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C (A Child) [2007] EWCA Civ 866

Application for permission to appeal an order transferring residence from mother to father in an implacable contact case. Application granted but appeal dismissed.

The case is of interest as it demonstrates a robust approach to the mother's resistance to contact. Counsel for the mother had argued that the judge had been driven by the desire to punish the mother and not the interests of the child. However Ward LJ reviewed his judgment and concluded that the judge had taken the relevant factors into account and was within his discretion to make the transfer of residence order. He then added some comments on the claim that the judge could have made no order stating that to abdicate responsibility for a decision is "why week after week fathers come to this court protesting that the court is powerless to enforce its orders.... This time the boot is on the other foot, and if a different conclusion has been reached in this case then let it be shouted out from the roof-tops."

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Case No: B4/2007/1348
Neutral Citation Number: [2007] EWCA Civ 866
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM NEWCASTLE-UPON-TYNE COUNTY COURT
(HIS HONOUR JUDGE LOWDEN)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Tuesday, 3rd July 2007

Before:

LORD JUSTICE WARD
LORD JUSTICE THOMAS
and
LORD JUSTICE RICHARDS


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IN THE MATTER OF C (a Child)

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(DAR Transcript of
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Mr S Cobb QC & Mr Crawley (instructed by Messrs Alderson Dodd) appeared on behalf of the Appellant.

Mr J Brown (instructed by Messrs Ward Hadaway Solicitors) appeared on behalf of the Respondent.
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Judgment (As Approved by the Court)

Lord Justice Ward:
1. The tale told to HHJ Lowden in the Newcastle-upon-Tyne county court is all too depressingly common. His solution to the problem was, however, robustly different. It concerns L, a little girl born in October 2001, whose unmarried parents separated in August 2002 but successfully managed contact, including staying contact, for about a year. Then it stopped. Mother ceased to make L available for contact so father began these proceedings in December 2003. Orders for contact were made; they were ignored by the mother, save on two occasions following an order of the court that was made on 4 November 2004.

2. The first of those contacts took place in November 2004. It was observed by the CAFCASS officer. It was successful, that success being demonstrated by L appearing to be close, comfortable and relaxed with her father. That displeased the mother and, as was subsequently found, she deliberately sabotaged the next meeting -- fixed for February 2005 -- having been heard by the supervising officer to be giving "negative presentations" about the father and, as the judge found, frightening L against her father.

3. District Judge Goudie in December 2005 had a hearing to judge the mother's reasons for refusing contact. He discounted them. He found that her attitude towards contact was one of implacable hostility. So the problem for his HHJ Lowden was how to cope with that familiar situation. He took the course often threatened but seldom implemented. He ordered L's immediate change of residence from her mother's home to that of her father. The question before us is whether he was wrong to do so. He made that decision late in the afternoon of Friday 22 June, ordering the child to be handed over at 10.00am on Saturday, the next day. The order as actually drawn does not recite that and states only that L reside with her father and that there be reasonable contact between mother and child.

4. Wilson LJ had, a few days earlier, given a judgment in which, as reported in The Times, he was saying that the Court of Appeal could always cope with urgent applications at any time of the day or of the night. I proved him right. There I was, like the concierge of The Ritz hotel, which as we all know is always open. I was hiding away behind urgent bundles of authorities trying to write a reserved judgment when an application for a stay of execution landed on my desk at 6.50 pm on Friday and I granted the stay over until Wednesday 27 June.

6. On the return day, Mr Crawley, who appeared for the mother, sought an adjournment to enable Mr Stephen Cobb QC to represent the mother, as he has done this afternoon, having magically procured the Legal Services Commission to extend its certificate to cover that appearance.

7. So here we are, hearing what began as an application for permission to appeal which we granted immediately and so the appeal was to follow, and that only six working days after the order was made on the Friday, five days after a written judgment was handed down on Monday 25 June. The Court of Appeal can get a move on when it has to.

