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W (A Child) [2006] EWCA Civ 1263

This is an application by the mother for permission to appeal, with appeal to follow, against a refusal to grant a residence order. Application refused.

The mother argued that the child's wishes were that he wanted to live with her. This was not disputed but the trial judge found the fact was not determinative and that for other reasons residence should remain with the father. The Court of Appeal agreed that the judge was within his discretion to reach this conclusion. Thorpe LJ also adds an interesting comment that when a case is finely balanced there may be less likelihood that it could be appealed rather than more.

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B4/2006/0729S

Neutral Citation Number: [2006] EWCA Civ 1263

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE PRINCIPAL REGISTRY OF THE FAMILY DIVISON

(HHJ KARSTEN QC)

Royal Courts of Justice

Strand

London, WC2

Wednesday, 16th August 2003

B E F O R E:

LORD JUSTICE KEENE

LORD JUSTICE WALL

LORD JUSTICE WILSON

- - - - - - -

W (A CHILD)

- - - - - - -

(Computer-Aided Transcript of the Stenograph Notes of

Smith Bernal Wordwave Limited

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MISS R NEATHEY (instructed by MESSRS CHARLES ALLOTEY & CO) appeared on behalf of the Applicant

MR P HORROCKS (instructed by MESSRS FLORENCE TERRY) appeared on behalf of the Respondent

J U D G M E N T

(As Approved by the Court)

Crown copyright©

1. LORD JUSTICE WILSON: A mother applies for permission to appeal against the dismissal by His Honour Judge Karsten QC, sitting in the Principal Registry of the Family Division on 17 March 2006, of her application that her son, W, who was born on 7 March 1998 and is thus 8 years old, should move to live with her under a residence order rather than to continue to reside with the respondent father. In directing that the application for permission should be heard orally and on notice to the father, my Lord, Wall LJ, also directed that, were the application to succeed, the substantive appeal should be heard forthwith.

2. Since 2001 W has been residing with the father in Stratford, East London. Also resident in that home since about 2003 has been Ms Boateng and, following her birth in October 2004, E, the daughter of Ms Boateng and the father. The mother resides alone in Croydon. Notwithstanding a substantial interruption to which I shall refer, the mother has been having contact with W since 2001.

3. At the hearing before the judge in March 2006 oral evidence was given by the mother, the father, I assume by Ms Boateng, and certainly by Ms Cornelius-Campbell, a senior social worker employed by the London Borough of Newham ("the social worker"), who, rather than a CAFCASS officer, had, at the direction of the court, filed two reports.

4. It is the mother's contention in this proposed appeal that there were two features of the case which pointed inexorably to a decision that W should move to reside with the mother and to have only contact with the father. In that it cannot be argued that the judge omitted to consider them, the argument by Ms Neathy on her behalf today has to be that the weight which he chose to place upon them was so inaptly slight as to render his decision plainly wrong.

5. The first such feature is the fact that W had clearly told the social worker, the mother and indeed the father, that he wished to move to reside with the mother. The second such feature was that there were, as the father and Ms Boateng admitted, grave difficulties in their relationship, such that it had in effect broken down, and also some difficulties in the relationship between Ms Boateng and W.

6. The parents, who originate from Ghana, married in 1998 and lived together until October 2001, when an order was made by a district judge that W should reside with the father. It was apparently only very shortly prior to the date of that order that, taking W with her, the mother had separated from the father.

7. The background to the order made in October 2001 is important. It was that the mother had made the most serious allegations against the father, in particular that he had been sexually abusing W and had been attempting to poison him. The mother had made those allegations first to the police; then to the social services department; then to the CAFCASS officer who reported to the court; and finally to the district judge himself. No evidence had been found to substantiate the allegations and yet the mother persisted in them. The CAFCASS officer reported that the mother was plainly opposed to contact between W and the father; and she categorised the mother's attitude as more intransigent than any which she had previously encountered. Although the CAFCASS officer recognised that, if placed in the care of the father, W would greatly miss the mother, her recommendation was that, in the absence of such a placement, it was most unlikely that contact with the father could proceed satisfactorily or perhaps at all. Her perception, on the other hand, was that, were W to reside with him, the father would ensure that he continued to have a close relationship with the mother.

