England and Wales Family Court Decisions (other Judges)

IN THE FAMILY COURT
SITTING AT LUTON


IN THE MATTER OF THE CHILDREN ACT 1989
AND IN THE MATTER OF: M (CHILDREN)

		2nd Floor Cresta House Alma Street Luton LU1 2PU
		17th March 2015

Approved Her Honour Judge Lindsay Davies 1 July 2015 JUDGMENT

HER HONOUR JUDGE LINDSAY DAVIES:

1. This is a case involving two boys:

B, born on 6^th September 2007, so he is now 7½;

C, born on 3^rd August 2009, so he is 5½.

2. The litigation in this case began in 2009 when the parties separated prior to C's birth. The litigation has proceeded without ceasing to today. We are now in March 2015. There have now been three section 91(14) orders which have given very brief periods of respite to these two children on the issues of contact.
3. On 9^th October 2014 I heard a fully contested contact application. The boys live with their mother, they have contact to their father. They have contact to their father every other weekend. There had been many difficulties between the parents about handover at the beginning and end of contact. In October 2014 the issues before the court were set out in the father's application, which is he wanted to collect the boys from school on a Friday and take them to school on a Monday. He also wanted to have contact to the children for one half of the school holidays. He opposed the making of a further section 91(14) order. The mother's case in October was that contact should not start at or end at school for a number of reasons. She asked for a section 91(14) order for five years. I heard evidence on that day from the CAFCASS officer who gave evidence and was cross-examined. I heard evidence from the father and from the mother.
4. The father represented himself in October 2014 and represents himself today. He is an experienced McKenzie Friend and represents other fathers in applications for contact. So although he is a lay person he is well aware of the legal principles that must be applied. The mother has been represented. She was represented in October 2014 and she is represented today.
5. I came to the conclusion in October 2014 that there were a number of specific matters to take into account in respect of both the children and there were particular issues as to the capability of the parents. I read from the judgment that I gave in October 2014: the mother was extremely anxious, it appeared, because of her dislike and lack of trust. She could not separate her own anxiety about the father from her worry about the children. Her anxiety was having an impact upon her and may well be having an impact on her ability to really look at the children's needs. The father, I found, was over focussed, controlling to some extent and determined. He has, I said, a desire to have a shared care arrangement for the children and his approach to the case has meant that he, just like the mother, was incapable of standing back and really looking at what the boys need.
6. I considered the orders that I could make and the range of orders. I found advantages and disadvantages in a number of previous orders and I came to the conclusion I had to make a new order which dealt primarily with the practicality of handover. I considered all the people who were identified by the father or the mother as potential people who could be involved in handover. In paragraph 24 I asked myself what was the problem with pick up and drop off from school and I said as follows:

"From the reports I have read B has found it extremely difficult to go to school, particularly last year. There were days he could not be left in the playground with other children and special arrangements had to be made for him to be taken into school by his mother. Eventually he decided he could stay in the playground and has managed to line up and go in with the other children most of the time, but not necessarily every day."

I came to the conclusion therefore that dropping off at school is not something that B would take to calmly, confidently or easily and I was satisfied that to make any arrangement where B is dropped off at school at the end of a contact would not be in B's interests at this stage.

7. I then considered the question of picking up from school on a Friday and I noted in paragraph 25 that, most unusually, the school had made an arrangement with the mother that she could come into school every afternoon for half an hour or 20 minutes before the end of school to help B deal with the transition between school and home. Today, while we were at court, the maternal grandmother had to do it. Father in fact goes into school one day a week and helps with reading with children, so he is often at the school. He is in school every week for one day. He also goes on school trips or outings with the school and I said this: "I can see no reason why the father cannot one day a fortnight do that half hour transition with B." So the order I made would provide that the father could collect the boys from school on a Friday.
8. Paragraph 26. I made that order taking into account the fact that the school was concerned that there is no fuss or trauma and it may be that this does not work. It may be that B becomes so anxious that the father recognises that something else has to happen and has to ask the mother to come back in and do the handover. I took into account that Mrs Hardy, the CAFCASS officer, was concerned about this, but I said: "I am satisfied this is a gentle change that is worth trying." I made it clear that the order was not going to start straight away because B needs time to get used to the idea. So I directed that from 14^th November 2014 father can collect from school at the end of the school day.
9. I made it clear that the Sunday handover would be by six o'clock and the only change on the Sunday would be that the father was to make sure the children had been given their main meal before they went back to their mother.
10. In Paragraph 28, I said that this pattern will continue for the rest of this academic year and until October 2015. This will give B one further year and a month of the new school year to get used to what is going to happen next, which is from the first contact weekend in October 2015 the father will drop the children at school on a Monday morning. I said this:

"I have taken into account that any change needs to be gradual and carefully handled. I am satisfied that a year for B will give him time to get used to the idea and for father to find a means of coping and a strategy if there is any difficulty in getting B to school."

