Neutral Citation Number:  EWCA Civ 1690
Case No : B4/2012/0727
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BRIGHTON COUNTY COURT
(HER HONOUR JUDGE WADDICOR)
Royal Courts of Justice
Strand, London, WC2A 2LL
Date : Tuesday 30th October 2012
LADY JUSTICE HALLETT
LORD JUSTICE MCFARLANE
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IN THE MATTER OF G (A CHILD)
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(DAR Transcript of
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The Applicant Father appeared in person.
The Respondent Mother did not appear and was not represented.
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(As approved by the Court)
Crown Copyright (c)Lord Justice McFarlane:
1. This is an application for permission to appeal brought by the father of HG, who was born on 18 December 2007 and so is now shortly going to be five years old. The potential appeal arises out of longstanding private law family proceedings continuing in the Brighton County Court between Mr G, H's father and DC, H's mother. We understand that the hearing that we are focussing on, which was the determination made by HHJ Waddicor on 5 March 2012, was no less than the 26th hearing that has taken place between these two parents either about the arrangements for H or the financial arrangements, and that since the March hearing there have been subsequent hearings before various judges in the Sussex area.
2. The issues before HHJ Waddicor were themselves complicated. At a hearing in June 2011 District Judge Taylor, who had heard substantial evidence, determined that there should be contact arrangements so that H would spend a significant time in the course of the school term -- he, despite his young age attends full time at a local private school -- a substantial time between his mother's home and his father's home. The basic structure was that on one night a week every week the father would pick H up from school and return him to school the following morning and that every other weekend the father would collect H from school on a Friday afternoon and return him to school on the Monday morning. There were also arrangements for holiday contact.
3. The order made by District Judge Taylor did not find favour with the mother and she lodged an appeal against that order, and it was that appeal in part which came before HHJ Waddicor earlier on in 2012. By that time the father himself was dissatisfied by the way in which the order was being played out. In particular he tells us that he had not had any contact with H during the summer of 2011, but also the father wished to re-assert his case, which was for H to be the subject of a shared care arrangement, with the time spent in each of the two parental homes being split effectively equally between both parents.
4. In addition, as is inevitably the case with these matters, further applications were made. In particular the mother had an application before HHJ Waddicor for a direction under Section 91(14) of the Children Act 1989 which would restrict both parents, and this was her application, from coming back to court for a period of two or more years, so that there would be time out, as it were, from this flow of court appearances.
5. The hearing before District Judge Taylor, insofar as Hallett LJ and I have been able to discern what took place, included some emotional outbursts by the mother, and it would seem from the father's case that that in some way drew District Judge Taylor to making an order which he expected to be complied with but was not confident that would be complied with. So the father's application for enforcement directions to be made under the relatively new provisions of the amended Children Act was one which was in no way, to his mind, a makeweight but one that he expected HHJ Waddicor to engage with.
6. To that end, and pursuant to a direction made on an earlier occasion by the court, the father prepared a Scott schedule which ran to some 61 different allegations of episodes of concern that he said had arisen at or around the contact arrangements. The judge conducted a hearing which had originally been set down for two days in January but which spanned over the course of four days in January, late February and early March, and it is plain from the judgment we have, which is that of 5 March, that at a much earlier stage in the course of those four days the judge effectively determined the mother's appeal against the District Judge's order in her favour. She set aside District Judge Taylor's findings insofar as they found that the mother had "deliberately flouted" an order of the court by enrolling H at a fee-paying school, and she further set aside a finding that the mother was "capable of assaulting the father and was likely to have already done so". It is plain that an additional judgment exists setting out the judge's reasons for allowing the appeal.
7. To my mind that is now to a degree history, because what HHJ Waddicor did was to then engage herself in a full re-evaluation of what orders should be in place to promote and maintain H's best interests going forward. However, she undertook that exercise because partly that is the way the court had set it up by looking at the detailed allegations of past behaviour that the father had set out in his schedule. Of the 61 the judge chose to consider 17, and they are listed in paragraph 24 of her judgment. The judgment, which runs in the closely typed transcript to some 16 pages, then records the evidence on each side in relation to those incidents.
