ReJ (A Child)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Munby,Lord Justice Lewison,Lord Justice Maurice Kay |
| Judgment Date | 12 October 2012 |
| Neutral Citation | [2012] EWCA Civ 1231 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B4/2012/1406 |
| Date | 12 October 2012 |
[2012] EWCA Civ 1231
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SOUTHEND COUNTY COURT
Mr Recorder BRYAN
Royal Courts of
Justice Strand.
London, WC2A 2LL,
Lord Justice Maurice Kay
Lord Justice Munby
Lord Justice Lewison
Case No: B4/2012/1406
Ms Ashley Thain (instructed by White & Co) for the appellant father
The respondent mother appeared in person by video link
Hearing date: 4 September 2012
This is an appeal, pursuant to permission granted by McFarlane LJ on 16 July 2012, from a judgment of Mr Recorder Bryan sitting in the Southend County Court on 15 March 2012. The Recorder was hearing proceedings under Part II of the Children Act 1989. He was concerned, as we are, with J, a boy who is about 9 1/2 years old. His parents were never married.
J was bom on [a date]. His parents separated, in circumstances which are disputed and have never been judicially investigated, on 7 November 2003, when the mother left the family home taking J with her. The litigation began, with the father's application for parental responsibility, residence and contact, on 22 December 2003. The first sadness is that, albeit with two significant interruptions — the first between July 2005 and June 2007 and the second between March 2009 and October 2011 — the litigation has continued ever since. The second sadness is that, even as the case came before us, there appeared to be no end in sight, for the order made by the Recorder on 15 March 2012, at the end of what had been listed as the final hearing, provided for a "further review" on 10 September 2012.
In order to set the scene for the hearing before the Recorder I must sketch out the history of the litigation.
The history of the litigation
Following the parties' separation J lived with his mother. There were difficulties over contact. The father's application, as I have said, was issued on 22 December 2003 On 26 January 2004 District Judge Skerratt gave the father leave to withdraw his application for residence. The conciliation and directions hearing he ordered took place before District Judge Johns on 30 April 2004. He made an order for interim contact and gave directions, including directions for a section 7 report from the local authority. Much evidence was filed, followed by the section 7 report dated 26 July 200On 28 July 2004 District Judge Skerratt made orders by consent that the father have parental responsibility for J and for interim contact pending a hearing fixed before a Circuit Judge on 4 November 2004. The first contact directed by the District Judge was to take place on 13 August 2004. According to the father, during August and September 2004 the mother did not comply with the order. The mother's stance as set out in a witness statement dated 13 October 2004 was that she would not allow unsupervised contact because of her concern that the father would not return J. On 18 October 2004 the father issued an application for the attachment of a penal notice to the order District Judge Skerratt had made on 28 July 2004.
The hearing on 4 November 2004 was before His Honour Judge Goldstaub. He ordered that the parties be assessed by a psychologist or psychiatrist, set out the interim contact that was to take place, and directed that the matter be heard by His Honour Judge Yelton on 15 March 2005. According to the father, the contact which had been ordered for 2 December 2004 did not take place. On 6 December 2004 the father applied ex parte to Judge Yelton for the penal notice to be attached; the judge directed a hearing three days later. On 9 December 2004, having heard both parties, Judge Yelton made no order on the father's application, except to change the location of contact hand over. Dr Stephen Little, a consultant child and adolescent psychiatrist, reported on 12 March 2005. He said that the mother was not suffering from any identifiable psychiatric condition but referred to a number of her personality characteristics which, he opined, were putting J substantially at risk. At the hearing on 15 March 2005 Judge Yelton adjourned the case for a directions hearing on 23 March 2005.
On 23 March 2005 Judge Yelton made a residence order to the mother, directed that the father have weekly contact every Saturday, increasing from 3 hours on 26 March 2005 to 8 hours from 28 May 2005, and ordered that there be a further directions hearing on the first available date after 27 June 2005. The hearing in fact took place, again before Judge Yelton, on 1 July 2005. He adjusted the contact arrangements: contact was to take place on alternate weekends from 10am on Saturday to 5pm on Sunday; every Thursday afternoon from 1pm to 5pm; and for three separate weeks, one in the summer, one at Christmas (not to include Christmas Day) and one at Easter.
