three nights at the end of October 2014. There was also to be a split of the school holidays.
4. Four single overnight contacts took place in September 2014 in line with the order. The mother then wrote to the court to say that she was concerned about the effect that the overnight contact was having on A in her opinion. It seems she was also videoing or recording the child's distress at that time, which she attributed to the overnight stays. The first recording I think was on 28th September 2014, according to what was I was told this morning. By then the overnight stays on a single night basis had begun. There was another recording following the overnight contact in the first week of October and there was a further recording in February 2015. It seems that the recordings comprise nine segments and that the total length is 121 seconds. It is fair to say therefore that it is not a very long record of how the child was at a particular time.
5. It is the judge's treatment of this material that is one of the foundations of the mother's proposed appeal. The mother wrote to the court setting out the impact, as she saw it, of the stays on A. She said that impact continued for two or three days after the child's return, although she acknowledged that A went willingly at the start of the contact with the father. She indicated that she would not follow the prescribed progression of the staying contact and she asked the court to review it. She sought in the interim to confine the father's contact to visiting contact.
6. The father's response was, on 16th October 2014, to apply to enforce the order made by Judge Hindley. That application was before Judge Evans-Gordon in July 2015, that is to say on the occasion she made the order which the mother now wishes to appeal.
7. I will return to the factual position thereafter in a moment, but I need to deal with another point along the way to that. One of the complaints that the mother wanted to make by way of appeal was that she was not alerted to the fact that the hearing may have more far reaching consequences than simply the ordering of steps associated with the progress of staying contact and the enforcement of Judge Hindley's order. It was argued, at least in writing, that the judge was not entitled to make the order that she did in relation to the living arrangements for A on an application for enforcement.
8. Ms Kirby has not concentrated particularly upon that line of argument today, wisely directing her and my attention to other points which are made by way of appeal. Consideration of the documents shows that it is not a valid complaint. First, the court is entitled to make an order under section 8 of the Children Act of its own motion. For that proposition, see section 10(1)(b) of the Children Act 1989. It is not necessary to have a formal application, or indeed an oral application from any party, before the court before the order can be made. Secondly, there was ample in the progress of the case, as it moved along to the hearing in July, that told the mother what was going to be under consideration at that hearing and that that included the living arrangements for A. One can see this, for example, at B20 and 21, which is the order of 3rd November 2014. That identifies as one of the issues whether there was any reason to vary the order with regard to where the child lives, and records that the father was giving consideration at that point to putting in an application for a change of residence. One can see it also at B39, in the order of 7th April 2015, in which a key issue identified is whether the child arrangements order should be varied so the child lives with the father. In that order, the CAFCASS officer was also directed to report, amongst other things, on the potential impact on A of a significant change in her living arrangements. When the order refers at B40 to the listing for the July hearing, it is said to be in respect of applications for a child arrangements order, variation and enforcement, not only for enforcement.
9. I return to the chronology. On 3rd November 2014, a revised programme for progression to staying contact was imposed. There was to be visiting contact on Saturdays and Sundays until the CAFCASS officer observed contact and then, in the absence of there being a contrary view from the CAFCASS officer, an overnight stay was to take place, from a date advised by the CAFCASS officer, envisaged to be up to two overnights at a hotel near where the mother lives as opposed to the father's home further away. The contact was then to be extended to last from Friday to Sunday and not necessarily at the hotel. Holidays were to be as in the order of 6th August 2014. There was also to be a contact warning notice on that order.
10. The judge, which was Judge Evans-Gordon at that time, as in July 2015, ordered the CAFCASS officer to prepare a report, including observing the child in the father's care on a Friday (to advise whether there could be overnight contact starting that day and continuing thereafter) and also in the mother's care following the contact on an overnight basis on two occasions.
11. It was probably on the first occasion when this meant to happen, the 5th December 2014, that the mother told the father that A was too ill to travel. The contact was missed on that day. However, on 12th December 2014 the observation by the CAFCASS officer took place. A was seen to be relaxed, happy and very comfortable with the father and, accordingly with CAFCASS's blessing left with him for an overnight stay. She came back to the mother on 13th December. On 15th December the CAFCASS officer observed her again and did not see anything that was concerning to the CAFCASS officer. It was not thought therefore by CAFCASS there was any reason why the overnight stay should not continue. There was a further observation of A with her mother on 12th January 2015. Again nothing significant was seen by CAFCASS on that day.
12. The CAFCASS officer spoke to the maternal grandmother that day. The maternal grandmother supports the parents with the handovers. The grandmother mentioned some minor concerns only and said that A's presentation on return from time spent with the father was quite good.
