Case No: B4/2009/1097

Neutral Citation Number: [2009] EWCA Civ 1266
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE PRINCIPAL REGISTRY OF THE FAMILY DIVISION
(HIS HONOUR JUDGE DAVID PEARL )
Lower Court No: FD05P01432
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Monday 2nd November 2009
Before:

LORD JUSTICE WILSON
and
LORD JUSTICE RIMER
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	IN THE MATTER OF O (A CHILD)		

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Mr Peter Horrocks (instructed by Copleys, St Ives) appeared on behalf of the Applicant “Mother”.
The Respondent did not appear and was not represented
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Judgment
Lord Justice Wilson

1.	A mother, appearing by Mr Horrocks of counsel, makes a renewed application for permission to appeal against two parts of an order made under the Children Act 1989 by HHJ Pearl on 24 March 2009.  Today Mr Horrocks has placed before us a further order made in the proceedings by HHJ Pearl dated 11 September 2009.  On the face of it the new order appears somewhat to change the landscape and to indicate that in a very serious way the mother has refused to comply with various of the arrangements made by the judge on 24 March 2009, indeed even including arrangements not the subject of attempted appeal today.  I will return to the order dated 11 September but the focus of today’s application is, of course, the earlier order.

2.	The child at the centre of the proceedings is a girl, A, who was born on 13 April 2004 and who is thus -- now -- aged five and a half years old.  Her primary home has to date been with the mother.  She lives in Colne, being a village not far from Huntingdon.  The father lives in Kingston-upon-Thames.

3.	The parents were never married and their relationship seems to have ended by the time of A’s birth.  Litigation  between them in relation to A began in 2005 and has continued at a high level, exhausting as well as expensive for the parties and probably damaging to A, for the period of four years until the judge’s order and indeed, as I have just indicated, apparently beyond the date thereof.  Many of the hearings prior to March 2009 were also conducted by HHJ Pearl; and, in that at one stage A was made a ward of court, the proceedings moved into the High Court and the judge acted as a judge thereof.  A herself was made a defendant to the proceedings and began to be presented by a senior Cafcass officer, Ms Bennett-Hernandez, as her guardian ad litem.

4.	At some stage, apparently exasperated with the mother’s alleged failure to comply with arrangements for his contact with A, the father added an application for an order that A’s residence be vested in himself on the basis that, in that he works in the City, he would employ a nanny to help him to care for her.

5.	By the time of the hearing before the judge, which began on 23 March and concluded on 24 March 2009, many of the issues between the parents had appeared to have been resolved.  The father withdrew his application for a sole residence order in respect of A.  The mother for her part accepted, or appeared to accept, that his contact with A, which had already begun on a staying basis at alternate weekends from the end of school on Friday until Sunday afternoon, should continue; and she appeared to accept that it should, albeit cautiously, be enlarged so as to include more substantial periods during school holidays.  In that regard it was specifically directed that A should spend six days with the father in July 2009 and seven days in July 2010; but the extent of other holiday periods with the father was left open for future consensus.  There was also agreement that the guardian should be invested with a family assistance order for a period of one year, in order, apparently, in particular to enable her to assist the parents in relation to such of the arrangements relating to A’s passage between the two homes as were to be left fluid.  It was also agreed that A should cease to be a ward of court.

6.	The principal remaining disagreement related to the father’s application, supported by the guardian, that there should be a shared residence order between himself and the mother and that, accordingly, the periods of time to be spent by A with him should be encompassed as terms of a shared residence order, in effect as defining the periods of time which she should spend in her residence, albeit no doubt her secondary residence, with the father.  It was, by contrast, the contention of the mother that, as before, all periods of time to be spent by A with the father, whether specified or expressed in the general terms to which I have referred, should be cast within an order for his contact to her.  In the event the judge decided to make a shared residence order; and the mother’s primary aspiration on this renewed application is to secure permission to appeal against it.

