S (A Child), Re [2014] EWCA Civ 1682

[2014] EWCA Civ 1682

Case No B4/2014/1724

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE COUNTY COURT

SITTING AT TRURO

(HIS HONOUR JUDGE VINCENT)

Venue Royal Courts of Justice

Date Wednesday, 3 December 2014

Strand

London, WC2A 2LL

B e f o r e:

LADY JUSTICE MACUR

LORD JUSTICE PATTEN

LORD JUSTICE CHRISTOPHER CLARKE

IN THE MATTER OF S (A CHILD)

DAR Transcript of the Stenograph Notes of

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The Appellant did not appear and was not represented

Mr S Ashworth and Ms R Platts (instructed by Faradays Solicitors) appeared on behalf of the Respondents

J U D G M E N T

LADY JUSTICE MACUR:

[1]On 25 July this year the mother appeared in person before the single judge on an oral application for permission to appeal and succeeded in obtaining permission to appeal two orders made on 3 March 2014 and 28 May 2014 respectively by which a shared residence order and then a sole residence order was made in favour of the father in respect of their child, N. N has been living with his father since 6 June last.

[2]The orders under appeal arise out of an intractable contact dispute which has occupied the lower courts on several occasions and at some length. His Honour Judge Vincent who made the relevant orders in March and May had had previous involvement in the case, which commenced by the father's application for contact in 2009.

[3]The mother has failed to appear to prosecute her appeal before the court today. There has been no contact made by the mother to the court to indicate any difficulty in her attendance. As I have already indicated, she has previously attended in this court before the single judge. There have been several occasions when she has failed to appear in the lower court. In the circumstances, I would proceed to dispose of this appeal.

[4]The mother's arguments in support of the grounds of the appeal which she drafted are contained in a voluminous document detailing at great length her complaints about the process of the court on 3 March, subsequently and before.

[5]It is necessary to refer to the chronology of court proceedings, although not in too great a detail, to provide the context of the mother's complaints of undue process so as to undermine the orders of the court as she seeks to do.

[6]N is now 8. His mother was his primary carer until June 2014. The father's contact with N in his early life was minimal. The reasons for that state of affairs, that is the lack of contact, is of no consequence to the present circumstances.

[7]The father made an application for contact in 2009. The mother alleged domestic violence against the father and a fact finding hearing was conducted in August 2009. The father admitted improper conduct in his text and written communications with the mother on four occasions. Otherwise, the allegations made by the mother were found not to be proved.

[8]In the transcribed judgment of His Honour Judge Vincent, it is noted that the mother deliberately absented herself from those proceedings after a brief conference with her counsel and refused to answer calls for her return to the court building.

[9]The judge nevertheless had considered hearsay written evidence of the mother and paid all due regard to the police logs and the medical records of the mother, father and N. He concluded that the mother "very substantially over egged the pudding", but in her absence concluded that he was unable to assess the degree of the exaggeration or incidents of invention on her part.

[10]Consequently, on 28 April 2011, a residence order was made in favour of the mother and a contact order in favour of the father. At this time the court had numerous expert reports before it. The order directed that N should have staying contact with the father every three weeks in Penzance.

[11]The mother complied with the order in that she made N available for contact until August 2012. It is clear that contact had worked well until that point and a firm relationship between father and son had been established.

[12]Then on 1 September 2012 the mother asserted that N had alleged that he had witnessed a violent assault upon his paternal grandfather at the hands of his father and paternal aunt. The mother refused further contact. Regrettably, the father did not seek to enforce the order and it was only upon the filing of the mother's application to discharge the contact order that the court became aware of the situation.

[13]A further fact finding hearing dealing with the further allegations as reported by the mother was held on 27 June 2013. No findings were made against the father. An order was made to recommence contact on 27 July 2013 and thereafter on the three weekly cycle as ordered in 2011.

[14]The mother failed to comply. The father then made an application to enforce and it was heard on 29 July 2013. Consequently, a penal notice was attached to a direction that the mother made N available for contact on 31 August 2013. The mother had not attended at that hearing, but was served with the order. She responded by contacting the County Court office to inform the District Judge who had conducted the hearing that N would not be available for contact and she would not be attending the hearing that had been listed for 2 September 2013. She was true to her word.

[15]On 2 September 2013, the father was alerted to the possibility of enforcing the order by seeking a residence order. In these circumstances, the matter was further adjourned until October.

[16]On 22 October 2013, DJ Mitchell joined N as a party to the proceedings and a guardian was appointed to represent his interests. Other directions were given at that time as to the filing of evidence, transcripts and reports.

[17]In preparing for the hearing, N's guardian sought the opportunity to observe contact between N and his father. She was refused by the mother in no uncertain terms. Various case management directions were made in the interim on several occasions.

