Family Law Hub

S (A Child) [2014] EWCA Civ 1264

Mother's application for permission to appeal an order that the child should live with the Father after she failed to comply with orders allowing contact. She also appealed an earlier joint residence order. The applications were granted.

  • Neutral Citation Number: [2014] EWCA Civ 1264






    Royal Courts of Justice


    London WC2A 2LL

    Thursday, 24 July 2014

    B e f o r e:



    DAR Transcript of

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    The Applicant appeared in person

    The Respondent did not appear and was not represented

    J U D G M E N T

    (As Approved by the Court)

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    LADY JUSTICE GLOSTER: This application concerns a child, whom I will refer to as N, who was born on 5 June 2006. His mother seeks permission to appeal against two orders of His Honour Judge Vincent. The first order, which was made on 3 March 2014, is effectively a joint residence order which provides for detailed provisions for the child to reside with each parent during the school half term holidays on an alternating basis and detailed arrangements for shared residence in the school holidays, but for the child to reside with the mother for the purposes of going to school where he went at that stage in Cornwall. I should have said that the father lives in Essex and the mother lives in Newlyn.

    There is no judgment backing the order dated 3 March 2014, although I have read the transcript of the hearing, which appears to have been conducted in, at least so far as the mother was concerned, a relatively amicable way, so far as her and the judge were concerned. She appeared in person on that date. The father was represented by counsel or solicitor, and the boy, N, was represented by a guardian ad litem and counsel appeared on behalf of the guardian.

    There has been a long history of disputes between the parents. I will summarise it very briefly. On 28 April 2011, His Honour Judge Vincent ordered that N would reside with his mother in Newlyn and that there would be contact between N and his father on a three weekly cycle. It appeared that contact with the father proceeded well until September 2012. However, about that time, the mother alleged that N had told her that his father had attacked his grandfather in front of him, and it seems that the police investigated the alleged incident but were not satisfied that it had taken place.

    The mother applied to discharge contact. That application was heard by District Judge Mitchell on 27 June 2013. He ordered that the mother make N available for contact with his father on a three weekly cycle. However, the mother did not make N available. The father then applied to the court on 15 July 2013 to enforce the contact rules made by His Honour Judge Vincent and Mr Recorder Mitchell. On 29 July 2013, he attached a penal notice to the contact order. Contact did not take place as it should have done in August 2013.

    The matter then came before His Honour Judge Vincent on 2 September 2013. Rather than considering committing the mother for contempt, the judge suggested that the father should make his own application for a residence order. He did so on 5 September 2013, and also applied to enforce the contact orders made by the judge and the recorder. The matter came back before His Honour Judge Vincent on 3 March 2014. That is the date of the first order for which the mother seeks permission to appeal. It appears that at that point the father had not seen N since September 2012.

    In her submissions to the court made on 27 February 2014, the mother said she would not allow direct contact between N and the father. However, when it came to the hearing on 3 March, the mother told His Honour Judge Vincent that the child wanted to see the father and she had no intention of stopping him from doing so. On 3 March 2014, His Honour Judge Vincent made a shared residence order. It appears from the transcript that this was effectively with the agreement of the mother, and indeed the order dated 3 March 2014 contains the words "by consent".

    However, when I questioned the mother whether in those circumstances she had any prospect of success on appeal, and given in particular the tenor of the transcript of the hearing on that date, the mother says to me that she was really faced at the hearing on 3 March with an impossible situation. There had been a previous Cafcass report dated 21 January 2014. But it was only at the hearing itself that she was presented with the Cafcass report dated 24 February 2014, when the mother -- or so she tells me -- said she was told by the Cafcass officer that unless she agreed to a shared residence order, the reality would be that the boy, N, would live with his father in Essex, and it would be extremely difficult for the mother to see the boy.

    The recommendation from the Cafcass officer on that occasion was:

    "1. I am struggling to reach a firm recommendation in this case as there are many positive aspects and many risks or unknowns in both parents' situations.

    "2. The least disruptive for N would be further attempt at enforcing a reinstatement of contact [with the father]. This is unlikely to be effective however and will undoubtedly lead to increased anxiety in [the mother].

    "3. Maintaining the status quo would effectively end N's relationship with his father. The long term impact of remaining with [the mother] is uncertain and may be isolating and emotionally damaging for N.