8. Thus W began to reside with the father alone in Stratford. Contact with the mother began at weekends. But only three months later, the father having written to the mother with a suggestion that, instead of his both delivering W to the mother at the beginning of contact and collecting him from her at the end, the mother should collect W from him at the beginning of contact, the mother ceased to have contact with W at all. The cessation of contact continued for about 18 months, whereupon the mother began to see W, first at school and then again on a normal basis. The father gave evidence to Judge Karsten that, during the 18 months of the mother's absence, W missed her a lot. The judge found that the mother's protracted absence must have been a most traumatic experience for W and that the mother must have been well aware of the ill-effects of her decision upon him. Naturally considerable attention was given at the hearing to the reasons for the mother's cessation of contact. In her written statement in support of her application the mother had explained that, upon receipt of the father's suggestion that she should collect W for contact periods, she felt scared to go to the father's house. The judge observed, however, that in her oral evidence she explained her removal from W's life quite differently, namely that her own circumstances had, during that period, been so unstable that she would not have been able to sustain regular contact with him. The judge elicited, however, that during that time she had been pursuing full-time employment and renting accommodation, although her contention was that it was unfurnished accommodation which she was unable satisfactorily to furnish and, in particular, in which there was no bed for W. That, inevitably, led the judge to observe that such difficulties in no way precluded visiting contact. He also reminded himself that this was a mother who, whether or not she truly believed it, had, only three months earlier, been making the most serious allegations about the danger which the father posed to W. "I am certain", said the judge, "that she has not been frank with this court about this matter". The judge considered that the cessation of contact raised substantial question-marks as to whether the mother could be relied upon to prioritise the needs of W.

9. In August 2005, a month after she had issued her application for a residence order, the mother failed to return W to the father following a period of contact. His return to the father was achieved only following two court orders made during the following fortnight. The judge recorded, without accepting, the mother's evidence that W had been too ill to be returned to the father. Furthermore, apart from one initial telephone call to the father, the mother thereafter remained out of contact with the father, who was unaware of her new address and who was unable to contact her on her mobile telephone, which she alleged to have been broken. It appears, furthermore, that the mother was aware that, five days after her retention of him, W was due to see a clinical psychologist, Dr Martell, and that she allowed him to miss that appointment. W suffers sickle-cell anaemia, as a result of which, notwithstanding medication, he suffers painful and disabling episodes; and concerns about his ability to attend and concentrate in school, possibly linked to his physical condition, had led to the reference to Dr Martell.

10. In her first report to the court, dated 4 October 2005, the social worker reported that the father worked full time as a contracts manager but, to his great credit, had made elaborate and ostensibly successful arrangements for W's day-to-day routine - at an after-school club; by Ms Boateng; and of course, when he was home, by himself. In my view there were four important areas covered by the social worker's first report:

(a) The father and Ms Boateng accepted that there were difficulties in their relationship. The father also seems to have been commendably frank with the social worker in indicating a difference of approach between him and Ms Boateng towards the care of W. He complained that Ms Boateng was in his view too firm with W and that on one occasion he had observed her hitting him. He and Ms Boateng had sought counselling on about three occasions in relation to their different attitudes to parenting.

(b) During the social worker's interview with him in the father's home on 22 September 2005, ie when he was aged seven-and-a-half, W had explained that in 2001 he had wanted to continue to live with the mother; that had not been happy about the contrary decision then made; that he still remained sad about it; that he was worried about the mother; and that he would be sad were the court again to decide that he should remain living with the father.

(c) In the course of her interview with the mother, the social worker had asked her whether, were W were to be living with her, she would ensure the maintenance of a positive relationship between him and the father. To this enquiry the mother had said only that she would abide with whatever was ordered. The social worker observed in her report that the mother had thus not fully answered her question. When she proceeded to ask her whether she had changed her views about the truth of her previous allegations against the father of abuse, the mother said that she had not changed them but added that W was now old enough to report whatever needed to be reported.