According to the father, by October 2006 the mother had again stopped contact. There was correspondence between the parties' solicitors in the course of which the mother made various allegations against the father. The police became involved.
So far as the court was concerned, the next thing that happened was on 8 June 2007, when the father applied for a contact order and a joint residence order. When the matter came before District Judge Rowley on 6 August 2007, each parent was making allegations against the other. The mother had stopped contact, alleging that the father had bruised J's arm (something which he denies). The District Judge varied the father's contact to fortnightly supervised contact for 3 hours at a contact centre and gave detailed directions, including directions for each party to file a schedule of allegations and for a section 7 report by CAFCASS, with a view to a fact finding hearing which he fixed for hearing by District Judge Chandler on 30 November 2007. He also fixed the final hearing, also before District Judge Chandler, for 7 January 2008. The schedules of allegations were filed, late and only following an 'unless' order, on 23 October 2007; the father's response to the mother's schedule followed on 26 October 2007.
At the hearing before District Judge Chandler on 30 November 2007 everyone agreed that there was no need for a fact finding hearing as none of the allegations would affect the level of contact. The father was given leave to withdraw his application for residence. A contact order was made, providing, after an introductory period of increasing contact for the first month, for the same contact as had been directed by Judge Yelton on 1 July 2005, except that the weekday contact was now to be on Wednesday rather than Thursday.
The section 7 CAFCASS report, written by Ms Jill Coatalen, was dated 4 January 2008. It referred to Dr Little's report, noted that "little has changed since 2005", observed that "historically contact appears to occur for only a few months at a time before it is once again disrupted", that is, disrupted by the mother, suggested that "a change in the current status quo would appear to be both appropriate and necessary", and "to this end" recommended that there be an interim joint residence order "so that the balance of power is shared and no longer held solely by mother." The report did not recommend that J live with his father full time "because I do not think that a change of this magnitude would be easily accepted by the child."
At the final hearing on 7 January 2008, District Judge Chandler by consent made a shared residence order and also, as suggested by the CAFCASS report, a family assistance order to the local authority. Paragraph 1 of his order, having directed that there be a shared residence order, provided for the following "division of care". J was to be with his father on alternate weekends from after school on Friday until start of school on Monday, each week from after school on Wednesday until start of school on Thursday, and for half of all school holidays, including half term holiday. He was to be with his mother for the balance of time. The District Judge gave directions for a review hearing in July 2008. In the event, the hearing took place on 29 August 2008, when District Judge Cooksley discharged the family assistance order and adjourned the case for review in March 2009. On 31 March 2009 District Judge Dudley, having heard the parties in person, ordered that paragraph 1 of the order dated 7 January 2008 should stand as the final order.
On 12 October 2011 the mother issued an application seeking sole residence, supervised contact and no staying contact. On 10 November 2011, District Judge Collier made an order suspending the order of 7 January 2008, directing that in the interim J was to live with his mother, and giving directions, including directions for a further section 7 report by CAFCASS and for a directions hearing on 12 January 2012. The order made no provision for any contact. On 12 January 2012, District Judge Hodges listed the matter for further directions on 16 February 2012 and ordered the mother to "facilitate contact as recommended by CAFCASS, perhaps supervised". The CAFCASS report, written by a different officer, Mr R Shaffer, was dated 26 January 2012. On 16 February 2012, District Judge Ashworth listed the matter for final hearing, gave directions and ordered "such unsupervised contact as is agreed between the parties to be a minimum of 3 hours every oilier Saturday".
On 24 April 2012, the father issued an application seeking a sole residence order in place of the currently suspended joint residence order. The final hearing took place, as we have seen on 15 May 2012. By then some limited contact had resumed.
The hearing on 15...
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