SH (A Child)

This is my judgment on the mother’s application for an extension of time to appeal, and for permission to appeal, against an order made by Recorder Posner in November 2019.

On 5 November 2019 Recorder Posner gave judgment in respect of the child arrangements order for a young person who I shall call SH for the purposes of this judgment. SH was 12 ½ at the time of that decision and is now 13. The application the Recorder was considering had been made by SH’s father (‘the father’) in early 2019; it was for a variation of a shared lives-with order, which dated back to October 2015. The application to vary that order emerged after a series of hearings in December

The father’s application was timetabled to a final hearing that was due to take place in July 2019. SH had been joined as a party to the proceedings and NYAS appointed as her Children’s Guardian. In a report for the final hearing the NYAS Caseworker made a recommendation that was not in accordance with SH’s wishes. The final hearing was adjourned to enable the mother to secure legal representation and relisted in September 2019. By the time the adjourned final hearing came before the Recorder, SH had instructed her own solicitor, Ms Hansen, and HHJ Oliver had granted her application to be represented directly in the proceedings. NYAS’s appointment was terminated but the NYAS Caseworker remained a witness. I shall refer to that Caseworker as “the Caseworker” in this judgment, for ease of reference.

The application came before the Recorder on the 26 and 27 of September. It was not completed and the case resumed on 5 November 2019. On that day the Recorder gave a judgment and made an order which provided that SH would live with her father. No order was made in respect of the time SH was to spend with her mother. An application for permission to appeal was made on behalf of the mother to the Recorder and refused.

Over three months later, on 12 February 2020, the mother, as a litigant in person, lodged an Appellant’s Notice with the Family Division, seeking to set-aside the order made by the Recorder. The Appellant’s Notice was accompanied by a lengthy narrative ‘grounds of appeal’. I gave initial directions on 24 February 2020 and further directions on 6 April 2020. In those directions I indicated that the reasons given for the delay did not appear to be good ones but if the merits of the appeal were strong that might tip the balance in favour of granting an extension of time. I sought to distil from the 23 paragraphs of narrative grounds what then appeared to me to be potentially arguable points. I shall return to those later. I listed the application for an oral permission hearing, on notice.

In response to the directions I gave, both the father and SH filed skeleton arguments in response to the mother’s application. An appeal bundle amounting to some 330-odd pages was agreed between the lawyers for the father and the lawyers for SH, and

The mother said that the reasons for the delay were twofold

The order came as a shock and she hadn’t recovered mentally or emotionally from the events;

She had been seriously unwell and was now due to undergo surgery. A letter dated 9 January 2020 was provided from the Royal London Hospital, referring to a nurse-led pre-operative assessment appointment booked for 30 January 2020.

Ms Ward submitted that the evidence demonstrated the mother had a serious medical problem which explained the delay.

Ms Ward emphasised that the Caseworker had concluded in her detailed reports that SH was ‘in script’ when she spoke about what she wanted and that her views were infused with the father’s views and enmeshed with his. Ms Ward submitted that the Caseworker had seen SH in different contexts and was thus able to assess what SH said about spending time with her mother against what she (the Caseworker) saw of

In particular, Ms Ward emphasised that both the Caseworker and previous judges had found the father to be dishonest and manipulative and she argued that the Recorder had failed to give any weight to such previous findings in respect of the father. She submitted that the Caseworker was entitled to reach the conclusions that she had in respect of the father, which were based on her direct experience of him, in particular in relation to him appearing to agree the summer holiday contact at court but then reneging on it. The Recorder gave as a reason for not following the Caseworker’s recommendations and discounting her evidence that she had not provided a balanced assessment of the parents. However, Ms Ward said it is clear from the Caseworker’s reports and her evidence that she had identified failings in the mother as well as the father and that her evaluation was a balanced one, albeit she was more concerned by the father’s failings than the mother’s. There was no basis, Ms Ward contended, for the Recorder to conclude that she could not find any objective evidence which supported the Caseworker’s evaluation of the father as dishonest and manipulative.

Lastly, Ms Ward emphasised that the circumstances in which SH came to instruct solicitors indicated manipulation by the father. It only emerged in the course of evidence that it was the father’s solicitors who had made initial contact with Ms Hansen and this all pointed, it was argued, to orchestration by the father.

Ms Ward emphasised that the Caseworker’s reports provided a holistic evaluation of SH’s welfare and placed SH’s academic aspirations into a proper perspective, where they were balanced with her other emotional needs. She submitted that the Recorder was strongly swayed in her decision by SH’s academic ambitions, prioritising them at the expense of her other emotional needs, in particular for a full relationship with the mother. Ultimately, Ms Ward contended, the Recorder’s analysis was deficient, as a result of the weight placed upon this issue, which is disproportionate to the holistic evaluation of welfare.

