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H (Children) [2007] EWCA Civ 529

Appeal by mother against an order overturning a residence order in her favour and replacing it with an interim residence order in favour of the father. Appeal allowed.

The trial judge had made the interim residence order principally because the children had been with the father for 9 weeks and the mother had not made any further allegations about the father's care for the children, whereas he had made several allegations about her lack of care for them. Counsel for the mother argued the judge had been wrong in principle as a change of interim residence is only justified if there is an emergency that compelled such a change and there was no such emergency in this case.


Appeal by mothCase No: B4/2007/0700
Neutral Citation Number: [2007] EWCA Civ 529

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Wednesday, 2 May 2007


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(DAR Transcript of
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MISS LANKIN (instructed by Millichips) appeared on behalf of the Appellant.

MR CRAWLEY (instructed by Wilson Houlder) appeared on behalf of the Defendant.

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Judgment (As Approved by the Court)

Mr Justice Coleridge:
1. This is an application for permission to appeal with the appeal to follow if we give permission. The appellant, Mrs H, seeks permission to appeal orders made by HHJ Thomas on 23 March this year. The case concerns two children: AH, who was born on 12 February 2001 and is therefore 6 years and 2 months, and AAH, who was born on 21 March 2002 and so he is aged 5. By her order, she discharged a residence order which had been made in the mother's favour on 22 December 2004 and replaced it with an interim residence order in favour of the respondent father. She refused the mother's permission to appeal.

2. The essence of the mother's case is that the father unjustifiably and wrongfully retained the children after an agreed contact visit which took place over the weekend ending on 22 January 2007, and that they should have been returned by court order at the hearing on 23 March 2007.

3. Let me say something about the background which is very helpfully summarised in for the mother's skeleton argument. I take the facts mostly from there. The parties were married in 2000 and separated in 2003. The two children are the only children and they are the children of the parties. The parties lived for the time that they were together in Ilford in Essex, and after they separated the mother moved to Wolverhampton, the Oldbury area. The children have lived until January of this year with the mother throughout their entire lives and indeed from the separation in January 2003 they have lived exclusively with her, although having properly and generously agreed contact to the father, in the Ilford area.

4. The father originally applied for residence and contact in April 2003 and there was, as a result, a lengthy fact-finding hearing which took over no less than ten days before HHJ Warner in 2004. Both parties made serious allegations against the other. The mother made allegations of indecent assault, and serious violence including rape, and the father made allegations that the mother did not actually care for the children, that she had been violent towards them, and other matters of that kind.

5. The case concluded with a reserved judgment handed down by HHJ Warner on 20 December 2004. It is pertinent to note that he found the serious allegations made by the mother not proved, and that there were serious issues as to the credibility of both parties. That is particularly important, as it will transpire, in relation to the evidence that was before the circuit judge on this present occasion. He did, however, make some findings in relation to the father, and, summarising briefly, they are these.

6. Firstly, that the father had an extremely hostile attitude to the mother and made very serious derogatory remarks about her. Secondly, he and indeed his family said that the children were not safe with the mother and that she was a bad parent. But the judge found, and I quote:

"I have to weigh this against the views of Social Services who found no concerns about her children's welfare and development. The health visitor in Redbridge reported good interactions and Mrs Ring the health visitor from Oldbury also commented upon the good interaction. The children presented as being well cared for, and the mother was described as caring and loving."

7. He also described the father as manipulative. He found that there had been some violence, although nothing like to the extent that had been alleged by the mother. He finally concluded in this way, and I remind myself that he had heard these parties over a period of ten days:

"I am satisfied, subject to anything at present unknown to me that might emerge in any CAFCASS report, that the mother is a good mother and although I am not making any decision now, it seems to me that the father is going to have very much of an uphill task to persuade any court that the children should be uprooted with all that that would entail and be transferred to him under a residence order."

That was therefore the conclusion of his fact-finding exercise and the lengthy judgment which he delivered is in the papers before us today.

8. Following the judgment CAFCASS prepared reports to deal with the next stage of the hearing, and in the first report dated 15 December it is pointed out again, to my mind significantly, that the father accepted that the children were well cared for by their mother. Following upon a consent order relating to supervised contact which HHJ Warner had made on the strength of the first CAFCASS report, the second CAFCASS report was ordered, and again on the strength of that further report and despite the fact that there had been an accident which has been referred to by the father again today, a consent order was made for unsupervised contact between the parties to the father.

