N (Children)

This is an application brought by the mother of three children for permission to appeal an order made by HHJ O’Rorke on 16 April of last year, when the judge ordered that the younger two of the three children of this family, a girl whom I will call C -- in order to preserve their anonymity, which I think is in their interest -- C then 15 but now 16 years old and her brother K, now 6. The judge ordered that the children should reside with each of their parents for equal periods: in effect, week in, week out, with mother and then with father and so on through the school term and for half the school holidays.

I observe that the order as drawn does not fully reflect the judge’s decision. It reads:

At the hearing on 16 April the judge in fact dictated the order he wished to make and the matters that he had taken into consideration were expressed to be the following:

As is apparent, the mother was not present on that occasion. She had written to the court on 12 April expressing, in essence, that she was emotionally and financially exhausted by these proceedings and by the claims for ancillary relief which were being heard by the district judge at about the same time. She explained her position and her objections to shared residence in respect of the little boy and she also complained about the fact that the hearing dates had been changed to her disadvantage. She stated in that letter:

One of the mother’s complaints in her application to us today is that to proceed in her absence was unfair. She was, as she wrote, a layperson and, not understanding that she could seek an adjournment, she simply let the matter pass. Her solicitors attended that day, simply to go off the record, and they did not seek, and in fairness to them I assume they did not have instructions to seek, an adjournment, which was the way in which the “mother” as I shall call her could have protected her position.

The matter has been before me on a previous occasion, and when I adjourned this application to be heard on notice I rather hoped that I would receive some explanation from the father’s solicitors as to what happened and why it happened; but they too seemed to have disappeared off the record and the father also appears in person before us.

I am sorry for this hard-working professional lady. She is a consultant at a local hospital and I readily understand that her commitments to the National Health Service prevent her from taking time off as and when she wants it. This was very short notice indeed of an adjournment but, sympathetic as I am, I cannot find in the absence of an application to adjourn that the judge was so egregiously lacking in a sense of fairness in failing himself to adjourn the matter that the appeal could be allowed on that ground.

Let me therefore describe a little of this fraught allegation, so passionately and resolutely conducted by these intelligent parties. The husband, or “the father” as I shall call him, is also a medical man. He is a general practitioner but sadly, like so many intelligent people, they often allow their intelligence to get in the way of their reason and they fail not infrequently, in my experience, to behave reasonably and sensibly with regard to their children.

The proceedings began in 2004. At that time the parties were living together under the same roof. Mr Cain, the Cafcass Officer recommended in his first report of 24 September 2004 that the children’s best interest was for a shared residence order to be made and on 27 October the district judge did in fact order that the children should live with both parents during such periods as may be agreed. In time, and I think it was about January 2005, the father moved out of the matrimonial home; tensions were running high. There is in the papers a record of police involvement as the police attended on a number of occasions when allegations of domestic violence were made by the mother against the father. Sadly, one of these incidents spilled over into an unseemly attack by the eldest child, who is soon to be 18. The girl slapped her mother’s face and was appallingly rude to her by all accounts. It has led to the estrangement of mother and daughter, a matter which is most regrettable, and I record the fact that the father told us today that all this child is waiting for is mother to hold out an olive branch and she will readily endeavour to resume contact with her mother and restore good relations between them. I do hope the mother will accept the invitation to write to this child, for she is still a child, and seek some rapprochement. Valentine’s Day seems an appropriate time to make that approach.

This appeal is bedevilled by those allegations of domestic violence. The judge heard evidence about some of it but he expressed the view, in reasons he has given for his order, that the main allegation which led to the father being charged in criminal courts with common assault was not that serious and was not in any sense a part of a pattern of domestic violence. In fact the father has been acquitted but nonetheless the mother, passionately and tearfully, tells us that her son is still deeply affected by his witnessing assaults upon her and she complains that the judge made no proper attempt to investigate those matters and come to a reasoned and full conclusion about them. Again, I cannot accept her complaint. The judge was entitled in my judgment to view the matter as isolated and as not deeply affecting the children and, on the evidence, he was probably fully entitled to reach that conclusion.

