C (Children)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Munby,Lord Justice Thorpe |
| Judgment Date | 12 October 2012 |
| Neutral Citation | [2012] EWCA Civ 1489 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B4/2012/1074 |
| Date | 12 October 2012 |
[2012] EWCA Civ 1489
Lord Justice Thorpe
and
Lord Justice Munby
Case No: B4/2012/1074
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BRADFORD COUNTY COURT
HIS HONOUR JUDGE CLIFFE
Royal Courts of Justice
Strand, London, WC2A 2LL
The Appellant appeared in person.
Ms Claire Garnham (instructed by Zenith Chambers) appeared on behalf of the Respondent.
This is an appeal, pursuant to permission given by Black LJ on 18 July 2012, from a decision taken by His Honour Judge Cliffe in Bradford County Court on 16 April 2012. The judge was exercising the private law family jurisdiction in relation to three children who were living with their mother in accordance with a residence order made by the court in 2008.
It is apparent that there had been continuing difficulties between the mother and the father, not so much in relation to contact itself, which appears to have gone most of the time in accordance with the court's orders, but in relation to a range of matters to do with the children's day-to-day and medical and dental care. The father has for quite some time taken the view that this been significantly deficient, such as to impact adversely upon the children's welfare. He has grave concerns involving physical mishAndling, physical maltreatment and, most serious of all, although there is no suggestion that the mother is responsible for this, a suggestion that one of the children suffered a cigarette burn.
The matter came before Judge Cliffe for the first time on 28 September 2011 when he was hearing the father's appeal against an order of the district judge which had temporarily suspended contact. On that occasion Judge Cliffe made an order setting out the contact arrangements which were to take place for the future and, on that being done, the father agreed to withdraw his appeal. Judge Cliffe directed the matter be listed to review the position regarding contact on 9 November 2011. He reserved the case to himself.
When the matter came back before Judge Cliffe on that date, the father was actively pursuing the suggestion that there needed to be a fact-finding investigation in relation to his concerns. Accordingly Judge Cliffe directed the filing by the father of a schedule of the facts which he intended to prove, giving details and dates of the incidents, and directed that the mother serve her response.
The father's schedule served in pursuance of that order lists the allegations helpfully under discrete headings, and then under each heading lists the specific matters relied upon. The first heading was "Missed medical appointments", the second "Inappropriate child care not commensurate with the children's welfare needs", the third was an allegation of non-accidental injury, the fourth were described as verbal and physical assaults by the mother, the fifth was described as blocked contact, and the sixth was the respondent's inadequate parenting. The mother's response to that schedule was detailed. It went far beyond bare denials; it set out a detailed refutation of the father's complaints.
It was in these circumstances that the matter came before Judge Cliffe on 16 April 2012 for the purpose of investigating the father's factual complaints. What happened on that occasion was that, although the matter had been listed for two days, after the father had given evidence for something of the order of one and a quarter hours, one hour before the lunch break and some fifteen or twenty minutes after the lunch break, Judge Cliffe effectively stopped the proceedings and gave judgment explaining why he was doing so.
Referring back to the order which His Honour Judge Bartfield had made in 2008 giving residence to the mother, Judge Cliffe said this:
"What I have to decide in this case is whether the decision of His Honour Judge Bartfield back in 2008 should be overturned. Of course I have no jurisdiction to turn over the decision of another judge unless there is some new and compelling evidence put before me that satisfies me that the interests of these children require them to move from the principal carer, the mother, who has always been the main carer, to live with their father and for the purpose of this exercise I exclude all the additional criteria that would become necessary at the welfare stage about what sort of home they should live in, who would support them, who would offer the father support in his care of his children. All those matters I lay to one side, because as I have said it is for the father to establish that he can show on a balance of probabilities compelling reasons why these children should move and he has singularly failed to do that."
Judge Cliffe then proceeded in the next part of the judgment to analyse the various categories of complaint the father had raised in his schedule.
In relation to the missed medical appointments he expressed the view that it was "by no means evidence of neglect". Turning to the allegations of non-accidental injury Judge Cliffe recorded that the father was not able to put specific evidence before the court to show that those were indeed non accidental injuries. He commented:
"…children are injured from time to time in the hurly-burly of family...
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