F (Children) , Re [2005] EWCA Civ 1571

B4/2004/1899; B4/2004/2175; B4/2004/2604B4/2005/0441; B4/2005/1402; B4/2005/1613[2005] EWCA Civ 1571
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
(HIS HONOUR JUDGE RYLAND, HIS HONOUR JUDGE WALFORD and HIS HONOUR JUDGE COMPSTON
(sitting as deputy judges of the High Court)) and
(MRS JUSTICE BLACK and MRS JUSTICE BARON)
Venue Royal Courts of JusticeDate Tuesday, 8th November 2005
Strand
London, WC2
B E F O R E:
LORD JUSTICE WALL
F (CHILDREN)
(Computer-Aided Transcript of the Palantype Notes of
Smith Bernal Wordwave Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
MR BOGLE (instructed by Messrs Creighton & Partners, London) appeared on behalf of the Applicant Father
The Respondent did not appear and was not represented
J U D G M E N T
Between
Applicant FatherApplicant

LORD JUSTICE WALL:

[1]These long-running proceedings between Mr LTF and his former wife, LMF, now come to this court in the shape of six applications for permission to appeal various orders of the court. Fortunately today Mr F has had the advantage of representation by Mr Bogle of counsel, and he has been of the greatest possible assistance to me in feeling my way through what is a very complex and in many ways unhappy case. Crucial to it are the four children of the marriage. They are respectively three girls, aged respectively now 14, 12 and ten, and one son, L, born in March 1999 so he is now six.[2]Effectively I have to deal with two aspects of the family litigation. The first relates to the children and the second relates to the former matrimonial home and financial issues between the parties. They are, as so often happens, very closely linked because the former matrimonial home is a one-bedroom property, purchased from the local authority, in which currently Mrs F and the four children are all living. Everyone agrees that that property will have to be sold. The question is: to whom and for how much?[3]Mrs F's proposal, which found favour before the District Judge, was that the property should be sold back to the local authority from whom it had been originally purchased and that, although this would achieve a much smaller figure than that which would be achieved if the property was sold in the open market, it would have the consequence that she and the children would be rehoused by the local authority. Mrs F, who suffers from a number of health difficulties, did not feel able to cope with home ownership. She did not have the funds to pay a mortgage, and therefore she was anxious to be rehoused by the local authority in more spacious accommodation.[4]Mr F's position, on the other hand, was that the property should be sold in the open market. He put forward a number of different schemes which, on his case, would have enabled both parties to be rehoused. That is therefore one limb, and I will explain in a moment where that limb has reached.[5]The second limb relates to the question of the residence of the children. On 24th November 2004 His Honour Judge Walford, sitting in this building, made a residence order in relation to all four children favour of their mother. He dismissed Mr F's application for a shared residence order, and he ordered only indirect contact to the children. He further made an order under section 91(14) of the Children Act 1989 preventing Mr F from making any applications to the court without permission for a period of two years.[6]That is the principal order in relation to the children which Mr F seeks to attack. He also attacks two previous orders, one made by Judge Ryland on 16th August 2004 and one made by Judge Compston on 30th September 2004. The latter was purely for directions and Mr Bogle realistically accepts that there is no point in pursuing that application, which I now formally dismiss.[7]As far as Judge Ryland's order is concerned, the argument is that the judge refused to make orders for disclosure, saying in relation to documents I think largely deriving from the local authority and from the schools that they were not susceptible to disclosure as a class, whereas he did order disclosure of certain records from the police.[8]There may be a nice argument about whether Judge Ryland was right or wrong in categorising documents in this way, but the simple fact of the matter is that his order has been overtaken by the hearing which took place on 24th November 2004 and it cannot be said that Judge Walford's order in any way relies upon or is dependent upon documentation, certainly not documentation from the local authority or school. Therefore I see no purpose in granting permission in relation to Judge Ryland's order, and that application will likewise be refused.[9]This leads me to the main order made by Judge Walford on 24th November 2004. The judge gave a lengthy and careful judgment. The case took several days in front of him. He described it as extraordinarily difficult. One of the factors which in his mind made it difficult was what he described as the atmosphere of anger and resentment "which has crackled across the courtroom". He commented:
"At times I have had to tread an emotional tightrope; at times, particularly in the early stages of the case, when Father was cross-examining Mother and I sought to move things along, Father accused me of showing bias against him by doing do, and on one occasion, after I had allowed the Father a certain amount of lee-way, Mother's counsel accused me of favouring Father."
