A (A Child), Re

A father, who lacks legal representation but on behalf of whom I have allowed Dr Pelling to speak (mainly by speech notes but also briefly just now orally), applies for permission to appeal against a dismissal of what I propose to call 18 applications made by him to Munby J, as he then was, in the High Court, Family Division, on 5 August 2009. The child at the centre of the proceedings is a boy, N, who was born on 22 March 2001 and who is thus now aged eight. In the proceedings before the judge the father, with whom N spends about 40% of his time, was the applicant; the mother, with whom N spends about 60% of his time, was the first respondent; and N himself, through his guardian ad litem, Mrs Payne, was the second respondent.

The judgment which led to the order dated 5 August 2009 followed a hearing on 5 and 6 May 2009. At that hearing another non-lawyer, Mr Holden, was allowed to speak on behalf of the mother; but experienced counsel appeared on behalf of N by his guardian. The judgment, which runs to 249 paragraphs, is dated 17 July 2009. My impression is that there was no oral hearing on that date but that the judgment was then disseminated to the parties so that they had time to digest it and to address the judge on consequential matters at the hearing on 5 August. Upon reading that, save in relation to his application for leave to disclose certain court documents, the judge proposed to make no order on two of his applications and to dismiss the entire balance of them, which numbered more than the 18 which he wishes to bring to this court, the father gave notice on 29 July 2009 of his intention to apply to the judge for permission to appeal to this court. In that regard Dr Pelling wrote:

“After consultation with [the father] and on his instruction, and notwithstanding Mr Justice Munby’s direction, I decline to give grounds or reasons as to why the leave is being sought. This is because it is a wasteful exercise in time and costs, there being no expectation that leave will be granted on any issue and because experience shows that if you set out your detailed reasons for asking leave … then judges use that as an opportunity in form N60 to embellish and add to their judgment and to influence the Court of Appeal against the appellant …

The lower court has no power to compel an appellant to disclose his reasons for asking for leave to appeal.”

Unsurprisingly, Munby J rejected Dr Pelling’s contention that the court had no power to ask a prospective appellant to indicate the basis of the proposed appeal, if only on the ground that the court could not otherwise appraise whether it would have a real prospect of success or whether there was some other compelling reason why it should be heard. In the event the judge refused permission to appeal.

The parents, who were never married, separated in September 2002, ie when N was aged 18 months. Proceedings between them in relation to him began in October 2003 and have continued intensely and more or less continuously since then. The proceedings with which I am concerned relate to the arrangements for N of a non-financial character. There have, however, been very actively contested proceedings brought by the mother under Schedule 1 to the Children Act 1989 for financial provision for N. The level of conflict in the financial proceedings can well be understood by reading the decision of Munby J in Re M (Payments for Benefit of Child) [2009] EWHC 11 (Fam), [2009] 1 FLR 1442. It is unnecessary to identify the numerous issues relevant to financial provision which Munby J there had to address; it is, however, relevant to notice the judge’s description, at [86], of the father’s response to arguments made by the mother’s then counsel, namely that it displayed “in equal measure insouciance, arrogance and disdain for the court and its procedures”. It would be wrong, however, to jump to a conclusion that the father’s astonishing attitude to this litigation precipitates applications on his part which always fail. As recently as 29 April 2009, for example, I and Sir Paul Kennedy, by consent, allowed an appeal by the father against a small part of the order of Munby J in relation to financial provision, namely in relation to the date for payment of a lump sum; and we ordered the mother to pay his costs of the appeal: see [2009] EWCA Civ 736.

In the judgment under proposed appeal the judge recorded the mother’s calculation that, during the previous six years, more than 20 judges had adjudicated upon 80 applications in relation to N, of which she claimed to have issued no more than about five or six. Presumably she was including the financial applications within that calculation but there is no doubt that the vast majority are related to the non-financial arrangements for N. It appears that, when I was a judge of the Family Division, I myself heard one of the applications but I have no recollection of it. Munby J referred to eight substantive judgments given in relation to the issues between the parents prior to 5 August 2009: namely, two given by Sumner J, one given by the President and five given by Munby J himself. Apart from Munby J’s judgment on financial issues, which I have looked at only quickly, I have not read them.

