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W (A Minor) [2010] EWCA Civ 1280

Application by a mother for permission to appeal an order which transferred the residence of her child to the child’s paternal grandmother. Permission refused.

The mother of a girl aged 3 (P) sought permission to appeal orders made dismissing her application for residence and unsupervised contact and transferring residence to P's paternal grandmother.

Proceedings had commenced in November 2007 with P's father applying for contact. Over the course of the following three years, the mother had consistently breached orders for contact, failed to attend at hearings, and made unsupported allegations against the father. She had at various times alleged that he was not P's father, that he had been violent to her, that he was a paedophile, that he was known to police, that he was a drug dealer, and that he had a blood infection and would infect P. None of these allegations had been corroborated, and the mother had failed to comply with orders to produce a Scott Schedule. By the time of the final hearing in October 2010, the mother had failed to bring P to contact without proper excuse on 28 out of 34 occasions. The President stated of her actions that it was" difficult to imagine a more contemptuous treatment of the court or a greater disregard of P's interests".

During the course of proceedings, the mother had been committed to prison for seven days for contempt, a guardian had been appointed for P, and an interim supervision order and s.37 report provided. The local authority had decided not to take care proceedings.

The judge's decision to transfer residence to the paternal grandmother had not been by way of punishment for her failure to obey court orders, but had been a classic balancing exercise between, on one side, the harm to P from the disruption of separation from her mother, and on the other, the emotional harm if she were to remain in her mother's care caused by the mother's unremitting hostility to the father.

The President found that the assessment that the judge had made was a proper exercise of discretion, and that there was therefore no reasonable prospect of a successful appeal. He dismissed the application.

Summary by Gillon Cameron, barrister, 14 Gray's Inn Square

___________________________

This judgment is being handed down in private on 17 November. It consists of 11 pages and has been signed and dated by the judge.  The judge hereby gives leave for it to be reported.

The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.

Case No: B4/2010/2350
Neutral Citation Number: [2010] EWCA Civ 1280

IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM IPSWICH CROWN COURT
HER HONOUR JUDGE LUDLOW

BV07P00749
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 18/11/2010

Before:
SIR NICHOLAS WALL
THE PRESIDENT OF THE FAMILY DIVISION

 - - - - - - - - - - - - - -

 RE W (A MINOR) 
 
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The Appellant appeared in person

Hearing dates: 10 November 2010
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Judgment
Sir Nicholas Wall P. :
1. This is an application by the mother of a girl aged 3 (whom I will call "P") for permission to appeal against  orders made on 14 October 2010 in the Ipswich County Court by Her Honour Judge Ludlow. One of the orders which the judge made (and the only one in my papers) contains a number of recitals dealing with the mother's disobedience of previous court orders and recording that it had been made clear to the mother that if there were any further breaches "the court would show no hesitation in considering a sentence of immediate imprisonment". This order also records both the offer to  the mother  of a psychological assessment of herself  and the mother's denial that there was any need to such an assessment.

2. Paragraph 1 of the order dismisses the mother's application for residence and extended / unsupervised contact, and records that the proposals for contact made by the guardian were accepted. The order then contains a number of prohibitions and detailed provision for the mother's contact with P. The judge also made a Family Assistance Order and listed the case for further directions before herself on 14 December 2010. All the parties were also given liberty to apply for an urgent directions appointment on 72 hours notice.

3. The order  which I have been summarising does not commit P's residence to her paternal grandmother. There must, accordingly, be another order which is not in my papers. The judge did, however, undoubtedly make such an order, and it is this order, combined with the dismissal of her own application, which form the focus of the mother's application.

4. I heard the case on 10 November 2010. Most unfortunately, the transcript of the judge's judgment (which runs in total to some 141 paragraphs over 42 pages of single-spaced typed A4) had been supplied to me in a incomplete form, and stopped at paragraph 53. Fortunately, the mother had a complete copy of the judgment with her, and I was  able to complete my reading of the transcript before I came into court. Given the importance of the case to P and to the mother, and given the feeling which the case  has plainly engendered, I  thought it sensible to reserve judgment, and to give myself the opportunity to re-read the papers. This I have now done.