It had not therefore been an easy case for the judge to try.[10]The judge had the advantage of a report from a child and adolescent psychiatrist, Dr Bailly, and also, because of the nature of the proceedings and the length they had already gone on, the children had the benefit of a guardian, Ms Warren. Ms Warren produced two reports. It was clear that the guardian and Dr Bailly were of the same view in relation to the question of residence and contact.[11]I do not think it helpful or appropriate to trawl through either the reports or the judgment pointing out precisely where the judge made findings in relation to either parent. I think it sufficient for me to summarise the position in the following way. It was clear that the three elder children were firm in the view that they did not wish to see their father. There was, of course, an issue before the judge as to why that was. Mr F says that the responsibility lay firmly with his former wife: she retorted that it was his authoritarian attitude and behaviour towards them which had caused it.[12]The upshot, however, from Dr Bailly's point of view, particularly in relation to the older girls, was that the consequence of requiring the children to have contact with their father would send a strong message to them that their opinion did not count and that the professionals had not listened to them. He was of the view that that could seriously undermine their trust in the system and their co-operation within it. Dr Bailly did not, however, think that the children needed therapeutic help. The help they needed was practical: namely a bigger home; the need to see solid improvement in the health of their mother; the need to be given time and space away from their father, and not to feel threatened by his demands upon them.[13]Dr Bailly was of the view that Mr F himself might benefit from psychotherapeutic input. But having interviewed him, Dr Bailly concluded that only a very experienced psychotherapist with a specialisation in personality disorders would be able to make any progress with him, although a report by an adult psychiatrist might be useful.[14]Dr Bailly took the view that the children, faced with a clear and powerful hostility between their parents, had coped remarkably well. They did not appear to him to have been damaged by events. What they needed, he said, was peace and stability. They needed to see their mother given help and treatment, and they needed to see her health improving in a definitive way. They needed to move into bigger accommodation and the conflict between their parents to stop. He also took the view that they needed their father to change enough to start to listen to them.[15]The judge, as I mentioned in the course of argument this morning, had the inestimable advantage of hearing both the mother and the father in the witness box, and I think his view of the parents very largely reflected that of the two expert witnesses whom he heard. He was very conscious of the mother's ill health. She had had a thyroid condition since about 1998. This involved mood swings, irritability, sometimes unreasonable behaviour, and sometimes her condition would be exacerbated by stress. The father could be charming, but there was another side to his character. He was intelligent, obviously articulate and hard-working. He was highly focused. But, his other side affected his relationships with those over whom he had dominion (and relevant to this case, particularly his former wife and children). To them the judge found his attitude could be aggressive, belligerent and indeed intimidating. There was, the judge found, no way that Mr F would be able to behave in order to relieve the stress on his former wife. To the contrary, he said he was determined to increase the stress on her, and he was, in any event, the stronger personality.[16]The judge found it difficult to make findings of fact given the length of time the case had gone on, and he did not do so, save to say that there had been clearly a volatile relationship between the parents, with occasional violence which the father had used towards the mother. He also thought it probable, that latterly, when she was ill, the mother had used violence towards the father and hit him. But the judge found that Mr F had subjected his wife to a form of emotional abuse and undermined her self-confidence. The result of that was, of course, a great difficulty in relation to the question of contact.[17]Having made his assessment of the parents and having carefully considered the two reports that were before him and the oral evidence given in particular by Dr Bailly, the judge was satisfied that this was not a case where the mother was implacably hostile to contact. The failure of contact had been largely due to the father's attitude, both to her and in particular to the three oldest children. This of course left a difficulty in relation to the youngest child, who was also the only boy, because it was clear, I think, that L enjoyed a better relationship with his father than did the three girls. But the judge was quite plain, having listened to both the guardian and Dr Bailly, that to offer contact between L and his father alone would put L in a difficult position because of the tensions it could create with his siblings. One of the most stable influences in the child's life had been the sibling group. It would accordingly be damaging because, as the doctor put it, it would deprive him of one of his main support systems. In those circumstances, the doctor felt it was difficult for L to benefit from contact at this stage and that was a conclusion that the judge accepted.