AB (Mother) v CD (Father)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Williams |
| Judgment Date | 11 June 2020 |
| Neutral Citation | [2020] EWHC 1510 (Fam) |
| Date | 11 June 2020 |
| Docket Number | Case No: FA2020-000033 |
| Court | Family Division |
[2020] EWHC 1510 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
ON APPEAL FROM THE CENTRAL FAMILY COURT
(Recorder Posner)
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Williams
Case No: FA2020-000033
Ms Emily Ward (instructed on a Direct Access Basis) for the Applicant
Mr James Turner QC (instructed by Forsters LLP) for the First Respondent
Ms Gill Honeyman (instructed by Freemans Solicitors) for the Second Respondent
Hearing date: 3 rd June 2020
This judgment is not certified as citable pursuant to PD Citation of Authorities [2001] 1 WLR 1 and FPR FPR 27A para 4.3A.2
Approved Judgment
I direct that pursuant to FPR 27.9A no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
This judgment was delivered in private. The judge has given leave for this version of the judgment to be published. The anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
This is my judgment on the mother's application for an extension of time to appeal, and for permission to appeal, against an order made by Recorder Posner in November 2019.
On 5 November 2019 Recorder Posner gave judgment in respect of the child arrangements order for a young person who I shall call SH for the purposes of this judgment. SH was 12 1/2 at the time of that decision and is now 13. The application the Recorder was considering had been made by SH's father (‘the father’) in early 2019; it was for a variation of a shared lives-with order, which dated back to October 2015. The application to vary that order emerged after a series of hearings in December 2018 which had resulted in SH being taken by the police from her father's home pursuant to a without notice collection order that had been applied for by the mother on the basis that the shared lives-with order was not being complied with. The father's position was that for a significant part of the previous three years the parties had by agreement not complied with the terms of the shared lives-with order and that SH had lived for the majority of that time with him.
The father's application was timetabled to a final hearing that was due to take place in July 2019. SH had been joined as a party to the proceedings and NYAS appointed as her Children's Guardian. In a report for the final hearing the NYAS Caseworker made a recommendation that was not in accordance with SH's wishes. The final hearing was adjourned to enable the mother to secure legal representation and relisted in September 2019. By the time the adjourned final hearing came before the Recorder, SH had instructed her own solicitor, Ms Hansen, and HHJ Oliver had granted her application to be represented directly in the proceedings. NYAS's appointment was terminated but the NYAS Caseworker remained a witness. I shall refer to that Caseworker as “the Caseworker” in this judgment, for ease of reference.
The application came before the Recorder on the 26 and 27 of September. It was not completed and the case resumed on 5 November 2019. On that day the Recorder gave a judgment and made an order which provided that SH would live with her father. No order was made in respect of the time SH was to spend with her mother. An application for permission to appeal was made on behalf of the mother to the Recorder and refused.
Over three months later, on 12 February 2020, the mother, as a litigant in person, lodged an Appellant's Notice with the Family Division, seeking to set-aside the order made by the Recorder. The Appellant's Notice was accompanied by a lengthy narrative ‘grounds of appeal’. I gave initial directions on 24 February 2020 and further directions on 6 April 2020. In those directions I indicated that the reasons given for the delay did not appear to be good ones but if the merits of the appeal were strong that might tip the balance in favour of granting an extension of time. I sought to distil from the 23 paragraphs of narrative grounds what then appeared to me to be potentially arguable points. I shall return to those later. I listed the application for an oral permission hearing, on notice.
In response to the directions I gave, both the father and SH filed skeleton arguments in response to the mother's application. An appeal bundle amounting to some 330-odd pages was agreed between the lawyers for the father and the lawyers for SH, and filed. The mother filed a supplemental bundle of some 85 pages and I later received a transcript of the oral evidence of Ms Hansen. Given that only one hour had been allowed for pre-reading, I was unable to read all of that material in advance of the hearing. The application was listed before me on 3 June 2019. I heard oral submissions from Ms Ward on behalf of the mother (who did not appear below), from Mr Turner QC on behalf of the father and from Ms Honeyman on behalf of SH. Both Ms Ward and Mr Turner (and his solicitors) acted pro bono and I would like to express my thanks to them, in particular, for the assistance they have given to the parties and to the court at no charge, but also to Ms Honeyman and Ms Hansen for their input. The focussed written and oral submissions were of great assistance to me. At the conclusion of the hearing, in particular because of the reliance placed on the transcript of the oral evidence that had been given by the Caseworker at trial, I informed the parties that I would read further documents, in particular the transcript of the Caseworker's evidence, and would circulate my decision and a draft judgment later that day. In the event it was not possible to complete that further reading and this judgment on 3 June.
Reasons for Delay by the mother in filing an Appellant's Notice
The mother said that the reasons for the delay were twofold
i) The order came as a shock and she hadn't recovered mentally or emotionally from the events;
ii) She had been seriously unwell and was now due to undergo surgery. A letter dated 9 January 2020 was provided from the Royal London Hospital, referring to a nurse-led pre-operative assessment appointment booked for 30 January 2020.
Ms Ward submitted that the evidence demonstrated the mother had a serious medical problem which explained the delay.
Grounds of Appeal
In the course of the appeal hearing Ms Ward sensibly focused her submissions on the four points I had distilled from the narrative grounds. In addition she, in particular, emphasised that the mother was concerned about the procedural fairness of the hearing before the Recorder. I shall look at these points in turn.
Ground 1
The judge placed undue weight on the views of the child and the extent to which they were authentically her own, particularly having regard to the circumstances in which she came to instruct her own solicitor and the previous findings of various courts as to the father's propensity to dishonesty and manipulation.
Ms Ward emphasised that the Caseworker had concluded in her detailed reports that SH was ‘in script’ when she spoke about what she wanted and that her views were infused with the father's views and enmeshed with his. Ms Ward submitted that the Caseworker had seen SH in different contexts and was thus able to assess what SH said about spending time with her mother against what she (the Caseworker) saw of SH and how she was with her mother. The Caseworker was said to have had information from the school that SH was emotionally immature for her age and Ms Ward emphasised that Ms Hansen had not seen SH with her mother or her father or in a domestic environment.
In particular, Ms Ward emphasised that both the Caseworker and previous judges had found the father to be dishonest and manipulative and she argued that the Recorder had failed to give any weight to such previous findings in respect of the father. She submitted that the Caseworker was entitled to reach the conclusions that she had in respect of the father, which were based on her direct experience of him, in particular in relation to him appearing to agree the summer holiday contact at court but then reneging on it. The Recorder gave as a reason for not following the Caseworker's recommendations and discounting her evidence that she had not provided a balanced assessment of the parents. However, Ms Ward said it is clear from the Caseworker's reports and her evidence that she had identified failings in the mother as well as the father and that her evaluation was a balanced one, albeit she was more concerned by the father's failings than the mother's. There was no basis, Ms Ward contended, for the Recorder to conclude that she could not find any objective evidence which supported the Caseworker's evaluation of the father as dishonest and manipulative.
Lastly, Ms Ward emphasised that the circumstances in which SH came to instruct solicitors indicated manipulation by the father. It only emerged in the course of evidence that it was the father's solicitors who had made initial contact with Ms Hansen and this all pointed, it was argued, to orchestration by the father.
Ground 2
The judge placed insufficient weight on the need for the child to achieve some balance in her life as between her educational needs and her emotional and physical needs.
Ms Ward emphasised...
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