J (Children), Re

LORD JUSTICE WALL: This is an application by Mr HCJ for permission to appeal an order made by Johnson J sitting in Norwich on 12th February 2004. The judge was dealing with two children. The younger child was CHEJ, born on 28th June 2001, now aged three, and approximately two years and seven months old at the date of the hearing. Mr J is C's father. C's mother is HCJ, who is the respondent to this application. The other child with whom the judge was concerned is GSB. He was born on 11th September 1990, so he is now rising 14, and was 13 years and 5 months old when the matter was before the judge. G is Mrs J's son by a former marriage. G's father is sadly deceased.

Mr and Mrs J married on 9th December 2000 after knowing each other only since August of the same year. The judge described their marriage in his judgment as "effectively a disaster". Mr and Mrs J separated for the first time in June 2002. There were injunction proceedings in July 2002, followed by a reconciliation in August. There were further injunction proceedings in January 2003 when, as I understand it, Mr J agreed to leave the matrimonial home. The parties have lived apart since then.

Before us both Mr and Mrs J appear in person. They were represented before the judge, and one of the points upon which the judge commented was the strong and ongoing animosity and antipathy between them. That antipathy has been very clear to my Lord and I this afternoon in the short exchanges there have been in this court. Mr J presents very calmly and in a very sincere fashion. But it is equally clear, as the judge found, that he can be difficult. He asserts, and it has not been contradicted in the papers as far as I am aware, that he has never been physically violent to his former wife. However, it is quite clear that there have been, on a number of occasions, extremely unpleasant exchanges between them, often in the presence of C.

Mrs J, although we did not hear her fully for reasons which I will explain in just a moment, made her feelings about Mr J equally clear. She went so far as to say that if the court were to contemplate expanding Mr J's contact during the course of the week (when he is not in employment and she is and the child goes to nursery) she would give up her job. In addition, and as the judge found (I shall deal with this in a moment in a little more detail), it was quite clear that as far as G was concerned he was very reluctant to express his true feelings in his mother's presence for fear of her reaction.

I say this all at the outset of the judgment because this is desperately sad for C. I have practised in this field for many years and seen many cases of this nature. Parents who are both intelligent and in their separate ways charming people, simply find it quite impossible to understand how damaging it is to their children when they demonstrate their acrimony to each other in their children's presence. Children are acute at picking up these feelings. Unless both parents are very, very careful and I speak to them both in this respect, not to one or the other, irrespective of the rights or wrongs -- unless both parents are very careful, unless both parents are able to moderate their attitudes to each other in relation to C, C is going to grow up a very damaged little boy. He will be damaged very severely by the hostility between his parents. It will upset him more and more the older he gets. He will not understand it. Each of these parents represents half his gene pool. He will think there is something wrong with him. He will begin to blame himself because his parents do not get on. I have seen case after case in which children grow up in this atmosphere of hatred (as I have to I think call it) and find it very difficult to form proper relationships with other members of their peer group and, as they grow older, with members of the opposite sex. Children only really benefit fully from contact if they can move from one parent to the other, secure in the knowledge that the parent from whom they are going approves of the contact and that the parent to whom they are going approves of where they are. If the tension surrounding this contact continues, then I foresee a very unhappy future for this little boy. I also, I have to say, see a very unhappy future for G. Because if G really does want to see Mr J and if Mrs J is preventing him doing so because of her feelings about Mr J, there will come a time when G will rebel.

Anyway, that is the lecture. I now go on to deal with the way the case was dealt with by the judge.

Johnson J had before him an application by Mr J for the residence of both children and for contact if the residence applications were unsuccessful. In the event, Mr J, if I may say so very sensibly, withdrew his application for residence of G. He did not have parental responsibility for G and, although G was a child of the family, G had made it clear that he wished to remain living with his mother and did not wish to live with Mr J. In those circumstances it would have been, I think, quite impossible for the judge to have made an order moving residence across. That was how the matter was seen by Mrs Barker, the senior practitioner from Norfolk Social Services Department who reported to the court under section 7 of the Children Act. In those circumstances, since Mrs J alone had parental responsibility for G, there was no need for any order in relation to him and none was made.

The judge dismissed Mr J's application for a residence order in relation to C, but he made an order for contact which is in a somewhat unusual form. Contact was to be on a four-weekly cycle. Week one was to be 8 o'clock in the morning on Tuesdays to 6.30pm on Wednesdays. Week two it was also to be from 8 o'clock in the morning on Tuesdays until 6.30pm on Wednesdays. Week three it was to be 9.00am on Saturday to 6.00pm on Sunday. Week four there was to be no contact. On each occasion of contact the handover was to be at the Banham Community Centre.