It appears that, by his judgment, which was dated 8 April 2009, the President held, on the father’s application, that the guardian and her solicitor had, by mistake, committed a contempt of court in forwarding court documents to the Institute of Family Therapy, which they both understood to be about to embark on therapy for the parents. The President however declined to impose any penalty upon either of them and dismissed the father’s application that they be replaced. Nevertheless the father has since stated that he wishes to have no further dealings with either of them. It is clear however from the judgment under proposed appeal that the judge found the various position statements of the guardian and the submissions made by counsel on N’s behalf through the guardian to be valuable to him. Even back in July 2008 the guardian summarised the position as follows:

“Examination of the papers reveals a wholly deplorable situation. N is a young boy who has two parents who love him but who have demonstrated an unwillingness or inability to put his needs first and who as a result of their relentless pursuit of their own agendas have caused him emotional harm and arguably that emotional harm is significant. This situation cannot be permitted to continue. The parents need to stop trying to score points against each other and examine instead their own actions to ensure that N and his needs are put first.”

It is important to note that, at any rate in that paragraph, the guardian was as critical of the mother as she was of the father. There is no doubt that, down the years, there have been significant concerns about the mother’s emotional health, the stability of her parenting of N and the wisdom or lack of it inherent in some of her actions. In that regard, however, it would be wrong to ignore the extreme level of stress which the father has placed upon her by his protracted use or abuse of the forensic process.

On 21 July 2008 a substantive hearing had begun before Munby J. The father was applying for a sole residence order in relation to N to be vested in himself or alternatively that a shared residence order be vested in both parents, preferably upon the basis that N’s time was split equally between the two homes. In the event the three parties asked for time to discuss matters outside court. The judge granted the request and at one stage he observed that their discussions might be more productive if, instead of arguing over labels such as “residence” and “contact”, there was more of a focus on the amount of “time” which N should “spend” with each parent. On 29 July 2008, after some days of negotiation, the parties invited the judge to make a consent order. At that hearing the father was represented by counsel as well as receiving assistance from Dr Pelling. By then, in contrast, the mother had lost her legal representation but was assisted by Mr Holden. As typed, the consent order runs to 16 pages and represents an astonishingly detailed set of provisions for the non-financial arrangements for N. In it the parties adopted the judge’s suggestion of casting the arrangements not by reference to “residence” and/or “contact” but by reference to the time to be spent by N with each parent.

In the judgment under proposed appeal the judge observed that the father appears to have had second thoughts about the consent order as early as 14 August 2008. By an unusual form of document entitled a “Request”, dated 2 October 2008, the father articulated three requests made by him to the judge. By a document dated 16 January 2009 the father identified 21 orders which he was requesting. In that the first five of his requested orders therein were the subject of the inquiry before the President which culminated in the judgment dated 8 April 2009, it follows that, by 5 May 2009, 16 of those requests remained undetermined. By application dated 24 April 2009 the father had identified 30 orders which he was requesting, including such of the requests dated 2 October 2008 and 16 January 2009 as remained undetermined, together of course with fresh requests. It is against the judge’s dismissal of 18 of those requests -- which it will be convenient for me to treat as individual applications and as carrying my own numbering up to 18 -- that the father aspires to appeal.

I have concluded that, fortunately, it is unnecessary for me to address in detail each of the 18 dismissed applications in order to reach a conclusion upon today’s application. Some of the applications do, however, require to be explained.