8. This was and is a sad story. This young couple separated after a short relationship. Contact came to an end. There was protracted litigation. It appears that there must have been at least 11 occasions in the course of the proceedings where mother failed to comply with some order or another. Penal notices have been attached and it has not made any difference. So the judge was presented with a serious difficulty. He took the view that imprisonment was not a way forward in this case; a reason for that was that mother gave birth to a son at the beginning of April, that child being born out of a settled relationship she forged with another man at or about the time of the breakdown of the relationship between these parents.

9. The judge took the view that all remedies had been exhausted other than possibly a change of residence, and that is the course he chose. Mr Cobb challenges that decision and he contends that the judgment was unsatisfactory in that there was, he submits, a no careful exposition of the competing considerations which the judge regarded as relevant; that the judgment was "light" on the necessary findings about factors relevant to L's best interests; that although referring to the need to strike a balance it was not clear what factors weighed in the balance nor what weight was attached to each of them. It is submitted that the learned judge failed to follow the advice of Baroness Hale of Richmond in Re:G (Children) [2006] UKHL 43 where at paragraph 40 she said:

"However, in any difficult or finely balanced case, as this undoubtedly was, it is a great help to address each of the factors in the list, [the list being the check list] along with any others which may be relevant, so as to ensure that no particular feature of the case is given more weight than it should properly bear. This is perhaps particularly important in any case where the real concern is that the children's primary carer is reluctant or unwilling to acknowledge the importance of another parent in the children's lives."

10. Mr Cobb indeed submitted that the welfare principle had received only passing reference. That, in my judgment, is simply not fair on the judge at all. He made it abundantly plain, early on in his judgment that he had to have regard to the welfare check list (see paragraph 18) and it is abundantly plain that he, at all times, was striking the balance with regard to the child's welfare as his paramount consideration, as he said at the conclusion of the judgment. That conclusion, expressed in paragraphs 37 and 38, which is a convenient summary of his judgment, was this:

"My view is that short term distress is inevitable. But so is long term harm, based on my view of the future problems, assisted by the expert evidence of the Guardian and Dr Bolsover, un-contradicted by any other expert. The added harm of Mother completely withdrawing is possible but not certain. I have considered whether a change of residence can properly be made without a child psychology assessment of Elle. However this would require co-operation by the current resident parent, i.e. Mother, which will not be forthcoming. While it may be desirable it is not achievable, and this court cannot thereby be held to ransom.

"The balance has to be struck having regard to the principle that the welfare of Ellie is paramount, and the order must not be influenced by considerations or reward or punishment of the parents. That balance requires me to make a Residence Order to Father ......., with a reasonable Contact Order to Mother, ........."

11. Mr Cobb submits that in this case the judge allowed himself to be unduly influenced by a desire to punish the mother so that that subordinated his duty to put L's interests as his paramount consideration. That, too, I regard as a completely unfair criticism of the judge. He was irritated by this mother's conduct: not for the first time she had failed to appear at a hearing, and failed to attend the hearing before him. When she did appear belatedly, he put that irritation on one side and made it perfectly plain, both in paragraph 4 of his judgment and in paragraph 38 that, as he said in paragraph 4:

"I have had to remind myself not to allow my irritation at how she has treated these proceedings and this court to affect my judgment, which is not to punish or to reward either parent but to make an order best designed to promote and ensure L's welfare."

12. As to Mr Cobb's complaint about the balance being improperly struck, the first point addressed is that the judge, although making reference to a risk of future harm if L remained living with her mother, made no clear findings about it. That again I cannot accept. The judge heard evidence from a clinical psychologist, Mr Bolsover. He heard the guardian, Miss Singer and a social worker Miss Exelby. He recited great passages of their evidence in summary form. He said, for example, in paragraph 19 dealing with Miss Exelby:

"So, [and I emphasise that word] while it is right that her evidence would fall very far short of establishing that L is suffering significant harm at the present time, it does not deny many of the concerns expressed by Dr Bolsover and the guardian as to harm in the future."