5. Before I turn to the merits of the mother's application, I need to remind myself of  my function and my powers. I am hearing an application for permission to appeal. Many litigants, particularly those who are not lawyers, have the impression that the Court of Appeal has very wide powers, and can do what it likes. The reality is very different.  Under the Civil Procedure Rules 1998 (CPR) I can only grant permission to appeal if, in the words of CPR 52.3(6):-

(a) the court considers that the appeal would have a reasonable prospect of success; or
(b) there is some other compelling reason why the appeal should be heard

6. In this case, the mother is seeking permission to appeal against a residence order. Residence orders, as is well understood by lawyers, are made by judges in the exercise of their judicial discretion. There is no rule of law which says that a judge must make a residence order in favour of a particular person in particular circumstances. Section 10(1) of the Children Act 1989 (the Act) says that the court "may" make a residence order.  In deciding whether or not to make such an order, P's welfare is the judge's paramount consideration (section 1(1) of the Act). In addition, the court has to apply the so-called "welfare check-list in section 1(3).

7. In these circumstances, only two questions arise for my consideration. The first is whether or not the judge made any error of law. The second  is whether or not she exercised her discretion in such a way that I am able not only to disagree with her but to say that she was, arguably,  plainly wrong. If the judge exercised her discretion in a way that was properly open to her, I cannot give permission to appeal, even if I disagree with her.

8. In the present case, the judge plainly did not make any error of law. She applied section 1(1) of the Act and the welfare checklist. The question, therefore, is whether or not it is arguable that she exercised her discretion inappropriately. To answer that question, I have to look carefully at the judgment.

9. Unfortunately, in this respect, I got no help from the mother or her McKenzie friend, P's maternal great grandmother. Neither is, of course, a lawyer.  However, the only mention of the judgment which the maternal great-grandmother made was to acknowledge that the judge had acted "within the law". By that  I took her to mean that the judge had jurisdiction to make a residence order, and that her order was not unlawful.   I did not take the remark as a concession that the judge had made a proper order, let alone the right one. Otherwise, all the maternal great-grandmother's submissions were all criticisms – notably of the father, the CAFCASS guardian and the social workers.

The judgment
10. As I tried to point out to the maternal great-grandmother, the judge's judgment is the crucial document. I also need to point out, lest it be forgotten,  that the mother was represented before the judge by counsel and solicitors. No point arises under Article 6 of the European Convention on Human Rights'

11. The judge begins by setting out the applications with which she had to deal. She then spends from paragraph 5 to paragraph 87 setting out the background. It is, I have to say,  a lamentable tale of wilful disobedience of court orders by the mother, and a disregard by her not only of the court but, more importantly, of P's interests.        .

12. The judge begins by recording that Ps father made an application for contact as long ago as 14 November 2007. The first appointment was on 8 January 2008, The mother did not attend. The case was re-listed for 4 March, and the mother attended. The father did not. The mother told the district judge that P was not the father's child. That was a lie. She did not, however, agree  to DNA testing.

13. On 4 March 208, the district judge directed that the application should be dismissed if the father did not restore it by 4 April. He did so, and the case was adjourned to 20 May 2008. Again, the mother did not attend, and the case was adjourned to 1 July. On that occasion the mother attended and was advised to obtain legal representation. The case was then adjourned to 26 August 2008 when, once again, the mother did not attend.

14. On 26 August an order for DNA testing was made and the case re-listed for 7 October 2008, by which time it was anticipated that the testing process would be complete.  The mother was ordered to attend and a penal notice was attached to the court's order designed to secure her attendance. However, she did not attend although there is a record that she telephoned twice to explain that she would not be attending as she had to go to a hospital appointment which had been arranged the day before. The father applied for the mother's committal as the only way of securing her cooperation with the proceedings.