9. In September 2005 there was an incident when the daughter drank some white spirit. Again the father raised this in correspondence but presumably was sufficiently satisfied with the explanation that a further contact order was made by consent for the father to have staying contact on alternate weekends. A further review in January 2006 was due to take place but it did not, and so the situation as at the end of this year was that the contact order that had been made, which was for the father to have staying contact on alternate weekends was in force, and by discussion and agreement between the parties that arrangement had been extended so that the father collected the children on a Friday and delivered them back on a Saturday.

10. During 2006 there was an attempt, apparently, by the parties to be reconciled but it came to nothing. There is an allegation that the father during that year on one occasion retained the children without agreement, but that particular allegation does not seem to have figured at the hearing which took place before the circuit judge.

11. The circumstances that gave rise to these proceedings and ultimately this appeal relate to the events of the weekend of 18 and 22 January. According to the mother AH was unwell on 19 January and she asked the father not to take her for contact but just to take AAH. She would say he insisted on taking AH. She gave AH medication given to her by the medical professionals and the father accepted that he had been given medication to give to the child. The mother had apparently taken the child to hospital with the swelling to her cheek which gave rise to the father's concern, in the early hours of 17 January 2007, where an abscess to her tooth was diagnosed. Hospital records were available and they confirm that fact and also that she had also taken the child to the GP on the following day, 18 January, and again the GP records were available at the hearing to confirm this.

12. During staying contact however, it seems that the child's suffering with her abscess to her tooth increased to the extent that the father felt it was appropriate, no doubt entirely correctly, that she should be taken to the A and E department of the hospital. It was as a result of that that the abscess was dealt with as a medical emergency on 19 January. The father seems to have regarded that as clear evidence that the mother was neglecting the children. I do not share his conclusions about that. It seems to me that the child was suffering from a tooth complaint which is common. In any event, on the strength of that he refused to return the children despite requests that he should do so.

13. The mother attended at the address where she thought the children were but she found they were not there, and then the later allegations were made by the father which emerged in statements which, it is said, point to the fact that the mother is not caring for the children properly and is behaving inappropriately with her boyfriend and things of that kind. None of these allegations had been made before or been substantiated by anything which could remotely be described as detail or independent evidence. If they are to be pursued they will have to be investigated. Unsurprisingly in this case, the allegations are completely denied by the mother.

14. So that was the position as matters stood on 22 January. Apparently, according to counsel instructed today, the mother attended her solicitors the following day and one would have hoped that this would have been treated with compelling urgency, given the retention by the father of the children in breach of the clear order made by consent for residence in the mother's favour which had been in existence since 2004. In fact what happened was the mother issued an application for the return of the children on 1 February. The court then took three weeks to list the case for directions and it came on before a district judge in the Wolverhampton County Court on 22 February 2007. He, too, does not seem to have collected from the documents in front of him the fact that this was a situation which called for the court to act with urgency and to treat the matter as an emergency. It was said that the father was going to issue an application for residence but in fact he did not do so and he has never done so.

15. The district judge then made some fairly conventional directions. He listed the matter for a contested hearing with a time estimate of two hours. The court diary being as congested as it was, the first open date which was available was 23 March before HHJ Thomas; in other words, a month further on from the directions hearing, and getting on for seven weeks after the children had been retained after the contact.

16. The parties were directed to file statements. Both did so, although they did so late. In the father's statement he made allegations about the children's attendance at school and stated that he had made enquiries about this with the children's headmistress. In fact those enquiries did not reveal the concern that he expressed; on the contrary, the only concern apparently that was expressed was that they had not been informed where the children had then been moved to. In fact it turned out at court that far from the children being able to enter schools in the Ilford area following their retention by the father, the father had kept the children at home for, I think, the best part of a month until 5 March in order to educate them at home. This was the state of affairs that presented itself to the judge. The mother's statement took no particular issue and indeed agreed that, should the children return to her, the previous settled arrangement for contact would resume.

17. Another important feature which calls for comment is that during the course of the hearing which came on before the learned judge, enquiries were made of CAFCASS both locally in Wolverhampton and also in the Ilford area. What became clear was that if the children were to remain in the Ilford area and CAFCASS in Ilford were to carry out their enquiries and report, it would take until the middle of July before they could report; whereas the district judge, having already ordered a CAFCASS report at the directions hearing in February, ensured that there was going to be before the court in Wolverhampton a CAFCASS report as early as 17 May. That, too, seems to me to be something which the court should have had in mind when deciding what to do.