I had taken into account the evidence that I had heard about how gently one had to handle change for B.

11. Having made the order for handover, I was satisfied from everything I had heard and read that the boys needed a further period of peace, tranquillity with no litigation. I directed a further section 91(14) order. I considered that five years, which is what the mother was seeking, was too long in the life of the children. As the order I made provided what was going to happen throughout 2015, I directed that pursuant to section 91(14) neither parent may make any further application without obtaining prior permission from the court until 1^st July 2016.
12. The case comes before me today because, despite that order which was not appealed and therefore stands, the order in which I made it quite clear as to what was to happen at the beginning and end of contact, the father has chosen not to comply with the court order. He considers, and he has made it clear to me in his submissions today, that the order I made was wrong. He considers that the order I made has failed. He considers the order I made was unreasonable. He considers the order I made was so inappropriate he asks me to recuse myself from considering this case any further.
13. Mr M is an intelligent man who knows and understands that court orders must be obeyed. As I say, there was no appeal against the order. It was carefully drafted, carefully crafted and the order stands. Mr M has made it clear to me that he did not comply, he accepts he did not comply, with the order by failing to return the children to the mother as the order provided. I think the last time he did return them was on the contact in January. There have now, I think, been three visits where the father failed to return the children and the father accepts and admits he is in breach of the order.
14. The mother made an application to suspend contact. Her application was dated 4^th March. I gave Mr M one last opportunity to comply with the order because contact was to take place on the weekend of 7^th and 8^th March. Mr M chose not to comply with the order. Consequently the issue before me today is the mother's application to suspend contact on the basis that father has made it clear he will not comply with the court order.
15. This is an extremely sad situation for these two boys who, I have no doubt, have enjoyed spending time with their father, but the father's dogmatic approach to this case has forced the court into the position that the order that was made on 9^th October 2014 must be suspended due to the father's intransigent approach and his refusal to comply with that order.
16. As I say, this is extremely sad for his children. I am satisfied Mr M has not put his children first in approaching the case in the way that he has. I have no option but to suspend the order. I cannot permit these children to go with their father on a Friday night from school knowing that the father will not return them on the Sunday as I directed.
17. I asked Miss McKenna if the mother would comply and would agree with an order for the children to have contact to their father at a contact centre. That is not as good for the boys as the contact I had ordered in October 2014, but I am satisfied the boys do need to keep in touch with their father and, as he is incapable of complying with the court order for staying contact, the only contact that the boys can have until such time as Mr M confirms he will comply with the October order is for him to have contact at the X Contact Centre for two hours on alternate Saturdays. Mr M must make the arrangements with the contact centre for that to happen. I do not know whether they have got a space, I do not know which Saturdays are available to the children, but contact can take place and the mother must take the children to the X Contact Centre for contact to take place for two hours at the X Contact Centre once Mr M has made those arrangements with the contact centre.
18. If Mr M finds it within himself to comply with the order of 9^th October 2014 he is to notify the court and notify the mother of the arrangements he has put in place for the children to be returned at six o'clock on a Sunday night.
19. Mr M tells me that he would be able to comply and he would be willing to comply with the order during the Easter school holidays. Sadly I cannot accept that statement at face value in the light of his approach to the case overall. I cannot permit these boys to go with their father unless there is some clear and unambiguous evidence that they will be returned on the due date. So, sadly, due to Mr M's approach to the case the boys will miss out on the additional days holiday in the Easter school holidays.
20. So that is the order that I make in order to enforce the contact order I made in October 2014. The order is suspended until such time as Mr M can produce some evidence that he will comply with it and meanwhile there can be contact at the contact centre. That is in X that is dependent upon Mr M making the arrangements.
21. Save for that, the conditions that were set out in that order continue to apply. Neither parent shall communicate directly with the other. In an emergency only connected with the immediate contact an email message may be sent. The parents will consider employing a mediator to assist in communication between them. Any arrangements the father makes with the contact centre will have to be notified to the mother via her solicitors. That is the only way that can be done. The order remains suspended but paragraph 2 and 3 stand.

THE JUDGE: Now, what about costs?

MISS MCKENNA: My client yesterday served a costs schedule on the court and Mr M. Here are further copies if they are not immediately before you. Mr M has this already. She has been put to fantastic expense over the years, but I address you—

THE JUDGE: I am not interested in that.

MISS MCKENNA: —only in respect of this. Those are reasonable costs that she has incurred in seeking to deal with the issues which have now been stretching from early January right through to as recently as 8^th March, obliging her to make this application which the court has acceded to without hesitation. I invite you in the circumstances to treat this case as one where the father has acted completely unreasonably, flagrantly breaching and deliberately breaching the court order without warning and repeatedly and therefore, taking into account his conduct throughout the proceedings since the order of 9^th October and bearing in mind how reasonable it was of my client to bring the matter back to your attention as soon as she did, that a costs order is appropriate and meets the needs of this case.