    "4. Changing residence to [the father] is risky and the long term impact uncertain. This may provide N with a more rounded family life experience however and be more likely to enable him to have a relationship with both parents."

    She then referred to a recommendation of psychological assessment of N. She also referred to the fact that she had been unable to verify the mother's allegations made to the local police about the alleged attack by the father on the grandfather, which she says gave rise to her concerns in relation to access.

    Basically, in relation to the order of 3 March 2014, the mother complains that, given that she was in an unrepresented position, and no proper attempts had been made to explore the domestic violence relating to the father -- an attack which had apparently taken place in the presence of the son -- she says that the court failed properly to consider whether or not there had been domestic violence and failed adequately to consider the factual and welfare issues involved. She complains that she had had reasonable grounds to stop contact between the son and the father and for failing to comply with the court orders as to access. She says she was extremely concerned about the consequences on her son of seeing the violence between the father and grandfather.

    She complains that although the order was by consent, she was effectively in an impossible situation, having been faced with the stark alternative that if she did not agree to joint residence requirements, the child would be taken away from her. She complains that the court failed to treat the child's welfare as the paramount consideration and failed to properly consider the child's feelings and wishes and the risk of harm to him.

    Although this was a consent order, I am satisfied, in circumstances where I am going to give permission in any event to appeal against the order of 28 May 2014, that it is it is appropriate that I should give permission to appeal in relation to that order. I point out that I have reservations in so doing, because the judge does appear to have gone into the matter very fully. The mother did go along with the arrangements at the end of the day, after considerable discussion during the court hearing.

    However, there is no judgment by the judge supporting the order that was made on that date, and that is a matter that gives rise to some concern as it is impossible really to work out what considerations he has taken into account in making that joint order. The proceedings seem to have proceeded in a very discursive and haphazard fashion; again it is not clear to me precisely what considerations the judge took into account in making a joint residence order in circumstances where it is certainly possible that so much access to the father might have proved disruptive to the boy, although it would appear that the judge had every justification for ensuring that some contact did take place on some limited basis, notwithstanding the mother's concern about violence. Anyway, I am going to give permission to appeal in relation to that order, despite my reservations.

    So far as the order of 28 May 2014 was concerned, the history leading up to that was as follows: after the shared residence order, the boy went to see his father on 15 and 16 March. The mother then kept the boy off school on 28 March, when the father was due to collect him from school. By doing so, the mother breached the order that the judge had made on 3 March 2014. After the intervention of social services, the child was able to spend time with the father from 28 March to 30 March 2014. However, the mother made a complaint to the police about N's safety in the care of his father. The police visited the father and reported that the child was safe and not at risk. The mother then refused to allow the father to see N after 30 March, again in breach of the order of 3 March 2014.

    On Friday, 23 March, I am told by the mother, although I have not seen the email, that she was sent an email by the Cafcass officer with an attachment. She could not open the attachment. She tells me that on Monday the 28th, which was the day that the father applied for a child arrangements order, she, the mother, received a text from the Cafcass officer at 10.25 or 10.26, telling the mother that a hearing was about to take place in the Truro County Court at which the father was making an application for a child arrangements order. The mother was unable to attend in person. She sent emails to the court and rang the court.

    However, the hearing went ahead in her absence and the order made on that occasion recites that the applicant father was there, that the child's guardian was Cathy Hopkinson, the Cafcass officer, and that she was represented by a solicitor who appeared for the child and the child's guardian. The order also recites that the respondent mother had been given notice of the hearing but did not attend in person, but had emailed and telephoned the court, as I have just mentioned. That appears to have been by an email on the Friday evening and a text on the Monday morning, which on any basis, if that is the correct position, was not sufficient notice of the hearing.

    The order goes on to recite that the child had been made the subject of a child protection plan by Cornwall Council as being at risk of emotional harm due to the mother's high anxiety and the acrimony between the parents; it then goes on to recite the various arrangements between the parties on 3 March 2014, and then what had happened in the intervening period, including the fact that the mother had not allowed the child to see the father since 30 March.

    There is then the following recital:

    "And upon the court having no confidence that the mother will comply with the order of 3 March or with the suspended order for change of primary care.

    "And upon the father having been deemed to have made an application to vary the order of 3 March 2014."