7.	One curiosity is the fact that there are two long orders reflective of the judge’s determinations on 24 March 2009.  Mr Horrocks today has been unable to explain the existence of these two long orders and he has told us that, rightly or wrongly, he decided to take no part in the drafting of the orders by the other advocates following the determinations of the judge.  The discharge of the wardship proceedings clearly required an order to be made therein and thus to be made in the High Court.  But, notwithstanding discharge of the wardship, a decision had to be made whether the proceedings under the Act of 1989 should continue in the High Court or should be consigned to “the Principal Registry of the Family Division”, which is of course, notwithstanding its misleading title, at county court level.  I am unclear what the relevant decision was.  The High Court order contains 11 paragraphs, namely, first, the discharge of the wardship and then all the other ten orders made by the judge.  But there is a separate order in “the Principal Registry of the Family Division”, repeating all those ten orders.  At some level there appears to have been a lack of intellectual rigour about the proper format of the orders and, in particular, about the level of the court in which the proceedings under the Act of 1989 were thenceforth supposed to continue.

8.	I must, however, refer to a second curiosity.  Another of the judge’s rulings was that a warning notice should be attached to the order in purported pursuance of s.11I of the Act of 1989, inserted into it by s.1 of the Children and Adoption Act 2006 with effect from 8 December 2008.  Other insertions into the Act of 1989, also made by the Act of 2006 and with effect from the same date, provide two new sanctions which can be applied to persons who fail to comply with contact orders, namely an enforcement order pursuant to s.11J thereof, which requires that person to perform unpaid work, and a compensation order under s.11O thereof, which requires that person to compensate another for financial loss caused by any such failure.  Before either sanction can be applied to a person, a notice has to be attached to the relevant order and served on her or him: see ss. 11K and 11P thereof.  The judge ruled that a notice should thus be attached in order, in particular, that, were the mother to breach the arrangements which he had made, those sanctions might be able to be applied to her.  The second order of the judge against which the mother aspires to appeal is indeed the order that a warning notice should be attached to the order.  The curiosity to which I have referred is in the terminology of the warning notice thus attached to each of the two orders.  The warning notice addressed to the mother warns that: “If you do not comply with paragraph 3 [or, in the High Court order, paragraph 4] of this order the court will take steps to enforce this order pursuant to s.34 Family Law Act 1996 or take such steps as may be appropriate”.  There is no problem about the reference to paragraph 3/4 of the orders, which merely provided that, pursuant to s.11(7) of the Act of 1989, the mother was directed to deliver A up into the care of the father at the end of each period when, pursuant to the shared residence order, A was to be in her care.  Such was a perfectly legitimate and sensible direction under section 11(7)(a) of the Act and indeed, had the judge instead made a contact order in favour of the father, the terminology of the paragraph could easily have been so altered as to be consonant with it.  The curiosity is, rather, in the reference to s.34 of the Family Law Act 1996, which relates to the effect of home rights given under the Act to a spouse or civil partner not otherwise entitled to occupy the home.  I am concerned about this apparently inapposite reference; and, if it is inapposite, there is nothing to indicate that it has been corrected.  Instead the notice -- for which there is surely a prescribed form -- should surely have warned of the two possible sanctions to which I have referred.

9.	In what appears to be a long and perspicacious report dated 5 March 2009, the guardian explained why she could not support the father’s application for an order for sole residence of A.  She considered that the change would be traumatic for her and would have lasting emotional effects upon her. The guardian was, nevertheless, very critical of the mother and concerned to stress the importance to A of the maintenance and in particular development of her relationship with the father.  The guardian wrote: 

“What is concerning about the mother is how she has deliberately and thoughtlessly been difficult and obstructive in the way she has failed to engage with the father or comply with court orders.  She has, in my view, wilfully ignored orders or contrived situations to avoid complying.  In doing so, she has demonstrated that she loses sight of [A’s] needs and has no appreciation of the impact on [A] of her being embroiled in her disputes with the father.”

