C (A Child)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Cobb |
| Judgment Date | 17 November 2015 |
| Neutral Citation | [2015] EWCA Civ 1431 |
| Date | 17 November 2015 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | B4/2015/3177 |
[2015] EWCA Civ 1431
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM NEWCASTLE UPON TYNE COMBINED COURT
(HIS HONOUR JUDGE WOOD)
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Cobb
B4/2015/3177
The Applicant appeared in person
The Respondents did not appear and were not represented
There is before the court this morning an application for permission to appeal and an application for permission to appeal out of time. These applications are made by Mr DC. The respondents to the application are Miss MK, and the child himself, H, who was born on 6 June 2011, so he is four years and five months old.
I shall say at once that I have no difficulty in this case in granting an extension of time for the lodging of the Notice of Appeal, in view of the fact the father did not get a copy of the order until 19 September 2015, and his application was issued relatively swiftly thereafter.
These applications have been determined at an oral hearing before the court today, 17 November. The father has appeared in person and has presented his case in a measured and articulate way. He has, in my judgment, plainly been affected significantly by the order made by His Honour Judge Wood, and speaks with considerable emotion about his son H and about the loss he has suffered by reason of the order under challenge.
The application for permission to appeal concerns the child H. The application is made in relation to a final order made by His Honour Judge Simon Wood on 28 August 2015 at the Family Court in Newcastle upon Tyne. That was a hearing at which the father was unrepresented, but the mother and child both were. The father plainly feels that he was disadvantaged by his lack of representation, though, as I indicate shortly, the care with which the judge determined the applications gives no sense of that. The two potential respondents to the application, namely H's mother MK and H himself, who from 13 May was a party to the proceedings and represented by his guardian Jackie Tate, are not present nor represented at this application.
The order that was made by the judge on 28 August followed two days of oral evidence and one day of submissions. The judge reserved judgment overnight. At the hearing in August 2015, there were a number of cross applications before the court, namely: (1), an application by the father that H live with him; (2), an application for enforcement of an order that had been made earlier in the year by District Judge Traynor; (3), an appeal against the order of 11 February 2015 (District Judge Traynor); (4), an application by the mother for variation of the order of 11 February 2015, by seeking an order that H have no direct contact with his father; and (5), the mother's application for permission to relocate to an undisclosed destination in the Midlands.
At the conclusion of the hearing on 28 August, the judge made orders as follows: (1), that H live with his mother; (2), the father's application for an order that H resides with him, or that H shares his time between his parents, is refused; (3), that there be monthly indirect contact only; (4), that the mother be permitted to relocate to the Midlands. The judge made a range of ancillary and other directions to support these principal orders.
The father presents his case on his application for permission to appeal relying on six grounds which I summarise as follows: one, that the judge was wrong to make an order for no direct contact, which is a Draconian order and a breach of H's human rights and of his own human rights, namely Article 8 of the ECHR, (the right to respect for private and family life); two, that the judge previously involved in the case (that is to say, District Judge Traynor) did not see a need to bring the direct contact to an end as His Honour Judge Wood had done, and that therefore Judge Wood had erred in reaching a different conclusion; three, that the Cafcass guardian, Miss Tate, was not impartial, having "turned against" the father following a complaint he had made against her; four, that the court is obliged to consider all available options before reaching a conclusion that no direct contact is in the interests of a child; five, that the judge erred in finding that H had suffered harm when he was removed from contact on 16 July 2015 (the father contending that the police evidence filed at the time demonstrated that H was in fact happy in the care of his father); and six, that the judge was wrong to permit the mother to remove H from County Durham to reside in the Midlands.
In order to deal with those grounds, which as I say I have simply summarised in this judgment, it is necessary briefly to refer to some of the history of the case, which is, I may add, extensively set out in the judgment of His Honour Judge Wood of 28 August of 2015. Judge Wood in fact himself drew upon a judgment which had been delivered earlier in the year by District Judge Traynor, on 11 February 2015; see in particular paragraph 4 and paragraphs 6 to 10 of the judgment of Judge Wood.
The parties met in 2009 and separated in 2012. They have never married, but the father has parental responsibility for H. On 11 February 2015, District Judge Traynor, at the conclusion of a contested hearing, made various orders in relation to H. Clear parameters were set out in his orders for contact between H and his father. Judge Traynor described the relationship of the mother and the father as having become "a war zone" to which H was exposed. District Judge Traynor reflected that the Local Authority were seriously contemplating public law proceedings — see paragraph 13 of that earlier judgment — and said this of the father:
"Contrary to the suggestion of the agreements made by [the father], I find that throughout these proceedings he has deliberately flaunted [sic] the terms of the court's orders by failing to return H as ordered. The first occasion was on 9 July [2014] when texts sent by Mr C evidenced clearly that he was aware of the order made by me earlier in the day that he was to return H that afternoon, but at 4.37, some seven minutes after he was supposed to return the child, he sends a text to Miss K, which reads:
'I have asked H if he wants to see mummy...
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