F (A Child)

MR JUSTICE HEDLEY: This is an application by Mr F for permission to appeal, with appeal to follow if granted, against an order made by HHJ Yelton in the Southend County Court on 5 July 2005 whereby he dismissed the father’s application for a residence order in relation to one of the two children of the family and made an order under section 91(14) of the Children Act 1989 prohibiting any further applications to vary residence orders by either party to be made for three years and he declined permission to appeal. For the reasons that will follow, in my view, we should grant permission to appeal and treat this as the hearing of the appeal as indeed it has been presented to us by Mr and Mrs F, both of whom are acting in person for these purposes. Although there is only one child, the subject of this appeal, the parties have two boys: D, born on 13 December 1992, so he is 13, and J, born on 20 July 1995, so he is something over 10 and a half . It is in relation to the younger boy that the application to vary the residence order was brought.

The matter had originally appeared here before my Lord, Lord Justice Thorpe, and the matter had been adjourned with the order that I referred to at the beginning in the hope that the parties would be able to take part in the Court of Appeal mediation scheme. Such mediation has never happened, and the reasons for it appear to be entirely connected with the financial implications of that mediation and the view by the parties, respectively, that they were unable to meet the charges that were levied, even after the substantial reductions that had been offered.

I do not think that I would want to express any views critical of the parties for the circumstances in which they found themselves which has resulted in the mediation not taking place, but the consequence of it is that here we are with an appeal to be disposed of. HHJ Yelton was dealing with a case in relation, as I have said, just to the younger child, J. There is a long history of litigation in this case but one of the few comforting features to emerge from that litigation is that despite the constant state of conflict between the parents, the children have in fact been able to maintain a relationship with both of them, and there is quite extensive contact to the father, although residence lies with the mother.

It was at the conclusion of a contact visit that it is said that J refused to return home, and it is undoubtedly the case that he made a number of allegations about the care that he received from his mother. Those matters are averted to both in the CAFCASS report from Mr Shaffer of 9 March 2005 and in the report of Professor Zeitlin of 3 July 2005. The problem that confronted the court is encapsulated by the children and family court reporter in paragraph 7 of his report when he says this:

That seemed an entirely apposite summary of the issue that was going to confront the learned judge. Now very shortly before the case came on before HHJ Yelton, which was 5 July, a report which had been advised by the child and family court reporter had been obtained from Professor Zeitlin and faxed to the parties less than 24 hours before the hearing. The parties, and I understand both of them, asked the judge whether he would adjourn the proceedings so that they could consider the report. The learned judge declined to do so and continued with the hearing.

One can well understand the anxiety that Mr and Mrs F may have felt in those circumstances but the fact of the matter is that the learned judge, although appreciating that there were issues of dispute in the report was, in my judgment, perfectly entitled to have regard for the fact that, provided one ignored the very last sentence of the report, the opinions expressed in the report were opinions that were most unlikely to be controversial and seemed to be fairly straightforward statements of what would be readily apparent to any experienced observer looking in from the outside.

For example, in paragraph 45 Professor Zeitlin says, talking of J, that he does not show current evidence of major psychiatric disorder:

Professor Zeitlin then goes on in paragraph 50 to say:

With great respect, it seems to me that it is inconceivable that anyone could take exception to those kind of opinions and that the learned judge, though perhaps acting pretty firmly in refusing an adjournment, was in my judgment entitled to take that view, bearing in mind his anxiety not to prolong the battle more than he had to, to resolve it while he had time to resolve it, and satisfying himself that what was in Professor Zeitlin’s report, which was going to influence him, were matters over which no serious exception could be taken. Thus, whilst sympathetic to the difficulties in which Mr and Mrs F found themselves, I would not find myself able to criticise the learned judge and, indeed, could well understand why he chose to act as he did.

When the learned judge came to give his judgment, he set out the history of the case and then the heart of his judgment comes in paragraphs 25 and 26 in which, considering section 1(3)(g) of the Children Act 1989, he says this:

Then paragraph 26:

The learned judge then went on to consider the making of an order under section 91(14) of the Act and he was obviously and correctly disturbed by the litigation history. He seems to have concluded that the father was the author of the bulk of the applications in the case. I think, with the opportunity for further reflection on that, the probabilities are that that was not a fair conclusion, but be that as it may, it is not a conclusion that vitiates the exercise of this discretion because of course the order was made as against both parents and not as against one or the other.

