K (A Child), Re [2011] EWCA Civ 1075

Case No B4/2011/1950[2011] EWCA Civ 1075
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CHELMSFORD COUNTY COURT
(HIS HONOUR JUDGE NEWTON)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Thursday 28 th July 2011
Before
LORD JUSTICE WARDMR JUSTICE MCFARLANE
Between
In the matter of K (A child)Appellant(DAR Transcript ofAppellantWordWave International LimitedAppellantA Merrill Communications CompanyAppellant165 Fleet Street, London EC4A 2DYAppellantTel No: 020 7404 1400 Fax No: 020 7831 8838AppellantOfficial Shorthand Writers to the Court)AppellantIn the matter of K (A child)
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Ms Ayesha Hasan (instructed by Messrs Hattens) appeared for Appellant FatherMiss A Ratcliffe (instructed by Milner Elledge) appeared for Respondent Child through her Guardian. for The Respondent Mother did not attend and was not represented.
Judgment
[1]This is an appeal from a decision made by HHJ Newton sitting in the Chelmsford County Court on 20 June 2011. After some difficulties in producing a copy of an order that reflected the judge's determination, that was finally issued on 4 July and, in the course of that order, the judge made provisions in relation to the future welfare of a young girl, ADK, who was born on 26 March 2000 and is therefore 11. There has been a long-standing dispute between A's parents as to the arrangements for their daughter's care. So far as A's home is concerned, that has been settled and for some four years or so now she has resided with her father here in England. A's mother is Bulgarian by descent and although she has spent some time in recent years in England she has predominantly made her home in Bulgaria.[2]There has been some contact between A and her mother but, as the learned judge described it, it has been sporadic and therein lies the problem. Although the father made a trip to Bulgaria in 2009, that exercise has not been repeated and there have in effect been difficulties over contact for the course of the last two years or so.[3]The father has the benefit of a residence order, that being made on 15 October 2010. Thus it was that the issue before the learned judge in the middle of June of this year was to determine issues relating to the mother's contact. Both the father and the mother appeared at the hearing, but neither was represented by any legal or other representative. A, however, had been made a party to the proceedings under what was then Rule 9.5 of the Family Procedure Rules and she had the benefit of a guardian and a solicitor to present an independent voice from her perspective to the proceedings. The judge also had the benefit of a short meeting with A at court, she having expressed a wish to see the judge and that was plainly, from the judge's account, a useful and happy encounter and one which left him impressed with her.[4]At the core of the appeal is the focus on two of the paragraphs of the judge's judgment; they are paragraphs 2 and 3:
"2. Direct contact as per paragraph 1(b) shall commence on the 25th July 2011 for a period of three weeks up to and including the 14th August 2011. The contact will take place at [address given]... 3. For this period of contact the Father shall vacate the said property and the Mother shall contribute the sum of £50.00 per week towards the cost of alternative accommodation."
[5]Earlier in the order, in paragraph 1, the judge had made provision for fairly extensive contact between the mother and A during school holidays and half term holidays and it is of note that the amount of time that was to be devoted to contact was not really in issue between the parties. The difficulty with which the judge had to grapple related to the practicalities.[6]A further paragraph in the order is also challenged by the father in this appeal. It is paragraph 4. I am not going to read that out in detail, but in short terms it provides for A to spend the autumn half-term holiday in October 2011 for one week with her father taking her to Bulgaria so that the mother can have contact with her there and the father challenges that.[7]The grounds of appeal, settled by counsel who does not appear before this court today, firstly make a challenge as a matter of law to the judge's decision reflected in paragraphs 2 and 3, which provide for the father to vacate the family home. Grounds 1 to 7 set out the challenge in law and it is that to make the order that the judge made, which is in effect an ouster injunction removing the father from his own home for a limited period, is outside the scope of the jurisdiction set out by section 8 and the ensuing sections of the Children Act 1989.[8]In addition, the father says that the learned judge was in error in failing to take account of the circumstances of his cohabitee and their son. It was the case before the judge that for some years the father had formed a relationship with another lady, herself from Bulgaria, and that they have a son as a result of that relationship, a young boy called B. I will turn to the evidence in that respect, but the father now says that his partner and B live in the property and a further basis for his challenge is that the judge could not have made an order requiring those two individuals to vacate their home.[9]In addition, challenge is made on the basis that the judge made an order which was contrary to the recommendation of the guardian. Finally, the father in separate terms challenges the judge's order requiring him to go to Bulgaria in October.