[18]The matter then came on for hearing before His Honour Judge Vincent on 3 March. The mother was not represented, but supported by a friend. There is a transcript of the day's proceedings which resulted in a consent order for shared residence. That order comprehensively detailed the dates upon which N should reside with his father.

[19]This breakthrough, as it appeared, was short lived. The mother applied for a stay on 14 March, but apparently contradictorily made known that N was excited to see his father on the Sunday following. Some contact took place, but was undermined by the mother's text and telephone interventions. His Honour Judge Vincent refused stay of the order.

[20]On 31 March 2014, Cornwall Social Services expressed "grave concerns" in respect of N's safety and well-being whilst in his mother's care. The father therefore understandably applied ex parte for a sole residence order. The matter came before His Honour Judge Vincent. The application was refused, rightly in my view, on the basis that absent evidence of imminent harm, the judge should not remove the child from his primary carer on an ex parte basis.

[21]On 24 March, N had been made subject of a child protection plan. Worryingly, the father did not see N after 30 March.

[22]On 28 May 2014, the case was restored to His Honour Judge Vincent. The mother was given notice, but failed to attend the hearing. She had alerted the court to the fact that she would not. The judge made an order transferring residence to the father and listed the matter for review on 18 June to consider the time that N would spend with his mother.

[23]On service of the order upon her, the mother absconded with N. He was not given into the father's care until 6 June. The police had to remove N from his mother's care. The mother openly admitted her defiance of the orders for contact and delivery up of his care, claiming that she had acted in the best interests of N and would take the same steps if called upon to do so once again.

[24]Remarkably, she failed to attend court on 18 June. The residence order in favour of the father was confirmed. The mother has not sought to contact N in the interim.

[25]The grounds of appeal are self drafted and extensively detailed. As may be expected in the case of a litigant in person, they predominantly attempt to re-argue the case. They reflect the mother's heightened state of anxiety and inability to accept the findings of the lower court or the opinions of social workers or guardians insofar as they do not accord with her own views and perspective.

[26]The grounds of appeal against the first order may be summarised as follows.(1) the court failed to have any or any sufficient regard to N's allegations of the violence perpetrated by the father upon his own father in August 2013 or previously against the mother or to make findings upon the same.

(2) the court failed to make findings of fact in relation to the abusive behaviour of the father towards N in shouting at him and being "mean to him".

(3) the court failed to have regard to the principle that the child's welfare was paramount, nor did it consider adequately or at all the welfare checklist provided by section 1(3) of the Children Act 1989.

[27]The grounds of appeal against the second order may be summarised as follows.(1) the court did not make an adequate investigation of fact or welfare issues prior to ordering the removal of N from his mother.

(2) N was not adequately represented by his guardian.

(3) the welfare checklist was not applied.

(4) issues of domestic violence have not been resolved.

(5) the recitals to the court's order were inaccurate and the mother's absence meant that the judge was presented with an unbalanced picture.

[28]A transcript of the proceedings on 3 March is available. Reading that transcript, it is evident that the judge conducted himself impeccably. He was calm and courteous throughout. He had considerable empathy for the mother's natural anxiety, assisted her in the court process and effectively mediated a solution in her favour. That is the application of the father had been for a transfer of residence. The order made was to be a shared residence order with N living predominantly with the mother.

[29]There was no untoward pressure and the judge was scrupulous to investigate the mother's consent to the order. This took place without undue haste and with every opportunity being afforded to the mother to consider her options.

[30]It is appropriate in the circumstances of these appeals to refer at some length to that transcript. Having obviously read the case papers, to which he makes reference, and having heard the father cross-examined by the mother and during the mother's evidence, His Honour

Judge Vincent addressed the mother in these terms:

"I do not want to put you through a longer hearing than necessary, but it is kind of important that we spend time to discuss this and get it right. Can I just deal with the next thing, because we will talk about psychological assessment again, but can I tackle something that in a sense is even more challenging? The minute the court put something called a penal notice onto an order, you find that unsurprisingly very threatening indeed and I understand that completely. The difficulty is that the court has a hang up with making orders, trying to make the right orders and then seeing that they are complied with, and it is kind of stage one in a process of trying to achieve compliance with court orders. There is a point in cases of this type where a mum feels very, very strongly that they have an overriding duty to protect their child's emotional and physical safety, but the court has a different view of the child's emotional welfare than mum does, where something has to give and the court does not usually pack up and go home. Packing up and going home is one of the options that Mrs Hodgkinson has raised. She has said it is an option, but seriously it may be overall the least worst thing to do and N can maybe resurrect a relationship with his father when he is much older. But the court does not normally step back and that is not a normal reaction to a situation in which domestic violence has not been, in the eyes of the law, established. A change of residence is a last resort. There are many cases in which it cannot happen and many cases in which the father would be the first to hold his hands up and say, "