18. In fact the case came on in a busy afternoon list, as is apparent from the transcript. The matter was dealt with on submissions only and both parties had filed written skeleton arguments. Accordingly, the judge heard no evidence and based her decision on the documents, statements and the arguments.

19. We have a copy now of her revised judgment. It is short, and I say that in no critical way. It was a matter which called to be dealt with shortly. She sets out in her judgment the backgrounds facts and records the previous orders that have been made, and she says at paragraph 9:

"Most recently staying contact took place at the father's home from 19th to 21st January of this year, in accordance with the order to which I have referred. At the conclusion of that weekend the father did not return the children and they have remained living with him in Essex since then, which is now a period of nine weeks."

20. So, unsurprisingly, the judge was emphasising that already since the wrongful retention the children have been in their new location for over two months. She goes on at paragraph 12 dealing with the events of 21 January:

"As to what happened since 21st January, there is, again, further allegation and counter-allegation, but the primary facts are simple, that the children have lived with their father, the mother has not seen the children and, for whatever reason, there has been very limited contact and, in fact, there has not even been any telephone contact for about a month."

21. It is striking that nowhere in her judgment does she underline the fact that the children have made their home with their mother from the day they were born and exclusively with their mother since 2003 the date of the parties separation. Also the existence of the previous consent residence order. She says then at paragraph 15:

"It is, however, significant, that in spite of the allegations and counter-allegations in this case, the mother does not say anything in her most recent statement, which is a very lengthy, carefully-drafted and detailed one, which criticises the father's care of the children, and in particular it is of interest that if the children were to be returned to her care her proposal in relation to contact would be that contact should revert to that order to which I have made reference, That is to alternate weekend contact, that it would revert to status quo.

On the other hand, the father, in his statement, has set out a large number of concerns, not least the fact that the child A had a serious abscess which required operative treatment when she went to stay with her father for the purposes of contact on the weekend."

22. So it seems that the learned judge in some way placed reliance upon the fact that the mother was perfectly content with the existing status quo and was not being critical of the father, whereas the father had made a number of allegations which, as she herself said, were unsupported by anything remotely constituting proper evidence. She mentioned the fact that a large number of concerns are catalogued and "I have no independent evidence as to those matters simply the fact that they are an issue, and I make it clear that I am not making any findings of fact". That seems to me again to be crucial given the findings made by HHJ Warner after a ten-day hearing where he found major problems of credibility attaching to both parties. She then in paragraph 19 sets out the problems in relation to the ordering of the CAFCASS report. She draws attention to the fact that the local CAFCASS office could endeavour to prepare a report in accordance with the original order made by the district judge, by 17 May, whereas if the case reverted to Essex the report would be moved to the bottom of the queue and would be unlikely to be available before the middle of July. She really concludes her analysis in this way:

"What should happen to these two children until a final hearing is a very difficult decision to make, because, as I have indicated, I have nothing by way of independent support to assist me in making the decision. I am concerned about the delay that would be occasioned if the children were to remain in Essex.

I have to balance that against other matters and, in particular, that while there are a large number of complaints made by the father about the care of the mother, which, he says, resulted in retaining the children after contact, some of which have some support from the documentation, but that is not unequivocal, as I have already observed, that is not the position in relation to the mother, who does not make any particular criticism of the father and would be willing to revert, with some reservations, to the alternate-weekend contact."

Then she says in summation really at paragraph 26:

"Taking into account all the relevant factors in this case, and in particular the fact of the mother making no criticism of the father's care of the children, it seems to me that, in the best interests of the children, the safest course is to take the children's protection, and in their best interests, is to leave the children where they are, with the father in the interim".

Then she says, no doubt by way of consolation to the mother:

"I make it absolutely clear that this is not prejudging the final hearing in this matter at all. It is simply a short-term measure in the particular circumstances, without having sufficient time or evidence to make any findings of fact in relation to the issues that have been raised in this case."

23. So that is the way in which the learned judge dealt with it, and as I say the result of that is that the children remain with the father in Essex, and the case will then be brought back by her order made on that date for a further directions hearing on 30 July 2007 assuming by then that CAFCASS Essex have been able to report by the middle of July. No doubt on that occasion there would be further directions made by the court which would lead to a hearing, and if anything is to be judged by the length of the delay to the last hearing it is likely to be a lengthy hearing, which would no doubt take place towards the end of this year. By that time, undoubtedly the children would have been in Essex for the best past of a year or certainly three quarters of a year. That could indeed present the court at that time with a very difficult problem.

