Family Law Hub

N (Children) [2013] EWCA Civ 1381

Appeal by F against an order which altered the existing requirement for provision of staying contact on the basis that the judge considered it was simply impossible for him to sanction any form of order that went beyond a concession by the M (that of daytime contact). The appeal was dismissed but the M was then urged, as a matter of priority, to file her statement explaining what had happened in relation to contact so that the case could be concluded.

  • Case No: B4/2013/1608

    Neutral Citation Number: [2013] EWCA Civ 1381





    Royal Courts of Justice

    Strand, London, WC2A 2LL

    Date: Thursday, 3 October 2013






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    (DAR Transcript of

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    Ms Katherine Dunseath (instructed by Coram Children's Legal Centre) appeared on behalf of the Appellant Father

    The First Respondent, the mother, appeared in person

    The Second, Third, and Fourth Respondents, the children by their Guardian did not appear and were not represented

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    (As Approved)

    Crown Copyright (c)Lord Justice McFarlane:

    1. This is an appeal brought by the father of three children in relation to ongoing and lengthy proceedings around the issues of contact and residence that have been before various judges sitting in the High Court Family Division. I say with a degree of hesitation "three" children and described him as "the father" because that is how he is seen by the three children. However, the hesitation arises in two respects. First of all, the eldest child (who I will refer to by the initial of his first name, M) was born on 7 December 1995 and is therefore only two months away from his 18th birthday and as on that occasion he will fall clearly outside the jurisdiction of the court. Although the father in these proceedings is not the biological father of this young man, he has always acted when the couple were together as the child's father, and from what I have seen of what M has said from time to time to social workers he too regards the father as his father figure.

    2. The other two children are a girl known by the name G, born on 28 March 1998 and therefore now 15 years of age, and a young boy, J, born on 5 March 2004, therefore now nine.

    3. The parties are both Fijian by origin and nationality. They married in 1997. The mother became a serving soldier in the British Army and moved to take up her work in that capacity to the UK in 2001. The father joined her the following year with the two children, M and G, and of course young J was born in 2004. Sadly the couple separated soon after J's birth. A divorce took place and in fact the mother subsequently remarried, a Mr N, in 2009. In 2010 the mother moved initially with the two younger of these three children and then all three of them to Germany, again as part of her duties as a soldier in the British Army. The final matter of record, as it were, is that a further children, I, was born in June 2010 and is the child of the mother's marriage to Mr N.

    4. Unfortunately, it seems that the mother had no contemplation that her move to Germany with the children was either unlawful, as it would seem to be in terms of breach of rights of the father's custody and engaging the Hague Convention on Child Abduction, or a matter upon which she needed to consult the father or make arrangements for contact. Her departure to Germany therefore triggered proceedings, initially in the county court and subsequently in the High Court, in 2010 and it is those proceedings relating to the children's welfare that have rumbled on and came eventually before Roderic Wood J on 24 May of this year for a hearing which was booked as a "review hearing".

    5. There is a substantial history as to what has or has not happened in relation to contact between the father and the children in the period from 2010 to the day on 24 May when Wood J encountered this case, I think for the first time. It is perhaps sufficient to focus the points in this appeal to explain that subsequently the mother separated from Mr N. She then has been transferred back to England in the course of her posting with the army, taking up residence back here I think in August 2012. Following her move here the court, in the form of an order made by Pauffley J on 4 July 2012, provided for there to be staying contact, with the children going to the father to stay with him from Friday until Sunday over the first weekend of every other month. Specific dates were established in the order of July 2012 for the first two of those occasions and therefore it was simply to follow the calendar as to when they would take place.

    6. The review hearing was initially booked to take place in January 2013, but counsel, Ms Katherine Dunseath, who has represented the father, certainly before Wood J and maybe on other occasions, tells us that that booking was vacated on the basis that it was thought that the contact was working satisfactorily. Unfortunately that was not the case. Two things seem to have occurred, either one because of the other or separately in December 2012. Staying contact under the order was due to take place in the first weekend of December, but the mother refused to facilitate staying contact. Instead on 2 December the father travelled to the mother's home to see the children locally in that area. At the same time, or roughly the same time, he moved from his accommodation, which had been suitable for the children to stay overnight, into temporary accommodation for himself in Wimbledon, which he regarded as being unsuitable for staying contact. It is then apparent that the parents negotiated between themselves and established arrangements whereby he went to see the children locally to where the mother is stationed for a daytime visit roughly once a month from December onwards.

