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W (A Child) [2005] EWCA Civ 1276

Application by ex-husband to appeal a residence order in favour of his former wife. Application refused.

B4 2005/1208

Neutral Citation Number: [2005] EWCA Civ 1276

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM DARTFORD COUNTY COURT

(HHJ CADDICK)

Royal Courts of Justice

Strand

London, WC2

Thursday, 13 October 2005

B E F O R E:

LORD JUSTICE WALL

LORD JUSTICE MOORE-BICK

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RE: W (A CHILD)

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(Computer-Aided Transcript of the Stenograph Notes of

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THE APPLICANT APPEARED IN PERSON

THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED

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J U D G M E N T

(As Approved by the Court)

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Crown copyright©

1. LORD JUSTICE WALL: Mr W renews today his application for permission to appeal against an order made by HHJ Caddick, sitting in the Dartford County Court on 13 May 2005. The question for the judge concerned Mr W's daughter, E, born on 9 July 2003 and so when the matter was before the judge she was not quite two and she is now roughly two and a quarter.

2. The question before the judge was the future of E and where and with whom she should live -- whether with the applicant or with his former wife, or whether there should be a shared care arrangement.

3. Before going into the matter in detail, I would firstly like to express my appreciation for the very clear and moderate way in which the applicant has put his case to us this afternoon. Secondly, I would like to preface my judgment by explaining this court's function when it comes to an appeal involving children.

4. This court is not the court of trial. Neither my Lord nor I heard the witnesses, listened to the evidence, formed impressions and so on. That was all done by Judge Caddick. Our function is to review the way he went about his task. The fact that I or my Lord might have decided the case differently is neither here nor there. The question is whether Judge Caddick decided it acceptably. Of course, in a case involving children, a judge exercises a very wide discretion. The welfare of the child is the paramount consideration. There is a welfare checklist in section 1 of the Children Act. But the judge essentially in every case (and every case is different) has to assess the parties, look at the situation carefully, analyse the facts and make a decision which he or she believes to be in the best interests of the child. This court has then to look at the judge's decision and decide whether or not the discretion has been exercised in an appropriate way. It is a very difficult task, therefore, for any parent who is unsuccessful before a judge to succeed on appeal unless he or she can show some serious error of law, or some serious error in what we call the balancing exercise, namely the weighing up of the various factors.

5. The judge's task in this case was made all the more difficult because, on his analysis, he had two admirable parents. Both had come late to parenthood. This was their only child. Both, he found, were devoted to her. Both were eminently capable of physical care of her, and the judge was faced with the decision as to where, as I said earlier, and with whom she should live: whether there could be a shared care arrangement or whether she should reside with one and have contact with the other.

6. The matter was further complicated because the parents, during the course of their brief marriage, had both lived in the same village, Doddington, near Sittingbourne in Kent. Their houses were within 100 yards of each other. They elected to live in Mrs W's home as the matrimonial home. But when they separated, Mr W went 100 yards down the road back to his own home and lived there. Of course, in that situation, a shared care arrangement in relation to E was eminently practicable. It was made all the more practicable because unfortunately Mr W had had to leave employment and take early retirement because of ill-health. But it was clear, and accepted by the judge, that his health did not preclude him from caring for E full-time. Indeed, Mr W's case was that it gave him more time and made him more readily available than Mrs W, who was in employment. Mr W began his submissions to us this afternoon by pointing to the recent trend whereby more and more commonly men stay at home, looking after children whilst their partners go out to work.

7. The short background to this case was that the parties had met in the spring of 2002. Mrs W became pregnant. They married in February 2003. They had houses in the same village. Mrs W was not well both during and after the birth. The judge recorded she needed a blood transfusion and then developed pancreatitis and had a gall bladder problem, overlaid by post-natal depression. So it is clear that, during those early months of E's life, Mr W played a very substantial role; he would say the substantial role as carer for E. Sadly, the relationship did not endure and they separated on 6 February 2004 when E was aged some eight months.

