S (A CHILD) [2002] EWCA Civ 1309

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE PLYMOUTH COUNTY COURT
(His Honour Judge Tyzack QC)
[2002] EWCA Civ 1309Case No B1/2002/0694Venue The Royal Courts of Justice, Strand, London, Wednesday 24th July, 2002
Between
S (A CHILD)
Before
Lord Justice ThorpeTHE APPLICANT/FATHER appeared on his own behalfTHE RESPONDENT did not appear and was not represented

LORD JUSTICE THORPE:

This

[1]is Mr Sullivan's application for permission to appeal an order made by His Honour Judge Tyzack QC sitting in Plymouth in the County Court on 25th March 2002. The father appeared in person below and the mother was represented by counsel.[2]The issue in the case was whether there should be a sole residence order to the mother or a shared residence order as Mr S sought. He had very strong views as to the desirability and the advantage to be derived from shared residence orders, not perhaps only in his case but more generally; and to that effect he prepared an extremely cogent and persuasive case which was laid not only before the judge but also before the Children and Family Reporter.[3]The judge rejected Mr S's submissions and he made an order, which appears at page 13.1 in section C of bundle 1, to the effect that there be a residence order to the mother with contact in accordance with an agreed programme to be settled or approved by CAFCASS.[4]Mr S refers me to section PQ of bundle 1 at page 198, where there appears a letter from the wife's solicitors that annexes a schedule of contact. But the annexed schedule is restricted to weekend contact and records only the position between 16th March and 21st June, when the contact was to enlarge from a one night alternate weekend to a two night alternate weekend. The schedule contemplates the future to the extent that it notes that the arrangement would continue until varied. But nowhere does the schedule deal with holiday contact, an issue to which I will return.[5]Mr S, as a litigant in person, has prepared an extremely impressive submission in support of his application to this court for permission. I have two lever arch files which have been immaculately sectioned and paginated. They contain a great deal of material which would be highly relevant to any socio-legal or social policy debate as to the respective benefits to children in general of shared residence order in comparison with sole residence order. In addition, Mr S has referred to decisions of the European Court. He has referred to decisions of this court. He has referred to developments within the Council of Europe. Certainly if this material had been prepared for a symposium or a conference to debate these issues both within the framework of research, academic thinking, law-making and law application, they would be extremely valuable.[6]But it is important to bear in mind that I exercise a very different and more limited function. All I have to do is to conduct a review of the judgment in the court below and to ask myself: has the judge directed himself correctly by reference to the statute and the authorities in this court? Then I must proceed to ask the question: has he, in the exercise of his discretion, exceeded the wide ambit vested in him?[7]With that preamble I come to Mr S's oral submissions. He has presented his case this morning and this afternoon in an extremely moderate fashion. He is lucid and persuasive in arguing his conviction that his relationship with his daughter, and therefore the benefit to her to be derived from that relationship, would be considerably fortified by the making of a shared residence order. Certainly there is nothing in Mr S's presentation to the court today that begins to substantiate or fortify the impression gained by

the judge in the court below, which is recorded in paragraph 33 of his judgment in this finding:

