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S (A Child) [2007] EWCA Civ 267

Appeal by father against an order that provided for contact between the maternal grandmother and his child, the mother having died soon after the child's birth. Appeal dismissed

The basis for the father's appeal was that he had not consented to the order for reasonable contact and that the judge should have made a defined order after more careful consideration of the father's views.

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Case No: B4/2006/1790
Neutral Citation Number: [2007] EWCA Civ 267
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM WILLESDEN COUNTY COURT
(HIS HONOUR JUDGE MCDOWELL)
(LOWER COURT No. WI04P00151)


Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 23rd March 2007
Before:

LORD JUSTICE BUXTON
LORD JUSTICE WILSON
and
LORD JUSTICE MOSES
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IN THE MATTER OF S (a Child)

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(DAR Transcript of
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THE APPELLANT FATHER APPEARED IN PERSON.

THE RESPONDENT GRANDMOTHER APPEARED IN PERSON with the assistance of her McKenzie Friend..

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Judgment

(As Approved by the Court)

Lord Justice Wilson:
1. A father, who appears in person, appeals against an order by HHJ McDowell in the Willesden County Court on 21 July 2006 in proceedings under the Children Act 1989. The proceedings relate to a boy, J, who was born on 8 August 2003 and so is now aged 3. Twelve days after giving birth to J, the mother, who was married to the father, died. Since then J has resided with the father. The other party to the proceedings and thus the respondent to this appeal is the maternal grandmother, who also appears in person, assisted by a McKenzie friend, namely her son. Residing with her is another child of the deceased mother, namely a daughter, K, who was born on 27 August 1992 and so is now aged fourteen, of whom the appellant is not the father. It follows that K is a half sister of J.

2. The judge's order was made in proceedings brought by the grandmother as long ago as February 2004 for an order for contact between her and J. I am not clear whether the grandmother also expressly applied for an order for contact between K and J; but, in that K lives with her, it was at any rate implicit that she was seeking an order which would preserve and develop not only her own relationship with J but K's relationship with him. In his grounds of appeal the father points out that under s.10 of the Act of 1989 the grandmother required leave to apply for a contact order and one of his complaints is that the judge never considered whether she should be granted leave. I note, however, from a bundle of supplementary documents produced for our benefit by the grandmother that as long ago as 23 March 2004 she was granted leave to apply for a contact order. In that, as I have explained, the order under appeal was made within those proceedings, the father's complaint that the grandmother never obtained leave is misplaced. She had already got it.

3. The order under appeal was expressed to be partly by consent and partly otherwise than by consent. As before us today, so too before the judge each party appeared in person; but on that occasion the father was assisted by a McKenzie friend, as was the grandmother. The order provided, by consent, that there should be reasonable contact between J on the one hand and the grandmother and K on the other. It proceeded to provide, otherwise than by consent, that the contact should be not less than on alternate Saturdays between 1pm and 7pm on the basis that the grandmother should collect J from the father's home and return him to it. It provided that the first occasion of contact should be 11 August 2006. Such was in fact a date which the father himself, faced with the order to which he did not consent, suggested to the judge should be the first day of contact; unfortunately that day was a Friday and I assume that he was intending to suggest 12 rather than 11 August and that the judge intended to provide likewise. The judge listed the matter for review on 15 December 2006; and he refused the father, permission to appeal.

4. The basis of the father's appeal is that he did not consent to the order for reasonable contact and that the judge should not have made the defined order for contact on alternate Saturdays without more careful enquiry and consideration, particularly of his, the father's point of view.

5. The father's appeal cannot properly be considered without reference to the background to the matter; and it has in effect been conceded in the course of the father's short oral supplementary argument today -- supplementary to his written arguments -- that events subsequent to the making of the order also inform its proper disposal.

6. The grandmother's launch of proceedings for contact as early as February 2004 is testament to difficulties in that regard, caused no doubt by one or other or both of the parties, at an early stage following the mother's death. On 22 September 2004 a district judge, by consent, provided that the grandmother should have contact with J for three hours every alternate weekend. That arrangement worked reasonably well at least until about January 2005.

