H (A Child) [2006] EWCA Civ 1163

Case No B4/2006/1259[2006] EWCA Civ 1163
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SHEFFIELD COUNTY COURT
(HIS HONOUR JUDGE PETER JONES)
Venue Royal Courts of JusticeDate Thursday, 19 th July 2006
Strand
London, WC2
B E F O R E:
LORD JUSTICE THORPE
LORD JUSTICE LATHAM
LORD JUSTICE WALL
IN THE CASE OF H (A CHILD)
(DAR Transcript of
Smith Bernal Wordwave Limited
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MS TERRIS (instructed by Messrs Howells, 15-17 Bridge Street, SHEFFIELD, S3 8NL) appeared on behalf of the Appellant.
MR MASON (instructed by Messrs Foys, 102 Bridge Street, WORKSOP, S80 1HZ) appeared on behalf of the Respondent.
MS BIRK (instructed by Messrs Jackson Quinn, 7 Grove Street, RETFORD, Nottinghamshire, DN22 6NN) appeared on behalf of the Guardian.
J U D G M E N T

LORD JUSTICE WALL:

[1]AH is the father of A, born on 18 April 1996, and so 10 years old. Mr H, who is 32, was married to A’s mother, now LB, in July 1995. He thus has parental responsibility for A. Mrs B is 29. The marriage sadly did not endure and the parties separated in 1997. A is thus their only child.[2]Since their divorce in 1999, both Mr and Mrs H, as they then were, have remarried. Mrs H married SB in 2000 and they have three children, aged six, four and two. Mr H remarried in November 2002 and he has two children by this marriage, who are now also four and two. Since his parent’s separation, A has lived with his mother and has had varying degrees of contact with his father. There has unfortunately been a long history of court proceedings, which began in 1998 and, as the judge pointed out, have effectively been ongoing since that time.[3]The application before this court is by Mr H for permission to appeal against the refusal by His Honour Judge Jones sitting in the Sheffield County Court on 22 May 2006 to make a committal order against Mrs B relating to her admitted breach of a contact order made by HHJ Barber, sitting in the same court on 3 May 2006. As the judge recorded it, this order provided for direct contact between A and his father between 4pm and 8pm on Friday, 5 May and every Friday thereafter. The mother was directed to deliver A to the father’s home at 4.00pm. The court form also referred to an order made, relating to 28 April. Contact did not take place then, but at that stage no penal order had been attached to the previous order of 27 April.[4]When the application was referred to me on paper, the case advanced by Miss Sally Terris on Mr H’s behalf was that Mr H did not require permission from this court to appeal the judge’s order on the ground that, pursuant to CPR rule 52.3(1)(a)(i), permission was not required to appeal against a committal order. I queried this and invited the parties to come prepared to argue the point. HHJ Jones had been of the view that permission was required and had it been sought from him, he would have refused it. It is now common ground that he was right. This case, however, offers a useful opportunity to clarify the position, particularly in the light of the recent decision in this court in Wood v Collins.[5]The exemption provided by CPR 52.3(1) relates to a committal order. In the instant case, the judge did not make a committal order. To the contrary, he refused to make such an order. A refusal to make a committal order is not, accordingly, in my judgment a committal order and permission to appeal against it is required; see Barnet London Borough Council v Hurst [2002] 4 All ER 456 and the textbook Rayden & Jackson on Divorce and Family Matters 18th Edition [2005] Vol 1(2) para 51.121.[6]In Wood v Collins [2006] EWCA Civ 743 this court decided that an applicant for a committal order did not require permission to appeal against what might be described as a “lenient sentence” imposed on a contemnor. Such an order was a committal order and either party to the proceedings could appeal against it without permission.[7]However in Wood v Collins Gage LJ, who gave the leading judgment, appeared to accept that an applicant for a committal order needed permission to appeal when the judge refused to make such an order; see paragraph 10 of the judgment. In my judgment, that is the correct position for the reasons I have already stated. In this court, Miss Terris helpfully filed an addendum note in which, after a review of the authorities she accepted that on a plain construction of CPR 52.3(1), permission to appeal is required against the refusal by a judge to make a committal order. We therefore heard the application as an application for permission to appeal.[8]HHJ Jones, who heard the committal application on 18 May 2006, had not had previous conduct of the proceedings. The case was, in fact, reserved to either HHJ Barber or HHJ Carr QC, by order of the former, made on 27 June 2005. The orders leading up to the committal had all been made by HHJ Barber, who not available to take the committal hearing on 18 May.