13. The contact was due to include holiday contact at Easter. The mother sought a variation of that. The judge ordered on 16th February 2015 that A should have one week at Easter and also half of the May half-term with her father. The mother filed a statement saying that she would not comply with that. The father therefore applied at the end of March for enforcement in advance of that. There was an urgent hearing before Judge Hindley on 1st April 2015. The mother was not there. Attempts were made to contact her on the morning of the hearing. The order confirmed that the Easter contact would take place and a penal notice was attached to it. However, the matter seems to have come back to court following the mother having notified the court that she was unaware of the hearing and unable to attend and was not going to make A available for the contact. It was back before the court on 7th April and the court had to take a pragmatic approach to things because the time available was insufficient to go into matters in any depth. The judge therefore, as is recorded in the order made that day, decided that what was most likely to work out was to take the course proposed by the mother because she was most likely to comply with that. So three nights at Easter and five nights in May were ordered.
14. In July, at the hearing, the judge heard evidence from the parents, the maternal grandmother and also the CAFCASS officer. She recorded that the mother had breached court orders in relation to staying contact on four occasions and that the last occasion had been as recently as 1st April and had been in the face of a penal notice. I understand from Ms Kirby today that that assessment of the judge that there had been four breaches cannot be challenged on behalf of the mother. The judge's view was, in line with the advice that she received from the CAFCASS officer, that there now needed to be a final order before A became aware of and embroiled in the adult dispute. The mother's evidence was that she was firmly of the view that A was too young to spend more than two or three days apart from her because she became stressed, anxious and insecure on her return home. She gave evidence of A being distressed after the Christmas stay. The judge seems to have thought that the distress may have begun before overnight stays began. She seems to have gathered that impression from other parts of the mother's evidence. She is criticised because that is said to be a wrong view of the chronology. I will come back to that in the context of the video recordings. The mother declined to reassure the judge that she would comply with the orders in the future, when she was giving her evidence, and she said that she would breach them if that was in A's interests. The programme that she proposed for staying contact would not have progressed to more than three nights staying contact until February 2016 with relatively slow progress thereafter.
15. The CAFCASS officer was clear that A should spend extended time with the father now, that she would benefit from that, and she would also benefit from being able to meet her wider paternal family in Ireland. The CAFCASS officer felt that an extended progression such as the mother proposed would not be in A's interest because she would become too aware of the adult conflicts and be at risk of emotional damage. The CAFCASS officer also thought it was not necessary to go as slowly as that.
16. The judge essentially accepted that advice about the progress of contact. She set out her findings and her reasoning from paragraph 27 of her judgment onwards. She acknowledged in commencing this section that change of residence orders are relatively unusual and are usually made where there is implacable hostility or intractable dispute. She acknowledged also that A had not been alienated from her father. The evidence was all to the effect that A had a good relationship with him.
17. She made a number of findings adverse to the mother. She found that the mother attempted to deceive her over A's health, that is to say the impact that the visits overnight to the father had upon her physical health. In making that finding she relied upon the fact that nothing untoward of this kind had been mentioned to the medical professionals, the general practitioner or the community nurse. She also relied upon the fact that the mother's account was contradicted by the maternal grandmother. She found that the mother had exaggerated the effect of the overnight stays. In so finding she referred again to the absence of any mention of this to the health professionals. As I understand it, that particular finding of the matter not being expressly mentioned to the community nurse on 8th December 2014 cannot be challenged on behalf of the mother either. It is said by the judge that on that occasion the mother had explained to the nurse the difficulty she was having about contact but nevertheless said that A's conduct and behaviour was fine and caused her no concerns.
18. The judge dealt at paragraph 31 with the video evidence. She recorded that she was not asked to see it. Ms Kirby makes the valid point that the mother was in person. That does not avoid the difficulty that arises when a judge is criticised afterwards for not watching something she was not asked to watch at the time.
19. The CAFCASS officer did see the material. I return to the point about the date on that material. The judge recorded that she accepted the CAFCASS officer's evidence that the material was undated and she is said to be wrong in so doing. It meant that she thought that the material started before the overnight stays did. I am prepared to accept, for the purposes of this evaluation that I am carrying out at the moment, that the judge may well have been wrong in her view of the dating.
20. However, the difficulty for the mother is that the judge gave other reasons why the video material would not assist her. She said that the parts quoted to her were attributable to normal child concerns at night and that there was no way of relating the material to the visits to the father.
21. The judge had material from the CAFCASS officer about the grandmother not speaking of problems after contact overnight. As I understand it from the judge's judgment the grandmother said that the CAFCASS officer had misinterpreted what she said. But we must infer, I think, from the judge's judgment that she accepted the CAFCASS's officer's account of what the grandmother has said. So there was material from the grandmother which did not speak of problems after contact.
22. So even if the video was made at a relevant date for the purposes of the question of distress after contact, the judge had other material on which she was entitled to rely to decide that she was not going to set store on what it showed, in terms of being evidence supporting the mother's case about distress. I observe that it was a very short recording on each of the occasions. As I understand it, much of it was recorded in the evening. That ties in with what the judge said about ordinary child concerns at night. It is often the case that evidence of this kind is equivocal as to the cause of the distress and it appears that the judge took the view that it could not be safely attributed to the overnight stays.
23. She also had, to complete the picture with regard to that, the evidence of the CAFCASS officer as to the lack of signs of distress at around times of contact, despite the fact that the mother had said that on occasions it was protracted, and she had the common ground of there being a good relationship with the father.