THE JUDGE: Mr M, what do you want to say about costs?

MR M: She has brought both her solicitor and her barrister here today. She has obviously expended far more than she actually needed to. She could have represented herself in this case. I mean, she has been doing this for long enough. I do not know what these three hours attendance at a hearing on 17^th March, that presumably is the solicitor.

MISS MCKENNA: It is an under estimate of what has actually happened.

MR M: So counsel's fees £2,100.

MISS MCKENNA: Of 20 years' call.

MR M: And two hours and [54?] minutes dealing with documentation, preparation [I do not know what that all was?] but maybe that was the three copies of various documents they sent. They have not actually submitted an application. They did not comply with the order to put their position statement in and the costs that they have incurred on here are excessive.

In addition to that I am also returning to court regarding the finances because I am unable to pay the periodic payments. I am now in debt to the tune of some £21,000, paying costs in that and they are claiming a further £5,700 which I cannot afford to pay. They have put an application in to have a charge on my house. I have paid that off but they have refused to discharge it. They are clearly attempting to sell my house from under me and this will be further added to that.

I would also like to say about the X Contact Centre it is actually open ten till four, not two hours, it is six hours. Would the court accept a letter from my mother saying that she would return the children after the Easter holiday?

THE JUDGE: No. I think for me to be satisfied that there is a clear and unambiguous arrangement made for the children to be returned I would require a formal undertaking given in court.

MR M: Formal undertaking given in court?

THE JUDGE: A formal undertaking given and that would carry with it penal consequences, which is if somebody breaches an undertaking then there are contempt proceedings that can be brought.

MR M: All right, I am aware. So that frees the holidays.

THE JUDGE: So that would require a formal undertaking.

MR M: All right.

THE JUDGE: Right, anything else on costs?

MR M: I think I have said about as much as I can on that. Plus the fact that we have, you know, this hearing being in Luton, not in Cambridge, has incurred additional costs getting here and additional time which was over and above what would normally be incurred.

The other aspect was a CRB checked, school licensed taxi cab which could still be used to return the children. This is used for children with special educational needs to transport them, thousands and thousands of children every day, to and from school. This is a perfectly acceptable means of transporting children.

THE JUDGE: You are adding to your submissions. I have dealt with the case, Mr M.

MR M: Right.

THE JUDGE: And you will find in my judgment I considered the question of a taxi.

MR M: Yes.

THE JUDGE: I am not revisiting my judgment.

MR M: Right. So you are saying that a CRB checked, school licensed—

THE JUDGE: I am not revisiting… Mr M, I am dealing now with costs.

MR M: All right. So that is still not possible.

THE JUDGE: I am dealing now with costs.

MR M: Right.

22. I am satisfied that the applicant, H M, had no other option but to return this matter to court once it became clear that Mr M had no intention of obeying the order of the court and I have found that she was entitled to do that and she has succeeded in the application she has made, which is to suspend contact. Consequently I am satisfied that in the circumstances of this case she is entitled to her costs of this application.
23. The total costs on the schedule that is before me come to some £5,078.60. Mr M says that that is an excessive amount, it is very high. He challenges the number of hours that have been spent on telephone calls and letters and the necessity for both a solicitor and a barrister to attend court. He challenges the amount that has been paid to counsel.
24. The only matter upon which I consider that Mr M has a valid point is I consider it is not necessary for the solicitor to have attended court as well as the barrister today. Miss McKenna is more than capable of representing her client without having a solicitor with her and I consider that the sum of £900 that is claimed for the attendance of the solicitor at court should be deducted from the costs that are payable. I, of course, note in passing that everybody has been here for much more than the three hours that are actually claimed, but in any event I consider it was not necessary and so in those circumstances I do not require that sum to be paid. Save for that I make a direction that Mr M is to pay the costs.

THE JUDGE: So I need to recalculate the VAT I think. So that means that the total costs is £1,403, plus 20 percent is £280.60. That means that that comes to £1,683.60, plus the court fee of £215, plus counsel's fee of £2,100. That brings it to £3,998.60.

So Mr M is to pay the costs of £3,998.60.

MISS MCKENNA: Within 14 days, please, your honour.

THE JUDGE: In 14 days. Thank you very much.

MISS MCKENNA: Does your honour require me to submit an order to record your order or will the court be drawing it itself?

THE JUDGE: If you can submit it that would be very helpful, thank you very much.

MR M: Sorry, permission to appeal.

THE JUDGE: You want permission to appeal. On what basis do you seek permission to appeal, Mr M?

