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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> S-M (Children), Re [2002] EWCA Civ 1387 (21 August 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/1387.html Cite as: [2002] EWCA Civ 1387

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
(Mrs Justice Hogg)

		The Royal Courts of Justice Strand London WC2 Wednesday 21st August, 2002

1. LADY JUSTICE HALE: This is the father's application for permission to appeal against an order made by Hogg J in the Family Division of the High Court on 1st May 2002 in relation to his two daughters. They are F A, who was born on 20th September 1996 and so is now nearly 6, and I understand that she is known as A, and L A, who was born on 25th January 1998 and so is now 4½ and is known to the father, at least, as L. They live with their mother and half-sisters and brothers. The complication in this case is that the mother is blind. I note that the father needs a short extension of time to make his application, but the extension required is so short that I grant him that extension.
2. The father first applied for parental responsibility and contact with A in September 1997 when the mother was pregnant with L. At some later stage he also applied for a residence order and those applications were extended to L after she had been born. I do not know much about the course of the proceedings, because the applicant father has sensibly limited the papers he has put before me to those which are relevant to the most recent orders. Nevertheless, there was clearly a lengthy history in which the Official Solicitor was appointed to represent the children. A child psychiatrist, Dr Swift, was instructed to give an opinion and the local social services department was also involved. No doubt much of this was because of the mother's disability.
3. There was a hearing before Hogg J on 19th December 2000 at which evidence was heard. I have not seen a copy of the Official Solicitor's report or that from Dr Swift, the psychiatrist, but the father tells me that they were limited in their usefulness because the mother had not permitted the Official Solicitor's representative or the psychiatrist to see the children. His perception is that they were in favour of contact in principle, but that there were clearly serious difficulties in view of the attitude adopted by the mother, and no doubt the court's reluctance to be as strenuous in their attempts to overcome that intransigence because of her disability. Some of that is speculation, but a reasonable speculation on what is before me.
4. The result of the December 2000 hearing before Hogg J was that there was no order on the father's application for a residence order, but a family assistance order was made so that the local authority should make an officer available to advise, assist and, where appropriate, befriend the father and both little girls. It would appear that the father's applications for parental responsibility and contact must have been adjourned on that occasion, but there is no record in the material before me as to what happened.
5. The family assistance order was basically a dead letter. The local authority took the view that because of the age of the children they could only work through the mother. The father interprets a letter from them dated 2nd April 2001 as indicating that because the mother had parental responsibility, and by implication because he did not, they could not do anything without consulting her.
6. Not surprisingly, therefore, he has taken the view that it is important that his application for parental responsibility be determined. There were various other reasons he tells me for the local authority not to take any effective action under the family assistance order. He therefore restored his applications and the matter came back before Hogg J on 14th December 2001. On that occasion a consent order, in effect, was made for indirect contact. The order expresses the mother's agreement to the following indirect contact, and then provided that the father may send each of the children appropriate cards and presents on the occasion of Christmas and birthdays in each year, and that the mother will seek to ensure that each child personally receives them. It also provided that the father may send to each of them photographs of himself, his mother and his sisters, and similarly that the mother will seek to ensure that each child personally receives them. It also provided that the mother would as soon as possible order on behalf of the father and arrange for him to receive the current school photograph of F A, provided that he telephones her to confirm his order and makes payment in advance and that she would do so each year, and that she would discuss with the Children Centre the sending of a current school activity photograph of L A, a view to his receiving a photograph each year if appropriate at his expense. Having directed that, the court ordered that there be no further order relating to contact and that the father's application for parental responsibility orders be adjourned generally with permission to restore.
7. The father sent Christmas cards and presents for the girls. The mother kept the presents, but returned the father's cards and did not facilitate the supply of photographs. In her statement she says that she regarded the cards as not appropriate because they described him as a loving Dad, which she did not think that he was, and she regarded the supply of photographs for the father as conditional on his supplying his. The presents were kept and put with the general store of presents, so that there is nothing to indicate that these girls knew that their father had sent them.
8. Not surprisingly, therefore, the father brought the matter back to court. On 7th March 2002 it came before Munby J. He ordered the mother to supply explanations and the father to file a response relating to parental responsibility. He adjourned the matter to 1st May 2002. Somewhat surprisingly, in view of the fact that the case had previously been at least twice before Hogg J, he reserved it to himself. The father tells me that this was because both parties were acting in person on that occasion. The father has acted in person throughout, but the mother has usually had the benefit of legal representation. However, she did not do so on 7th March. She arrived at court with her 12-year old, or thereabouts, son. The father also tells me that her attitude to the court was not as respectful as is normally expected. In telling me that, he was appropriately hesitant and not wishing to put the mother down in any way. He expressed himself with great moderation. His perception of the situation was that Munby J considered that it was time that something constructive was done about this case in the light of the mother's attitude, and that that was why he had reserved it to himself. I say no more than to accept that that is a possible, indeed plausible, explanation.
