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F (Children) [2012] EWCA Civ 1793

Appeal by mother against an order changing the residence of two sons. Appeal dismissed.

This case was an appeal brought by the mother. The case concerned two boys aged 14 and 12. The older boy was diagnosed as being on the autistic spectrum. The boys lived with their mother and were educated at a local school. The decision of the judge of first instance changed the residence of the boys to the care of the father and involved a change of school.

There were a number of difficulties facing the Court of Appeal in considering this case. There was no approved transcript of the judgment, no transcript of any part of the evidence or the submissions made by the parties. The county court judge had heard oral evidence from the Cafcass officer but there was no note of this evidence. The mother chose not to give evidence, as she did not want to be cross-examined by the father who appeared in person.

Counsel for the mother raised three main points. Firstly, the wishes and feelings of the boys, which were fully canvassed in the Cafcass Officer's report were not able to be interpreted by the judge to take into account the older boy's difficulties. It was submitted that this had made the balancing exercise carried out by the judge flawed as he failed to take into account the boy's wishes and feelings in accordance with 'his age and understanding', as required by s1(3)a of the Children Act.  Secondly, the judgment did not engage with the impact on the boys of the change in residence and change of school. Thirdly, ensuring that the education provision for the older boy was right was crucial, given his particular needs. There was information provided at the trial by the mother about his educational provision but there was no indication that there was any information by the father as to what would be provided by the new school.

McFarlane LJ said that there was just not enough material before the court to understand the approach taken by the judge took when deciding the case. McFarlane LJ considered adjourning the appeal to obtain transcripts but decided against this course. He considered the information provided by the mother at the appeal that the arrangements that the judge put in place in respect of contact, the possibility that support provided to the older boy at his new school may not meet his educational needs and that the father's partner was not as available to care for the boys as had been anticipated. Given the matters raised, it was the view of the appeal court that a review was justified and that the matter should go back for a review before a local judge. The appeal was dismissed, as there was not enough material before the court to persuade the Court of Appeal that the county court judge had been in error.

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

Case No: B4/2012/2268
Neutral Citation Number: [2012] EWCA Civ 1793


Royal Courts of Justice
Strand, London, WC2A 2LL
Thursday, 15th November 2012

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(DAR Transcript of WordWave International Limited
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Ms J Rayson (instructed by QualitySolicitors Lumsdons) appeared on behalf of the Appellant mother.
The Respondent father appeared in person.
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(As Approved by the Court)

Crown Copyright©

Lord Justice McFarlane:
1. This is an appeal brought by the mother of two boys from the decision of HHJ Hooper sitting in the Worcestershire County Court given on 23 August 2012.  The issue before the judge was important.  It related to the residence and education of two young boys, who I will refer to as T, who is aged 14, and D, aged 12.  The decision made by the judge was to change the residence of the boys, who had hitherto lived with the mother in the Hagley area and, importantly, attended a local school in Hagley.  The change of residence was for the boys to move effectively immediately to the care of their father who lives in the Tewkesbury area and attend a school in Tewkesbury.  The mother filed a notice of appeal very promptly on 3 September and in the course of that document sought a stay of execution with equal promptness.  The matter came before Munby LJ on paper on 6 September.  He refused permission to appeal and therefore obviously the question of a stay at that stage evaporated.  I heard the matter on the mother's renewed application made orally for permission to appeal on 3 October and for the reasons that I set out in a judgment on that day which has now been transcribed I granted permission to appeal and today we have heard that appeal with the mother on this occasion represented by counsel, Ms Rayson, who is instructed by fresh solicitors, and Ms Rayson did not appear before HHJ Hooper.  The father has represented himself as he did before the judge and both parties have done their best to file documentation to assist the court.

2. The position is, however, that all we have in terms of an understanding of what went on before HHJ Hooper is a note, albeit seemingly a fairly full note, of judgment prepared by the mother's then solicitors.  There is no approved version of the judgment and there is no transcript of any part of the evidence or the submissions.  We do know that the mother did not choose to give oral evidence before the judge.  We are told that is because she did not wish to face cross-examination from the father as a litigant in person.  We know that the Cafcass officer gave oral evidence but do not know what he said and we do not know the way in which the case was put by counsel, Ms Chadwick, for the mother in closing submissions.  So the task of this court, difficult though it normally is even when transcripts of the full process are provided, is rendered extremely difficult today.  We look, as it were, through a glass darkly to try and discern what went on before the judge. 

3. I do not propose to give a lengthy judgment on this occasion and I refer to and adopt the judgment I gave on 3 October which sets out the reasons why I was persuaded on that occasion that there may be flaws in the judge's approach to the evidence and therefore his conduct of the welfare balancing exercise.  Today those points have been clarified and strengthened by the submissions of Ms Rayson and in very short terms she points to the omissions in these terms: first of all, that the wishes and feelings of the boys, which were fully canvassed in the Cafcass report, were not able to be interpreted by the judge to take account of the fact that the eldest boy, T, has for a long time been recognised as having a disorder which places him somewhere on the autistic spectrum.  Ms Rayson submits that therefore the exercise before the judge, the material he got from the Cafcass officer and therefore his ability to understand it, was flawed and failed to take regard of that boy's wishes and feelings in accordance with "his age and understanding", which is required by section 1(3)(a) of the Children Act.  That submission may or may not be sound, we just do not know; we do not have the evidence of the welfare officer, we do not know what Ms Chadwick asked and what he said.  There certainly was a wealth of material in the court papers from the school showing just how sophisticated this boy's difficulties were, and flagging up, said Ms Rayson, the need for care.  So we too would flag up that issue but we are unable in any way to say that the judge was in error in the course of the process conducted before him.