The judge made a number of ancillary orders. Paragraph 5 was that Mrs J should disclose to Mr J C's address and details of his dentist and general practitioner by 19th February. He also made an order that Mrs J should keep Mr J informed in writing of all important matters regarding C's health and education and any change of address. As the other side of those orders the judge made orders against Mr J forbidding him to use or threaten violence against Mrs J, to intimidate, harass or pester her, to enter or attempt to enter her home or the street where she resided, to telephone her save in case of genuine emergency or to take C to his general practitioner, dentist or any hospital, save in the case of genuine emergency, or to communicate with any doctor, dentist or hospital attending C save in the case of a genuine emergency. I shall explain the thinking behind those orders a little later. The judge attached a penal notice to those orders and refused Mr J permission to appeal.

Although, as I said before, Mr J was represented before Johnson J, his application for permission to appeal was made in person, and he was, accordingly, granted an oral hearing without a consideration by a Lord Justice of Appeal on the papers. That hearing took place before me on 21st June. I took the view, for reasons which I gave in a short judgment delivered on that day which has been transcribed, that the case was sufficiently unusual for the permission application to be listed for an oral hearing on notice, with appeal to follow if permission was granted. Part of my thinking in making that order was that given the unusual nature of the order itself and Mr J's availability to have additional contact with C during the week if Mrs J agreed and if the parties were able to be represented by their lawyers, this hearing might be used as a means of progressing the case forward.

Unfortunately, neither party is represented this afternoon and each has appeared in person. I have said several times during the course of the hearing that I was very anxious not to make things worse. Hearings in court sometimes do make things worse rather than improve them. This little boy has 15 years or so before he is adult. That is a very long time. His parents have to learn in that time to co-operate with each other. They have to learn in that time to be able to speak to each other and express to each other the needs which C has and which need to be addressed as he grows older, including going to school and so on. In those circumstances, my Lord and I attempted to limit the hearing to that which was strictly necessary to deal with the application before us.

It is quite clear from the attitude of both parents, as expressed to us this afternoon, that this case will not move forward without either a further hearing of the court and/or expert intervention. Accordingly, we can only have a limited function, which is simply to decide the permission application. If the case does return to court, I would propose to direct that it be listed before the designated family judge for Norwich, His Honour Judge Philip Curl, who can, in advance of any hearing, consider on the papers whether any help outside the immediate court forum could be made available to the parties to enable them to behave in a more civilised way towards each other in C's interest.

At the moment, as I said before, it is quite clear to me that both parties are entirely obsessed with the rights and wrongs of their respective positions as against each other, and in the middle of it all C, frankly, is being forgotten.

Anyway, that is why I suggested that the permission hearing should be oral and we have had our hearing. Mr J seeks to appeal the residence order in relation to C, and the contact order and the injunction orders as well. He makes it clear, in his appellant's notice and in the argument attached to it, that he thinks the judge was wrong not to have ordered some contact between himself and G. His appellant's notice is, I hope he will not mind me saying, in somewhat home-made form, but it makes a number of points to which I shall return in just a moment.

The first thing I think I have to do is to go to the judgment of the judge. In doing so, I need to remind both parties, but perhaps Mr J in particular, that the judge was exercising what we call a discretionary jurisdiction; that is to say, he had to make up his mind on the facts as he found them to be; as to which of various options were open to him; and as to how he should address them. Johnson J was an extremely experienced family judge. He refers himself to his 15 years on the High Court Bench. He has now retired and when he retired he was the senior family judge. He is therefore very experienced in the exercise of discretion. It is difficult in those circumstances to interfere with such an exercise unless there is something manifestly wrong.

Several points struck Johnson J forcibly about the case. The first was that which I have already commented upon, the mutual hostility between Mr and Mrs J and the fact that contact with C had been marred by what the judge described as "the apparent inability of the parents to control themselves at the emotional moments of handover." The judge in his judgment found both parents unsatisfactory witnesses, and cited three particular incidents surrounding contact, in two of which the police, he said, were unnecessarily involved. The judge was particularly critical of Mr J in relation to the third incident, as a consequence of which he found that Mr J had contacted social services, having been told that C was ill, with the result that the police turned up on Mrs J's doorstep.

The judge formed this view of Mr J. It was a view which was one also formed by Mrs Barker, who was the social worker, I indicated a moment ago, who had prepared the section 7 report. She had described him as totally preoccupied, arguably obsessed (the judge questioned the use of the word "arguably") with his views that the mother's illness causes her to be a serious risk to the children. That is a theme which has permeated Mr J's submissions this afternoon. The judge, however, was critical of it. He said:

Mr J says that the judge is wrong, that he never took C to a police station. But on any view, the record which Mrs Barker attaches to her report does indicate a significant number of occasions when Mr J has taken C or reported difficulties about C to social services. I have no doubt at all that in Mr J's mind these are justified. But what he and Mrs J both have to understand is that the judge is an objective disinterested observer who looks at this from the outside and sees this behaviour as part of the battle between the parents.

