Re D (Contact: Reasons for Refusal)
| Jurisdiction | England & Wales |
| Judge | MRS JUSTICE HALE,LORD JUSTICE STAUGHTON |
| Judgment Date | 11 December 1996 |
| Judgment citation (vLex) | [1996] EWCA Civ J1211-1 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | FAFMI 96/1005/F |
| Date | 11 December 1996 |
[1996] EWCA Civ J1211-1
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY DIVISION
(His Honour Judge Callman)
Royal Courts of Justice
Strand
London WC2
Lord Justice Staughton
Mrs Justice Hale
FAFMI 96/1005/F
MS C HYDE (Instructed by JB Wheatley & Co DX 56700) appeared on behalf of the Appellant
MRS H MacGREGOR (Instructed by Beckman & Beckman DX 41717) appeared on behalf of the Respondent
Wednesday, 11th December, 1996
This is a father's appeal against the order of his Honour Judge Callman, sitting in the county court jurisdiction of the Principle Registry of the Family Division on 31st October 1995; he refused to order direct contact between the appellant and his son, C, although he did order indirect contact by way of an annual progress report and birthday and Christmas cards through solicitors.
C was born on 11th July 1991, so he was then aged 4 and is now aged 5. His father is of Ghanaian origin. On C's birth certificate he was said to have been be born here but it was later discovered that he was born in Ghana and came here when he was a very small child. The mother is of white Canadian origin. She came here in 1980. She is married but has long been separated from her husband.
The parents met in 1988 when they were both working for the Post Office. Indeed, the mother still is. At that time she had a council flat in the East End. The father did not move in fully to live with her but visited several days a week. The mother, in particular in her first statement in the proceedings before the Family Proceedings Court, made a number of allegations of violence, some of them quite specific and severe. In relation to one incident there was some corroboration both from the record of the first aid officer at work and from University College Hospital. She attended with soft tissue injuries to her upper arm and to her chess following an alleged assault on 31st December 1989. For another there was an attendance at the hospital on 22nd August 1990 with bruised ribs.
She made various other allegations as well in relation, for example, to a serious assault on a bus in which, after they had got off the bus, the police had been involved. In 1993 the Justices generally preferred her evidence to that of the father. In 1995 His Honour Judge Callman found that, "without doubt, the father was a man who was violent and threatening."
The mother discovered while she was pregnant with C that the father was conducting a relationship with another woman who was also working at the Post Office. They appeared to have a flat together because there was an electricity bill in their joint names for late 1991 discovered. The mother said he was also violent towards that woman and His Honour Judge Callman obviously believed her on that as well, because he referred to the father's violence in his personal relationships with woman.
C, as I say, was born in July 1991. The mother moved out of the flat in November 1991. She took the baby and went to a refuge. The reasons for her doing so were in dispute. The mother said that it was to escape the violence, and the father said that it was as a means of obtaining better housing. But the mother produced a letter from the refuge which said that she moved on to bed and breakfast accommodation from the refuge because the father had discovered where she was and she was frightened. Nevertheless, she went back to the flat from time to time to pay the rent and ensure that the father was feeding the cat. The mother also said that the father issued various threats either to harm or kidnap the child, she produced an odd letter which the father had written to himself saying that kidnapping was wrong. She pointed to some odd incidents with the cot and the high chair. The judge made no specific findings about those incidents and neither did the Justices.
She also made an allegation about violence towards herself when she was holding the baby and threatening actions towards the baby. Again, no specific findings were made in relation to those.
She moved from the refuge to bed and breakfast accommodation and then to her present accommodation in February 1992. The father last saw C shortly before this, so C was then 6 months old at the most. The father first applied to the Family Proceedings Court for contact and a Parental Responsibility Order in March 1992. There was a chance meeting between the parties in June 1992 where the father tried to persuade the mother to agree to contact.
The court welfare officer, Miss Morrison, made a report in January 1993. She recommended a short adjournment so that the father and mother could attend a joint interview. The father thereafter failed to attend on three separate occasions when she had asked him to do so. He gave reasons for each of those occasions: on one he had moved but had not told her of his address; on another he was going to a job interview but again had not warned her in advance; and on the third occasion he had not been able to wake up in time to get to the appointment. It is acknowledged that he has a problem with sleeping and insomnia. It is fair to say that the mother had managed to attend all three of those appointments.
The second court welfare's officer report therefore, in March 1993, recommended that it was not in C's best interests to have contact, in essence because of the mother's anxiety and the father's lack of commitment. The father later attacked Miss Morrison as having been biased, but the learned judge pointed out that her efforts to get the parties together did not support that. The hearing came on in April 1993 and the Family Proceedings Court dismissed the father's applications. They found the mother's fear of the father to be genuine, and they preferred most of her evidence. They also made comments that are perhaps more relevant to the application for parental responsibility, in relation to the lack of evidence of attachment between father and child and the lack of any indication of real commitment from the father, either during the first few months or thereafter. As far as contact was concerned, they pointed to the poor relationship between the parents and concluded that it would be detrimental to the child's welfare.