I am not equipped. You know, I work full time and my hours cannot be changed, so I just cannot do it." You may say this is a case where Mr S should have held his hand up and said, "I cannot do it", but he has put forward at least an arguable case that he could manage, apart from perhaps the issue of the emotional fallout. So change of residence is a runner potentially, in the eyes of the law, that has to be considered. I do not put it any higher than that, but because it is a last resort you only really contemplate it when I have described it as being painted into a corner, when you have literally been painted into the very last bit of the room and you have got nowhere to move. Even then the court has to make an assessment of whether the benefits outweigh the deficits. I do not want to put this to you in a threatening way, but if you are left in that position where the court is saying there is no other solution to this case where the court makes it the priority for N to reestablish his relationship with his father, so there is no objective reason why that should not happen immediately and you are sticking to your guns, the next step would be, right, N gets collected, off he goes and probably his mum would not see him for the next couple of months while he settles into his dad's home and then she will have school holiday contact. Does that change anything for you? I mean, it does not change your inner feelings. I acknowledge that. But when you are painted into that corner and you are facing a decision as N's mum, it might do. You might have been thinking up until now, "This will not happen", but I have to say that this could happen at the end of this hearing. That is the message I want to get across."

[31]He then went on with further discussion and suggested that the mother should think about matters over a short adjournment. The mother and her friend withdrew. She returned to court and said this:

"Yeah, I think as you were saying -- I think contact can go ahead, definitely, but it's about how that's gonna be done for N and to have it so that it's consistent and a positive for him, so that it's something that he knows is going to go on no matter what, either for me or Mr S."

[32]His Honour Judge Vincent was keen to assure the mother that the situation hitherto could not be repeated. In doing so, he floated the order that was to be proposed and ultimately accepted by the mother of a shared residence order. He then explained in some detail the effect of a shared residence order and the fact that the father would no doubt gain benefit from considering the same.

[33]The court adjourned again. When it resumed, the guardian who had assisted the parents in discussions indicated that she thought that the mother was struggling with the idea of shared residence, but recognised it to be the least worst option as opposed to completely changing residence.

[34]Further dialogue with the mother ensued. The judge thereafter was keen to ensure that the mother understood the situation. He went onto say this:

"I tell you what the difficulties involving the law are. You were presented with a whole new scenario, which you must have thought about, which you had not really concentrated on because you had your position and we are in danger of now taking this forward to a conclusion with possibly a shared residence order with your primary care of N not disturbed, you being the primary carer on any view with a family assistance order to ease things and you going away and tonight on your own possibly thinking, "

Oh, I just wish that had not happened. I wish I had not reached those decisions and I wish I had held out", and then sending me an e-mail tomorrow saying, "I have changed my mind." Do you see the problem? Because I know how it is. I know it is not easy for you and in what you have said so far you have taken some pretty huge steps." The mother responded as follows:

"Shared residence makes me panic, I admit, but I admit I am inclined -- obviously inclined to panic specifically about this, but --"

The judge intervened:

"Can I put it this way? Forget the labels for a minute. Your status as primary carer of N is not under threat if this contact arrangement works."

The mother said:

"Yes, if it works for N then it's good."

The judge said:

"It is the fact that it did not work that put it in jeopardy."

The mother:

"Yes, if it works and it's -- it's removed possibilities of failing and then cause the problems for N, then that's good 'cause it --"

The judge:

"But can I be blunt? I do not know you. I do not know Mr S. I have seen each of you for however long the hearings that you have each attended and been. I get a sort of thumbnail sketch of him from Mrs Hodgkinson [the guardian] and she describes him as a sort of a man's man. I get the sort of sense he is quite rough and ready and has got a straightforward approach and I can tell you now things are going to go wrong. N is going to come home and say things that -- you know, he might not be upset, but he might say things or report things to you that give you worries."

[35]Thereafter, further discussion resulted in the judge indicating the nature of the order he had in mind. He said this:

"The thing that I would like most -- this is the final step -- is that if that order had at the top the words "by consent"."

However, before he called upon the mother to consider that, he indicated that he would adjourn and leave the parties to consider the “nuts and bolts” to be put in place and to return to court later that afternoon.

[36]On his return, the judge examined the mother as to the preamble to the order and whether or not he should indicate that the order was made with consent. He told the mother that he would only indicate that the order was made by consent if he was satisfied that she, the mother, did not merely accept the order on the basis of offering no active resistance. Specifically and explicitly, he said to the mother:

"I can either put "by consent", but I will not do that unless you actively do agree with it, or I can simply say that "

RW offered no active resistance to this order". Which would you feel most comfortable with?" There was a pause and the mother responded:

"Yeah, I think by consent is probably going to be better 'cause given that hopefully that N --"

The judge then said:

"I think it is what you have done, frankly. Thank you for that. I am very grateful."

