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S-K (A Child) [2013] EWCA Civ 1247

Application for permission to appeal residence and contact orders - permission granted in part

This matter concerned the welfare of three children, aged 14, 11 and 7. After the parents' separation in 2009 the mother had moved with the children from Nottingham to Essex. The father had applied for a residence order in 2010 but that application had been dismissed with a residence order being made in favour of the mother and a contact order for alternate weekend staying contact made in favour of the father. In 2012 the father reapplied for a residence order.

The older children had stated a wish to the Cafcass officer to live with the father. The Cafcass officer had expressed concern about whether the children understood the consequences of a move and their having been exposed to pressure from the father. He had also told them that the schools in Nottingham were better than those in Essex. The Cafcass officer recommended that the children remain living with their mother in Essex to provide stability and that the contact arrangements remain the same. The Judge at first instance made a residence order in favour of the Mother and also reduced the existing contact from alternate weekends to one weekend in four.

Granting permission to appeal in relation to contact only, Black LJ held as follows:

1. The Court of Appeal would not go behind the Judge's finding that the children's best interests lay in remaining in Essex as the judge had heard oral evidence from the parties and from Cafcass. Although the father made a number of criticisms of the Cafcass officer she had been found by the Judge to be an impressive witness. The criticisms were also ones which the Father had made at first instance and had been borne in mind by the Judge.

2. Although the Judge had gone against the older children's wishes and feelings, it had been within her power to do so even in light of the oldest child being 14 years old. She was entitled to take account the Cafcass officer's concerns about those wishes and she was not bound by the children's wishes.

3. In relation to contact, the reduction had not been sought by either party or indeed recommended by Cafcass. Although it was within the Court's power to make an order of its own motion without either of the parties seeking it, in order for it to be fair for the Court to do so it needed firstly to ensure all parties had an opportunity of stating their views on the subject and secondly to ensure that it had all of the necessary evidence on which to base its decision. Black LJ held that the judge had done the former but arguably not the latter in that she had not ascertained the children's views on the contact reduction. There was sufficient merit in the father's appeal of the contact order to permit the case to go forward to be heard by the full court.

Black LJ concluded her judgment by inviting the parties to make use of the Court of Appeal's mediation service to try to reach agreement on the contact issue.

Summary by Thomas Dudley,  barrister, 1 Garden Court Family Law Chambers


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Case no: B4/2013/1538 
Neutral Citation Number: [2013] EWCA Civ 1247

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE PRINCIPAL REGISTRY
FAMILY DIVISION
(HER HONOUR JUDGE WRIGHT)

Royal Courts of Justice
Strand
London WC2A 2LL
Monday, 22 July 2013
 
B e f o r e:

LADY JUSTICE BLACK

IN THE MATTER OF S-K (CHILDREN)
 

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The Applicant father appeared in person.  
The Respondent mother did not appear and was not represented. 

J U D G M E N T
(As Approved by the Court)
Crown copyright©

LADY JUSTICE BLACK: 
1. This is a father's application for permission to appeal against orders made by HHJ Wright on 17 May 2013.  The judge was dealing with questions of residence and contact in relation to the father's three children, A, who is 14, K, who is nearly 11, and B, who is 7.  The parents separated in 2009 when the mother left the former matrimonial home in Nottingham and took the children with her to live in Essex. 

2. The father applied for contact and a residence order, but on 7 July 2010 an order was made that the children should live with their mother and have staying contact with their father in Nottingham on alternate weekends, during half term holidays, and also during the school main holidays.

3. The information available is that the children are doing well at school in Essex.  They have been having contact with their father in Nottingham.  They have got family in both Essex and Nottingham, that is to say extended family.

4. In July 2012 the father sought a residence order.  A Cafcass report was prepared in response to that.  It is dated mid November 2012 and it was prepared following the Cafcass officer having seen the children.  The Cafcass officer reported that her impression was that although the older two children said that they wanted to live with their father, he had not fully understood the implication of such a move and its consequences.  K said that she wanted to move to Nottingham because the schools were better, and that her father had told her that.  The Cafcass officer thought that that suggested some degree of influence brought to bear on her by her father.  The children admitted that were they to move back to Nottingham they would miss their mother and their friends and family in Essex.

5. The Cafcass officer advised that if the children were ever to feel settled, they would need to have one secure base.  She thought that if they moved back to Nottingham, they would feel unsettled and such a move had the capacity, she thought, to destabilise them severely, destabilise their education.  Her recommendation was that the children should stay with their mother.