The word "so" seems to me to indicate a conclusion which the judge was reaching in expressing his approval of that part of her judgment.

13. In paragraph 26 of his judgment he was dealing with the girl's education and her integration into her school and the extent to which she had shown herself not only to be a very clever little girl but one who was capable of making friends and adjusting to the social life of her new class. The judge said in paragraph 26:

"This does not, in my judgment, affect mother's attitude which remains an unnatural reluctance to allow L to integrate with other children." [my emphasis]

There again are the words of findings of fact. With reference to the guardian's report he said in paragraph 28:

"I cannot point to any aspect of her evidence which is clearly wrong."

14. Again, it seems to me that the judge quite plainly, if not expressly then by implication, was setting out in his short judgment those matters from the views of the experts with which he agreed. There was therefore, it seems to me, a finding of a risk of future harm if this little girl remained with her mother, whose opposition to contact was intractable. He had masses of evidence from the experts that that would be harmful to the child and Mr Cobb, in fairness to him, accepts that the judgment is predicated on a basis that restoration of the relationship between L and her father would be in L's interest. It plainly would be so.

15. The judge, considering the evidence of the experts, was perfectly satisfied and rightly so that in very many respects this was a girl who was well looked after by her mother. Her failing as a mother was to isolate this little girl and that was an important factor in this case. She and her partner had chosen a way of life which is isolated from friends and from family and it was a matter of real and proper concern for the experts and for the judge. So that was the difficulty about her capability as a mother.

16. The father's capability as a father was, of course, not tested. He had not had much chance since the breakdown of contact in 2002 but the judge was perfectly satisfied that the father had come across:

"as a sensitive person, well aware that any change would be distressing and not expecting a bed of roses to meet the new situation, he has a suitable family support network and would seek appropriate help from professionals if matters were too difficult to be managed within the family."

17. So there are his findings in paragraph 13 that, although father would be "a virtual stranger to L at first", nonetheless the steps he had taken to keep a place for her in his home, surrounded by photographs of happy times spent together in earlier days, all of those matters indicated that he would be ready to take on the burden of residence if given the opportunity.

18. The essential balance to be struck, and it was struck by the judge as he said in paragraphs 31-32, was to balance the likely effect on L of a change in circumstances which he thought were central to one side of the balancing exercise against the harm that L has suffered, or would be at a risk of suffering, which was central to the other side. As to the likely effect of that change, he came to the conclusion that it was inevitable that it would be distressing. That was absolutely plain because the bond between mother and daughter is very strong. Her distress was, however, he felt, something that he could not measure. He could not tell, as the guardian could not tell, how long it might last. The social worker was hopeful that it could be managed by adequate support. Dr Bolsover assumed that support would be provided if a change was ordered.

19. There was an issue as to whether the case should be adjourned for a further psychological assessment to be made to report on the strength of L's attachment to her mother and the likely level of distress or damage if that bond was broken. Dr Bolsover was of the opinion, accepted by the judge, that such an assessment was not necessary and was an assessment that could not have been facilitated without the mother's cooperation. The judge was confident that cooperation would not have been forthcoming. The judge was therefore perfectly entitled to proceed without any further help from an expert and to proceed with no more than the obvious to guide him that this would be a distressful handover.

20. There was no evidence of the long term harm that L might suffer from that handover, except in this regard. Mother's attitude of intransigence was such that she informed the court that, if a change of residence took place, she would refuse to have any further contact with her daughter. That was a matter which the judge rightly regarded as an ultimatum. It might be said to be an attempt to blackmail the court. He took the view, which he was entitled to take, that just as the mother had threatened to change the school if the social worker went to visit it; but did not do so when the social worker did, eventually the mother would, in the fullness of time, come to accept how important it would be that she maintained contact with her daughter, just as it was important that father should maintain contact with this child. The judge's conclusion, fully justified on the facts of this case, was that her threat was a risk to further damage to the child but was not a certainty.