7. In March 2005, however, an event occurred which made the difficult relationship between the father and the grandmother very much worse. The mother had left a significant estate and the father was either her executor or her administrator. What happened in March 2005 was the issue in the Central London County Court of an application by K, acting by the grandmother, for financial provision out of the mother's estate under the Inheritance (Provision for Family and Dependants) Act 1975. On any view the father was furious about this financial claim. In April 2005 he issued an application to discharge the contact order dated 22 September 2004. In the event, on 15 June 2005, a district judge, while giving directions for the assembly of the father's application for consideration by a circuit judge, reaffirmed that on an interim basis contact with the grandmother should take place for three hours on alternate Saturdays; and a penal notice was attached to that order. The father issued a notice of appeal against it to a circuit judge.

8. Sensibly the parties agreed to make use of the mediation scheme operative in the Central London County Court. On 14 July 2005, with the assistance of the mediator, they reached what appeared to be a settlement not only of the claim under the Act of 1975 but also of the issue relating to contact. The order made in that court on that day in the proceedings under the Act of 1975 was to the effect that the claim made on behalf of K was withdrawn on the terms set out in the schedule to it. The schedule provided that the claim should be withdrawn upon payment out of the estate to the grandmother on behalf of K of £30,000, adjustable to a specified extent in specified events. In relation to contact it provided that the grandmother should "withdraw the contact proceedings"; that the father should withdraw the appeal which he had issued against the order of the district judge; that both parties should work to restore the relationship between the grandmother and J; that the grandmother should refrain from making negative comments about the father to J; and "that reasonable access to J is agreed".

9. I am unsure whether the mediator can be blamed for the fact that the somewhat ambiguous agreement in relation to contact was not properly carried into the contact proceedings in the Willesden County Court. Certainly the father withdrew his appeal; but if, which is unclear to me, it was intended as part of the agreement that the grandmother should apply not only that the existing order for contact dated 15 June 2005 should be discharged but also that no order for contact be made, or if, which is another possibility, it was intended that she should ask for a substitution for the existing order of an order for "reasonable contact" with J, the fact is that she did neither of those things. Thus, at the time when the matter came before HHJ McDowell, there seems to me to have remained in force a subsisting defined order for contact between the grandmother and J, namely that made on 15 June 2005. The father might reasonably complain that that order should not have been left to subsist. What he could, however, not have complained about would have been any substitution for that order of an order for "reasonable contact" with J. For such contact had been agreed.

10. In accordance with the mediated agreement the grandmother had an occasion of contact with J three days after it had been reached. Thereafter, however, there was no contact between them until 1 October 2005. That was the last occasion to date when J saw either the grandmother or K. Since then, to date, almost 18 months have passed, a particularly long period in the context of the short life of J. On the face of it it is, from J's point of view, an extremely serious situation that, for whatever reason, his relationship with them has been interrupted for so long; but that comment is subject to the results of the future enquiry to which I will shortly turn. In December 2005 and January 2006 there was correspondence by email between the grandmother's son, on the one hand, and the father on the other. The son was asking for contact between J and the grandmother to be resumed. Unfortunately at this time conflict developed as to whether one of the events which had been agreed to trigger an adjustment to the sum of £30,000 payable to K had occurred. Only in March 2006 was this conflict resolved upon the basis that K would receive £27,500 rather than £30,000. I note, however, that more recently the father has been contending that the grandmother should pay his costs referable to the claim under the Act of 1975; her response is that the contention runs entirely counter to the agreement.

11. In March 2006 solicitors instructed by the grandmother wrote to the father with a view to securing the reasonable contact which had been agreed. By letter to them dated 13 March 2006 the father responded:

"The various proceedings at Willesden County Court, settled by mediation, did indeed deal with a financial settlement. As outlined in that mediation agreement, and incorporated by Court Order dated 14 July 2005, successful completion would be based on all aspects of that agreement. Your client is choosing to contest that agreement. In the circumstances that your client is contesting the financial settlement as an inseparable part of that agreement, it cannot be possible to consider contact between [J] and your client at this time."

The father's position in March 2006 is sufficiently clear from the letter but in a position statement dated 31 October 2006 and filed in proceedings after the order under appeal was made he made the following specific acknowledgment:

"March 2006 – due to the constant threats made by Mrs Cameron and her subsequent dishonouring of the agreement in [the proceedings under the Act of 1975]I decided that contact between her and my son would clearly not be in his best interests. Those threats, if carried out, would have seriously undermined my ability to raise [J] and would have had an effect on his general well-being. [The grandmother's] actions and threats were inconsistent with her considering my son's best interests."

