Family Law Hub

M (A Child) [2013] EWCA Civ 210

  • Case No: B4/2012/2899

    Neutral Citation Number: [2013] EWCA Civ 210




    Royal Courts of Justice

    Strand, London, WC2A 2LL

    Date: Tuesday 12th February 2013



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    (DAR Transcript of

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    Mr Bailey (instructed by Edward Hayes LLP) appeared on behalf of the Appellant father.

    The Respondents did not attend and were not represented.

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    (As Approved)

    Crown Copyright (c)Lord Justice McFarlane:

    1. This is an application for permission to appeal made by the father of a boy whose initial of his first name is E who was born on 26 July 2002 and is therefore now over ten and a half years of age.

    2. Disputes as to the arrangements for the welfare of E have been current between the parents from time to time and more recently before the family courts in Sheffield over the course of some years. The father is named on the birth certificate but currently does not have parental responsibility. The parents separated in February 2007 and initially contact was taking place by agreement between the parents. However, in December 2008 the father seems to have experienced a decline in his emotional equilibrium and indicated a wish to step aside from being involved in contact and the fallout following the ending of his relationship with the mother. As a result the mother suspended contact and that in turn, within a short time, led to an episode where the father removed the boy from school and kept him overnight away from the father's own home before delivering him to school the next day. That incident escalated the mother's concern and really since then there have been difficulties over contact.

    3. That said, a lot of contact has taken place despite that inauspicious episode at the end of 2008. Supervised contact was arranged and carried on effectively until February 2011 when the last face-to-face contact between father and son took place.

    4. Forensically the case has not been without its own difficulties. The hearing of the issues relating to contact and other matters first came on for hearing before HHJ Carr QC sitting in Sheffield on 1 March 2011. It is apparent that during that hearing the father decided to absent himself from what, no doubt as is often the case, was a highly emotionally charged setting in the court room. The judge went on to make orders restricting his contact to indirect contact and imposing an embargo on future applications to the court under Section 91(14). The father sought to appeal that order of 1 March 2011 and unhelpfully (to put it in neutral terms) that appeal was not heard until over 12 months after the event on 14 March 2012.

    5. At that hearing the Court of Appeal, my Lords, Thorpe LJ and Etherton LJ together with Henderson J, allowed the father's appeal and made directions that provided for the case to come back before a different judge in Sheffield with a fresh psychological report and also with a fresh guardian for E, a guardian having been appointed from Cafcass in these private law proceedings. It was as a result of that process that HHJ Jones conducted a one-day final hearing resulting in the judgment, which was handed down on 16 October 2012, which is now the subject of the present application.

    6. The order made by HHJ Jones was to refuse to make provision for direct contact between father and son and to arrange some limited and various facilities for indirect contact. The application made by the father for parental responsibility was refused and the judge imposed a two-year Section 91(14) embargo on the father making any applications in relation to E without the leave of the court. It is those orders that the notice of appeal filed on 6 November 2012 now seeks to challenge.

    7. The application for permission was considered on paper by McCombe LJ on 16 January 2013 and in (for a document of this type) a fairly full note of his reasons he refused permission on all grounds. As is the father's right he through his counsel, Mr Bailey, seeks to persuade me this afternoon at this oral hearing that despite the reasons given by McCombe LJ, permission to appeal should be granted.

    8. The case is attractively put by Mr Bailey. He accentuates the chronology which shows firstly that despite the key episodes around November and December 2008 that I have mentioned and other matters, the consistent and overall theme of the progress of the relationship between father and son since the separation has been positive; positive in the sense that when they meet together the contact supervisor's reports indicate either an unremarkable encounter (and by that I do not mean any disrespect either to father or to E but it is just normal stuff and not the cause of any concern) or more generally it is thought that these are positive encounters albeit in the artificial setting of supervision. The point is also made that the mother had been willing until more recent times to encourage and go along with the contact arrangements.

    9. It is also stressed that this father, although there has been a forensic history which now spans some four years or so, has simply made his one set of applications to the court and these have led to a decision by HHJ Carr which he successfully appealed and then the further hearing before HHJ Jones that I have described. It is not, it is said, a background of a vexatious litigant constantly coming before the court. This man has simply asked for orders to enhance his relationship and improve it with his child and made that application on one occasion. I can understand well the way the case is put and rightly Mr Bailey stresses those matters.

    10. Principally in recent times the positives are the fact that until a very short time before the hearing E was saying to the guardian that he was prepared to contemplate direct contact with the father. That stance, apparently insofar as it was reported to the court, changed a short time before the hearing took place.

    11. Against those positives, which positives are undoubtedly made out on the facts, how is it that the judge came to such a negative view? Because these are high end orders, these are orders that very severely restrict the relationship between father and the son and the rights and responsibilities that the father has in relation to his child. In the course of this very short judgment it is not possible to do anything other than to point to the areas in the judge's judgment where these factors are dealt with.