24. In all of those circumstance, notwithstanding that she did not look at the video herself, it seems to me the judge was entitled not to accept the mother's evidence that the overnight says were causing extreme distress. She was entitled to find there were signs that the child was becoming unsettled because of the situation between the parents and over contact and that there was a significant risk in future she become further unsettled and damaged emotionally if matters were not resolved now. That is the finding she made in paragraph 34. She found that the relationship with the father was likely to be adversely affected if it went on as at present.
25. The rejection by the judge of the mother's evidence of the distress following overnight contact no doubt contributed to the finding that she made that contact had not in fact been promoted by the mother. I do not take it that the judge meant by that that the mother was not promoting a relationship between the father and the child. What she was doing was recording the problems that there had been in progressing to staying contact such as the court had ordered. The judge called it disguised compliance on the mother's part. It may be that she could perhaps more aptly called it disguised non compliance, that is to say hiding behind perceived problems. She found in an important finding at paragraph 28 that the mother was highly unlikely to comply with an order with regard to the expansion of overnight staying contact. She based that upon the history of not complying and also what the mother had said herself in evidence. Given what the mother had said in evidence, it seems to me the judge was entitled to reject as she did the mother's contrary assurances in the course of final submissions.
26. The twin factors of the need in A's best interest to progress with staying contact and the need to bring the constant litigation to an end so she was not affected by continuing dispute lead the judge to the imposition of the change of residence. She made a very important finding at the end of the paragraph 36 in trenchant terms where she said:

i. "Whether it is a question of arrogance, control or something else entirely I do not know, but I am satisfied that [A] would be at significant risk of a loss of or deterioration in her relationship with her father if the contact arrangements are left in the control of [Ms H], and this would adversely affect her emotionally in the years to come."

27. The judge reasoned to a change of residence by a consideration of whether she could deal with the matter otherwise. It is fair to say that is not a large part of her judgment, no doubt because she had concluded that the mother had disobeyed orders on more than one occasion in the past, including when there had been a penal notice, and was likely to breach any order made with regard to extended time. But she did consider expressly, for example, a suspended order, concluding that it was likely to lead to further litigation. She also considered, in reasoning to her conclusion about the change of residence, what impact the change of living arrangements would have on the child. She accepted, in that respect, the CAFCASS officer's advice that it would not be significantly adverse to A given that she was used to spending staying in the father's home and had a good relationship with him. She referred to the welfare checklist and she considered factors which were on it.
28. The welfare chcklist has been, however, the focus of Ms Kirby's submissions today, which have particularly addressed the judge's treatment of the wider factors that come into any change of residence. Ms Kirby argues that the judge was wrong to have made the order that she did, concentrating too much on the single question of contact and failing to take account of the practicalities of the move, the good features that there were in the mother's care and the downside of moving the child from a settled place of residence to live with her father and to be cared for at times by her paternal grandmother because her father works. That is the area of the appeal to which I too have given the most consideration.
29. The argument is supported by reference to CAFCASS officer's reports which it is pointed out do not contain a comprehensive evaluation such as one often sees in cases of this type of the pros and cons and practicalities of each of the two parents' arrangements. It is said that the change of residence in this particular case was disproportionate, contrary to Article 8, because it was not necessary in the circumstances.
30. It is fair to say that the judge did not have as much assistance from the CAFCASS officer as she could have had in terms of the wider implications of the order. It is fair also to say that she might have amplified what she said about these aspects of matters in her judgment. However, I am not persuaded this would be an area which would succeed in persuading an Appeal Court to overturn the judge's decision. She was anxious to ensure that she considered what the impact would be of the change on the child. She started from the proposition that it was necessary to bring matters to an end which was entirely open to her to consider. She did that because she considered that there would be damage to the child if matters continued. She took the view that there would not be compliance with anything less than the order that she was proposing and she took the view that the expansion of contact was necessary in the interest of the child.
31. This was a case in which the child had spent time in the care of the father, was familiar with the home in which he lived and had a good relationship with him. This was not a child going to the care of strangers. Ms Kirby says these sorts of orders should be reserved for cases of implacable hostility, cases where the end of the line has come. But it seems to me it has to be borne in mind that the protagonists in this case were two caring parents, both of whom had good relationships with the child. The impact of the change of residence here was therefore going to be less than it might in some of the hostility cases.
32. The judge carried out an assessment of the history, she evaluated the impact of the change, she exercised her judgment after seeing the witnesses and considering the history, and the Appeal Court does not interfere readily with a value judgment formed by the judge after carrying out that process. An Appeal Court does not have the advantage of evaluating the witnesses and the history of the matter in the light of what the witnesses say and therefore is not in as good as position as the trial judge. I am not persuaded that there was any material misdirection by the judge herself in these circumstances. Ryder LJ concluded that the decision was well within the range of value judgments open to the court when he refused permission on paper. I do not disagree with that assessment. It seems to me therefore that there is no real prospect of success for any appeal in relation to this matter and I must therefore refuse permission.