[10]The appeal has been brought on at short notice. Permission to appeal was given by Ward LJ at an oral hearing on Monday of this week, and the court is very grateful to those who have made efforts to provide transcripts of the whole hearing, which we have, and a perfected copy of the judge's judgment.[11]Before us, we have the father represented by counsel and A represented by counsel. However, the mother is in Bulgaria and has not, for understandable reasons, been able to attend the hearing. She has communicated with the court by e-mail on 25 July and again by an e-mail on 27 July. In effect, she complains that the father has manipulated the situation so as to try to thwart the effect of the judge's order and she puts forward as an alternative to her coming to England now, if that is not viable because of the occupation of the family home, for A to travel to Bulgaria this weekend with the mother's sister, who is going out there for a two week stay.[12]Matters have developed during the course of the morning. Ms Ayesha Hasan, who represents the father before this court, informed the court that the father has located accommodation at a guest house near Southend. That has a twin-bedded room in which the mother and A could stay and the father is willing to pay one half of the cost. Arrangements were made over the short adjournment for the mother to be telephoned, and very fortunately it was possible for the advocates to engage the mother in conversation. The mother was told of the father's proposal and she indicated that, if that was the plan and this court approved, then she would come over and make every effort to come over here during the slot identified for contact in the judge's order, but she would need time to investigate the cost of flights and decide which was the most economical and efficient way of getting here. She apparently did not seek to suggest any alternative but for the father to pay half of the costs and the matter was left at that stage in the air pending this court's determination but on the basis that the mother, if that was the plan, would get on with the planning of it and the contact could take place.[13]Alternatively, the mother still puts forward her proposal for A to fly out with her aunt, the mother's sister, this weekend, and stay in the family's holiday apartment which is available to them.[14]The position of the guardian supports, as I understand it, both in legal terms and in terms of the practical arrangements, the father's appeal challenging the order requiring him to vacate his home and also the guardian's view is that it is premature for A to travel to Bulgaria under any arrangement during this coming holiday. The guardian's preferred plan now is for the mother to come over here, see A either through the arrangement that I have just described or some other arrangement, but then for the order in paragraph 4 of the order to stand and the father go with A to Bulgaria in October, for him to be set up in accommodation with A staying overnight in Bulgaria but with A seeing her mother and other members of the maternal family during the day. That latter position is a change in the position from that which the guardian held before the learned judge.[15]If I turn to the issues then as they are now established and deal first with the father's challenge at ground 8 of the grounds of appeal, which relates to the judge failing to take into consideration the position of the father's co-habitee and their son B. That position was described by Ms Hasan in her skeleton argument filed for this hearing in the following terms:
"The learned judge erred in failing to take into account the fact that the appellant's partner and their one and a half year old son lived with him and were due back to the UK shortly after the hearing but had in fact returned on 28th June 2011."
[16]Ms Hasan, as I am sure is the case, put forward that position on instructions from the father in her skeleton argument dated yesterday. We all now have the transcript of the hearing before the learned judge and the criticism made in the skeleton argument cannot be established when one looks at what the father actually said to the learned judge. I propose to read out a short extract from the transcript starting at page 44: The mother raised the question of the partner and the son, the father says in answer that the boy went back to Bulgaria. The judge then takes up the matter at line 20. “The judge: I am aware of that; I was going to ask, thank you for reminding me about that. I know that your partner has moved back to Bulgaria. Father: Yes Your Honour. Judge: And when did that occur? Father: It was about six months ago Your Honour. Judge: And you haven’t seen [B] since? Father: No, we’ve just get letters and phone calls whenever -- Judge: And what are you proposing to do about that? Father: What am I proposing to do? Well we -- she is going to be getting an internet connection and we are going to be via the internet. Judge: So the internet will be useful both for you and for [A] actually? Father: Yes, we will be using the internet maybe for another -- Judge: Right. And do you have any plans to actually see [B]? Father: No Your Honour because of the finances." Father: No, we’ve just get letters and phone calls whenever -- Father: Yes, we will be using the internet maybe for another -- Father: No Your Honour because of the finances."

