C (A Child), R v

This is an application for permission to appeal by the mother against an order made by His Honour Judge Wood dated 14 December 2017, in which he ordered that the child, who is the subject of these proceedings, C, should live with her father. He also ordered that the father should make C available to spend reasonable time with the mother. In so doing, the court recorded that it expected both parents to agree the arrangements for future contact with a view to preventing further emotional harm to the child and to terminating the over-reliance of both parents upon the family court to determine disputes about contact. The mother also seeks an extension of time to lodge her application for permission to appeal.

The mother’s application for permission to appeal is a matter which, by a directions order dated 7 February 2018, I indicated that I would determine on the papers once all the material necessary for me to do so had been lodged with the Family Division Appeals Office. The mother is representing herself though I note she was represented by counsel at the hearing before His Honour Judge Wood in November/December 2017. I have read all the documents submitted by the mother together with the bundle prepared for the hearing before His Honour Judge Wood.

The role of the appellate court and its approach to applications for permission to appeal are determined by the provisions of the Family Procedure Rules 2010 and by case law. Thus, an appeal against an order in a children’s case can only succeed if the court is satisfied that the judge at first instance was wrong, or that there was some procedural or other irregularity. Permission to appeal will only be granted where there is a real prospect of an appeal succeeding, or some other compelling reason for the appeal to proceed.

The background to this application for permission to appeal is as follows. The proceedings concern a little girl, C, born on 2 March 2012 and therefore now aged six. Until the order dated 14 December 2017 C had lived with her mother. Regrettably C has been the subject of litigation for all but 13 months of her life. There have been five sets of proceedings under the Children Act 1989; proceedings under the Family Law Act 1996; four appeals and in excess of 50 court hearings. There was also less than ideal judicial continuity until His Honour Judge Wood took responsibility for this case from March 2017 onwards.

In September 2014 a very experienced family court advisor observed that there had already been excessively lengthy litigation in respect of C; that the volume and nature of the allegations raised by the mother against the father was striking; and that the strength of the father’s wish to see the child was matched by the mother’s equally strong determination to prevent this from happening. His observations of contact between the father and the child were positive but the mother was wholly opposed to any normal progression of contact.

A final order was made on 12 September 2016 which set out a detailed and prescriptive contact regime whereby the mother was directed to make C available for contact with the father. The court also made a family assistance order for a period of 12 months. An application by the father to enforce the terms of that order was made within three weeks of the September hearing. By March 2017 the Cafcass family court advisor wrote to the court to report that the mother was not engaging with the family assistance order and to suggest that C be joined as a party to the proceedings and that a children’s Guardian be appointed. His Honour Judge Wood agreed to C having party status.

In July 2017 Cafcass filed a final analysis document and concluded that overnight contact between the father and C had not progressed because the mother fundamentally did not wish this to happen. Cafcass also suggested that the delay prior to the final hearing in November 2017 would allow the mother a last opportunity to demonstrate her ability to comply with the court’s orders in respect of contact. Cafcass indicated that, if the mother was unable to do so, it would support the court making an order transferring the residence of C to her father.

A hearing was listed before His Honour Judge Wood on 28 and 29 November 2017 when the judge heard evidence from the mother, the father and the children’s Guardian through the Cafcass family court advisor. All three parties had the benefit of legal representation. On 14 December 2017 the judge gave a detailed judgement and on 5 January 2018 the judge approved an order giving effect to his judgement.

In his judgment, the judge noted that the central issue for him was the mother’s expressed willingness to cooperate and whether such cooperation was genuine and would be likely to avoid further dispute and litigation about C. The judge considered the history of the litigation in some detail, setting the scene for the evidence, his analysis and conclusions. He observed that the parents were polar opposites in character and that this made conflict about C a racing certainty because of their different parenting styles. The mother had raised a variety of safeguarding concerns about the father but none of these had ever been proven. Those allegations had had a profound effect on the progress of contact, resulting in contacts stalling from time to time because of multiple repeated applications by the mother to the court on the basis that allegations made by her warranted investigation and, until this had been done, contact should be suspended or restricted.

