C (Children)

This is a very unhappy story, which centres around three children and the occupation of premises at 14 Ansley Close in Sanderstead .

The three children are all girls. The eldest is 11, now rising 12. The second is 9 rising 10, and the third is 7. The appellant in this court is the father of the children and the respondent in this court is their mother. They are aged 44 and 34 respectively. They are not married, with the consequence that the appellant father does not have parental responsibility for any of the children.

On 28November, my Lord, Ward LJ gave permission to the father to appeal against an order of HHJ Atkins made on 19 October 2007. The property in which the parties were living is jointly owned. There is a stark divergence on almost every issue of fact in the case, including when the parties separated. The judge appears to have accepted that the father suffers from the debilitating condition ME and is not in gainful employment. The mother is in employment and tells us at the moment that she is signed off because of stress.

There is a considerable issue about who has cared for the children over time, and that is plainly something which this court is not in a position to do anything other than identify. However, there appears to have been a crisis in August of last year. The mother seems to have left home for a short period, and also seems at about that time to have formed an association of a sexual nature with another woman. On 28August the father applied for residence and parental responsibility in relation to the children, his case at that point being that he had allowed the mother to have them for overnight contact and she had failed to return them. There were then cross applications, resulting initially in an application by the mother, made without notice, for a report on the children’s wishes and feelings. Cross allegations were made by both parties against the other, and on 18^th September 2007 the matter came before HHJ Barnett in the Croydon County Court and the judge sought to impose a regime to enable the parties and the children to co-exist pending a final hearing of the cross applications for residence and contact.

At that point both parties were represented, and the order recites an agreement between the mother and the father. She would allow the father the opportunity to look at rented accommodation which she was intending to obtain; that she would pay the costs of all taxi fares between the family home and the rented accommodation; and there was an agreement about J seeing her GP. She also agreed not to take her girlfriend to the family home at times when she was living there with the children.

Unfortunately the mother now tells us that she was unable to fulfil that agreement; indeed she says she only entered into it really under pressure from her lawyers. But the order the judge made, which was subsequently confirmed by Judge Atkins as I shall relate in a moment, was that she, the mother, was to live in the family home during the consecutive days when she was not working, and on the days when she had an early start the father was to reside at the home on the previous evening, whereupon she was to leave. On the days that the mother was not working, she was to return to the home whereupon the father would leave. The arrangement was also that on all other occasions the father would live in the home and that he was to have care and control of the children when he was living there. The matter was to come back for a final hearing in relation to residence and occupation and there were directions as to evidence and to CAFCASS to file a report. In the interim there was a reference to contact with H by the mother and the contact between father and J and B, that of course being the point when it was envisaged that the mother would obtain rented accommodation in the locality, and once that had occurred the schedule which the judge envisaged would be put into force.

Unfortunately, as I said, the mother was unable to obtain rented accommodation and did not do so, with the result that the matter came before Judge Atkins on 19 October. By this time the father was represented and the mother was in person with the assistance of a McKenzie friend. Both parties gave evidence to the judge. The judge discharged the pre-amble to the previous order which related to the mother obtaining rented accommodation, but he directed that the regime, for what I will loosely call boxing and coxing, would take effect from 7 November and the father would vacate on 7 November, living in the property up until that time. The judge was also able to fix the final hearing date or dates, 29 - 31 January, and he directed a CAFCASS report.

Unfortunately that order has itself not run smoothly and the father has sought permission to appeal it and was granted permission by Ward LJ. Most unfortunately we do not have a transcript of the judge’s judgment. We only have a note taken by counsel, and equally unfortunately the father’s solicitors have parted company with him. He is now acting in person, and counsel, who was due to argue the case on his behalf this afternoon, has not as a consequence attended. So we have both parties this afternoon in person, and it is patently clear from what they have said about each other that, as I said earlier in this judgment, there is no prospect of a form of consensus between them; each accuses the other of various forms of malpractice, and unfortunately the wretched children who are in the middle of this have themselves had their loyalties split. H, who was previously declaring her affection for and her wish to live with her father, has now apparently been alienated from him, and B equally appears to be saying that she wants to stay with her father and not see her mother.

So, the situation is in a state of very unsatisfactory flux and the real question is what, if anything, we can do about it. There is a letter from a CAFCASS officer written to the father’s solicitors, which appears to indicate on its face that he told them he was not living in his car, as he asserted to us, but was living with his sister. He has explained to us that the reason for that is that he failed properly, due to his condition, to explain the position to the CAFCASS officer; and of course that is a matter about which we can make no comment save to say that it has come out in the wash when the case is heard by the circuit judge towards the end of January 2008.