Later she wrote:

“It has been unfortunate, and wholly avoidable, that the father has not been allowed to develop a stronger relationship with [A].  I believe it is crucial that the father remain involved and is afforded consistent and regular contact.  It is my view that this cannot be achieved without measures of recourse should the mother fail to comply.  I ask the court to give consideration to applying the enforcement provisions of the Children and Adoption Act 2006.”

10.	In her report the guardian did not address, presumably because she was not invited to address, the possibility that, were sole residence of A not transferred to the father, a shared residence order might nevertheless be made in favour of both parents and that, accordingly, the times to be spent by A in each household should be described as periods to be spent by her in each of her two residences.  At the hearing, however, that possibility was obviously raised and, as I have indicated, it collected the approval of the guardian.

11.	We have been provided only with counsel’s note of the judgment of the judge dated 24 March 2009, albeit that the note has been annotated by the judge as carrying his approval subject to hand-written amendments.  [NOTE: Following delivery of our judgments Mr Horrocks told us that the court’s tape-recording of the judge’s judgment was said to have been mislaid and thus that no official transcript of it had been able to be prepared.]  From the approved note, however, we can discern that the judge weighed the submission of Mr Horrocks on behalf of the mother that the times likely to be spent by A in the two homes was so heavily weighted in favour of the mother’s home that it would be inapt to make a shared residence order.  It is also clear that, in contending that a shared residence order should be made, counsel for the father and for the guardian referred the judge to some of the many recent authorities of this court to the effect that considerations transcending any mathematical division of time can make it in the interests of a child that the order be one of shared residence rather than of sole residence and of contact.  In particular this court has often stressed that, in circumstances in which the history displays a want of recognition on the part of one parent of the importance of the role of the other parent in the child’s life, a shared residence order may be valuable as a  clear message to that parent that her (or his) attitude has not been in the interests of the child and will not be tolerated.  Of course there are other cases in which the court has to guard against the possibility that the investment in a parent of a shared residence order might lead him (or her) to misuse the order in order to try to interfere inappropriately with the child’s life with the other parent; but there was no serious suggestion, certainly no finding by the judge, that, if invested with a shared residence order, this father might thus behave.

12.	Today Mr Horrocks again presses the mathematical division to which I have referred.  He tells us that his computation is that the provisions of the judge provide for an allocation of the time of A as between the father and the mother in ratios of 15% or 16% to the former and 85% or 84% to the latter.  Even at a mathematical level, the submission is difficult because, as I have indicated, the judge deliberately left the amount of time to be spent by A with the father during holiday periods, other than the summer holidays, on a fluid basis, namely for later consensus to be reached if necessary with the assistance of the guardian.  But it is not just Mr Horrocks’ mathematics which are problematical.  Frankly I am greatly concerned that the mother has been unable, notwithstanding the calibre of her advisers, to accept the wisdom of the judge, or at least the entitlement of the judge, to have made such an order.  What is there within it to which she can reasonably have objection?  I regard her proposed appeal against the shared residence order as hopeless; and my proposal to my Lord is that we should refuse permission for it to proceed.

13.	That leaves, however, the warning notice; and for this purpose I put aside its bizarre terminology and address the challenge by Mr Horrocks to the judge’s entitlement to have attached a warning notice. S.11I of the Act of 1989, as recently inserted, provides that: 

“Where the court makes … a contact order, it is to attach to the contact order … a notice warning of the consequences of failing to comply with the contact order.”

The submission of Mr Horrocks could not be more simple: it is that the judge had specifically refused to make a contact order and had, instead, cast the periods of time to be spent by A with the father within a shared residence order.  I have already indicated that, in her report, in which she did not address the possibility of a shared residence order, the guardian had commended to the judge the possible value of his being able, if necessary, to impose an enforcement order or a compensation order upon the mother in the event of her future non-compliance.  Clearly the judge wished to act on the guardian’s commendation.  Equally clearly, however, it was drawn to his attention by Mr Horrocks that, were he to favour a shared residence order, he would not be making a contact order to which s.11I could apply.  The judge’s judgment, according to the approved note, was merely as follows:

“Warnings are appropriate.  In terms of enforcement, my decision would make a nonsense of the legislation if I cannot use s.11I.  I hold that ‘contact order ’ includes the apportionment of time directed here.”