The judge also dealt with Mrs J's mental health. There is a report in the papers from Dr Crook upon which Mr J places considerable reliance. It is dated 7th August 2003. Dr Crook reported at page 24 of the report:

The judge had that report before him and he had plainly read it carefully. He comments on it in the following way:

I have read that passage out quite deliberately for two reasons. The first is that litigants hearing a judgment (or even reading it afterwards) often simply brush it aside and say, "That is wrong" or "it does not apply to me" or "the judge has misunderstood the position". I would like both parents when this judgment is over to go away and look at Johnson J's judgment again and think about it. Because in my view it is a very wise examination by an extremely experienced judge of events as they struck him. In my judgment, particularly in relation to what the judge said about G, it seems to me that the judge has put his finger entirely on the point.

This then led the judge to consider directly the question of C and where C should live. He dealt with Mr J's objections, particularly the question of Mrs J's health. He recorded Mrs Barker's opinion that Mrs J could cope and the major difficulty was the apparent preoccupation with her negative feelings towards Mr J. The judge praised Mrs Barker's report. Her recommendation was that there was no basis sufficiently compelling to justify the disadvantage to C of changing his primary carer at this stage. The judge agreed with that and dismissed Mr J's application.

A further point which the judge does not emphasise, but one which I think is of relevance, is that moving C's residence would also have separated him from G, something which was plainly undesirable.

Speaking for myself, whilst if the case had been argued on the basis of shared care or a wider concept of residence, there may have been an argument; on the basis of the way the case was presented to the judge as residence either to Mr J or Mrs J, I cannot fault the way the judge approached that question of residence. He looked fair and square at Mr J's objections, particularly the question of Mrs J's mental health, and he came to the conclusion that a change of residence was not warranted for the reasons which he gave. Speaking for myself, I can see no real basis upon which permission to appeal in relation to the question of residence could be entertained.

The judge then turns to the question of disclosure and, despite the antipathy between the parties, clearly took the view that Mr J was entitled to know where C was living and who his doctor was and who his dentist was, as indeed he is plainly entitled to know. But the judge was concerned that Mr J should not abuse that knowledge if he was given it. So what the judge did was to make orders that information should be provided, and in return say that Mr J should not go anywhere near Mrs J's address and should not communicate with the general practitioner or dentist save in cases of emergency. I have read the orders out.

If Mrs J was dilatory in giving the information to Mr J, that is very regrettable. It is yet another demonstration of mistrust. On the other side, there is no suggestion that Mr J has breached any of the orders made against him. Mr J complains of discrimination because he says a penal notice is not attached to the contact order, whereas it is attached to the injunctions. With respect to him, I do not think there is anything in that point. It is very unusual indeed to attach a penal notice to a contact order, whereas an order which involves, were it breached -- and there is no suggestion it has been breached -- but were it breached would involve violence or specific disobedience to an order to go to a particular place or behave in a particular way that might require urgent action to correct it, that is more conventional. So, speaking for myself, I can see no criticism of the judge for attaching a penal order in that way.

It is most unfortunate, if it is the case (as hints were given to us today) that Mrs J had not informed Mr J about matters relating to C's health including chicken pox. But no sooner is that allegation made on one side, than back on the other comes an allegation that somehow or other the child has suffered a perforated eardrum which Mr J had chronically neglected, with the result that C may well have to go to hospital. One sees how easily in a case of this nature where the distrust is so intense that allegation breeds counter-allegation. So I have considerable sympathy for the judge in making the order that he did. But I say to Mrs J that if she does breach them, if she does not obey them, that can only be counterproductive and will only result in more litigation.

So we come to the question of contact. The order is unusual. It was partly its unusual nature which persuaded me that this permission application should be argued. The judge was reluctant to grant staying contact to a child as young as C and he did so, it seems to me, principally because it reduced the opportunity for the parents to misbehave at periods of handover. The existing contact prior to the judge's order was on Wednesdays and Saturdays of every week so that, as the judge put it "four time a week the parents seem to feel free to indulge themselves at each other's expense".

The judge had heard evidence from C's paternal grandmother, with whom he had been impressed, and whom he thought was everything a grandmother should be. Unfortunately, they live in Burgess Hill in Sussex, but the judge clearly thought that contact which involved them and contact with the wider family -- there being very little, if any, wider family on the mother's side -- was an important reason for moving to staying contact.