12. By application made in the original proceedings on 12 April 2006 the grandmother, who had clearly been denied reasonable contact with J notwithstanding the agreement, applied to the court for a further order. It was returnable on 15 June 2006. On that day only the grandmother appeared before the court. HHJ Copley adjourned her application until 21 July, directed the father to attend the hearing and attached a penal notice to his direction. The father is very aggrieved by that order. It seems that, unknown to the judge, the father had not been served by the grandmother with her application; it also seems, albeit most curiously, that the court had not notified the father of the date of the hearing and that somehow its attempted notification of him had not reach him. Upon his receipt of the order dated 15 June the father wrote to the court and explained that until then he had been unaware of the proceedings. Later, following an application by letter on the part of the father to adjourn the hearing on 21 July, the court by letter informed him that the judge had refused the application but it purported to enclose a copy of the grandmother's application. In fact, the father tells us, one page of the copy, namely the most important page, was missing. The other pages, which certainly indicated to him that the grandmother was again seeking an order for contact, were received by him two days prior to the hearing on 21 July.

13. Before I turn briefly to the criticisms sought to be made of the hearing conducted by Judge McDowell on 21 July, it is important to note what has happened subsequently. The father promptly filed an Appellant's Notice in this court in which he sought permission to appeal. It is far from clear however, that it was realised either by the grandmother or by the Willesden County Court that the father had done so. He sent what, in my view, is a series of curious letters to the grandmother in which he did not mention that he had approached this court and was seeking a stay of execution of the contact order pending appeal. In his first letter, dated 9 August, he stated that, presumably without checking a calendar, the judge had erroneously provided for contact on a Friday, namely 11 August, rather than a Saturday. I have already explained that it was the father who had provided that erroneous date to the court. In the letter he also stated that, if and insofar as the grandmother expected the contact to take place on 12 August, "we will be out of town for the day". During the next three months he sent five further letters to the grandmother, in which he wrote only that "my son is unavailable" on forthcoming Saturdays specified in the letters.

14. On 10 October 2006, perhaps still unaware of the attempted appeal, the grandmother applied for the attachment to the order dated 21 July of a penal notice. Her application came before Judge Copley on 6 November. Although the father did not appear at the hearing, for reasons which are unclear to me, he had filed the position statement dated 31 October 2006 to which I have referred. In it he explained that he had filed notice of appeal in this court against the order dated 21 July. He also stated that he believed that only a full hearing, with the involvement of CAFCASS as a mediation service and expert, would finally put an end to the contact proceedings. At the hearing on 6 November Judge Copley indeed accepted that the ongoing difficulties in relation to contact were fit for a CAFCASS report and he directed that it should be filed by 2 March 2007; he adjourned the matter for review on 16 March and, in the absence of resolution in the interim, for final hearing on a date which was subsequently fixed for 6 June 2007.

15. Recently, on 2 March 2007, the CAFCASS officer duly filed her report. She reported that she had been unable to interview the father because he had twice failed to attend her offices for interview on the dates offered to him. The father tells us today, mysteriously though it seems to me, that the letters by which she invited him to attend for interview on those dates were not received by him. Be that as it may, apart from reading documents on file, the officer had thus succeeded in interviewing only the grandmother and K. In the report, albeit accepting that she had been given only one side of the story, the officer expressed grave concern, from J's perspective, at the continuing absence of contact between him on the one hand and the grandmother and K on the other.

16. Apparently the father was under the impression that, in granting him permission to appeal, Ward LJ on 31 January 2007 had sought to stay any such future proceedings referable to contact as Judge Copley had embarked upon by his directions given on 6 November. In the judgment in which he granted permission Ward LJ had said:

"Meanwhile I think I should grant a stay on the order, in fact no contact has been taking place so I am told, and rather than have further proceedings for penal notices and goodness knows what, it is better to impose a stay in the hope that the appeal can be heard quite shortly."

It is clear to me that Ward LJ stayed execution of the order for fortnightly contact because, until determination of this appeal, he did not want to enable the grandmother to pursue enforcement of it, whether by the attachment of a penal notice or otherwise. It is inconceivable that he wished to discourage the father from cooperating either with the court or with any CAFCASS officer or other professional charged with making enquiries or otherwise assisting towards resolution of the issue between the parties. The father tells us today that he also failed to attend the review hearing which Judge Copley had on 6 November fixed to take place on 16 March. He explains in effect that he was so preoccupied with the preparation for today's hearing that he was unable to do so. We understand that on 16 March, in the light of the father's non-attendance, Judge Copley adjourned the directions hearing until 30 March.