21. Then the judge had to balance the harm that the child would suffer if residence was not changed. He was prepared to accept that she was not suffering significant harm at present but that she was likely to suffer future emotional harm: a) through the denial of contact with her father and b) from her social isolation. Both of those matters were factors that were fully within the judge's judgment and he was right to weigh them in the balance.

22. Mr Cobb submits that the judgment is flawed because there is no recitation of the factors which should be put in the scales against a change of residence. Such, for example, as the judge finding that the change of residence would be drastic or that distress would be inevitable, or the very strong bond with the mother. He submits that the judge failed particularly to have regard to the effect of separation from the half-brother in whose birth L had been much involved; going with mother, for example, to the ultrasound scan and so forth. It is true that the judge did not aver to that fact but he did state in paragraph 3 of his judgment that L "Is now an integral part of the family which consists of her, her partner and baby J". So if the judge did not expressly weigh it in the balance he clearly had it in mind, because he referred to it in such in his judgment.

23. Mr Cobb complains that the judge did not weigh in the balance the fact that L would be moving without notice to live with a virtual stranger, but those were the words the judge used in the judgment; so there again he was alive to the point. True it is he did not expressly refer to the fact that the father had some relationship with another woman who sometimes stayed with him and sometimes did not, and who had known L in the days when contact was working satisfactorily. I do not regard that omission as fatal to the exercise of this discretion.

24. As for the mother's offer belatedly in the course of the hearing to allow contact, the judge was fully entitled to regard that as simply a pragmatic response to the dawning realisation that a change of residence would take place. He was, moreover, entitled to discount it as he did in paragraph 10 of his judgment, stating that:

"Father's position is that he would be content with the relationship of his daughter built on proper contact if that were possible and would not be pursuing this drastic step but for the fact that contact is not possible. I agree the proper contact is not possible while residence remains with the mother, given her underlying attitude. I do not believe that she would not sabotage contact as in one way or another she did the last two."

Mother's offer of contact, even if couched in terms of words of promise, was a hollow promise the judge was fully entitled to reject.

25. So Mr Cobb is driven to complain that the judge's failure in his consideration of the checklist was to fail to have regard to the other orders that could be made in a case of this kind, and his conclusion that all other routes had been exhausted. In addition to failing to consider the offer of contact the judge, it is said, failed to consider the availability of the family assistance order and to help the parties cope with their difficulties. That was not something offered to him. It would mean that if the mother was to be involved in obtaining this assistance, her consent was necessary and that was a matter about which the judge may well have had his reservations.

26. As to the option to make no order, that was the option of abdication and all too frequently judges are driven to that conclusion and that is why week after week fathers come to this court protesting that the court is powerless to enforce its orders, quite unable to control the intractable, implacably hostile mother, even though the long-term damage to the child is perfectly obvious. Time after time this court has to mollify the angry father, endeavouring to explain that the judge has a broad discretion and that his decision cannot be challenged unless plainly wrong. This time the boot is on the other foot, and if a different conclusion has been reached in this case then let it be shouted out from the roof-tops.

27. I do not see how it can be urged that the judge was plainly wrong to reject making no order when he had the option of transferring the residence, which had its obvious difficulties but which was one properly within the range of options he was entitled to consider. So, despite Mr Cobb's most valiant attempts on behalf of the mother to undermine the judgment I, having read it several times carefully, cannot find that the judge failed to have regard to any appropriate factor of weight to place in the scales when striking the essential balance he had to strike in this case between the harm to this little girl if she is denied contact to her father whilst remaining resident with her mother, as against the likely effect of the change in moving her to her father's home.