The judge summarised the evidence of the parties in some considerable detail together with the submissions made on their behalf. He set out the law which he was required to apply, noting that the only determining factor was C’s welfare and that this should have precedence over all other considerations. In his analysis, the judge began by highlighting that this was an extremely distressing and difficult case. C was a healthy well-adjusted child with no needs over and above those of any other child of her age and she should enjoy and benefit from a relationship with both of her parents. There were no safeguarding concerns to suggest that limitations of any sort should be placed around her relationship with her father. The father was a respectable, hard-working man and on the face of it there was absolutely no reason why C should not have been able to enjoy family time with each of her parents shaped by the demands of their respective employment. The judge asked himself why C had not been able to enjoy such contact with her father. Over nine pages of analysis, the judge concluded by making the following findings in paragraph 94 of his judgment:

“Accordingly, the court is quite satisfied on all of the evidence that;

(i)

Despite what she says, this mother has a deeply ingrained hostility to the father and his family.

(ii)

Whilst she has come, out of necessity, externally mediated, to accept the need for contact, it has to be on her terms and be strictly and precisely controlled.

(iii)

Fundamentally, she is wholly opposed to overnight contact as she is, for example, to C going on holiday with her father.

(iv)

Despite the involvement of three family court advisers, a Guardian, hearings without number and a family assistance order, it has not proved possible to progress that contact. As I have mentioned, there was no overnight for the first seven months of this year, no holiday contact and even, after the July hearing, numerous contacts have been missed.

(v)

Even more seriously, the mother is prepared to use the court and the authorities, such as the police, to frustrate that contact. The court is satisfied that there were no reasonable grounds for a non-molestation order, most of which was entirely unsupported by any evidence, and that this order was used in pursuit of her beliefs surrounding contact with father, its fundamental inappropriateness and its lack of safety from C’s point of view. It was an order that ought not to have been granted.”

Having made those findings, the judge went on to consider what other measures, support or help could be provided to progress matters. The judge recorded the various measures which had been tried in the past and expressed the view that there were now only two options available to him: the first being to give the mother another chance and the second being to change C’s residence to the home of her father. The judge set out the advantages and disadvantages of each of those options and concluded that the balance fell decisively in favour of C moving to her father’s home. Having come to that conclusion, the judge considered the contact arrangements which C might have with her mother in future and endorsed the detailed proposals made by the father as striking a suitable balance between ensuring stability within C’s placement and C spending decent quality time with her mother.

In her notice of appeal, grounds of appeal and written submissions, the mother advances two principal grounds. The first ground was that of procedural error, asserting that neither the Cafcass Guardian nor the judge had followed the correct procedures or provided continuity. She said that parental conflict/lack of communication had not been addressed and that the lack of judicial continuity had exacerbated the difficulties between the parents. Her second ground was that the judge had failed to apply the welfare checklist, in particular having regard to C’s wishes. Those grounds were amplified in detailed written submissions.

I deal first with the mother’s application for an extension of time. His Honour Judge Wood approved the order dated 14 December 2017 on 5 January 2018, this being specified on the face of the order. Rule 30.4 of the Family Procedure Rules 2010 provides that the appellant must file the appellant’s notice at the appeal court within 21 days after the date of the decision of the lower court against which the appellant wishes to appeal. In this case the mother did so on 26 January 2018 which was 21 days after the date upon which His Honour Judge Wood approved the order against which permission to appeal is now sought. The mother was thus in time with her notice but, if I am wrong about that, I extend the time for her to file her notice to the date upon which the Family Division Appeals Office received her notice of appeal.

With respect to the first ground of appeal, the mother complained that the Cafcass Guardian had been inconsistent about ascertaining the wishes and feelings of C throughout his involvement and had failed to explain to the court how C had expressed her feelings. She asserted, in summary, that he should have conducted a more thorough investigation and assessment of the parenting capacity of both her and the father and that his opinion was based on limited and outdated information. Having examined the bundle of documents available to His Honour Judge Wood, it is clear that the mother’s statements did not make the sort of criticisms of the children’s Guardian at the hearing upon which she now seeks to rely. The summary of the children’s Guardian’s evidence in the judgment did not express any concern about the children’s Guardian’s investigation or approach in these proceedings. In her oral evidence the mother criticised the children’s Guardian as not having been fair at a meeting in September 2016 to discuss the family assistance order, but she did not apparently make criticisms of the sort now set out in her skeleton argument. Finally, her counsel’s closing submissions as set out in paragraph 69 of the judgment did not criticise the children’s Guardian in the manner that the mother now does. Given all of this, I find that the judge cannot be criticised for relying on the evidence of the children’s Guardian in circumstances where no substantive criticism of the children’s guardian’s approach was made by those representing the mother. Leaving that to one side, the children’s Guardian had been involved since 2015; had produced four careful reports; had a good knowledge of the parties and had spent time with C. His substantive report dated 11 July 2017 was based (a) upon observations of the child with her mother, with her father and school together with a wishes and feelings session with the child and (b) upon his knowledge of both parents. There was no reason why the court should not have relied upon his evidence and upon his professional opinion in the circumstances of this case. I reject this ground of appeal.