[18]The judge was also very conscious that these were children of a mixed race marriage, and that their cultural identity needed to be both retained and respected. He was, however, satisfied that the children's identity had been sufficiently well established and that it could be preserved by indirect contact, as well as by the family's established social links.[19]The judge then went on to deal with section 91(14) of the Children Act and said that it seemed to him what was most needed with the family and with the children was "a breathing space". He pointed to the number of applications there had been before the court, and he came to the view that, if there was to be no direct contact, there should be indirect contact and that further applications under the Children Act should be prevented for a specified time. He identified that as a period of two years.[20]In his helpful skeleton submission Mr Bogle makes a number of attacks on the judgment, and in particular on the evidence of Dr Bailly. Mr Bogle is particularly critical of the manner in which the doctor treated L, given L's relationship with his father, and that the judge was effectively preventing L having contact by reason of the interests of the other children. Mr Bogle makes a number of detailed criticisms of this aspect, and indeed other aspects of the report of Dr Bailly, not least that L was susceptible to the influence of his mother and may well, when making certain observations about contact, have been repeating what she had said to him.[21]Equally, Mr Bogle criticised the concept of indirect contact with a child of L's age, and submitted that the judge's order effectively was cutting L off from his father inappropriately and unnecessarily.[22]The reality of this case, I think, is reasonably clear. The three girls, for whatever reason, do not wish to have contact with their father. L, I think, if he were on his own would be in a different category. But there was no realistic prospect of Mr F having residence of the children, or even shared residence in the circumstances of this case, given that he had not seen the children for some time before the hearing before the judge. The judge was therefore, in my view, plainly right to make a residence order in favour of the mother. Given the advice he received from Dr Bailly and from the guardian, and given his own observations of the parties, and in particular the expression of views from the three girls, it seems to me that his order of indirect contact only is one which is well within the exercise of his discretion and not one with which this court could properly interfere were I allow the matter to go to the full court.[23]In those circumstances, it seems to me that, as far as those aspects of the children's orders are concerned, there is no reasonable prospect of success on a substantive appeal and that this court should ratify the order of the judge and recognise the reality.[24]I am more concerned about the two-year ban under section 91(14). That, of course, has really now lasted 12 months since the date of the judge's order. The father had not seen the children for some considerable time before that. Although there had been stressful litigation beforehand, it was partly wrapped up also with the question of finance and the children's accommodation, which is manifestly unsatisfactory. I certainly think it may be arguable that by imposing a two-year ban the judge was straying outside the ambit of a proper discretion. In relation to that aspect of the case, therefore, although it is only one part, I am minded to say that the application for permission to appeal against the two-year section 91(14) order should be listed on notice to the mother and the guardian, with appeal to follow if permission is granted.[25]I do, however, propose, for reasons which I am about to explain, to put a further limit on that application for permission, because it seems to me that I need to consider the financial aspects of the case and how they are to proceed. What I do not want is to have a succession of applications for permission to this court on different aspects of the case, which will increase the costs as well as the stress and may well add to the delay. So in order to explain what I am going to do, I propose to look at the financial position quite quickly and see where it has reached.[26]I have already explained that the former matrimonial home is a one-bedroom council flat. The applications for ancillary relief in relation to that property, and other matters, came before District Judge Black, sitting in the Principal Registry, as long ago as 10th June 2003. The District Judge heard full argument. She came to the conclusion that, although there was likely to be a financial loss if the property was sold back to the council, that was nonetheless the appropriate course. So she directed that the property should be transferred into the name of Mrs F solely, so that she would be in a position to sell it back to the local authority and for her to become then a council tenant.[27]That order made on 10th June 2003 was the subject of an appeal to Black J, sitting in this building, in February 2005. Quite why the case took so long to reach the judge I do not know, but it did. The judge upheld District Judge Black's order and dismissed Mr F's appeal. I only have a note of her judgment at the moment, and that note concludes by saying:
"Third option is to sell and he would discharge the debts... shared ownership scheme. The wife would be dependent on the husband if he buys or if she buys as an owner occupier but... necessarily available because she is not working... all variations don't change therefore. Odd and wasteful as it seems, it is in fact a proper exercise of discretion. The Appeal must therefore fail."
