Case No: B4/2008/0567
Neutral Citation Number: [2008] EWCA Civ 631
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE NORWICH COUNTY COURT
(HIS HONOUR JUDGE RICHARDS)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Tuesday, 20th May 2008

Before:

LORD JUSTICE WALL
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IN THE MATTER OF J (A CHILD)

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THE APPELLANT APPEARED IN PERSON.
THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.

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Judgment
Lord Justice Wall:

1.	This is an application by Mr HCJ for permission for appeal against an order made by HHJ Richards, sitting in the Norwich County Court on 8 February 2008.  The application concerns Mr J’s son, C, who was born on 28 June 2001 and so will be seven next month.  Mr J had made an application for C to live with him.  The judge refused it and confirmed the previous order that C should reside with his mother. However,  he also refused the mother’s application to vary contact and kept in place what I understand to be the current arrangement whereby Mr J sees C for alternate weekends and half of the school holidays.  The judge also went on to make an order under section 91(14) of the Children Act for a period of three years.  I simply pause at this point to note that what he appears to be doing in that respect is, if not continuing, at least copying the previous order made by HHJ Curl  which had prevented applications to the court for a two-year period.

2.	The principal complaint which Mr J makes about the judgment is that he did not receive a fair trial because the case was not properly investigated.  What had happened was that instead of asking a CAFCASS officer to investigate, the judge at an earlier directions hearing asked the local authority to do so. He did that because the local authority had previously been involved both with C but, perhaps more importantly, with C’s half-brother, G, who is now almost 18 and who has what I think one could call a rather chequered career; certainly there have been times when he was not living with his mother, there were times when he has been in local authority care and so on.  And one of Mr J’s principal anxieties, if I may put it very crudely, is that C should not go the same way. He  therefore he wanted C to live with him.  As I say, Mr. J has very substantial contact with C in any event.  

3.	The principal defect in the section 7 report about which Mr J complains is that his mother (that is, C’s mother) would not allow C to talk about his wishes and feelings and the officer in question spent some time in his report discussing this and the difficulties he had in relation to it.  He consulted his superiors about it and indeed Mrs J wrote a letter to his superiors, which the officer attaches to the report.  But it was quite clear that whenever the officer discussed Mr J,  or mentioned Mr J to C in his mother’s presence C looked at his mother for approval before he said anything and Mr J submits, with some force I think, that in these circumstances, the officer did not  do his job properly; that there has not been a proper investigation; that C’s wishes were not fully before the court as indeed they should have been; therefore the investigation was defective and there should be a rehearing, at which CAFCASS should be asked to advise and to produce a report.

4.	Mr J also submits that C does / did not have a healthy upbringing in the household of his mother and with G when G  is / was there; that there have anyway been a lot of vicissitudes and it has been unstable and C has as a result suffered from what Mr J believes to be psychological as well as some physical abuse.  

5.	Mr J therefore feels quite strongly that C’s voice has not properly been heard in the proceedings.  He says the same effectively happened with G and he asks, rhetorically, : “When will anyone listen to C?”  His case before the judge was that C wanted to come and live with him, had said so and of course that had not been picked up or reported by the section 7 reporter.  

6.	I hope that is a reasonably fair summary of the principal allegation that Mr J makes.  He has put in a very concise and straightforward Grounds of Appeal, which runs to ten paragraphs which I have attempted to summarise.  

7.	Most unfortunately,  I had asked for this case to be listed at 12.00 because I was aware that Mr J was coming from Bury St Edmunds.  The case was, however,  despite my instructions,  listed at 10.00.  Mr J was here but I was not in a position to hear the matter then.  The result has been that the argument and Mr J’s submissions finished just before lunch and I therefore took the opportunity over the short adjournment of re-reading both his Grounds of Appeal and the judge’s judgment as well as the report from the section 7 reporter.  

8.	As I warned Mr J at the beginning of his argument,  the difficulty he faces in this sort of application for permission to appeal is inevitably that the judge who heard the case is exercising a broad discretion and the question for this court is whether it was open to the judge to make the order which he did.  In the light of Mr J’s criticisms of the report from the section 7 reporter it is also, I think, appropriate for me to point out that the section 7 reporter does not decide the case.  The case is always decided by the judge; the judge has to apply specific criteria based on the paramount welfare of the child, but of course the judge does have to have consideration for the child’s wishes and feelings,  and Mr J is entitled to make the point that the judge was deprived of those in this case by the failure of the section 7 reporter properly to discuss the matter with C.  

