S (a child), Re [2004] EWCA Civ 1790

Case No B4/2004/2288[2004] EWCA Civ 1790
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HALIFAX COUNTY COURT
(HER HONOUR JUDGE FINNERTY)
Venue Royal Courts of JusticeDate Wednesday, 1 December 2004
Strand
London, WC2
B E F O R E:
LORD JUSTICE THORPE
LADY JUSTICE ARDEN
LORD JUSTICE NEUBERGER
S (A CHILD)
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MS SALLY TERRIS (instructed by Messrs Armitage Sykes, Huddersfield) appeared on behalf of the Appellant
MR ROGER BICKERDYKE (instructed by Messrs Khan, Bradford B11 2AA) appeared on behalf of the Respondent
J U D G M E N T
Wednesday, 1 December 2004

LORD JUSTICE THORPE:

This

[1]is an appeal from the order of Her Honour Judge Finnerty sitting in the Halifax County Court of 15 October 2004. There have been long-running disputes between the parents over the father's contact to their six year old daughter. We have a very helpful chronology of hearings and orders prepared by Mr Bickerdyke, who represents the father. The chronology is not in dispute. Miss Terris for the mother accepts its accuracy. It shows that the proceedings have been on foot since 21 June 2002 when there was an ex parte application for contact and prohibited steps orders.[2]There has been a fair degree of judicial continuity. Judge Finnerty conducted an important hearing on 26 August 2004 when the mother's advocate suggested the appointment of a guardian for the child. That application was dismissed by Judge Finnerty. Her dismissal was not appealed and is no part of the appeal that we hear.[3]The judge on that day then heard oral evidence. During the course of her evidence the mother agreed to allow father contact with the child. On the basis of that the application for the mother's committal was adjourned for six weeks. The contact order that had been made by Judge Fricker on 5 March 2004 was reinstated and a penal notice was attached to the order. Despite the statements that the mother had made to the judge she then obstinately rejected the proper performance of the contact regime leading inevitably to an application for her committal for breach of the order.[4]That resulted in the listing on 15 October. The mother had notice of the hearing but failed to attend, and informed her solicitors that she would not comply with the contact order. It is accordingly hardly surprising that Judge Finnerty made an order committing the mother to prison for a period of seven days, but mercifully suspended on condition that she comply with the contact order by allowing contact on 30 October (a Saturday) and on every succeeding Saturday.[5]The appeal to this court coincided with further proceedings in the county court when the mother failed to comply with the contact order for 30 October. Accordingly, on 8 November Judge Finnerty directed that there should be a hearing on Friday 26 November of an application for an interim residence order in favour of the father during any period in which the mother spent in prison for breach of the order of 15 October. The judge further directed the mother's attendance on 26 November, and said that any failure to attend would result in a warrant being issue forthwith for her committal to prison for seven days in breach of the order and an interim residence order would be made in favour of the father. She said that that order was to be served personally upon the respondent mother and by post upon her solicitors.[6]In the event, on an application to this court for a stay an order was made on 25 November staying the further proceedings in the county court until determination of the appeal today.[7]Miss Terris has represented the appellant and has put her case most attractively and persuasively. Anything that could be said on behalf of this mother is to be found in the skeleton argument which Miss Terris submitted on 8 November. She says that she has seen her client in conference, that it is the first time for more than a year that the mother has had the benefit of representation by a specialist family barrister, and that Miss Terris developed concerns as to the mother's balance in the light of past psychiatric investigation.[8]My Lady during the course of Miss Terris' submissions, mooted the possibility of a process of mediation. That possibility seems not to have been previously considered, certainly not in recent times, and, given the intractable nature of the mother's position that is perhaps not surprising. The case hardly bears the hallmark of one that is suitable for reference to mediation. Miss Terris, naturally in her position, made what she could of my Lady's suggestion and confirmed that the CAFCASS officer last reporting the case did not come from the community that the parents belong to, and she has embraced the suggestion that possibly a mediator from the local Muslim community might be found.[9]We have not called on Mr Bickerdyke to respond to Miss Terris' submissions for the very simple reason that the order of the judge is proof against any criticisms contained in Miss Terris' skeleton. This was indeed a situation in which the judge had scarcely any other realistic option. I have already sketched the background. I need only add that the husband's evidence before the judge on 15 October included this account of the mother's recent behaviour when reminded that the judge had made it plain that the child was too young to decide for herself and that contact was to take place. According to the statement of the husband the mother's response was:
"'Fuck the judge. I do not give a shit about what she says.' The defendant then walked off with a grin on her face."
The mother did not file evidence denying that conversation, and Miss Terris has said today that she has no instruction to admit that those were her client's defiant words, but equally she has no instruction which would enable her to deny the statement. That was a factor that bore with the judge. She said, particularly in paragraph 1 of her brief judgment:
"I am very concerned at the depressing pattern of this mother failing to obtained Court. According to father's statement, Miss R has even taken to expressing her views of the Court in obscenities."
In all the circumstances, it seems to me manifest that the judge's discretionary disposal was well within the wide ambit open to her. Faced with such defiance the judge would have been failing in her duty had she not upheld the authority of the court. For all those reasons, I regard this appeal as hopeless and only fit for dismissal.[10]Of course in the aftermath every effort must be made for the sake of the child to transform the mother's attitude. She plainly needs support and help to bring her to a state of rationality and objectivity. It may be that the CAFCASS officer will be able to ensure that the next development will be contact and not imprisonment. It may be that there are support services to which the mother could be referred within the local mental health services. It may be that there are specialist mediation services to which the couple could be referred. All that is beyond the boundary that divides our function from that of the trial judge.[11]The dismissal of this appeal will result in the renewed listing of the issues that would have been tried on Friday last had this court not granted a brief stay. Obviously the mother has her opportunity between now and the resumed proceedings in the county court to seek help and to demonstrate that she has embarked upon a process of change that would restore the relationship between father and child. However I would unhesitatingly dismiss this appeal.

LADY JUSTICE ARDEN: I agree with everything that has fallen from my Lord, Lord Justice Thorpe. I just desire to add a few words about the interests of N. I am most concerned about the position of N and the need to find a long-term solution to the problems in this case. So far as the interests of N are concerned the previous CAFCASS report have clearly recommended that her father, Mr S, should have access to her and the judge so found that it was in N's best interests. So far as the long-term solution is concerned, with my limited knowledge of the facilities available, it seems to me that mediation between the mother and the father has the best chance of success. It would be in the mediation in which the mediator would be able to listen to the mother and to help her find solutions and to build up trust in the mother for the father having access to N. But initiative must come from the mother. I would, however, be happy to see a mediator who comes from the community from which the family come.

[13]All that said, however, the judge's order must be upheld. Respect for the rule of law is an essential element of our civil society and that necessitates obedience to the orders of the court. The judge's order must be upheld.

LORD JUSTICE NEUBERGER: I agree with both judgments. It seems to me that this was an order which was justified both in terms of enforcing respect for the orders of the court, and therefore for the rule of law in society, and also, as a last resort, to coerce the mother into complying with court orders. In my view, the judge's decision was amply justified and I, too, would dismiss this appeal. (Appeal dismissed; detailed assessment on both sides).

Cited in 2 later judgments