[28]When the District Judge had heard the matter back in June 2003, she adjourned the applications for lump sum and periodical payments to another date (meant to be 7th November) and ordered that both parties were to provide the other with a schedule of all debts, whether in their sole name or held jointly with others, and so on; the idea being plainly to see what money was owed so it could be discharged from the proceeds of sale. Both parties were also to provide updating statements, providing details of income, outgoings liabilities and so on.[29]Thus when Black J dismissed the appeal, the case had to return to the District Judge to decide what should happen to the proceeds. Again, I say this simply as a matter of generality without having investigated the matter, it might well be thought that if Mrs F's objective was to return to the rented council sector and she had little need of capital for that purpose, and if the sale to the council was likely to result in a substantial loss when compared to a sale on the open market, it might well have been thought that Mr F would be entitled to a greater proportion of the proceeds of sale, if not the entire proceeds of sale, given that he was losing out on the sale to the council.[30]I have not read what I am told is available as a judgment of the Deputy District Judge, but unfortunately the matter did not go back to District Judge Black. I went to a Deputy District Judge, Frances Judd. Unfortunately Mr F was not there and he was not legally represented. Dr Pelling, who is well known to the court, applied for a right of audience in relation to the application, but the Deputy District Judge refused it. She also refused an application for an adjournment. Her direction was that the property should be sold under the buy-back scheme and the proceeds of sale should be applied to pay a series of specified debts. At the end of that, in paragraph 4, she imposed a clean break and ordered Mr F to pay Mrs F's costs.[31]Mr F is appealing against that order. I have not seen the documents, but I anticipate that it is very much along the lines I have just indicated, namely that if this property is to be sold back to the council, then it is unfair for Mrs F to get what the District Judge gave her, namely 74% of the proceeds after the debts have been paid, whereas he only got 26%. That is, as I understand it, one of the bases of the appeal, although it may well be that Mr F is still advancing the argument that the property should not be sold back to the council.[32]Where then does this leave the application for permission to appeal against Black J's order? In discussion with Mr Bogle today, I suggested that there was no point in keeping the application for permission to appeal against Black J's order alive, given that his client would have to go back to the High Court judge to appeal the order of the Deputy District Judge, and that an appeal in relation to the substance of the finances could only reach this court by way of appeal from whichever judge hears the appeal from Deputy District Judge Judd. The answer to that from Mr Bogle was that, as presently advised, District Judge Black and Black J, and indeed Deputy District Judge Judd, had all proceeded on the basis that it was appropriate to sell the property back to the council, and whichever High Court judge hears the appeal may well feel inhibited in that respect and obliged to follow the same line. Therefore, Mr Bogle argued, it may be that Mr F will be prejudiced if the application for permission to appeal against Black J's order is discharged or dismissed today.[33]I see the force of that point. In my judgment, it is absolutely necessary that any appeal which Mr F has against the order of the Deputy District Judge should be heard fully on its merits by the High Court judge, and if Mr F is dissatisfied with the result of that appeal then any application for permission to appeal to this court which follows should be likewise dealt with fully on its merits.[34]In those circumstances, what I propose to do is this. I propose to adjourn the application for permission to appeal the order of Black J made on 18th February 2005 generally, with liberty to restore. I also propose to encourage the District Judge who is to hear the directions application tomorrow in the appeal to expedite it to the best of his or her ability, and certainly any application for expedition made by the parties would have my wholesale support. I also propose to direct that any application for permission by Mr F prospectively to appeal against the outcome of the appeal from the order of Deputy District Judge Judd should be referred to me immediately it is issued on the papers for further directions. Finally, I propose to direct that the application for permission to appeal under section 91(14) should not be listed until such time as the outcome of the appeal from Deputy District Judge Judd's order is known. So that, if possible and if both are to proceed together, they will be heard together in one hearing, rather than in two.[35]That is a slightly complex order, but I hope my thinking is clear. It may be, and I hope it may be the case, that the outcome of the appeal from Deputy District Judge Judd's order will be satisfactory to Mr F. I suspect it is unlikely, but I hope it may be. If it is, there will be no question of any further appeal to this court. But if he is dissatisfied with it and wishes to seek permission to appeal it, although it will be a second appeal and not altogether easy for him to launch, it plainly should be heard together with the application for permission to appeal against the order made by Black J, so that this court will have before it the full range of options open to it, if it feels it appropriate to exercise them. I have to say, again prospectively, that such an order as is proposed and indeed has been made by the District Judge and Deputy District Judge are highly unusual in my experience. It may well be that Mr F has a point of some importance if he seeks to argue that a property should not be sold at such a gross undervaluation for the purposes of ensuring rehousing for his former wife and children.[36]But be that as it may, the summary of my orders therefore is this. As far as the section 91(14) order is concerned, the application for permission to appeal will be listed on notice to the mother and to the guardian, with appeal to follow if permission is granted, but that application will not be listed until such time as the outcome of the prospective appeal against Deputy District Judge Judd's order is known. I will also direct, as I indicated, that I will adjourn the application for permission to appeal from Black J generally with liberty to restore, and I will direct that any application for permission to appeal the outcome of the forthcoming hearing in relation to Mr F's appeal from the order made by Deputy District Judge Judd will be referred immediately to me on the papers for further directions. That is, I think, as far as I can take it today. If my intentions are not entirely clear, I hope they will be clarified with the associate.

ORDER

As far as the application for permission to appeal the section 91(14) order, the application for permission to appeal will be listed on notice to the mother and to the guardian, with appeal to follow if permission is granted, but that application will not be listed until such time as the outcome of the prospective appeal against Deputy District Judge Judd's order is known; it is also directed that the application for permission to appeal from Black J is adjourned generally with liberty to restore; and any application for permission to appeal the outcome of the forthcoming hearing in relation to Mr F's appeal from the order made by Deputy District Judge Judd will be referred immediately to Lord Justice Wall on the papers for further directions; it is directed that a transcript of Black J's judgment and a copy of this judgment today be provided at public expense to both parties. (Order not part of approved judgment) ______________________________