E v M (1st Respondent) Y (A Child by her guardian) (2nd Respondent)
| Jurisdiction | England & Wales |
| Judge | Ms Justice Russell DBE,Lord Justice Simon,Lord Justice Laws |
| Judgment Date | 18 December 2015 |
| Neutral Citation | [2015] EWCA Civ 1313 |
| Date | 18 December 2015 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B4/2015/1721 |
[2015] EWCA Civ 1313
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY COURT AT SWINDON
RE E (A CHILD)
Ms Recorder Clayton
SN13P00200
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Laws
Lord Justice Simon
and
Ms Justice Russell
Case No: B4/2015/1721
and
Ms Finola Moore (instructed by Direct Access) for the Appellant
Ms Ariel Ricci (instructed by Direct Access) for the 1 st Respondent
Ms Corinne Iten (instructed by Reeds Solicitors) for the 2 nd Respondent (Child)
Hearing date: 26 th November 2015
Introduction
This application for permission to appeal is brought by the Appellant (E) in respect of a decision of Ms Recorder Clayton, and the child arrangement orders pursuant to s 8 (as amended) of the Children Act (CA) 1989 that she made after a trial which took place over 16 th, 17 th, 18 th and 20 th February 2015 when sitting at the Family Court at Swindon. The subject of the proceedings between E and the 1 st Respondent (M) is the 2 nd respondent child (Y) a girl, born on the 15 th July 2006, now 9 years and 4 months old. The difficulties over the time that Y was to spend with her father (E) began in 2010 not long after the parents separated.
These were protracted private law proceedings, E first made an application to the court for a shared residence order in 2012. There have been two contested hearings regarding s 8 orders: the first was before District Judge Ball in October 2012. The district judge gave a judgment, and the orders he made included a shared residence order. In fact Y lived with her mother for most of the time during the school terms and for half of the school holidays. The case returned to court for numerous short hearings before a second contested hearing before Ms Recorder Clayton in February 2015. It is not clear just how many times the case has been before the court. E now seeks permission to appeal, out of time, against the child arrangement orders made by the recorder dated 20 th February 2015.
The orders made on 20 th February 2015 were that Y was to live with her mother (M) and only have indirect contact with her father in the in the form of a monthly letter and a card, and a present at her birthday and at Christmas. The order specified that Y would not spend time with her father or have telephone contact with him. The recorder made a prohibited steps order (PSO) pursuant to s 8(1) CA 1989 that E was not to attend Y's school without the specific prior authority of the school, and an order pursuant to s 91(14) CA that E was prohibited from making any further application for a Child Arrangements Order or other section 8 order without first obtaining the leave of the court for a period of three years from the date of the order.
This judgment sets out the background to the case and considers the judgment of Ms Recorder Clayton below. In short it is my view that the Appellant has not demonstrated that the decision of the recorder, which was properly based on the evidence before her, was wrong and that the child arrangements orders she made were inconsistent with either with the findings she made or the welfare of the child, her paramount consideration. In respect of the s 91 (14), alone, it is clear that the Appellant did not have sufficient notice of the application that was made and the manner in which it was made did not comply with case law or proper procedure.
Background
In considering E's application it has been necessary to consider the history and background facts of this case and to rehearse the evidence which was before the recorder in some detail because E made substantial reference to both aspects in the documents he filed in support of his appeal.
Y is the only child of E and M who were not married and lived together for a period of years between 1999 and 2009 when their relationship came to an end. M is from Northern Ireland and E was born in Iraq. They met in North Wales and have moved within the UK, first to Lancaster, then to Northern Ireland and to Exeter, in 2005, where Y was born in 2006. The parties separated in May 2009 and it would seem that they managed the care of Y jointly, but not without difficulty as by 2010 Y showed reluctance to go to stay with her father. The situation deteriorated when Y started school in 2011 which coincided with M embarking on a new relationship with her current partner. As is all too common this new relationship created additional tension between the parents. Y has lived with M and her partner and his children (when they spend time with him) since late 2011 and spent weekends and part of the school holidays with E.
