England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LEICESTER COUNTY COURT AND FAMILY COURT
(HIS HONOUR JUDGE BELLAMY)

		Royal Courts of Justice Strand London, WC2A 2LL
		13 September 2016

Lady Justice King :

1. This is an application for permission to appeal and for permission to appeal out of time made by the Applicant father against orders made by His Honour Judge Bellamy whereby:

i) He made a Parental Responsibility Order in the fathers favour in respect of the child SB, a little girl born on 23 May 2005 (12 years 3 months).

ii) SB lives with her mother but has indirect contact with the father on terms as set out in the order.

iii) That the mother make SB available for contact with the parental family and in particular with her parental uncle.

iv) That the father prohibited steps order preventing the father attending contact with the parental family, approaching SB's school or her general practitioner, of from removing her from the jurisdiction of England and Wales.

v) The father's application for the child's psychiatric report refused.

2. The father seeks also to appeal against an order made on the 24 June 2016 by the judge, whereby he ordered that his judgment in relation to the application for contact be published upon the normal terms namely, ensuring the protection of their identity, of the child and adult members of the family. The mother and father were both unrepresented at trial, although each had the benefit of a MacKenzie Friend. SB was represented by NYAS.
3. The father's grounds are stated to be: i) Significant procedural or other errors. ii) Judicial bias. Not withstanding that the father's skeleton argument significantly exceeds that permitted under the rules. I have read and considered it carefully. The father's grounds for submitting that he has a reasonable prospect of succeeding in an appeal against the orders made by the judge can be distilled into a number of themes: i) his criticism of the work and evidence of Mr McCarthy, the NYAS guardian ii) the judges approach to the extensive covert recordings produced by the father both of discussions with professionals and of contact iii) the judges approach to what the father regards as an 'alienation case', iv) the judge's failure to allow the father's application for the child to be seen by a child psychologist.
4. As recorded by the judge (para 123) SB has, over the last 3 years expressed her wishes and feelings clearly and consistently, namely that she does not wish to see her father; she has said so in discussion with two CAFCAS officers, with her NYAS case worker, with a social worker and with the judge. As the judge observed she is an articulate, intelligent 11 year old girl who displayed a degree of maturity well above her years. It was against that backdrop that the judge had to consider the application by the father for a reconsideration of the Child Arrangement Order which would permit direct contact.
5. The judge inevitably therefore, had to examine the reasons why SB, having previously enjoyed contact, and indeed gone on visits to Bulgaria to visit her extended paternal family in the past, should now be refusing contact.
6. The father in support of his case that this was a case of deliberate alienation by the mother, sought to rely on various covert recordings made by him over the years. The judge took the opportunity of inviting a number of interested bodies to make written submissions in relation to the use of covert recordings of interviews and telephone conversations with practitioners. Such an invitation was neither necessary nor relevant to the decision to be made by the judge, and on his own account was intended "to stimulate discussion on the issue out of which perhaps some general guidance might emerge". Mr Graham points out that some 20 pages of what is a lengthy judgment was concerned with a consideration in the abstract of the use of covert recordings. Mr Graham submits that such an approach was unhelpful and inevitably gave the father the impression that the judge was not focused on his particular case.
7. It is unfortunate that judge's interest in the wider issues thrown up has now been interpreted as judicial bias by the father and I can see how the father may have reached the conclusion that the judge had become over-concerned with the wider issues in relation to the use of covert recording. Happily, however, the judge dealt in a discreet passage within the judgment with the issue that relates solely to this case in relation to those covert recordings. In an exemplary passage, the judge concluded that the father should be permitted to rely on the recordings, not withstanding the mother's objections and NYAS's expressed neutrality. The judge rightly concluded that such recordings were admissible and that the issue is as to relevance; the judge accepted that those recordings are relevant in the context of the father's case, not least in relation to his assertion his assertion that the mother has deliberately alienated SB from him. At paragraph 119, the judge set out in five numbered paragraphs why he concluded that little weight should be attached to the recordings.
8. In my judgement the judges analysis cannot be criticised and it is a matter for the trial judge, having seen and heard the parties give evidence and having viewed the video recordings in question, to determine the weight to be attached to any particular piece of evidence and to draw his own conclusions as to the correct interpretation of that evidence. I note that whilst expressing his disapprobation of such covert recordings, the judge nevertheless referred to certain cases where they have had a significant effect on the outcome of the case.
9. The recordings were but part of a much larger evidential picture. And were not as Mr Graham seeks to persuade the court effectively determinative of the case. The judge found at para 125, that SB has become alienated from her father.Mr Granham submits that this is an 'implacable hostility case' and he has drawn my attention two authorities which relate to implacable hostility.
10. Implacable hostility is exactly that: a case where one parent has become (usually irrationally and for poor motives) implacably opposed to contact taking place between a child and his or her absent parent. That is, as I sought to remind Mr Graham, is or may be very different from a case where a child has become alienated from a parent.