8. It is neither helpful nor sensible for me to descend to any detail in this judgment about those episodes other than to summarise them in these terms. The judge found that there was in relation to each of those 17 events an occasion of heightened emotion, if I can put it in those relatively neutral terms, as between the two parents at or around the time for contact hand-over. On some occasions what took place led to the mother slapping the father. On two occasions, I think, the police were called, but often it was a less intense outburst by one or other and if there was an outburst it was normally the mother, but nonetheless one that was likely to have been witnessed by young H and one which certainly did nothing to improve the relationship between the two parents. In terms of what went on on each occasion, the judge, who had a very good opportunity to see this couple before her over the course of the four days, concluded that the mother was vulnerable to becoming emotionally upset about matters relating to the father and H and also matters relating to finance and that the father was, in contrast, a calm and restrained individual but one who nonetheless knew, to use the phrase, "what buttons to press" to trigger an emotional reaction from the mother. Thus, although many of the 17 incidents show the mother behaving in an overt fashion which does not show credit on her, at the same time the judge's finding was that the father is very much at the scene of the event and is by his own behaviour, albeit more restrained, providing a trigger for the mother's emotional reaction.
9. An event which is summarised at paragraph 63 of the judgment deals with matters over Christmas Eve (on my understanding it must be 2011) where at the contact handover the mother took the opportunity to embark upon a discussion about court proceedings. Matters soon became heated, and this is one of the occasions where the judge found the mother slapped the father and the police were called.
10. Standing back from the details, it is the subsequent paragraph of the judgment that I find particularly telling. The judge says this:
"I find that this incident was about a massive personality clash between the parents. The police were unnecessarily involved. Both parents to some extent exploited the situation. Both parents lost sight of [H] in that incident "
Although that is perhaps the clearest statement by the judge in those terms, that theme pervades her findings in relation, I believe, to each of the 17 events that she focussed upon.
11. Having spent the majority of the judgment focussing on the detailed allegations and cross-allegations, the judge drew her conclusions together shortly, and I propose now to read those into this judgment, starting half way through paragraph 79:
"So I come to contact. At the moment [H] stays with his father one day during the week and this involves toing and froing between homes at time[s]. When the case was before me in January I indicated that I considered it unhelpful for a child of [H's] age to be required to do all this toing and froing and I invited the parties to see if they could reach some compromise. The father as is his right, felt that he wished to maintain the order of District Judge Taylor unless and until it was overturned. So the regime has continued.
80. Having heard all of the evidence I am persuaded that the Order that provided for [H] to stay from the end of school on Wednesday, until the start of school on Thursday, with his father, is not in his best interests. I vary that order. Similarly the current Order, which is alternate for the weekend staying contact, to start on the end of school on Friday, and continue to the start of school on Monday, should also be varied in [H's] interests.
81. This is a family where tensions are high. The personalities of the parents clash. In my judgment a child of [H's] age would benefit from having a period of time at his main home, namely his mother's home, on Sunday evening before getting ready to go to school on the Monday morning.
82. As far as the Order for contact is concerned it will be that [H] has contact on alternate weekends with his father from 6pm on Friday until 6 pm [and the judgment says on Monday but in fact the order says on Sunday] and in the other week he will have visiting contact with his father from after school until 6pm on Wednesdays."
There is then provision for holiday contact.
12. The final detail I should add is that the judge gave permission to the father to take H with him in 2012 around Easter and then again in the summer to America. The father is an American citizen. H has dual nationality. The judge gave permission for H to go to America but on condition that the father lodged a mirror version of the English order in the local state court in America.
13. That order was new as between these parents. It had not featured in District Judge Taylor's order but it arose out of the judge's findings at paragraph 72 and 73 of the judgment in which she concluded that, on 15 September 2011, the father had had H for staying contact. He had taken him to London. He had not taken him to school that morning. Instead he had taken him to the American Embassy to try to obtain a passport and he had undertaken that operation without telling the school office or the mother about it. The mother, upon hearing from the school that H had not attended, became very concerned, she contacted the police and was worried that H had been abducted. The judge concluded at paragraph 73:
"It is in my judgment very difficult for this mother to trust the father in the light of his behaviour on 15 September."
She gave more detail, and that would seem to be the intervening factor that led the judge to establish the requirement for a mirror order.