Given the holistic evaluation that the Caseworker had set out, these points ought, said Ms Ward, to have attracted far more weight in the Recorder’s evaluation of SH’s welfare.

FPR 30.12(3) provides that an appeal may be allowed where the decision was wrong or unjust for procedural irregularity.

The test for granting permission [FPR 30.3(7)] is:

The court considers that the appeal would have a real prospect of success; or

there is some other compelling reason why the appeal should be heard.

The court may conclude that a decision is wrong or procedurally unjust where:

An error of law has been made;

A conclusion on the facts which was not open to the judge on the evidence has been reached: see Royal Bank of Scotland v Carlyle[2015] UKSC 13;

The judge’s evaluation of the facts and the conclusion reached were not supported by the evidence, for instance where irrelevant material has been relied on, or relevant material not taken into account, or where clearly undue weight has been given to material, or clearly insufficient weight has been given to material; always bearing in mind that an appellate court’s function is not to substitute its own decision or view of the evidence for that of the trial

A process has been adopted which is procedurally irregular and unfair to an extent that it renders the decision unjust (e.g. has there been an unseemly rush to judgment?): see Re S-W (Care Proceedings: Case Management Hearing)[2015] 2 FLR 136

A discretion has been exercised in a way which was outside the parameters within which reasonable disagreement is possible: see G v G (Minors: Custody Appeal)[1985] FLR 894.

The trial court must give a decision and explain the reasons for it, so that the parties and the appeal judge may properly understand the basis of the decision. The trial court does not have to deal with every point raised and does not need to set out the law in detail, provided it is evident from the decision that all relevant factors have been considered.

In Re F (Children)[2016] EWCA Civ 546, Sir James Munby P summarised the following approach to appeals:

Like any judgment, the judgment of the Deputy Judge has to be read as a whole, and having regard to its context and structure. The task facing a judge is not to pass an examination, or to prepare a detailed legal or factual analysis of all the evidence and submissions he has heard. Essentially, the judicial task is twofold: to enable the parties to understand why they have won or lost; and to provide sufficient detail and analysis to enable an appellate court to decide whether or not the judgment is sustainable. The judge need not slavishly restate either the facts, the arguments or the law. To adopt the striking metaphor of Mostyn J in SP v EB and KP [2014] EWHC 3964 (Fam),[2016] 1 FLR 228, para 29, there is no need for the judge to "incant mechanically" passages from the authorities, the evidence or the submissions, as if he were "a pilot going through the pre-flight checklist."

The task of this court is to decide the appeal applying the principles set out in the classic speech of Lord Hoffmann in Piglowska v Piglowski [1999] 1 WLR 1360. I confine myself to one short passage (at 1372):

Lord Hoffmann also said in Piglowska v Piglowski[1999] 1 WLR 1360, 1372:

the interests of the administration of justice;

whether the application for relief has been made promptly;

whether the failure to comply was intentional;

whether there is a good explanation for the failure;

the extent to which the party in default has complied with other rules, practice directions, court orders and any relevant pre –action protocol;

whether the failure to comply was caused by the party or the party's legal representative;

whether the hearing date or the likely hearing date can still be met if relief is granted;

the effect which the failure to comply had on each party; and

the effect which the granting of relief would have on each party or a child whose interest the court considers relevant.”

The overriding objective of dealing with the case justly must also be borne in mind. In Denton and others v TH White Limited[2014] 1 WLR 3926, the Court of Appeal identified a three-stage approach to applications for relief from sanctions in the context of the civil procedure rules. That three-stage approach is to:

Identify and assess the seriousness or significance of the failure to comply or default.

Consider the reason for the failure or default.

Consider all the circumstances of the case, so as to enable the court to deal justly with the application.

Some other principles can be ascertained from the case law:

‘a person who finds himself unable to comply timeously with his obligations under an order should apply for an extension of time before the time for compliance has expired’(per Sir James Munby P in Re W (Adoption Order: Leave to Oppose); Re H (Adoption Order: Application for Permission for Leave to Oppose)[2014] 1 FLR 1266);

being unrepresented is not in itself a good reason for non-compliance (Re D (Appeal: Procedure: Evidence)[2016] 1 FLR 249, CA);

no distinction should be drawn between the lay party and his advisers when considering delay (Daryananii v Kumar and Gerry (2000) (unreported) 12 December, CA);

issues relating to public funding and/or pressure of work are unlikely to be regarded as good reason,

particular regard should be paid to the proportionality of strike-out as a sanction (London Borough of Southwark v Onayamoke[2007] EWCA Civ 1426);

the underlying merits of a case are a potential consideration (Re H (Children) (Application to Extend Time: Merits of Proposed Appeal)[2015] EWCA Civ 583, [2016] 1 FLR 952).