11. Careful consideration of the judgment makes it clear that the judge whilst finding that SB had become alienated from her father, also found that this was not as a result of a deliberate strategy on the part of the mother. The judge found that the mother bears some responsibility for the fact that SB has become alienated from her father, by having allowed SB to over hear conversations between herself and the grandmother in which negative comments have been made about the father. The judge was also concerned with the mother's insight into the damage this would have caused and he was left doubting whether the mother could be relied upon to promote restoration of direct contact. The judge however found that the father also bore responsibility for the fact that SB had become alienated from him. The judge refers to the fact that contact has not always been positive and sets out during the course of the judgment examples of the father's ambition for his child resulting in her feeling under pressure from him during contact in respect of a number of different aspects, a fact noted by the school.
12. The judge concluded, having heard all the evidence, that the father was "not in tune with his daughter, lacked empathy and understanding, and believed he should be allowed to set the agenda for contact without taking any real account of SB's own wishes and feelings" (127). The judge concluded therefore that both parents bore responsibility for the fracture in the relationship between SB and her father, and specifically said he was unable to conclude that her clear expression of her wishes and feelings were either "irrational or unreliable".
13. Against these findings of alienation resulting from the behaviour of both parents as opposed t to a finding of a finding that the mother was implacably hostile to contact that the judge considered the father's application for SB to see a child psychiatrist.
14. The judge considered the application (133) pointing out how many people SB has already been seen by and who have asked about her wishes and feelings. The judge concluded that to see a psychiatrist would be deeply distressing and that she may well wonder why so many people have tried to ascertain her wishes and feelings only to completely ignore them.
15. The judge concluded (para 143) un-hesitantly that expert evidence was not necessary. He did not feel the need for professional evidence over and above that of "the experienced and competent case worker instructed by NYAS and noted that what SB wants and needs is an end to the litigation and the opportunity to get on with what remains of her childhood".
16. Mr Graham makes trenchant criticism of the NYAS officer. The judge considered the evidence of Mr McCarthy during the course of his lengthy judgment. The judge properly weighed up the evidence and submissions made by Mr McCarthy. He broadly agreed having seen and heard the father in the witness box, with Mr McCarthy's assessment of the father and the father's approach to SB; although rightly in my view the judge did not accept Mr McCarthy's view that the father should not be granted a Parental Responsibility Order. The fact that the judge sought an addendum to deal with a number of specific issues was unfortunate but in no way undermines Mr McCarthy's central analysis of the case.
17. Mr Graham went through in detail what he referred to as 'procedural irregularities' this conflate the earlier proceedings with the current proceedings and he understandably complains about the unacceptable delays on the part of CAFCASS in relation to earlier proceedings heard in the magistrate's court.
18. There is no doubt that this case has been dogged by delay, and one can only sympathise with the father's resentment and frustration as a consequence. The delay did not in my judgment impact upon the judge's findings.
19. In my judgment, there is no prospect of the father succeeding in appealing the orders made by the judge. Far from being guilty of bias, the judge maintained his independence at every turn, for example: he rightly granted the father a Parental Responsibility Order, notwithstanding the objections of all the other parties, and he also intervened in a proactive and robust manner in order successfully to reintroduce direct contact between SB and her uncle. The judge's approach to the covert recordings was in accordance with the law as it now stands. The judge's conclusion, that both parents must bear responsibility for the present state of affairs was reached after careful consideration of all the evidence and having seen and heard the parties give oral evidence. Accordingly permission to appeal is refused.
20. I turn to the second part of the application, which is in relation to the publication of the judgment. Mr Graham says that, in the father's view, the judgment is not a realistic reflection of the case and therefore it should not be published. In the light of my conclusion that there is no real prospect of succeeding in an appeal against the judge's order, and accordingly the judge's finding must stand, such a submission has no merit and must fall away.
21. Mr Graham further submits that the detail of the case, if published, would not only serve to drive a further wedge between the parents, but would also have a significant impact upon SB in the event that she read the judgment which would be freely available on the internet.
22. In itself such a submission would not lead me to granting permission; it seems to me, however, that there is a further important issue to consider which leads me to conclude that pursuant to CPR 52.36(b), there is some compelling reason why the court should hear the full appeal in relation to the question of the publication of the judgment.
23. His Honour Judge Bellamy, a circuit judge, has purported to provide guidance as to how covert recordings should be approached in this very difficult area: he gave the guidance in circumstances where he had neither the approval nor endorsement of those guidelines by the President of the Family Division, nor had they been considered by the Law Commission, or rules committee. There is, in my judgment, an important issue as to whether in those circumstances it is appropriate for the judge's views as to the proper approach to covert recording to be disseminated on the internet, available to the professions and all those advising parents, including McKenzie friends.
24. Accordingly, in respect of the ground of appeal in relation to the publication, I propose to list that matter for further oral permission to appeal, with appeal to follow if allowed, to be listed for 2 hours, to be listed before the President and myself. In those circumstances I also leave open the argument by the father as to the impact on SB of permitting the judgment to be published.
25. I will discuss with listing as to when that can most conveniently be put into the list. I therefore dismiss the application for permission in relation to the order providing for contact, parental responsibility, section 91 and the applications for experts, but adjourn the application for permission to appeal with appeal to follow if granted in relation to the publication of the judgment.