Thus the first application sought an amendment of the consent order dated 29 July 2008. That order had needed to provide for the rejection of the father’s application for a residence order. When on 29 July the parties presented the agreed order to the judge in court, they handed him a hand-written document which provided that the father’s application for a residence order should be “discharged”; and it seems that, in presenting the agreement to the judge, counsel for N, faithful to the terminology, stated that the father’s application for a residence order was indeed to be “discharged”. The judge made no specific comment in relation to that verb. It was, however, then agreed in court that, later that afternoon, both parents should, together with counsel for N, sign the draft order; and, when it was duly submitted to the judge later that afternoon, bearing the three signatures, the wording had been changed to provide that the father’s application for a residence order should be “dismissed”. That was indeed sensible because there is no such thing as discharge of an application. Clearly the technical error had been noted and corrected; and the correction accepted by the parties. But the first of the father’s 18 applications was for the judge to amend the consent order in order to substitute for the word “dismissed” the word “withdrawn”. It may be hard to credit; but the fact is that the first challenge to the judge’s orders is against his refusal of the amendment. The judge, of course, pointed out that the father had signed the version under which his application was “dismissed”. I would add that in a child case there is no practical difference between a consensual dismissal of an application, ie otherwise than by court determination on the merits, and a withdrawal; Indeed an application cannot be ordered to be withdrawn at all but can only be permitted to be withdrawn. The father’s perpetuation of this entirely sterile argument, deployed in the wake of a lengthy ruling by the judge dated 5 September 2008 upon a complaint by the father that he had not consented to any form of disposal of his application for a residence order, represents an abuse of the process of both courts: the agreement was that it should be dismissed but, even if, instead, it had been that it should be permitted to be withdrawn, its significance would have remained that, as at 29 July 2008, the father had recognised that it would not, after all, be appropriate for N’s residence to be vested in himself.

The second of the 18 applications which the judge dismissed and which is now the subject of proposed appeal was equally curious. In relation to the consent order dated 29 July 2008 the father referred to his use, together with that of the mother and the guardian, of the phraseology under which N should “spend time” with each of the parents in accordance with its detailed provisions; and he asked the court to make a declaration as to the status of the order, specifically whether it was a shared residence order under the Act of 1989 or made pursuant to the inherent jurisdiction of the High Court or indeed otherwise. In this court the father’s complaint is almost laughable, namely that the judge was – to use the word in the grounds -- “tormenting” him by refusing to elucidate the status of the order. In dismissing it Munby J described the application as “at best unnecessary and inappropriate and at worst mischievous”. In my view it is a gross example of the attempted generation of litigation for litigation’s sake; and, in that at the centre of the litigation is a child who -- in the words of the guardian is – “now desperate for the conflict between his parents to end”, it is indeed mischief-making on the part of the father. The use of the words “spend time” appears deliberately to have been favoured in order to obviate difficulties which each party had in making concessions referable to “residence”; and this application for a declaration is in my view a disgraceful attempt to stir up trouble. In his judgment Munby J referred to an argument of Dr Pelling referable to testamentary guardians; and my guess is that Dr Pelling was arguing that, in the light of s.5(7) of the Act of 1989, it would only be in the event that the father had a residence order, including a shared residence order, that any testamentary appointment of a guardian on his part would take effect immediately upon his death. In the light of the court’s power to override the efficacy -- or want of efficacy -- of the appointment of guardians by deceased parents so as to accord with its perception as to where the interests of the child then lie, the argument seems to me to be an entirely specious peg on which to hang the application’s legitimacy.

The third to the thirteenth of the dismissed applications now the subject of attempted appeal need only be briefly summarised. The third was a suggested change to the arrangements dated 29 July 2008 so as to exclude the obligation of a parent who is taking N abroad to identify to the other the resort, and indeed the hotel, in which the holiday is to be taken. The fourth was an application that a lengthy provision in the order dated 29 July 2008 about the passage of N’s passport between the parents be substituted by another such provision. The fifth was an application for the insertion of a lengthy provision for the mechanism by which the dates reflective of the equal division of N’s school summer holidays should be identified. The sixth was an application for an order that N should have only one birthday party each year, to be organised by each parent alternately, and that the organising parent should be obliged to invite the other parent and members of the other parent’s family to that party. The seventh was an application for variation of the term-time arrangements in order to provide that Thursday nights in alternate weeks be spent by N with the father. The eighth was an application for variation of the arrangements for N’s delivery to the father for Rosh Hashanah so as to oblige the mother to hand him over at 4pm, rather than 5.45 pm, on the first day of the festival. The ninth was an application that, in the alternate weeks during term-time when, as the father proposed, N should spend Wednesdays until Mondays with him, all school homework set for N during that week should be supervised by the father rather than by the mother. The tenth was an application for a provision that, in respect of N’s Sunday School at Synagogue, the mother should re-acquaint herself with, and fully comply with, the rules of the Sunday School, should deliver him there no later than 9.45am and collect him thence no earlier than 1pm; and that a penal notice addressed to her be endorsed in respect of that provision. The eleventh was an application for an order, again in relation to Sunday School, that the mother should not remain at the school’s premises when N was in attendance there. The twelfth was for the application of a penal notice to the provision in the order dated 29 July 2008 that N should be known by the father’s rather than by the mother’s surname. And the thirteenth was an application that the mother should be prohibited from showing N any of the documents filed in the proceedings and from talking to him about them.

