C (A Child)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Wilson,Mr Justice Henderson |
| Judgment Date | 21 January 2010 |
| Neutral Citation | [2010] EWCA Civ 89 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B4/2010/0127 |
| Date | 21 January 2010 |
[2010] EWCA Civ 89
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE BOURNEMOUTH COUNTY COURT
(HIS HONOUR JUDGE MESTON QC)(LOWER COURT No. BH04P00122)
Before: Lord Justice Wilson
and
Mr Justice Henderson
Case No: B4/2010/0127
Mr Roderick Hine (instructed by Simon Lacey Law Associates, Weymouth) appeared on behalf of the Applicant mother
Mr Robin Tolson QC (instructed Battens, Dorchester) appeared on behalf of the First and Second Respondents, the paternal grandparents. Mr Marcus Scott-Manderson (instructed by Boodle Hatfield, London W1) appeared on behalf of the Third Respondent, the father
Mr Leslie Samuels (instructed by Aldridge Brownlee, Bournemouth) appeared on behalf of the Fourth Respondent, the child by his guardian ad litem
Lord Justice Wilson:
We have before us an application for permission to appeal against an order for contact made by HHJ Meston QC in the Bournemouth County Court early in the afternoon of Friday 15 January 2010.
The order was that H, a boy, who was born on 23 June 2000 and is therefore aged nine-and-a-half, should go later that afternoon, namely at 4.30pm, in order to have staying contact with his paternal grandparents until 8.45am on Monday 18 January 2010, when they were supposed to return him to school.
I was contacted in my room on the afternoon of 15 January, shortly before 4.30pm, by the family lawyer in house here in the Court of Appeal; she relayed to me an application made to this court on the telephone on behalf of the mother for a stay of execution of that order. I granted a stay until today, 21 January. I directed that today there should be a hearing before me and one other judge of this court, or a judge acting as a member of the court; that the hearing should be on notice to the paternal grandparents, to the father and to the guardian; and that at today's hearing all issues relating to the mother's application for permission to appeal and for any further stay of execution should be determined.
Thus today we are assembled for that hearing, together with my Lord, Henderson J. In retrospect, had I had more time, I would have added a rider to my determination, namely that the court reserved the right, were it today to grant permission to the mother to appeal, to proceed forthwith to hear the substantive appeal. In the event, nothing turns on my failure to have added that rider because, at the outset of this hearing at 2pm today, I asked all counsel whether, in the event that permission to appeal was granted to the mother, they would object to this court's then and there proceeding to determine the appeal; and I am happy to say that the united voice from the Bar was that all were content for that course to be taken.
This, therefore, is an application for permission to appeal with appeal to follow if permission is granted. It is made by the mother; and importantly it carries the support of H's guardian ad litem, namely Mr Fremantle. Heavily opposed to it, however, are the paternal grandparents. The father, although not directly involved in the appeal, has, for reasons which I understand and which relate in particular to a paragraph of Mr Hine's skeleton argument hurriedly drawn in support of the proposed appeal, decided himself also to be represented himself today. Properly he takes no active part in the dispute about whether, having a discretion in the matter, the judge acted outside the ambit of his discretion, or was plainly wrong, in making the order for contact in favour of the grandparents which he did.
As I have indicated, the order was for contact on specific days and those days are now past; but, as a matter of pure logic, I agree with the submission of Mr Tolson QC on behalf of the grandparents that, in the event that we were either to refuse the mother permission to appeal or to grant her permission appeal but thereupon to dismiss her appeal, we should attempt to make some substituted provision for contact along the lines of the judge's order, i.e. for a future weekend. Indeed, in principle, why not this coming weekend, namely the weekend beginning tomorrow 22 January? There is however one practical problem about this particular weekend but, in the light of the judgment upon which I am embarked, the issue does not arise.
H lives with his mother near Wareham. He has always lived with his mother since she and the father separated. Long ago, HHJ Meston QC conducted an elaborate fact-finding hearing in relation to allegations by the mother and, for that matter, by the maternal grandmother, that the father had been guilty of sexual misconduct in fact towards H, then a very small boy, and towards the grandmother herself. The judge found the allegations to be true. The father's attempted appeal against the findings failed. The father's attempted reopening of the inquiry at the level of the county court failed. The father's attempted appeal against the refusal to reopen, being in fact a matter which came before me, failed. Those findings of sexual misconduct have been considered, including by this court, to be unassailable; and they represent the facts of the matter, however unpalatable and unfortunate. They must inform future decisions about contact.
In recent times H has enjoyed supervised non-staying contact with the father; and it has been in certain respects of great value to H. There came a time last year when it was felt that, at his age, an explanation for the need for supervision of the contact had to be given to him: for he could not understand why he was unable to see his father freely. A decision was taken, I believe, by HHJ Meston QC, who has had the conduct of this matter for so long, that H should be informed carefully and professionally about the findings of fact which required supervision of the father's contact. Such was an exercise conducted last year by Ms Lillitos, a consultant child and adolescent psychotherapist. There is, however, one other major fact which has given rise to the most acute problems both for H and for the mother, and generally: it is that the father has not been able even to date to accept the truth of the findings made against him. So, last year, not only did H, at the age of just nine, have to be introduced to the findings (in an age-appropriate way) and to why they had the significance which required the supervision of his contact, but also he had to be told that his father did not accept those findings to be true. It is hardly surprising that the exercise, necessary though it has been, has proved to be a tumultuous assault upon H's mind. One could expect nothing else.
In October 2009 HHJ Meston QC conducted, over four days, an inquiry into the future arrangements for contact: not only H's contact with the father but also his contact with the paternal grandparents. These grandparents are very loving towards him and desperately want to include him again in their wide and apparently happy family life.
Although to some extent I accept the submissions made to the effect that the order under proposed appeal has to be considered in the context of the judge's long written reserved judgment following that hearing, namely a judgment disseminated informally on 29 November and handed down formally on 11 December 2009, the more important material for survey of the judge's order made on 15 January comes more recently than that. It suffices to say that, at the long hearing in October, concerns had been expressed not only by the mother but also by the guardian ad litem about any swift and robust extension of contact with the father or with the grandparents.
Before I turn to the detail of the order made on 11 December I must, in view of a submission made by Mr Tolson QC on behalf of the grandparents this afternoon, notice the way in which, in the long written judgment, the judge sought to assess the mother. He noted that she had accepted and complied with interim orders for contact even when contrary to the submissions made on her behalf; had not attempted to pursue any application for termination of contact; and had accepted the guardian's recommendations for contact. The judge said:
“I accept the submission which was made on her behalf that she has approached matters with insight and intelligence. In my judgment the fact that contact has worked as well as it has is a reflection on her ability to accept the orders and on her ability not to convey her misgivings to [H].”
It may be that there was some distinction between the detail of the orders for contact made by the judge on 11 December and the submissions which had ultimately been made on behalf of the mother and the guardian to the judge. But at this short hearing I have not been persuaded that there was any substantial departure by the judge from the final submissions made on their behalf.
The order in relation to the father's contact was that it should take place on 12 December and then, starting in January 2010, on a consecutive Saturday and Sunday one weekend per month, but that it should continue to be supervised by the supervisor who had been in post in 2009, namely Mr Smart. More important, for this afternoon's purposes, was the order in relation to contact with the grandparents. The judge provided that H should go for a period of four hours to the paternal grandparents on 19 December 2009, for a period of six hours on dates to be agreed in February, April and June 2010, and then, in the summer holidays 2010, an increase of a period of up to four days’ staying contact, whether at their home in Hertfordshire or in their...
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