14. The father by his notice of appeal seeks to appeal the entirety of the judge's approach and the detailed findings that she made insofar as she made detailed findings against him. He seeks to have the order overturned and for it to be replaced by a shared residence order. He complains that the section 91(14) order is oppressive and keeps him away from the court if further difficulties arise over contact and he says, given the relationship between the parents, that is almost a certainty. He further seeks to have the mirror order requirement discharged. He says there was no justification for it and he has produced to this court some documentation, in particular a letter from an attorney in Claremont, California with a firm Scott E Wheeler, undated but plainly following the judge's judgment, which sets out difficulties in establishing a mirror order in that state.
15. In any event, and beneath those main points that the father seeks to make, he states that if the judge's order is based upon the judge's view as to the dysfunctionality of the adult parent relationship and the need to protect H from that, the order has actually increased the amount of time the parents have to meet each other for contact, because the previous arrangement of the father picking H up from school and taking him back from school has largely gone. He also claims the order has increased H toing and froing between one parent and another. The weekday three-hour post-school contact is, to use my phrase, neither here nor there in the sense that H spends a substantial amount of the time in the car, rather than settling down in the father's home.
16. The application for permission to appeal came before Thorpe LJ on 30 July, and having heard the father in person, Thorpe LJ adjourned the application for permission to appeal to be listed, as it has been today, to be considered again by the full court and, if granted, for the appeal to follow.
17. The mother has had notice of today's hearing, and although she has been in touch with the court during the course of the last 24 hours, she has indicated that she is not intending to attend. She stands by HHJ Waddicor's order, which she describes as "a very fair and considered order".
18. In the course of the short documentation that she has submitted, the mother has raised a number of points about the financial disputes between the parties, which, certainly for my part, are essentially not relevant, and has made a quotation from an earlier judgment by HHJ Everall QC, which records that judge finding adversely about the father's truthfulness. In relation to HHJ Everall's involvement we have not seen the full transcript and our focus is on the judgment given by HHJ Waddicor, and for my part I take nothing from the short quote that the mother has submitted.
19. But the final point that the mother makes in her email or letter of yesterday is to stress the importance of the mirror order and to underline the fact that she would be very apprehensive if that were removed and the father were able to take H to America because of the perceived risk of abduction that she contemplates.
20. During the course of this afternoon we have had the benefit of listening to the oral submissions of the father, and Hallett LJ and I have looked at the judgment of HHJ Waddicor in detail. Perhaps if I deal with the big points that the father seeks to establish on this appeal first of all, because I think they can be taken shortly.
21. Insofar as he seeks to overturn the judge's own judgment on appeal from District Judge Taylor, in my view the father has no prospect of success. This would be a second appeal in that respect. We do not have a copy of District Judge Taylor's full judgment and, more importantly, we do not have a transcript of HHJ Waddicor's decision on that appeal issue, which was apparently taken at the beginning of the January hearing. I would therefore not grant permission for the father to appeal HHJ Waddicor's decision to allow the mother's appeal from the District Judge's order.
22. Secondly, shared residence. Having heard the father explain his strong belief in the value of a 50/50 share as between the two parents in circumstances such as this, I understand what he describes. However, that has been his case before a number of judges, in particular District Judge Taylor and HHJ Waddicor, at previous hearings. They have decided against him. The yardstick in this jurisdiction is not to take a template arrangement and say that that should apply to every child. The yardstick is the welfare of the particular child and to determine whether in any particular case one arrangement or another one is best for the child in all the circumstances. Those two judges, and there may be others before them, have rejected shared residence in this case.
23. Given the very substantial list of findings that the judge has made as to the inability of these two adults to get on in a way, whoever is responsible for sparking what goes on, which is low key, ordinary, sensible and mundane, in my view it would be impossible for the full Court of Appeal to come to a view that HHJ Waddicor was plainly wrong in failing to make a shared residence order in this case. Such orders in my experience are only likely to have a chance of working if the parents have a modicum of ability to relate to each other in a low key sensible way and get on for the benefit of the child, even if they do not, as adults, any longer get on together. So I consider that the father has no prospect of persuading the full court that a shared residence order should have been made.
24. In the same way the section 91(14) order was made in the context of 26 or more hearings, and the judge was entitled to take the view that the court should have control over whether or not further applications were made and then go on to be litigated in the future. Section 91(14) is not a bar to any further applications. It is a filter. It puts the judge in control of whether or not it is in the interests of the child or in the interests of justice for further applications to be litigated.
