Re C (Direct Contact: Suspension)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Munby,Lord Justice Hooper,Lord Justice Pill,Lord Justice Wilson |
| Judgment Date | 06 May 2011 |
| Neutral Citation | [2010] EWCA Civ 1155,[2011] EWCA Civ 521 |
| Docket Number | Case No: B4/2010/2165,Case No: B4/2010/1567 |
| Court | Court of Appeal (Civil Division) |
| Date | 06 May 2011 |
[2010] EWCA Civ 1155
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM DUDLEY COUNTY COURT
(His Honour Judge Henderson)
Before: Lord Justice Wilson
Case No: B4/2010/1567
(LOWER COURT No: DD09P00002)
Mrs Marie-Claire Sparrow (instructed by Talbots Legal Advice Centre) appeared on behalf of the Applicant mother.
The Respondent father did not appear and was not represented.
Lord Justice Wilson:
A mother makes a renewed application for permission to appeal against case management decisions made in private law proceedings under the Children Act 1989 by HHJ Henderson in the Dudley County Court on 7 June 2010.
At the centre of the proceedings is a girl, C, who was born on 16 February 2007 and is thus now aged three and a half. The non-marital parents of C are the father, who is British, and the mother, who is French. There is a significant age difference between the parents. He is aged 43 and she is aged 28.
The parents made their acquaintance through the internet. In 2005 they began to live together in Stockholm and in 2006 they moved to England, where C was, I believe, born. Unfortunately the relationship broke down in acrimonious circumstances. In November 2008 the mother tragically made an attempt, or apparently made an attempt, on her life by attempting to hang herself in the family home. She remained in a mental hospital for 18 days and thereafter for some further days in a hostel. At that time the parents ceased to live together but the mother made an allegation of rape against the father which, at a fact-finding hearing in June 2009, HHJ Henderson positively found to be untrue. The mother remains extremely aggrieved about that finding and one of the difficulties in the case is that she very actively maintains and articulates the allegation of rape.
It seems that the mother is living alone in a village adjacent to Stourbridge in the Black Country and that, with C and also with his ex-wife, with whom he has recently renewed his relationship, and her daughter, the father is living in another village adjacent to that town.
With considerable courage and no doubt with a degree of heartbreak, the mother has conceded that it would be better for C to live with the father. The continuing issue in the proceedings relates to the mother's contact with her. Inevitably, in the light of the attempted suicide, there has had to be considerable caution in the approach of the court to her contact. It has been supervised. Considerable problems have, however, surrounded it. Problems about the funding of supervision arose when, in accordance with national guidelines, the Legal Services Commission, which has funded the mother's representation in the proceedings to date, declined to continue to fund the supervision. There have also been conflicts between the mother and supervisors such as have led, for example, in December 2009 to a suspension of contact at a centre in Coseley. But at another resource, known as the Living Springs Family Assessment Centre in Stourbridge, supervised contact began again in March 2010 and continued, so I am told this afternoon, until early in May 2010.
At the hearing before the judge on 7 June 2010, Mrs Sparrow, who, because of her own French ethnicity, is often an ideal choice for solicitors wishing to brief counsel to represent a French national in family proceedings, represented her. Mrs Sparrow, who appears for the mother again today, wishes to put before the full court three challenges to what the judge intended to be final directions prior to his conduct of the substantive hearing of the proceedings, which were then, and are still now, fixed to begin before him on 9 August 2010 and to continue for three days.
Dr Fear, a consultant psychiatrist, who interviewed the mother on 10 March 2010 and wrote a report about her dated 5 April 2010, is unable to attend the hearing on 9, 10 or 11 August. Mrs Sparrow invited the judge to adjourn the hearing in order to enable Dr Fear to attend. In this court her first proposed challenge (but I got the impression that, in oral submission, in fact, it was a subsidiary aspiration on her part) would be directed to the judge's refusal so to adjourn. The judge found that Dr Fear's absence would not significantly damage the mother's case and that the further delay attendant upon an adjournment would not be for the benefit of any of the three protagonists and particularly not for the benefit of C. Even without reference to Dr Fear's report I would observe that it is notoriously difficult to appeal against a case management decision of that character.
