B (A Child) [CA (Civil), 20/05/2003]
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE BODEY,LORD JUSTICE THORPE |
| Judgment Date | 20 May 2003 |
| Neutral Citation | [2003] EWCA Civ 792,[2003] EWCA Civ 881 |
| Docket Number | B1/03/0563,b1/03/0924 |
| Court | Court of Appeal (Civil Division) |
| Date | 20 May 2003 |
[2003] EWCA Civ 792
Mr Justice Bodey
B1/03/0563
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM KINGSTON UPON THAMES COUNTY COURT
(HIS HONOUR JUDGE MORGAN)
Royal Courts of Justice
Strand
London, WC2
THE APPLICANT FATHER appeared in Person.
In this matter Mr PB seeks permission to appeal an order of His Honour Judge Morgan made on 28th February 2003 at the Kingston on Thames County Court and in fact date stamped 10th March. He is profoundly concerned for the welfare and potentially for the actual safety of the one child of the family, VB, who is aged 10, having been born on 16th May 1993. The mother is KB. I propose to refer to the mother and father as mother and father respectively for simplicity. Both are solicitors.
The position is that V lives with the father and has done so for many years, at least since a residence order made by His Honour Judge Cooke on 22nd June 1998. Doubtless a major contributory factor to the decision that V should live with her father was the fact that, sadly, the mother has long suffered from a manic depressive illness, which was first diagnosed as long ago as 1979. That illness is basically controlled by medication, but there are undoubtedly times when the mother becomes either high or alternatively depressed. It is an illness which is volatile and can affect the mother's life and her judgment very rapidly, one way or the other.
The most serious example of her illness occurred in December 1999 when, paring the incident down to its bare bones, she became very depressed: she had delusional ideas. With the intention of committing suicide, she drove her car into a parked vehicle, causing personal injury to the driver of the other vehicle, who was standing near it. She was found screaming and later went running down the street. On other occasions she was off work through her illness in 2001 and again for, I think, some six weeks in 2002.
That of course is the briefest of summaries of the situation, given that this is an application for permission to appeal and not an appeal itself.
The order (which I have already mentioned) of Judge Cooke on 22nd June 1998, as well as ordering that the child should reside with her father, also set out a contact regime, including, amongst other things, that there should be staying contact with the mother once a fortnight from Saturday 9.30 am to Sunday 9.30 am. There were other arrangements for staying contact: six weekends a year from Friday evening until Sunday, when a relative was to be present with the mother and V, and then staying contact for holidays for two weeks in the year, provided that the mother was accompanied by a companion from a panel of people to be agreed between the parties.
The time came when the mother wished to increase the contact element of that order, which in turn led to Judge Morgan's order after a contested hearing in February/March 2003. The decision which the judge made was to accede to the application, varying the order of 22nd June 1998 to provide that the father should allow V to have contact with the mother on alternate weekends from Friday 6.30 pm to Sunday 6.30 pm; then staying contact on two separate weeks in the year, with the condition applying that if the week was to be spent at the mother's home, then the first two days and nights could be unsupervised, but the remainder of the contact should be supervised by an individual cognisant of the mother's condition and state of health. The order went on to say that if either of the weeks was to be spent away from the mother's home, then the whole week should be supervised by an individual fully cognisant of the mother's condition and state of health.
The mother was to be permitted under this order to take the child on holidays abroad, provided that the arrangements for supervision for the whole time should pertain and provided that proposed travel arrangements were notified to the father in advance. The order made further provision for Christmas, New Year and Easter, and indeed for some visiting contact during the week. Permission to appeal, which was sought by the father, was refused.
That order was made after the judge had heard the evidence of both the mother and the father and of a consultant psychiatrist, Dr. Susan Davenport, whose reports are in the bundle and which I have carefully read. Her main report is dated 16th October 2002 and there is an addendum report of 29th January 2003.
