England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
On appeal from HH Judge Hughes QC at the Central Family Court
No. ZC15P01591

IN THE MATTER OF THE CHILDREN ACT 1989
AND IN THE MATTER OF MH (A CHILD)

		Royal Courts of Justice
		13th March 2017

MR. JUSTICE BAKER:

1. This is an application by a mother for permission to appeal against an order made by Her Honour Judge Hughes QC last year in Children Act proceedings concerning the daughter of the parties, a little girl whom I shall call M, who was born on 4^th February 2015 and so is just now two years' old.
2. M's mother is Polish and her father is English. Sadly, the parties fell out at a relatively early stage. In fact, their relationship, as I understand it, really had come to an end before M was born, although the father was present during M's birth. Initially, his contact time with M was sporadic and limited. There were earlier proceedings arising out of allegations by the father that the mother had abducted the child or was attempting to abduct the child to her home country, Poland, and then subsequently court proceedings under the Children Act because the parties were unable to agree about the division of time that M should spend with her two parents.
3. This is a very sad case. Here is a two-year-old little girl, clearly loved by both parents, but the parents have not been able to get on or reach an agreement about how her time with them should be divided.
4. The proceedings came before Judge Hughes and took a very tortuous course. There was a hearing in August 2016 at which evidence was given, the parties at that stage being represented by very experienced counsel. There was some agreement about issues but also some disagreement. Arguments were put before the judge by email containing written submissions, and she gave a preliminary ruling in a document of 27^th October. That led to further submissions, and a so-called final ruling given on 22^nd November and all that was incorporated into the order which was dated 11^th August - a slightly unconventional way of dealing with it, but that is what happened.
5. Miss Papazian, who had acted for the mother, had withdrawn in the course of that process and then subsequently Ms. Markham, who acted for the father, also withdrew, so at the final hearing the parties were present before Judge Hughes arguing over the finer details of these arrangements and Judge Hughes, understandably, got a little bit irritated about some of the arguments which were going backwards and forwards.
6. In the end, she made the order, which I say, was oddly dated August although, in fact, it was not made until November. The order stretches to some six pages and includes a number of recitals:

"The parties have agreed (a) that the child will live with her mother and with her father as defined in the order below; (b) overnight staying contact between M and her father should progress immediately; (c) to engage with the family assistance order in order to assist with repairing their relationship with the best interests of M remaining paramount; (d) that M may spend time with her paternal grandparents when with her father; (e) when the parents take M on holiday out of the jurisdiction, including any visit to the maternal family parent, they agree to text, email or telephone the other parent to confirm safe arrival and also to do so on their return to the jurisdiction; (f) the parents will facilitate Skype, FaceTime or telephone calls between M and the other parent at least once a week whilst on holiday; (g) for the time being, the parents will communicate via text, email and the communication book, in particular to comment on health-related issues; (h) father will text mother and let her know how M is on each of the first three occasions she stays overnight with him; (i) the father will text mother if M is unwell when with him and that mother should do the same; (j) both parents agree not to otherwise text the other; (k) the mother shall be responsible for renewing M's British passport and her Polish passport and shall provide photocopies to the father of the information pages and covers on each occasion the passports are renewed; (l) the parties will agree to consider all other dispute resolution options, including therapy before resorting to the making of any future court application."