In the present case the explanation given by the mother for her delay is unsatisfactory. Given the history of the litigation between the parents she was well-aware of the possibility of an appeal and, at least in general, must have been aware of the time limits. An oral application for permission to appeal was made at the conclusion of the hearing. The delay of nearly three months meant that the order was communicated to SH and began to operate. It appears, for reasons which I have not gone into, that the regime has now broken down. I have not explored that and it is not part of this appeal. In any event, the net result is that now, at the time of this hearing for permission, SH is rising 14 and her wishes and feelings would become even more weighty. The explanation given by the mother does not provide an adequate explanation. Neither

Having had the opportunity to read the reports of the Caseworker and the statements of Ms Hansen, together with the transcripts of the oral evidence of each of them, the judge’s conclusion that SH’s views were her own and should be given significant weight appears to me to be unassailable. The curious feature of SH’s views is that she spoke positively of both her mother and her father and of her time with each of them. The records of what she said seem to show balance, reflection, passion and maturity, notwithstanding what the Caseworker (and, according to the Caseworker, the school) said about her lack of emotional maturity. However, SH identified issues to do with her mother, combined with her desire to prioritise her particular academic talent, as being reasons for preferring to live with her father and to spend down-time with her mother. The evidence from a variety of sources provided an objective foundation, both in relation to the emotional pressure she said she experienced from her mother and her genuine passion for her academic subject. This was a long way from alienation. Although criticism was made of Ms Hansen not having seen and spoken to SH in her domestic context, the records of what she said to Ms Hansen is not very different in substance to that which she said to the Caseworker. The record of that, and Ms Hansen’s evidence in relation to it, supports the judge’s conclusion that SH’s concerns about emotional pressure and her desire to prioritise her studies were authentically her own views. Ms Hansen said that she had not had access to any of the papers when she first spoke to SH but that when she did she saw that what SH had said to her was generally borne out by the papers. She was very clear that in her initial interview with SH, and subsequently, she did not detect the markers of influence, or the markers of immaturity and lack of competence, which often cause her to decline to accept instructions from a young person. Although Ms Ward submitted that Ms Hansen had not had the opportunity to see SH in different contexts, which might be said to be a disadvantage, she had seen SH in a neutral environment, without either of her parents being in earshot, and had spent something in the region of 5-6 hours in meetings or telephone calls with her, which would seem to have given Ms Hansen a very good opportunity to gauge SH’s competence and the authenticity of her views.

It is correct that the judgment does not refer to previous findings that the father had been dishonest or manipulative. However those conclusions were reached in relation to his evidence in the financial proceedings and there does not appear to have been

Having reached the conclusion that the Caseworker’s extensive criticisms of the father were not borne out by the evidence, the consequence was that the report was unbalanced. However, the imbalance went further than simply the removal of some of the criticism of the father by reason of the judge’s rejection of those criticisms. Although Ms Ward’s submission that the Caseworker had been critical of the mother in her reports is correct, the differential between the criticism made in the report and the criticism that might properly have been made of the mother and which emerges and is accepted by the Caseworker, in particular during her cross-examination by Ms Honeyman, demonstrates even more clearly the lack of balance in the reports. Again, it might have been helpful, particularly to the appellate court, had the judgment set out clear conclusions, for instance on the 2015-18 consensual variation, the collection order impact, the phone theft allegation, and the video-pressurising of SH. The evidence from SH alone was powerful and seems to have been corroborated by other evidence. The Recorder was therefore justified in rejecting the Caseworker’s criticism of the father and in the limited criticism that the Caseworker had herself made of the mother. The Recorder was therefore also entitled to depart from the Caseworker’s assessment and her recommendations.

The circumstances in which SH came to instruct Ms Hansen were set out in Ms Hansen’s first statement and were explored in cross examination of her. The fact that SH had not seen the NYAS solicitor and the absence of any consideration by the

On the fuller examination that I have now been able to conduct, none of the grounds put forward by the mother for asserting that the Recorder’s decision was wrong or unjust have any realistic prospect of success, or show some other compelling reason for granting permission to appeal. The judgment is brief, having regard to the history of the case and the evidence before the Recorder, but having now had the opportunity to assimilate far more of the material that was before the Recorder it is clear to me that the evidential foundations existed which fully support the conclusions she reached. To those who were participants in that hearing the judgment adequately expressed its reasons. From the perspective of an appellate judge it might have assisted me had the Recorder’s reasoning been more fully illustrated by examples

I therefore refuse to grant permission to appeal. I will refuse to grant an extension of time to appeal. That is my judgment.