(d) In her conversation with the head teacher of the Roman Catholic primary school in Stratford attended by W, the teacher had said that W was a lovely little boy; articulate; well-presented; with a good number of friends; and well- liked. Nevertheless the teacher added that, notwithstanding his apparent intelligence, W's academic attainment was below average and that, in the light of fears about his short attention span, the school had made the reference to Dr Martell.

11. In her second report, dated 17 February 2006, the social worker included further worrying material about the effects upon the father's home of the continued presence of Ms Boateng. The father had reiterated that he disagreed with the way in which Ms Boateng sought to discipline W and had said that on one occasion he had seen her grab W's collar. In his view Ms Boateng was too forceful in making W eat his meals; and even her play with him sometimes verged on the aggressive. It was the father's opinion that Ms Boateng was jealous about his feelings for W. He had explained, however, that W was very fond of E and had developed a strong bond with her. He had expressed great fear that, were W to move to the mother, she would try to poison his mind against him. It had also become clear to the social worker that the relationship between the father and Ms Boateng herself had sharply deteriorated. On the very day of her visit to the home in January 2006, the police had been called to help to resolve a domestic dispute between them, involving minor physical violence. The father had total the social worker that he wanted Ms Boateng to leave the home, whether with E or otherwise; and Ms Boateng had confirmed that the relationship had by then been turbulent for some time. In her report the social worker went on to review the result of a second meeting with W at school on 31 October, ie six weeks after their first meeting. W had then reiterated that he wished to live with the mother; but he had spoken with fondness of E. In a long summary the social worker explained why the local authority felt unable to make a final recommendation to the court on the issue raised by the mother's application. On the one hand the social worker was concerned about W's exposure to the turmoil in the relationship between the father and Ms Boateng; on the other she had reservations about how strenuous the mother would be in encouraging W to maintain a positive relationship with the father, were W were to be in her care. The social worker praised the way in which the father had organised W's life; and noted that W was a personable and likeable child, immaculately dressed, and receiving not only good medical treatment but also the assistance of a tutor employed by the father to supplement his education. The social worker noted that W seemed able to articulate his views and, albeit with a degree of apparent discomfort, had clearly stated his wish to move to live with the mother. The social worker expressed doubt as to whether Ms Boateng was able to offer W consistent emotional warmth. She added, however, that the father had indicated that his living arrangements would change imminently, ie apparently when Ms Boateng at last left his home.

12. In embarking upon his final analysis of the case, the judge observed that potentially there were obvious advantages in a move on the part of W to live with the mother. He identified two main advantages and a third subsidiary one.

13. The first main advantage was that a move would remove W from the present unsatisfactory situation in the father's home. In that regard he had earlier explained the problem in the following words:

"The father wishes [Ms Boateng] to leave and to take [E] with her. Although that has been his position since May 2004, he has been reluctant to 'force her out onto the streets'. The problem is that she is an over-stayer. With the father's support she has applied for permission to remain here on compassionate grounds. Unless and until her position is regularised, she is not able to work in this country or to receive any public benefits. The father explained that [Ms Boateng] is the mother of his child and that it is difficult in those circumstances to force her out unless and until alternative arrangements can be made. He caused his solicitors to write a letter requiring her to leave in January 2006, but he is holding off taking any steps to make her do so for the time being, hoping that she will leave voluntarily. Indeed, he believes that is likely to happen. He says that she has brought cardboard boxes into the house and has begun to pack some things. He says that she has relatives in the Slough area who might be able to accommodate her. It is an unhappy situation, although I accept the father's evidence that the adults are trying to be as civilised as they can about it in the circumstances in the interests of the two children. The father told me, as I think he told the social worker, that since the letter had been written in January things had been somewhat calmer within the household and that [Ms Boateng] was being nicer to [W]."