7. I set out those recitals of the agreement reached between the parties, first of all to illustrate the extent of the complexity of the negotiations but also to illustrate that, despite the clear antagonism which still exists, regrettably, between the parents, they were able to reach a measure of agreement. The parties who appear before me today have not challenged any of the agreements recited there, except the first one to which I shall return in a moment.
8. The order then proceeded to set out the parties' positions on the various proposals as to the division of parenting time and goes on to recite that "M shall live with her mother and with her father as set out in the detailed order below". Those detailed orders provide that, save for times as detailed in the order, the child would live with the mother. For the times detailed, she would live with the father and those times were, from August 2016, with the father every Saturday morning to Sunday evening with some interim variation and then, from November 2016, she would live with the father every other weekend from 5.00 p.m. on Friday until 6.00 p.m. on Sunday. In addition, to the alternate weekend contact, M will spend one twenty-four-hour period every week in the care of her father.
9. Because the mother is a student, these timings potentially may vary. Diary and calendar commitments may vary and therefore the provision under the order is that that weekday visit should be on Tuesdays but with provision for it to change if the mother's commitments change. This is, again, an example of the complexity of the arrangement but also the measure of agreement between the parties.
10. There are then further provisions which I need not recite about collection and return and then we get onto travelling abroad. Here there is quite a detailed provision about holiday contact. I am not going to read it all out because it would make this judgment too long, but it is a long provision and, again, it indicates both the complexities of the arrangements here, but also the capacity of the parents to agree matters, despite their mutual antagonism. The order recites arrangements about the times the father would have with M on holiday, the times the mother would have on holidays and also about provision of the mother taking M to Poland. The mother is Polish, M is half-Polish and M's Polish heritage is a crucial component of her background and identity and needs to be sustained so, understandably, this features in the order.
11. Paragraph 3 of the order about travelling abroad reads, and I quote it in full:

"Father agrees that from summer 2017, M can spend up to twenty-one days a year visiting her maternal family in Poland or to family in Germany (this agreement doesn't prevent other shorter trips to Poland or elsewhere). Father agrees that in the short-term, M can spend up to twenty-one days, once a year abroad with her mother (this agreement does not prevent other shorter trips to Poland or elsewhere provided they do not intrude into the father's time with M)." [sic]

