A v G & N
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE MUNBY,Mr Justice Munby |
| Judgment Date | 17 July 2009 |
| Neutral Citation | [2009] EWHC 1807 (Fam) |
| Docket Number | Case No: FD03P02333 |
| Court | Family Division |
| Date | 17 July 2009 |
[2009] EWHC 1807 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
(In Private)
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Munby
Case No: FD03P02333
In the Matter of N (A Child)
Dr Michael Pelling for the Applicant (father) (pursuant to leave of the court granted under section 27(2) of the Courts and Legal Services Act 1990)
Mr David Holden for the First Respondent (mother) (pursuant to leave of the court granted under section 27(2) of the Courts and Legal Services Act 1990)
Ms Shelagh Farror (instructed by Goodman Ray) for the Second Respondent (child)
Hearing dates: 5-6 May 2009
This judgment was handed down in private but the judge hereby gives leave for it to be published
Mr Justice Munby :
These are private law proceedings relating to N, who was born on 22 March 200His parents never married and separated in August or September 2002, but the father, A, has parental responsibility pursuant to a parental responsibility agreement dated 25 November 2002.
The proceedings began on 17 October 2003, when N was only 2 1/2 years old, and have continued ever since with unabated vigour. The President of the Family Division recently described the attitude of the parents until July 2008 as “acrimonious, confrontational and emotionally fraught in relation to N's residence and parental contact”: see A v G [2009] EWHC 736 (Fam) at para [1]. I see no reason to differ from that assessment, which accords entirely with my own impressions of this unhappy litigation.
The history of the litigation
So far as is necessary I can take this comparatively shortly, omitting much and concentrating on what matters for immediate purposes.
Much detail as to the history of the litigation is to be found not merely in the judgment of the President to which I have already referred but in judgments given by Sumner J on 9 December 2005 and 4 April 2007 (respectively, Re N [2005] EWHC 3145 (Fam) and G v A [2007] EWHC 780 (Fam)) and in judgments given by me on 6 August 2008, 5 September 2008, 20 January 2009, 13 March 2009 and 8 July 2009: respectively, Re N (McKenzie Friend: Rights of Audience) [2008] EWHC 2042 (Fam), [2008] 2 FLR 1899, Re N, A v G [2008] EWHC 2134 (Fam), Re N (Payments for Benefit of Child) [2009] EWHC 11 (Fam), [2009] 1 FLR 1442, Re N, G v A (No 2) [2009] EWHC 484 (Fam) and Re N, A v G [2009] EWHC 1663 (Fam). I do not take up time repeating or even summarising what is to be found in these judgments. I take them as read. There are also illuminating transcripts of hearings which took place before Sumner J on 19 May 2006 and before me on 2 November 2007.
The history of the litigation: down to July 2008
The proceedings began on 17 October 2003 when the mother, G, issued an application for relief under section 15 of and Schedule 1 to the Children Act 1989. I shall refer to these as the Schedule 1 proceedings. On 17 November 2003 the father issued an application for residence and interim contact, which I shall refer to as the section 8 proceedings.
During 2004 and the earlier part of 2005 there was much interlocutory activity, including appeals from various orders of District Judges in the Registry which came successively before Baron J, Bracewell J, Holman J, Wilson J and Bracewell J, and an application (by the father) for permission to appeal from Wilson J which was refused by Wall LJ, first on paper and then on renewed oral application.
Both the section 8 proceedings and the Schedule 1 proceedings came on for final hearing before District Judge Roberts in the Registry on 9 May 2005. In circumstances which I subsequently had occasion to explore in Re N (Payments for Benefit of Child) [2009] EWHC 11 (Fam), [2009] 1 FLR 1442, at paras [85]-[89] and [113]-[114], the father chose deliberately not to attend. Having heard evidence, on 10 May 2005 District Judge Roberts gave two judgments. The first explained her reasons for ordering, as she did, that the father's applications for a residence or joint residence order be dismissed, that N live with the mother and that N have contact with the father. The second explained the order she proceeded to make giving the mother financial relief in the Schedule 1 proceedings.
The father appealed both orders. The appeal came on before Sumner J on 9 December 2005. The appeal in relation to the section 8 proceedings was dismissed: Re N [2005] EWHC 3145 (Fam). 1 The order made by Sumner J on 9 December 2005 provided, so far as material for present purposes, that any further application by the father in respect to residence or contact was to be listed before Sumner J for an early directions hearing.