6. She said there was nothing to suggest that having contact with their friends and family in Nottingham was putting them at risk.  She recommended that as to contact, arrangements should continue as in accordance with the 2010 order.

7. The judge heard from both the parents and from the Cafcass officer.  She also read a letter that A had written in which he said that he wanted to live in Nottingham.  I too have seen a copy of that letter.  She considered the father's case that the children had not settled in Essex and that they wanted to return to Nottingham, and that he could care for them, that his work could be adjusted to fit around that, and that their schools in Nottingham would be good ones.

8. She was clearly aware, as one can see from the judgment, of the fact that the father criticised the Cafcass officer's investigation.  The father thought the Cafcass officer's input was superficial and inadequate, and that it was mistaken of the Cafcass officer to think that the children had been influenced by him.

9. The parties were agreed on a shared residence order, so it was the question of the living arrangements that had to be settled by the judge.  She found the Cafcass officer to be "a helpful considered and careful witness".  She took into account that the children, the older two, had expressed a strong wish to live with their father.  However, she put that into the context of the children not knowing the reasons for the separation, and their understandable concern for their father, who they know feels that they should be living in Nottingham with him.  She found that in fact they were settled in Essex and that they did not need to move to Nottingham for better schooling.  She thought that the father did not understand that it disrupted the children to talk about the better life that he thinks that they would have in Nottingham.  She thought that it would be disruptive for the children to move and that in fact it would make things worse, being likely to create uncertainty for the children, as well as loss and instability.

10. Accordingly, the judge made the decision that the children's principal home should continue to be in Essex.  However she then went on to alter the contact arrangements.  She did that because she felt there was a risk of harm to the children if they had frequent weekends in Nottingham, as they had been doing, and if the father continued to talk to them about changing the arrangements significantly.  She thought that the children needed some more normal weekends in Essex when they could pursue activities with their friends.  She intended to substitute more time in the school holidays for some of the weekend visits.  She said that the specifics would need negotiation between the parties, but she suggested, in essence, that instead of once a fortnight contact visits, there should be once a month contact visits with longer periods spent with the father in the holidays.

11. The father wishes to appeal against both the judge's residence order and the contact arrangements that she put in place.  He confines his application for permission to appeal to the residence arrangements in relation to A only.  He explains that he does that because of A's strong reaction to the decision that the judge took that he should remain in Essex, and he has told me a little of how A has reacted after the judge's decision.

12. The father has very eloquently explained to me today something of the detail of why it is that he wishes to appeal, and he relies on the fully argued case which is set out in his counsel's skeleton argument, although counsel does not represent him today.

13. He is very critical of the Cafcass officer, particularly in relation to the way in which she dealt with the children's wishes and feelings.  In the skeleton argument a number of specific criticisms of the Cafcass officer are set out.  The father supports his argument that the Cafcass officer's assessment was superficial by reference to the letter written by A, which includes A's expressed feeling that the Cafcass officer did not ask them enough when they were seen by her.

14. The father is critical also of the Cafcass officer's analysis and her failure to recognise that as an intelligent, mature and thoughtful 14-year-old, A's views deserved respect.

15. The arguments advanced in respect of the Cafcass officer by way of proposed appeal are in fact exactly the sort of arguments that one would expect to see advanced before the trial judge at the first instance hearing.  Indeed, it seems to me very likely that those arguments were advanced before Judge Wright, because her judgment shows that she was well aware of the father's criticisms of the Cafcass officer.  But the Cafcass officer's report did contain reasoning and no doubt she had further opportunity in cross examination to advance her reasons.  She drew not just on what the children had said to her (and she did see the children and she did differentiate between them in her report), she also had information which she had obtained from the mother.  It is unfair, it seems to me, to describe her views as "pure speculation", which is what is asserted in counsel's skeleton argument on behalf of the father.

16. Importantly, the judge had an opportunity to assess the Cafcass officer as a witness, and she was impressed by her.  It would be an uphill task to persuade the Court of Appeal to overturn an assessment by a trial judge of a witness who gave evidence in front of her.  In any event, the Cafcass officer's evidence was only part of the judge's evaluation of the whole issue with regard to the residence of the children.