[9]In her appellant’s notice and skeleton argument, Miss Terris criticises HHJ Jones for not paying sufficient or any regard to the need for judicial continuity, in what she properly described as a long running, complex and entrenched case. She did not develop those criticisms in her oral argument, and in my judgment was wise not to do so. Not only was no objection taken to HHJ Jones hearing the committal summons, but the judge himself in the discussion which took place at the end of the oral hearing and before he gave judgment refers to the question of judicial continuity, when attempting to see a way forward in the case. He said: “My concern is this, some consideration needs to be given. There needs to be judicial continuity in this matter. “[counsel] “Yes I couldn’t agree more” “[the judge] And I am conscious that such judicial continuity as there has been has been with HHJ Barber, who is the designated family judge of this court so I no way wish to cut across his involvement in this matter and I will hear whatever the parties say. Having said that, the indication that I have is HHJ Barber won’t be available for about two weeks ...” whereas he would not be available himself after that period.[10]How then had the application for committal come about? I start this process by going, (and I think it is not necessary to go further back in time for present purposes) to an order made by consent on 31 March 2006. On this occasion residence of A was given to his mother, and contact with his father to include holiday contact starting from May 2006. The guardian recommended that the order by drafted as a final order. Unfortunately, as is common with the history of the case, matters did not run smoothly and the matter came back before the judge on 13 April, when he adjourned it to 20 April.[11]On 20 April, Mrs B did not attend, despite having been served with notice of the hearing. The consequence was that Mr H applied for a penal notice. He was not supported in this application by A’s guardian, who had been appointed at a much earlier stage in the proceedings. The judge, however, made a fresh order that there should be direct contact between the father and A, and that the former was to collect A from home at 3.30pm and return him at 8.00pm. That contact did not take place.[12]As a result, on 27 April the matter came back before the judge. Again the mother did not attend, despite having had notice of the hearing. Once again the guardian did not support the grant of a penal notice but supported a change in the arrangements for handover. An order was made that the mother deliver the child to the father’s home at 4.00pm and father was to return him at 8.00pm. Once again, this contact did not take place.[13]Thus it was on 3 May that HHJ Barber made the order which I have already recited. Once again, the guardian opposed the imposition of a penal notice but the judge imposed it. The contact which the judge ordered on that day again did not take place and the father issued his application for committal on 8 May. It was, therefore that application which came before the judge.[14]The judge dealt with the matter carefully and made it clear that although he had heard the matter on 18 May he did not wish to give an immediate judgment, in order to enable the parties to have time to take stock. He approached the matter by looking carefully at the history. He made it clear, as his judgment says in terms, that the mother in his view had given the judge very little choice but to attach a penal notice to the order on 3 May. She had simply not cooperated with the proceedings. The child, A, had not been taken to contact and therefore the judge commented that it was unsurprising that the father should issue his application to commit. The judge went on, however, to say this:
“Thankfully, albeit belatedly, she has now changed her approach; the mother attended at the hearing, she was represented, she filed a statement setting out her position and she is cooperating with the court proceedings. Had she done this on 20th April or at the subsequent two hearings, it might have been possible to avoid the need for this hearing and this application.”
[15]The judge then went on to recall the mother’s explanation for the failure of contact and also heard from the guardian in the same regard. The guardian’s was view that it was not appropriate for the judge to impose a suspended sentence of imprisonment, as the father sought, and it was not appropriate for the mother to be sent to prison. The guardian’s view was that this would disastrous for the boy and his relationship with his father. The guardian’s view was that to send the mother to prison would not lead to a change, as far as contact was concerned, and certainly to send the mother to prison would not automatically lead to a change of residence for A, because Mr B was available to care for him with other members of the family. In the guardian’s view, A would blame the father for his mother’s imprisonment, whatever he was told about it and in whatever circumstances. The guardian told the judge that it was the responsibility of both parents to make contact work. He said that both must give positive encouragement to A; it was for the father to encourage A to feel he can trust him and, secondly, that A needed to feel the mother’s exhortations to go to contact were genuine.[16]The judge of course had the inestimable advantage of seeing and hearing Mrs B in the witness box and his conclusion in relation to that was in these terms:
“I don’t find that the mother is now openly defiant of the court. If I felt she was deliberately flouting the orders of the court and was fully able to exercise control and to facilitate contact if she chose, I would give serious consideration to a committal order so as to enforce a respect for court orders and also to coerce her into compliance. However it seems to me that in this case a committal order would not bring about compliance but rather would damage, perhaps irreversibly, the relationship between A and the father.”