In his final analysis the judge added:

"Although I accept the father's evidence that he and [Ms Boateng] are doing their best to behave in a civilised way towards one another, there must be difficulties from time to time. Over the medium term, even if at present [W] is not conscious of the problems, it is to be anticipated that he will sense the difficulties."

14. The second main advantage of a move, as identified by the judge, was that W wanted to live with the mother. Earlier in his judgment the judge had recited that W had made his wishes in that regard plain to the social worker during both interviews. The judge added that the father himself had given evidence that W had told him that he wished to live with the mother and that, when the father had asked him why he wished to do so, he had answered that most children of separated parents lived with their mothers; but, according to the father, W had then added that he was nevertheless happy in the father's home. As my Lord, Wall LJ, in the course of argument this morning pointed out to Ms Neathey, it is of some significance that the relationship between W and the father is sufficiently healthy to make W feel able to explain his views to the father. In my view it is also significant that the father was sufficiently honest to relay to the court evidence ostensibly adverse to his case. In his final analysis the judge sought briefly to explore what lay behind the consistent expression of W's wishes: he noted the theory, urged by counsel then appearing for the father, that, unless he was to be living with her, W might again suffer the sudden departure of the mother from his life which had occurred four years earlier. The judge also adverted to the fact that, under the present arrangements, the father enjoyed very little leisure time with W.

15. The subsidiary advantage of a move, as noted by the judge, was that, even were the mother to find work, it would be only part-time work, which would enable her, if she was the residential parent, to be with W for longer periods than was practicable for the father.

16. Then, however, the judge proceeded to weigh fourth disadvantages to the proposal that W should move to the mother.

17. The first disadvantage was that the father had very well demonstrated his capacity to arrange for the day-to-day care of W for over four years, the mother's capacity in that regard was untested.

18. The second disadvantage was that, although the judge had no doubt, in light of the history, that the father would continue genuinely to support the mother's relationship with W, he had considerable doubt whether, were the residential roles reversed, the mother would do likewise. Earlier in his judgment he had said that it was clear both from the contents of the social worker's reports and from the mother's oral evidence to him that she still believed that the father was a child abuser or molester and that she approached the prospect of contact with the father only on the basis that W was by then of an age to protect himself in the event of further molestation. This led the judge, in his final analysis, to say as follows:

"There is, in my judgment, still considerable doubt as to whether, if she had [W] living with her, the mother would support his relationship with his father. She said in evidence that she would, but given her continuing belief that the father is a child molester, I am sceptical about whether she would see to it that the father and [W] continued their present healthy relationship."

The judge proceeded to note that, when W was handed over between the parents, the mother still refused to speak to the father; and had for long failed to supply him with her new address.

19. The third disadvantage related to the judge's concern, arising out of the history, as to whether the mother had the capacity consistently to prioritise W's needs. In that regard the judge then referred to his earlier analysis of the mother's departure from W's life in 2002 and 2003 and her wrongful retention of W in August 2005.

20. The fourth disadvantage was that it would involve an upheaval in W's life, in particular a change of school, a loss of friends and a change in the multi-disciplinary medical team responsible for W's physical and possible psychological difficulties.

21. The judge then elected briefly to cast those advantages and disadvantages into the pigeon-holes set by section 1(3) of the Children Act 1989. Thus it was that, for the third time in his judgment, he referred to the wishes and feelings of W; he added, however, that, at his age and in the light of his lack of experience of full-time care in the home of his mother, his wishes could not be determinative of what was in his best interests. The judge's ultimate conclusion was that, although advantages and disadvantages ran both ways, the right order was to refuse the mother's application and to allow the arrangements for residence and contact set in 2001 to continue.

22. It will thus be seen that the two points pressed on behalf of the mother today by Miss Neathey, namely W's wishes and the presence of Ms Boateng in the father's household, were not only addressed by the judge but cast by him as the two principal arguments in favour of a move. Speaking for myself, I have needed no persuasion by Miss Neathey, who did not appear in the court below, that they were indeed two very important points. Such is, in effect, common ground.