Amongst the papers which were before Sumner J on 9 December 2005 were reports on the mother by a therapist, DS, a member of the British Association for Counselling and Psychotherapy (BACP), obtained by the father in circumstances of which Sumner J was critical: Re N [2005] EWHC 3145 (Fam) at paras [75]-[77]. DS had never met the mother, but nonetheless on 19 September 2005 produced a lengthy “Psychological Commentary” on her, together with a separate two page “Summary”. Sumner J was extremely critical of DS's reports and of other aspects of her work: Re N [2005] EWHC 3145 (Fam) at paras [78]-[79].
My first involvement in the litigation had been shortly before, on 21 November 2005, when I made an order, continued on 24 November 2005, that the father was not to take N to see DS without the prior written order of the court. On 24 January 2006 I made a further order permitting the mother to disclose my two previous orders to BACP. On 13 February 2006 the mother made a complaint to BACP about DS's report of 19 September 2006 and, without having obtained permission from the court to do so, sent BACP a copy of the report. This prompted the father to issue an application on 15 March 2006 seeking the mother's committal to prison for contempt of court in sending the report to BACP. That application came on for hearing before me on 15 May 2006. I found the mother guilty of contempt, fined her the sum of 50 pence and made no order as to costs.
Those matters apart, Sumner J continued to deal with the section 8 proceedings. On 19 January 2006 the mother had applied to vary the contact order; her application was adjourned the same day by Sumner J. There were further hearings before Sumner J on 19 May 2006, 29 August 2006, 15 March 2007 and 30 March 2007. On the latter occasion Sumner J made an amended order for contact, barred both parents from making any further application without the prior consent of the court and gave directions for a further hearing, including a direction that a Cafcass officer was to report by 17 July 2007 on the viability of future contact between N and his father. Sumner J explained his reasons in the judgment he gave on 4 April 2007: G v A [2007] EWHC 780 (Fam).
On 26 April 2007 the father issued an application for permission to appeal against Sumner J's order of 30 March 2007. That application came before Hughes LJ on 15 June 2007. Permission was refused. On 27 June 2007 Sumner J informed the parties that, following reconsideration, he had decided to recuse himself.
The matter came before me for directions on 4 July 2007 and again on 16 July 2007. I gave the father permission to apply for a residence order, made N a party to the
proceedings and directed pursuant to FPR rule 9.5 that an officer of Cafcass be appointed his guardian. The hearing was listed for five days starting on 4 February 2008. There were further directions hearings before me on 5 October 2007 and 12 November 2007 when I gave directions for expert evidence.In the event, the hearing on 4 February 2008 was vacated and the final hearing of the section 8 proceedings came on before me on 21 July 2008. Amongst the voluminous materials put before me were reports on the mother and the father, each dated 4 April 2008, by Dr CM, a consultant psychiatrist, an independent social work report on the father and the mother dated 23 June 2008 by Ms JJ, an independent social worker and guardian, and a report by N's guardian, Mrs Christine Payne, dated 8 July 2008.
The father, in addition to his original statement dated 20 August 2007 in support of his application for residence (a lengthy document running to 44 pages with a further 270 pages of exhibits), had produced a 17 page statement dated 12 April 2008 criticising Dr CM's reports as “seriously flawed” and a 13 page “Response” dated 15 July 2008 to JJ's report which was critical of parts of her report. (I should add that JJ's report attaches, as an appendix, a 27 page document sent to her by the father following their first meeting on 4 June 2008 which was also critical of her approach.) The father had also prepared – seemingly with professional medical assistance – a 94 page “Critique” of Dr CM's psychiatric assessment of the mother which questioned the “professionalism” of Dr CM's work.
The father's position at the start of the hearing on 21 July 2008, as set out in his position statement dated 18 July 2008, was that “the best option for the welfare of N, considering all the circumstances and the relative merits and demerits of residence with either or both parents, is that the father have sole residence of N and that there be reasonable contact with the mother.” However, he continued, “in order to avoid a fully contested trial and in the light of the experts' reports, the father is now willing to accept an order for shared residence, N spending equal time with each parent”. He elaborated this as follows:
“If equality of residence is presently unacceptable to the court at this stage then the father would be willing to accept that N spend time with each parent on a 6 night and 8 night split (in a...
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