Re G (A Child) (Education)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WARD,LORD JUSTICE RICHARDS |
| Judgment Date | 05 October 2006 |
| Neutral Citation | [2006] EWCA Civ 1507 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | B4/2006/2028 |
| Date | 05 October 2006 |
[2006] EWCA Civ 1507
Lord Justice Ward
Lord Justice Richards
B4/2006/2028
THE APPELLANT APPEARED IN PERSON.
MS LAZARUS (instructed by Gales) appeared on behalf of the Respondent.
This is an application adjourned to this court on the directions of Thorpe LJ. It is an application for permission to appeal the orders made by HHJ Rowe QC, sitting as a Deputy Judge at the High Court on 8 September, when she granted permission to appeal an order made by District Judge Enyon dated 24 August 2006 and allowed that appeal. She further ordered that the child with whom we are concerned, M, reside with his mother, but that she make him available for contact on a specific date, 11.00am on Sunday 10 September, and thereafter on Tuesday and Thursday afternoons after school until 7.30pm or 8.30pm, depending on the summertime hours; each alternate weekend from after school until father returns him to school on Monday; half the holidays, and so forth. More particularly she directed that M attend at Burgoyne Middle School. Thorpe LJ adjourned that application for permission, with the appeal to follow if permission is to be granted.
It is necessary to recite some of the history, though I shall endeavour to do it as shortly as I can. The parties were married on 20 June 1987. They married in England and they are English, but in about January 2002 they appeared to have made their home in Australia. M was born on 21 November 1996, so he is shortly to be ten. The marriage foundered, as the Australian court seems to have accepted, in October 2004, although the father puts the date of the final separation more accurately in August 2004. The mother had formed some romantic attachment with another gentleman. He came to England early in June 2004 and it appears that he was killed in a motor accident here, if I understand the position correctly. That was obviously a traumatic event for the mother and she seems to have attempted to come back to England with M a few weeks later. She was restrained from doing so and for that she has been criticised by the Australian Court.
Nonetheless she persisted in her wish to return to the United Kingdom and eventually, in proceedings that have been quite protracted, the matter came back before the family court of Australia. That hearing was before HHJ Collier, sitting in the Family Court in Parramatta, outside Sydney. By then there was a fairly established pattern of contact set, as I understand it, by an order of the Australian Federal Magistrates Court, which had been made back in 2004, and that provided for the kind of contact which was reproduced by the deputy High Court judge here, namely for the father to see the boy after school on Tuesdays and Thursdays, and then alternate weekends and holidays to be shared.
I need not recite much of the judgment of 7 February 2006. It is a long and careful judgment. I think the pertinent passages of it may be in paragraph 223, where the judge says:
"Despite the difficulties of the past, and particularly having regard to the wife's attempt to leave Australia with [M], there seems to be no evidence before me that the wife has otherwise interfered with the husband's contact, or made that contact any more difficult, to any marked degree."
In reply the father pointed to paragraph 77 of the judgment, where the judge records:
"She agreed that she had reduced contact."
But of course the judge goes on to say:
"She said that M was showing signs of anger. She said everything was deteriorating …"
The court there appeared to accept (see paragraph 231) that both parties had difficulties. Each of them seems to have a problem with mental wellbeing; however, in this situation the wife has sought and obtained treatment from a Dr Robinson. The husband received a referral to a Dr Quinn, but has not acted upon it. However, I am satisfied that I can accept the evidence of the court's expert that he has a very real potential for his mental health to be adversely affected as a result of these proceedings.
The judge found that both parties were pretty determined to be proved right by winning the litigation and obtaining the orders they sought. He found that the father indicated a determination to impose his will on others in obtaining what he wants (paragraphs 233 and 235) , but equally importantly in 244, he was of the view that the situation here is that the relationship between the child and both parents, and it is necessary to emphasise both parents, is strong.
The conclusion of that hearing in February was that the father's application to have residence of this boy was rejected and an order was made for the mother to have residence, though each party should have day-to-day responsibility for the care of the child while the child is with their parent. As for the important application she had made for permission to remove herself and M back to this country, the judge decided that he would give that permission but with effect from 21 November 2007, the day on which the boy would be 11 years old, in order that he have a slightly longer time to cement his relationship with his father. So until her relocation, contact Tuesdays and Thursdays, alternate weekends and half the holidays was ordered, and there were consequential directions for contact in the anticipation of the father remaining in Australia.
He soon changed his mind and in or about June or July 2006 he decided that both would come back to this country, and so there was a further hearing in the family court in Australia before HHJ Collier to deal with that aspect, and I will have to refer to his judgment in slightly more detail in a moment, but the upshot of it was that he made an order to this effect: that the parents have equal shared parental responsibility; that the child live with the mother; that he spent time with his father, as I have indicated, Tuesdays and Thursdays after school until 7.30pm, or 8.30pm during daylight saving hours, alternate weekends from Friday until the return to school on Monday, half the holidays and so forth.
He furthermore ordered that at paragraph 5 of his order, as it appears on page 8 of his judgment, that the child shall, unless otherwise agreed between the parties or further ordered by the court of appropriate jurisdiction, attend the Burgoyne Middle School. The mother left almost as soon as she could. Father complained about the manner of her leaving, but that does not seem to me to be adding much to the unhappy story, and he followed very shortly afterwards in the middle of August. His attempt to see M in accordance with the order that had been made, which by then would have given him half the school holidays, was frustrated. He went to see her at her brother's home in Buckinghamshire, but she and the boy were not there, and he began the proceedings in this jurisdiction by obtaining orders for disclosure of their whereabouts.
Those directions were made and they led to the hearing before the district judge, which was the subject of the appeal to Deputy Judge Rowe. The order made by the district judge on 24 August was that the father's application for immediate contact — it says with the mother, but it must mean with the child — was refused, and furthermore that the father's application to enforce the order concerning M's education was refused. The matter was then transferred to the Principal Registry to be listed for a reconciliation appointment. It was the appeal against the order, which led eventually to the hearing before Deputy Judge Rowe.
There had been in this chronology another incident which I should mention. That is that, having been frustrated in seeing the boy at the address in Buckinghamshire where he thought they were living, he went to see them at her parents address in Dorset. They were not there. He rushed across to Ipswich. There was an unseemly incident, which Deputy Judge Rowe wisely dealt with by making no explicit findings about it. In effect, the contact was not successful. Mother and son locked themselves in a car. The father, perhaps not surprisingly, got very angry and more importantly and sadly the police were called, and so Deputy Judge Rowe dealt with that incident by saying in paragraph 28 that:
"In my view, whilst on this occasion and certainly of course subsequently, the father lost his temper in a way he should have not have done and behaved in a way he should not have done, this mother must bear substantial responsibility for what happened in Ipswich by trying to prevent contact so recently ordered by the court in the first place."
She had expressed her view, correctly I should think, in paragraph 27 which was:
"… this was clearly a distressing incident from [M]'s point of view. It is one he should never have been exposed to and I have no doubt that it led him to become very anxious [sadly, it is not his only exposure to intervention by the police]."
Following the hearing before Deputy Judge Rowe, she, as I have indicated, made orders for contact, including an order for contact on Sunday 10 September. That contact was again a failure. There is an account of the reasons for the failure set out by the maternal Uncle and Aunt, Mr and Mrs Wheatley, both senior serving police officers and, in summary, the mother decided to remove herself from her brother's home to leave the handover to them, but that was unsuccessful. M at first would not come down. He was persuaded eventually to...
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