Case No: B4/2010/0935 & B4/2010/2258

Neutral Citation Number: [2010] EWCA Civ 1424
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LEICESTER COUNTY COURT
HER HONOUR JUDGE HAMPTON & HIS HONOUR JUDGE LEA

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday 21st October 2010

Before:

LADY JUSTICE BLACK
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	In the matter of C (Children) 	

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(DAR Transcript of 
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The Appellant Father appeared in person.

The Respondent did not appear and was not represented.

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Judgment

Lady Justice Black:

1.	There are before me two applications by Mr M, who I will call simply “the father” -- I hope he will forgive me -- for permission to appeal against decisions made by county court judges.  The proceedings in which those decisions have been made concern his two children, C, who was born on [DOB] 1997, so she is 13; and J, who was born on [DOB] 1999, so he will be 11 next month.  Both of the children live with their father.  They have contact with their mother.  The courts have been involved for some time, resolving issues over contact.  The problem is posed by the mother's drink problem and, apparently, personality difficulties.

2.	The children are separately represented by a solicitor and a guardian in the conventional way.  There have been a considerable number of hearings and a number of those have taken place over the last year.  I have only got selected papers from those proceedings -- by no means a complete set -- and there are one or two significant omissions, including that I would have liked to see the judgment of HHJ Jenkins from the middle of this year, but I have at least got the order that resulted from that hearing and I have some understanding of the content of the hearing and the decision that the judge had to take.  

3.	The father seeks to appeal orders made by HHJ Lea on 24 March this year and HHJ Hampton made on 3 September this year.  Those orders concern the interim arrangements for contact pending a full hearing of the contact issue, which is now fixed to take place in February next year.

4.	HHJ Lea's order, which was made on the basis of submissions made by the parties rather than after a hearing of evidence (but HHJ Lea would have had available the documents in the case as well), provided, at paragraph 6, for some interim contact.  I am not going to go through the details of it, but it was, in essence, periods of some days when the children were going to go and stay with their mother, who is based in London as the father is based in the Leicester region, and the order was to develop into alternate weekend staying contact from Fridays to Sundays.  There was ordered to be telephone contact with the first respondent mother being at liberty to telephone the children on alternate nights between 4 and 7pm, the applicant father to afford the children privacy during such calls, and there was to be contact during the school summer holidays for a maximum of three weeks.

5.	The order went on to make provision for the contact to be on a supported basis.  The supporters are Mr W and Miss D, about whom I have heard a little today from the father and who are old family friends and essentially people whom the father trusts to do the right thing, but his anxiety is that they have not appreciated the full extent of the problems that the mother is suffering from.

6.	The provision relating to them is contained at paragraph 8 of HHJ Lea's order.  It says: 

"The support in relation to such contact shall extend to either Mr W or Ms D meeting the 1st Respondent and the children at St Pancras Station at the commencement of contact in London and delivering the 1st Respondent [the mother] and the children to St Pancras Station on the final day of contact. On each occasion either Mr W or Ms D shall telephone the Applicant father to confirm that the 1st Respondent and children have arrived as scheduled or departed as scheduled, whichever the case may be."

The outcome that the father had wished from that hearing was rather greater supervision of the contact; indeed at that point I think he was seeking to have it totally supervised.

7.	He appealed against HHJ Lea's order, his appeal being lodged here on 21 April, on the basis that the contact arrangements placed the children at risk in failing to provide lawful supervision and arguing that the telephone contact should be restricted to alternate days.  I understand that he also has difficulty in the privacy that is to be afforded to the children during the telephone contact because his view is that he needs to be able to monitor what is being said, because he takes the view that the mother's calls are obsessive, disruptive and abusive, or can be.

8.	The notice of appeal that was filed in relation to HHJ Lea's order has grounds attached to it in the form of a skeleton argument.  That sets out a number of complaints that the father has about the hearing in front of HHJ Lea.  He complains that it was a biased hearing with the guardian's misleading submissions being given too much weight; that there should have been the power to monitor the telephone calls for the reason that I have just given; that there should have been supervision.  In that respect, he says that the court had ordered on 4 March that the contact had to be supervised until the police evidence and the clinical psychologist's evidence was ready.  Nothing had changed between 4 March and 24 March, he says, and then a different decision was made to relax supervision, despite the fact that the expert evidence was to the effect that caution was necessary, and, he would say, protection and supervision.  He also complains that directions were given with regard to the filing of new material by him with the court, which he thinks are unfair and disadvantageous to him.  