17. In the light of the background which I have described it was explained to the father at an early stage this morning that this court had little appetite for expenditure of much of its time on this appeal; and it is fair to say that the father was receptive to those comments. The fact is that Judge Copley has already embarked upon his own enquiry into the merits of the contact issue; and there is no reason in my view why the father should not have attended the two court hearings in the Willesden County Court in November and earlier this month and certainly no reason why he should not in future cooperate in the enquiries which are there underway.

18. I also hope and expect that, whatever may have been the fate of the two letters sent to the father by her inviting him for interview, Ms Onitilo, The CAFCASS officer, will make time in her diary for a further interview of the father and will invite him to attend on a day soon at which he can be fully interviewed by her, as a result of which, she can, with an open mind, write a supplemental report for the use of Judge Copley at the forthcoming hearing on 6 June 2007.

19. The grandmother, for her part, has indicated to us that she is prepared to undertake that, in the event of our dismissal of the father's appeal, she will not seek to enforce the order dated 21 July 2006, unless and until, having conducted his own investigation in June Judge Copley, who of course may in any event choose to vary or discharge that order, so permits.

20. In short, as the father has quite readily accepted, this appeal has become academic.

21. Perhaps it is only as a matter of good manners to the father, particularly because of the amount of effort which he has clearly invested in the preparation of his arguments for this appeal, that I turn finally to look shortly at the merits of his appeal. He has very fully explained the basis of his appeal in his written presentations, notwithstanding that his oral argument referable to them this morning has been, as a result of the developments to which I have referred, short.

22. Within the father's general complaint that Judge McDowall unfairly steamrollered the hearing through to a premature conclusion, reflected in his order, it seems to me that the first question is whether the father is properly recorded as having consented to an order for reasonable contact. In this regard we have the benefit of an official transcript of the entire proceedings before the judge on 21 July 2006. It runs to 23 closely typed pages and, although I believe promptly bespoken by the father, it was not produced by the Willesden County Court for about three months, being a delay of which Ward LJ was extremely, and understandably, critical. Apart from the grandmother's application, there was no recent written material, such as witness statements, before the judge, still less a recent CAFCASS report. The judge would presumably have had access to the substantial court file; but the transcript does not betray any great deal of background knowledge of the matter on his part. He did not ask either party to give evidence before him; and the case proceeded entirely on the basis of submissions by the parties, and occasionally, on behalf of the grandmother, by her son, her McKenzie friend. In the transcript I see no objection on the part of the father to the occasional verbal intervention of the son, such as the father now makes in his grounds of appeal; and I consider that the judge had ample power to allow the son to give occasional verbal help to the grandmother to articulate her case.

23. At the outset of the hearing the judge asked the father whether his objection to contact was in principle or related to practical arrangements for it. The father's reply was "I suppose it's a bit of both". The father then went on to explain that he had no objection to contact between J and K but that he was hostile to the principle of contact between J and the grandmother because of the risk that she would denigrate him to J. It is clear that the judge found the father's objection unconvincing. Soon the father indicated to the judge that he was fully in favour of supervised contact between J and the grandmother. Asked by the judge why the contact should be supervised, the father indicated that such would protect J's mental wellbeing. Then, however, the father referred to the mediated agreement in 2005 and, after an initial misunderstanding on its effect on the part of the judge, the father explained that part of the settlement had been to the effect that the contact proceedings should be brought to an end and that there should then be "reasonable contact". "That", responded the judge, "is exactly what I want to achieve." Almost immediately the discussion then turned to specific arrangements for contact.

24. I think that it is borderline as to whether the father can properly be said, on 21 July, to have been consenting to an order for "reasonable contact". I believe that it may have been open to the judge to consider, at the end of his exchanges with the father, that, by the father's reiteration of the agreement in 2005 for reasonable contact, he was adhering to that general principle. If, however, that construction is, as it may be, wrong, then I conclude that it was in any event irrelevant whether the father was on 21 July consenting to an order for reasonable contact. In 2005 he had consented to reasonable contact. And on the court file there were court orders, including the subsisting order dated 15 June 2005, for defined contact, which of course indicated that, regardless of the father's view, the court considered that this was a case in which there should be contact. On balance I consider that on 21 July 2006 the father was not presenting even a prima facie case as to why the contact which was in J's interest in 2005 was by then no longer in his interest. And we know the fact of which the judge was almost certainly unaware, namely that in March 2006 the father expressly and improperly linked his refusal of contact with an issue unrelated to the welfare of J, namely the continuing dispute under the Act of 1975.