15. On 27 November 2008, when the proceedings had already been in place for a year, the case was transferred to Ipswich. However, when an attempt was made to serve the mother with the committal papers, she declined to take them. She was told what the papers were and that she should seek legal advice as she was in danger of being sent to prison. The mother replied that "they" could not make her go to court. She did not want to go and would not be attending.

16. On 15 December 2008, the mother was arrested and the contempt was found proved. The judge (HH Judge Thompson) passed a sentence of seven days imprisonment suspended for 15 days to enable the mother to comply with the order for DNA testing. She chose not to comply and her committal to prison ensued.

17. On 9 February 2009 the case was listed for directions before Judge Ludlow. The father sought a declaration of paternity.  The judge gave directions and listed the case for 27 February to enable the mother to file evidence.  The mother did not do so, nor did she attend on 27 February. The judge heard the father and made an order. The father was ordered to file a statement setting out his case for contact; provision was made for the mother to reply and a CAFCASS report was ordered. The father complied with the order: the mother did not. The next hearing  was fixed for 1 June 2009

18. On 24 April 2009 the CAFCASS officer wrote to the court setting out her attempts to interview the mother. The mother told the officer that the father was not P's father. The real father, she said, was on P's birth certificate, which she refused to show the officer.  She said (untruthfully) that the father had never met P. She told the officer that  she did not intend  that the father would ever see P.  She also told the officer that  she had no intention of allowing her to see P. As a consequence, the officer formed the view that the mother had no intention of cooperating with the proceedings,  which needed to be brought forward so that P could be made a party and a guardian appointed for her.

19. That is what happened on 15 May 2009, at a hearing which the mother did not attend. A report from the guardian (the same CAFCASS Officer) was ordered and the case was adjourned to 23 June 2009. By this time, the father had made an application for residence.

20. In her report the guardian recorded attending the mother's home. The mother was not there. The guardian then asked the mother to contact her. The mother failed to do so. The guardian had still not met P. She was, however, able to speak to the Health Visitor whose report on P was positive.

21. In her report, the guardian expressed her anxiety that the mother was apparently unconcerned about going to prison and laving P to be cared for by others whilst she was in prison. The judge comments on the lack of progress made.

22. I do not have the reports to which the judge refers. However, it is plain that they contain criticism of the father, who has a history of drug and alcohol abuse, as well as recording the fact that the mother appeared to look after P very well physically, However, the guardian concluded that unless the mother was willing to involve the father in P's life the court might have to consider involving the local authority.

23. On 22 June 2009, the mother attended court with a legal representative and accepted that P was the father's child. However, she made allegations of significant domestic violence, with the consequence that  the court ordered her to made a statement and prepare a Scott schedule with a view to a finding of fact hearing on 6 and 7 August 2009. Both parties were to file and serve hair tests.

24. The judge who conducted the hearing on 22 June 2009 made an interim order for contact at a contact centre to be supervised by CAFCASS. A penal and enforcement notice was attached to the order.

25. On 21 July 2009 the guardian again reported on repeated failures by the mother to meet her, together with an allegation that P suffered from "hypermobility", something which the Health Visitor had not mentioned to the guardian.  The mother had also not obeyed the order for hair testing, a disobedience which had persisted to date.

26. On 17 July 2009,  the mother alleged to the guardian on the telephone that  the father was a paedophile, and that taking P to  contact would be like "exposing her to Ian Huntley". This was the first time the mother had made this particular allegation.

27. On 18 July 2009, the maternal grandmother arrived at the contact centre with her young son. She said that the father was a paedophile who had had sexual intercourse with the mother at the age of 13 and who had had another relationship with a 13 year old. She added that both the mother and herself thought  P had swine flu and that the mother had taken P to the Accident & Emergency Department of the local hospital.. When the guardian suggested that medical evidence should be provided, the maternal grandmother stated that the mother had no intention of complying with the contact order.

28. By this time the guardian had formed the view that,  if the reasons the mother gave for withholding contact proved unfounded, the mother's refusal to allow P to have any form of contact with her father constituted emotional abuse. At about the same  time, the mother's attacks on the guardian began.  The maternal grandmother said that she thought the guardian's attitude was "unprofessional and pressurising". There were ongoing difficulties arranging contact . The mother had not filed her Scott Schedule or her statement dealing with the allegation of domestic violence.