"I find Mr S to be an emotional man, driven by a passion and an obsession for shared parenting and that he is not a man who is likely to be able to negotiate and to reach agreements other than in circumstances where his view is to be preferred."
[8]The judge had a much wider experience than I have had, and the judge will have heard Mr S testify and he will have heard Mr S cross-examined. But I have a very different impression of Mr S. He seems to me to be convinced of his position, but that does not in itself indicate obsessional thinking. Nor does he suggest himself to me as a man who is unable to negotiate and arrive at reasonable agreement. Indeed, he has said on more than one occasion during the course of this hearing that he is particularly reluctant to embark on further litigation, and would much prefer to see issues concerning the future of his daughter, E, settled between him and her mother by mediation or other less adversarial means than litigation.[9]I should perhaps have said at the outset that E was born in January 1997 and is therefore five years of age. She has been in the care of her mother since the separation of her parents.[10]Mr S, in preparation for the hearing, submitted a skeleton argument which can only be criticised for its length, some 43 pages. But I particularly focus on his complaint that the judge at a hearing on 20th February revealed a prejudice and a closed mind by two comments. The first is to this effect:
"You see, it is very rare, I can tell you this, it is very rare indeed for a court, with a child as young as [E], a joint residence order, in other words, one where the parties following separation effectively share the care of the child. That is very rare for that to happen. It is most unusual. I have never made such an order."
[11]The second comment, made on the same occasion:
"The experience of these courts is very clearly that children, following the unfortunate breakdown of the parents' relationship, children normally do best in one home with good contact to the other non-residential parent. That is our experience in these courts, and you are facing an uphill task."
[12]What is the significance of these observations? First, it is to be borne in mind that they are from the judge at an interlocutory stage when he exercises his case management function. It is perfectly usual and perfectly acceptable for a judge in those circumstances to offer to the parties some sort of judicial steer which may prove helpful in eliminating unnecessary contention. This is a judge who has had specialist experience of the Children Act from its inception, either as a junior barrister or as a Queen's Counsel, or as a relatively recently appointed Circuit Judge.[13]So as to his first comment, it is undoubtedly statistically well-founded. As a matter of statistics only, the number of joint residence orders entered as against sole residence orders would be minute. (It may well be that judicial statistics would readily produce a per cent figure for that.) So for the judge to say: that is very rare, it is most unusual, I have never made such an order is probably statistically accurate. But it does not in itself indicate a departure from the proper principles which have been established relatively recently in this court in the decision of DvD [2001] 1 FLR.[14]The second observation of the judge does perhaps reveal a mindset. But it is a mindset that would, I suppose, have fairly general support amongst the specialist professional judiciary. There is undoubtedly an argument that it is important for a child not to be confused as to where his or her primary home is sited. Obviously, generalisations in the field of child welfare are always to be treated with caution. A question as to whether such a generalisation has a good foundation in empirical research is seldom satisfactorily answered. But I do not find in either comment that the judge has betrayed a want of openness of mind to disqualify or prejudice fairness when he approached his task on 15th March.[15]Mr S also had misgivings about the starting point of the Children and Family Reporter. He had a tentative view that the CFR, too, had not sufficiently assimilated the shift in approach to joint residence orders signalled by this court in the decision in DvD , and accordingly he wrote to him in advance of the hearing. His letter of inquiry was not responded to. He wrote to him after the hearing in preparation for this appeal two letters, which at least were acknowledged with the response that the officer regarded the case as being closed.[16]It is understandable that this officer who, no doubt like all his colleagues, was at the time working under extremely difficult circumstances, simply did not have time to enter into correspondence with one member of one of the families with which he was at that moment professionally concerned.[17]I do not see in that anything that establishes any predisposition in the officer to determine in his recommendations against the father's position. He apparently told the judge that in the course of 55 cases in the previous year he had positively advanced a recommendation for a shared residence order.[18]The judge explained himself relatively fully in rejecting Mr S's application. He quite rightly referred to his primary obligation to apply section 1(1) of the statute and the welfare checklist contained in section 1(3). He equally correctly referred to the decision of this court in DvD . But he said, in what is undoubtedly strong language (and this is a sentence extracted from paragraph 25):
"I am quite satisfied on the evidence I have heard that a joint residence order in this particular case, and I emphasise that, would be an absolute disaster."
[19]He went on to give three reasons for that conclusion. The first was the vulnerability of E, who he found to have been profoundly affected by the breakdown of the parent's marriage. He described her as a vulnerable, shy little girl. He said that she was used to a regime in which her mother had had primary care since the separation in November 2000. He acknowledged her view that she would ideally like to live with her mother, but have contact to the father. He acknowledged that that view had been expressed whilst in her mother's home and that she had not been asked a similar question whilst with her father. But he expressly said that he regarded that as a consideration that distinguished the case before him from the case considered by this court in DvD .[20]The second reason which he stated was that the dynamic between the parents was such that it would not be likely, in his judgment, to promote E's best interests were arrangements to be shared. He said that this was not a decisive factor, but in the particular case he regarded that as being a relevant factor. He said (and this is a citation from paragraph 32):
"It seems to me, looking at the whole history of this case, having seen the parents myself giving evidence, the dynamic between them is not such that sharing [E's] care would be likely to promote her best interests."
[21]He then came to his third reason, which was the father's attitude, approach, convictions and emotional state. I have already cited the judge's finding from paragraph 33 and made the observation that my own impression, gained only from this hearing today, is at odds. But then I was not the trial judge. I had not had the opportunity that the judge had, and it may well be that Mr S presented himself very differently in the middle of March to his presentation in the middle of July.[22]It is necessary to remind myself that I do not try this case. Whatever may be my sympathy for Mr S, whatever I may think of Mr S, I have to remind myself that it was the function of the trial judge to make these assessments and that it is not open to this court to substitute its impressions for those of the trial judge. The reality is that this is a case in which the judge has directed himself correctly as to the law. He has reached a discretionary decision. He has reasoned that discretionary decision explicitly and plainly, and it is simply not open to this court to go behind such an outcome. Thus the prospects of success for Mr S in this court would be, in my judgment, remote.[23]Of course there is a wider debate as to whether there should be a continuing shift towards the more general application of joint residence orders following the disintegration of a family. But that debate has to be conducted in another arena. The reality is that the decision of this court in DvD binds me, just as it bound Judge Tyzack in the court below. It is not open to me to take a different position in relation to the balance between sole and joint orders. Such a different position can only be achieved either by their Lordships or by Parliament, or by a process of evolution within this court which could not be achieved swiftly after a milestone pronouncement such as that in DvD .[24]All that said, there are two aspects of this case which do concern me. One of the real benefits that flowed from the hearing below was an acceptance by the mother during the course of the trial that there should be a very significant and specific enlargement of the father's contact to E. First there was a recognition that there should be an immediate inception of an overnight stay on alternate weekends. Second, there was the acceptance that that overnight stay should be enlarged to an alternate staying weekend to commence in three months' time. But then there was the most important acceptance that there should be an equal sharing of the school holidays and the school half-terms. That is particularly important in this case because Mr S is a school master and is therefore available to his daughter during precisely those periods in a way that many fathers might not be.[25]The issue of the progression from no part of the school holidays to equal sharing was first raised by counsel for the mother. After the judgment counsel said:
"Can I ask your Honour whether you intended to stipulate a period of time for the longer summer holiday contact. I particularly have in mind this year."