24. The essence of the grounds upon which the mother relies is that the learned judge simply applied the wrong principle when considering what she should do, presented as she was on 23 March with the decision which called for urgent decision. The principle which she should have applied is one which has been emphasised repeatedly by this court and most recently in the case of Re K Family Proceedings Rules [2005] 1 FLR at 764. There the court, and I take this summary from the mother's skeleton argument, emphasised yet again that an interim change of residence is only justified if it is in the interests of the child and there is an emergency or the change is some part of a proper strategy for the overall conduct of the case. It is emphasised by the mother that there was no emergency identified in this case and the learned judge did not pretend to identify one. She also failed, it seems to me, and again this is relied on by the mother, to give any weight at all to the fact that the children had been settled with their mother throughout their lives, that there were clear findings that she was a satisfactory mother if not a good mother. They were settled in local schools, although there was said to be some concern about their attendance record and that their whole routine was established and one with which they were familiar, not the least part of that routine being that they were completely used to going to stay with their father on a fortnightly basis at his home. Last but not least there was the court order in the mother's favour.

25. Counsel for the mother, under her second ground, emphasises the background to this case, the lack of credibility that was self-evidently a factor that the court needed to have in mind when considering the matter without oral evidence, and she also emphasises the fact that the delay in the obtaining of a CAFCASS report pointed strongly to the children returning to Wolverhampton, where the CAFCASS office was able to deliver a report with far greater speed.

26. It seems to me, with respect to the this experienced circuit judge -- and one well understands that she was confronted with this situation in a busy list one afternoon and had not got as much time perhaps as she would have liked to investigate the matter -- that she should not have countenanced a change of residence of the children on an interim basis unless there was a really compelling reason to do so on welfare grounds. She should have had in the forefront of her mind that this was a court order entered into by consent some years earlier which recognised the status quo, after a full investigation by the circuit judge, and it was going to call for very careful thought before any disruption was countenanced and only following a proper investigation. The allegations made by the husband simply did not begin to justify the kind of peremptory switch of interim residence that is sometimes and in emergency acceded to by the court. The fact that the child had suffered an abscess the previous weekend which was in fact under investigation by the mother did not, it seems to me, justify his actions at all.

27. Accordingly, I am driven to say that the learned circuit judge applied the wrong principles and, if I may so, arrived at plainly the wrong conclusion as a result. In my judgment, therefore, this court should grant the mother permission to appeal, allow the appeal and order the children to return to the mother if it can be arranged, today.

28. Finally I would end by saying that the delay in bringing this urgent case to court in front of a judge in the Wolverhampton area is very concerning. In circumstances of an unjustified retention by the father; time should have been found by the lawyers and the court to deal with this matter far, far quicker. If this had been before the court in a matter of days rather than weeks and months, I venture to suggest that this appeal would never have emerged.

Lord Justice Thorpe:
29. I agree with the order that Mr Justice Coleridge proposes and with his reasons. Where, under order of the court, children are in the primary care of one parent and the other parent, who has staying contact, wrongfully retains the children at the end of a contact visit, the principled order is for peremptory return. There will be exceptional cases in which events happening or circumstances emerging during the contact visit suggest that the children would be at risk of significant harm if returned; then the retention may not be wrongful.

30. However, in those exceptional cases it is incumbent on the secondary carer to alert the relevant authorities and to issue an urgent without notice application to the court. All involved with this case since 21 January, practitioners and judges, seem to have lost sight of the proper principle. The mother's solicitors, instructed on 23 January, did nothing until 1 February, when they issued, not a without notice application for peremptory return, but an application for a hearing on notice before a district judge on 22 February. The father's solicitors apparently took instructions to apply for variation of the residence order on 22 January but have yet to do so. Neither the district judge nor the circuit judge perceived that as a matter of principle, if there had to be another welfare investigation, the children should be where they belonged, that is with their mother who had cared for them on her own during all the four years since the separation.

31. The availability of the Family Division applications judge, 24 hours a day and 365 days a year, is well known. In the principal registry of the Family Division a district judge of the day is always available for unlisted applications. It is vital that county courts out of London are ready and able to provide a comparable service. Practitioners must be able to contact the court where circumstances require an emergency unlisted application to be put before a district judge or a circuit judge that day, perhaps before or after the conclusion of the listed cases.

32. I only add that this case has been well managed in this court. The Notice of Appeal was received on 3 April. On 4 April Wall LJ ordered an oral hearing on notice with an appeal to follow if permission granted. The Easter vacation then intervened, but a listing has been found today, only some two weeks into the Easter term.

Order: Appeal allowed.