    I interpolate to say that there does not seem to have been an actual application served on the mother in relation to that. The court then went on to order that the child should live with the father, that the mother should make the child available for collection on 28 May, and that the matter should be listed for a review hearing on 18 June with a time estimate of one hour, the hearing "to consider the times that the child will spend with the mother."

    So effectively the court was making an order that there should be a complete change of residence from the mother's home, where the boy had always lived all his life, and had attended school in Cornwall. Apparently there is no judgment by the learned judge made in support of this order, so again, apart from what is set out in the recitals, there is no indication whatsoever as to what considerations the judge took into account, and in particular what considerations in the interest of the child were taken into account for making a wholesale change of residence for this little boy, who had lived with his mother all his life. In circumstances where the mother had been given such brief notice of the hearing, if indeed she had been given notice, on the Friday, and in circumstances where she was not at the court to resist, I find the absence of a judgment, to say the least, surprising.

    I should say I have not seen any of the Cafcass reports, or reports before the court on 28 May, because the mother tells me that she has not been provided with any of those reports.

    Subsequent to that hearing, the boy was removed by the intervention of social services from the mother, who was refusing to comply with the order. At the subsequent hearing, the mother did not attend. The order recites that she sent an email stating that her attendance at court would cause immense harm to the child.

    At that hearing, again I have no judgment in relation to it, but the order simply makes the previous order of 28 May final and gives liberty to the mother to make an application to apply to the court for any adjustment of the order of 28 May limited to seeking a order that she be able to spend time with the child; in other words there is no liberty to her to apply to vary the change of residence order. That order recites that the father was not in principle against contact between the mother and the child and that he was willing to facilitate that contact by Skype, and also that the court indicated that it retained an anxiety about face to face contact between the mother and the child because of the mother's presentation. Again, that appears to be a view on the part of the judge that there should be no contact face to face between the mother and the child. Again, no reasons appear to have been given for that conclusion and no judgment is available.

    In those circumstances, the mother argues that she did not have the opportunity to make representations before the court, because she was given such short notice of it and she was unable to attend, and that the court failed to consult social services or the child's school. She complains that the court failed to ensure that the child's welfare was paramount and properly failed to investigate the facts before making the residence order; and that the court failed to properly apply the welfare checklist. She contends that it is not in the child's best interests to live with his father, whom the mother says is violent and abusive, and therefore the child will be at risk of significant harm if he lives with the father.

    She also makes allegations against the child's guardian as being unfit to represent him in the case, and she tells me she has made a complaint to her MP about the Cafcass officer. She says that her anxiety was not unfounded but is based on the father's history of domestic violence. She says that she did not keep N off school without a good reason. He was kept off school to prevent him from suffering serious harm. She also complains that the judge did not investigate and consider all the evidence before he made a residence order.

    It is clear to me that the mother has been in breach of the order of the Truro County Court, which provided quite clearly under the order of 3 March that she was to make the boy available for access with the father. She should have complied with that order and challenged it either by an appeal or by an application.

    Having said all that, and despite what would appear to be a contempt of court by the mother -- which on its own is a very serious matter -- I nonetheless take the view that it is appropriate that she should have permission to appeal. A matter such as this, the removal of a child's residence from one part of the country to the other, from a home where he has lived all his life, where he has been to school all his school years, and where he has always lived with the mother, is on any basis a Draconian measure. It needed to be justified by full reasons for the decision that was taken, and on the basis of appropriate evidence as to the child's welfare. In the present case however there are no judgments.

    I am somewhat in the dark, because I clearly do not have all the Cafcass reports or the child protection plan, but in the absence of any judgment from the judge supporting the order of 28 May 2014, it seems to me that I should give permission to appeal. Despite the history of the mother's contempts, it is appropriate that she should have an opportunity in the interests of the child of arguing her appeal before this court, and I so order. I also direct that she is to lodge with the court within 14 days all copies of all Cafcass reports and other reports relating to the child that she has available to her.

    As I have made clear, I have granted permission to appeal in relation to the order dated 3 March 2014, although I expressed reservations about that. I am also granting permission to appeal against the order of 28 May, and I record the fact that there appear to be no judgments in relation to either order.


Judgment, published: 06/10/2014


Published: 06/10/2014


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