[37]A number of important factors emerge from the transcript and from those parts of the transcript to which I have referred.

[38]First, the mother was made aware in no uncertain terms that the judge may consider an outright transfer of residence if her opposition to contact was maintained. Second, the concept of shared residence was fully explained to her. Third, the mother was given ample opportunity to reflect upon the information that he provided. Fourth, the mother ultimately gave her unequivocal consent to the order despite expressing anxieties as to the redistribution of power in the dynamics of the parents' technical relationship with N.

[39]The way in which the mother arrived at her decision to consent to the order of 3 March 2014 as couched in the transcribed proceedings, for my part, indisputably negates any prospect of a successful appeal in respect of this order per se.

[40]However, for the avoidance of doubt,(1) the judge had no valid reason and therefore no jurisdiction to revisit the previous findings of the court in August 2009 and June 2013 to the effect that the allegations of domestic abuse, whether against the mother herself save as admitted by the father or the paternal grandfather, were unfounded. In particular, there is no independent police report which substantiates the mother's claim of assault by the father upon his own father;

(2) the judge was aware of the father being a "man's man" liable to raise his voice and a potential for alarm to N. He did not need to investigate this aspect of the case further and had paid adequate regard to it, as he explained to the mother;

(3) he was not required to give reasons in a judgment in the light of the mother's consent and then expressed acknowledgement that in principle contact was to the benefit of N, nor otherwise detail his consideration of the individual factors of the welfare checklist. He obviously had N's welfare well in mind and specifically the potential effect upon the mother by ordering extensive contact to the father, as is clear in his dialogue with her.

[41]The judge was entitled and clearly right, as shown by the positive outcome immediately thereafter by the re-establishment of the father/son relationship, to kick start contact by directing regular and meaningful periods of contact. This reflected the paramountcy of the child's welfare and the parents' wishes and feelings. I would unhesitatingly dismiss her appeal against the order of 3 March 2014.

[42]Events as they transpired after the hearing on 3 March and indicated above objectively present an alarming picture. Exceptionally in the absence of any transcript of proceedings on 28 May 2014 or a judgment, I would nevertheless proceed to determine the mother's appeal and adversely to her in any event.

[43]The mother was notified of this appeal by letter dated 11 November 2014. The letter from the Civil Appeals Office makes clear that the appeal was to be listed on either 3 or 4 December and that there would be no further notice of that hearing date given. An attempt to telephone the mother prior to this court convening has not elicited any response.

[44]The exceptional course taken by this court in dealing with the mother's appeal absent a transcript is in my view warranted by the information before this court as to the material that was available to His Honour Judge Vincent on 28 May, factually acknowledged in terms of the imposition of a child protection plan, by the mother in her skeleton argument and the clear recitals of the reasons which predicated the making of the order by His Honour Judge Vincent on the face of the order itself.

[45]His Honour Judge Vincent had been intimately involved in the recent court decisions and his direction of the issue of the time that N would spend with his mother was to be reviewed on 18 June saves the process, in my view.

[46]In response to the mother's complaint which forms the basis of the grounds of appeal against this order, I would find as follows.

[47]First, the court had been sufficiently informed of the facts of the case by the recent prior involvement.

[48]Second, the mother's adverse view of the guardian was not substantiated, nor is it by independent or objective appraisal within the papers.

[49]Third, there had been recent, that is within less than 3 months of the hearing on 28 May, consideration of welfare issues informing the making of the order on 3 March. The child's welfare appeared to demand immediate removal.

[50]Four, all relevant factual matters relating to allegations of domestic violence had been disposed of.

[51]Fifth, the mother chose not to attend court and gave no good reason for her absence. Her deliberate absence resonated with her previous disengagement with the court process as indeed does her absence today and could not be reason to adjourn the proceedings in the particular circumstances as presented to the judge, even in the light of his consideration of removal of the child from his primary carer.

[52]Those recitals, which do appear in the order, are apparently evidence based. The mother denied herself the opportunity from representing the alternative view. Significantly, the order provided for a review of the order and would ostensibly have permitted the mother to seek to counter the order in practical terms in the short term. She did not attend on 18 June 2014.

[53]The mother is singularly unable to establish that this judge was wrong or that the procedures he adopted on either date was unfair. No new point of principle is engaged with this appeal. The jurisprudence relating to intractable contact disputes was obviously uppermost in the mind of the judge and needs no repetition here.

[54]The mother has recourse to the court below to seek to vary the order or otherwise to make submissions as to its practical implementation in the future. It is concerning that in the last six months she has not taken the opportunity to do so. I would dismiss this appeal.