29. By this time also, the judge had decided to take control of the case. She had reasonable grounds for believing that the threshold criteria for a care or supervision order under the Act were  met.  She explained the matter carefully to the mother. She vacated the August hearing  and ordered that the mother's evidence (including the Scott Schedule)  had to be filed by 7 September. She extended the time for the hair tests. She made an interim supervision order in favour of the local authority and ordered a report under section 37 of the Act.

30. The section 37 reporter recorded that the father was "trying to change things in his life and had tried to work with various agencies to achieve this". He was unsuccessful in  seeing  P. However, the Health Visitor had no concerns, and the fact that the mother left P with her grandmother was not, for the section 37 reporter, a welfare consideration. The maternal grandmother told the guardian that the mother had moved. She had not informed the court or the father that she was moving.

31. On 6 October 2009 there was a hearing at which all the parties were present and represented. Although it was accepted that the section 37 report was incomplete, the judge found the threshold criteria under section 38 of the Act satisfied and took the view that the only way the local authority would be able to complete its investigation would be if it shared parental responsibility under an interim care order.

32. During the course of her evidence, the mother said repeatedly that the father was a paedophile, who was known to the police as such. The judge was plainly concerned about such an allegation. and gave the mother's solicitor the opportunity to take instructions. As a result the judge was given the names of four young women who, the mother claimed, had made allegations of sexual abuse against the father. The judge provided for full disclosure to be made by the local police.

33. The mother also alleged that the father had vandalised his flat and was being anti-social as a tenant. She said he was currently selling drugs. The judge accordingly gave permission for the mother to file evidence setting out her case. As the judge comments, the mother "could have been in no doubt that the court took the serious allegations she made very seriously indeed" and took urgent steps to investigate them. A fact finding hearing was set for three days on 20 November and 3 and 4 December 2009. In addition to these maters, the judge order supervised contact to the father on a fortnightly basis.

34. The mother did not comply with these orders. Furthermore, the disclosure by the local police showed no sexual allegation – or indeed any other kind of allegation – against the father in respect of the mother's list of complainants. The mother now asserts – without providing any evidence in support -  that the young women in question have been threatened by the father and are unwilling to come forward for this reasons. in addition, the father's housing association evinces no real concern about him. The mother continued to fail to bring P to contact. It is difficult to imagine a more contemptuous treatment of the court or a greater disregard of P's interests.

35. The judge ordered a directions hearing on 9 November 2009. The mother attended in person. She was given the evidence from  the police and the housing association. She accepted that she had not filed evidence as ordered. The consequences of her actions were spelled out to her, and the judge at this point reads into her judgment five paragraphs of the order made on that day in which the mother acknowledged her default and indicated that she would cooperate with the local authority.

36. On 24 November 2009. the section 37 reporter reported. It is right to record, as the judge does, that P presented as " a well cared for and happy child, able to play and interact with others appropriately, with good relationships with her mother and maternal grandmother".

37. The section 37 reported  also described the mother's partner, whom P was allowed to believe to be her father. The mother  maintained her criticisms of the father, without providing any evidence in support,  describing him as selling heroin, and a drug and alcohol user, associating with "undesirables" and  sleeping with under age girls. It transpires that with the maternal grandmother's knowledge, the mother lived with the father when she was 14 until she was 16. The maternal grandmother had, it appears, made no complaint – a fact commented upon by the judge.

38. The section 37 reporter met the father and explored the father's drug use with him. The father admitted  that he used cocaine fortnightly and was open about the domestic violence which  his father had inflicted on his mother prior to their final separation.  The father told the section 37 reporter that he  had met the maternal grandmother in town and that she had told him he could have contact if he dropped the court case. There had, of course, been no contact at all up until then.