E first issued proceedings in Exeter County Court in January 2012. In January 2012 M had consulted a child psychologist because of Y's behaviour and distress around contact. There was a period when mediation took place but the difficulties continued. During early 2012 Y stopped seeing E for a time as she was again struggling to cope with the handovers. Contact was recommenced at a contact centre. In the summer of 2012 the court ordered a s 7 (CA) report to be prepared by Cafcass. Overnight contact had only just begun again when the contested hearing before District Judge Ball took place in October 2012. The orders made by the district judge on 19 th October 2012 formed the basis of the subsequent period of child arrangements for Y up until the second contested hearing before Ms Recorder Clayton.
From the transcript of District Judge Ball's judgement it is clear that the court was aware and accepted that Y was struggling over handovers at contact and made reference to the views of the Cafcass Family Court Reporter (FCR) that E was somewhat controlling and had difficulty in responding to concerns raised by workers at the contact centre and school staff. Y's behaviour during contact had raised concern; she wet the bed, she cried and showed signs of anger and distress. E had accepted that he phoned the child at night frequently and had phoned and Skyped when she was on holiday with her mother. He accepted he went to her school frequently but did not accept that anything in his behaviour had caused Y's difficulties.
The FCR told the court that it was her understanding that E phoned Y every night which the FCR considered to be both unusual and intrusive. In concluding her evidence she said that she had serious concerns that a shared residence order would " put [Y] back in the firing line." E's evidence that his frequent attendance at Y's school did not cause her any difficulty was not accepted by the court, and the fact that the school itself had expressed concerns led the district judge to say in his judgment at paragraph 37, " I can see no good reason why [E] should go to [Y's] school to the extent the school have expressed concern. I can see no good reason why he should seek to telephone [Y] almost nightly to read her a bedtime story."
The district judge went on to say that while E " does have an understanding of [Y's] needs…he puts his own needs first. Further E gives the impression of being reasonable and flexible over contact but I find that he is anything but reasonable and flexible. He is, I find, only reasonable if he gets his own way." Despite this finding and the concerns expressed by the FCR the district judge made a shared residence order. The judge noted at paragraph 44 that M " does plan to move to Swindon" and that shared residence order was not a bar to relocation to Swindon or anywhere else.
The district judge had considered the welfare "checklist" in section 1(3) of the CA and questioned E's ability to prioritise Y's need before his own. In respect of s 1 (3) (f) (the capability of the parents to meet the child's needs) the district judge said, " whether [E] is willing to put [Y] first only time will tell." The order set out the time Y was to spend with E which was alternate weekends, after school on each Wednesday and she was to spend half of each school holiday with E. E was not to go to Y's school except at the invitation of M or the school.
Regardless of the court's recent decision, on the 30 th November 2012 E applied for a Prohibited Steps Order (PSO) within six weeks, in an attempt to stop M moving to Swindon. Unsurprisingly that application, heard on 8 th January 2013, was refused by the district judge and E was not granted permission to appeal against that decision. Y moved to Swindon with her mother in February 2013 and started school there.
Y's distress over her contact with E continued; it affected her behaviour at home and at school and led to incidents of Y self-harming between October and December 2013. As a result of what Y told M about E's behaviour towards her when she had contact, including that he had hit her, she was taken to see her GP by her mother. The GP contacted social services; and in a letter dated the 8 th October 2013 he alerted them to his concerns regarding the effects on Y of contact and what she had said about E's behaviour towards her during contact. On 11 th October 2013 M applied to vary the shared residence order. There followed further applications and cross-applications by both E and M. On the 22 nd October 2013 there was an order of the court directing social services to file a letter setting out the result of their risk assessment of the child. An initial Child Protection Conference was convened by social services on 23 rd December 2013 when Y was made the subject of a child protection plan by the local authority under the categories of emotional Abuse and Physical Harm.
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