It does appear that the father took advice on whether or not to appeal against that order and obtained the Justices' reasons, but instead of appealing he decided to wait for a while before renewing his application. He did that in January 1995. By this stage he had ceased to work for the Post Office. He had an intervening period as a bus driver but he was now involved in youth work, first on a voluntary basis but then some of it for payment. He was trying to get appropriate qualifications as a sports instructor and youth worker. Indeed, he might well have considered that he was beginning to turn his life around; he produced letters from the youth centre and the youth club where he had worked, referring to his gentle, considerate and caring personality.
The matter was transferred from the Family Proceedings Court to the Principle Registry, and another court welfare officer's report was ordered. Mr O'Hara made his report in September 1995. He could see no cogent reason for reaching a different conclusion from the one that had been reached on the first occasion.
The hearing took place before his Honour Judge Callman on 30th and 31st October 1995. We are told that that evidence was completed on the first day and he gave judgment on the second. He made findings, as I have said, as to the father's violence and he directed himself on the law saying that he was quite satisfied that the fundamental principle must be to try and uphold contact if at all possible:
"I am concious of that and the judicial warnings that have rightly, in my judgment, promoted the necessity for upholding the principle of contact if at all possible. It must be in the very rarest of cases, very infrequently, where a court is compelled to conclude that, in existing circumstances, an order for immediate direct contact should not be ordered because to do so would injure the welfare of the child."
He had earlier cited the case of Re O [1995] 2 FLR, 124, and he there referred to the case of Re D (a minor)(Contact: mother's hostility) [1993] 2 FLR 1, particularly at page 7(g). He went on to say:
" … It is quite plain to my mind if there were an irrational repugnance or hostility by the mother, then it is the duty of the court to overrule that and I should do so without hesitation, but I have found, quite clearly, that I think the mother is genuinely fearful and genuinely frightened of harm being caused to herself and/or her son. And in view of that I am bound to say that I uphold the recommendations of Mr O'Hara, that are quite plain, and that there should, at this stage, be no contact of a physical kind."
He went on to say that he did not seek to close the door on this father indefinitely.
He wanted the father to ensure that no incident took place between now and the future renewal of an application, perhaps in 3 to 4 years time. He also referred to his own feeling that the father had a very volatile personality which might, not unreasonably, be described as unstable. The court welfare officer had ascertained, through an inquiry with the social services department, that the father had twice been to the department saying that he was depressed and that he had been suicidal. This was in February 1992 which was, after all, just around the break up of the parent's relationship and the prospect of loss of contact with his son. The second time was in February 1995 when he was...
To continue reading
Request your trial
-
Jd and Ld v Vb
...where the court is satisfied that there is a serious risk of harm if contact were to be ordered ( Re D (Contact: Reasons for Refusal) (1997) 2 FLR 48). It is however to be noted that in each of the two cases to which I have just made reference the Court of Appeal upheld a “no contact” outco......
-
Re A (A Child)
...should only be refused where the court is satisfied that there is a serious risk of harm if contact were to be ordered ( Re D (Contact: Reasons for Refusal) [1997] 2 FLR 48). It is however to be noted that in each of the two cases to which I have just made reference the Court of Appeal uphe......
-
Re A, v, M, H (Contact: Domestic Violence)
...arise as to the risks of emotional harm to the children, a far cry from the unreasonable implacable hostility cases, (see also re D (Contact: Reasons for Refusal) [1997] 2 FLR 48. In conclusion, on the general issues, a court hearing a contact application in which allegations of domestic vi......
-
Q (Applicant father) v R (Respondent mother) S and T (through their guardian JO) (Second and Third Respondents)
...should only be refused where the court is satisfied that there is a serious risk of harm if contact were to be ordered ( Re D (contact: reasons for refusal) [1997] 2 FLR 48). It is however to be noted that in each of the two cases to which I have just made reference the Court of Appeal uph......
-
Difference in the House of Lords
...Domestic Violence) [1998] 2 FLR 171Re D (A Minor) (Contact: Mother’s Hostility) [1993] 2 FLR 1Re D (Contact: Reasons for Refusal) [1997] 2 FLR 48Re J (A Minor) (Contact) [1994] 1 FLR 729Re L (A Child) (Contact: Domestic Violence); Re V (A Child) (Contact: Domestic Violence); Re M (A Child) ......
-
Future Uncertainty as a Challenge to Law’s Programmes: The Dilemma of Parental Disputes
...misleadingly applied to cases where the mother’s fears were ‘genuine and rationally held’(Re D (Contact: Reasons for Refusal ) [1997] 2 FLR 48). Wilson J in a later case maintained thatcontact might be refused even in the absence of rational reasons where it could create a serious risk ofem......