39. The local authority decided not to take care proceedings in relation to P.

40. On 30 November 2009 there was another hearing. The mother did not attend, although everybody else did. The mother had filed no evidence and the judge states that her order "formally records the court's reasons for finding the mother's allegations against the father in relation to sexual abuse,  drug dealing and domestic violence to be unsubstantiated and not proved". Furthermore the judge  finds as a fact that the mother had no evidence and had lied about  there being police evidence which would back her serious allegations.

41. The judge vacated the remainder of her fact finding hearing and  provided for a review on 14 December 2009. She provided for two periods of supervised contact prior to the review and made an interim supervision order. Neither contact took place. The mother did not bring P although the father, whose alcohol trictotest had indicated that he was not abusing alcohol,  attended sober on both occasions.. The guardian's attempts to talk to the mother resulted in a text from the maternal grandmother which included the words: "Don't contact me again. I will never answer my 'phone to you because you can't be trusted. You are harassing me and that is illegal".

42. On 14 December 2009 the mother again did not attend and the court fixed 18 January 2010 for the hearing, inter alia, of the father's application to enforce the contact order. Before then it transpired that the mother  had attended the contact centre with P some 50 minutes late, thereby rendering contact impossible.

43. Contact finally took place on 13 January 2010. The mother was supportive, and the visit was very successful. The father demonstrated his ability to communicate with P.

44. On 18 January 2010, the mother did not attend. The judge adjourned to 10 February 2010 for sentence. The guardian described the mother, accurately in my view, as "seeming to defy the court orders without compunction". 

45. By the time the judge came to pass sentence in February 2010 the judge had both reports from the guardian and the section 37 reporter. Neither recommended the separation of mother and child. The judge made an order that the mother complete 50 hours of unpaid work. She also made a further contact order. As I understand it, the mother has not completed the unpaid work.

46. Difficulties over contact persisted, although the guardian describes P as "comfortable and relaxed" with the father. When the mother encouraged P and was supportive, contact went well. However, the mother raised a fresh batch of allegations against the father, which had been raised by the mother, inappropriately, in the child's presence.

47. On 12 April 2010 there was a further hearing at which the mother was represented.  An order was made to which the mother contented. Both parents agreed to hair testing.  There were to be eight weekly contact sessions, and a six month family assistance order was made.

48. On 12 June 2010 the mother announced that she would not bring P to contact as the father had a blood infection and would infect the child. Outside the contact centre, the maternal grandmother alleged that bringing P into the centre would expose her to catching aids from the father.

49. On 26 May the mother was evicted from her accommodation by court order. The section 37 reported was of the view that the mother had never lived n the address from which she was evicted.

50. By the time of the final hearing before the judge, she records that by 20 August some 34 contact visits had been ordered. The father had failed to attend without proper reason for three of those contacts and the mother had failed to bring P to 28 of them without proper reason. On one occasion, as the judge accepted, the mother had valid medical reasons for not bringing the child. Also by this time, the judge was satisfied that the home of the paternal grandmother was a suitable venue for contact..

51. Having recoded the history of the matter. the judge then summarise the evidence she had read and heard. She had plainly read all the documents. In addition, she took oral evidence from  a number of witnesses, including, of course, the mother and the father and the paternal grandmother. The mother, the father and the child were all legally represented before the judge.

52. I have summarised the judge's recital of the history for one very simple reason. If the judge had changed P's residence as a means of punishing the mother for her failure to obey court orders, this would plainly be an inappropriate exercise of discretion, and would form a legitimate basis for an appeal. The mother's conduct is about as bad as it is possible to get, but that is not necessarily a basis for removing P from her care. The judge had to decide that question on the basis of what was in P's interests. It is, accordingly, important to look at the remainder of the judgement with care.  