9.	I can deal with that last point immediately.  I have already explained to the father during the course of this short hearing that that sort of order is a perfectly fair provision to include to make sure that any material which is filed with the court is circulated and is designed to deal with the issues that are likely to arise in the forthcoming hearing, rather than the court being used as a general post box or to raise anxieties.  If there are anxieties, then they ought to be raised in the proper way in the context of an application made formally to the court with the material being circulated, as the judge contemplated, and then an application being made to file that material in the proceedings.  So there is nothing, it seems to me, in that provision that was unfair.

10.	The other matters are of more substance, relating to the children.  I have a transcript of HHJ Lea's judgment on that occasion in March, and I also have a judgment that HHJ Lea gave in May when the matter came back before him. The father, on the May occasion, was seeking to vary the March order, but agreed with the judge that nothing new that was significant had happened in the intervening period.

11.	The judge dismissed the application, and in the course of so doing he amplified the view that he had expressed in the March judgment, and it is for that reason and for that reason only that I am looking at HHJ Lea's May judgment, because it seems to me entirely fair that one should take those two expressions of opinion and reasoning on the part of HHJ Lea together when examining the father's arguments about the rightness or wrongness of HHJ Lea's order.

12.	I think at this point it might be helpful if I told the father -- this may be the first time he has come to the appeal court -- that it is very different here from the way that it is in front of the first instance judge.  I only give permission to appeal, as I am directed to do by the rules, if the appeal has a real prospect of success or there is some other compelling reason why it has to be heard.  I do not ask myself “What would I have done in those circumstances?” and then substitute that order or start a process whereby an appeal might lead to the substitution of another order, so my function has to be seen in that context.  It is a difficult matter to obtain permission to appeal discretionary decisions of the type that can be taken by judges in the course of the last year in relation to C and J.

13.	The judge's extra reasoning in relation to the question of the interim contact can be found at paragraph 2 of the May judgment.  In the March judgment he had said that he was going to indicate that contact should be supported in the way proposed, and that, as I understand it, was with relatively short periods when the children would be with their mother on their own with regular contact with Mr W or Ms D.  He said: 

"I have seen what the guardian says about this and I have been referred to what Mr Ives [the clinical psychologist] has said. It seems to me that it is also unnecessary for that support to be present for the purposes of a train journey, and that Mr W and Miss D can meet the children at the railway station and be involved thereafter if the contact takes place but there is no need for them to effectively travel as part of the train journey."

14.	That was amplified in paragraph 2 of the May order, saying: 

"Having heard submissions and having read the papers, I came to the conclusion that supervision was unnecessary -- having regard amongst other things to the age of these children -- and that contact, other than telephone contact, should be supported."

So we glean from that the age of the children, not surprisingly, had an impact on the judge's decision.

15.	The matter was then back again before HHJ Jenkins on 25 June of this year. On that day the clinical psychologist, Dr Ives, to whom I have referred, gave evidence, and I have a transcript of the evidence of Dr Ives.  There was confusion about Dr Ives because he had either been misunderstood by the father or misled the father into thinking that he was recommending supervision for the children or had recommended supervision for the children. That was explored in the course of his evidence to find out what he was really saying, and I think we can find what he was really saying towards the end of the transcript.  It is unfortunately unnumbered but it is three pages from the end.  The guardian's counsel or solicitor is asking questions, and right at the bottom of the page  says: 

"Just to clarify for myself and the Guardian, today you appear to be saying that you have never said that contact needs to be supervised, but more that you need to approach it with caution."

Dr Ives confirms that that summarises his view.  Then the guardian's representative goes on to deal with the type of contact, and says: 

"Looking at the type of contact that was in place before you were asked to report, would you say that that would still continue to be appropriate, or not? Where there is some element of support over longer periods, but otherwise unsupervised contact over a short weekend period."