The judge then set out his view in paragraph 11 which, since the parties are here, I will read, rather than simply ask the shorthand writer to record:

The judge then went on to discuss what should happen in the future, i.e. September 2006, when C would be at school. I have to say that this may be slightly unfortunately phrased because the judge did not make any orders about this. Indeed, the order itself begins simply with an indication by the judge of his view that, once C was at school, arrangements were to alter to alternate weekend staying contact, from Friday after school until Monday before school, i.e. to avoid more meetings and handovers, together with seven-day staying contact during each of the Easter, summer and Christmas holidays. I have to say that if the judge was thereby intending that there should not be longer periods of contact until 2006, I do not think that is what his order says. If, for example, Mr J wished to have contact with C over Christmas this year or even next year, it would in my judgment be open to him to apply to the judge in Norwich for a period in excess of that which he already has in relation to his staying contact. But that is a matter for him. Certainly the judge in my view was not laying down an inflexible rule for the indefinite future.

On this aspect of the case, Mr J's grounds of appeal (which again I hope I can summarise) are, firstly, that the judge ought to have ordered contact with G and the only reason he did not do so was a poor one, namely that G feared his mother's reaction. Secondly, that he should have ordered residence of C, since Dr Crook's report confirmed that C was at risk from Mrs J. Thirdly, and the point which I am addressing, is that he has not awarded reasonable contact, particularly given Mr J's concerns about C's health and safety; that Mr J was not working whereas Mrs J was and there was no reason at all why C should not spend much more of his time with Mr J; and the refusal to make a more extensive order was discriminatory. Finally, as I have already dealt with, that he should not have put a penal notice on that part of the order.

The arguments in the notice are elaborated in section 8. Mr J is also critical of Mrs Barker and her report. He feels that Mrs J is the parent with the personality disorder, whereas he is being punished for his legitimate anxieties about C's welfare which he says he is in any event better able to address than Mrs J.

Therefore Mr J seeks a retrial before a different judge; a penal notice to be set up on to the contact order; regular monthly education or nursery reports and medical reports. He would like the court to order an attendance record at the nursery as he has, he says, had many denials of contact when C has allegedly been ill.

The question was raised during the course of the hearing as to whether or not there should be a contact book or contact record. The judge I think was in favour of it, but noted that Mrs J did not see the point of it, even though the judge said that in his experience the introduction of this kind of tool can have a beneficial effect. The reason for this is that when parents cannot communicate with each other, it is better to put things in writing in the form of a book. This becomes a permanent record, rather than arrangements being allowed to become the subject of future debate if they are not put into permanent form. But, as the judge comments, it was nearing 5 o'clock and he thought he had perhaps said enough and did not think he should say any more.

I have come to the view, having now heard both parents and reread the papers, that this is not a case in which it would be appropriate for this court to give permission to appeal. In my judgment what the judge did was well within the ambit of his discretion and there is no proper basis upon which this court can interfere, either with the residence order in relation to C or the contact order. That is, however, I think by no means the end of the matter because no contact order is written in stone and C's needs are going to change. He is three now. He has his entire life ahead of him. As he grows older -- Mr J gave an example today -- he may want to play football on Saturdays or whatever, his needs are going to change. It is very, very important that parents should not see contact orders as written in stone in preventing them from adapting to that particular change. If that means more contact and if more contact is in the interests of the child, then there should be more contact. It is as simple as that. The court is concerned with the welfare of C and parents do not benefit their children by putting up bunkers and hiding themselves behind them and seeking to put obstacles in the way of contact. This little boy will flourish, as I have said before, if he is allowed to move from one parent to the other without hostility.

So I am afraid I am going to repeat the message I gave earlier. It is a very simple one and I hope it will be taken on board. The mutual hostility which I certainly have observed in this court this afternoon and the fact that it is shown in C's presence is causing him serious harm, and if you as parents both go on behaving in this way, you will damage C emotionally in a very serious way. He undoubtedly loves both of you and I have no doubt that you both love him. He will not understand why you are living apart. As he grows older, he will wish to be loyal to both of you. Growing up knowing that his parents are at each other's throats will bewilder him and ultimately make him very, very unhappy. It is absolutely no use in this context of either of you saying it is the other's fault. Both of you are responsible.

I propose that if this matter has to come back to court the best course will be for it to return to Norwich. Johnson J has retired and is no longer available, but I will direct that a copy of the judgments we are giving this afternoon should be transcribed at public expense and made available to each party. I will ensure that a copy of my judgment in this case and any judgment my Lord may give will be made available to His Honour Judge Curl, as the designated family judge for Norwich, so that in the event of an application being made either to vary or enforce the current order, the judge will have the benefit of this court's views and will be in a position to give directions appropriately.

But having said that, I would refuse permission to appeal.

LORD JUSTICE NEUBERGER: I agree. Lord Justice Wall has dealt very fully with all the issues, and I agree with him.