MR M: That your underlying order was incorrect, that—

THE JUDGE: Permission to appeal on the basis?

MR M: There was no application—

THE JUDGE: Hang on. On the basis that the underlying order was incorrect. Which underlying order do you mean?

MR M: The one on 9^th October. That there was no application—

THE JUDGE: No, hang on. I have just got to make a note of this.

MR M: Sorry, all right.

THE JUDGE: Right, that is the first ground. Second ground?

MR M: There was no application to enforce the order.

THE JUDGE: Right.

MR M: That the order has not been enforced and it has been varied. That it is still possible for me to pick up the children on a Friday and return them to the contact centre on a Saturday at 4pm so that they could have an overnight stay with me, so it is not in the children's best interests. That there is a perfectly acceptable means of transport available, that I have brought to the court's attention before, which is a taxi. That it is not within my power to compel anyone to transport the children. That the children can be taken to school by me on a Monday morning without any significant harm. All right.

25. Right. Mr M seeks permission to appeal the order I have made and he sets out seven grounds on which he says he should be given permission to appeal. I have to consider whether or not there is reasonable ground for success in any appeal when I am considering whether or not to give him permission to appeal.
26. The first ground he seeks permission to appeal on is that the order made on 9^th October 2014 was incorrect or wrong. It is now far too late for him to try and appeal the order of 9^th October 2014. The order I have made is the order today. That is the order suspending contact until such time as he complies with it. So I am satisfied there is no reasonable prospect of succeeding in appealing the order I have made today by arguing that the order that I made on 9^th October 2014 was wrong.
27. Secondly, he says that there is no application before me which has enabled me to make the order I have. I am satisfied he is wrong on that. What has come before me today is an application by the mother dated 5^th March 2015 to suspend the order for contact. She also, of course, asked for an order that the police should be involved in collecting the children. I have not done that, but I have suspended contact because the father has not complied with it and has told me he will not comply with it. So I am satisfied that an appeal on that basis cannot succeed.
28. Thirdly, he argues that he should have permission to appeal because I have in fact varied the order of 9^th October not enforced it. He is wrong. I have suspended that order until such time as he is able to demonstrate to the court unambiguously that he will comply with the order of 9^th October. If he is able to demonstrate that in an unambiguous way then the order will be reinstated. So the order has not been varied. Because I am concerned that there should be an opportunity for the boys to see their father I have made provision for the contact centre to be used for visiting contact, but that is dependent upon Mr M putting that in place. It is, I acknowledge, not as good contact as the order I made in October but it is the best I can do having the children's interests as my paramount concern. So I am satisfied that he cannot succeed on that ground.
29. Next he argues a new point that has not been put before me today at all, which is that it would be possible to change the order so that he could collect them from school on a Friday and return them to a contact centre on a Saturday. That, I suppose, might be possible, it might not be possible. It has not been argued before me. It is not appropriate to raise on an application for permission to appeal a matter that has never been argued before.
30. Next he argues that I should have allowed the boys to be returned to their mother on a Sunday by way of a taxi. That is a matter that was argued about before in the last proceedings and there had been a great deal of discussion and debate about the use of intermediaries, including taxis, for the handover. That I rejected at an earlier hearing which I think was at the end of August or early September 2014. Given B's special needs it would be quite wrong for the children to be put into a taxi and transported. So I am satisfied that effectively what the father is saying in his point five is that the order of 9^th October 2014 was wrong and I have already dealt with that in his first point.
31. Point six he makes is that he cannot compel anyone to transport the children. That I find is the same argument as under the first point he made on his application for permission to appeal, effectively saying that the order of 9^th October was wrong.
32. Lastly, his seventh point is that the children could be taken to school on a Monday morning without harm. Again, that is the same argument as his paragraph one of his application for permission to appeal, in other words saying that the order of 9^th October 2014 was wrong and, of course, I have read out as part of my judgment those parts of the judgment that I gave on 9^th October 2014 in which I considered the risk of harm to the children by the father's case as was before me in October, which I rejected. It is not appropriate to try and raise all that again as part of this application for permission to appeal.
33. So I am satisfied there is no prospect of an appeal succeeding so I refuse permission. Thank you very much.

MR M: Sorry, one last thing. Am I allowed to take the children out of the contact centre?

MISS MCKENNA: No.

MR M: So we are saying two hours in a contact centre that is open for six hours and I am not allowed to take them out of the centre?

THE JUDGE: Mr M, it is within your hands. Contact, if you can arrange it at the contact centre, will mean that the boys will see you once a fortnight. My hope is you will reflect on this. My hope is you will consider what can be put in place to reassure the court that you will comply with the court order so that the order I made in October 2014 can be reinstated.

Thank you very much.

[Court adjourns] Approved Her Honour Judge Lindsay Davies 1 July 2015