C-R (Children)
| Jurisdiction | England & Wales |
| Judge | Lord Justice McFarlane,Lord Justice Fulford |
| Judgment Date | 02 December 2014 |
| Neutral Citation | [2014] EWCA Civ 1627 |
| Date | 02 December 2014 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | B4/2014/0524 |
[2014] EWCA Civ 1627
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BARNET COUNTY COURT
(HER HONOUR JUDGE LEVY)
Royal Courts of Justice
Strand
London, WC2A 2LL
Lord Justice McFarlane
Lord Justice Fulford
B4/2014/0524
The Appellant father appeared in person
The Respondent mother appeared person
(As Approved)
This is an appeal brought by the father of three children to challenge some of the decisions made in long running private law proceedings that were being undertaken in the Barnet County Court by Her Honour Judge Levy.
The children are a boy, I, born on 17 May 2001, and therefore now 13 years of age; a girl, A, born on 29 March 2014, and therefore now 10; and another boy, L, born on 24 October 2005, and so now aged just over 9 years.
The children were born into a family which had been established for a long time. The marriage broke down after a period of some 20 years but, sadly, following the breakdown there has been a substantial period of litigation between the parents as to the arrangements for the children's care and in particular the amount of time that they should spend with their father. The parents live not far from each other. They have had contact arrangements with the children spending significant overnight periods with the father but progressively that has led to concern on the part of the mother both as to the practical care of the children, in particular whether or not they were being set strict boundaries as to bedtime and other matters, but more particularly because of the attitude of the father towards the mother, he presenting as someone who was highly critical of her care of the children. The father's position has to be seen in the context of a case which the judge came to find at a fact-finding hearing involved a substantial history of domestic abuse by the father upon the mother. The judge, at the conclusion of an 8 day fact-finding process in May 2013, went on to make a substantial number of findings against the father indicating abusive behaviour going back as far as 2006 or 2008 and continuing. He was found to be a controlling man who on occasions would resort to physical force. Following the separation, the mother's experience of this aspect of the father's personality was that, within the court proceedings, the father would make allegations and seek to denigrate her care of the children, and that was part of the case that he presented.
The subsequent welfare hearing which the judge conducted at the beginning of this year, and which is reflected in her judgment of 27 January 2014, is the subject of this appeal. The judge had the assistance of an expert, Dr Wannan, a child psychologist, who firmly advised that the relationship between the parents, and the father's negative and antagonistic approach towards the mother, were such that the children should be spared extensive exposure to him and that there was a need to limit his contact, and also Dr Wannan supported an embargo upon further applications to the court by the father and he agreed with the length of time put forward by the mother for such embargo under section 91(14) of the Children Act 1989 being a period of 5 years. That position was supported by the CAFCASS officer, a Mrs Lemonides.
In the course of her conclusions, the judge sets out her analysis of the father's position in the light of her extensive exposure to him. In doing so she relied upon the professional advice of Dr Wannan and Mrs Lemonides, but it is plain from the wording of the judgment that the judge had formed her own view of the father from her own experience of him in the course of the court proceedings. At paragraphs 220, 221 and 222, the judge draws her conclusions on this topic together in the follow terms:
"220. I share the concern of Mrs Lemonides and Dr Wannan that the father has not fully acknowledged the violence of the past and nor has he apologised, either to the mother or the children. He does not acknowledge that even now he fails to put the children's interests first consistently. To the extent that he accepts any responsibility for past behaviour, he seeks to share that responsibility with the mother. As regards his conduct in the course of these proceedings, he blames Mrs Lemonides, Dr Wannan, the family justice system, the court, for the way in which he has been obliged to conduct his case.
221. The father asserts that as long as the mother criticises him he must make counter allegations against her supported by the best evidence, such as recordings made of the children during contact. I considered the father's negotiating style in my first judgment (para 62) when I noted that:
'The father explained to me (with reference to his texts to the mother on Christmas Day 2012) that he put his case as strongly as he could or, indeed, more strongly, but he did not expect her to meet his case. He was right to call her an abuser with the intention of negotiating to a position somewhere in the middle. He is a commercial lawyer and that is how he negotiates.'
At this hearing he told me: 'The way I see it, people come to court ready for a fight and then settle.' The father has not changed his approach to this family litigation, although I have suggested that it is not constructive, and I expect that when he has chosen to be represented, he has been similarly advised.
222. The father has continued his barrage of criticisms of the mother as an abuser, liar, bully, a controlling woman who seeks to undermine his contact with the children. As I observed in my first judgment, he does not have anything positive to say about her. This attitude, combined with his dislike of her reported by Mrs Lemonides and Dr Wannan and his obvious anger in the course of the hearing, lends considerable weight to the mother's concern that he continues to denigrate her to the children."
Two or three paragraphs further on at paragraphs 227 and 228, the judge says this:
"227. The father is the applicant in these proceedings. He seeks a shared residence order, which is not agreed and, in the course of his evidence, suggests that once a shared residence order is made, he and the mother will be able to build a communication bridge. He has not been civil to her in the course of the hearing. He has put his allegations to her in an aggressive manner. He has not been able to be civil outside the hearings, for example by texting to tell her that he was bringing the children home late. He has not dealt with the children's invitations to parties and their piano concert in a civil, polite manner. In the course of his evidence for the first time the father suggested a more conciliatory approach, provided a shared residence order is made. It came as no surprise that the mother did not trust this sudden change of heart. This late, and rather grudging change of approach goes to the father's credibility.
228. For all these reasons I find that I can have no confidence in the father's evidence."
To make some sense of what is said there it is right to record that at the beginning of the welfare hearing the father maintained his stance as it had been for a long time in the proceedings, namely of not accepting the findings of fact that had been made by the judge at the May hearing. Indeed he had attempted to appeal those findings of fact on two occasions, unsuccessful though those attempts were. Also he did not accept the basic premise of Dr Wannan's advice, which was that the father's attitude towards the mother was something from which the mother and the children needed protecting. However, in the middle of the hearing, after Dr Wannan had given his evidence, the father indicated a sea change in his position. He described how he had re-read Dr Wannan's report, how, as a result of that, he now saw the validity of that expert's opinion and how going forward henceforth he, the father, would no longer conduct himself as he had done but would now present as someone who was not criticising the mother, was accepting of the court's findings of fact, and indeed he tells this court that he went on to apologise to the mother and indeed apologised to the children for the stance that he had taken and the consequences to them of his actions.
Thus it was that the judge was being asked to trust the father to make the changes that I have just described, but the conclusions that the judge gave voice to in the paragraphs that I have now quoted indicate that she did not accept that position and she therefore went on to make the decisions as to the arrangements for the children in the light of that conclusion.
The outcome that the judge determined was in the children's best interests was to reject the father's case, which was to seek a split of 40 per cent of the time with him and 60 per cent with the mother, with extensive staying contact, and to accept the professional advice of Dr Wannan and Mrs Lemonides that contact should be limited to daytime contact once a fortnight on a Saturday between the hours of 10.00 am and 5.00 pm. In addition, the judge held that the children would spend each of the two Eid festivals with the father on an extended basis of 9.00 am until 9.00 pm. The judge held that the children should spend Christmas with their mother and if Christmas falls on a Saturday then the father's fortnightly Saturday contact would have to be re-accommodated the following week.
In addition, the judge considered the application for a section 91(14) order. As I have indicated, the mother's submission was that that should be for a period of 5 years, but the judge concluded that it should be for...
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