England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice
		25th July 2013

THE PRESIDENT:

1. I am concerned with a child, a boy born in May 2007 who is therefore now a little over six years old. For some four and a half years there has been incessant litigation between his mother and his father. Towards the end of that process Mr. Justice Hedley became the judge who was concerned to make welfare decisions in the interests of the child in circumstances where it was, unhappily, all too apparent that there was very little the parents could agree upon.
2. For present purposes I can pick the matter up with Mr. Justice Hedley's final judgment given on 11 December 2012. It is, if I may say so, characteristic of the wisdom, commonsense, deep understanding for the human condition, and empathy of an immensely experienced family judge. It makes very depressing reading. Mr. Justice Hedley was concerned to decide whether there should, or should not, be significant variation in the arrangements which had been made by him in previous orders of the court. In particular, as he records in para. 12, the father's stance was that there should be, in effect, as he put it, "a reversal of the primacy of care" so that the bulk of the child's time should be spent with the father and the role of the mother, in terms of time, should broadly mirror the father's role under the previous orders. Mr. Justice Hedley set out the reasons why, as he concluded,

"I am not prepared to make any significant changes to [the division of time arrangements], either way, not least because, the moment I do, it is inviting the parties to continue to chip away at the arrangements, on one side or the other, so as to achieve, in the long term, a result more near to the one they would actually like. I am simply not prepared to be part of any such developments and I do not believe that the interests of [the boy] are remotely served by any such approach".

3. In the event Mr. Justice Hedley made a detailed Order which, with some minor adjustments, as to its substance closely reflected the previous Orders that had been made – some of which have been challenged in the Court of Appeal without success. He ordered that the wardship was to continue. He provided that the court would delegate its powers of care and control and the exercise of parental responsibility in accordance with the terms of the Order. In para. 3 he spelt out in terms of time the periods when father was to have care and control of the child. In para. 4 he provided that care and control was at all other times to be with the mother. In para. 5 he provided there was to be no contact to either parent during the time of the other's exercise of care and control, save such as might be agreed between the parties. I omit reference to a further, for present purposes immaterial, qualification. Mr. Justice Hedley went on in para. 6 to determine a question as to the boy's education. In para. 7 he provided as follows:

"Otherwise, the exercise of parental responsibility shall be in accordance with the schedule to A v. A [2004] 1 FLR, 1195 (appended herein), amended to incorporate or avoid conflict with any specific provision in this Order".

The schedule as attached to the Order, following the structure of the schedule prepared by Wall J. (as he then was) in the case of A v. A, divided the exercise of parental responsibility into three different categories. For present purposes I need refer only to the third category – namely, "Decisions that you would need to inform and consult the other parent prior to making the decision". One of the decisions under that heading was "planned medical and dental treatment". In other words, the court was devolving to the parents the ability to take decisions in relation to the medical and dental treatment of the child, thus in anticipation making provision avoiding the need to come back to court as would normally be required under the principle that no medical treatment can take place without the court's consent. Importantly, as will be appreciated, the mechanism which Mr. Justice Hedley put in place was that in relation to planned dental treatment, with which I am in part concerned today, the obligation on the parent proposing to embark upon such treatment was to inform and consult with the other parent prior to coming to a decision. There is no obligation to obtain the consent of the other parent, let alone the consent of the court, the consent of the court having been given in anticipation by the provisions to which I have drawn attention.

4. Paragraph 10 of Mr. Justice Hedley's Order provided that "all applications concerning the child should be listed in the first instance without notice to the other party before the President of the Family Division for directions, including directions as to whether the application should be transferred to the county court and/or as to allocation" – the court, as his Order made clear, wishing to achieve judicial continuity hereafter.
5. In accordance with that provision the father made an application which came on before me on 10 May 2013 when I was in fact sitting as the applications judge. On that occasion I gave certain directions, including, significantly as it has turned out, a direction that the father was to obtain and produce to the court a transcript of the judgment of Mr. Justice Hedley to which I have already drawn attention. My Order provided that the application was adjourned to be heard on the first open date thereafter before me. It has come on before me today. The mother's representatives having discovered that the matter was before me, albeit it was listed before me ex parte in accordance with Mr. Justice Hedley's Order, inquired as to whether they might attend. Through my clerk it was indicated that they were under no obligation to attend, but might do so if they wished. In those circumstances I have today heard from the father, who appears in person, and from the mother, who is present in court and appears through counsel.
6. The father has filed an application setting out what it is he seeks. He has supported that with a number of witness statements setting out his case. I do not propose to go through it in detail. The reality, whether he is prepared to accept this or not, is that the father seeks in substance to re-open the case and to persuade me, or some other judge, to do that which Mr. Justice Hedley was not prepared to do as recently as 11 December 2012. He supports his application with a litany of complaints about the mother's alleged conduct, many of which are reminiscent in their substance, if in their detail they differ, from complaints which have been ventilated in the past. Fundamentally he attacks the division of time as between the parents and asserts that the proper division of time should be equal as between the mother and the father, referring in this context to proposals which are currently before Parliament. I note that Mr. Justice Hedley, in his judgment, said this,

"I am satisfied that the court will, for the most part, simply never get at the truth of those allegations and counter-allegations, for the reasons explained in the two earlier judgments, and I see no merit whatever in the court expending yet further time in what, I am satisfied, would be a wholly futile quest ... it just seems to me that we are stuck where we are and the court must simply do the best it can in the circumstances which now confront it".