The judge then went on to say this about the mother:

“The mother did not present as aggressive or antagonistic, she was not challenging the court. I find she is unable to encourage A sufficiently so as to persuade him to go to contact; that is [the guardian’s] view as well. It is not a new problem of course, it is referred to by Miss Pecherek [that is the consultant psychologist] in her report [in 2005]. The mother presented in court as rather flat and resigned. She felt that to tell A that, if he didn’t go to contact, then she would go to prison would amount to emotional blackmail. I believe she was genuinely distressed at that point in her evidence, I am satisfied that she was looking at the prospect from A’s point of view. [The guardian] is also of the opinion, that, even if A went under such compulsion, it is hardly a recipe for good quality contact or for the development of a healthy relationship with the father.”
[18]The judge therefore came to the clear view that a committal order and a suspended order of imprisonment were not called for. He said this, and in my judgment was right to say it:
“The court should not impose a suspended sentence of imprisonment unless it is prepared to follow it through with an immediate custodial sentence in the event of a breach of the terms of suspension. A prison sentence for the mother would, in my view, make the situation worse not better. But what can be done to improve the situation? How can the mother be empowered to ensure that A enjoys contact with his father? [The guardian] seems, as I’ve said, to be at something of a loss and has not so far been able to provide the court with assistance as to the future. [The guardian] is convinced that A truly wishes to see his father. If that is the case it has to be said that A in his present pronouncements is making a good job of masking it. I am clear then that this is not a case for a committal order. It is not justified or appropriate at this time. However, the case simply cannot be left there, as I made clear to the mother. As I told her, the issue will not go away and it seems to me that a major effort is required from everyone involved in this case to be administered and overseen by the court.”
[19]In my judgment, the judge was fully entitled to come to those views. He had seen the mother. He had clearly mastered the case. He had reserved judgment and before he gave that judgment at the end of the oral hearing, after he had heard evidence for the mother and from the guardian, he invited the parties to consider the way forward, giving a plain indication at that stage that he was not minded to make a committal order. Thus it was that his judgment was delivered a few days later on 22 May and at the conclusion of his judgment, he invited the proposals of the parties for the future.[20]Unfortunately, Miss Terris, informed the judge on instructions that Mr H intended to appeal to this court. That stopped any such discussion in its tracks. This, unsurprisingly, led the other parties to take the view that there was no point in further discussion. The judge thereupon adjourned to 7 June, once again reserved to himself, when unfortunately the same thing happened. Accordingly, no productive discussions could take place, because of the impending appeal.[21]Pausing at this point to dispose of the application for permission, it seems to me, as I have already just indicated, that not only was HHJ Jones entitled to decide the case as he did on the evidence, but that there was ample material upon which he could properly do so. Indeed, in my judgment the course he adopted was correct, particularly in the light of the evidence from the guardian that either a suspended committal order or an order actually sending Mrs B to prison would be devastating to the child and seriously harmful to his relationship with his father. Furthermore, he was entitled to find, having seen and heard Mrs B, that she was not openly defiant of the court and that a committal order would not bring about compliance but possibly irreversible damage.[22]I can therefore, speaking for myself, see no flaw in the judge’s approach. It was one he was entitled to adopt, and in my view an appeal would have no prospect of success.