This court in Re P (Section 91(14) Guidelines) (Residence and Religious Heritage) [1999] 2 FLR 573 has set out clear guidelines for the making of orders under this sub-section: the welfare of the children remains the paramount consideration, the making of the orders are exceptional. Whilst originally no doubt the principal purpose was to deal with unreasonable or vexatious applications, both that case and the experience of the court have also indicated that there are cases in which simply a break from conflict is required on behalf of the children, who are caught up in the animosity of those who care for them, and are subjected to unacceptable strains as a result of that conflict.

In my judgment, the learned judge was perfectly entitled to conclude on the facts of this case that those factors were present and justified the exercise of the fairly limited powers that he did, because he limited himself to the making of applications to vary the residence order. For those reasons, in my judgment, this judgment is not susceptible of attack, the case having been properly heard and the matter dealt with within the proper ambits of the discretion that are committed to a judge and which prevent this court from interfering in the conclusions to which he has come.

That said, I would also just want to add this: I would see the application for a joint residence order, where no attempt is being made to disturb the actual arrangements on the ground, as being a proper application to entertain and not as one caught by the prohibition which the learned judge has correctly laid down, and which we have upheld. It seems to me not just that that matter should be capable of being dealt with, but that it should be dealt with by HHJ Yelton and that it is an application which, at least on the face of it, merits serious consideration. So that subject just to that observation, in my judgment, although permission to appeal should be granted, the appeal itself should be dismissed.

LORD JUSTICE THORPE: I agree. It is to Mr F’s credit that he has recognised that the variation that would best promote the welfare of the children would be a variation to a joint residence order, with no change whatsoever in the division of the children’s lives between the homes of their warring parents. If he had made that shift within the very brief window of opportunity between the delivery of Professor Zeitlin’s report and the hearing before HHJ Yelton, then the judge would have had the obligation to consider it on its merits and rule on it, always guided by the paramount consideration of welfare.

As my Lord, Mr Justice Hedley’s judgment has demonstrated, that did not happen because, quite understandably, the shift required a longer maturation period and so came after the conclusion of judgment. I would have hoped that it might have proved possible for us today to have brought the parties to a consent order making that variation. That has proved impossible and Mrs F has clearly expressed her feelings of anxiety and mistrust at the consequences of the variation which we have put to her, quite forcefully, for her consideration. So if that shift is to be made, since it is not within the bounds of our proper powers today, it has to return, alas, to the County Court for further consideration there.

Had I felt that the existing prohibition contained in paragraph 2 of the order precluded the issue of an application for a joint residence order, then I would have favoured allowing the appeal to the very limited extent of varying paragraph 2, to expressly exclude from its operation an application for joint residence. But like my Lord, Mr Justice Hedley, I believe that the way is open for the issue of such an application without the need for any variation of paragraph 2 of the order, which remains some safeguard and reassurance to Mrs F that she will not face a fundamental challenge to the status quo during the period of three years fixed by the judge.

I would only conclude by saying that it is very unfortunate that these two, who were quite prepared to enter into a mediation process, have been prevented or denied by their inability to pay. The Legal Services Commission has a fine record for extending public funding to mediation in family cases and I would urge the parties to consider yet again an exploration of the possibility of a publicly funded mediation to avoid the need for the return to the County Court.

It may be that it would be necessary for Mr F to find a solicitor to apply for a litigation certificate and then immediately to seek authority for mediation as a prelude. I am not a master of the technicality, but I am convinced that there are ways and means by which Mr and Mr F could access a publicly-funded mediation. Like my Lord, Mr Justice Hedley, I agree that if there has to be a hearing in the County Court, there is no possible basis to exclude a listing before HHJ Yelton, and indeed in many ways he would be the sensible judge since he would be able to work from the foot of paragraph 25 of his previous judgment.