Father: Yes, we will be using the internet maybe for another --

[17]There can be no doubt that the father in plain terms was telling the judge that not only had he been separated by geography from his partner and his son for some six months, but that that separation was likely to continue with him not seeing B and communication only being over the Internet. For the father now to be instructing his barrister that the judge should have taken notice of the fact that the partner and B were to return to this country "shortly after the hearing" is disingenuous to say the least.[18]In respect of that particular matter, this court is left with the very strong and uneasy feeling that the father is trying to manipulate the situation on the ground to make the plan that the learned judge put in place unworkable and to thwart the order. It is a highly unattractive position, if I may describe it as that, and certainly, insofar as ground 8 is concerned, I would not allow the appeal or even contemplate allowing it on that ground.[19]However, in relation to grounds 1 to 7 which deal with the legal basis for the judge's order the position is different. I have enormous sympathy with the judge. He was hearing this case in the now all too familiar but difficult circumstances of having two litigants in person and trying to find a way forward given the difficult practical problems of geography and finance to progress this young girl's relationship with her mother. He looked at four options in all, each of which had difficulties around them and he preferred the option of A staying put in her home during the contact period and the mother moving in and whilst, as a matter of law, it may be, and I will turn to this in a moment, that that was legally impermissible, I have great sympathy with the judge trying to do his best for this young girl and to forward her relationship with her mother.[20]But as a matter of law I am afraid that what he did was outwith his jurisdiction. He purported to impose the condition on the contact order under section 8 by referring to Section 11(7) of the Children Act. The salient parts of Section 11(7) are as follows: " A section 8 order may— (a) contain directions about how it is to be carried into effect; (b)impose conditions which must be complied with by any person— [ and then there is a list of persons of whom the father is clearly one ] (c)be made to have effect for a specified period, or contain provisions which are to have effect for a specified period; (d)make such incidental, supplemental or consequential provision as the court thinks fit.[21]The judge also expressly referred on more than one occasion to requiring the father to take the steps as an exercise of his parental responsibility, and again one can understand the judge trying to appeal to the father's better nature and for the father, just as the mother herself had offered to do, to move out of his home voluntarily as an exercise of parental responsibility. It does not seem to me that referring to parental responsibility however has any legal consequence over and above the powers that section 11(7) gave to the judge.[22]Happily, the question of whether this sort of order is within section 11(7) or outside it has already been determined in this court. In particular the decision Re D (Prohibited Steps Orders) reported at [1996] 2 FLR 273, encapsulates the position clearly. That was a decision of this court constituted by Neill LJ and Ward LJ. The court was considering a prohibited steps order in which the court had prevented the father from staying overnight in the matrimonial home, effectively an ouster order, and in plain terms in the course of the judgment of Ward LJ at page 278 and 279 of the judgment, my Lord held that that was not within the court's jurisdiction. In particular my Lord said this in respect of section 11(7):
"That section provides that a contact order may contain conditions about how it is to be carried into effect by a parent. No limitation is imposed on the court's wide discretionary power. I would not wish to be thought to be doubting any word of that judgment with reference to its particular facts [and that is a reference to an earlier decision Re O [1995] 2 FLR 124]. If and insofar as Swinton Thomas LJ [who was the judge in that case] is suggesting there is an unfettered discretion under Section 11.7 to make an order the effect of which is to interfere with the clear right of occupation of one party, then that runs counter to the whole development of the law which I have recited and with respect cannot be right. Section 11.7 in my judgment is ancillary to the making of a Section 8 order, it is governed by the provisions for making of a Section 8 order and does not allow the importation by this back door of the matters laid down in the Matrimonial Homes Act or proper adjustment of rights of occupation "
[23]It would seem to me that, so far as the legal context is concerned, the current case is on all fours with that decision and the judge's order requiring the father to vacate his home under Section 11(7) cannot stand and I would therefore, speaking for myself, allow the appeal on grounds 1 to 7 on that basis.[24]Turning more shortly to the father's further appeal in relation to the trip to Bulgaria in October. The matter is put by Ms Hasan on the basis that the judge made an order which moved matters forward at a greater speed than the guardian had recommended. The guardian had in her evidence indicated that it was too soon even in October for A to go to Bulgaria on whatever basis.[25]Looking at the learned judge's judgment and in particular at paragraph 5, he gives a priority to re-establishing this child's actual and real knowledge of Bulgaria and her family in Bulgaria. He makes it plain that for the child to go to Bulgaria at some stage in the not too distant future is a priority and at paragraph 12 he says this:
"It is frankly beyond question that she needs to go to Bulgaria and the sooner she does the better for her. At the present time I do not think that that can be engineered quite yet."
However, he goes on obviously to make the order for October as being the one that is justified in the circumstances.[26]The judge had evidence before him that A herself was reluctant to go to Bulgaria, but A's position was not a blanket refusal; it was qualified. And the learned judge described it at paragraph 7 in these terms:
"The guardian in her report made clear that A at the moment is steadfastly opposed to going to Bulgaria at least on her own. She would be prepared to go with a trusted adult but only under certain circumstances and I do not think that at the moment the time is quite right "
[27]It is clear from that short extract that if A could be reassured by the presence of a trusted adult then she might progress to move to a trip to Bulgaria in October. What the judge proposed in his order was that the trusted adult should be the father for that role. Given the father's role in A's life, he must be the most suitable person to identify. Ms Hasan submits that the judge had to give clear and cogent reasons for choosing an earlier trip to Bulgaria than the guardian was recommending. In matters of this sort, the decision as to quite when a young person will or will not be ready for a trip to Bulgaria or something of that sort in her life is never a black and white issue. There is a need for a judgment call as it were to be made. It seems to me that the learned judge was entirely entitled to come to a different view from the guardian and his reasons for doing so were plainly set out in the judgment in the passages to which I have referred. He gave a priority to re-establishing her relationship with Bulgaria and the family there and that is why he sought to move more quickly. In fact at this point part of Ms Hasan's assault on the judgment has been weakened by the way in which matters have developed today, with the guardian clarifying that she herself does not support the overturning of paragraph 4 in the order.[28]On that basis I have no difficulty in dismissing the father's appeal in relation to paragraph 4.[29]We have heard, as I have described, the mother's position now and indeed it seems that, from the emails and from the knowledge that we all have that the father's partner and B are now back in the property, the mother is in effect accepting that the order cannot be played out as the judge intended. It is open to this court to substitute its own view as to what order should be made and plainly if contact is to take place soon during this present summer holiday we have a duty to do so if we can. In my view, the option of the mother and A staying in the guesthouse that has been identified is the best option, or the least worst option of those which are available, on the basis that the father will pay one half of the costs of the stay. The stay is to take place during the three-week period that the judge identified in paragraph 1 of his order. The mother needs time to work out how she is going to travel. If possible, she should let the father know by Monday but I consider that she should have until 4 pm on Wednesday next week to do so and that she should communicate her decision through the child's solicitor. She is to give the father at least three days notice of the start of the visit so that he can make suitable arrangements. Plainly it is in everyone's interests for the mother to get on and make the arrangements as soon as she can and I would encourage her to do so.[30]On that basis I would allow the appeal insofar as it relates to paragraphs 2 and 3 of the order, but dismiss the appeal in relation to paragraph 4.

Lord Justice Ward:

[31]I agree. I add only that I would like to pay my tribute to the judge, first for co-operating with this court in providing the transcript of the proceedings and approving his judgment, both of which have proved to be extremely helpful to us; secondly for the way he bent over backwards to hear both sides of the argument and to be even handed between litigants in person; and thirdly for coming to a sensible pragmatic conclusion, which only the unfortunate judgment of this court given by myself prevents us putting into action. It was no fault of his that his obvious good intentions and good common sense had been frustrated by the idiocies of the law, but that is the way it is, as my Lord has explained. So I too would allow the appeal in respect of this summer holiday and, on the father undertaking to pay half the costs of the guesthouse, then there should be contact on dates to be agreed for no more than three weeks at the guesthouse or such other place as may be agreed, the mother being directed to notify the guardian by Wednesday of next week when she will take up such contact and for how long. There is nothing wrong with the half term contact in October. So I would allow the appeal in part and dismiss it in part as my Lord has said.

Order

Appeal allowed in part.