The mother’s first ground of appeal also criticised the judge for failing to ensure that the correct procedures had been followed by the children’s Guardian. It was also asserted that a lack of judicial continuity had resulted in further conflict between the parents. In so far as the first matter is concerned, I reject this for the reasons already set out. The lengthy and detailed judgment was at pains to examine all of the evidence from each witness in an effort to reach a decision consistent with the paramountcy of C’s welfare. The judge was alive to inconsistencies in the evidence and analysed the behaviour of the adults and the child over the lengthy litigation history. There is, in my view, no basis for the mother’s assertion that the judgement was flawed by reason of an inadequate and misconceived approach by the judge to the evidence in this case. I also reject the assertion that the lack of judicial continuity played any role in fostering the evident acrimony between the mother and the father. On my reading of the papers, there is no evidence for that assertion but, even if there were, this case had the considerable benefit of judicial continuity from March 2017 onwards in the person of His Honour Judge Wood.

I deal with one further issue touching on procedural fairness at the hearing raised by the mother in her skeleton argument. The mother stated that she had been unwell on the first day of the hearing and had become progressively more unwell as the day went on. She had requested an adjournment of the hearing and recorded that the judge would not permit this without a medical note to say that she was unfit. The mother submits that this severely disadvantaged her from giving the evidence that she wanted to give. The judge addressed the issue of the mother’s ill-health in paragraph 40 of his judgement wherein he noted that he had given the mother a break on the afternoon of the first day of the hearing when she was unwell and he also recorded that the mother had agreed to continue giving her evidence. The judge stated that he would not accept an inability to proceed on behalf of the mother without medical evidence to that effect because of the importance he attached to the resolution of the proceedings. Finally, he noted that “by the manner of her giving evidence and the clarity of her answers which were carefully articulated, the court is satisfied that her feeling unwell did not disadvantage her unfairly.” Having considered this issue of procedural fairness raised by the mother, I observe that it is very difficult for an appellate court to interfere with the judge’s findings about the circumstances in which the mother came to give her evidence to the court. The judge had the advantage of seeing and assessing the mother and was alive to the need to give the mother a break during the course of her evidence. He also recorded that the mother had agreed, despite feeling unwell, to continue with her evidence. In those circumstances, I find that the mother has failed to establish that there was a serious procedural irregularity in the November/December hearing.

I turn now to the mother’s second ground of appeal, namely that the judge failed to apply the welfare checklist particularly with respect to C’s wishes. The majority of the matters relevant to this ground set out in the mother’s skeleton argument were, in effect, a continuation of her criticisms about the father’s character and ability to care for C. The mother also complained that the judge had refused psychological assessments of herself, father and C. The crux of her submission was that the judge had failed to consider the effect on C of moving to her father’s home.

I can deal with the matter of psychological assessments briefly. In his order dated 13 April 2017 the judge directed that any application for expert psychological assessment of the child was to be made by 28 April 2017 and further the court order dated 13 April 2017 did not record that the court had dismissed an application for a psychological assessment of the mother and the father. No application for a psychological assessment of the child was in fact made. In his judgement at paragraph 60, the judge noted that the mother herself did not argue there was anything wrong with C. There was thus no basis for the court to require a psychological assessment of the child in order to resolve the issues in the proceedings. It would also appear from the papers that no application for a psychological assessment of the mother and/or the father was made and then refused by the judge.