9. Nevertheless, on 1st May it came back not before Munby J but before Hogg J. This was against the father's will. The father tells me that the reason for that was that Munby J was sitting that day, but of course was engaged in other cases listed before his. The mother again attended with her son and, because of an appointment that her son had, complained that she would have to leave before 3.30, and for that reason the case was transferred to Hogg J who was available to take it immediately. The court papers, however, were not available for her. The father considers therefore that the matter did not receive the attention that it would have received had it come before Munby J, who no doubt would have had a clear recollection of events on 7th March.
10. Reading the transcript of what took place before Hogg J it is clear that she was at a loss as to what to do for the best. There is no doubt that she was sympathetic to the father's desire to build a relationship with his daughters, and she says in terms that she knows of no reason why he should not do so. The problem is the mother's attitude, that she blows hot and cold and changes her mind. But Hogg J took the view that she had to put the children's interests first and that it would not be in their interests to upset the mother by pushing matters too far. The outcome, therefore, was the order against which the father wishes to appeal, which simply restated the provisions of the December 2001 order in rather firmer terms. It stated that the mother shall ensure that each child personally receives the appropriate cards and presents sent at Christmas and on birthdays and the photographs of himself, his mother and his sisters. It provides that the father has leave to approach the education department of the local authority directly in order to arrange and receive an annual school photograph of each child, when the youngest one is of school age, and similarly the Children Centre in relation to the younger daughter. It also specifically requests both the education authority and the Children Centre to facilitate the father's request, and gave him leave to disclose the order to them in order for that to be facilitated. But his applications for parental responsibility, residence and further contact were adjourned generally with liberty to restore and he was refused permission to appeal.
11. The father's frustration is understandable. The general arguments are ones which are of course specific to this case, but familiar to judges who sit in this jurisdiction. The father says that he only wants to be a responsible and caring father and to build a proper relationship with his daughters. The mother says that he is not really interested in his daughters. He is only interested in himself and in making trouble for the family. The father cannot understand how she has been allowed to manipulate the system and disregard orders for so long. Clearly recent events indicate that she has indeed disregarded orders and, if the father's account of the hearings this year is correct, to some extent manipulated the system.
12. What then can I do about this sorry state of affairs? The father's main interest, he tells me, is in having his application for parental responsibility properly determined, not further adjourned and adjourned and adjourned. He feels that then the arguments for and against this can be properly ventilated and even if he loses he would then have something tangible against which he could appeal. In my view that argument has very considerable merit. It is time that that application was fully and properly determined. It is open to the father to take up immediately the liberty that he was given by Hogg J's order and have the matter restored to the court. I would make the observation that it would be desirable, if so, that that application went before Munby J if he was available. He seems to have heard, seen or read something about this case which caused him to take the unusual action of reserving it to himself. Although I have not seen any judgment or the transcript of that occasion, I would be prepared to assume that he had very good reasons for doing that, and those reasons would be such as to suggest that he should have the case when it is restored.
13. The father could, of course, seek to have a penal notice endorsed upon the existing order. He tells me, again with great moderation, that there have been penal notices in this case in the past and he does not foresee that they will take matters much further forward. But of course that is something which again he could seek to have done immediately without the intervention of this court.
14. The final point, it is worth making, is that the order relating to the supply of school photographs is in my view a specific issue order to the effect that the father is entitled, at his own expense, to have such photographs, irrespective of his present lack of parental responsibility and irrespective of his objection made by or on behalf of the mother. I make that observation so that when he has a copy of this judgment he can show it to the local education authority and to the Children Centre so that they understand the position is that if such photographs exist, there is no objection at all to his being supplied with copies and it is therefore, in effect, their duty to do so if they can.
15. Having said all that, all of which indicates the things that the father can do straightaway without the intervention of this court, the question remains: what do I do about his application for permission to appeal? I can only either refuse that application, or adjourn it for a hearing on notice to the other side, or grant the application for permission to appeal so that a full appeal will come on before this court. The difficulty about an appeal is that it could only be granted if the court was satisfied that the decision made by Hogg J in May was plainly wrong, and that is a very high hurdle to cross. On the other hand, for the reasons that I have indicated, there is at least an argument that she should have been, despite her reservations about the mother and the mother's attitude, more robust in her approach. This may not be a criticism of her because the circumstances in which the application came before her were, as I have explained, unusual and such as to hamper her in her proper consideration of the case.
16. I have therefore decided in relation to this application to adjourn it to be heard by a court consisting of at least two Lords Justices, one of them with experience of the Family Division jurisdiction, on notice to the other side, with the appeal to follow if permission be granted. I will also order that there be a transcript of this judgment prepared at public expense and copied to both parties, as well as to CAFCASS Legal which has taken over the functions of the Official Solicitor in relation to the children. It seems to me that having represented these children in the past, they have a legitimate interest in knowing how things are proceeding and may have views that they wish to put before the court on this matter. I say all of that without prejudice to what I have said about what the father could do immediately, irrespective of this pending application to this court. I am sure he understands that.
ORDER: Application for an extension of time granted; application for permission to appeal adjourned with notice to the respondent, with appeal to follow if permission granted; a copy of this judgment to be supplied at public expense to the applicant, respondent and CAFCASS Legal. (Order not part of approved judgment)