8. According to the judge, E remained living with her mother, but as Mr W had pointed out to us today, an effective shared care arrangement was put into place. The parties then divorced. There was a financial clean break. Therefore the only issue between the parties was what should happen in relation to E.

9. Mr W initiated the proceedings, and the matter in due course came before the judge. He gave judgment on 13 May 2005. By this point, Mrs W had decided that she wished to move away from Doddington to Cambridgeshire. She had also formed a relationship with another man which was plainly in its very early stages, although the man in question did give evidence to the judge and appears to have impressed the judge. Initially, before the prospective move, Mr W had had several changes of mind as to how the arrangement should be, as it were, officially formalised: whether there should be a shared arrangement or a sole arrangement when he had residence, with contact to his former wife and so on. But by the end of his evidence the judge recorded that Mr W had, in effect, reverted to the shared residence order as his preferred model. Mrs W sought sole residence and contact.

10. The hearing before the judge was complicated to this extent: there was a difficulty in relation to CAFCASS. The CAFCASS officer, who had been brought in to make a report in the usual way, reported on 9 December 2004. It is a report of some nine pages. It comes (after four or five paragraphs of assessment) to the conclusion that children of E's age benefited from a regular routine. The CAFCASS officer, in the particular circumstances, did not think that a shared residence order was appropriate. The relationship between the parties was undoubtedly strained. Handovers were difficult and different regimes operated in the two different households. The CRO thought that these differences would serve to confuse E, and make it difficult later for her to establish a routine, particularly in relation to bedtime. Accordingly, she took the view that the appropriate order (and her recommendation to the judge) was that E should make her base with her mother, but spend substantial amounts of time with her father, including weekend contacts. If that was on an alternate weekend basis, then each party would have the opportunity to spend a whole weekend with E twice monthly.

11. Mr W was dissatisfied with the recommendation and with the report, and he made his dissatisfaction known to the CAFCASS authorities. This involved the regional manager speaking to the CRO and apparently the chief executive becoming involved, with the result that the CAFCASS officer was spoken to and invited to reconsider her recommendation; the CAFCASS management position being that her report had not been sufficiently argued. That was not the perspective of the CAFCASS officer herself, who said that she had been asked seriously to consider recommending that Mr W had a shared residence order, ie that she should change her report. The result was that she wrote a short report in which she simply identified the various options that were open to the judge, but without making any specific recommendation at all.

12. When I read the two documents I was sufficiently concerned about them to make it clear that if the application was to be renewed in court I would want an explanation from CAFCASS as to what had been going on. That explanation from the chief executive has been shown to Mr W. It is in the papers. The chief executive's position is that which I have already indicated, namely that CAFCASS was concerned about the quality of the report and invited the CAFCASS officer to reconsider it in the light of improving on the quality of her recommendations. I do not regard the position as entirely satisfactory and it has led today to Mr W, as one of his grounds of appeal, submitting that the judge should have ignored the CAFCASS officer's report altogether, given the circumstances in which it had come (a) to be made and (b) to have been revised. I will come back to that when I discuss the grounds of appeal which Mr W has put before the court.

13. The judge spent some time considering the legal framework in relation to shared residence orders. He looked at all the recent authorities, including one of my own called A v A, which he indicated should be regarded with caution given other decisions of this court on the same point. He then spent some time looking at the CAFCASS officer's report and her conclusions. He explained what had happened from his perspective, including the fact that he had had a telephone conversation instigated not by himself but by the regional manager of CAFCASS in relation to the fact that the CAFCASS officer was to produce a second report. In any event, the view which the judge formed was that he could and should take notice of what the CAFCASS officer said. He said it could not be ignored, but of course it was not binding on him; he had to make his own conclusion having viewed the entirety of the evidence.