The bad blood that was being spilt in the early part of 2005 resulted in contact between father and K ceasing from about June to November 2005. In November contact was ordered. It was to be contact on alternate weekends from 10:00 on Saturday to 6:00 on Sunday, the child then living with her mother. Two days were set aside for the final hearing of these disputes. On the first day, 19 October 2006, HHJ O’Rourke heard evidence from Mr Cain. He was called to give evidence in support of his second report in which he concluded in paragraph 72:

By the time the case got to court the mother had made moves to compromise the dispute. She indicated her willingness to extend contact from after school on Friday until the beginning of school on Monday on the alternate weekends as had been recommended and she was willing to allow one week-day, not the two suggested by Mr Cain. Mr Cain, in giving evidence, was asked about shared care and a joint residence. He pointed out that the joint residence order that had first been made was never really given the opportunity to work because of the breakdown in relations in February 2005. He was asked at page 11 of the transcript about whether it had worked and he said this :

He also said, at page 14 of this transcript:

Those were answers given to the father’s counsel and he repeated this important evidence:

The case on the second day, the 20^th, was protracted and inconclusive. The judge appears to have been irritated by the extent of the cross-examination particularly by mother’s counsel, of matters that he did not think of particular relevance and so at the end of that day the judge simply adjourned the matter to 26 March and he made an order which was to this effect. He ordered that K should reside with each of his parents on the following four-weekly cycle. After school on Thursday until return to school on Friday and then after school on Thursday until return to school on Monday morning. So that was the regime he imposed.

The case was adjourned from March to 13 April. As I have indicated it was then adjourned again to 16 April. On 16 April the father gave evidence and he was asked:

Having heard that very short evidence from the father, which takes no more than a page of the transcript, the judge indicated this:

He was asked by Mr Butler, counsel for the father, whether he intended to give a judgment and the judge responded that there was no need; that if the matter goes further the Court of Appeal would invite him to give reasons for his judgment. He felt that to give judgment and make detailed findings was unnecessary and so he left the matter there.

Mother duly sought permission to appeal. The Court of Appeal office requested the judge give his reasons and he did so ten weeks later, or thereabouts, on 29 June 2007. There are passages in those reasons which the mother now challenges. He said in paragraph 10 that Mr Cain gave oral evidence and was questioned by the parties and recommended that:

Now I have read the transcript of 19 October carefully and I do not see Mr Cain saying that his position was more contact for the father and I do not mind whether you call it contact or shared residence. It is what actually happens that is important.

So the judge was, I am afraid, guilty of a false impression of the events of 19 October but I exonerate him because he would not have had a transcript and would have had to refresh his memory of events that were many months in the past. The judge also said in paragraph 13 of those reasons that:

Now again I regret that Homer has nodded. Mr Cain did not attend on 16 April. There was no other report of contact working well than the evidence of the father and again the judge has sadly, and I am sure uncharacteristically, made a mistake. The mother of course relies upon that, but she puts at the centre of her argument the fact that the father was expressing satisfaction with the arrangements that were in place and that were working well, and she argues as a result that there was therefore no need to further increase the amount of time the boy should spend with his father to a full week on the same basis as operated for the daughter.

That is what the judge did because he concluded in paragraph 16 that:

As I say, I am sympathetic to the mother, who did not have an opportunity fully to present her case before the judge. I am concerned that the judge was in error in his recollection of some aspects of Mr Cain’s evidence but at the heart of this appeal has to be an attack on the conclusion that the boy’s welfare was best served by his moving between the homes in the same way as C was moving between the homes. Was it better for the boy to have this long weekend with his father as well as a night in between, moving therefore between the homes twice a week, or was it better that he spend a whole week in one home and the whole of the next week in the other home? That is a finally balanced decision. The judge was perfectly entitled, in my judgment, to conclude that having the same regime for brother and sister had the advantage that they would be together all of the time together and that in that way the boy would see as much of his sisters as was possible, and would see an equal amount of each parent, which was equally desirable especially in the circumstances where that was the regime provided for the elder two girls even though the oldest was not taking up her opportunity to see her mother.

The question, as I tried to explain to the mother when she began, is whether the judge was plainly wrong in coming to that conclusion. In my judgment, despite the errors of recollection, it was well within the generous ambit to make an order of that kind and although I would, for my part, grant the mother permission to appeal I would nonetheless dismiss that appeal.