25. The more general complaint of the father, couched in part by reference to his rights under Article 6 of the European Convention on Human Rights 1950, is that the judge failed to give him a fair hearing in relation to his concerns about contact before making, in particular, the defined order for fortnightly contact. In this regard the father has arguable points. He had received the grandmother's application, with a page missing, only two days earlier. There was no witness statement on her part; nor on his. The father argues that, once acquainted with the fact that he was objecting to contact, whether in principle or as defined, and that he had had so little notice of the application, the judge should have adjourned the application and given directions for the assembly of the issue by witness statements and a CAFCASS report. I agree that, although it would have added to the delay, such would have been a course well open to the judge. But there are occasions when the interests of a child who is the subject of proceedings under the Act of 1989 require, or at least entitle, a judge to be robust. Faced with a grandmother and a father appearing before him in person, the judge was in my view entitled to initiate a dialogue with them with a view to arriving there and then at what is by normal standards, and without prejudice to the enquiry to be conducted by Judge Copley on 6 June, an entirely conventional arrangement for contact, particularly an arrangement which, in that the judge provided for review after five months, was of an interim character. In Re B (Minors) (Contact) [1994] 2 FLR 1 Butler Sloss LJ said, at 5 f-h:

"In my view a judge in family cases has a much broader discretion … to conduct the case as is most appropriate for the issues involved and the evidence available … There is a spectrum of procedure for family cases from the ex parte application on minimal evidence to the full and detailed investigations on oral evidence which may be prolonged. Where on that spectrum a judge decides a particular application should be placed is a matter for his discretion. Applications for residence orders or for committal to the care of a local authority or revocation of a care order are likely to be decided on full oral evidence, but not invariably. Such is not the case on contact applications which may be and are heard sometimes with and sometimes without oral evidence or with a limited amount of oral evidence."

There is perhaps a fine line between a judge's attempt to assist parties, particularly those who lack professional assistance of their own, to arrive at what he regards as a sensible solution of an issue relating to a child and an improper obstruction on his part of their right to present their case. The recent case in this court of Re C (Contact: Conduct of Hearings) [2006] 2 FLR 289 is an example of the latter. Having read and reread the transcript of the proceedings in this case, I consider that the judge's conduct at the hearing falls on the legitimate side of the line.

26. Indeed in my view the transcript is testament to the thoughtful way in which, by discussion, the judge sought to promote a more constructive relationship between the parties in relation to contact. He led the discussion not only, necessarily, in relation to the optimum arrangements for the fortnightly contact, including as to its venue and the arrangements for J's collection and return; and not only in relation to a possible future enlargement into staying contact. He initiated discussion about the need on both sides for flexibility when the pattern of contact had to be interrupted by holiday or illness or social engagements; and the need for mutual notification in the case of last minute delays or difficulties. He spoke of the meals which it might be appropriate for each party to provide for J on days of contact and the need for each to notify the other of any perceived allergy in J to particular food. He made clear to the grandmother, which she at once acknowledged, that any denigration of the father in the presence of J, particularly now that he was becoming older, was inimical to his welfare. Then the judge led a discussion about activities conducted with children during periods of contact which might not be in their interests. Here the dialogue took an unfortunate turn. Apparently without realising that the father was a Jehovah's Witness, the judge recalled that in his professional experience there had been cases in which, during contact, a parent who was a Jehovah's Witness had caused the child to accompany him or her on house-to-house visits and that the firm rebuff with which some householders respond to Witnesses had been upsetting for the child. The father has taken offence at that remark, which in my view he groundlessly asserts to have been discriminatory against him as a Jehovah's Witness. Well aware as the courts are of the many decent and honourable aspects of the beliefs and activities of Jehovah's Witnesses, I consider that it was entirely open to the judge to suggest in passing that it would not be in the interests of a small child during contact periods to accompany them in their controversial proselytising from door to door.

27. I would dismiss the appeal.

Lord Justice Moses:
28. I agree.

Lord Justice Buxton:
29. I also agree.

Order: Appeal dismissed.