Re A-H (Contact Order)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Richards,Sir Paul Kennedy,Lord Justice Wall |
| Judgment Date | 20 May 2008 |
| Neutral Citation | [2008] EWCA Civ 630 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B4/2008/0492 |
| Date | 20 May 2008 |
[2008] EWCA Civ 630
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE PRINCIPAL REGISTY, FAMILY DIVISION
(MR JUSTICE COLERIDGE)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Wall,
Lord Justice Richards and
Sir Paul Kennedy
Case No: B4/2008/0492
THE APPELLANT APPEARED IN PERSON ASSISTED BY A MCKENZIE FRIEND
Mr F Moat (instructed by Messrs Jerry Lewis) appeared on behalf of the Respondent.
Lord Justice Wall
This is an application by Mr A for permission to appeal against an order made by Coleridge J on 15 October 2007. The case concerns Mr A's two children, both girls, whom I will call respectively C, born on 29 June 1994, and R born on 26 May 2002. The respondent to the application is the children's mother, Miss H. The application came before me by way of oral hearing, without notice, on 1 May, and I put it over for the application to be heard inter partes with the appeal to follow if permission was granted. The result is that this morning we have had the benefit of argument from Mr A, assisted by his McKenzie friend, and the assistance of Mr Frank Moat, counsel instructed recently on behalf of the mother.
This is what has become classically known as an intractable contact dispute. On the last occasion, I asked Mr A if he would produce for me a bundle of court orders. He has duly done so, and the orders make dispiriting reading because, as so often happens in cases of this nature, a father who has a perfectly happy and proper relationship with his children runs into difficulty in having that contact once there has been a separation; and here we are some five years later, effectively at deadlock. And it is particularly poignant in this case because of the two children: the elder clearly did enjoy seeing her father, loved her father and got on well with him, and, initially, when she was very small, the younger child, R, was the same. We are now told that R thinks her father is dead. She has not seen him for a very long time indeed and under the judge's order there is, as the father complains, very little prospect of him resuming a relationship with her.
The question which has exercised us is: what, if anything, can we do? And so I go back to the order which the judge made on 15 October. He had come into the court case, of course, relatively late in the day. The substantive order which he made – and which is not that being appealed—was actually made on 8 February 2007. On that occasion the children were still represented by a rule 9.5 guardian who had been appointed at an earlier stage, and the judge made specific orders that the mother was to make C available for visiting contact with the father on alternate Saturdays from 11.00 to 5.30 during the winter and from 11.00 to 6.00 in the evening during British and EU summertime. There was to be reasonable indirect contact between R and her father by means of letters, cards and gifts. A copy of the judge's judgment was to be made available and the children were to remain living with their mother.
At the same time, the judge made an order under section 91(14) of the Children Act barring any party from making further applications to the court without leave until 29 June 2009. Any applications for leave were reserved to Coleridge J for his consideration. Now that order was made on the basis of a number of assertions which had been given to the judge, including an agreement on behalf of the mother that she would use her best endeavours to ensure that C was punctual. If there was going to be a cancellation or delay in the contact, the father would be contacted or a message got to him. The mother also agreed that she would organise staying contact for C with her father in London if C requested it, and that she would provide the father with anonymised copies of school reports.
In the same order, the court acknowledged that there was no reason why C should not stay with her father in London whenever she wished that to happen. However, it was a condition of contact that the father should not be informed of her mother's address or the children's address or the name of the children's school or their general practitioner.
I have deliberately not gone into the history, but the particular reason that these orders were made was that during the course of the proceedings the mother had, without notice to the father or indeed the court, decamped to the West Country, where she now lives. The father has moved to Swindon which is within striking distance of where the mother is, and contact has been exercised by him travelling from Swindon to Bath.
The order made by Coleridge J in February 2007 of course was not the first order made in the case. There have been many previous hearings, including, in particular, before Bracewell J whose judgment in the case on 18 November 2005 has been transcribed. However, it is important to note that at the hearing in February 2007 before Coleridge J, the CAFCASS officer who, at that point, was the children's guardian took the view in the final report which she wrote in 2006 that this was a case which could now move towards a final order; that there should be orders where necessary, and that it was not appropriate for C in particular to be responsible for her own contact arrangements.
The guardian's views, clearly expressed, was that contact should be by court order but she went on to say that, once orders were in place, it was no longer necessary for the children to be separately represented. The judge plainly took that advice because the guardian appears to have dropped out of the case with effect from the order made in February 2007.
Speaking for myself, I regard that as highly unfortunate because there was no independent means thereafter of ensuring that the judge's order was properly implemented or put into effect. In addition, when the matter came before the judge in September 2007 on the father's complaint that matters were not being properly implemented, there was an even more unfortunate muddle because the father turned up in the morning, but the mother did not. She only turned up in the afternoon, and one of the principal complaints made by the father today to us — and indeed to me on a previous occasion — was that he does not know what the mother said to the judge in the course of the afternoon, and what the mother said to the judge in the course of the afternoon – he says—appears to have been highly influential.
However, what we do have is the order made by the judge on 14 September 2007, and that effectively put the matter over until 15 October when both parties were due to attend. The mother was to file a statement by Friday 5 October explaining why contact had not taken place as it was ordered. That I do not think she did. But on 15 October the judge expressed the intention to address the applications for the father to have greater knowledge of the children's whereabouts and their school, and to address the father's applications for contact with C.
Thus it was that the matter came before Coleridge J in October 2007, and the order which he made represented a substantial change in approach from the order which he had made in February. The judge decided that C herself would make the arrangements for contact direct with her father and could alter them by telephoning the father direct not less than 24 hours before any proposed contact.
The judge appears to have adopted this new approach (which was, of course, contrary to the advice of the guardian in February 2007) because he took the view that...
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“Dear Judge, I am writing to you because I think it's pathetic”: Re A-H (Children)
...[2006] UKHL 43, [2006] 1 WLR 2305. Cf Z v Z (Refusal of Contact: Committal) [1996] 1 FCR 538. While the facts of Re A-H (Children)55[2008] EWCA Civ 630, [2008] 2 FLR 1188. might be depressingly familiar, the judgment, delivered before the new statutory regime came into force, raises interes......