S (Child)
| Jurisdiction | England & Wales |
| Judge | Sir Mark Potter,Mr Justice Norris,Lady Justice Black |
| Judgment Date | 24 July 2012 |
| Neutral Citation | [2012] EWCA Civ 1031 |
| Docket Number | Case No: B4/2012/0750 |
| Court | Court of Appeal (Civil Division) |
| Date | 24 July 2012 |
[2012] EWCA Civ 1031
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM WANDSWORTH COUNTY COURT
HER HONOUR JUDGE KNOWLES
WT11P00181
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Black
Mr Justice Norris
and
Sir Mark Potter
Case No: B4/2012/0750
Mr Philip Squire (instructed by Thompson & Co Solicitors) for the Appellant
Miss Joanna Toch (instructed by Broadway Solicitors) for the Respondent
Hearing date: 25 th May 2012
Introduction
This is a father's appeal brought with the permission of the Court granted by Ward LJ on 4 April 2012 on the oral application of counsel for the father who requested and obtained an order staying the execution of a Contact and Residence Order dated 16 March 2012 made by Her Honour Judge Knowles sitting in Wandsworth County Court following her Judgment given on that date after a 3-day trial. The Order related to B, the two-year-old daughter of the Appellant father and the Respondent mother, born on 7 February 2010.
The Judge's Order granted residence in respect of B to the mother against a background of domestic violence, tension and acrimony between the parties and the intention of the mother to move with B in due course to Norwich from her own mother's home at 118, Seely Road, Tooting close to the father's address.
At the date of the Order the parties were operating a regime under which the father had regular overnight contact with B over each weekend, returning her at 6 p.m. on Monday. The Order of 16 March altered that regime, providing for the father to have contact on alternate weekends (6 p.m. Friday to 6 p.m. Sunday), half of all nursery/school holidays (dates to be agreed between the parties), and alternating Christmas and birthdays. The Order also discharged a Prohibited Steps Order earlier granted which prevented the mother from moving from her own mother's home in Tooting on a permanent basis without the permission of the Court or of the father in writing.
Background and Procedural History
The parties are not married. The father is a 44-year-old self-employed architect with flexible working hours. The mother is Anglo/Malaysian Chinese by origin and is aged 31. She was born, brought up and educated in this country and is a highly qualified graduate with a first class honours degree from Brunel University. She was working as a facilities co-ordinator until she took maternity leave prior to the birth of B. The parties' relationship began in March 2009 and they started to live together in September 2009 when the mother was several months pregnant. They parted at the end of December 2010, when B was only ten months old. Since it is apparent that the decision of the Judge as to the appropriateness of the arrangements for B's care was based in no small measure upon her view of the controlling character of the father and his attitude and conduct towards the mother, not least in the course of the proceedings, it is appropriate to set out the history as follows.
During the parties' relationship together, the mother suffered from depression and was quick to emotional and violent response in the course of arguments or disagreements with the father. The police were called by one or other party on several occasions and, in November 2010, the mother was cautioned by the police for an assault on the father.
In the face of her behaviour, the father insisted that the mother leave and go to live locally with her mother while the local child services assessed any risk to B which might be involved. The local authority completed a core assessment on 31 January 2011 and concluded that, the parties' relationship having ended and the mother's depression having lifted, B was at no continuing risk. The father did not accept the assessment and on 15 February 2011 commenced proceedings seeking a Shared Residence Order on the basis that B should reside with him for two nights a week, B to live with the parties for periods to be defined by the Court. He also sought a Prohibited Steps Order in the face of an alleged threat by the mother to take B to Malaysia for an unspecified period.
On 26 April 2011, at the father's behest, the local authority recommended a further assessment "to consider whether B's needs are being met within her mother's care and in particular to establish whether [the mother] is experiencing any mental health difficulties which may impact on her parenting ability of B…" and on 27 April the Court ordered a s.7 Report in respect of the question of shared residence. Amongst other directions the Order provided for B to reside with the father each weekend from 9 a.m. on Saturday until 6 p.m. on Sunday. This reflected an arrangement the parties had operated consensually since a week or so after the mother's departure from the father's house. The mother had by then also successfully attended a course of 17 sessions of cognitive behaviour therapy in respect of her post-natal depression between March and November 2010.
The mother had by now reached a stage where she was contemplating, but had not yet decided upon a move from her mother's house to live in Norwich where she had previously lived for seven years and had good prospects of future employment.
On 15 June 2011 the father made a Without Notice Application to prevent the mother from relocating to Norwich giving as his reasons:
"The Applicant is deeply concerned and believes, if the Respondent moves B from London, he will lose contact with the child given the distance. The Applicant also fears for B's safety should the Respondent be allowed to solely care for B without assistance. The Applicant asks that the Court grant a Prohibited Steps Order to prevent the Respondent from moving B from London."
Such an order was granted.
In the s.7 Report dated and filed with the Court on 20 July 2011, it was stated that the health visitor and the mother's general practitioner who had referred her for the therapy described above had no concerns about her mental or emotional health. Although the parties' relationship was described as acrimonious, under paragraph (a) of the Welfare Checklist B was said to have "a close and loving bond with a secure attachment" to both her mother and maternal grandmother and "a close and secure attachment to her father".
Under paragraph (b) of the Welfare Checklist it was noted that the parties gave B a good regular and structured routine which enabled her to feel safe, enjoying her activities with both. B was meeting all developmental milestones and, despite the continuing tensions and difficulties between the parties, there were no signs to date that this had affected B.
Under paragraph (c) of the Welfare Checklist it was recorded that both parents wished to have sole residence with the other having contact time, but noted that, if the mother had sole residence and were to relocate or return to full-time employment, she would have to ensure she had reliable support at the weekend and affordable child-care provision as a single parent. The report recorded that any change in circumstance would cause emotional upheaval for B as she was settled in her routine of travelling between the father and the mother.
No concerns were expressed under paragraph (d) of the Welfare Checklist, it being recorded that "B now lives with her mother and maternal grandmother and has had regular contact with her father. [The parents] currently have an amicable contact arrangement whereby they both have shared residency."
[N.B. the reference to "residency" was not a term of art. It simply referred to the arrangement set out in paragraph 7 above.]
In considering the question of risk of harm to B under paragraph (e) of the Welfare Checklist, the report referred to the continued and continuing friction and acrimony between the parents. However, it recorded that there were no current care concerns, both parents being capable of meeting B's needs and having a close relationship with her. After recording the past history of anger and violence on the part of the mother, it stated that the separation had had a positive effect on the mother's emotional state and that she was able to look after B independently, the arrangement with her mother being only temporary. It recorded the father's stated concerns that B was at risk when living with the mother because of historical incidents between them raising his concerns as to her mental health. It also recorded the father's concerns at her wish to relocate to Norwich where he said she had no suitable family support and the possibility of inappropriate adult friendships. The author recorded:
"It is my opinion that any changes in their current circumstance would cause emotional upheaval for B as she is settled into a routine of travelling between [the father] and [the mother].
[The mother] told me that she wants [the father] to stop making such allegations and move forward with their lives. [The mother] is correct in stating that it is not good for B's emotional development."
The recommendations contained in the report stated:
"I am supportive of [the mother] and the current arrangements for [the father] to continue to have a shared residence in regards to B as it currently stands as this will ensure B continues to receive the consistency of care and stability from her mother.
It is vital that both parents engage with the mediation service as their relationship is acrimonious and if this is left to continue it will affect B's emotional development later on in life…
I therefore summarise the main points as directed by the Court in the Orders of 27 April and 20 June as...
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