16.	The answer to that from Dr Ives is: 

"I think it depends how she is doing, and I think it depends how much she is drinking, how often she is drinking and, as this case has progressed my concerns about her mental stability have got worse rather than better. An example is the suicide attempt in January this year, which is quite recent."

17.	There is then a couple more questions, and then the representative says: 

"Q. If I said to you that at weekends the father brings the children to Leicester.  They travel on the train on their own with their mother. They are met at the other end by Mr W.  He then supervises most of the contact over the weekend. Some of it is supervised by another family friend. And there are periods of up to two hours -- contact where the mother may go off with the children on their own, and then the reverse happens on the return journey, so that the children are effectively alone with their mum only for the two journeys and periods -- 

A.	And some time in the middle, yes."

18.	"Would you comment on that?", it says further down the page, "looking at the concerns you have raised", and Dr Ives says: 

"I think that feels quite reasonably safe because she is, if you like, inspected at the beginning and the end.  There is some support during. If there were problems, they would rapidly come to everybody's attention. That feels to me like a reasonably safe arrangement."

19.	So that was the evidence of Dr Ives as given to HHJ Jenkins and as built on, no doubt, by HHJ Hampton when she saw the matter later on in the year, on 3 September.  That 3 September order from HHJ Hampton is the second order that the father wishes to appeal.  She took the view that she could not make a final order on that day, so she was again looking at the matter on an interim basis.  I have notes of what happened at that hearing rather than a transcript. She revisited the question of separate representation for the children, about which the father has been unhappy.  She dealt with the father's apprehension that they were not being given the proper voice through the guardian and she refused to make any adjustment to that arrangement for reasons which she sets out and which are entirely cogent.  They led her to make a decision which, looking at it from my perspective, was well within the band of decisions that were open to her, and there cannot be any valid appeal against that.

20.	She also made comments during that hearing about the question of supervision, which is, I am satisfied, troubling the father considerably.  He tells me that he has only come here today because of his anxieties for the children, and I have observed that he has been upset and under stress during the course of the hearing in front of me.  That is not at all uncommon in this type of matter, but I recognise it.

21.	The judge said that the current support should continue and that it seemed to be working and that the periods of time were the right length of time.  She was obviously aware of the sort of time period of (as it had been put to Dr Ives) up to two hours -- that was the guardian's understanding of the sort of time period of the contact being unsupervised -- and she expressed a view about that that two or three hours might be a bit restrictive in London, particularly prior to Christmas, and not enough.  The children had a telephone and could ring if there was a problem.  I do not have the exact words that the judge used, of course, but those observations must be seen in the context of her contemplating the sort of arrangement which was building on the relatively short periods of unsupported contact that there was in the absence of either of the two supporters, and I am sure has not been seen as any license that the children should spend long periods of time with their mother.

22.	Dr Ives had undoubtedly not said (I am not sure that the father is trying to persuade me today that he did say) that the contact should be supervised at all times.  That was definitely not what he said.  He had contemplated the periods of time when the children would be on their own with their mother; he saw the safeguard as checks at the beginning and end of the contact and the availability, I think, of the supervisors at other times periodically making contact with the mother.  It seems to me that HHJ Hampton was entitled, having reviewed the matter, to take the view that she did, and I cannot see that there is a real prospect of the father being able to advance on appeal an argument to disrupt that finding.  

23.	So, in those circumstances, I cannot give permission for this matter to go any further by way of an appeal.

24.	There are, of course, going to be further steps in this matter.  There is a psychological assessment.  The father would like me to call a halt to the psychological assessment, but it may be that it provides extremely useful information on which the case can then be resolved, and of course I would say to the father that, although the children have been seen a lot of times by other people, this may be just the individual to give them the time that he feels that they have not had thus far to express their own views about things.  In any event, as I have explained to him during the course of the argument, that is not an order -- the psychological assessment provision -- that he is actually seeking by his documentation to appeal today.  That is not an encouragement to file another notice of appeal.  I think he might find it actually turns out to be more helpful rather than less, but I cannot overturn it.

Order: Applications refused