14.	There is, I apprehend, no doubt but that a penal notice could have been attached to the judge’s order and could now be attached to it and that, were the mother to fail to comply with the direction to make A available to the father at the specified times, she could then, without legal difficulty, be committed to prison or fined.  As I have said, however, the two new possible sanctions introduced into the Act on 8 December 2008 required the attachment of a warning notice pursuant to s.11I.  With considerable regret, I feel unable to escape from the conclusion that it is arguable that the judge had no power to apply a warning notice to the orders which he had decided to make.  I note that the mother has been publicly funded during recent stages of the proceedings and is publicly funded for today’s hearing, notwithstanding that, as Mr Horrocks tells us today, she has not been in regular communication with her solicitors for the past seven months.  It did cross my mind that an appeal on what might be thought to be a narrow, technical point, unrelated to merit, would represent a misuse of public funds; and, analogously, it crossed my mind that, even if we had to concede that there was a real prospect of success for an appeal on this point, we might nevertheless refuse to give permission by reference to the overriding objective, in particular to the need, pursuant to Rule 1.1(2)(c), to deal with the application for permission in a way which was proportionate to its importance or lack of importance. 

15.	It is at this point, however, that the order dated 11 September 2009 becomes relevant.  It was made at a hearing attended by a solicitor for the father and a solicitor for Ms Bennett-Hernandez.  But, even though it records, and as Mr Horrocks tells us correctly records, that the mother’s solicitors had been notified of the hearing, neither she nor her solicitor nor Mr Horrocks was in attendance thereat.  Mr Horrocks tells us that no public funding was available for her representation thereat: and that, indeed, the mother was scarcely in communication with her solicitors at the time of that hearing and in the weeks prior thereto.  The order dated 11 September 2009 shows that the judge found that the mother had broken the provision which he had made for A to spend six days of the summer holiday 2009 with the father and had also broken his provision for her to attend nursery school on such Fridays as the father was due to collect her therefrom.  The judge thereupon ordered that A should again become a ward of court; that the mother should be prohibited from removing her from England and Wales; that A should be made a party to the wardship proceedings, that Ms Bennett-Hernandez should again become her guardian ad litem; that the family assistance order dated 24 March 2009 should be discharged; that if A did not attend school on 14 September 2009 the father was permitted to cause a location order to be issued for her to be located; and that, pursuant to s.11J of the Act, an enforcement order be made such as to require the mother to perform 120 hours of unpaid work under the supervision of the Cambridgeshire Probation Service, HHJ Pearl to remain the judge supervising that order.  The judge proceeded to specify the dates thenceforward for the next few months when A should be in the care of the father; and he directed that the matter be heard again by himself on 10 November 2009 and that the mother should, whether with legal representatives or without legal representatives, attend that hearing.  Clearly -- on its face -- the order dated 11 September 2009 discloses a profoundly serious state of affairs.  But for today’s purposes its significance lies in the enforcement order made by the judge against the mother.  An enforcement order can be made only against a person who has failed to comply with a contact order (see s.11J(2) of the Act of 1989) and only against a person to whom a notice under s.11I has been given.  So the validity of the warning notice is inextricably linked to the validity of the recent enforcement order, against which (so Mr Horrocks tells us) he would, were public funding granted to the mother for this purpose, aspire to appeal on the mother’s behalf.

16.	In those circumstances I consider that we should grant permission to appeal on ground 3 of the notice of appeal (but not on grounds 1 and 2, which relate to the shared residence order) and that, were Mr Horrocks to file a notice of appeal against the enforcement order within say 28 days of today, we should also grant permission to the mother to appeal against that order.  Were she to file such a notice of appeal, the two proceedings should be linked and the two appeals should be heard together.  Were she not to file a notice of appeal within that time-frame, and subject to any extension thereof which might be granted, then the appeal against the warning notice will proceed alone.

Lord Justice Rimer:  

17.	I agree.

Order: Application granted