Case No: B4/2008/0935A
Neutral Citation Number: [2008] EWCA Civ 889
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE BIRMINGHAM CIVIL JUSTICE CENTRE (?)
(HIS HONOUR JUDGE CARDINAL)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Tuesday, 24th June 2008

Before:

LORD JUSTICE HUGHES

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IN THE MATTER OF F (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 Hughes:

1.	Father seeks permission to appeal against a series of orders that were made by HHJ Cardinal on 30 November 2007.  They all arise out of a longstanding dispute between the parents over what, if any, contact father should have with his daughter.

2.	She was born on 3 April 1999, so she was eight-and-a-half at the time of the judge’s order and she is now nine.  What the orders do, in effect, is to prevent any contact, direct or indirect, indefinitely.  They are coupled with injunctions restraining father from molesting mother and making harassing enquiries at her place of work, or with social services or elsewhere, and coupled also with occupation orders which are designed to prevent him from harassing mother and/or daughter at their home.  There was also an order under section 91(14) of the Children Act 1989 preventing father from making further applications without leave until February 2011; in other words a little over three years from the time of the judge’s order.

3.	There is no doubt that these are severe orders, if viewed from father’s point of view.  It is ordinarily in the interests of any child to know both parents.  Family courts have daily to cope with parents whose own behaviour has made it very difficult for them to maintain any connection with their children.  Courts are used to struggling to keep such contact going if they possibly can.  They are also used daily to dealing with separated parents who each make against the other grave allegations and of whom either one or, quite often, both take the stance that they have been unfairly treated not only by the other but sometimes by the court if they have lost.  Sometimes that is correct, and courts are used to examining whether that is what has happened or not.  In the end, however, the lodestar in all these cases is not whether the results are severe for one or other parent but where the best interests of the child lie.  

4.	I ought to deal with one matter first.  Mother has written to the court to say that father cannot appeal because of the order under section 91(14).  That is simply wrong.  The 91(14) order governs future applications to the county court about the child, and father cannot make those without making them through the filter of the judge.  The idea is to prevent mother from being troubled unless there is something in it, but no-one can prevent father from seeking this court’s permission to appeal and the decision about that is going to be made here.  On the other hand, what is often not understood is that the Court of Appeal does not hear cases of this kind afresh.  What we do is to examine cases to see whether the judge below has made an error of law or whether he has reached a conclusion which is simply outside the range of permissible conclusions.  If either of those is arguable then this court will hear the appeal.  If neither is, then it will not and cannot.

5.	The vital statistics of this case are these.  The parties were married on 26 December 1996.  They separated in July 2002.  The daughter of the family was born, as I have already said, on 3 April 1999; she was just over three at the time of the separation.  There was contact of some kind until 2003.  Since then there have been protracted proceedings.  So far as relevant, they are recorded in HHJ Cardinal’s careful judgment, now the subject of this application, though it is fairly clear that these are only the principal landmarks in what have been repetitive applications, no doubt stressful for everybody.  

6.	There have been unpleasant incidents and allegations in the past.  This was one of those cases on which the truth of complaint and cross-complaint needed to be resolved and, accordingly, an earlier judge, District Judge Cleary, embarked upon the hearing of the evidence in February 2005 in order to find out what had happened.  He found that, of ten allegations of abuse or violence by the father, nine were made out.  Father was assessed by the judge as volatile: he had threatened to snatch the child, he had broken windows; on one occasion he forced mother to barricade herself into her home.  He had written wholly inappropriate letters to the child in an attempt, in his own words, to “get at” mother and he had broken every one of mother’s windows of her car.  Those were the findings.  Some of them have been disputed; others not.  

7.	By that time the father was also giving notice that he proposed to make an application for contact once every year.  That was undoubtedly the reason why District Judge Cleary at that stage made an order under section 91(14), providing the filter of the judge’s approval preventing mother and daughter from being troubled by the applications unless there was something in it.

8.	The judge who heard the case added this: 

“If the father doesn’t change, if he doesn’t address the issues highlighted in my judgments and in the report prepared by the CAFCASS officer, if he doesn’t recognise or address those matters, then the child’s wait to see her father will, I am afraid to say, be forever.”

Those are bleak words but they were justified by the findings that the judge had made.

9.	Orders which were then made were subsequently and flagrantly broken by father and the matter came before HHJ Griffiths-Jones in January 2007.  There were four separate breaches of the order preventing father from molesting mother, and the judge sentenced him to three months’ imprisonment suspended.  That is an indication that the case was viewed very seriously.  It is an unusual order to make.

