W (Children)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Ryder |
| Judgment Date | 15 May 2013 |
| Neutral Citation | [2013] EWCA Civ 735 |
| Date | 15 May 2013 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B4/2013/0205 |
[2013] EWCA Civ 735
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM READING COUNTY COURT
(HIS HONOUR JUDGE OLIVER)
Royal Courts of Justice
Strand
London WC2A 2LL
Lord Justice Ryder
Case No: B4/2013/0205
The Applicant appeared in person
The Respondent did not appear and was not represented
This is an application by JW, the mother of S and D, the children, for permission to appeal against the order of HHJ Oliver of 4 January 2013. That order set out arrangements for contact between the children and their father, JC, and directed the mother to register D, adding the father's first name as his second middle name.
The factual background can be taken shortly as follows. The mother and father began a relationship in 2008. They did not marry. Their daughter, S, was born on 10 June 2010 and was given mother's surname. In February 2011 mother became pregnant with their son D. The couple's separation appears to have taken place over the course of several months between May and November 2011 and, perhaps unsurprisingly, there is a dispute as to how that occurred. It does not appear to be in dispute that at least by May 2011 the father's businesses were in financial difficulty, causing him considerable stress and, mother would say as she has submitted to this court this morning, exacerbating his controlling and abusive behaviour. Also, mother was in the process of bringing a claim in the Employment Tribunal against her former employers. Mother's witness statement of 3 November 2011 alleges that father had been physically and verbally abusive towards her on numerous occasions when she was pregnant with S in 2010. That is the broad circumstance in which Judge Oliver was asked to make a decision in respect of both residence and contact.
Judge Oliver, in tracing the prelude to the couple's separation, focused on two specific arguments, one that took place on 13 May 2011 and the second on 25 June 2011. Just taking these briefly because they are set out in some detail in the judge's judgment, the first instance appears to have been an argument that starts by text message and is followed by a face-to-face argument during which mother alleges that the father was aggressive towards her, and as a result she decided they needed some time apart and she went to stay with her parents. The second argument later in 2011 was described by Judge Oliver in these terms:
"She says that he called her words, and pushed her. She says that she was hit by him. He says that he was hit by her."
There is a long history to previous proceedings that does not influence the application that is made to this court, but which it is important to have regard to and which, as I understand it, Judge Oliver was appraised of. The hearing that took place before Judge Oliver dealt with the parties' positions, which can be summarised as follows. Father wanted his first name to be added as one of D's middle names on the basis that this had been agreed, and an order for contact including unsupervised contact with both children, and a residence order which the judge characterised as a form of enforcement of contact: what some of the judges of the Family Division have described as a suspended residence order. Mother submitted that although she agreed to give D's father's first name as a middle name, she felt pressured into doing so by father, and that she did not want to give D his name as a middle name, not least because she did not wish to create any difference between her two children. Secondly, unsupervised contact should not be ordered as father is abusive and aggressive. This is how she put it to the court below: he has personality disorders which require a psychiatric or psychological assessment, and the children would be at risk from father and indeed, as I read the papers, from father's former business colleagues as a consequence of his business dealings.
Mother was represented by counsel at the hearing below and now appears before this court in person. Father appeared in person throughout. In relation to the issue of D's name, Judge Oliver ordered the insertion of the father's name on the following basis:
"What is wrong with having [the respondent's first name] as a second or third given name? It was obviously agreed in what I regard and can see as being a happy exchange of text messages. It was not a subject of pressure, or anything like that. And, if [S] really does need parity, then she can have a third name of her choice, if she likes."
In relation to father's character, the judge found (1) that the father's attitude is not bullying or threatening; (2) citing the father's counsellor's opinion that his anger was within a normal range, that the father has a dominant personality, can be short tempered, particularly under stress and financial pressures, and is hypercritical of the mother, but that does not give him a personality disorder and there is no need for an assessment of him; (3) that, while the father is a difficult man, he "clearly cares passionately about his children", and that the mother did not seem to be able to appreciate this; and (4) that the mother's allegation that the father has personality disorders, has a history of abusive relationships and fits on-line profiles of domestic violence is "not an allegation made during the relationship or evidence of that in the past (sic)".
The judge considered the factors in section 1(3) of the Children Act 1989 and ordered contact on terms more restricted than those proposed by the father, but critically including unsupervised contact from February 2013. He dismissed father's application for residence, either substantive or contingent, and mother filed her notice of appeal and grounds with this court on 25 January 2013.
It is perhaps helpful just to look at the grounds of appeal before dealing with the submissions that have been very helpfully put by mother with the support...
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...v Wearmouth [1999] 2 AC 308. I do not propose to rehearse the detailed bases upon which I refused permission, which can be found at [2013] EWCA Civ 735. 4 Turning then to the single issue before this court, the judge dealt with the question of D's name at paragraph 72–79 of his judgment. It......