Re T (A Minor) (Parental Responsibility: Contact)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE NEILL,LORD JUSTICE BUTLER-SLOSS,LORD JUSTICE SCOTT |
| Judgment Date | 27 October 1992 |
| Judgment citation (vLex) | [1992] EWCA Civ J1027-3 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 92/0977 |
| Date | 27 October 1992 |
[1992] EWCA Civ J1027-3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Lord Justice Neill
Lord Justice Butler-Sloss
and
Lord Justice Scott
92/0977
MISS E. PLATT QC and MISS S. QUINN (instructed by Messrs Osmond Gaunt & Rose) appeared on behalf of the Respondent (Mother).
The Appellant appeared in person.
I will ask Lord Justice Butler-Sloss to give the first judgment.
There are technically three appeals before this court, all in respect of a little girl called Jessica born on 19th June 1990 so she is now nearly two and a half.
The first appeal is one by the mother of the child from the order of Mr. Justice Johnson of 20th November 1991. For some extraordinary reason it has a different title from the other two. As I understand it, Miss Platt, for the mother, does not pursue that appeal and indeed it is overtaken by events in respect of the second and third appeal.
The second appeal, which is the first by the father of the little girl, is from Mr. Justice Ewbank of 14th April 1992. The third appeal, the second by the father, is from Mr. Justice Eastham of 9th September 1992. There was a previous appeal to this court by the father and that was dismissed on 2nd September 1991.
The background to this case is that the mother and father met in June 1989 and started to live together in September 1989. The mother became pregnant. There was a decision between the parties not to get married—whether it was he or she who said no it matters not—but in February 1990 the father moved out of the home in which they had lived together. A month or so later, some three months before the birth of the child on 21st March, there was a violent argument between the mother and the father as a consequence of which the father took the mother to hospital suffering from bruises and shock. Such injuries as she had were caused by the father. Thereafter the mother moved to her parents. It was a watershed in the relationship between this couple and the mother refused to have any further contact with the father. On the birth of the child in June the father tried to see the mother in hospital and tried to give her presents, but the mother refused all contact. Indeed she was anxious that he should not even know when the child was born.
On 17th July 1990 the father made the first of a number of applications for a declaration as to paternity, for joint custody, and access. At some stage he gave an undertaking in respect of non-molestation. On 20th August 1990 the first proper hearing came before His Honour Judge Stockdale, who made an order for access to be supervised by the court welfare officer and asked for a court welfare officer's report.
On 13th and 14th December 1990 Miss Recorder Mairants made a valiant effort to bring this couple together. She made detailed arrangements whereby she was hoping for staged contact between the father and the child. She urged the couple to agree to counselling with a view to improving the acrimonious relationship between them. She made a declaration of paternity in respect of the father and she adjourned the case to the following June. On that occasion there was some discussion about a photograph and the mother agreed she would give him a photograph of the child. This she failed to do before Christmas and she was at fault in that. That is a matter which the father has from time to time brought up against her.
In January the father visited the mother at her place of work. They had a dispute. The mother was holding the child in her arms and the father head-butted her. He was prosecuted and convicted of assault and eventually fined.
On 25th March Judge Stockdale made a number of orders, not, it appears, entirely appreciating what had been done by Miss Recorder Mairants. He made an order for unsupervised access fortnightly for two hours, but the first two occasions were to be for one hour. He did not deal with the other issues which were still outstanding, nor indeed with the prospect of the June hearing.
Three periods of access took place. On the first, the child was kept for four hours. On the second, the child was kept from around 3.15 pm to 12.50 am. The police were involved, with both sides ringing the police. On the third occasion, on 5th May 1991, the child was handed over at 7 oclock in the evening and the father kept her for nine days. He refused to return her. On the 7th May an ex parte order was served upon the father that the child should be returned, but he disobeyed it. On 14th May, before Judge Stockdale, the father attended with the paternal grandmother and the child and the child was on that occasion returned to the mother. The judge heard the case on access. He terminated access between the father and the child and warned the father that he would be unwise to apply again within the next three months. He adjourned generally an application by the mother to commit for contempt of court.
On 13th June the father made further applications, including a transfer to the High Court and another application for joint custody and change of surname. He appealed to this court from the order of Judge Stockdale terminating access and that appeal was dismissed. The Children Act 1989 came into force on 14th October 1990 and the father made an application under the new Act for parental responsibility, for a residence order, for a contact order and three prohibited steps orders and for a change of surname. There was an application by the mother to strike out these applications under the Children Act. On the 20th November Johnson J. refused at that stage to strike them out and that formed the basis of the appeal by the mother which has not been pursued in this court. In April this year Ewbank J. heard two applications, the first that the father should have parental responsibility under section 4 of the Children Act and, secondly, that the child's surname should be changed to include the name of the father. Both applications were dismissed. On the same day the father wrote a letter to the mother's lawyers indicating that he would not in fact apply for contact with the child until she was older. He went away on holiday but on his return changed his mind and on 16th June he made an application that Judge Stockdale's order refusing access of the 14th May 1991 should be varied so that there should be an order for contact. On 9th September, on the application of the mother to strike out the father's application to vary Judge Stockdale's order of 1991, Eastham J. heard argument and struck out the application for contact. That was the third appeal, and again it was dismissed. Eastham J. made an order under the inherent jurisdiction and also under section 91(14) of the Children Act 1989 that there should be no application by the father for a section 8 order for three years from the date of the hearing in September.
The father is a litigant in person. He has pursued a variety of applications to the court, and indeed to the Court of Appeal on two occasions, in person. He is very articulate and has expressed what he wished to say to this court with clarity. It has been very easy to follow the points which he wished to make.
I turn now to the first appeal and the judgment of Ewbank J.. Ewbank J. heard evidence and he also had before him the earlier orders and in particular the judgment of Judge Stockdale. He considered the question of law as to what was the test in respect of granting to the father of an illegitimate child parental responsibility. He set out many facts, which I have dealt with, and many others as well and at page 7 of his judgment and he said:
"He has a bundle of photographs which have been taken on the very few occasions when he has seen Jessica but the fact is that he has not seen Jessica since May of 1991—almost a year. He has never had any family life with Jessica and the mother. His attitude to the mother is one of hostility, not to say hatred. His attitude to her family is one of dislike. He has treated Jessica without care for her welfare, as evidenced by taking her away from her mother for nine days in May 1991. He has treated the mother with violence and has made it almost inevitable that the mother would adopt towards him the attitude she has adopted. It is true that he is the father of the child biologically but as far as I can see in this particular case he deserved no more consideration in relation to Jessica than a donor in an artificial insemination case. He provides no money for her and the only terms on which he would provide money would be on terms involving him controlling the expenditure on the child. He would not intend to give parental responsibility to allow the mother to bring up the child in her way.
I can see no advantage to the child whatever in granting the father parental responsibility; in fact the contrary is the case. I would say that an order for parental responsibility for the father in this case would be contrary to the welfare of the child."
The father in his argument dealt with four separate matters and a great many subsidiary matters. His first three are what he has called points of law and the fourth is the exercise of the judge's discretion in the way in which he came to his conclusion.
Taking this three points of law in order, the first point is the observation made by the judge about artificial insemination. That point has caused distress and indignation of an understandable kind in the mind of this father. In my view it was not necessary to say it. The intention of the judge would seem to express the lack of familiar...
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