    12. Principally the judge relied upon the fresh report prepared by the new expert, Dr Croxson, who undertook a substantial exercise both in terms of the amount of time she spent with the father but also in terms of the scale of her report, in which she concluded that the father displayed a number of worrying aspects of his personality. She said this, and I am quoting from the judgment:

    "The father presents as an individual who is rigid and inflexible in his thinking, being egocentric and preoccupied, displaying a certain degree of paranoia, traits that are likely linked to his personality functioning. In her opinion the father is an individual who finds it intolerable when others do not like him. He is unable to reflect upon how his behaviour impacts upon others, accepting little if any responsibility when relationships break down and attributing this to others' actions, becoming angry and hostile when challenged. In her view the father appears to be an individual who can be defiant, uncooperative and difficult to get along with when he perceives others disagreeing with his views or if they fail to meet his needs in some way. This egotistical aspect of his functioning has been significantly apparent during the course of and prior to the proceedings coupled with the underlying suspiciousness and resentment of others."

    Then the judgment goes on to quote further from the doctor's evidence.

    13. The judge was impressed by Dr Croxon's evidence. He found that it was in tune with the appraisal of the new children's guardian, and also it plainly had a resonance with the father's presentation to the judge during the court hearing and particularly obviously when he came to give his oral evidence to the judge and the judge rehearses this in particular at page 9 of the reserved judgment.

    14. All of this material, including his own observations of the father, led HHJ Jones to say this in page 10 of the judgment:

    "I am in no doubt that the father loves [E] and would never set out to deliberately harm him. However, having dealt with cases such as this for many years both in practice and in a judicial capacity, I have rarely encountered a parent so self absorbed and entirely lacking in self awareness and the capacity for reflection as this father."

    And I, sitting as a family specialist in this court, put a deal of weight upon that observation, coming as it does from a judge who is a family specialist and has a wide range of experience of the spectrum of humanity that he will have encountered.

    15. So that was the judge's perspective based upon the evidence that he accepted and his own appraisal of the father and it is that analysis of the dynamics in the case that led the judge to make the orders that he made.

    16. Taking the aspects of the order in turn, the test I have to apply at this permission stage is whether the father has a reasonable prospect of success if I give him permission for a full appeal.

    17. Despite acknowledging as I do the high end nature of this order, which refused any form of direct contact between the father and E, I consider that for the reasons that the judge gives the decision to refuse direct contact and to establish some limited indirect contact was one that was within the bounds of reasonable outcomes that the judge could have fixed upon in the exercise of his discretion. Other judges may have taken a different view, but given the colour and character of the conclusions that the judge describes in his assessment of the father and his potential to have a relationship with E, which does not, as the judge found, put him "at risk of significant emotional harm", in my view it is not going to be possible on appeal for the full court to be persuaded that the judge was plainly wrong. I therefore refuse permission to appeal in relation to the contact order.

    18. The orders with respect to parental responsibility and Section 91(14) are to be viewed in my view in a different light. The judge reminded himself of the test with respect to parental responsibility, namely to see that the applicant establishes a commitment to the child, sufficient attachment to the child and that the motivation for making the application for parental responsibility is one that is to be seen in a positive light. He readily found, as he would have done from the evidence, that the father was utterly committed and also that there was sufficient attachment between father and son. It was the question of the father's motivation, as page 12 of the transcript shows, that caused the judge concern. The judge lists there (and I am not going to read them into this judgment but they are the five paragraphs during the second part of page 12 of his judgment) the reasons why he, the judge, considers that the father's motivation will have a negative impact upon E and indirectly upon the mother if parental responsibility is granted and he therefore refused to sanction that order.

    19. Mr Bailey today makes submissions which point to the fact that the established case law, and in particular he has in mind Re S (Parental Responsibility) [1995] 2 FLR 648 and certain observations of Black J (as she then was) in Re D [2006] EWHC 2 (Fam), to the effect that granting a parental responsibility is a matter of status and the question of how it may or may not be exercised is to be dealt with by orders of the court if necessary under Section 8 or any other provision. It does not seem to me that the judge expressly turned his mind to that case law and in particular Mr Bailey plainly offered to the judge various undertakings or conditions or orders that might be put in place to restrict the father's ability to exercise parental responsibility, for example communicating with the school, communicating with medical professionals. The judge relies upon those offers on behalf of the father to reinforce his conclusion that granting parental responsibility is going to have a negative effect, but the judge does not actually analyse whether implementing some or all of the restrictions offered would reduce the potential negative impact that the judge identified. So I consider that it is right for the father to have permission to appeal in relation to the parental responsibility order that the judge refused and I grant permission in respect of that.

    20. Had the Section 91(14) order stood on its own I would probably have refused permission to appeal but it does seem to me that if the issue of parental responsibility and the potential for more detailed Section 8 orders to be made is to come before the full court on appeal, it is right that the Section 91(14) order should come as well because to a degree they are different sides of the same coin. In addition Mr Bailey is entitled to say, as he does on behalf of the father, that this was not a case that fell within the ordinary parameters for granting a Section 91(14) order. The only justification would be some form of exceptional feature of the case. Whilst the judge does identify features that he regarded as exceptional, it does seem to me that, just by a whisker as it were, there are grounds upon which permission can be granted in relation to the Section 91(14) order on that basis alone. I therefore give this father permission to appeal the parental responsibility order and the Section 91(14) order.

    Order: Application granted in part

Judgment, published: 20/03/2013


Published: 20/03/2013


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