In that addendum report Dr. Davenport agreed that it is possible for the mother's health to deteriorate quite rapidly, saying that there are external triggers and additional pressures which seem to bring this on. Dr. Davenport went on to say that, in assessing risk and setting up safeguards as regards contact, there has to be what, at the end of the day, is a somewhat arbitrary cut-off point. She expressed her view that for a long weekend, particularly if spent in this country, there would not need to be anyone else supervising V's care. If, on the other hand, the same period were to be taken abroad or if a holiday were to be for a week or more, then there ought to be supervised arrangements in place to provide increased safeguards.
The judgment of Judge Morgan is before me courtesy of the father's counsel at the time, who has transcribed her notes. It runs to seven pages. I have carefully read that judgment. It clearly identifies that the welfare of V is the court's paramount consideration and it recognises the need for a balancing of risks and advantages and disadvantages.
I have read the father's skeleton arguments, including his revised skeleton argument, and his proposed draft order. I have to say that they present a cogent case, but more particularly a cogent case for presentation to a judge who hears the case at first instance. Judges have to take these finely balanced decisions as to risk every day in these courts. Such judgments are inevitably difficult to take on appeal before a court such as this, which sees no witnesses and is unable to get the feel of the case in the way that the judge at first instance can.
There is one particular point which Mr B has raised which I shall deal with specifically, and it is his suggestion that he might have been given a veto of contacts starting on any particular occasion, if he should feel that the mother was either in a high state or alternatively in a depressed state. That was something which Dr. Davenport had proposed in one of her reports.
However, it is clear from the judgment (at page 6) that the judge dealt with this possibility in about five paragraphs, in which he weighed up the pros and cons of it, taking into account the fact that the mother was very much against there being a veto and taking into account that Judge Cooke had not been in favour of this. He felt that such a veto would be likely to give rise to further anxiety on the mother's part and would act as a disincentive to her to volunteer information about her current state of health to the father.
The judge commended the father, as did Dr Davenport, for having bent over backwards to ensure that contact has taken place. It seems to me that Judge Morgan felt that Mr B would exercise any such veto responsibly, but he did say: "I do think that a veto will give rise to more trouble than it might reduce." He concluded that it was best to leave things as they stood as regards a veto, as this had worked reasonably well in the past.
I recognise the depth of concern which Mr B has. I do not doubt it for one minute, having heard him this afternoon. However, I am bound to say that nothing in Judge Morgan's judgment suggests that anything of relevance was overlooked or anything irrelevant taken into account. This was a matter of judicial discretion.
For an appeal to have any chance of success, it would have to be shown to be plainly wrong or, to use the words of the new rules, it has to be shown that there is a real prospect of success. I am of the view that there is no real prospect of success with this application.
I say that bearing in mind the ECHR point which Mr B has raised at the end of his skeleton argument. In my view, in a case of this type such ECHR points do not add anything to the general approach of the court acting under the proposition that the welfare of the child is the court's paramount consideration.
The application for permission is therefore refused.
Order: Application refused.
[2003] EWCA Civ 881
Lord Justice Thorpe
Mr Justice Bodey
b1/03/0924
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SHEFFIELD COUNTY COURT
(HIS HONOUR JUDGE BARBER)
Royal Courts of Justice
Strand
London, WC2
MR M KEEHAN QC AND MISS V MEACHIN (instructed by Messrs Brethertons, Rugby, Warwickshire) appeared on behalf of the Appellant Mother
MR D HERSHMAN QC AND MR A MACDONALD (instructed by Messrs Heenan & Jobling, Rugby, Warwickshire) appeared on behalf of the Appellant Father
MISS J ROWE QC(instructed by Messrs Blakemores, Leamington Spa, Warwickshire) appeared on behalf of the Guardian Ad Litem
MR J BAKER QC and MISS E ISAACS (instructed by Legal Services, Warwickshire County Council) appeared on behalf of the Local Authority.
His Honour Judge Barber sat to hear a public law case in which the applicant local authority is the Warwickshire County Council. The...
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