M (Children)

JurisdictionEngland & Wales
JudgeLORD JUSTICE WALL,LORD JUSTICE PILL,Lord Justice Wall
Judgment Date26 January 2007
Neutral Citation[2007] EWCA Civ 177
CourtCourt of Appeal (Civil Division)
Docket NumberB4/2006/1729
Date26 January 2007

[2007] EWCA Civ 177

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM BURTON-UPON-TRENT COUNTY COURT

(HIS HONOUR JUDGE ORRELL)

Royal Courts of Justice

Strand

London, WC2

Before

Lord Justice Pill

Lord Justice Wall

B4/2006/1729

In the Matter of M (Children)

MISS A PITTAWAY (instructed by Bakewells) appeared on behalf of the Appellant.

THE MOTHER APPEARED IN PERSON AS THE FIRST RESPONDENT.

MISS C ATLINSON (instructed by Timms) appeared on behalf of the Second Respondent.

LORD JUSTICE WALL
1

This is an application by Mr M for permission to appeal against an order made by HHJ Orrell in the Burton-upon-Trent county court granting the residence of Mr M's daughter, M, to her mother, Miss G. The same order, which was drawn on 20 July 2006, directs Miss G to make M available for reasonable contact with her father and gives either party permission to apply for further directions as to the implementation of the order for contact, provided that the application was made on notice before 4.00pm on Friday 4 August 2006. I will return to the date of the order later in this judgment.

2

Mr M and Miss G are former husband and wife. They were married in October 1990 and separated finally in 2000. The decree of divorce, based on two years' separation with consent, was made absolute in October 2003. Unfortunately, apart from the question of M's residence, the question of what lawyers still call “ancillary relief” remains outstanding and is likely, I think, to prove contentious. The parents have two children. One, P, was born on 19 December 1989; she was thus 16 when the judge made his order and is now 17. She lives with her father. Although at one point in the proceedings Miss G sought an order in relation to P, she realistically recognised that there was no prospect of the court making such an order in her favour, partly because of P's age but also because of P's attitude to her mother and the part which P had played in the events which have occupied the court in these proceedings. M, the party's second daughter, was born on 28 February 1994; this means she is now a rising 13 and was 12 when the residence order was made. At that point she was living with her father and P in what had been the previous matrimonial home. The judge's order thus involved change in the status quo and the separation of the two sisters. These are both points on which Miss Pittaway, for Mr M, relies.

3

When the application for permission was considered on paper by a single Lord Justice, Wilson LJ, he directed that it should be listed for oral hearing on notice to Miss G and to P, who was a party to the proceedings. Very sensibly, in my view, P's advisers have not appeared today. A position statement was put in on P's behalf explaining that she supported the application but did not intend to appear. In an addendum to it, also placed before us, P expresses her willingness to engage in mediation without any precondition and recognises that mediation is essential if she and her mother are to rebuild their relationship. That is a sentiment echoed by Wilson LJ in paragraph 4 of his reasons for listing the matter when he said:

“At M's age, and in the light of her wishes and feelings this complex case may be moving beyond effective forensic control. I wholeheartedly endorse the various suggestions of mediation, and at the forthcoming hearing the court would expect to see hard evidence of clear, constructive and specific proposals to that end on the part of each of the three parties and good reasons for any rejection of them by one or both of the other parties. An agreement to enter into mediation would be likely to be better for M and indeed for the three parties at the hearing hereby directed.”

4

I respectfully agree. Unfortunately, these parents are at war. No positive progress has been made towards the appointment of a mediator, a state of affairs for which each blames the other. Indeed, in my judgment, this is a paradigm case of intelligent parents determined to fight out their feelings of mutual hostility to each other to the bitter end without taking any heed of the undoubted damage their behaviour has done and is continuing to do to their children. That was the conclusion of a consultant psychologist, LC, who reported to the judge in the proceedings in a long and careful report which bears study. She made a number of observations, some of which were cited by the judge and one or two of which I propose to pick up:

“M, when interviewed, made a very perceptive remark about her parents. She said she wasn't certain why she was being asked to see me, other than that her mother and father were arguing. M said it was difficult for her to know why because no-one talked about it. However, M felt that whatever difficulties her parents had in their relationship, they had been going on for a long time. She described the atmosphere when they were together as being 'like World Wars 1–10 all rolled into one'.”

