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Home > Judgments > 2012 archive

J (A Child) [2012] EWCA Civ 720

Appeal against judgment refusing father’s application for contact with his son. Appeal dismissed.

The father appealed against judgment refusing his application for contact with his son, born in 2008.

The parents were married in Pakistan in 2007 and separated in 2010.The mother made serious allegations of physical and emotional abuse. The judge at first instance made a number of strong findings against the father. He found the mother to be broadly truthful and rejected the evidence of the father. A welfare hearing was listed and the father was ordered to file a statement in response to the findings made against him. In his statement the father accepted that there had been a physical assault of the wife but refused to accept a number of findings and provided what the judge considered to be an implausible explanation to one of the most serious findings made against the father and his side of the family. The judge concluded that there should be no order for contact.

The father's first ground of appeal was that judge had erred by failing to give considerable credit for the admission of violence against the wife. The judge found that the statement in response had been more deficient than impressive as argued on behalf of the father. Thorpe LJ rejected this submission and concluded the father's failure to accept the findings and the implausible explanation provided by the father in respect of matters the court had considered very serious indeed was a matter to which the judge had been entitled to attach great weight.

The father's main contention was in respect of his application for an expert assessment of his level of understanding and contrition. It was submitted on the father's behalf that the judge had acted as sole arbiter and the father had been deprived of a fair and impartial assessment of the merits of his application. This submission was rejected. Thorpe LJ said that the judge himself was perfectly capable of making a fair and impartial assessment of the merits of the father's application.

The final ground advanced on behalf of the father was that refusal of his application for contact would mean that he would be unable to assert that deportation would be a breach of his Article 8 right to family life and the father would be unable to engage in therapeutic services available here but not in Pakistan. Thorpe LJ said that the judge had decided the matter without having regard to the father's residence in this jurisdiction and the court noted that the father had not engaged in any therapeutic services since the hearing last year.

Summary by Mai-Ling Savage, barrister, 14 Gray's Inn Square



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Case No: B4/2011/2987
Neutral Citation Number: [2012] EWCA Civ 720
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM DEWSBURY COUNTY COURT
(HIS HONOUR JUDGE CLIFFE)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Friday 4th May 2012

Before :

LORD JUSTICE THORPE
LORD JUSTICE AIKENS
and
LADY JUSTICE BLACK
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IN THE MATTER OF J (A CHILD)

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(DAR Transcript of
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Mr Miller (instructed by Petherbridge Bassra) appeared on behalf of the Appellant

Miss Burden (instructed by Brearleys Solicitors) appeared on behalf of the Respondent.

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Judgment

(As Approved by the Court)

Crown Copyright ©

Lord Justice Thorpe
1. This is an appeal from the judgment of HHJ Cliffe, sitting in the Leeds County Court, on a contact application brought by a father to develop a relationship with his son born on [a date in] 2008.  The parents had been married in Pakistan in 2007 but separated in 2010, and the circumstances of separation were described by the respondent mother in terms of quite gross abuse, physical and emotional, both to her and her extended family.  This was a case in which the parents were closely related.  The child's grandfathers were brothers and one of the witnesses was aunt to both the parents. There was no doubt that there was a feud between the two sides of the same family.  The dispute related to some land in Pakistan. 

2. So the judge investigated what had gone on during the marriage and how the father had behaved both in relation to his wife, his child and other players on the family stage.  Having heard evidence from a number of family members, he delivered judgment on 27 July, making strong findings against the father. He found that the maternal grandmother was the most reliable witness.  He found the mother to be broadly truthful and he rejected the evidence of the father.

3. There was another hearing in September when the judge directed that the father should file a brief statement in which he recorded his reaction to the judge's specific findings on the Scott schedule.  That document was duly filed and did not much impress the judge at the welfare hearing on 7 October.  Mr Miller has said that considerable credit is due to the father for having accepted that he had physically assaulted his wife in temper. The judge, from his perspective, regarded the statement as being more deficient than impressive, given that the father refused to accept a number of specific findings made on 27 July and offered an implausible explanation by way of exoneration in relation to what had been, for the judge, the most serious aspect of the case against the father and his side of the family.  So he, in a relatively brief judgment, concluded that there should be no order for contact.

4. Now Mr Miller, in pursuit of the appeal authorised by McFarlane LJ, has focussed on three principal points within his skeleton. The first is the point that I have already covered, namely the plus or minus factors within the acceptance statement filed following the September directions.  I consider that it was within the judge's competence to describe the threat of violence to the mother's extended family, including threats of rape to her sisters, as very serious and "chilling" and so the father's endeavour to, as it were, talk his way out of that finding with an account that was simply implausible was something to which the judge was entitled to attach great weight.

5. So to the risk of abduction.  The judge had found at paragraph 10 of his first judgment that the father had not just threatened abduction as a weapon to upset the wife, but that he had meaningfully threatened abduction.  That is reflected in the second judgment at paragraph 4, when the judge records the threat of abduction not just as a means of upsetting the wife but also as "a serious risk that he would in fact remove the child if he were able to do so".  That is also reflected when the judge, at paragraph 7, commented that the father did not accept the prior finding that he had threatened abduction if it were in his power to abduct.

6. Mr Miller's principal contention in this court is that the judge acted as sole arbiter and that it was incumbent upon him to sanction an assessment by an experienced child care professional who would be able to assess the father's level of understanding and contrition.  That amounted, in Mr Miller's submission, to a deprivation for both father and child of a valued resource and, accordingly, the judge deprived the father of a fair and impartial assessment of the merits of his application.

7. I would strongly reject those submissions. The judge himself was perfectly capable of making a fair and impartial assessment on the merits of the father's application.  He considered the possibility of further assessment and, as Ms Burden has pointed out, in both paragraphs 10 and 11 of his judgment concluded that any further assessment would be futile.

8. Mr Miller finally emphasises that it would be difficult for this father and will be difficult for this father to assert that deportation would amount to a breach of his Article 8 right to family life if, with finality, his application for contact has been refused.  That may be a consequence, but the judge decided the issue not having regard to the importance of preserving the father in this jurisdiction, so that, as Mr Miller would put it, he has the ability to engage in therapeutic services available here but not in Pakistan. 

9. In that regard it is notable that, since the 27 July, the father of his own accord has not, as we understand it, either engaged or sought to engage such therapeutic services as are available in the Leeds area.  I think the judge acted plainly within his discretion.  It was for him to decide whether he needed further assessment.  It was a robust order and it was one that was perfectly justified on the foundation of the earlier findings as to the abusive course of the relationship, not only within the marriage but within the family.  I would dismiss the appeal.

Lord Justice Aikens:
10. I agree.  Despite the attractive submissions of Mr Miller I am quite satisfied on two matters.  First, that the judge acted reasonably and, in my view, correctly in saying that there should not be a further assessment.  Secondly, the judge was fully entitled, given his clear findings in his previous judgment, and the father's failure to face up to those findings, to hold that there should be no further assessment and that there should be a final order in the shape that was made.  In my judgment, it is particularly telling that Mr Miller informed us that the father had, so far as Mr Miller was aware, made no attempt at any stage since July of last year to undergo any therapeutic work even after the statement given in late September.

Lady Justice Black:
11. I agree with all that has been said.

Order: Appeal dismissed