4. Secondly, Ms Rayson submits that the judgment does not engage with the impact on the boys of the change in residence and change of school.  That is plainly an important matter in the welfare checklist and she says, and she is right from the note we have, that this was not a major feature in the judge's judgment, albeit obviously he was contemplating a radical change; he moved their home and changed their school. 

5. For the reasons that I have just given, whilst I understand the point, it is just not open to the appellant to be able to persuade us today that the judge was wrong or in error because we just do not know that the welfare officer and Ms Chadwick said, and the mother plainly limited her ability to communicate to the court by not giving evidence and relying on her written submissions and what her barrister said and it is therefore all the more important to have some knowledge of what the barrister had to say.

6. Thirdly, education provision for both boys was important; it is important for any child.  But getting it right for the elder boy, the teen, was particularly important because of the need to deliver education in a supportive way that dovetailed in with his particular needs.  That was provided, says the mother through Ms Rayson, via Hagley, and there is no indication on the papers that we have, which is just the note of the judge's judgment, that there was any material from the Tewkesbury school to identify they would do.  Again Ms Rayson flags up the missing part of the jigsaw but we do not know whether it was missing, just what the judge had to do to deal with that.

7. A further matter -- it is not minor in the sense of it being important as part of the structure but it is a relatively straightforward matter -- is that the judge's stated intention at the end of his judgment was to provide an order for contact that mirrored (to use the phrase in the Cafcass officer's report and in the penultimate page of the note of judgment we have) the previous contact arrangements to the father, but in the event the order that the judge made omitted the Wednesday contact which numerically and in terms of time was an important element in the mirror.  That, to my mind, is a matter that could have been brought back to the judge for clarification and not of itself, were it the only point in the case, worthy of coming before this court. 

8. So just as I was in the hearing on 3 October, I am not at all dismissive of the points the mother raises.  I granted permission to appeal on the basis of those points.  But it is just not possible for us to understand how this experienced family judge approached the issues on the day from the very limited material we have.

9. Having flagged up the deficits in the material, it would of course be entirely open to this court now to adjourn the appeal and come back with full transcripts in three or four weeks' time, no doubt at some significant expense, and begin to go through the process of divining what went on with that better material.  But today we have read and heard that the arrangements that the judge put in place have not, certainly in terms of contact, played themselves out in any manner that might accord with what he thought would transpire.  We have also been taken by Ms Rayson, and I do not express any view as to the validity of this, but we have been taken to it, to reports from the school in Tewkesbury which Ms Rayson submits indicate that the support given to T falls well short of that which was provided at the school in Hagley and there is a deficit educationally in what he is now being given, and the query is raised as to whether this meets his educational needs.

10. Thirdly, we have been told on paper, but I do not think we have gone to it orally today, that if the judge had in mind that the father's partner, D, was to play an important role in the care of these two boys once they moved to the father's home, that may now be compromised to a degree and she may not be as available as she might have expected to be, the father being a police officer and not always available at the usual times when the boys will need ordinary care.  Again I mention that not because I accept it or have a view about it, but it is an example of the way things have played out since the judge's decision which may well justify further review.

11. So it certainly seems to me that whatever we decided on an appeal we would not be in a position now to make fresh orders for the boys either to leave them in their current setting or to move them and the matter inevitably would have to go back for a rehearing before a local judge.  On that basis it seems that nobody is going to profit other than those involved in transcribing material if we are to adjourn the case for three or four weeks and try and hear it before Christmas, when inevitably there are matters that are now alive which justify a judge soon, in the course of the next few weeks, getting hold of this case locally if the parents cannot agree a resolution themselves.  So I have formed the clear view that it is not possible to allow the appeal today.  I do not have the material that would come near persuading me that HHJ Hooper had been in error; we simply do not know.  I am persuaded that this case does justify being looked at again by a local judge.  I see absolutely no reason why that judge should not be HHJ Hooper if he is available and, given the approach that I have described, the inevitable outcome is to dismiss the appeal but make directions for the case to come back before a local judge as soon as possible.

Lady Justice Arden:
12. I agree.

Lord Justice Thorpe:
13. I also agree, and I would propose for the consideration of my Lord, Lord Justice McFarlane, and my Lady, Lady Justice Arden, and the parties, directions as follows.  One, the mother's application for variation of contact and education orders be issued within seven days.  Two, the mother's statement in support dealing with events since 23 August be filed within ten days; the father's statement in response ten days thereafter; and Mr Webb to investigate and report on developments since 23 August and on any present difficulties in contact and schooling.  I would finally direct an expedited interim hearing to settle arrangements for contact in the Christmas holidays if they cannot be agreed.  So this needs to launch and proceed rapidly in the Worcester County Court before HHJ Hooper, if available, and plainly the medium resolution will take time.  There is an obvious need for a swift interim to try and grasp the immediate; the longer the thing goes on without judicial management, the greater the ultimate difficulty will become.

Lord Justice McFarlane:
14. I would add to that a direction that the judgment that I have just given should be transcribed with expedition and that, together with the one of 3 October, should be made available to the judge.

Lady Justice Arden:
15. I also agree with those directions.

Order:  Appeal dismissed.