Slightly later Miss C reports:

“M said sometimes she felt caught up in the middle of her parents' arguments. She questioned why they had got married when they obviously couldn't get on. She described her parents as acting like two-year-olds and said that she often felt as if she and P were the parents. She said her parents were very annoying and she wanted to bang their heads together. Although she wanted them to get on together she viewed the possibility as 'grim', describing the chances as 'like winning the lottery every time you go in for it'.”

There is much more to the same effect in the report.

5

The proceedings before the judge took, in my view, an unduly protracted and unfortunate course. I will, in a moment, go in greater detail through the chronology. The catalyst for the proceedings, however, occurred during a visit by P and M to their mother's accommodation in London. Without her mother's knowledge, P discovered on the mother's laptop a number of photographs apparently showing Miss G wearing only a bikini, and sometimes not even that, in a series of what can reasonably be described as sexually suggestive poses. The photographs, moreover, had been posted onto a website identified as an agency offering the services of “hostesses”. Unsurprisingly, and whatever her motivation for prying into her mother's affairs, P was upset. Because of her relationship with her mother, however, she was unable to ask her mother about the photographs but in due course told her father. He, again unsurprisingly, accessed the website, discovered the photographs and made the assumption—which I have to say he was only too ready to make—that his former wife was working as a prostitute, that men visiting her at her flat in London were her clients, and that the ambience in which she was living was wholly unsuitable for the girls either to visit or to stay.

6

It is, of course, an indication, and a sad one, of the state of feeling between the parties that Mr M did not seek to raise or feel able to raise the matter with his former wife or to ask her for an explanation of the photographs. All this happened at a time when Miss G had expressed an intention to return to the former matrimonial home which, as a matter of law, she owned. Mr M thereupon applied to the court without notice to Miss G for an occupation order in relation to the property, and it is at this point that the unfortunate chronology of events begins to occur.

7

We are told, and I see no reason to doubt it, that the district judge, hearing the application which was, of course, made without notice, took the view of the facts being explained to him that what the father should properly be seeking was not only an occupation order but also a prohibited steps order, preventing the children's mother coming into contact with the children until further order of the court. The judge, in my view rightly, criticised that decision but in all the circumstances it does not seem to me that Mr M can be criticised for following the lead given by the district judge. The result was such an order and the consequence was that Miss G did not see her children for some considerable time thereafter.

8

Provision was made for the proceedings under the Children Act to be brought back before the court. A CAFCASS report was ordered and there was a series of hearings, which we have been taken through this afternoon, designed essentially both to ensure that the occupation proceedings were continued and in due course that contact should be reinstated. It was reinstated, albeit in a somewhat truncated form, and Miss G not unreasonably complains that her first opportunity to see M was in the presence of a CAFCASS officer when it was, effectively, impossible to discuss anything of substance. In any event, what happened was that it became clear that there needed to be not only a hearing of the application in relation to where M should reside but also a finding of fact hearing in relation to the incident in which P had discovered the photographs.

9

The judge who set up that hearing did not seem to think it particularly important that there had not been an agreed schedule of issues or a list of findings which the father was seeking. I myself remain firmly of the view that wherever there is a finding of fact herein proposed, the advocates should sit down and work out carefully what findings they are inviting the judge to make, and directing the judge to the evidence which is necessary for those findings to be made. Be that as it may, there was a finding of fact hearing on 7 March. Miss G was vigorously cross-examined by Miss Pittaway on the allegation that the photographs were designed for the purposes of prostitution and that she was indeed posing...

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