Westcar v Westcar [2006] EWCA Civ 1414

Case No B4/2005/2503[2006] EWCA Civ 1414
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BROMLEY COUNTY COURT
(HER HONOUR JUDGE HAMILTON QC)
Venue Royal Courts of JusticeDate Wednesday, 4 th October 2006
Strand
London, WC2
B E F O R E:
LORD JUSTICE WARD
SIR MARTIN NOURSE
Between
WESTCARAppellant-v-
Between
WESTCARRespondent
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
THE APPELLANT APPEARED IN PERSON. for in personTHE RESPONDENT APPEARED IN PERSON. for in person
J U D G M E N T

LORD JUSTICE WARD:

[1]This is an appeal against orders made by HHJ Hamilton QC in the Bromley County Court on 25 October 2005. The judge granted injunctions to the former wife, restraining the appellant from using or threatening violence against the former wife and restraining him from intimidating, harassing or pestering her or encouraging anyone else to do so and from entering or attempting to enter or come within 100 metres of her home. That order was to remain in force until 25 October of this year. That is to say, it would expire in three weeks or so. In addition to that she ordered that there be a power of arrest attached to each of those paragraphs of the order.[2]Mr Westcar appealed against that order, and my first inclination when I considered the matter on the papers was to say that although I understood the force of the arguments advanced upon his behalf by counsel then representing him, it did not seem to me to be worth the appeal, because if he behaved himself there would be no further trouble. But Mr Westcar renewed the application to the court and Bennett J and I granted permission to appeal on 27 March. In the course of the judgment I gave, with which Bennett J agreed, I did point out that in the long history of this matter a relevant order was an order made on 24 June, when Mr Westcar was committed for his breach of the predecessor to this order, the injunction made on 8 October 2004. For that breach he was sentenced to a term of imprisonment, suspended for twelve months.[3]So that period of suspension has now passed and I am happy to say that there has been no further difficulty between these parties, notwithstanding the high temperature of this litigation. I say that bearing well in mind Miss Bowey, as the petitioner, is now known. I am fully conscious of her concern that I think on Friday of last week a bundle of papers were delivered by someone, but clearly on the appellant’s behalf, papers relating to this appeal. As I have pointed out in the course of argument, because her legal aid has been restricted so that she would appear in person in this appeal, as she has, she needed to know the documents that were being placed before the court, and if there was a breach it was of a most technical kind, which she accepts, but I have equally, forcefully I hope, indicated to Mr Westcar that the solicitors remain on the record and that all communication between the parties must be with her solicitors.[4]The history of the matter is, as I have indicated, long and complicated and pretty tempestuous. The parties are a married couple, or were a married couple, with two children: W, who is just 4 and a half, and L, who is barely 3 years old. The parties separated in early 2004. It has not been necessary for this court to investigate the circumstances of that separation. A part of the history, which seems beyond dispute, is that at some time before that Mr Westcar was set upon by a gang of hooligans who inflicted grievous injury to him. In the course of that horrible assault he suffered head injuries and there is some suggestion that it has had its sad effect.[5]The matrimonial proceedings began with injunction applications being made without notice and orders were made for Mr Westcar’s exclusion from the home. That is always a source of grievance to a father who is excluded from the home and not surprisingly Mr Westcar, like many, many husbands and fathers in similar position, has felt that was a grave injustice. I understand that and I have a certain sympathy with that predicament, but the fact is that those orders were made and they were continued on 8 October, as I have indicated, by occupation orders and non-molestation orders made with effect to 8 October 2005. It is an important fact, in my judgment, that that injunction made in 2004 was limited in time for one year. That order was made by HHJ Hamilton QC. On its exploration in 2005, the petitioner made a further application for injunctions in the same terms and it was those injunctions granted by HHJ Hamilton QC which bring the case back to this court.[6]Before HHJ Hamilton QC was a short affidavit from the petitioner in which, in summary, she set out the history of the proceedings. She referred to the breach of the injunction which led to the committal in June 2005. The breaches related, I think, to the delivery of letters to her home and that committal order has as far as I know not been appealed, is not before us, but it was of a lengthy period of imprisonment, 6 months, suspended as I have already indicated. But the matters which gave rise to that breach occurred during the time of the operation of the 2004 injunction.[7]The only other matter which post dated the October 2004 order was a reference to an incident which had taken place at a contact centre on 3 September. The wife’s affidavit referred to a report from the contact centre in which it was said the officer supervising contact objected to the appellant taking photographs of his children. He reacted to that by saying that he was not harming them. He was taking photographs of his children, he was entitled to do so and, it was suggested, added that he was in effect a law unto himself.[8]At the hearing before HHJ Hamilton QC, those matters were disputed, but she did not permit evidence to be given about them and proceeded on the basis of the information before her. She made the orders, giving a short judgment which was to this effect. Firstly, she dealt with the petitioner’s application to extend the injunction to protect her at her place of work and she said:
“I have already explained that in the absence of any evidence that the respondent has attended at her place of work, such an injunction would be too wide. However in the event that the respondent does attend there and causes harassment, the existing non-molestation paragraph should be sufficient to protect her at work.”
[9]So there the judge was saying, absent evidence of any threat at the place of work, injunction should not be made. She then went on to deal with his case and she referred to arguments advanced by counsel on Mr Westcar’s behalf that there had been no violence. Now that, as I understand it, is a fact. There was no allegation of violence, certainly not since October, if indeed there was any evidence of violence towards the wife or the children at all. There was an incident apparently of an altercation Mr Westcar had with some other woman way back in 2004, but whatever that incident may have been it was certainly a matter relating back to the events which would have been relevant to the October 2004 injunction, but would have been water under the bridge for the purposes of the renewal a year later. Importantly, there was no allegation of violence towards the petitioner.