12. Then there were other provisions about holidays. Of these, I only need refer to two. The first is that the holiday dates shall be fixed by 30^th January each year, in respect of holidays at Easter and the summer, and by 30^th May, in respect of holidays from October to Easter. Finally, insofar as father's holiday contact is concerned, it is provided that, from 2018 she would have summer holidays with the father for two weeks as a fourteen-day holiday and one further period of seven days. Prior to that, the order is for two periods of seven days in the summer holidays.
13. Those are provisions I have extracted because these are the issues which are in dispute before me. There are a number of other provisions about holidays which the parties have agreed and are not in dispute before me.
14. At the hearing before Judge Hughes in November, the mother sought permission to appeal and that was refused. She then filed a notice of appeal and under the new procedure that appeal comes to the Family Division.
15. The parties appeared before me today, in circumstances I have already explained, acting in person. Mother has been assisted, if I may say so, very professionally and competently by Mr. Botterrill, acting as Mackenzie Friend. When I saw the papers, I was immediately concerned about one aspect of the order and therefore, decided to list the matter for an oral hearing of the application of permission to appeal, with appeal to follow if permission was granted. As a result, both parents have attended before me today in person and, as I indicated at the outset of the hearing, my approach was to focus on the issues in dispute and try to get a resolution, practically, if at all possible. I do so in the context of this application which is for permission to appeal.
16. As I reminded the parties at the outset, my powers are limited. This is not a rehearing of the whole issue. An appeal court can only interfere with a judge's decision at first instance if the appellant satisfies the court that the judge was wrong or that the order or process was unjust or unfair because of some procedural or other irregularity. Before we get to that stage, the mother needs to obtain permission to appeal and permission can only be granted if there is a real prospect of the appeal succeeding or some other compelling reason why the appeal should proceed. As the mother recognised, this is a fairly high hurdle for her to overcome.
17. The mother's arguments, which, despite the fact that English is not her first language, have been put forward clearly and helpfully by the mother in succinct and focussed submissions, based on a bundle of documents which she has prepared, if I may say so, in an immaculate fashion, come down to four issues. One of these concerns the initial recital to which I referred earlier and the others all relate to the three points of holiday contact which I have highlighted when going through the draft order a moment ago.
18. The first point is the mother objects strongly to the inclusion of the phrase "live with" in the order as far as the father's time is concerned. She says she has never agreed to the child "living with the father". She would rather the order said that the child lives with her and spends time with or has contact with the father. This, of course, goes to the provisions of s.8 of the Children Act, the definition of a child arrangements order being an order regulating arrangements relating to any of the following (a) with whom a child is to live, spend time or otherwise have contact, (b) when a child is to live, spend time or otherwise have contact with any other person. Parents in these circumstances often get extremely anxious or concerned about the language used and Parliament has had more than one go at trying to sort that out to avoid the impression of any parent having any particular benefit through the use of language. That is why "custody" and "access" gave way to "residence" and "contact" and now under the new law, the "child arrangements order".
19. On one view, where a child is to spend substantial amounts of time with one parent or both parents, then it does not really matter what terms are being used. The important thing is what is actually happening on the ground - what is actually happening in terms of the time and where is the child going to be. Importantly, however, the way an order is phrased says a great deal to the child herself that both parents are committed to the child - that both parents love her and that she has two parents in her life who, sadly, can no longer get on with each other but both love her and are 100% committed to her. For that reason, courts increasingly favour using language which is non-discriminating between the parents. Consequently, the use of the phrase "lived with" is frequently used and encouraged by the courts in circumstances where there is, if not an equal division of time, a substantial amount of time spent with both parents.
20. In this case, little M is going to spent, in any fortnight, four nights with the father and the rest of the time with the mother, so more time with the mother but a substantial amount of time with the father, plus the additional holiday contact set out above. If you added up the number of days in the year, you will find, I am sure, that the child will spend more than one-hundred days with the father. I have not added it exactly up but it must be over one hundred, bearing in mind the holidays. That is a substantial amount of time.
21. In my view, it was entirely reasonable for the judge to have decided that that should be described as an order that the child "lived with" the mother for X days and the rest of the time with the father or words to that effect. The key point is that the child is living with the mother and the father in substantial proportions – a greater amount of time with the mother, as is right, given her age and all the circumstances, but a substantial amount with the father. The judge decided that this was the right way to express the order and, having listened to the mother's arguments, I do not think it could possibly be said that the judge was wrong.
22. The mother put forward a number of arguments to show that she would feel more confident if the order is expressed that the child live with her and spend time with the father. She described the father as being quite controlling and was concerned that he would continue to make allegations against her, as she says he has in the past. She rightly says that the Cafcass officer did not recommend the order which the judge made or, indeed, really address the issues which have been canvassed before me today. She complains that the father's attitude towards her continues to be overly aggressive and challenging in his skeleton argument filed for this application today. She is concerned about the possible psychological and emotional harm to the child if she does not have a secure base with one parent which she could call home.
23. I have thought about those arguments and considered them carefully but, in my view, none of them persuades me that the judge was wrong to make the order which she did. The judge is a very experienced family judge, and I am satisfied that she had the issues firmly in mind. Consequently, I do not accept that the judge's order was wrong in saying that the child should live with one parent and with the other parent.