The reality is that the father seeks not merely a fundamental change to the arrangements set out by Mr. Justice Hedley but, moreover, implicitly on the basis that before deciding the way forward the court should investigate the allegations which he currently makes against the mother, which history would strongly suggest will be met, if not in equal measure, at least in measure, by counter-allegations from her.

7. There is an appalling spectre lying ahead for these parents and, more particularly, their son. There seems to be a complete inability to do anything by agreement. There has been a distressing volume of correspondence between the parties and their solicitors. It is a feature which I am readily able to accept that virtually nothing is achieved by agreement. It does not follow from this that the solution is for the court to embark upon the kind of further investigation that the father is suggesting. Unless the parents both recognise their responsibilities as parents, take account of the wise words of Mr. Justice Hedley, and adapt their behaviour accordingly, the consequences for the child caught in the middle of what a CAFCASS officer described as a "toxic relationship" hardly bear thinking about.
8. I need not go to the passages in Mr. Justice Hedley's judgment where he makes the point, but there are a number of passages where he emphasises that it is for the parents, as the parents, to decide what is to be done; that it is a matter for them; and that the court – and this is the substance, although the language is mine and it is comment – simply cannot micro-manage the relationship between the parents and their handling of the child. A deeply saddening but, I fear, all too characteristic example of the problem is at para. 23 of his judgment, which suggests an inability by the parents even to agree the detail of the whereabouts on Clapham Junction railway station the handover should take place. In relation to that, Mr. Justice Hedley used these words,

"This is their child, nobody else's, and if they want to inflict that on the child, they answer for it in due course. I suppose, if common sense were to have any part to play in this, one might draw attention to the fact that there is a Brighton-bound platform at Clapham Junction (which is 13, I think) which may even have a small café on it, and that might make an altogether admirable place at which to effect the handover, but if the parties have other ideas and want to hand over on some empty platform or disused siding, that is a matter for them".

Those particular words may have been uttered by reference to that particular problem, but they have a much wider and much deeper resonance.