9.	It is, however, right to say that the judge in his judgment takes some pains to consider the question of C’s wishes and whether, if they had been fully ascertained, it would have made any difference and he comes to the conclusion, weighing up the competing arguments as best he could, that it would not have made any difference, principally because C was six and that the wishes and feelings of a six-year-old (even if he is nearer seven than six) are not determinative of any application for residence and indeed, since C has parents who clearly still maintain a great deal of antipathy towards each other, it may be that C’s reticence was anyway a method of self-protection or distancing himself  from his parents’ disputes.

10.	So the judge took the view that even if he had had evidence about C’s wishes and logically, therefore, even if he had been satisfied that C did want to move to live with his father it would not have weighed very heavily in the scales given C’s age and his personal circumstances.  But what did impress the judge, I think from reading the judgment, was that C was doing well at school, his teachers spoke enthusiastically of him and it was undoubtedly the fact, because he and his father live in different locations, that if C were to move to the care of his father he would have to move schools and that was something which the judge was not happy about.  

11.	And so the judge, doing the best he could and weighing up the various considerations in the case, came to the conclusion that C should continue to live with his mother.  There had been previous proceedings in which the same result had been achieved.  The judge said he came to that conclusion because he was satisfied that C was settled, happy, growing and thriving in his present environment,  and that his mother was providing appropriately for his emotional and physical development.  He did not think that history was repeating itself; so far as C and G was concerned,  they were entirely different people and therefore, since C was doing well at school and was described by his school as “settled, sociable and happy with lots of friends” as well as doing well academically the judge took the view that it was appropriate in those circumstances for the school to have, as it were, the last word on that particular subject so far as wishes and feelings were concerned.

12.	The judge therefore took the view that the status quo should prevail and that C should stay where he was.  He remained concerned about the relationship between C’s parents and warned them of the unfortunate effects that might have on the child but, that said, both the fact that C appeared to be reasonably well and happy and was flourishing at school were sufficient for the judge to reach the conclusion that he did.

13.	So I have to ask myself did the judge make any error of law in reaching that conclusion? The answer is plainly “no” because he applied section 1 of the Children Act 1989 and he looked at the matter through the prism of the best interests of C, so he got the law right.  Was he entitled to maintain the status quo given the flawed section 7 report?  That is a question which has troubled me but I have come to the clear view that he was.  CAFCASS officers, Section 7 reporters, court advisers do not decide the case; the judge does.  The judge considered the question of the flawed report with considerable care.  He expressed anxiety about it, weighed it carefully in the balance and came to the conclusion that it was not conclusive against residence with his mother.  And in those circumstances, as I indicated to Mr J at the beginning, whether or not I would have decided the case in this way or whether or not another judge might have decided it in that way, this judge was entitled to decide it as he did and in those circumstances it would not be open for this court to interfere with the judge’s discretion.

14.	The judge also imposed a three-year section 91(14) order.  Once again  he  directed himself appropriately as to the leading case, Re P (section 91(14) Guidelines) (Residence and Religious Heritage) [1999] 2 FLR 573.  He looked at the various factors in C’s life and he came to the conclusion that since Mr J was enjoying very substantial and appropriate contact he should prevent further applications for a period of three years.  Once again that seems to me a matter of discretion and if there is a crisis or if the judge is proved wrong in one or other aspects of his judgment then it will of course be open to Mr J to go back to the judge to ask for the section 91(14) order to be lifted.

15.	But for those reasons I have come to the view that the judge was entitled to reach the conclusion that he did.  Mr J realistically accepts that if he is right there would have to be a rehearing before a different judge and that I can hardly conceive as being in the interests of C.  C is still only six; he has a large amount of life still ahead of him.  Mr J is fortunately enjoying very substantial contact with him and who knows what the future will hold?  But for this occasion in my judgment the judge was entitled to do what he did and therefore I do not think an appeal would have any reasonable prospect of success as well as exacerbating, as it undoubtedly would, the relationship, which is already bad, between Mr and Mrs J.  

16.	For all those reasons, therefore, I have decided that the application must be refused.  

17.	I will, however, as Mr J is in person, direct that a copy of this judgment be transcribed at public expense so that if the matter does come back before the court it may be that Mr J will be better able to persuade the judge that CAFCASS should be engaged rather than the local authority.  He did not appeal the order for the section 7 report but I cannot criticise him for that because he did not know what it was going to contain, but should there be a further application it would seem to me that it would be appropriate for CAFCASS to be engaged and therefore I think it sensible that Mr J should have a copy of what I have said so that if necessary he can use it in any future application.

Order: Application refused