T (A Child) [CA (Civil), 24/10/2002]
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE THORPE,LORD JUSTICE RIX,LADY JUSTICE ARDEN,Lord Justice Thorpe |
| Judgment Date | 24 October 2002 |
| Neutral Citation | [2002] EWCA Civ 1736,[2002] EWCA Civ 1773 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | B1/02/1378 |
| Date | 24 October 2002 |
[2002] EWCA Civ 1736
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
(WILSON J)
Royal Courts of Justice
Strand
London, WC2
Lord Justice Thorpe
Lord Justice Rix
Lady Justice Arden
B1/02/1378
MR. N. MOSTYN Q.C. and MR T. BISHOP (instructed by Messrs Sears Tooth) appeared on behalf of the Appellant
MISS J PARKER Q.C. AND MISS D. EATON (instructed by Messrs Collyer-Bristow, London, WC1) appeared on behalf of the Respondent
The parties to this appeal married on 24th September 1988. The appellant husband is a US citizen, aged 42. The respondent mother is British and aged 38. The only child of the marriage is JW who is almost 11 years of age, having been born on 31st October 1991. The marriage proved of short duration. The mother left the London home with JW to return to her home county of Cheshire in January 1994. Almost immediately after the separation the father issued his first application for contact. That was the harbinger of much litigation between the parties. There was a contested ancillary relief application. Judgment was given by Singer J and subsequently that judgment was reviewed in this court. In the field of contact Singer J was the judge for nearly six years until recusing, in March 2001, when the mother filed a statement from the husband's niece M, whom Singer J had represented in historic proceedings between M's father, PT and M's mother. The contact regime which Singer J nurtured resulted in the father having half the school holidays and half terms, with additional weekends.
The summary of this period of the post-separation history is to be found in the judgment under appeal at page 29. Wilson J said:
"But I am clear that there was fault on both sides, albeit perhaps in unequal proportions. The father was insufficiently thoughtful of the mother's natural concerns in respect of arrangements for her young son. The mother came, so I believe, to look upon the father's contact as an unwelcome source of trouble and anxiety, albeit as something which she accepted had to take place and which JW enjoyed, and she was not motivated in any way to exceed the strict parameters of what had been ordered or agreed."
The regime sanctioned by Singer J took its final shape by an order of 21st October 1999, and that endured until the mother's current application to suspend contact which is still a live application.
I move to the autumn of 2000 when the paternal grandmother, AT, died in the United States. That preceded JW's Christmas staying visit and undoubtedly contributed in some degree to the father's heavy drinking throughout that Christmas holiday period.
The relationships within the T family are unusually complex. That is demonstrated by an incident on 2nd March 2001 when the father was assaulted quite severely by his elder brother, P. The assault was the source of a major family battle. The father involved the police and his brother was charged with a criminal offence. Ten days after the assault the maternal grandfather in this jurisdiction, Mr JF, received a telephone call from PT, alleging that the father was essentially unfit to have continuing contact with JW as a result of his dependence on alcohol and prescribed drugs. Ten days after that the mother issued her application for the suspension of contact. An order was made by Black J seven days later. She set out a regime of testing of samples for drug and alcohol levels, and in the interim suspended direct contact. The testing regime which was set up pursuant to this order produced results that on their face were negative. The father on 3rd May issued a cross application for interim contact and for an early listing of the mother's prior application. That led to a conciliation hearing on 9th May in the Principal Registry, at which leading counsel for the parties agreed that it was unnecessary to direct a report from a children and family reporter since there was no issue as to JW's wish to spend time with his father. Accordingly, at a listing before Bodey J on 13th June a consent order was entered, on the basis that the father would agree to continuing tests and on the basis that staying contact would be supervised by a professional nanny, for contact from 29th June to 4th July at a hotel in Manchester. That contact duly took place and concluded on 4th July. The relationship between father and child at that conclusion is described in his subsequent filed statement in these terms. He said:
"The last time I had seen JW—that is 4th July—he had been hugging and kissing me and telling me how much he loved and missed me."
