W (A Child)
| Jurisdiction | England & Wales |
| Judge | Lord Justice McFarlane |
| Judgment Date | 03 November 2016 |
| Neutral Citation | [2016] EWCA Civ 1298 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B4/2016/2539+2541 |
| Date | 03 November 2016 |
IN THE COURT OF APPEAL (QUEEN'S BENCH DIVISION)
ON APPEAL FROM THE MANCHESTER COUNTY COURT AND FAMILY COURT
(HER HONOUR JUDGE NEWTON)
Royal Courts of Justice
Strand
London, WC2A 2LL
Lord Justice McFarlane
Case No: B4/2016/2539+2541
Mr SH appeared in person
The Respondent did not appear and was not represented
This is an application for permission to appeal made in the course of a very long running in Family Law proceedings relating to a boy, known as A in the judgment below, who is now nine years old. It is not going to be helpful in this short judgment to go into the background in any detail at all. It is set in a number of judgments, but particularly in short terms in the judgment of HHJ Newton dated 17 May 2016, which is the target of this application for permission.
In short, there has been a dispute between A's parents, really from a time when he was very young, as to the contact that he should have with his father. A watershed moment in the case was a fact-finding hearing of March 2010 where a district judge dealt with allegations of fact, a large number of them, made by the one against the other and, conversely, the other against the one, and the father came second, as it were, in the course of that process and a number of adverse findings were made against him. Most of the allegations which he made against the mother were not substantiated.
At the end of the day the level of negative behaviour, to put it in those terms, found against the father was not in any manner gross or of the sort that would rule him out for having contact with his son. He did have contact with his son, and I heard this case on a previous occasion and I recall watching a DVD of one or more contact sessions which were plainly entirely ordinary, happy occasions where father and son interacted with each other.
Father, who appears as a litigant in person before me this afternoon, has reminded me of the content of that material by handing in one photograph taken at some stage when he was having contact with young A, showing again an entirely happy child and a happy father.
The contact came to an end in September 2011 and he has not seen his son since then. All of the subsequent court process has been designed to look at the issue of contact and were largely to do with the father's continued applications for contact to be reinstated. Another watershed moment, if I can use that rather hackneyed phrase, was when the district judge declined to order contact and imposed a suspension for a period of two years. The father attempted to appeal that through the system but was refused on his first appeal by HHJ Newton in February 2011 and permission to appeal was then refused by me at a subsequent hearing on 25 July 2012. But in the course of concluding my judgment in that case I offered these words at paragraph 32 as to the reasons which seemed to me to sit behind the standoff about contact and in particular A's growing reluctance to be involved in issues about contact:
"The reason contact was stopped was because of the boy's reaction to being in the middle of these two adults who are unable to relate to each other in a way that allows their son to enjoy an ordinary relationship with both of his parents. It was the adult interaction that was the problem and the judge decided that contact had to stop simply to provide respite for the boy. It was, however, the very clear expectation of the judge that the mother would seek to engage in therapy to put herself in a better position to cope with what I have just described if and when contact is raised again and when contact starts."
I went on at paragraphs 33, 34 and 35 to explain in more detail what I meant, and I stressed that there was importance in meeting the needs "of this little boy which will include having a settled relationship with his father just as he has one with his mother, unless there is very good reason for the contrary." I indicated that the ball was in the mother's court during the two-year gap to do what she could to get herself into a position to facilitate that at the end of the three-year period.
Here we are, now four years later, and not only has nothing changed but, as the father said to me in opening remarks this afternoon, "matters are considerably worse," as indeed they are. The position as described by HHJ Newton's most recent judgment is that A really cannot contemplate anybody even discussing his father with him, and he said in recent times in terms that he did not have a father, and that was the position that HHJ Newton faced at the time of the hearing. She therefore, at the conclusion of a one-day oral hearing followed by submissions and a reserved judgment, refused the father's application for any further steps to be taken to facilitate contact, and in particular she refused his application for an expert psychologist to be brought into the case at that stage.
Father's grounds of appeal are wide-ranging and widely drawn. They range across procedural matters to do with the case but also seek to target the judge's analysis of the boy's wishes and feelings, her refusal to instruct a psychologist and her decision at the end of the day, which was to say that the court had run to the stage where it could, as the judge says at paragraph 47, "do no more".
I considered the application for permission to appeal on paper and refused permission on 8 September 2016. I did so primarily because I was conscious of the fact that in fairly recent times the father had appealed against an earlier decision of HHJ Newton made in July 2014. I had given permission to appeal on that occasion. There had been a full appeal in March 2015 before the full court, with the primary judgment being given by Ryder LJ, where the appeal was dismissed; and the current application made by the father which brought it back before HHJ Newton this year was made only five months after the failure of this appeal in August 2015, and the view I took was that really the landscape was the same as it had been on previous occasions and that therefore it was difficult to see how a different result could now be obtained with a further appeal.
The father, as it certainly was the right of litigants before 3 October, has exercised his right to seek an oral hearing. The fact that he has done so and he has persuaded me to change my mind shows the value of the oral hearing and indicates how, certainly in family cases, the court should be wary of declining an oral hearing in cases of this sort where long-term orders have been made in private law proceedings. Be that as it may, it is necessary for me to explain why I have changed my mind.
In short terms, at least in terms of analysing this as a permission application, I hold the same view that I expressed in 2011. I identified, I hope correctly, the difficulty at the centre of the case and the strategy that the court was adopting to meet that...
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