23. In her preamble to her written submissions in relation to W's wishes, Miss Neathey has, with great industry, sought from a variety of legal sources to draw support for the proposition that the voice of the child must be most carefully considered in an issue such as was before the judge. Thus she has made reference to the Gillick case [1986] AC 112; to Article 12 of the United Nations Convention on the Rights of the Child 1989; to the stress laid on the need to listen to children's wishes in the context of contact and domestic violence in In Re: L (A Child) (Contact: Domestic Violence) [2001] Fam 260 at 270; and even to the requirement under Article 13 of the Hague Convention 1980 to consider a child's objection to return to a State from which he has been abducted. With all due respect to Miss Neathey's, I do not think that in this regard there is any need for such jurisprudential supplement to the inclusion in the checklist of relevant factors in section 1(3) of the Act of 1989 of the wishes and feelings of the child, considered in the light of his age and understanding. Miss Neathey rightly points out that W stressed to the social worker in 2005 that ever since 2001 he had been consistently sad that he had not been placed in the care of the mother. It had, indeed, been recognised, at the time when the order was made in October 2001, that W would greatly miss her but it was held that her attitude towards the father compelled an award of residence to him in order in effect to save his relationship with W. Miss Neathey goes on to complain that, in suggesting that W's wishes might be inspired by fear that the mother would again disappear from his life or alternatively be influenced by the greater degree of leisure time enjoyed by him under present arrangements with the mother, the judge was speculating. Of course he was speculating; much of the work done by courts in ascribing motives or explaining feelings is of a speculative character. In my view, however, it was reasonable speculation; and the judge carefully cast it in terms of what was "possible" and what "may be". His very preface to this area of his judgment was that "it is not clear what underlies that wish on his part."

24. The fact is that the judge referred to W's wishes in three separate passages of his judgment and placed them as the second "important" advantage of the mother's proposals. It is the welfare of the child which is paramount. A child's wishes are never legally paramount but may, of course, in particular in a case in which to go against them runs substantial risk of protracted disobedience or at least emotional harm, prove determinative even where other features might point to a different result.

25. The second proposed ground of appeal, whether considered as free-standing or as cumulative with the first, relates, of course, to the position of Ms Boateng in the father's home. I consider that this feature made the case particularly difficult for the judge. The fact was that, for almost two years prior to the court hearing, the father allegedly wanted Ms Boateng to leave the home but she had not done so; and that he felt that he could not simply eject her from it. In my view, notwithstanding criticisms by Miss Neathey, the judge, in the passage which I have quoted, adequately described the problem, namely that Ms Boateng was an overstayer whose application for permission to remain in the UK on compassionate grounds was supported by the father. Thus not only was she apparently not entitled to public housing or state benefits but her application for permission might gravely be prejudiced were she no longer seen in effect to be living with her sponsor and indeed the father of her child. Although the judge referred to the evidence that Ms Boateng had begun to pack her belongings, he realistically refrained from making an express finding that she was on the point of departure. Indeed Mr Horrocks who appears today for the father, tells us in his written submissions that now, five months later, Ms Boateng is still resident in the father's home but that the father has issued legal proceedings against her which he hopes may secure her removal.

26. I do accept that, in his final analysis, the judge concentrated only on one consequence of Ms Boateng's continued residence in the home, namely her poor relationship with the father and the risk of W's damaging exposure to it. The judge did not specifically revert, as he might have done, to the other feature of the evidence in that area, namely the sometimes excessively firm approach on the part of Ms Boateng to W himself. Nevertheless the judge had already referred to the father's own expression of concern about some aspects of Ms Boateng's treatment of W; and I am unable to accept that his failure to revert to that feature in final analysis even arguably represents a flaw in the judge's process of reasoning.

