Re R (Contact: Consent Order)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE STUART-SMITH,SIR FRANCIS PURCHAS |
| Judgment Date | 16 May 1994 |
| Judgment citation (vLex) | [1994] EWCA Civ J0516-5 |
| Court | Court of Appeal (Civil Division) |
| Date | 16 May 1994 |
| Docket Number | No. FC2 94/5767/F |
[1994] EWCA Civ J0516-5
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
(APPLICATIONS FOR EXTENSION OF TIME AND LEAVE TO ADDUCE FURTHER EVIDENCE)
Before Lord Justice Stuart-Smith and Sir Francis Purchas
No. FC2 94/5767/F
MR. J. SWIFT (instructed by Messrs. Ratcliffe Duce & Gammer, Reading) appeared on behalf of the Applicant.
MR. J. DIXON (instructed by Messrs. Kidd Rapinet, Basingstoke) appeared on behalf of the Respondent.
There is before the Court an application for an extension of time to appeal an order of
Mr. Assistant Recorder Tennant made on 20th December 1993 and, if leave is given, to extend time for appealing, then the appeal itself will be heard.
We have, in fact, heard both matters together, because the merits of the appeal are relevant on the question of whether or not an extension of time should be granted. Time expired on 17th January 1994.
The application was made 42 days late, but it is plain that the respondent (the father in the case) who was the applicant in the court below, was notified on 26th January that there would be an appeal. For various reasons it was not made immediately afterwards.
The appellant herself was very upset. She went to different solicitors and obtained other advice.
In my judgment there has been no real prejudice to the respondent (the father) and I would give leave to bring the appeal out of time.
Turning to the appeal itself, the order appealed against was made by consent, and it reads as follows:
"1. That D [the girl in question] do reside with the first respondent EER.
2. The applicant do have interim contact with the child on at least three occasions between the date of this Order and 14th February 1994 such contact to be organised through and supervised by the court welfare officer at the home of the applicant's mother or such further or other contact as the Court Welfare Officer may direct or as the parties may agree".
Provision was then made for a report by the welfare officer by the 1st March, and the matter was to be heard on the full hearing on the 8th March.
The short facts of the case are these. The parties, the applicant Mr. D, who is the respondent in this Court, is the father of the little girl. The first respondent "EER" is the mother. DLR is her father, the grandfather of the child, and the third respondent, who takes no part in this appeal "JMR" is the grandmother of the child (the mother of the mother). Before these proceedings she and the grandfather had separated. After the child's birth the parents lived together for a few months at the grandparents' home. There was then a row and they left. They lived for a short time at the father's parents' home but, after a while, the mother left, together with the child, and the final parting took place in November 1988.
The parties have never married.
In October 1989, because of the ill health of the mother, an order for custodianship was granted to the grandparents by the court. The father last saw the little girl either at the end of 1990 or the beginning of 1991. In February 1993 there was contact on the telephone. The mother evidently, in that month, offered contact to the father provided he appeared, as it were, as a friend and not the father. The father was not prepared to accept that. He made an application for contact. There were before the Court, on the 20th December 1993, statements from the father, the mother and the grandfather, and also from the welfare officer.
It is simpler to refer shortly to that report at page 37, paragraph 3, where the welfare officer summarises the mother's views.
"Miss R lives with her partner Mr. SE, D and baby G born in July this year in a house owned by Mr. E. She is opposed to a resumption of contact because of her fear of likely disruption that this will cause to D who is now beginning to adjust after her previous unsettled upbringing. Miss R accepts that D has a right to know both her parents and has made no attempt to hide the fact to her but Mr. D is her natural father. She believes it would be better to wait until D's curiosity about her father is aroused rather than force to meet when she expresses no wish to so".
Paragraph 4 summarises Mr. D's views.
"Mr. D feels that the resumption of contact should not be left to D to decide. He and D had previously had close relationship and he has no reason to believe that handled sensitively, given time with encouragement from her mother the former relationship could not be re-established".