The matters raised by the mother against the father were comprehensively addressed by the judge in his lengthy decision. Thus, the mother submitted that the father’s lifestyle and dependence upon his partner to support the care he would give to C were contra-indications to any change of residence. She asserted that the father would not be able to provide continuity and routine in C’s life. The judge dealt with those matters first in paragraph 72 of his judgement wherein he made it clear that, despite the father’s complicated employment shift pattern, C would be able to enjoy good family life with her father. In paragraph 102(iii) the judge found that, were C to move to her father’s care, she would be received into a loving family home with people that she knew including the father’s fiancee, her children, C’s half sister and her extended paternal family, all of whom were capable of meeting her needs. Additionally, I note that the contact arrangements endorsed by the judge would allow C the opportunity to maintain relationships with her maternal family. The mother also complained that the father had frustrated contact but the pervasive theme of the judgment was that it was the mother herself who had comprehensively frustrated the development of C’s contact with her father [see, for example, paragraphs 83-85 and 94]. I find that the judge addressed the issues raised by the mother throughout his judgment and furthermore that he had the advantage of seeing and hearing the mother and the father give evidence to him about these matters. In those circumstances, it will be rare for an appellate court to interfere with the judge’s findings and with the conclusions based upon those findings. There is no arguable basis, in my view, for an appeal against this aspect of the judge’s findings and reasoning having a real prospect of success.

The mother also complained that the judge had taken no account of C herself and of her wishes and feelings. Paragraph 26 of the mother’s skeleton argument suggested that C was frightened to show her true emotions in front of the children’s Guardian and that no account had been taken of the impact a change of residence would have on C. In his judgment at paragraph 76, the judge addressed the mother’s contention that C was extremely distressed at the prospect of staying with her father. He noted that this alleged distress had not been witnessed by anyone else involved in the proceedings and was not corroborated by any other evidence. In fact, it was directly contradicted by the observations of wholly positive contact between C and her father. I have already dealt with the mother’s submissions with respect to the involvement of the children’s Guardian in paragraph14 above. The judge was also satisfied that C enjoyed contact with her father and took care to balance the advantages and disadvantages of a change of residence holistically with C’s welfare at the forefront of his consideration [see paragraph 103]. He came to the conclusion that the move for C was justified on the basis that the mother had failed to meet C’s emotional needs in a significant way; would not be able to meet those needs in future; and continued exposure to the mother’s behaviour was likely to cause C harm. In paragraph 61 of the judgement the judge identified the factors in the welfare checklist of particular pertinence in this case. That list did not include consideration of the child’s wishes and feelings but, in the light of the judge’s findings, that was not an omission I regard as significant given the judge’s very careful analysis of the other matters he listed in paragraph 61 which included C’s emotional need to have a normal relationship with her father and to be spared adult conflict and the likely effect upon her of what would be a significant change in her circumstances. C was a very young child who had, notwithstanding the significant adult conflict in this case, a good relationship with both her parents. Her wishes and feelings were unlikely to be decisive in the circumstances of this case and it is that factor, which I infer, accounts for the omission of C’s wishes and feelings from the list set out by the judge in paragraph 61. Having considered this ground of appeal very carefully, it seems to me that the judge carried out a careful and thorough hearing in difficult circumstances and analysed the voluminous written evidence and oral evidence with great care to reach his decision that C should live with her father rather than with her mother. In my judgment there is no real prospect of an appellate court concluding that the judge was wrong in making such an order.

Accordingly, as there is furthermore no procedural or other irregularity, I refuse permission to appeal in this case.

Having refused permission to appeal, I also certify this application as being totally without merit. In so doing, I have carefully considered whether a hearing would serve the purpose of “giving an opportunity … to address the perceived weaknesses in the claim which have led the judge to refuse permission on the papers” [Wasif v Secretary of State for the Home Department [2016] EWCA Civ 82 at 17(3)]. Though Wasif concerned itself with the permission requirement applying to applications for judicial review in the High Court and the Upper Tribunal respectively, the principles found by the Court of Appeal to be applicable to the certification of applications as being totally without merit are also relevant to applications for permission to appeal in this Division. Bearing in mind the seriousness of the issue and the consequences of my decision, I am confident after careful consideration that this application for permission truly is bound to fail and thus certify it as being totally without merit. This is most certainly not one of those cases where, for example, proper presentation might disclose an arguable ground of appeal.

I am acutely conscious of and understand the mother’s distress about His Honour Judge Wood’s decision – this was painfully apparent on reading the material she prepared in support of her application. If I may offer some advice to the mother, it would be this. The mother must now accept the decision which the judge has made and make every effort to support C’s home with her father. She should ensure that her contact with C is a happy and positive experience for her daughter which is not affected by adult disputes. However, if she continues her battle with the father in the way that she has done for almost the entire duration of C’s young life, her relationship with her daughter will be permanently damaged to the lasting detriment of both of them.

That is my decision.