The judge said: "Seven nights."

[27]Counsel responded:
"I would not argue against that, your Honour."

The judge said:

"I shall say seven nights this summer but, as I have said, the parties should work towards the aim that [the CFR] spoke about which is that of half each school holiday, half of each half-term and fortnightly weekends."
[29]Mr S says to me today, with very great force, that given the importance of maintaining the relationship between E and her paternal grandparents and the wider extended family in the Inverness area, seven nights is not very practical. The grandparents are both in their middle or early 70s, and accordingly it is not practical for them to travel to Devon. The journey from Plymouth to north of Inverness requires an overnight stay, so that two of the seven nights will be nights of journey. Mr S says that during the course of the hearing both the court welfare officer and the mother had either contemplated or acknowledged the possibility of ten or 11 nights. The fatal development follows when Miss Crookes said, in response to the judge:
"I would not argue against that." plainly Mr S should have been on his feet saying, "
But I do; seven nights is not enough" and he could have given his reasons and perhaps the judge would have changed his mind. Mr S did not, but he quite reasonably explains that he, as a litigant in person, was by that stage both tired and, although he has not said this, he was probably in a state of turmoil. I can very readily understand why he missed that golden opportunity.[30]So it is that for this immediate summer he is restricted to seven days which will commence on Saturday next, 27th July. But the issue of further extension was carried beyond the holiday for summer 2002, because Mr S was asked by

the judge at the foot of the same page of transcript the question:

"You understand the order I have made?"

The judge said:

"It is a sole residence order for Mrs S with contact to you with the aim that I have indicated and that is very important, that aim is enshrined in the process. You are clear about the details of contact from now?"
[32]That statement from the judge indicates that he regarded it as very important that the aim to enlarge contact, not only weekend but holiday contact, was or should be enshrined in the process. Mr S said -- or somebody said -- that it might be a good thing if the wife's solicitors produced a typed schedule, and the solicitor said he would be happy to do that. The applicant then made this reasonable observation. He said:
"... I am not clear about the aim for one thing. You say the aim is, and in my profession if you say an aim you have a time limit to it or it is meaningless."

The judge said: "Yes."

[34]So Mr S said:
"Is there a time limit to the aims being achieved?"

The judge then said:

"It needs to be taken at E's pace."
[36]To that Mr S said:
"The history of that is not good, your Honour."

The judge:

"I am aware of that and that is why I have had to make the observations I have. Mr Osborne, is there any observation you would like to make? The CFR then said: "
If I could, your Honour. If I try to be objective, are we saying not for at least this first year should there be any movement toward that end? I feel she needs that period to acclimatise. The judge:
"Yes, but next year..."
[38]The CFR interrupted:
"That we the situation."

The judge:

"If I said that it is the aim that the arrangements as I have indicated should be in place by eighteen months' time, would you have any quarrel with that?"
[40]The CFR: "No."

The judge:

"Between between twelve and eighteen months?"
[42]The CFR:
"That's fair enough."
[43]I do think it is regrettable that the schedule subsequently prepared does not record what was achieved in these exchanges, namely a clear time frame within which the progress to equal sharing of school holidays and half-terms should be achieved.[44]I am of the clear view that it is open to Mr S to seek by agreement with the mother or her solicitors the extension of the schedule annexed to the solicitors' letter of 10th April 2002 to record the timescale for the extension to complete sharing of school holidays and half-terms. If solicitors for the mother dispute the grounds for that extension, then it is, in my judgment, open to Mr S to apply to His Honour Judge Tyzack, not by fresh process, but simply for settling the schedule indirectly referred to under paragraph 2 of the existing order. That application would be made to invoke the court's wide powers in relation to the clarification and implementation of orders already made. It would not be a fresh process involving the reopening of the issue or involving the reexercise or the fresh exercise of a judicial discretion. It would simply be an application from the foot of the transcript inviting the judge, in the absence of agreement, to improve upon a paragraph of the order which was no doubt settled within the Court Office, and which is by no means as clear as it perhaps should be.[45]I make those observations in the hope that they will operate for the benefit of E, in the sense that they will hopefully support Mr S's aim to eschew future contested litigation, and with the secondary aim that they will smooth the path towards the day when E will share her school holidays and half-terms equally between her parents.[46]I will direct that the judgment that I have given upon this application be transcribed at public expense and made available to Mr S and to the solicitors acting for E's mother, so that nobody will be in any doubt as to what transpired in this court today.

ORDER

Application for permission to appeal refused; copy of the judgment to be provided at public expense to the applicant and the respondent's solicitors. (Order not part of approved judgment)

Cited in 2 later judgments