14. He also recorded in short form the additional evidence he had heard, apart from the parties themselves, including the man with whom the mother had begun to form a relationship, whom she called to give evidence and whom the judge was therefore able to see.

15. He refused an application made by Mr W to adjourn the proceedings for there to be a fresh report by a fresh CAFCASS officer in the light of the mother's prospective move to Cambridgeshire, and that again forms one of the grounds of appeal which Mr W puts forward. It does seem to me, however, that having made those, interlocutory decisions and analysed the evidence, what was crucial to the judge's decision is his assessment of the two parties. It is a crucial part of any judge's analysis of a residence dispute to see which of the two parties he feels is better able to meet the needs of the particular child. Of course, as I have already indicated, here he had two intelligent, competent parents. When, in his judgment, he came to discuss parental attitudes, he described them in those terms:

"... two intelligent, fairly strong-willed people, both of them. They have clear ideas as to parenting and other matters. They have been able to discuss and negotiate up to a point ... but even then the areas agreed were only reached after much pain, and, as each sees it, as a result of a controlling, manipulative and in effect emotionally abusive set of behaviour by the other parent."

So, on the judge's analysis, he was faced with two intelligent, competent parents, but two parents who could not, in the ultimate analysis, co-operate to the extent that was necessary.

16. He then proceeded to discuss the personalities of Mrs W and then of Mr W. He was impressed by Mrs W. He said:

"... how do the parents present to me? For me the mother presented impressively. She does understand what parental responsibility and sharing that with the father means. She desires the father to play a full and substantive part in [E's] upbringing, and that it is right of course that he should. Hence she agreed to as far as she could and probably further than perhaps her better judgment told her, but she agreed and has been prepared to stick to the 12 of 16 items in the parenting plan. But she did not go beyond that because genuinely she could not agree to those things. I have already given as an illustration of her recognition of the importance in real terms of father playing his part in that she did not just go off to the cottage in Yorkshire when it was offered to and suited her. One observes of course that she could well have done, perhaps when the child was a few months old, and the father's position would have been very difficult, I think it is fair to say, in opposing that, when the baby was still literally being breast fed and so young. But she did not do that; she recognised the importance of the father in [E's] life.

It is clear to me that she does seek flexibility in the arrangements and not rigidity, as rigidity and prescription can be, and indeed she feels have been and are, used as a weapon against her to the ultimate detriment of the child. I have to say plainly: I do not see in the mother, having read her statements and having observed her in the witness box at some length, the control and manipulation complained of by the father."

I pause there to repeat what I said at the outset of the judgment: that was the judge's impression. He alone was able to form that impression and there was plainly material in the documentation and in the evidence on which he could form it. But form it he did. His impression of Mr W was not so favourable. I do not wish to embarrass Mr W, who of course has argued his case in person this afternoon, by reading out at great length the judge's assessment of him. But it was less favourable than the assessment of Mrs W. He gave a number of examples of Mr W's conduct which he felt was somewhat rigid and controlling, particularly when he was himself giving evidence. Over about five or six pages of the judgment, the judge goes through aspects of the case in which he expresses the clear view that when it came to issues of practicality of sharing, of being able to co-operate in the context of shared parenting, he simply did not think that that was something which Mr W would be able easily to do.

17. At the end of that analysis, which, as I say, took some 6 to 7 pages, he came to the conclusion that the main base for E, accepting as he did that it was reasonable for the mother to move from Doddington, would be with her mother, and having done that, he then had to consider what the umbrella should be. This is how he put it in paragraph 65 of his judgment:

"Now should the umbrella be, should the model of Order be Residence Order to the mother, contact to the father, or Shared Residence Order and then define no doubt the same periods for the father, but defining them as his share of residence. If it had not been for the views that I formed about the father's attitude towards the mother, and to the whole question of shared care that I have just rehearsed, I would have been much more disposed to the possibility that a Shared Residence Order might best meet [E's] welfare in the circumstances of this case. As it is, I come to the conclusion on balance that a Shared Residence Order would run the risk of feeding the gulf of antagonism between the parties, of being a weapon in the father's hands to prosecute the obsession with 50/50 parenting, night and day, to prosecute the power agenda and thus to feed the very thing that Mrs Kearney, and indeed anybody else looking at this, would wish to avoid. That is a situation in which as [E] grows she becomes aware of what is going on, that she is in the middle of it, and the risk of her feeling responsible for it. A Residence Order settling [E's] base with the mother would in fact the more closely fit the reality of [E's] present home arrangements and those that will obtain after a move, namely main base with mother but substantial contact with the father. Hopefully, particularly of course after the move to Cambridge and some distance between these parents, it may actually improve the relationship between them, for each would have additional freedom in their sphere -- or putting it another way, they would not be living in each other's pockets 300 yards away from each other -- there would be less opportunity for friction, because there would be that much less number of hand-overs, quite apart from anything else, there would be less concern about inconsistencies in what is going on in the day to day looking after of the child between in, say, a contact period or the child living day to day during the week with the mother, less opportunity, as it were, to attend and worry oneself with the details of what is going on in the other household, and hence produce and engender a more relaxed parenting climate."

The judge then went on to make a residence order in favour of Mrs W and define very carefully the extensive contact which Mr W should enjoy.

18. That therefore was the approach of the judge. I now turn, as I said I would, to look at the case which Mr W makes against it.

19. He raises a number of grounds of appeal. He has emphasised two in particular this afternoon, and it is upon those two that I will concentrate. I should say, because the matter is in the grounds of appeal, that when it comes to matters, for example, of the adjournment for further enquiries (which is the first ground of the initial notice of appeal put in by Mr W), these are, in my view, essentially matters for the judge. I think the judge had ample material upon which to decide the case. I do not think a further report would have helped him. It would have added to the delay and to the undoubted stress that both parties were feeling. The judge had the opportunity to see the potential co-habitee. Clearly at that point he was just that, and the judge formed an impression of him which was, in my view, sufficient for the purposes. If in due course that relationship goes sour or does not succeed, and if it in any way is demonstrated to affect E, that will be a different matter and the issue can be reviewed.

20. Mr W also raises criticisms in relation to the behaviour of the regional manager and indeed criticises the judge for discussing the matter with Mrs Phillipson. In the grounds of appeal, which he emphasised this afternoon, in paragraph 7 the judge is criticised for relying on the potentially flawed first CAFCASS report as an erroneous exercise of discretion which resulted in an irrational outcome. Mr W says that the judge should have ignored that report as evidence due to the open investigations and the concerns expressed by both the CAFCASS's reporter's line and senior management.

21. I do not accept that submission. The judge is entitled to look at a CAFCASS report. The weight he gives it is a matter entirely for him. As it happened, it seems to me the judge's assessment of the parties happened to coincide substantially with that made by the CAFCASS officer. But that is not the point. The point is that it was the judge's assessment which mattered. In children's cases, judges look at all sorts of material, often from sources which are not formally approved in evidence. It would be an extraordinary thing for a judge to say: I am simply not going to look at the CAFCASS officer's report because of the subsequent intervention of the senior management.

22. The point which Mr W makes in relation to both the judge and CAFCASS feeds back into that which I have already rejected, namely the need for a further report. The report, Mr W argues, was principally needed because of the mother's potential move, the fact that the court did not know in any detail or at all where exactly she was going to live, what her accommodation was going to be, and Mr W complains that whereas he underwent police checks, the potential co-habitee had not. This feeds back, in my view, into the judge's assessment of the parties. What he had here was, as I have said I think at least twice but it needs to be repeated, two highly competent parents. He clearly trusted Mrs W with E. E's security, as the judge saw it, was the fact that she would be living with her mother. The fact that she might be living with her mother in a different environment was a secondary consideration. The question was: was the mother the right person to care for E or (to use the rather unfortunate phrase that I do not like but it is difficult to find another) to be the primary carer? The judge plainly thought that Mrs W was, and therefore was confident that Mrs W would care for her wherever she was living. The judge, in my view, was entitled to say that those factors, that emotional equation, was more important necessarily than the bricks and mortar point, particularly if the fact that the parties were going to remain in very close proximity was in due course going to be a matter which was going to cause stress between them and stress for E.