25. Finally, of the four bigger points the father seeks to argue, is the mirror order. I am of course noting the information the father had from the American attorney as to the difficulty in obtaining a mirror order. This father desperately wants to go to America with H, and if he could, even not with ease but with some degree of burden, have obtained a mirror order at least in time for the summer of this year so he could take his son to see his American relatives, he would have done so. The fact that he has not been able to do so indicates there may indeed be some jurisdictional or structural difficulty in obtaining a mirror order. The father tells this court that HHJ Waddicor has entertained an application from him to vary or set aside the mirror order and she has said that she will consider that application if he can obtain a deposition from a suitably qualified attorney in California to that effect. The father says there are difficulties in that. This is a matter for the Brighton County Court. It is a matter as to the working out of the order that the judge has made. It is plain from the transcript of her judgment that she did not anticipate that there would be substantial difficulties in putting a mirror order in place. It was an important matter for the judge. It is an important matter for the mother.
26. Short of obtaining a deposition, the father may be able to obtain general advice as to mirror orders in America and in particular California by contacting the Reunite organisation, who are well versed in matters of international child abduction and the movement of children across international boundaries. There either is a major structural problem with mirror orders in America or there is not, and the father may get more readily accessible advice that he could bring back before HHJ Waddicor from that source.
27. But so far as an appeal is concerned, there is no merit in my view in giving permission to appeal on that point. Given the findings that the judge made about 15 September, she was entitled to do what she thought was right to (a) protect H from being taken to America and not returned but (b) to reassure the mother that, if H went, there was a legal structure in place to assist his recovery were he to be retained there, and although the father indicates that it is that latter reason the judge had in mind in making an order, that is a reason which does impact upon H's welfare. If the mother can be encouraged to let H go on these trips in a way which is not at the height of anxiety, that is plainly likely to be in the boy's best interests.
28. Having spent a deal of time setting the ground and in refusing permission to appeal on the bigger points that the father seeks to make, I am nevertheless of the view that the judge's judgment relating to the detailed arrangements for contact is a matter which causes some concern. In making that observation, I have nothing but sympathy for this judge. She, as a seasoned family practitioner and now circuit judge, will have no doubt been dismayed to be the judge hearing the couple litigate the difficulties that they have had over a very extended period in getting on with each other. She was drawn to and encouraged by the father's schedule to go through the allegation and counter-allegation as she meticulously did.
29. However, at the end of the judgment, where she comes to draw matters together in relation to H's best interests, her approach is much less detailed, and the father makes the submission that it is very difficult to see H mentioned in this judgment at all. I do not accept that criticism in the way that it is meant, but I have read out already the totality of what the judge stated as her conclusions on contact. She was not, because of the way the hearing had been set up, assisted by any up-to-date input from Cafcass. The last report had been in the latter part of 2010. Doing the best I can to divine the judge's reasons, she was driven by two factors. One was to avoid what she called the "toing and froing" between homes and, secondly, to protect H from some or all of the fallout between the tensions within the family when the parents' personalities clash. What she did, however, was to increase, as I find she did, the number of occasions when the parties have to interact with each other, because the collection and return from school which had been a feature of District Judge Taylor's order was largely removed from the new scheme.
30. Secondly, I accept the father's criticism that the arrangement that is now in place on a Wednesday afternoon, whereby he picks the child up at 3.00 from school and returns him to the mother's home at 6pm, is one that involves a significant proportion of the time being spent in the car. He lives some 15 minutes or so from the school and the mother's home is 15 minutes or so away from him, but at 5.30 or 5.45 that is peak travel time and often the journey can take a degree longer.
31. There seems to be no reason given by the learned judge for those two significant facets of the new order. The toing and froing in terms of trips in the car if anything is increased by that order, and the potential for the parents to meet has certainly increased. The father puts forward an alternative proposal to this court which to my mind more readily meets the concern of the learned judge on the welfare needs of H insofar as she identified them and which, for my part, I see no reason to doubt as being important. The father's proposal in terms, however, is that the present arrangement should be set aside and a straightforward alternate weekend scheme should be put in its place, with him picking H up from school on a Thursday evening and returning him to school for the start of the school day the following Monday. So there would be four consecutive nights in the father's care on that basis with the father attending the school Thursday afternoon, Friday morning, Friday afternoon and Monday morning, seeing the teachers and behaving in relation to his child's education as a father would wish to do, but with the rest of the fortnight, the other ten nights, being spent with the boy in the mother's main home.
