C (A Child)
| Jurisdiction | England & Wales |
| Judge | Lady Justice King,Lord Justice McFarlane,Lord Justice Richards |
| Judgment Date | 29 July 2015 |
| Neutral Citation | [2015] EWCA Civ 1096 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | B4/2014/0295 |
| Date | 29 July 2015 |
[2015] EWCA Civ 1096
IN THE COURT OF APPEAL (CIVIL DIVISION) B4/2015/1032
ON APPEAL FROM EXETER COMBINED COURT CENTRE
(MS RECORDER LISTER)
Royal Courts of Justice
Strand
London, WC2A 2LL
Lord Justice Richards
Lord Justice McFarlane
Lady Justice King
B4/2014/0295
Mr M Evans (instructed by Direct Access) appeared on behalf of the Applicant Father
Ms J Renton (instructed by The Family Law Company) appeared on behalf of the Respondent Mother
(As approved)
These are linked applications made by the applicant father in respect of orders made in private law proceedings in relation to his daughter, C, who was born on 20 September 2008 and who lives with her mother and has substantial contact with her father, as a shared care arrangement.
The first proceedings in time relate to a finding of fact hearing and a subsequent welfare decision made by Ms Recorder Lister, her judgments being given variously on 22 December 2013 and 7 January 2014.
The second appeal in time relates to the granting of an injunction by District Judge Arnold on 23 July 2014, whereby the father was forbidden from "recording, or instructing or encouraging any other person to record, any occasion when he, or they, met with the mother or members of her family whether or not C was present".
The father's application for permission to appeal the injunction first came before His Honour Judge Vincent on 17 October 2014, under the leapfrog provisions, His Honour Judge Vincent gave the father permission to appeal the order and transferred it to the Court of Appeal to be heard together with the application for permission to appeal the orders of Ms Recorder Lister.
The court therefore has before it today:
(1) An application for permission to appeal with appeal to follow in respect of the order of Ms Recorder Lister. The order now appealed had provided for C to reside with each of her parents, it confirmed that her primary home during school term would be with her mother. The details of how C's time was to be divided was set out in a schedule attached to the order, which, in summary, provided for her to spend each alternative weekend with her father, with an evening visit in the middle weeks and the school holidays to be divided equally.
In the judgment and recorded on the order was an agreement (accepted by Ms Recorder Lister) that the father was to turn off CCTV cameras which he had filming activity within his home and that he would no longer record conversations he had with C, nor take photographs of her other than for family records of her activities and achievements, further that he would not "record any occasions he meets with the Applicant and that this shall include the recording of their joint meetings with professionals concerning [C]'s education or health unless he has sought and received permission to do so from all the parties present.
(2) The appeal against the making of the non-molestation order made under the Family Law Act 1996 by District Judge Arnold.
Prior to considering the applications before the court, I would wish to note my combination of dismay and frustration the fact this matter is before the court at all in circumstances where the court has only recently had to extend significantly its "hear-by dates" for all cases, including ones relating to the future of children, as a consequence of the substantial increase in the volume of work to this court.
The shared living arrangements in relation to C were put in place some 18 months ago. Both mother and father have been complying with the terms of the order; for C, therefore who is still only six, it must be hard for her to remember any other routine.
So far as the injunction is concerned, it took the making of the injunction for the father finally to stop using the recording of both his child and the mother as a means of evidence gathering within proceedings. That non-molestation order was made a year ago and there have been no difficulties since that time.
The findings of fact (to which I will refer in a moment), made by the Recorder, relate in the main, to the appalling relationship between the mother and father following their separation and the father's persistent recording of conversations and the recording of C for his own ends. All has now calmed down in the light of the new regime. It is hard to see what possible point there is on the father's part in now pursuing this appeal, a course of action which can only have had the effect of causing the mother anxiety and of heightening tension between the parties at a time when it would otherwise have been hoped in C's interests that they had settled down into the new regime. Indeed it might reasonably have been hoped that the father had reached the same conclusion, as the bundles and the skeleton arguments arrived so late that the appeal had been placed in the "dismissal list" prior to the unexpected arrival on 6 July 2015 of the bundles and confirmation that this hearing was to be effective.
Background
The parties met in May 2006 and C was born on 20 September 2008. The parties separated in January 2010, the father making his application for residence the following month. In August 2011, those proceedings concluded with the making of a shared residence order. That might at first glance have seemed to be sufficient for the purposes of considering this appeal. However, Mr Evans QC, on behalf of the father, has sought, in support of his applications, to lay heavy emphasis on matters which occurred prior to that hearing in August 2011. That hearing took place in front of His Honour Judge Shawcross; before him were numerous recordings of contact handovers. Those recordings showed beyond peradventure that the mother had greatly exaggerated the father's behaviour at a number of contact handovers.
At the August 2011 hearing, an agreement was reached between the parties which led to the shared care arrangement. That arrangement thereafter proceeded (given the history of this matter and given the relationship between the parties), really very well until the matter had to return to the court in front of Ms Recorder Lister in order for there to be a resolution as to the future educational arrangements for C. The order of 15 August 2011 had sensibly included in the preamble a clause which said:
"Neither F nor M has sought nor will seek to pursue or rely on any past allegations raised in the course of these court proceedings to date without prior permission of the court in any future proceedings."
When the matter came on before the Recorder, the mother made what the Recorder referred to at paragraph 18 as "clear and helpful concessions" in respect of her historic allegations. Those concessions included that she was unable to sustain allegations that the father had been abusive during handovers and the withdrawal of various allegations she had made about the father's use of alcohol. The concessions are set out in five numbered paragraphs. The Recorder did not simply brush aside those unfounded allegations made by the mother in 2011 but recorded at paragraph 26 of her judgment:
"Whilst there was no fact finding in 2011, I do take into account in this Judgement that M's credibility is damaged by the false allegations she made in the earlier proceedings".
It was against the backdrop of that damaged credibility that the judge, having seen and heard both parties give evidence, reached her findings of fact.
The father's case is that as though the making of innumerable false allegations, the mother has time and again attempted to prevent him from seeing his child. The fact of the matter is in reality that since 2011, contact and the shared care arrangement has progressed satisfactorily, if not from the parents' point of view, certainly from C's.
The structure of the order in 2011 was that whilst C was still attending nursery, the week was to be divided on a 2-week rotation, with C spending part of each week with each parent. Clearly, this was unsustainable once C started school. Unfortunately, agreement could not be reached between the parties as to which primary school C should go to and as a consequence, the mother applied on 23 November 2012 for a residence order with contact to the father and for a specific issue order regulating C's schooling.
For my part, I have never before seen a case where, as here, the parents have allowed their animosity and inability to co-operate with each other to have the consequence that a little girl, just starting school for the first time, has ended up attending two separate schools for part of each week
As a consequence of some appropriately robust case management, the findings sought by each of the parties to be determined by Ms Recorder Lister in order to determine the issues were substantially trimmed.
It is stated on behalf of the father that the allegations made to the Recorder by the father against the mother were relatively modest and it was he who had been overwhelmed by numerous false allegations made by the mother. That submission does not sit comfortably with the oral evidence that was given by the father, recorded at paragraph 59 of the judge's judgment, this records allegations made by the father during his evidence that the mother is "abusive and violent" towards C, that the mother is "mad", "unkind" and "evil".
So far as the allegations made by the mother are concerned, (and by that I mean the current allegations, as opposed to the historic allegations which she had abandoned), these centred around what was alleged to be emotionally abusive behaviour on...
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