But of course in preparation for this hearing I had read Dr Fear's report, which is, as I put to Mrs Sparrow and she agreed, reasonably favourable—from his perspective, perhaps limited perspective—to the mother's case for an order for contact with C on a cautiously enlarging basis. Dr Fear found no evidence to suggest that the mother was suffering from a mental illness. He did find evidence of behaviour consistent with an emotionally unstable personality disorder but in the end he preferred to conclude that the evidence was of emotionally unstable personality traits within her which were predominantly manifest when she was under stress. Dr Fear found evidence indicative of the mother's deep feelings of affection for her daughter but suggested that, when pressured or stressed, she was liable to emotional and behavioural explosions which, were C to witness them or to continue to witness them, might have a potential to harm her. He reported that, if the mother had sufficient insight into her problems, she might well, if, for example, engaging in cognitive behavioural therapy, be able to learn ways of modifying her behaviour, particularly during periods of contact.
I have not been entirely clear what further evidence Mrs Sparrow would wish to elicit from Dr Fear were he to have been able to attend the hearing. In answer to that enquiry this afternoon, Mrs Sparrow has said that she challenges the construction placed by the father upon aspects of Dr Fear's report and would like to rebut the father's negative construction upon areas of his report by, as she called it, cross-examining him in the witness box.
It would also, however, have been open to Mrs Sparrow, as her second-best solution, to ask for permission to put specified questions to the doctor in writing and to procure his written answers thereto prior to the substantive hearing. Indeed, now that I have read not only the judge's judgment given on 7 June but the entire transcript of the submissions made to him and of his interjections prior to judgment on that day, I note that, of his own motion, the judge expressly volunteered the grant of such permission.
Mrs Sparrow's second challenge to the judge's orders dated 7 June 2010, and perhaps really her primary challenge, would be in relation to his refusal to order interim contact between the mother and C for the period of two months between then and the start of the substantive hearing. It is usually impracticable for a parent aggrieved about a decision in relation to interim contact, to last only for, say, two months, to mount an appeal to this court within that time-frame. Probably for reasons referable to her public funding, the mother's appellant's notice was not filed until 25 June; the refusal of the single judge on paper took place on 16 July; and today, 27 July, is less than two weeks prior to the start of the final hearing. I agree with Mrs Sparrow, however, that suspension of contact between a mother and a child aged three, even for a period of two months, is a serious matter. We are going “downhill”, says Mrs Sparrow very firmly to me this afternoon; and by “downhill” she means instead of a progressive enlargement of contact from the dark days at the end of 2008, an interrupted pattern of contact between the end of 2008 and the spring of 2010, and now, in fact since May 2010, no contact at all.
Although, therefore, I do not dismiss the importance of the judge's decision to suspend contact for a further two months between June and August, I stress the difficulty, legal as well as practical, which confronts any litigant in successfully challenging a discretionary determination of that kind. The judge's determination of it was conducted by reference to the written evidence; and in that regard in particular he had a recommendation of Ms Chapman, the centre director of Living Springs, which, in the light of her observations of recent contact up to and including 4 May 2010, was to the effect that there should continue to be supervised contact until 9 August. On the other hand the judge had the benefit of a report by C's guardian ad litem, Mrs Bourne, who reported that, according to the father, C, when at home with him and in particular following periods of contact with the mother, was exhibiting angry tantrums in the course of which she was prone to hit out and to scream. The father was suggesting, rightly or wrongly, that such was linked to the periods of supervised contact with the mother at Living Springs.
It was in such circumstances that, for her part, the guardian recommended a suspension of the contact prior to 9 August. Thus on appeal at this stage the mother would face the further difficulty of seeking to establish that the judge's discretionary determination exceeded proper boundaries even though it followed the recommendation of C's guardian. It was the judge's view that, inevitably, the guardian was able to take a wider view of the issue than had been Mrs Chapman. He also noted that...
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