Family Law Hub

F (Children) [2012] EWCA Civ 1418

  • Case No: B4/2012/2268

    Neutral Citation Number: [2012] EWCA Civ 1418

    IN THE COURT OF APPEAL (CIVIL DIVISION)

    ON APPEAL FROM WORCESTER COUNTY COURT

    (HIS HONOUR JUDGE HOOPER)

    Royal Courts of Justice

    Strand, London, WC2A 2LL

    Date: Wednesday, 3 October 2012

    Before:

    LORD JUSTICE MCFARLANE

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    IN THE MATTER OF F (Children)

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    (DAR Transcript of

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    The Appellant mother appeared in person, assisted by a McKenzie Friend, Ms Lynn Swain.

    The Respondent father did not appear and was not represented.

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    Judgment

    As Approved by the Court

    Crown copyright(c)

    Lord Justice McFarlane:

    1. This is an application for permission to appeal made by a mother, Mrs F, in relation to an order made by His Honour Judge Hooper QC sitting in the Worcester County Court on 23 August 2012. The proceedings related to the mother's two children, both boys: T, who is aged 14; and D, who is now aged 12.

    2. The application before the court focused upon where these two boys should live for the future and the outcome favoured by the judge was to change the previously standing arrangement following the parents' separation in 2005, which was that the children were based with their mother living in Kidderminster and going to school in Hagley to move to be based with their father who lives in Tewkesbury and go to school in that area.

    3. The boys had had the benefit of contact to their father under an order made by His Honour Judge Rundell on 27 July 2006, which provided for regular contact based on a framework of alternate weekends for the full weekend, every Wednesday evening between 5pm and 8pm and then generous contact during the school holidays with the half term holidays alternating between one household and the other.

    4. At the hearing before Judge Hooper, the mother was represented by solicitors and counsel. She has now, for understandable financial reasons, decided to represent herself and to support the notice of appeal which she filed on 3 September 2012 she has produced four pages of closely argued criticism of the judge's judgment.

    5. The application for permission was seen on paper by Munby LJ who refused permission on 6 September 2012 and in doing so set out five or six closely argued paragraphs setting out the basis of his decision. That was, in short, that this was a case where the judge had the benefit of a more than usually focused and helpful report from the Cafcass officer, which came down with a clear and forceful recommendation that the "only reasonable proposal" was that the children should reside with their father. And Munby LJ goes on to summarise other matters within the judgment which he considered rendered it not remotely arguable on appeal.

    6. As is her right, the mother seeks to persuade me this afternoon to come to a different conclusion on the permission to appeal issue. She has been significantly assisted in that task by the assistance of a McKenzie friend, Ms Lynn Swain, who has taken me to the documentation and made a number of succinct, clear points. As a result of that process, despite the fact that when I came into court I shared Munby LJ's view as to whether or not permission to appeal should be granted, I have been persuaded that this is a matter that does justify being looked at in detail by the full Court of Appeal in due course. The purpose of this short judgment now is simply to set out my reasons for that conclusion.

    7. The first is this. By far the most predominant feature of the Cafcass report was the Cafcass officer's investigation of the children's wishes and feelings. The report, after a short introductory description of key issues, turns to wishes and feelings on page 4 at paragraph 18 and effectively continues to look at that aspect of case until page 10 at paragraph 34. At that point the writer gives an overall summary and analysis which deals in short terms with the relationships in the family and in particular the relationship between the mother and the eldest boy which led to a flare up at her home in March 2012 which in turn, as the judge describes in his judgment, was the trigger incident that generated the father's application to the court.

    8. After the five paragraphs under that heading, Mr Webb simply turns to his proposals for the future, which were for the children to live with their father and to put forward the ideal situation which is for the father and his current partner to move nearer to Hagley so that the elder boy could remain at the Hagley School.

    9. Pausing there, it is right to reflect that these two boys have different attributes and needs and in particular the eldest diagnosed when still very young as displaying behaviour which indicates that he was to be placed somewhere on the autistic spectrum and he has been identified as probably suffering from Asperger's syndrome. He has a Statement of Special Educational Needs (SEN) which has been in place for a significant time. He attends a school at Hagley which the judge describes as being reported to be "outstanding" of its type and the indications are that his educational needs were being well served at that school.

    10. The criticism that wishes and feelings predominated the Cafcass report is in my view potentially one that is well made out and is certainly arguable on appeal. Given the background of this case, whilst undoubtedly what these two boys aged effectively 14 and 12 were saying was firm and clear, was in favour of living with their father and needed to be given considerable weight, it was not the only factor in the case. Other factors included the schooling for T and included possibly a need for T's wishes and feelings to be understood and evaluated by someone who was particularly professionally attuned to understanding a young person who is diagnosed as being a sufferer of Asperger's syndrome so that what that boy was saying could be understood by lay people, by the judge, by the lawyers, by the parents through interpretation from someone expert in autism and Asperger's syndrome.

    11. The need to get the schooling right for T was, says Ms Swain, of importance in the case. And the Cafcass report does not descend to that detail, perhaps because the Cafcass officer favoured the boy remaining at the school and put forward the compromise outcome of living with father but attending the school.