    7. Thus, when the case was called on before Wood J, the judge, as the transcript shows, spent a deal of time trying to find out what on earth the current circumstances were. He had not been assisted by the father's legal team, it seems to me, in any manner. First of all, no bundle was provided for the court, but more importantly the documentation that existed was stale. It had at its high points two quality sources of information: first of all a Cafcass officer, Mr Power, who had provided three reports in the course of 2011 and a similarly high quality contribution from a British forces social worker, Mr Leahy, who provided a report on 4 November 2011 and then in June 2012. But those documents I have described as being stale because they related to the situation that then obtained, namely the mother stationed in Germany and the need to arrange some form of contact sporadically when the father could see them, despite the geographical difficulties. There was no information about the operation of the order that Pauffley J had made in the light of the mother's return to the UK in August 2012. More importantly, there was nothing about the father's accommodation, and significantly Wood J was told by the father's counsel at the hearing that the father had now moved from the unsatisfactory temporary accommodation in Wimbledon to live at a three-bedroom house in Ealing, which he now regarded as satisfactory for the staying contact to be re-activated.

    8. The judge simply did not have any information. There was no statement from the father about that and the court was not even given an address. No communication had been given to the mother about the father's new accommodation. It is not apparent from the transcript when the father moved. This morning we asked Ms Dunseath for the date and we were told that in fact it was 23 May. The significance of that date is that it is the day before the hearing before Wood J.

    9. The transcript shows that the judge was very unhappy about by the lack of information that he had to work upon. He understood that the mother continued to accept, as she had done in the reports from the two social workers, that the children enjoy seeing the father and that they should carry on seeing him, but the mother was not prepared to agree to anything other than daytime contact pending further knowledge as to the father's living arrangements. The judge therefore looked at matters and considered it was simply impossible for him to sanction any form of order that went beyond that concession by the mother. Wood J, however, did consider that an early hearing before a judge who had the facility of full information provided by the parties and the welfare officer should take place and he therefore directed that the case be transferred to the Principal Registry of the Family Division and that it should be listed for hearing on the first open date after 15 July. The father was directed to file his statement in early June followed by one from the mother followed by a report from the Guardian.

    10. In the meantime, Wood J amended the order that had been made by Pauffley J to remove the requirement for contact every other month on a staying basis and to substitute that with a provision for contact once a month from 9.00am to 5.00pm and also "such further and other contact as can be agreed". That final provision had been volunteered by the mother in her short contribution to the judge. She said she might be willing to agree to further contact, and counsel for the father had said that no doubt the mother would need to be reassured about his new accommodation and that she (counsel) was sure that the father would invite her to see that property with the hope that she would indeed agree that it was suitable.

    11. We are told that in fact that the arrangements for contact in the order of Wood J have not led to continuous monthly contact even of a visiting sort, and the mother tells this court that the children currently do not wish to have any communication at all with the father. But those are not matters for us. Our focus has to be upon the determination made by Wood J.

    12. Ms Dunseath for the father makes three short criticisms, but forcefully argues that they establish that the judge was in error in altering the contact arrangement that had been established by the order of Pauffley J. Ground 1 is that there was simply no evidence before the court and that, in the absence of evidence, the judge should not have altered the existing requirement for provision of staying contact. Secondly, it is asserted that the judge failed to refer to the welfare checklist when making that material alteration in the contact arrangements, and Ground 3 is that the judge took into account the irrelevant factors, in particular the father's immigration status, when determining whether or not the order should be varied.

    13. In relation to that third ground I should explain that, following the dissolution of his marriage, the father has become an overstayer and now he needs to obtain leave to remain in this jurisdiction. In the course of the hearing the judge enquired as to the status of the father's application for a continued stay in this jurisdiction. He asked him that, in particular, because as long ago as 2011 the report showed that father had already made an application in that regard.

    14. The relevant parts of the transcript show that the judge enquired about this and indicated that it would seem to him that the only grounds that the father could ask the authorities to grant him leave relate to Article 8 family rights that he would have in relation to his family and indeed these children. And the judge made an observation at page 5 of the transcript in these terms:

    "He will find his hand strengthened, no doubt, if he has contact."

    And it is on that basis that Ms Dunseath submits that the judge erroneously relied on that factor in determining the contact issue.

    15. Notice of appeal was filed on 13 June, and permission to appeal was granted by McCombe LJ on 2 July on paper, and the learned Lord Justice indicated that he was granting permission primarily on Ground 1, namely that the judge had proceeded to alter the contact arrangements without having any evidence before the court that would support such an alteration.

    16. Having now read the full papers in this case, in particular obviously Ms Dunseath's skeleton argument and heard her oral submissions, I am of the firm view that there is absolutely nothing in any of these three grounds of appeal. Whilst it is the case that there was no formal evidence at all before the judge in terms of updating statements or reports taking the matter beyond the material that Pauffley J had seen on 2 July when she had the case before her, the judge did have information that was agreed between the parties and volunteered by the father to the effect that it had been impossible to conduct contact as provided by 4 July order because the father's housing arrangements had changed and he, very responsibly, had considered that the accommodation that he had had from December 2012 onwards was simply not suitable for the children. So the judge had before him, again agreed between the parties, knowledge of the fact that the contact had not been staying contact, but had been visiting contact on a monthly basis between December 2012 and May 2013. What was lacking was any information about the father's new accommodation. That was not only a deficit in the father's knowledge; it was a deficit in the mother's knowledge. On inviting Ms Dunseath to explain matters this morning, we have been told that the father gave the mother absolutely no information at all about his new accommodation other than the fact that he had moved to accommodation which he regarded as satisfactory.