That evidence was not challenged at the trial before Wilson J.
The parties returned to court on 13th July when a further order was made by consent, again preceded by safeguarding directions. The consent order provided for the father to have two weeks staying contact between 27th July and 10th August, one week during the Michaelmas half term, together with a further weekend in the second half of the Michaelmas school term. On this occasion provision was made for a children and family reporter to prepare a report in relation to the issues in the case.
When the father travelled to Manchester on 27th July for the purposes of the contact ordered 14 days earlier, he was met with what must have been for him extraordinarily distressing opposition from JW. In his evidence he described it thus:
"When I tried to speak to JW in the car park he told me I was a liar, was drunk all the time and that nobody liked me. He told me never to call him again."
That tragic development inevitably led to a return to the court. The parties were before Bodey J on 1st August when he set the case over to 6th August. On 6th August the case was listed before Johnson J. He arranged for the senior children and family reporter in the Royal Courts of Justice, Mr John Mellor, to assist the court by talking to JW and to the parties. He subsequently gave evidence to the judge. I draw the following extract from the transcript:
"I found J to be a nine-year old boy, going on ten, very powerfully aligned with his mother, expressing a catalogue of criticisms of the father … He talked about his father spending all day in bed (not telling the truth) being boring, taking J to places he didn't want to go to, sleeping all day, up all night, keeping him up all night. (He said): 'I wish he would give up and leave us alone.'"
In a subsequent answer to the judge, Mr Mellor added this:
"I asked JW to just imagine for a moment that his father did 'give up', as he put it, and didn't insist on continuing to meet with him. If that were the case I asked J, who he thought would be the happiest person in his whole family and he told me that was impossible to answer. I said: 'Why is it impossible to answer?' He said: 'Because everyone would be happy.' I said: 'Well, who's everyone?' He said: 'Well, by 'everyone' I mean mum, JJ', his grandfather, his grandmother, in fact everyone in his family. I asked whether anyone would be sad. He said: 'No, no one.'"
Having received that report Johnson J did not deliver a judgment. However, he made a firm order. He said that the father was to have contact immediately and lasting until 11th August. He said in addition that he should have contact later in the month to make up for lost days. The second spell should be from 29th August to 3rd September. The first contact duly took place over the ensuing four or five days at a London hotel. The evidence of the nanny, who was present as a safeguard, was to the effect that the stay had been without any major complication. Accordingly, the father was naturally expecting to have JW again on the 29th. However, that arrangement was cancelled on the eve, on the basis that JW had not recovered from a gastric attack that he had picked up in the Canary Isles. No application was made to the court to enforce the order of Johnson J or to put anything in its stead. By that stage the children and family reporter had been nominated, a Mrs Cordwell, who was based in the north west in proximity to the mother's home. She had embarked upon her inquiries and in mid-September the mother sent to her a dossier which Mrs Cordwell quite properly returned, on the basis that it was neither conventional nor appropriate for the mother to seek to influence her by submitting material of any sort.
The parties were before the court on 10th October. His Honour Judge Colthart took a directions appointment, in the course of which the father applied for an order that the mother disclose the dossier which she had submitted to Mrs Cordwell. That application was refused and not appealed. Contact was due to take place shortly thereafter, commencing on 19th October, as directed by the order of 13th July. On the 19th, when an attempt was made to effect the transfer to the father's charge in Manchester, JW declined to co-operate or to accompany Mrs Cordwell. An application was made in this building and listed before Her Honour Judge Anwyl on 22nd October. She on that occasion gave Mrs Cordwell leave to instruct a consultant psychiatrist or psychologist to see the parents and JW and to report to the court in time for the fixture on 10th December. The judge also made firm orders to ensure that the transition took place on the following day.
The endeavour to implement the order on the following day led to extremely distressing scenes. They are described at first hand by Mrs Cordwell in her subsequent written report. She said that JW refused to go with his father, and when asked why he said, among other things, "because he gets drunk, stays in bed...
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