C (Children), Re [2005] EWCA Civ 713

Case No B4/2005/0602[2005] EWCA Civ 713
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM KINGSTON UPON THAMES COUNTY COURT
(HER HONOUR JUDGE WILLIAMS)
Venue Royal Courts of JusticeDate Tuesday, 24th May 2005
Strand
London, WC2
B E F O R E:
LORD JUSTICE WARD
IN THE MATTER OF C (CHILDREN)
(Computer-Aided Transcript of the Stenograph Notes of
Smith Bernal Wordwave Limited
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The Applicant appeared In Person
The Respondent did not appear and was not represented
J U D G M E N T

LORD JUSTICE WARD:

[1]This is an application bought by the father of two young girls, C, who is ten and a half, and M, who will soon be 8, for permission to appeal against an order made by HHJ Williams in the Kingston upon Thames county court on 4th March 2005. That order contains a recital which, though expressed to be with the father's agreement, is a recital he fears is not working as it was intended to work.[2]The agreement provided that the contact is to enable him to spend time with the children and that he will not leave them alone with his partner or anyone else for longer than is necessary for any proper reason. One of his concerns about that is that there are two other half siblings of the two with whom I am concerned, namely J, aged 15, and C, aged 13, the children of his partner, and he says, and I am bound to say I think with some force, that if contact is to work naturally and effectively, it should work in as natural a family setting as it is possible to create in the limited time that contact takes place. A family life puts demands upon parents sometimes to be in four places at the same time, with four children whose interests have to be balanced and catered for.[3]He does not say it, and this is entirely my comment, but it strikes me as a little ironic to say the least that father should be under this kind of restriction when he tells me -- and for this purpose I must accept what he says, though it may be disputed -- that there are times when he should be having contact with the children that the children seem to be spending, or M at least seems to be spending a lot of time with a Mr and Mrs Driver-Smith. There is an irony in that situation.[4]The second recital provided that the parties would aim to establish flexible arrangements for contact which reflect the wishes of the children and fit in with their social and sporting engagements and activities. All of that is good common sense. All of that can be accommodated by courteous dealing between the parents, sensitively recognising the childrens' needs. But if it is a recital which excessively intrudes upon the contact that has been ordered, then it may need to be reconsidered.[5]I say firstly -- although it is not actually incorporated in the form of the order itself, but that is a technical matter of no importance -- that the order made was firstly that the father's application for assessment of M by a psychiatrist was refused. Contact was then ordered in accordance with a schedule:
"Provided always that M shall not be forced to go with her father against her wishes."
[6]That schedule provides for staying contact over the weekends, for visiting contact on Wednesdays, and for holiday contact, so that, for example, in the summer -- and as the order is expressed, the summer 2004, but I assume that to include 2005 -- is that there are to be two separate weeks, one near the beginning and one near the end of the school holiday, plus further dates to be agreed if possible, up to one further week depending on the wishes of the children.[7]Father's complaint to me is that the vagueness of that order and its lack of definition and the heavy emphasis on flexibility, and bowing, I do not wish to use the word kowtowing, but bowing to M's wishes, makes it practically impossible for him to arrange a proper summer contact. For example, he tells me that he is having difficulties in fixing a holiday for the family, and by the family that includes C. It also includes M, but if the family are to go away it has also to include J and C. He finds that there is a lack of co-operation from the respondent, the mother of the children, to agreeing a precise date when holiday plans can be made and bookings can be taken up.[8]Father's other, and primary, complaint is that, despite that order made in March, M has not come on a single contact visit since the order was made, and indeed has not come to stay with him, as orders of the court have provided she should, since about Christmas of 2004, which is now 18 months ago. This is not a father who wishes to drag his daughter kicking and screaming to the motor car. He is a father who seems to me, at least, to be anxious to be co-operative, but it surely must be accepted that something has gone wrong in the dynamics of this family. M had been having satisfactory contact for many years, so many years that I would have thought the mother's excuse for M's unhappiness to visit father, namely a lack of bonding, wears a bit thin. This child knows who her father is, and that attachment may be weak, but it hardly justifies this sort of resistance without a good and proper explanation for it.[9]When the judge gave her judgment, she stated that there were three possible ways forward. At page 27 of the transcript she says:
"1. The first is for father to take on board Mother's proposals and win M over and regain her trust by so doing. "2. The second is for there to be a family mediation which includes the children but this could only happen if all 4 people concerned consented to it. "3. Thirdly, I have considered the possibility of putting in place a Family Assistance Order for a period of six months, to Cafcass if they will agree, to try and foster contact between M and her father and give M some confidence that she will not be forced and that she will be returned to her mother at an appropriate time."
[10]The father did not agree to that family assistance order. It may be that when the matter goes back he would reflect again. Unfortunately, the mother would not agree to family mediation. Now, it seems to me that where there is an impasse in this family dynamic, and one little girl goes willingly and happily, and the other little girl does not, then what this family needs more than court intervention is proper professional help to investigate why there is that stumbling block, and to assist in overcoming it. The judge's first option may not have worked. She has built in a review on 4th July, and it seems to me that the best service that this court can do is to refuse the application for permission to appeal, and to allow Judge Williams to reconsider the matter on 4th July. How she will deal with it must, of course, be a matter entirely for her. She must give due consideration, as I have no doubt that she will, to the options that she spelt out in her judgment of March.[11]Mediation is a process which does require co-operation, but it is, I would have thought, the most fruitful way forward, because option 3 of the family assistance order is an option which can work, but has more limited use in that Cafcass cannot really control, they can only befriend and advise, and I would have thought that the kind of advice needed is longer term advice of a professional nature.[12]The other matter for the judge to consider is whether Cafcass has to be involved in order to report on the problems in this case, and to express a view as to the extent to which Cafcass believe that they can assist the family to move forward under the auspices of a family assistance order, or whether they can suggest to the parents a suitable mediation or family therapy service, of which I am told there are several in the vicinity. Thought needs to be given to planning the school holidays. Thought needs to be given to arranging for the sharing of Christmas in a conventional and standard way. Thought may need to be given to half terms and easter school holidays, for which, unless I have missed it, there is no provision.[13]All in all, it seems to me appropriate for the county court to look at this case again, and it is better that the court does so than that I give permission, leave this matter waiting for weeks for the Court of Appeal to deal with it, only to dismiss it, or to send it back for re-hearing. Better it is, in my judgment, that the appointment of 4th July be taken up, and that Judge Williams, acting robustly and in a interventionist way, takes grip of the case and sees to what extent these two girls can enjoy their father's society, as it is everybody's wish that they should. That is the mother's express wish: it is now time for that wish to be put into effective action.[14]So I am afraid I dismiss this application, but a transcript of this judgment can be provided to the father and to the mother through her solicitors, and a copy will inevitably go to the court so that the court may be aware of my views. The weight to be given to them will be a matter for the county court judge.

Order

Application for permission to appeal is dismissed.