The judge referred then to:

“The only recent incident was in May 2005 when the respondent was sending letters to the applicant. This was dealt with by the judge by a six month suspended sentence of committal suspended for twelve months on terms the respondent was not to communicate with the mother’s address.”
[11]The judge, now citing counsel’s argument, observed that HHJ Hallon could have extended the injunction on that occasion if she saw fit but she did not. Counsel submitted it should not now be extended. But extend it she did, because she felt she was not dealing with an average person. She referred to the old psychiatric evidence of a Dr Bott, referred to in a report made in mid-2004, about which he may have given evidence in October 2004, that Mr Westcar was capable of aggression. But as

the judge said:

“The reference to aggression is speculative. It was a diagnosis of a year ago.”
She referred to the incident at the contact centre and she concluded:
“Mr Westcar is still unpredictable. He attempts to harass the court and solicitors although this is not a concern of mine. His behaviour has not changed in any way since October 2004. He is carrying on bizarre behaviour.”
She observed that the petitioner was simply trying to protect the children and the judge felt she needed protection. The court will ensure she has it, she said, and so she made this injunction.[12]Now I can readily understand that HHJ Hamilton QC had become somewhat exasperated with Mr Westcar, but however much her patience was tried -- and there are, Mr Westcar will have to forgive me saying it, times when he would test the patience of a saint -- nonetheless the judge did need carefully to scrutinise the evidence before her and that evidence was extremely weak. There was no evidence of actual violence or current threat of violence. In order to add a power of arrest the court is required by Section 47(ii) of the Family Law Act 1976 to find that the respondent has used or threatened violence, importantly against the applicant or a relevant child, and there was not any such evidence of any recent threat or any actual violence against her. The evidence was flimsy.[13]I however do see the force of the judge’s conclusion that Mr Westcar was capable of behaving, as she put it, in a bizarre fashion, and I understand her anxiety to protect the petitioner. But in my judgment it would have been sufficient in the unusual circumstances of this case to say that the suspended order of committal would have provided adequate protection for the wife whilst that period of suspension operated, and if an injunction was necessary at all, and I have some doubt about it on a careful scrutiny of the evidence before the court, that injunction should have lasted only so long as the period of suspension for the committal order lasted.[14]That was the view we expressed when giving permission to appeal. The petitioner, who appears before me today, has been able to take advice from her solicitors, who cannot attend because their legal aid has been restricted, preventing their appearance in this court, and she has indicated that she is content that the injunction should end at that time, and so I think is Mr Westcar, although understandably his submissions centre upon the general injustice he feels and the failure he is experiencing in having satisfactory contact to the children. He has a number of applications relating to contact, for permission to appeal orders, and I will deal with them separately, but so far as this appeal is concerned it seems to me that the right order to make is to allow the appeal to the limited extent of terminating it on 24 June, and so to that extent the appeal is allowed.

SIR MARTIN NOURSE: Mr Westcar, I would have been happier for you to sit down and listen to what my Lord was saying because most of what he was saying was in your favour, and it is only necessary for me to say that I agree with everything he has said and with the order he proposes.

Order

Appeal allowed.