24. However, there is no doubt that, at the time when she finally made the order (in November, although it is dated August in the unusual circumstances I have described), the judge was wrong to record the mother as agreeing to it. The father points out that, in earlier iterations of the draft order, it was recorded that the parties agreed the phrase, "lived with" and that may well be right. That clearly was in the judge's thinking, looking at the transcript, when the time came to make the final order. On any view, however, having read the transcript of that hearing and heard the mother's arguments today, she does not consent and did not consent at the time in November to the order being expressed in those terms. To that extent and on that point, I think this appeal is well-founded, so I will shortly, at the conclusion of this hearing, take steps to address that issue. In other respects, on that point, I do not accept the mother has satisfied me that the judge was wrong to make the order.
25. I then turn to contact arrangements for holiday contact to consider the three issues which have been the focus of the mother's application for permission to appeal.
26. First, she complaints about the language used in para.3 which I read out earlier. On this point, I have some sympathies with the parties as they have sought to grapple with what the judge was actually intending to say, although, having said that, having studied it carefully I have concluded that it is ultimately pretty clear what the judge had in mind. As I have indicated, the judge divided the question of trips to Poland into two – first, from summer 2016 onwards, twenty-one days once a year visiting her family and secondly, other short trips to Poland or elsewhere, provided they do not intrude into the father's time with M.
27. The mother's concern is around that last clause. She has submitted in her written document that the phrase "provided it does not intrude into the father's time with M" effectively emasculates (my word not hers) the order because, as drafted, she says it would be impossible for any meaningful time to be spent in Poland without intruding into the father's contact time. That is because the father is having contact as I have described on a regular basis every other weekend and once a week, at the moment, every Tuesday night.
28. Of course, that would enable the mother to take the child to Poland between Wednesday night or Thursday morning and the following Tuesday morning over the weekends when the father did not have contact but at all other times, on a strict interpretation, the mother would be hamstrung. However, in my view, that is not what the judge intended. By "intrude into the father's time", I do not read the judge as indicating that there should be complete inflexibility into the father's time. Rather, she meant that, provided the father had time with the child and did not lose time with the child as a result of contact, it would, of course, be possible and, indeed, in the child's interest to be taken to Poland for shorter trips.
29. Consequently - and very fairly the parties in argument before me more or less agreed that this is right – it will be possible, for example, for the father's Tuesday contact in one week to be brought forward to Monday and his Tuesday contact in the second week to be taken forward to the following Thursday, thereby freeing up a period of nine or ten days for the mother to take the child to Poland. I also suspect that, if the parties had enough time – and, if I can be frank, were sensible about it – they could probably agree for arrangements to be made for the mother to spend rather longer, maybe twelve days, maybe even a fortnight in Poland, provided the father is compensated with contact at other times.
30. On that point, I do not think there is anything in the mother's complaint and I consequently do not give permission to appeal.
31. Secondly, the mother raises the question of the dates upon which holiday times need to be fixed. It will be recalled that the judge provided that the parents should decide the holiday dates by 30 January each Easter to Summer and by 30 May for October to Easter. The mother says that is requiring her to fix things far too far in advance. She needs more flexibility. Life changes, obligations change, commitments change, and it is not fair to expect her to fix the date so far in advance. The father, on the other hand, says that, because of his work commitments, it is essential he should have as much time as possible. It seems to me that the judge's solution takes a halfway house between the two positions of the parties and is entirely sensible. I see no reason for interfering with the judge's decision. The mother has not persuaded me that there is any possibility of concluding that the judge was wrong in the approach that she took.
32. Finally, the mother complains that the summer holiday contact ordered by the judges was not in accordance with what was agreed between the parties and is wrong. The summer holiday contact for father – and I use the word "contact" as short-hand – would be that it is proposed that he should have two periods of seven days in summer 2017 and, thereafter, a period of fourteen days and a second period of seven days in the summer holidays 2018. This arrangement shall last until the child goes to school.
33. The mother says, first of all, that this was never agreed. Secondly, she asserts that it is too long for M to be away from her mother at this stage - later perhaps when she is a bit older, but not now. Thirdly, she argues that, as the father himself has only limited holiday-time, twenty-five days a year plus a few additional days, he simply cannot accommodate that whole holiday contact arrangement which totals twenty-nine days, so that other arrangements will have to be made for the care of the child when she is with him. The father in response concedes that he might not be able to take the time as holiday, but points out the child would be able to spend time with his paternal grandmother and also with others.
34. It must be remembered that this is not a re-hearing and an appellate court cannot interfere unless persuaded by the mother that the judge was wrong.
35. I am not persuaded that the judge was wrong. M is now two and she will be over 3½ before she spends the fourteen-day period with her father in the summer of 2018. I do not consider that that is too young for her to spend time away from her mother, particularly with her father who knows her well and loves her. Plainly, there are no significant concerns in terms of his capacity to care for the child, otherwise there would not be the enormous measure of agreement about contact to which I have already referred. It will be recalled that the parties agreed that during holiday-time there will be a provision for Skype, Facetime or telephone calls at least once a week whilst on holiday and other arrangements which I have read out in the recitals at the start of this judgment.
36. Consequently, I conclude that, save for the one small point to which I have referred, there is no prospect of the mother succeeding in an appeal and permission to appeal is refused. The one exception is this; that I accept that the mother did not consent to the order that the child should live with the father and accordingly, I will give the mother permission to appeal on that one point and allow her appeal so that the recital in para.2A of the order should read as follows:

"The parties have agreed that the child will spend time with both parents (but are not agreed as to whether the order should be express in the terms that the child 'will live with her mother and with her father) as defined in the order below."

37. Permission to appeal is granted and the appeal allowed on that point. Save as aforesaid, permission to appeal is refused.
38. I will also in the circumstances order a transcript of my judgment and I will provide for it to be at public expense.
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