Then it goes on to suggest conditions which might be appropriate for that contact. The welfare officer's three concluding paragraphs were in these terms.
"13. It would seem that the Court must assess and balance the possible benefits of a relationship between D and her father against risk of possible disruption.
14. Miss R and her parents wish the Court to decide the contact issue and therefore D has not been seen with her father.
15. Given the opposition of resumption of contact at this stage other than through letters the best way forward may be for the Court to hear the evidence and make a decision on that basis whether contact would be in D's best interests. Alternatively the Court may feel that one or more supervised contact visits involving the Court Welfare Service would be a more appropriate approach. This would enable the Court Welfare Officer to observe and assess Mr. D with D together and report to the court accordingly".
What happened at the hearing can be derived from the affidavit of Mr. Bradley, who is a very experienced solicitor who appeared for the mother on that occasion. He says this:
"We entered court at at 1030 and counsel for the father opened the case very fully. The Recorder then said he thought the applicant recognised the sensitive nature of the matter and that contact would have to be introduced gradually over a period of time. He went on to say he could see no real objection by the mother for the contact taking place in principle and the only issue to be resolved was the mechanics of it. He [the Judge] recognised that the mother's concern was that there was a lack of commitment on the father's part but considered the only problem was a breakdown in communication between the parties and he thought it was a shame the matter should be brought to court. He thought there should be a trial supervised contact which was one of two suggestions by the Court Welfare Officer".
At that point the parties left the Court and considered what the Judge had said. It is plain that the mother was very unhappy with that suggestion. She wanted the case to be heard, and the parties went back into court. Mr. Bradley made plain to the Judge that was the position of the mother. The father then gave evidence and he was cross-examined. By the time his cross-examination had finished it was about half-past one and the Judge decided to rise for lunch. Before doing so, however, he made a number of observations which had an important bearing on how the case thereafter developed. There are three versions of those comments. There is one from the father's counsel (Mr. Dixon) and one from Mr. Bradley; save in one respect, there is very little difference between those two versions, no doubt because both were taking a note of what the Assistant Recorder was saying as he was saying it.
There is also the Assistant Recorder's recollection of what he said. That does vary to some extent, but it has to be borne in mind that none of these three versions purport to be a verbatim account. I can therefore take it from the account given by Mr. Bradley. He records that the Assistant Recorder made these observations:
"(1) Itis the duty and the principle exists on both parents to ensure that the child retains contact with both parents unless there is good reason otherwise.
(2) On the evidence heard today and in cross-examination, I have formed the impression that Mr. D has a great deal to offer his daughter if only Miss R and her parents would let him do so.
(3) If the case put forward by Miss R and her parents is that Mr. D has no commitment then I have no doubt as to his commitment and willingness and I would find against such a suggestion.
(4) 'Approach' is the problem in this case.
(5) For Miss R and her parents to raise objections in principle is just not acceptable".
There is dispute as to whether that is accurately recorded. Mr. Dixon's version of that is somewhat different. He says that what the Judge said was:
"Cross-examination proceeded on the basis that there were objections in principle".
So it is not entirely clear what the Judge said on that point. "(6) There has been a breakdown in communication between all those involved.
(7) Contact is for an experimental period and the applicant realises that.
(8) Efforts need to be made to heal the breach and move forward.
(9) Mr. D knows it will need to be dealt with sensitively.
(10) It is grotesque that such a matter like this should be dealt with by adversarial trial which is contrary to the principles of Children Act".
That is somewhat longer than Mr. Dixon's account, which was to the effect that it was grotesque there should be a trial over this issue.
(11) The Judge said it is unusual for inter partes costs orders to be made in these type of proceedings and it is unlikely the case will finish today. I will hear the case today and tomorrow, and however long it takes, but I must warn the respondents that they are at serious risk of having an inter partes order for costs made against them.
(12) The respondent has nothing to...
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