R (children), Re

©Crown Copyright

LORD JUSTICE THORPE:

1. Mr R and DS have two children: J and C, now aged 8 and 6. The parents married in 1994 but separated in October 1996, at a time when the mother was carrying C. There have been orders of the court in relation to residence and contact since November 1996 in relation to J only, supplemented by an order in March 1997 after the birth of C. The fundamental pattern has been for residence to be with mother, with contact to father.

2. The case came to the Court of Appeal in October 2000, when Mr R successfully appealed an order made by a recorder stopping the father's contact. In the Court of Appeal the President specifically asked Mr R whether it was his intention to challenge the basic pattern of residence order to mother. He told the court clearly that it was not his intention to seek any change and that he recognised her as the primary carer. However, in April 2002 he issued an application for a shared residence order. It was the court's intention to list that in front of Judge Allweis in November. However, as a result of pressure on his lists and a settlement in the list of the liaison judge for the Northern Circuit, Mrs Justice Black, the case came into her list on 14th/15th November.

3. As Mrs Justice Black recorded in her judgment, she devoted not only those two days but also a significant amount of additional time outside the court calendar in reading into the case and mastering the history. She then delivered her judgment on a third day. The judge had the advantage of a report and oral evidence at the outset from the children and family reporter. Her conclusion was that the mother should continue to have the residence order and that the father's contact should be defined on what are generous lines. Without descending to the detail, during school terms the father has a full weekend every other and he has mid-week contact additionally from after school until 7.00pm. During school holidays he has more or less an equal share. There was one area in which the judge did not follow the recommendations of the court welfare officer, which was to the effect that the mid-week school term contact should be extended to an overnight stay. However, the judge recognised that she should not depart from such a recommendation lightly and explained fully her reasons for taking an independent line.

4. Mr R is an exceptionally concerned and committed father. He is also transparently sincere. He presents his case in person both in the trial court and in the Court of Appeal. He has, as the judge recognises in her judgment, mastered a great deal of detail, including statute law, case law in England and Wales and international Conventions. As the judge said, Mr R's submissions are:

“... the product of very considerable research on his part and an awareness both of the decided authorities and of various legal provisions, both domestic and European”.

She said of his manner in court:

“I noticed that the father participated in the hearing with politeness and restraint at all times and consciously refrained from repetition and from pursuing obviously irrelevant avenues.”

That accolade would not be deserved by many litigants in person. I would also like to reiterate that the bundle Mr R has prepared for this hearing is a model of conscientious application to a task that is normally undertaken by professionals. Equally, he has prepared a skeleton argument of great scholarship and research. It extends to no less than 56 pages and is supported by a great deal of citation, all impeccably presented.

5. But Mr R meets precisely the same obstacles that all applicants for permission meet. He has to demonstrate either that the judge was plainly wrong, or that she misdirected herself, or that she made some erroneous appreciation of fact. The reality is that this couple were fortuitous in being given the appraisal of one of the most experienced specialist judges within our justice system. There was nothing in the case that began to justify the elevation to such an expert tribunal.

6. That expertise is demonstrated by the clarity of the judge's findings. She reached a clear view of the father's personality, both its strengths and it weaknesses. She was impressed by a letter which he had written on 9th October 2001 to the mother. She said that it was revealing of his personality and of his approach. She said that the letter was:

“... a product of the father's absorption ... in the issue of his role in the boys' lives and also of his love for them”.

Whilst not sent with any malign intent, the letter was an “oppressive document”. She said that the conclusions that she had provisionally drawn from the letter were subsequently confirmed by the father's written and oral evidence. She then identified those critical conclusions under four bullet points.

7. That appraisal is simply not open to review in the Court of Appeal. It is the function of the trial judge to reach clear conclusions as to the personality and approach of the litigants. She was not so critical of the mother. She said that she was impressed by the mother when she gave her evidence. She also added that she was impressed by the way in which both parents had managed to agree and operate a beneficial programme of contact for the children.

8. From the finding as to personality, the judge moved clearly and rationally to her conclusions. In reaching those conclusions she was exercising a broad discretion. Again it must be recognised that it is not for this Court to interfere with such an exercise of discretion by a judge of the Division. It may be that had I been the trial judge I would have taken a different view on any of the points of detail, but that is nothing to the point. It is my function to recognise the respective roles of the court of trial and of the Court of Appeal.

9. In leaving this case I would only echo the judge's conclusion that what these parents have achieved for the benefit of their children must have been a two-way process involving give-and-take from each. I only hope that, during the course of the period of moratorium imposed by the judge in the exercise of her discretion, that process of co-operative give-and-take will continue. Inevitably there will be issues that arise which cannot be managed within the formula that is expressed in the judge's order of 21st November. Those developments must be dealt with by the parents collaboratively. The order specifically provides in paragraph 4 that the parties may depart from the terms of the defined contact order if they both agree to do so. I very much hope that the parties will make full use of that opportunity and enable evolutionary and incremental development of the arrangements for the children to meet changing circumstances.

10. That having been said - and it is an exhortation to the mother, who is not here, as well as to the father, who is - I consider that the application for permission has not been made good and I therefore dismiss it.

Order: application for permission to appeal dismissed; transcript of this judgment to be provided to the applicant at public expense.