17. It is argued that it was not fair of the judge to take the view that the father had failed to support the children in their placement with their mother in Essex, and that she was in error in so proceeding.  The father would have had the opportunity in his evidence in chief to address those particular worries about his attitude towards the children, and there was evidence upon which the judge could draw in finding that he had not been supportive of the placement in Essex, or perhaps more properly, that he had extolled the virtues of Nottingham to the children.  The example that comes to mind is about K and the schools being better in Nottingham.

18. Even if the mother and father's evidence was relatively brief in front of the judge, as I am told in the skeleton argument that it was, the judge had the benefit of seeing each of them give evidence, and it is quite clear from all the authorities that in those circumstances it is very difficult to overturn the trial judge's assessment of those witnesses and of the situation.

19. An important feature in the father's proposed appeal is the argument that the judge failed to give sufficient weight to the wishes and feelings of the children, and in particular those of the elder two, A being 14 years old now.  It is clear from the judgment that in fact the judge was well aware of the need to listen to what the children were saying.  Of course, she was not bound by what they were saying.  She had to look at what they said in the context of the whole of the case and take a decision which was in the best interests of the children in her view.  She was looking at the children as a whole because it was not either party's primary case that they should be living separately.  Their ages did of course span a range.  She referred in her judgment to the relevant authorities.  There was no need for her to do so any more than briefly, and having accepted that the Cafcass officer was a helpful witness, she was entitled to rely on what the Cafcass officer was advising about the context of the children's wishes, where they came from and how reliable they were.  She was entitled to see the children's views against the background that, as she found, they were in fact settled in Essex.  She took into account that it was a strong wish which the elder two had been expressing, but she gave reasons for not agreeing to do as the children said.  She was entitled to take that decision, and it was, in my view, properly explained. 

20. It is argued that she failed to differentiate between the children.  I have already referred to this.  The Cafcass report does in fact differentiate between the children.  It was inevitable that they were seen as a whole up to a point because that was each party's primary case, although it seems that the father's back up case was that the children might be split and the older ones, or just A, come to live with him in Nottingham.

21. I considered all of the points that the father wants to take with regard to the residence order appeal, and I am not persuaded that any of them have a real prospect of success at a full appeal, and accordingly I refuse permission to appeal in relation to the living arrangements. 

22. As I said to the father during the course of argument, insofar as he wants to rely on developments since the judge made the order that she did, that is more properly the subject of an application for variation than it is for an appeal to this court.

23. I turn then to the question of contact.  It is argued that the judge should not have reduced the contact from that which had been working up to the time of the hearing, when neither party had sought such a reduction and the Cafcass officer had not sought it or recommended it, and the children had not been asked what their views about it were.  Undoubtedly a court can make an order of its own motion with no party having sought such an order.  The proper process of course is to provide an opportunity to all the relevant witnesses and the lawyers to address the new proposal in evidence and submissions.  Sometimes even then it is not appropriate to make such an order, because additional material will be necessary before a fair and proper decision can be taken.  In this case, the parties and the Cafcass officer did have an opportunity to address the new proposal which was in the judge's mind.  We can see that from her judgment.  The difficulty was that it seems at least arguable that some material evidence was still missing.  The Cafcass officer had been recommending that the order with regard to contact should stay as it was at fortnightly contact.  For that reason, because neither party was asking for a reduction in contact, nobody had asked the children about what they would feel about contact being reduced.  It is at least arguable that given their ages, it was necessary to ask them what they would feel about the reduction in contact before it was imposed on them.  So, it seems to me that there is as a real prospect of success in appealing against the judge's decision on contact to this court, and I am going to give permission to appeal in relation to that part of her order only so that the full court can have a look at that matter.  I explained to the father, so that there is no misunderstanding, that is not to say that he has in any way got a certainly successful appeal, simply that there is an argument there which the full court can and should consider. 

24. The second thing that I want to say is that it is no good for anybody, the pair of you as the children's parents or the children, to be litigating.  Their childhoods slip away whilst you litigate over their futures.  They cannot settle down whilst you litigate over what is happening to them, and therefore if there can be some sort of agreement which will prevent having to come to this court, it should be explored.  Who knows, I do not have all the information at hand, but perhaps you can see them every three weeks in Nottingham, I simply do not know, something to draw the balance between giving them some settled time in Essex and the time that they want with you in Nottingham.  There is a Court of Appeal mediation system and you might like to find out about that from the court office.  I will ask the associate to try and send copies of the information about that.

25. So permission to appeal in relation to the contact order; to be heard by two judges, one to have family experience; time estimate two hours.

Order: Application granted in part