A Father v A Mother
| Jurisdiction | England & Wales |
| Judge | Baker LJ,Peter Jackson LJ |
| Judgment Date | 22 May 2019 |
| Neutral Citation | [2019] EWCA Civ 903 |
| Date | 22 May 2019 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B4/2018/2357 |
[2019] EWCA Civ 903
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT FAMILY DIVISION
The Honourable Mr Justice Hayden
MA16P01150
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Peter Jackson
and
Lord Justice Baker
Case No: B4/2018/2357
In the Matter of the Children Act 1989
And in the Matter of N (Children)
The Appellant father appeared in person
Sheren Guirguis (instructed by Stephensons Solicitors LLP) for the Respondent
Hearing date: 22 May 2019
Approved Judgment
By a notice of appeal dated 27 September 2018, the appellant sought an extension of time for appealing and permission to appeal against an order made by Hayden J in private children proceedings concerning his two children, his daughter, now aged eight, and son, now aged seven. In the notice, the father stated that he wished to appeal against “the final order of Hayden J dated 3 July 2018 dismissing the father's application to vary the order of the court dated 14 March 2018”. The skeleton argument filed in support of the application for permission to appeal stated that the father wished to appeal against both the order of 3 July and the order of 14 March. On 6 December 2018, Moylan LJ granted the father an extension of time for appealing and permission to appeal against the order of 3 July 2018. He further directed that “the applications (made informally) for an extension of time and for permission to appeal against the order of 14 March 2018 are adjourned to be heard with the father's appeal from the order of 3 July 2018. I take this course so that the court is able to deal with these applications in the light of the court's determination of the appeal from the latter order”.
The litigation between the father and the respondent mother concerning the two children has been continuing for nearly 5 years. The parties separated in August 2013 and, in September 2014, the mother applied for a child arrangements order, a non-molestation order and a prohibited steps order. In January 2015, the father pleaded guilty to an offence of harassment by sending abusive text messages to the mother and was subsequently sentenced to a six-month community order together with a fine and order for costs. On 7 March 2016, a district judge made a final child arrangements order providing that the children live the mother but have overnight and holiday contact with the father. In June 2016, the father referred the children to the local authority and informed the police of allegations that the mother's partner had physically harmed the children. The local authority conducted an investigation under s.47 of the Children Act but found no evidence of physical abuse.
Meanwhile, the mother had applied for a variation of the contact order and from July 2016 the father's contact has been confined to visiting supervised contact only. It is important to record that, despite a number of court findings critical of the father, the evidence broadly suggests that the children enjoy and benefit from contact with him.
A final hearing took place over four days in March 2017, at the conclusion of which the circuit judge made an order confirming the child arrangements, including the order for supervised contact, coupled with a non-molestation order and prohibited steps order against the father, who was also ordered to pay the mother's costs. The father was granted permission to appeal against that order, and the appeal came on for hearing before Hayden J on 19 October 2017. The appeal was dismissed, but the judge gave further case management directions concerning the issue of contact following the parties' agreement to undergo a psychological assessment. He gave permission to the children's solicitor to instruct Dr Jaime Craig to carry out the assessment. He further ordered that, in the light of the history, the case should remain in the High Court. With regard to future hearings, the order of 19 October 2017 included (at paragraph 2) a provision that “the application … is hereby restored for consideration of the future progression of contact following the psychological assessment of the parents”, but also (at paragraph 6) a direction that “the case is listed for directions before Hayden J on 14 March 2018”, with a further provision that all parties should file brief position statements for that hearing.
Dr Craig's report was filed on 11 February 2018. It is unnecessary for the purposes of this appeal to set out his conclusions concerning the mother, save to note that there were no findings which called into question her capacity to care for the children. So far as the father was concerned, Dr Craig concluded that there was compelling evidence that during times of stress, and in particular when he felt slighted or wronged, the father has reacted with overwhelming levels of dysregulated emotion resulting in aggression and damage to property. There was extensive evidence of longstanding difficulties in anger management, volatility and aggression with dramatic acts and threats of self-harm. These were not thought to be indicative of an acute mental illness but essentially maladaptive coping strategies and other personality traits of fluctuating mood, wilfulness, egocentrism, and lack of remorse. Dr Craig recommended that the father should consider treatment in the form of psychotherapy — either dialectical behaviour therapy or cognitive analytical therapy.
The father did not attend the directions hearing before Hayden J listed on 14 March 2018. Instead, he filed a position statement stating inter alia that “the father's position is a very straightforward one, namely that in the interests of the children the court should very clearly and concisely identify all the relevant information concerning the two outlined options namely the dialectical behaviour therapy and cognitive analytic therapy which the father needs to undergo before contact can become unsupervised … Once the father has received clear information from the court re the two therapies, arrangements will be made for him to undergo the necessary so unsupervised contact can take place after the completion of the aforesaid.”
The hearing proceeded in the father's absence. A transcript of the hearing has been prepared for the purposes of this appeal. After an initial discussion with the mother's counsel, the judge asked the guardian to give oral evidence. There followed a dialogue between the judge and the guardian concerning arrangements for future contact. The judge expressed scepticism about the father engaging with therapy. The guardian agreed, but added that he thought it was a prerequisite to the children enjoying a full and meaningful relationship with the father throughout their childhood. The mother then gave oral evidence during which the judge again expressed doubts about the prospect of the father engaging with therapy, describing it at one point as “frankly ludicrous”. The judge also expressed confidence that the mother would be able to manage contact in future.
At the conclusion of the mother's evidence, the judge stated:
“Right well I'm going to leave it to your counsel and [the children's solicitor] to see how best to construct my thoughts to give you an element of discretion. If you want me to reflect that in the order, if you do not I will not, but I'm signalling to you thatt I'm putting this into your hands to back your judgment… I will give you the framework that you wish, but I want you to use your judgment to keep it afloat knowing that I'm backing your judgment. I am going to not make any order for the therapeutic commitment of the father. If he wants to engage in it that seems to me to be entirely a matter for him. He is far more likely to do it constructively if he is doing it for himself, than to please a judge as part of a court process that will be lipservice, it will not be genuine, nobody ever engages in this kind of therapy … for any other reason than they want to … I am also going to make a 91(14) order to prevent the case coming back before the court without a permission application by the party who wants to bring it back … That permission application is reserved to me, I am afraid.”
In response to a question from counsel, the judge confirmed that the s.91(14) order would apply to both parents and that the order would last for two years. He added:
“I am just blocking the court process because it is ratcheting up the emotional anti … Take away the court from it and let us just see if that calms things down a bit.”
The order drawn following the hearing included a recital that the court was “satisfied that exceptional circumstances exist for an order to be made pursuant to s.91(14) of the Children Act 1989”; an order that the children should live with the mother; an order that the mother make the children available for supervised contact with the father on dates set out in the order; an order restraining the father from removing the children from the care and control of the mother, or their schools, or the jurisdiction; and, under paragraph 4, an order that
“pursuant to s.91(14) … the father and mother are prohibited from making any further application for a child arrangements order in relation to the children … without the permission of the court until 4 pm on 14 March 2020. The father has liberty to apply to vary the terms of this paragraph of the order by no later than 4 pm on 12 April 2018. Any application for permission is reserved to Mr Justice Hayden.”
On 12 April 2018, the father lodged an application to vary the order of 14 March. He also then undertook a course of psychotherapy with Ms Elaine Swift, a chartered consultant counselling psychologist qualified in various therapies including cognitive analytic therapy and dialectical behaviour therapy. In a report dated 25 May 2018, Ms Swift...
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