    12. The second detriment in the Cafcass report over and above its failure to engage with the schooling issue, says Ms Swain, is a failure to understand what the living arrangements would be were the boys to go and live with their father. At the moment living with their mother, she is available through the timing of her work effectively to be their carer when they are not at school. The father is a serving police officer, his partner has a part-time job and it is the mother's understanding that much of the care for the boys will actually be provided by the partner.

    13. The Cafcass officer does not seem to have met the partner and the partner was not called to give evidence before the judge. The judge did not see her and did not form a view about her. Yet the case for the mother before this court is that the effect of the order made by the judge is that this lady would now become the primary day-to-day, hour-to-hour carer for much of the time that the boys are living with the father, and this was just not investigated by the Cafcass officer, says the mother through Ms Swain, and in turn therefore not a feature in the judge's judgment.

    14. Looking at the judgment, we see it this afternoon through the filter of there being no approved transcript but via what seems to be a fairly full note taken by the mother's solicitor. The note shows that the judge followed an entirely correct and predictable structure in setting out in narrative form the history of the case, the factors insofar as they were important and then summarising the evidence that he had heard. And it is of note that the mother chose not to give evidence before the judge because she did not wish to be exposed to cross-examination by the father who she says is a manipulative and dominating individual.

    15. The judgment, again understandably because it was the big point in the case, gives prominence to the boys' wishes and feelings, but in doing so it is certainly arguable in my view that the judge does not engage with the pros and cons, the benefits and detriments of changing T's school from an educational provision which was seemingly meeting his needs and at which he was familiar and relatively comfortable. The judge only deals with the schooling in passing in what is the penultimate substantial paragraph prior to announcing his decision and he simply says, according to this note:

    "I have been persuaded that father has made necessary arrangements in respect of the children's schooling which he has given in evidence today in that he has already spoken with the Deputy and the Admissions Tutor at the Tewkesbury School for the children should they need to commence the Tewkesbury school. Debbie [the partner] works two days a week as a part time worker within the Tewkesbury School in the behavioral support team and I have no issue regarding commuting from father's home to the Tewkesbury School."

    I asked Mrs F what was said about the schooling and she confirmed that really the father said no more than the judge records there.

    16. There was arguably a need for the judge, irrespective of the children's wishes and feelings, to understand in more detail just what educational provision was going to be provided for T, given his particular needs and given the fact that a change of residence would mean pulling out of the school that was currently said, on my reading of the papers, to be meeting those needs. Similarly, the judgment contains no evaluation of what the day-to-day regime would be for the father looking after the boys in his home and the role of the partner would have.

    17. In passing, it is of note that this afternoon Mrs F tells me that the father's partner, Debbie, no longer works and did not work at the time of the hearing as a part time worker at the Tewkesbury school. She now has a different job working elsewhere in that area. So if the judge obtained any comfort from the fact that Debbie would be actually working in the same premises as the boys were going to school during any early period that, says the mother, was erroneously based.

    18. Those are the points in a nutshell which seem to me to be arguable on appeal. The argument being in effect that the Cafcass report, and by consequence the judgment, focused entirely or almost entirely upon the children's wishes and feelings and, important though those factors were, they should not have predominated to the exclusion of consideration of any other factor.

    19. Secondly, the point I have made already at some greater length, to take T's wishes and feelings at face value is not, submits the mother, the right thing to do. He is a much more complicated individual than that. He may say different things to different people depending on what has just been said to him, and the need for some expert input both as to his schooling but also as to interpreting his wishes and feelings may have been necessary and the hearing was deficient because that was not provided.

    20. Finally, and this is a different point but it is not insignificant, the mother says that the Cafcass recommendation if the boy's residence was to change was that the contact arrangements -- and I am looking at paragraph 40 of the Cafcass report -- probably should be "a mirrored version of the current arrangements".

    21. The judge in his judgment, again according to this note, having announced his decision simply went on to recite what the contact arrangements would be. In doing so, he did not include the one night a week, Wednesday, contact that the father had been having. That is simply not mirrored in the order now made in the mother's favour. And, secondly, under the current arrangement the respective households alternated turn and turn around the half term holidays and again that is simply not mentioned in the order that the judge made. And to that extent the mother, for no reason given by the judge, has lost a significant element of the contact that she might have expected, even though the proceedings had gone against her.

    22. The mother finally tells me through Ms Swain this afternoon that although this order was made on 23 August, which is now six or seven weeks ago, she has only been permitted to see the children once for contact and that the father has refused contact, in particular for example last weekend, saying simply that "the boys do not want to see you". The father had assured the court that he would fully facilitate contact to the mother. That issue, I have explained, is not a matter for me today or for the Court of Appeal in due course. I simply record that I have been told that and it is a feature of the history as it has developed since the hearing.

    23. In giving permission to appeal, I in no way indicate that the mother's appeal should succeed. She should not raise her hopes unduly on that regard, but I have been persuaded that there is sufficient in her criticisms of the process as it was before the judge to justify her having her day in court to allow that process to be looked at more carefully by the full Court of Appeal.

    24. Accordingly I grant permission to appeal.

    Order: Application granted

Judgment, published: 08/11/2012

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Published: 08/11/2012

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