In declining to make any of these 11 orders the judge referred to the fact that, following the most lengthy negotiation, the parties had, only one year previously, agreed upon a detailed set of arrangements in which they had chosen what to include and what not to include; that, in his view, it was high time that the parents should be obliged to deal with each other in making arrangements referable to N rather than that they should use the court “as a crutch, as a provider of answers to any and every question, however trivial”; and that yet further litigation would be likely to be damaging to N. “There must be an end to this,” said the judge “and the time is now right … for the court to decline to adjudicate further on these issues”.

The fourteenth application which the judge dismissed was for a sole residence order referable to N to be vested in the father. The four final applications were consequential upon that application: namely that the mother’s “contact” be defined; that all earlier, inconsistent orders be discharged; that a risk assessment be undertaken by the guardian in relation to N’s safety in the event that, as she proposed, the mother were to move, with N, from the home of the maternal grandparents to independent accommodation; and that directions be made for psychiatric assessments of N and the mother, albeit not, apparently, of the father.

In deciding to dismiss the father’s application for a sole residence order without further enquiry, the judge observed that the effect of grant of the application for sole residence would be to subvert and destroy the consent order; that, in accordance both with the report of the guardian, which he accepted, and of the evidence of the mother, the arrangements made on 29 July 2008 had by and large worked well; that the damage likely to be done to N by a further prolongation of the litigation had been stressed by the guardian and needed no emphasis; that, apart from what he called the only one remotely plausible part of the father’s case, there was no significant change of circumstances since 29 July 2008; and that the application stood no real chance of success.

What the judge called the only remotely plausible part of the father’s case requires reference because, by his skeleton argument and by Dr Pelling’s speech notes this morning, the father stresses it. The point relates to the mother’s declaration late in 2008 or early in 2009 that she proposed to leave the home of the maternal grandparents in Hendon and to set up home with N in a two-bedroom flat in Mill Hill, some five miles away. Part of the background history had raised questions about the ability of the mother to provide a stable home life for N without the assistance of the grandparents, in particular of the grandmother. The recital to the order dated 29 July 2008 had recorded the view of the guardian that the effect upon N of any move on the part of the mother from the home of the grandparents would need to be considered prior to its taking place; and the mother had undertaken to notify the court and the parties in advance of any move. In the light of the notification by the mother that she did indeed propose to move with N into independent accommodation, the guardian made a number of submissions to the judge about the proposal; and in the event she reported that she did not consider that the mother’s proposed move justified further inquiry into the father’s application. The judge stated:

“The guardian is very aware that this is one of the triggers for the father’s application for a sole residence order, being concerned, so he says, that N would be at risk of harm if this were to happen. Her conclusion, having carefully considered the matter, having noted some improvement in the mother’s behaviour following the conclusion of the hearing in July 2008, and being satisfied with the overall working of the order, is that she would not stand in the way of the mother’s desire to move by asking her to renew her undertaking. She is aware of the mother’s not unreasonable desire to lead an independent life and that over time there may be changes in the grandmother’s circumstances which might necessitate a move. In the end she thinks the only way in which the issue can be considered in detail is for the question to be tested by the mother living with N.

…

If this leads to the father having serious concerns about N’s behaviour and there is external evidence that it is adversely affecting him (for example, concerns raised by the school) then even the existence of a section 91(14) order, were there to be one in place, would not, as the guardian points out, prevent the father appearing before the court for permission to issue a further application.”