[23]I would therefore refuse permission to appeal.[24]That of course is sufficient to dispose of the application for permission. However, inevitably in a case involving a young child, where a consent order as to contact has been made in the very recent past, this court was naturally concerned to inquire as to whether there was a way forward. I fully understand Mr H’s frustration at the lack of progress over the years, however much his own conduct may from time to time have contributed to it. But a way forward has to be found.[25]Fortunately, due to the presence in court this morning of the guardian, a way forward has been proposed. We have been shown a very helpful curriculum vitae emanating from Mrs Deirdre Offord, and an organisation called Carter Brown Associates, who conduct an exercise called Transformative Assessment. Despite its somewhat grand name, it appears from reading the brief document which accompanies it that this is a method of working with parents, specifically aimed at those with enduring disputes, in the area of making workable contact arrangements for their children. It deals with the anger, conflict, distrust, contempt and so on which each parent feels for the other, with polarised views, loss of child focus and the use of children to express anger. Using its own techniques, it attempts to repair relationships and ensure ongoing contact.[26]Like the guardian, from my reading of the papers I am of the view that there is no good reason why this child should not enjoy a happy relationship with his father and no good reason why contact should not be restored. The judge, in a very percipient remark, pointed out that the parents would need expert help to facilitate that process, I agree, and I take the view that this sort of way forward is plainly called for.[27]Fortunately, during the short adjournment it has proved possible for counsel to reach an agreement to save this matter going back to the judge for further directions and I would like to congratulate them, and indeed Mr H, who is here, for putting his agreement to it. The order which we are being asked to make by consent is that there should be leave to release all the relevant papers in the case to Mrs Deirdre Offord of Carter Brown Associates, that a letter of joint instructions should be agreed between all the parties within seven days of the order and that Mrs Offord should prepare and file a report on the Transformative Assessment by 4.00pm on 18 October. The costs of the report are to borne equally by all the parties, who are fortunately publicly funded, and the matter is to be listed for directions at the Sheffield County Court in the week commencing 30 October for either Barber or HHJ Jones, with an estimate of one hour.[28]As I say, I commend that agreement. It seems to me, and I hope that it will be the case, that if Miss Offord is able to broker sensible contact between A and his father in the meantime, that should take place without further reference to the court, in the hope that it is agreed. But anyway Miss Offord will have, with whomever she uses to assist her, a free hand to attempt to repair the damage which has undoubtedly occurred.[29]The only point I would wish to add in relation to this is that I do urge both parents, and I appreciate Mrs B is not here, to go into this activity with an open mind and with an intention to make it succeed. The softly, softly approach, the sensible transformation approach, in my view often stands a better chance of success than the direct approach. Whilst I fully, as I said before, understand Mr H’s frustration, he must take note of what the judge said, that if he wants contact with his son, putting his son’s mother in prison is not the way to restore the relationship between himself and his son.[30]That being so it seems to me, if I may say so, that counsel today have more than justified their presence before this court. A sensible way forward has now been produced, and whilst proposing that permission to appeal against HHJ Jones’s order should be refused, I heartily commend the order which has now been agreed between the parties.

LORD JUSTICE THORPE: I agree.

LORD JUSTICE LATHAM: I also agree.

Order

Application refused.