23. In the earlier grounds of appeal, Mr W raised a number of points about the hearing and also about the behaviour of the judge and the fact that an order being made in his former wife's favour was either discriminatory against him or made simply because he was male rather than female. I do not see any of this in the judgment, and to be fair Mr W has not pursued it this afternoon. This was a very difficult decision for the judge. He had to balance a whole range of factors, included in which were of course the fact that the mother was going to move accommodation. But above all he had to make his assessment of the parties and to decide, in the difficult circumstances which had arisen, which parent was better able to secure E's wellbeing. What he has in fact decided is that E's wellbeing is best resolved by residing primarily with her mother in her new accommodation, but maintaining very, very close connections and substantial contact with her father. I do not think this breaches any of the Articles of the European Convention which Mr W seeks to raise. Every case involves a balance of Article 8 rights and the right to respect for family life which exists for both E as well as her parents. I do not see any breach of Mr W's rights in this, and I do have to say I fear that if Mr W starts to talk about Article 2 of the Convention, he is beginning to lose his sense of proportion. It was that sense of proportion which helped tip the balance in the judge's mind in favour of the order which the judge actually made.

24. So at the end of the day we have a decision carefully considered by a judge in a judgment which is substantially long and which covers, in my view, all the relevant points in the case. It is a decision of course with which Mr W does not agree, and I think probably will never agree. But it is a decision with which, in my view, it would be quite impossible for the full court, if we were to grant permission to appeal, to interfere.

25. The judge has analysed the evidence, assessed the parties, looked carefully at E's welfare, recognised the strength and defects on both sides and has reached a discretionary conclusion.

26. I expressed myself quite firmly in my written reasons, and although I have re-read the papers since and listened very carefully to what Mr W has said, I remain of the same view. I listed the matter for two judges because, in these circumstances, I think it is always very helpful to have a second view. If either of us thought that there was a reasonable prospect of success in the appeal or if it was arguable, we will say so, and indeed my Lord will say what he has to say, no doubt, in just a moment. But for the reasons which I have attempted to give, which I hope to some extent supplement the reasons I gave in writing and which I am sure will not satisfy Mr W, I have come to the conclusion that I cannot say this decision was wrong; and I cannot say that there is an arguable case to go to the full court.

27. No order in relation to a child is ever final, and of course if the arrangements do not work out, the court's door will be open. But I hope very much that there can be co-operation between Mr and Mrs W because that co-operation will undoubtedly most benefit E. I have no doubt at all that whatever the label, Mr W will continue to play a very full part in his daughter's life. But, in my view, the judge's judgment can cannot be said to be arguably wrong, and I would therefore refuse the application for permission.

28. LORD JUSTICE MOORE-BICK: I agree. I would like to begin by saying I have a lot of sympathy with Mr W. I have been very impressed by the balanced way in which he has made his application this afternoon. It seems to me that this was a very difficult case for the judge, and I do not know whether I would have come to the same decision as he did. But the fact is that he considered the matter very carefully from all angles, and of course he had the great advantage of seeing and hearing both Mr and Mrs W give evidence before him, as well as others.

29. As my Lord, Wall LJ, has explained, this court cannot interfere with the judge's decision unless it is satisfied that it is one that really cannot be supported on the material that was before him. For the reasons given by my Lord, which I will not repeat, I am satisfied that there is really no real prospect of this court saying that the judge's decision cannot be supported. In those circumstances, I agree that this application should be refused.

Order: application refused. Transcript provided at public expense.