The judge reminded himself of the width of a judge’s discretion in relation to the mode of determination of applications relating to children, including determination at an early stage, without full inquiry and without oral evidence. In particular he cited the observations of Butler-Sloss LJ in Re B (Minors) (Contact) [1994] 2 FLR 1, at 5, which, during my four years of service in this court, I have myself cited more than any other passage in a family law authority.

I have already indicated why the challenge to the dismissal of the first and second applications is unarguable. The challenge to the dismissal of the following 11 applications (numbered 3 to 13) is also unarguable. With his profound knowledge of the case, but also in the light of the background of relentless litigation surrounding N for so long, it was clearly within the judge’s discretion to decline to make orders additional to, or somewhat different from, the extensive raft of provisions constructed with such effort in July 2008. This is a case in which every order seems to provoke further argument rather than to pre-empt it.

Unsurprisingly Dr Pelling, in his speech notes prepared for today, and like the father in his written skeleton argument, concentrates in particular upon the judge’s refusal to re-open the substantive issue of residence. The argument is that the guardian too glibly put aside her previous concerns about N’s living with the mother in independent accommodation; that the judge has treated N like a guinea-pig and has subjected him to a test which he may or may not survive without harm; and that at the very least a professional risk assessment of N, were he to live for 60% of his time alone with the mother, should have been directed.

In my view it is not arguable that the judge exceeded his discretion in deciding to dismiss the application for a residence order without further inquiry. He was entitled to rely on the judgment of the guardian, following her inquiries on the ground (including two interviews with N in February and April 2009) and indeed the judge would have needed to show good reason for not following her recommendation. It was not unreasonable in principle that the mother should at last wish to live independently. Furthermore it was necessary to look at the father’s application for residence in context, namely a context of such indiscriminate forensic misbehaviour, so inimical to the emotional interests of N, that -- these are my words, not those of the judge -- it is hard to concede that it would ever be appropriate to invest the sole residence of N in him. The judge was supremely well placed to comment on the:

“… continuing failure [of the father] to prioritise N’s welfare over his (the father’s) animus against both the mother and the guardian -- indeed his animus against anyone who does not agree with him -- but also … his relentless determination to pursue the litigation, as long as it takes, and by pressing every point, however trivial, technical or pettifogging, until he eventually has his way.”

I am not a qualified psychologist but, after 16 years of exposure to this work, I do not usually find it difficult to form at least a limited understanding of why in family proceedings parents conduct themselves inappropriately and injuriously to the interests of the children whom they love. In this case, however, I am left in a total quandary. The father is an intelligent person, an educated person; he loves N; N reciprocates his love. Why has the father’s forensic misbehaviour, which has now developed into open contempts of court, for example in the course of his application to Munby J for permission to appeal, been of so gross a character? I do not believe that it is some simple addiction to litigation which afflicts him; and I cannot believe that the legacy of his feelings about the mother, following the breakdown of their relationship seven years ago, can still be the driver of it. I also consider that it might be grossly unfair to Dr Pelling to point the finger at him. The court is not privy to the advice which he has given to the father and, even were his advice to have been as malign as to persevere with all the litigation to the extent demonstrated, this father has an intelligence which would have rendered him more than able to override such advice.

Rule 52.10(5) of the Rules of 1998 provides that, if this court refuses an application for permission to appeal and considers that the application is totally without merit, its order must so record and it must at the same time consider whether it is appropriate to make a civil restraint order. But what is to happen when a court considers that only part of the application for permission is totally without merit? I am in no doubt that the grounds 1-13 inclusive of this proposed appeal are totally without merit. In the light, however, of the previous professional reservations about the emotional safety of N in any home independently occupied by the mother, I do not feel that I can state that the proposed appeal against the dismissal of the application for a residence order, with its four collateral applications, can be described as totally without merit even though it stands no real prospect of success. I consider, on balance, that I am therefore precluded from making a general denomination of today’s application as being “totally without merit”. In case, however, any further application by the father to this court were to fail, he would be wise to make prior acquaintanceship with the provisions for extended civil restraint orders in paragraph 3 of Practice Direction C appended to Part 3 of the Rules. For it is possible that the court would want to consider making such an order against him.

A judgment by way of refusal of an application for permission should not be as long as this judgment has been. I regret its length.