28. For my part, I would dismiss the appeal on that basis. Mr Cobb submits the judge was wrong to make an immediate order for transfer of residence, given that L had no meaningful relationship with her father, nor with his girlfriend. There was no immediate risk of harm to her and the move would obviously be distressing. Father himself and his girlfriend had indicated to the professionals during the course of their enquiries that if L were to change, they felt it was "essential" that she be given the opportunity to re-establish a good relationship with them first. Ordinarily that would be right, but in this case the mother's intractability makes that impossible. She would not cooperate with any phased handover; her hostility is too deep-seated for that to happen and there is, in circumstances like that, no option but to take the draconian step of ordering an immediate transfer.

29. Mr Cobb complains about the order made for reasonable contact and submits that it should have been defined. Again, one sees the force of the submission in ordinary cases; but this was not the ordinary case because the mother was saying that she did not want any contact at all and to order defined contact seems to me, in those circumstances, to be again unrealistic.

30. There is a complaint about the fact that the judge ordered no review. I am not sure that Mr Crawley, who appears for her, submits that it was sought, that it was a point that was at the forefront of the range of orders the judge was asked for. I can see the sense of an order for a review and I might have been disposed, for my part, to order it on this appeal. But Mr Cobb's next point is that there was no provision for the kind of psychological therapy or other professional support which the guardian and the social services and Dr Bolsover thought would be helpful to ease this transition.

31. I see the force of that argument but I do not think that this court should interfere and make any such orders. We cannot make a family assistance order without consent of those who are to be befriended. Mother is not here because she is looking after her baby in Newcastle. Father is not here because he has run out of money and cannot afford to be here himself nor to afford for his solicitors and counsel to represent him. We should not make orders for therapeutic intervention without knowing exactly what is available locally and so, for my part, I have sympathy with Mr Cobb's submissions but the way I would deal with it would be to say that the case should be restored to HHJ Lowden at the earliest opportunity for consideration to be given to such outstanding questions as contact for the mother, if she wants it, therapy for the child and how that can be organised, and a family assistance order if that would ease the problems of the local authority to provide the continuing assistance of Miss Exelby, who has tried to establish a relationship with L which could well be important to her in the difficult days ahead. But for my part I am unpersauded by any of Mr Cobb's other submissions and I would dismiss the appeal.

Lord Justice Thomas:
32. I agree that the appeal should be dismissed and with the order which has been proposed by my Lord, Lord Justice Ward. Undoubtedly the mother, despite what can be described as an unconventional and isolated way of life and strongly expressed views, has brought the child up so that she is doing well at school. However, the mother has persistently and wilfully refused to comply with the orders of the court as to contact and there are concerns about her capability as a mother, both with obvious risks to the future welfare of the child.

33. The judge clearly, therefore, had a very difficult case in front of him. He had the advantage, which we do not have, of seeing and hearing the witnesses. He was plainly best able to assess the genuineness of the offer made by the mother at the very late stage to arrange contact and whether she would go through with her threat that, if residence was transferred, she would have no further contact with her child. He was therefore best able to judge whether there was any other course open to the court other than a change of residence.

34. I agree with my Lord, Lord Justice Ward, that a judge should not abdicate his responsibilities in these circumstances. Having reached the view he did in relation to those matters, the judge carefully considered the factors set out in section 1(3) of The Children Act 1989, in accordance with the advice of Baroness Hale of Richmond, to which my Lord, Lord Justice Ward has referred. It is plain that the judge did so carefully; I simply do not accept the submission that he failed adequately to look at each of those factors. I am also satisfied that the judge, although plainly irritated by the conduct of the mother, made his decision on the basis of the Act. He made his decision, in my view, on what he considered was in the best interests of the child. Such decisions are always very difficult, but his decision was one to which, in all the circumstances, I consider he was entitled to come in what was undoubtedly a very difficult and finely balanced case. Despite what Mr Cobb has said, it seems to me that the decision was one which was entirely open to the judge.

Lord Justice Richards:
35. I agree that the appeal should be dismissed for the reasons given by my Lords. I would also support the proposal that the matter be restored to the judge for reconsideration of outstanding matters as referred to by my Lord, Lord Justice Ward.

Order: Application granted. Appeal dismissed. Stay of Execution refused.