D v D
| Jurisdiction | England & Wales |
| Judge | THE PRESIDENT |
| Judgment Date | 20 November 2000 |
| Judgment citation (vLex) | [2000] EWCA Civ J1120-4 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | B1/2000/2430 |
| Date | 20 November 2000 |
[2000] EWCA Civ J1120-4
The President Lady Elizabeth Butler-Sloss and
Lady Justice Hale
B1/2000/2430
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE WATFORD COUNTY COURT
(HHJ CONNOR)
Royal Courts of Justice
Strand
London WC2
Mr McCourt (instructed by Messrs PW Moody Solicitors, Barnet, London) appeared on behalf of the Appellant.
Mr A Thorpe (instructed by Messrs SJ Vickers & Co Solicitors, Palmers Green, London) appeared on behalf of the Respondent.
: I will ask Lady Justice Hale to give the first judgment.
LADY JUSTICE HALE: There are two matters before the court today. The first is a mother's appeal against a shared residence order made by His Honour Judge Connor in the Watford County Court on 1st June 2000. The judge himself gave permission to appeal on 26th June 2000. Technically an extension of time is required but no doubt he would have granted that if asked and no prejudice has been caused. For my part I would readily grant that extension.
The second matter is the mother's application for permission to appeal against a order of His Honour Judge Connor in the Watford County Court on 11th October 2000 dismissing her application that contact with the father be supervised or suspended and ordering her to pay the father's costs of that day.
The case concerns three girls, S, who was born 2nd November 1987, and is now just 13; T, who was born on 15th June 1989, and is now 11; and A, who was born on 9th June 1991, and is now 9. The parents are both ethnically Gujerati and of the Hindu religion. The father comes from Kenya, where he still has family. The mother comes from Mumbai in India, where she still has family. An arranged marriage took place in Mumbai on 5th September 1986. The mother was living in India then, but the father had been living in this country for some time and the couple came to make their home here.
The marriage broke down in the summer of 1995. There were divorce proceedings. The pattern was established quite quickly, of the children living with their mother but having very substantial contact with their father. Even from August 1995 this was weekly. As from February 1996 it was one weekday evening and three weekends in five, half the school holidays, birthdays and religious festivals, including a three-week holiday in Kenya. As from June 1996 the pattern was established, in an order made by His Honour Judge Ansell, that it was three weekends out of four with the father and the rest of the time shared as before. Later, the father agreed that there should be one shared weekend, so that it became two weekends with him, one with the mother and one shared and that basic pattern seems to have continued. But there were frequent returns to court to settle the precise schedules each year, to ensure the release of passports so that they could go to Kenya, to secure that the mother told the father of the children's appointments at the eye hospital and to resolve a dispute about the children's education.
The current proceedings began with the father's application on 16th February of this year to determine the contact schedule for 2000/ 20001, and for what was called a "joint" residence order and a prohibited steps order prohibiting the mother from causing anyone to withhold information about the children from him.
The hearing before His Honour Judge Connor began on 15th March 2000. It was part heard to 17th April when there was no time for him to give judgment and so that was delivered on 1st June.
There were three basic matters for him to determine. The first was the summer holiday this year. The father wanted to take the children to Kenya and had booked flights; the mother wanted to take them to India to see their maternal grandfather, who was in very poor health, and had also booked flights.
The judge found that the trip to India was in the children's interests. It was the mother's turn to have the first choice of dates and the father had not responded to an overture to agree dates with the mother's solicitors, and so he held in favour of the trip to India. There has been no appeal against that, of course, but it has led to a difficulty which prompted the second application before us and so I must return to the events of the summer.
The second issue was the general pattern of contact. The mother now wanted the weekend time equally shared, that is in each four weeks there should be one full weekend with each parent, and in the intervening weekends one full day with each parent. The judge found that there was no justification to change the arrangements. These conformed to the basic pattern which had been laid down by His Honour Judge Ansell in June 1996. He was entitled to assume that there had been good reasons for such a high level of contact, and given the animosity between the parties, those arrangements had worked surprisingly well.
The third matter was the question of a shared residence order and/or a prohibited steps order. The children spent some 140 days each year with their father, which he calculated was 38 percent of their time. The father claimed to have experienced difficulties with schools and the hospital in obtaining information and to have felt like a second class parent. The judge found that there was an exceptionally high level of animosity between the parents, despite the time that had elapsed since they separated.
"That animosity is most obvious in the evidence of [the mother]…She is a person who very readily becomes excited. In many respects, she was a terrible witness."
The father in his view presented "as a calm, thoughtful person, with his emotions very much more under control". Nevertheless, the judge held that the father was at least as responsible as the mother "for the state of animosity that subsists between them." And because the father was more in control of his emotions he should do more "to lessen the tension between them", whereas, in fact, he stirred up the mother unnecessarily.
"The sad fact is that it appears that neither parent can put behind them their own personal feelings or swallow their pride for the benefit of the children."
There was no evidence that the children were yet seriously affected, but there was no guarantee that that would continue. There was, incidently, no welfare report in the case because His Honour Judge Ansell at an earlier hearing had decided that it was not necessary.
The judge considered the evidence of the difficulties faced by the father in gaining information. He found that that evidence was unsatisfactory because it came in the form of letters from the school and the hospital rather than witness statements. Nevertheless, he concluded that there had been difficulties and that part of the problem arose from the fact that one parent had a residence order and the other did not.
He considered the cases of Re H (A Minor) (Shared Residence) [1994] 1 FLR 717 and A v A (Minors) (Shared Residence Order) [1994] 1 FLR 669 and, in particular, the observations of my Lady, Lady Justice Butler-Sloss (as she then was) and to which I will return. He was somewhat anxious as to whether he had to follow her words to the letter, but considered that it was a matter for his discretion in the individual case. He pointed out that the general pattern of contact had been settled now for some time; there was no evidence that the children were having difficulty moving between their parents; there was a substantial risk that the children would be harmed by the continuing conflict. He was convinced that the mother was using the sole residence order as a weapon in the war with her ex-husband
"…and that the making of a joint residence order underlying the status of the parents as equally significant in the lives of the children would be likely to diminish rather than increase that conflict."
Hence, he made the shared residence order, that is an order that the children should live with both of their parents defining the time to be spent with the father and providing that the rest was to be spent with the mother. All of these arrangements, of course, were subject to a contrary agreement between the parents for a court order.
That order was made on 1st June 2000. Sadly, further conflict arose over the summer. The evidence in relation to that is limited. The children did, after all, go to Kenya with their father. There were problems over the hand over. The mother says that she took them to the car park to be collected, as agreed, on 19th July but the father did not arrive. The father's case, set out in a letter from his solicitors, was that someone, without his authority, had changed the flights to the following day, so that their departure was delayed. Nevertheless, he did collect the children and they flew on 20th July.
There were then problems over the return. The order was that the children had to be returned by 7pm on the Saturday 12th August and they were due to fly to India on the morning of Monday 14th August. When they did not arrive at 7 o'clock the mother contacted the police. In fact, the children had flown back a day later and so they did not arrive in this country until 7 o'clock on the Sunday morning. Nevertheless, the father did not contact the mother to explain the situation but took them to his home so that they could get some rest. They were not returned until the Sunday evening, the mother, by that stage, being in a state of very considerable anxiety.
She, therefore, applied in September to supervise or suspend the father's contact. That application was dismissed by His Honour Judge Connor on 11th October 2000 and he took...
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