10.	The father had sent a Christmas card, directly against the order, he had been making enquiries about his ex-wife’s working hours where she worked and he had written a number of letters.  This judge, the second judge, HHJ Griffiths-Jones, assessed the position as follows.  He said of father: 

“It shows a complete lack of wisdom and sensitivity on his part to think that this would do anything but upset [and then he mentioned the child’s name] on receiving it.”

11.	At the present hearing now under discussion, HHJ Cardinal found that father’s attitude to mother remained insulting and abusive, and indeed he was insulting and abusive about her in front of the court.  He had gesticulated and been abusive.  The judge was quite clear, having ample opportunity to assess the position, that father was persisting in saying that he simply could not accept that he had ever done anything wrong.  He denied that he had ever said anything adverse about mother and, as the judge said, sadly that was not true.  He insisted that he had never been guilty of domestic violence and sadly that was not true either.  

12.	It is a great pity and it is very sad from the point of view of the little girl that the position here is that father regards this as a fight.  He is wrong about that because the only way he is ever going to regain contact is to accept the findings, even if he cannot bring himself to own up, but at least accept it and say: “Well I don’t agree, but I will take advice and show that there is no risk of me behaving badly in future.”

13.	The other sad side of this case is that the child is expressing extremely, indeed unusually, strong views neither to see, hear of or even discuss her father.  She is otherwise a perfectly happy little girl.  That is a very sad state of affairs.  The father says that the CAFCASS officer who reports this has failed to understand the way in which the child’s mind is being poisoned by mother.  Of course the child cannot be immune to mother’s strong feelings about father -- there is no way that that can be prevented -- but CAFCASS officers are extremely used to making very extensive allowance for that.  They are very used to seeing through things which children have been taught to say and they are very used to assessing real emotion when they see it.  The consistent reports here have been that any sort of contact with father would cause this child quite intolerable distress.  

14.	Today father asks that some order be made by somebody enabling social services to take the place of CAFCASS.  There is no basis for that but he has approached social services and they see no reason to intervene.  There is nothing that this court can do about that and indeed there is no reason to because the child’s views are, I am afraid, very clear.  

15.	The judge reached the unhappy conclusion that father’s behaviour, however well-meaning (he did not say that it was well-meaning, but I add “however well-meaning”):

“has caused countless days and times of pain to the child let alone to mother and he is quite unable to see it.  He cannot appreciate that hurting mother and her family makes his daughter suffer as well.”

16.	As additional material, I have a very sensible letter from father’s mother.  She says in it that she knows that her son can be, as she puts it, “silly” at times but she says that if he is aggressive, it is just because he is frustrated.  Anyone can sympathise with grandmother but the problem for the judge in this case and in others like it is whether father for whatever reason can be relied upon to make contact work for the child not for him.  It is the child’s right not his, and it is the child’s interests which matter.  Sadly the judge’s conclusions that it simply could not work are, I am afraid, unassailable.  

17.	Father adds these complaints.  Firstly that the judge undermined him on account of his being a litigant in person.  That is a reference to a remark that the judge made when father complained that he had spent a lot of money on these cases and I am sure he has.  But there is no question of the judge’s decision having been influenced by father being a litigant in person because both parents were litigants in person in front of him.  Secondly, father complains that the judge was wrong to accept the previously made findings of fact.  He did point out that they had not been appealed but that is not the reason why they are accepted.  They cannot be reinvestigated.  There can only be one trial of what has happened and there is no suggestion that there is any fresh evidence or anything of that kind which could justify re-investigating them.  

18.	And lastly, father complains that the order which enabled mother to change the child’s surname was “astounding and immoral”.  It is certainly an exceptional although not very unusual order.  It is made only when it is necessary in the interests of the child.  The judge was entitled to come to the conclusion that it was necessary here.  It is no comfort to father to encourage him in the view that this court could, on the facts of this case, interfere with the orders which are made below, because it could not; there is no basis of challenge to the orders which the judge made.  They were, I am afraid, in the end the result of father’s own approach to the problem.  I would like to hope that even now he will begin to understand that he can only ever hope to regain contact with this child if he accepts that he has been wrong in the past and sets out to demonstrate that he can be relied upon to cause no pain in future. 

19.	At this stage I am afraid all that I can say is that permission must be refused; there is no basis for it.  

Order: Application refused