32. In being attracted to that order, I have in mind the fact that the judge found nothing adverse to say about the parents' ability to care for young H and indeed the information, such as it is, is that when he was actually in the home of one or other parent, he was having a perfectly benevolent time and no finding of the judge suggests that that was not the case. The judge was keen to maximise the time of the child in his primary home, and an arrangement where for four nights he is with his father but ten with his mother would seem to meet that need as well.
33. I would therefore give permission to appeal to the father on, as it were, the nuts and bolts of the order and would allow the appeal on the basis that I have just described so that, looking at the judge's order, paragraph 3(i) is to be set aside - 3(i) deals with the school terms -- and to be replaced with a simple order that on alternate weekends H should be collected by his father at the school at the end of the school day on a Thursday evening and be in his father's care until the start of the school day on Monday, with the father delivering him to school. In short terms the reason for allowing the appeal is that the detailed order as made by the judge is contrary to the findings that she made and rather than decreasing the potential for conflict it increased it and to that degree it was plainly wrong.
34. In relation to school holidays, save for the mirror order which I have dealt with, the father accepts that the judge's arrangement is one which meets H's needs and he does not encourage us to take any step to change it. He is right to do so. It seems to be a sensible arrangement.
35. Finally, I should record this. In acceding to the father's request to vary matters, I note and accept from him that the parents have themselves already altered the detail of the judge's order on the Friday evening contact. The judge provided that, instead of picking up from school, the new order would be that the father should collect at 6pm from the mother's house. The mother now works full-time, and she and the father have arranged that the father would in fact pick up from school. So to that extent the judge's order in any event has been superseded by some, albeit sadly rare, agreement between the parents.
36. For all of those reasons, I would therefore allow this appeal on that very limited basis.
Lady Justice Hallett:
37. I agree. Clearly both the mother and the father love H dearly and claim to have his best interests at heart. Unfortunately their relationship can be extremely fraught. Scenes have occurred in H's presence that must have been extraordinarily disturbing for him. They cannot be allowed to continue. The parents must put their differences to one side, at least in H's presence and where H's contact arrangements are concerned. In the meantime it is absolutely essential in my judgment, as Mr G conceded and the judge found, that the opportunities for contact between the mother and the father should be kept to a minimum. It is not in H's best interests to witness emotional scenes between his parents. It is not in H's best interests for him to spend his life "toing and froing" between his parents' homes.
38. I see considerable force, therefore, in Mr G's argument that, unwittingly maybe, HHJ Waddicor's order has increased the opportunity for contact between the parents and for unfortunate scenes. It has also increased the "toing and froing".
39. I was persuaded also that a better order would allow contact between H and his father at the times McFarlane LJ has outlined. It is not the shared residence that Mr G has sought, but it does allow for a more normal settled relationship between father and son and reduces considerably the opportunity for meetings between mother and father.
40. In so concluding, I too wish to emphasise I make no criticism of HHJ Waddicor, who had presided over, with considerable patience, a long and undoubtedly tense dispute; perhaps at the end, understandably, some aspects of the fine-tuning were lost.
41. For the reasons given by my Lord, therefore, I would give permission to appeal on the one ground and the one ground only, which I think is headed in Mr G's skeleton argument, "Schedule of contact". I would allow the appeal on that one ground only and substitute a new order for contact as outlined.
42. For the reasons also given by McFarlane LJ, in my judgment, the mirror order should remain in place. This is a matter for the Brighton County Court to resolve and in any event I am satisfied that there was a good basis, evidential and principled, for the order being made.
43. I too understand Mr G's arguments as to the potential benefits of a shared residence order. However, I share my Lord's concern that even if in principle such an order is in a child's best interests, in practice, this is not presently a suitable case, given the difficult relationship between mother and father. I am also satisfied that the judge was not only entitled but was well advised to make the order that she did in relation to section 91(14) of the Children Act 1989. As Mr G himself pointed out, this is the 28th hearing between the parties and that is excessive. It is time that the parties and H had a chance to have some stability in their lives.
44. For all those reasons I agree wholeheartedly with my Lord.
Order: Appeal allowed in part.