9. The court simply cannot micro-manage this very difficult relationship. If it sought to do so it would simply disempower the parents and add to the stresses on the child. Despite the force and intensity of the father's complaints, he has said nothing in my judgment which, whether looked at individually or collectively, justifies the drastic step, so shortly after Mr. Justice Hedley refused, entirely appropriately as it seems to me, to vary the arrangements, to throw all that back into the melting pot and to embark upon the kind of investigation preparatory to the kind of fundamental change in the arrangements which it is the father's ambition to achieve.
10. I therefore decline to give him permission to pursue that application.
11. There is a specific issue to do with dental treatment which exemplifies the complete inability of these parents to agree on virtually anything. It is common ground, it seems, between the parents that their child needs dental treatment. Each has propounded a form of treatment which they contend is appropriate. The father's is set out in a letter dated 20 February 2013 from Dr. S. The other, propounded by the mother, is set out in a treatment plan from the M Clinic dated 7 December 2012. That treatment plan has, as I understand it, been with the father for some time. There may be a dispute as to whether the father had, before today, sent a copy of the letter of 20 February 2013 to the mother or her solicitors. But, be that as it may, a copy of that letter was handed to the mother and her counsel in front of me this morning.
12. Accordingly, whatever may have been the position prior to this morning, the fact is that each parent has now informed the other of the proposed treatment. Each parent has consulted the other. Although it may be that it was only this morning that the mother had seen the letter, the substance of what was in that letter had been set out in an e-mail sent many months ago. So, as to the substance each parent has had the benefit of being consulted by the other as to what is proposed. Unsurprisingly, neither parent can agree with the other as to what is the appropriate form of treatment. The father says that the appropriate form of treatment is that for which he contends. The mother likewise. The father's complaint about the mother's proposal is that it involves more radical invasive dental treatment, removing a number of, albeit milk, molar teeth whereas what he is contending for is a less seriously invasive form of procedure. Miss Mustafa points out that the form of treatment being proposed by the father has, in effect, been considered by the mother's dental advisers and they give reasons why, in their view, the form of treatment proposed by the father would not be appropriate.
13. How am I to resolve this issue? One way would be to direct a hearing at which further evidence might be taken, perhaps inviting each of the relevant dental practitioners to file an expert report commenting on the other so that a judge might, with the benefit of further evidence from the dental practitioners, in effect come to a judicial decision as to which form of treatment is the more appropriate. That approach, however, as it seems to me, would undermine both the specific provisions and, indeed, the fundamental philosophy of Mr. Justice Hedley's Order. The specific provisions of his Order to which I have already drawn attention have the consequence that either parent is at liberty to proceed with the treatment they propose without obtaining the consent of the court, without obtaining the consent of the other parent, so long as they have informed and consulted with the other parent before deciding to proceed. That process of informing and consulting has now taken place. Consequently, in accordance with the terms of the specific provision of Mr. Justice Hedley's Order, unless I make some different Order, each parent is at liberty to proceed with that form of dental treatment for which they contend and may lawfully do so, whether or not they have the consent of the other parent.
14. But those specific provisions in Mr. Justice Hedley's Order seem to me to reflect a deeper and more profound philosophy which underlies his Order – that these parents must get on with the task of deciding what is to happen to their son. The court cannot continue to be engaged in a process of micro-managing or, as in this case, ruling on specific issues which may arise throughout this child's life. If I were to go down the path of directing a hearing or, indeed, of taking a judicial decision as between these two competing assertions, where would it end? In the nature of things, there are bound to be future occasions when this boy will require dental treatment. There are likely to be occasions when he may require medical treatment. If I was to embark upon the task of adjudicating upon this particular dispute, I would, in effect, be indicating that despite the arrangements put in place by Mr. Justice Hedley each and every such dispute down the years is to be decided by a judge. That is a process which is consistent neither with the philosophy – the very wise philosophy – embodied by Mr. Justice Hedley in his Order, nor indeed with the very detailed provisions he made.
15. According I decline to make any order in relation to the question of dental treatment. The position, as I have explained it, is that as matters stand today and assuming, as I do, that the proposals of the father and the mother are respectively set out in the two documents I have mentioned, there has been the necessary process of informing and consulting. The consequence, to repeat, is that either parent is at liberty to proceed with the dental treatment they think appropriate without obtaining the consent of the other parent and without obtaining the consent of the court. That may be thought unsatisfactory in the sense that absent any form of agreement it will be left to each parent no doubt to seek to steal a march on the other parent. But that, it seems to me, is unavoidable. It is the necessary consequence of the Order made by Mr. Justice Hedley which seems to me to be an Order which, unsatisfactory though it may be in some senses, is, I have not the slightest doubt, the best order which could possibly have been achieved given the circumstances.
16. Accordingly, the Order I make is to dismiss the father's application and, specifically, to decline to make any order in relation to the question of dental treatment. It seems to me that for the future there is a pressing need to ensure judicial continuity. I have not the slightest reason to believe that this will be the last application made by one or other parent to the court. It seems to me that for the time being at least, the case, not least because it is a case involving a ward of the court, should remain in the High Court. It should not be transferred to the County Court. It will in due course be allocated to a specific named judge of the Division. When the Order which I make today is actually sealed, the name of that judge will be in the Order.
17. The Order I make is that the father's application is dismissed; no order in relation to the question of dental treatment; an order that the case is to remain in the High Court; an order that the case be allocated henceforth to Mr. or Mrs. Justice [blank] and that name will appear in the Order. It seems to me that for the future there will be advantage to that judge in being able to read not merely the judgment I have given this morning but, if I may say so, even more importantly a transcript of the proceedings; because the way in which the case was presented on the one side and on the other side is itself something which it seems to me the judge who for the future will have conduct of this case needs to be aware of. I shall accordingly, exceptionally – and this is not to be taken as a precedent for the future – direct that a transcript of the proceedings and a transcript of this judgment are to be prepared at public expense.
18. There will, in the circumstances, be no order as to costs. That seems to me to be, in any event, the appropriate form of order. I might add that this is not a case in which the respondent appeared at the invitation of the court. This is a case in which the respondent chose, very helpfully as it has turned out, to attend, having permission to do so without being required to do so. That is another reason why there should be no order as to costs.

L A T E R

19. After I had concluded giving judgment the father sought to ventilate a new matter which he had not previously referred to. It relates to the construction of para. 3(a)(iii) in Mr. Justice Hedley's Order which says,

"The father shall collect the ward from school on Friday and deliver him to the mother at Clapham Junction on Sunday".

He raises the question as to what is meant by the phrase "the father" and, by implication, what is meant by the phrase "the mother", whether that means the father and no-one else and, correspondingly, the mother and non-one else, or whether it means the father or his agent and, correspondingly, the mother and her agent.

20. It seems to me that when the Order refers to the "father" it means "the father" and when it refers to the "mother" it means the "mother". If wrapped up in the father's contention there is a suggestion that if the Order means something different, the Order should be modified, I decline to do so. There is no indication anywhere in the Order that I can see that when it refers to the "father" it means anybody other than the "father"; and correspondingly, in relation to the mother.
21. It will not have escaped the attention of a reader of my previous judgment that there were issues before Mr. Justice Hedley in relation to the handover at Clapham Junction. This is yet another such issue and were the Order to be understood or amended to provide that collection and delivery might be by some agent or representative, I can see it being a fruitful source of future controversy and dispute between the parents.
22. I decline to amend the Order. In my judgment the Order means what it says.
23. The direction which I have given in relation to the preparation of transcripts will extend to a transcript of the proceedings from the foot of my first judgment to the commencement of this judgment, and for the preparation of a transcript of this second judgment.
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