    17. So it seems to me in a family case such as this where there are living, breathing human beings involved, in particular obviously the children, and the judge is aware that the situation has plainly materially changed since the making of the original order, it is artificial to rely on technical points and say that there was no "evidence" before the court and that the judge was therefore in some way embargoed from doing what he thought was right in making an order that met, as he saw it, the children's welfare needs as he understood them on 24 May 2013.

    18. The judge did in my view have the children's welfare as his paramount consideration. He must have done. That was the basis of his very sensible strategy of accepting that he did not have enough material to make a more adventurous order than the mother was prepared to agree to, but setting up a hearing as promptly as could be arranged before a judge who would have all of that material available. In the meantime, as he explained in his judgment, he looked to provide a minimum basis, namely daytime contact, in the hope that it could be built on incrementally if it was seen to work.

    19. A High Court judge, or indeed any judge who is as experienced as this judge is in family matters, does not have to recite as a matter of rote that he has the child's welfare as his paramount consideration in every judgment and certainly does not have to refer to the welfare checklist. That is even more so in the case of what was a short 30-minute review hearing. The judgment the judge gave was very short, but it is the organic consequence of a discussion that took place on a far more lengthy basis in the hearing itself, which of course we have seen transcribed in full.

    20. So, rather than being critical of the judge in the way that Ground 1 of the grounds of appeal invites us to be, I regard the judge, in a pragmatic child-focussed way, to have made really the only order that he could have made on the day given the complete absence of material provided to him, principally by the father and his legal team.

    21. I also regard Ground 2 and Ground 3 as having no weight at all for the reasons that I have indicated. In relation to Ground 3 the judge's observations about immigration status are no more than stating accurately, as it would seem to me, what the position was. There is no indication that the judge used that in any way to penalise the father or alter the contact arrangements that would otherwise be in the children's best interests because of the fact that the father was making an application for leave to remain in this jurisdiction.

    22. Before leaving this case, I would make a further observation. We are depressed to hear that the hearing that the judge set up to take place in the Principal Registry on the first open date after 15 July has not been fixed for hearing. The father has filed his statement, but the mother has not felt able to file her statement. The welfare officer has been to see the father's accommodation, but has not filed his report because he is waiting for the contribution that is due from the mother. It is depressing to be told of those more recent developments in at least two respects. First of all, it would seem to me that, rather than focussing on an arid appeal to this court, the father's legal advisors should have been pushing the Principal Registry to establish a hearing date. The judge wanted the hearing to take place as soon after 15 July as possible, and here we are on 3 October, and Ms Dunseath tells this court that her solicitors have had no contact with the Principal Registry and apparently have not chased the listing of the matter.

    23. It is also, I have to say, depressing to understand that the mother has not seen the sense of contributing to this process by filing her own statement. She expresses frustration and exasperation at the whole saga and, from her demeanour in court, indicates that she feels overborne by the process, but if she does not contribute, if she does not say what she thinks as these children's mother to the judge who may have to determine these issues, then it can only prolong the process and certainly disable the judge from making a fully rounded and sensible decision for these children.

    24. So we have urged the mother to file her statement promptly, explaining it does not need to be a long or sophisticated document, but it does need to tell the judge what has happened, particularly recently, in relation to contact and we are confident that the mother will have assistance from those who know her and work with her in preparing that document.

    25. It also finally, I think, needs to be said that the thing that shines out from the papers that we have read is that these are delightful children. They seem so in what is said about them and they seem so in the rather badly produced photographs that we have of them. The second thing that shines out is that they like their dad, they love being with him; they enjoy being with him and these two parents - and they are the parents of these children; I am not a father of these children; my Lady and my Lord are not parents of them; Wood J is not the children's parents - these parents have the responsibility for providing for these children the best childhood that they can have. It is for them to look at what the children need and then to get on and provide it for them if they can, hard though it may be. Given the bedrock of evidence that the children enjoy, have enjoyed, seeing their father, then it would seem normally an easy step for the parents to communicate with each other to establish an arrangement for the children to see their father from time to time in a way that is not burdensome to them, but is easy for them and allows them to know him just as much as they know the mother and her family as they grow up.

    26. For all the reasons I have given, I have no hesitation in dismissing this appeal.

    Lady Justice Sharp:

    27. I agree.

    Lord Justice Richards:

    28. I also agree.

    Order: Appeal dismissed

Judgment, published: 13/11/2013


Published: 13/11/2013


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