53. The judge then deals with the law, which she accurately summarises between paragraphs 85 and 87. She then applies the welfare checklist. She does so carefully and conscientiously over many paragraphs. This leads her to compare the respective capacity of the mother and the paternal grandmother to care for P.  Her conclusion in relation to the mother is expressed in paragraph 114 of the judgment, which I propose to cite: -

I am satisfied that the spiral of the mother's actions shown over nearly three years is such that there is a real and formidable risk that P will, through at worst total deprivation and at best a disruption and negative distortion of her  relationship with her father, be deprived of part of her central emotional needs and rights to have a warm and meaningful relationship with her father, who I am satisfied on all the evidence is, for the purposes of visiting contact, and may well in the future for staying contact a safe, caring father.

54. The judge was plainly impressed by the paternal grandmother, as was the section 37 reporter.  She acknowledges that the paternal grandmother does not and could not have the same relationship as the mother has with P. Despite this, the judge was satisfied that P not only knew the paternal grandmother and was beginning to get used to her home, and to have the opportunity to meet her uncles and aunts who live there. The judge was confident that the paternal grandmother had the ability to handle the difficult situation were P to be transferred to her care.

55. The judge rejected the proposition that the mother would now comply with contact. she records a number of the mother's answers, including the suggestion that P "has a perfect mum. It's wrong. It's disgusting".

56. Like the guardian, the judge had no confidence that the mother would comply with contact order or cooperate in restoring a relationship between P and her father. The judge, in my judgment, conducted a classic balancing exercise. On the one had was the child's relationship with her mother sand the disruption which a separation would cause. One the other was the mother's unremitting hostility to the father  and the emotional harm to P which was being and which would continue to be caused to P  were she to remain in her mother's care. Having conducted that  exercise, the judg4 came down in favour of a move.

Conclusion
57. In my judgment, the course which the judge took was one which was properly open to her on the evidence. In my view, the contrary is unarguable, The judge plainly  did not move P as an act of frustration or irritation at the mother's contumelious conduct. She moved P because she took the view that  P's welfare in the longer term required such a mover. It was not an easy decision, as the judge herself recognised. I cite, however, paragraphs 140 and 141 of the judgment to show how the judge approached the case: -

However, overall this mother's unwillingness to listen – not just as shown as I have set out in this judgment by her leaving the court during the judgment, but throughout the case – is at such a level, and her lies are at such a level that, like (the guardian) I can have no confidence in her protestations that she would comply. I considered whether if there were a suspended committal order, a suspended residence order the two might just be enough. However, having heard the mother throughout the case, not just at this final hearing in her evidence and in court today when she left court, expressing her views, I am satisfied that she would not be able to contain her views and the (P) would suffer very significant harm in the mother's hostility to the actions that the court had taken, by the mother's conduct and her words and her reactions while she cared for (P) and when she took her to contact.

Balancing all these matters has not been easy. However, on balance I have therefore considered that I am driven to conclude that (P's) residence should be transferred to her paternal grandmother with effect from today……

58. The mother must understand that it is the judge's sole function to make assessments of credibility. Provided there was material upon which the judge could act, it was for her to decide who she believed, and what was in the best interests of P.

59. In my judgment, there were ample material upon which the judge would properly reach her conclusion.  As I explained at the outset of this judgment, whether or not I would have taken the same course is irrelevant. This judge heard and saw the parties. This judge  made her assessment of them. As I said earlier, if there was material upon which the judge could properly reach her conclusion, that is an end of the matter.

60. The mother is not left without a remedy. No residence or contact order is even final. The judge has built in a review for  December  2010. However, if the mother is to seek to disturb the order made by the judge, she will need both to satisfy the judge that she really has changed, (in other words that she really and genuinely recognises the value of P's relationship with her father) and also that it is in P's best interests to live with her rather than with her paternal grandmother. I was not optimistic from the submissions which I heard, which showed – or appeared to show – a total lack of insight.

61. These are, however, matters for the judge. She had made her assessment. In my judgment there was ample material upon which she could properly say that P was likely to suffer significant harm in the future if she remained with her mother. The order the judge made was plainly open to her as an exercise of discretion. The contrary, in my judgment is unarguable. The mother is not without a remedy.

62. In my judgment, an appeal would stand no reasonable prospect of success, and I can find no other compelling reason for the appeal to be heard The application is, accordingly, dismissed..