Re S (Parental Responsibility)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WARD,LORD JUSTICE SIMON BROWN |
| Judgment Date | 16 February 1995 |
| Judgment citation (vLex) | [1995] EWCA Civ J0216-10 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 94/1175/F |
| Date | 16 February 1995 |
[1995] EWCA Civ J0216-10
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (FAMILY DIVISION)
(Mr Justice Ewbank)
Before: Lord Justice Butler-Sloss Lord Justice Simon Brown and Lord Justice Ward
94/1175/F
MR A DAVIES (instructed by Messrs Steel and Shamash, London SE1 7AA) appeared on behalf of the Appellant
MR K HOTTEN (instructed by Messrs Bond Lewis and Company, Balham) appeared on behalf of the Respondent.
( )
Thursday, 16th February 1995
This is an appeal from the Order of Her Honour Judge Pearlman, made on 15th July 1994, when she refused a father's application for a Parental Responsibility Order. The material facts of this case shortly stated are these: the mother and father commenced their relationship some time in about August 1985 and they lived together in the father's flat. It was on 8th January 1988 that their daughter was born. It is not a fact without significance, in my judgment, that this child was registered in the surname of the father. The implication from that is that mother recognised at that time that it was right and proper that it be acknowledged in law as in fact that he was the father. He joined with the mother in signing the register accordingly.
This couple, who were committed in their relationship to each other were, at one stage, of a mind to marry. They lived as man and wife and as man and wife they purchased a flat in their joint names, a token of their mutual affection and respect. Sadly it was a relationship which failed to prosper and by July 1989 it had broken down and the parties separated, with the father leaving the mother and daughter in that flat whilst he moved to live with his parents. He was not feckless. He paid the mother some £500 a month intended partly to cover half of the mortgage repayments and the related endowment policy, and partly to provide for the maintenance and nursery school fees of the child. He honoured his obligations apart from an occasion of some three months duration, at the end of 1990 into the spring of 1991, when he was out of work and unable to maintain those maintenance payments.
This case hinges upon the events that occurred in the summer of 1990. It was then that the father was arrested and in due time stood trial on two counts of possession of obscene literature. The learned judge described his involvement in that appalling activity in these terms. She said:
"…I do not have any details from the Crown Court, nor have I a transcript of the prosecution opening, nor indeed of the trial judge's sentencing remarks. On the father's evidence, he says that when he was going through the advertisements of a magazine called "Look". There was one from Brazil. He did not tell me what the advertisement was but he said he wrote off and got a reply. In that reply there were three photographs of young girls which he admitted were paedophilic in nature. He said 'I was shocked.' He said 'I requested more information so I could see if they were running a business in this country, so I got a second package containing a few more photographs. The third package, all of a similar nature, came unrequested containing some 20 pictures. Those were the photographs, the third package, that were intercepted by Customs and Excise en route to me."
He pleaded guilty to the offences for which he stood his trial. He was apparently able to make some use of a statement, which had been signed by the mother with appropriate warnings to ensure its accuracy, in which she stated, amongst other things, this:
"Although [father] and I have lived apart for several months we have remained on amicable terms and continue to see each other regularly. He has shown himself to be a capable and responsible father who has developed a warm and caring relationship with his daughter."
She went on to speak of his trustworthiness, but it may be, I express no concluded view about this, that at the time her tongue was somewhat in cheek in paying that tribute to him, for the fact is that understandably enough she was deeply shocked and horrified by his indulging in this pernicious trade. It has affected her relationship with him and is now at the root of her objection to his having the Parental Responsibility Order which he seeks. It is material to recite the findings of the judge in this connection. She said this:
"In so far as those matters are concerned, all these matters occurred at a time after [the child] was born and they are grave matters."
I totally agree. She continued:
"I have to say that I do not think that the father, by the nature of his evidence, begins to understand or indeed to have any remorse for being in possession of this type of material, or to understand the importance that his possession of this material has had on the mother."
I emphasise that her reference was to the importance it had on the mother. There was no reference to the effect it had on the child. She continued:
"I have to say that it is, it seems to me, an important matter that I have to weigh in deciding whether or not to make an order for parental responsibility."
After that conviction this mother was both upset and confused. That is wholly understandable. What she undoubtedly would have asked herself was "What are the implications of this conviction for the safety of my daughter? Is this man, whom I once wished to marry, engaged in some paedophilic activities which will bring harm to my child?" Those were all totally natural and proper responses. Her reaction was to sever the contact which hitherto he had enjoyed not only to his pleasure, but also moreover to the undisputed benefit of their daughter. The cessation of contact produced a dramatic effect in the child. She became deeply distressed, and her behaviour at school deteriorated so that the mother had to acknowledge that the attachment of this child to her father was so great that its impairment was detrimental to the welfare of the child. Consequently the contact resumed, though mother was careful herself to supervise that continuing contact.
As the months went by mother gradually relaxed the extent to which she did supervise father, minute by minute or day by day. The contact gradually became unsupervised. In May of 1992 the tension between the parents had now reached a point such that the father brought the application, which is on appeal to us, namely, for a Parental Responsibility Order and he also sought the definition of the contact he was having to his daughter. That application for definition of contact duly proceeded through the court as the practice required. It led to a conciliation appointment being held in August. That led to the agreement that contact should be afforded on Saturdays from 11am to 6pm. But it was apparent that all the difficulties had not been resolved and the conciliation appointment was accordingly adjourned. There were, in fact, four further appearances before the District Judge and the conciliating Welfare Officer. Those meetings resulted, in December of 1993, in the court making no Order under the provisions of section 1(5) of the Children Act, because it was by then apparent that the parents were agreed that contact had to continue. It had to continue without conditions being imposed upon it as to what, if any, supervision there was to be made of the father's contact with the child. The mother may have drawn comfort from the fact that to her knowledge the father's new lady-friend, who happened to be a trusted friend of hers, would invariably be at home for most of the time that the father would have the child visit him.
Moreover, as this contact developed into staying contact, one weekend in three, she could derive further comfort from the fact that the staying contact tended to occur at the grandparents' house and they, too, could keep an eye on the situation. She had taken the sensible precaution of, I hope, delicately but positively informing her daughter of the dangers of sexual abuse and had begun to teach her some skills in self-protection. The point is that no restraint was imposed by the court on the freedom of contact.
So far as the history is concerned, I continue to recite these bare facts: in January of 1993 the father again ran into some financial difficulty which made it impossible for him to continue to pay the nursery school fees. The parties were, at that stage, negotiating about the home in which they had lived and they resolved that by father paying out the mother's share, moving back into the property and thereafter paying maintenance to the mother for the child at rates which were agreed. In due time the Child Support Agency got its long tentacles into the father, as a result of which he has been required to pay, and has paid, substantially increased monies to the mother for the child. He has done so faithfully, however unhappily.
Those were the bare facts which came before the court. The learned judge polarised the issue at the beginning of her judgment by pointing out that the mother's case rested on two grounds. The first she rightly described as minor, which was his relative unreliability with regard to money. She dealt very shortly with that point; it has no substance. He has at all times done his best to honour his obligations both to the mother and to the child. He has certainly not failed to a degree which is of any relevance in the context of this application. The most important issue, said the learned judge, was the effect of his conviction. His case was stated to be this:
"… he is very fond of this little girl, that he has always paid money for her, that he takes her out regularly, he has regular contact and that...
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