The question is: what should happen in the meantime? We, as my Lord indicated in the course of argument, are a reviewing court. We are not a court which makes findings of fact, and it is quite impossible for us to make any findings and undesirable that we should do so in any event, but quite impossible for us to make any finding as to who is telling the truth about what. The only question for us, it seems to me, is whether or not we can properly interfere with the order made by Judge Atkins on 19 October. It is very clear from what the mother has said that the order itself is not being obeyed. She is not allowing all three children to remain with their father at times when he is in the property, although he told us that he is there until Friday, under the regime, and then he will move out to allow her to come back.

It does seem to us, however, particularly in view of what we have heard about the children’s attitudes and about the changes in the situation, that this is a matter which needs to be reviewed rapidly on the ground; and we have, fortunately I think, heard this afternoon from the mother’s McKenzie friend, who works in the local Family Justice Centre and who does a great deal of work in the Croydon County Court, to the effect that the good offices of her organisation could be put into effect to enable there to be a rapid hearing on notice before a judge in the Croydon County Court, in order to attempt to at least to provide a reasonable modus vivendi between now and the hearing in January.

In my judgment that is what should happen. It seems to me that when Judge Atkins made his order on 19^th October 2007, he was exercising a discretion under the Part 4 of the 1996 Act. We do not of course have a full copy of his judgment, but the note which we have prepared by counsel seems, to my mind at least, to indicate that he had the relevant factors in mind; and he made an order which, as an exercise of discretion, could not in my judgment properly be set aside by this court, save by the greater examination of the transcript and an argument based on the premises of law. But as a matter of discretion, taking a very broad brush, it seems to me that the judge identified the critical features of the case and it is no fault of his that the order which he put in place is no longer being obeyed. That leaves this court in a very difficult position. Speaking for myself, I think the only way through it is for us to dismiss this appeal on the basis that Judge Atkins made the order which was appropriate in the circumstances, but, recognising as we do that their have been changes of circumstances since, and that it is imperative that this matter should be back before the Croydon Country Court at the earliest opportunity, we should direct an urgent part hearing in the County Court before a judge, on notice to both parties, preferably this week but certainly next, so that the matter can be reviewed by a judge and further orders put in place designed to govern the position until the New Year.

In this respect we are fortunate I think to have the assistance, or we may be fortunate to have the assistance, of the good offices of the Croydon Family Centre; and no doubt the fact that we are making a direction that the matter should be restored to the Croydon Country Court, either this week or next as a matter or urgency on notice before a short appointment, is something which they will be able to use as part of the leverage to ensure the matter is returned to the judge.

I do not think we can properly direct the Croydon Family Centre to make such an application. What we can do properly, it seems to me, is to direct the matter to be re-listed before a circuit judge in Croydon, either this week or next, on notice, for further reconsideration of the order made by Judge Atkins and the imposition of appropriate arrangements; and if and insofar as the McKenzie friend for the mother, with her organisation, can assist in that process, I myself would express my gratitude for it. But any application must of course be on notice.

I simply conclude by saying to the parties, both of whom are in person, that they must understand that this court, as my Lord pointed out, is a reviewing court. We do not make findings of fact. We are not in a position to make findings of fact. That is a matter for the judge on the ground. That in my view is why it is absolutely imperative that this matter, and the change of circumstances, should come back before the Croydon Country Court, either later this week or next, so that urgent arrangements can be put in place. But, as I say, that is what I think we should do. Equally, it seems to me, as I indicated earlier, that in our appellate function the order made by Judge Atkins seems to me one which was reasonably made in exercise of his discretion, and is not one with which we could properly interfere.

So I would dismiss this appeal but direct an urgent reconsideration of the position before a judge, on notice in Croydon, either this week or early next.

I agree. That then will be the order: appeal dismissed; direction for an immediate hearing in the Croydon County Court before a judge or a deputy judge, on notice, the importance of which is to make clear arrangements for the children over the forthcoming Christmas and New Year holidays. The parents in this case complain about the lives that they are individually living. Consideration needs to be given to the quality of the life that the children are experiencing at this time. The children are going to have a pretty miserable Christmas if firm arrangements are not made by a judge. As to the sharing of time between the parents and the sharing of the family home, I hand back to you the original of the letter which you handed in, and we will arrange for the Civil Appeals Office to ring either the court manager or the senior judge or the listing officer in the Croydon County Court within the hour to reinforce the overtures which the Family Justice Centre will be making.

I have no idea what the options are. It does seem to me that the hearing before a judge should be arranged before the next turnaround on Friday evening. The problem for the Croydon County Court is that I do not imagine that the hearing is going to be concluded satisfactorily within the space of half an hour. Given the extent of the conflict I think it would be unrealistic to time-estimate it less than two hours. Doing the best we can, we would give a time estimate of an hour and a half.