27. Taken in isolation, the problems represented by the presence of Ms Boateng, particularly when allied to the consistency of W's wishes, did make a strong case for change. I did wonder, however, when listening to Miss Neathey's effective and economical submissions this morning, whether, in suggesting that the presence of Ms Boateng created a "likelihood of significant harm" for W, she was going further than the evidence entitled to her to do so. There was no clear evidence before the judge of significant harm, or the likelihood of significant harm arising out of the presence of Ms Boateng, even though there were concerns and risks in that regard. If there was a real prospect of significant harm, as identified by the local authority, there was surely no way in which they would have declined to recommend that W be forthwith transferred into the residence of the mother.

28. But, there were, on any view, substantial factors which ran contrary to the mother's case and which the judge was entitled to, and in the best position to, take into account. The father was indeed proved to have cared for his young son with a remarkable level of success, particularly in the light of his full-time employment. Having seen and heard father, the judge described him as "kind and understanding ... trying to do the best he can to grapple with a not easily soluble problem." Miss Neathey cannot challenge that important assessment, which accordingly for us becomes for us a "given" of considerable significance. By comparison, the judge needed to assess the mother and, in particular, whether a transfer of residence would be a transfer not only into unknown territory but into a situation in which W might lose his particularly valuable relationship with the father. Here, again, Miss Neathey is in considerable forensic difficulty. Basing himself upon the mother's oral evidence, the judge found that she still believed that the father was a child abuser. Miss Neathey cannot attempt to demonstrate to us that there was not evidence before the judge which entitled him to reach that conclusion about her beliefs. Indeed his conclusion was consonant with what the mother had said to the social worker. Granted that such was still her view, the judge was in effect driven to wonder whether, in the event of a transfer of residence, the mother would sustain, or on the other hand obstruct and even destroy, the continuation of W's relationship with the father. That factor thus became, in my view, almost a crucial feature of the case, certainly quite potent enough to entitle the judge to consider that, along with the other arguments against transfer, it outweighed the arguments in favour of it. When, in addition to those considerations, I remind myself of the extraordinarily irresponsible decision of the mother to disappear from W's life for 18 months, I find myself quite unable to subscribe to the argument that the judge was plainly wrong to decline to prefer her candidacy for the future care of W to that of the father.

The fact that a decision which fell to be made by a judge was finally balanced does not, by that feature alone, make an appeal against it more arguable; indeed there is a respectable school of thought that the more difficult the case before the judge, then, in a discretionary situation like this, the less opportunity there is for an appeal to be brought against it. Having considered with care the written and oral submissions of Miss Neathey in support of this application, I would myself refuse permission to appeal.

29. LORD JUSTICE WALL: I agree. Ms Neathey has this morning ably and forcefully put to us the two points in her client's case which were strongly indicative of the appropriateness of a move, namely the child's strong wishes and the unsatisfactory nature of the father's household at present. She was plainly right to do that. But equally plainly the judge had to conduct a balancing exercise. He was fully aware of the two points Ms Neathey has put to us, but he had balanced them against factors which pointed strongly the other way. The most potent of which my Lord has of course identified and enumerated. In particular, there were the father's proven track record as a carer and the real risk if transferred to his mother's care, the little boy would come under the influence which she still maintained that he was in molester and unsuitable person to have contact and therefore the relationship between the father and son might be seriously damaged if not destroyed. There were, of course, the disadvantages involved particularly given the little boy's state of health in a change of regime, both as to school friends and medical care.

30. In my judgment, the judge balanced all those factors carefully in the equation. As the House of Lords recently pointed from the case of Re: J Child Returned Abroad Convention Rights 2005 2 Family Reports 802, that exercise was for him alone and providing he has done it conscientiously and appropriately and exercised a discretion in accordance with it, there is no basis upon which this Court can properly interfere.

31. As I have already indicated, in my judgment, the judge conducted that balancing exercise and reached a conclusion which was plainly open to him.

32. It follows, in my view, that this Court cannot interfere and therefore the application for permission must fail.

33. LORD JUSTICE KEENE: I also agree that this application should be dismissed for the reasons given in both judgments.