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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 >> D (A Child), Re [2009] EWCA Civ 754 (24 July 2009) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2009/754.html Cite as: [2009] EWCA Civ 754

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
Her Honour Judge Laura Harris on 27 April 2009
in the Chelmsford County Court.

		Royal Courts of Justice Strand, London, WC2A 2LL
		24/07/2009

Lord Justice Wall :

1. This is an application by Mr. Flavio Marchese (the applicant) for permission to appeal against orders made by Her Honour Judge Laura Harris on 27 April 2009 in the Chelmsford County Court. I heard oral argument from the applicant, who was assisted by an Italian interpreter on 1 July 2009. I decided, both in the interests of time and because the applicant's first language is not English, that it would be preferable if I were to put my decision into writing. This I now do. I should say that I have read, and re-read all the papers made available to me by the applicant, including the CAFCASS report dated 25 March 2008.

The nature and function of the Court of Appeal

2. I need to explain to the applicant the nature and function of the Court of Appeal on an application of this kind. I have to decide whether or not the applicant should be given permission to appeal to the full court. Rule 52.3(6) of the Civil Procedure Rules 1998 (CPR) which governs these applications, provides that I can only grant permission to appeal to appeal where –

(a) the court considers that the appeal would have a real prospect of success; or

(b) there is some other compelling reason why the appeal should be heard.

3. Many litigants come to this court thinking that it enjoys wider powers than it has. In reality, the Court of Appeal is a creature of Statute. Its day to day operation is governed by CPR. It is a court of review. It does not hear oral evidence. It does not listen to witnesses. It has to ask itself two essential questions in a case such as the present. The first is: did the judge make any error of law? The second is: has the judge exercised her discretion when hearing the case in such a way as to take her decision outside the ambit of what the lawyers call "reasonable disagreement". In other words, was the judge plainly wrong?
4. It is important for the applicant to appreciate that I was not the trial judge. Had I been, I do not know what I would have done. I might have decided the case in the same way as the judge: I might not. However, what I would have done – or might have done – is irrelevant. Provided the judge has stayed within the rules, and exercised her discretion in a way which was properly open to her, there is nothing that this court can do to interfere.
5. My understanding of the applicant's case – and I shall deal with his arguments later in this judgment – is that, in essence, the hearing was unfair and breached his rights under Article 6 of the European Convention on Human Rights (ECHR). The judge plainly had a duty to conduct a fair hearing. But the applicant must also appreciate (1) that the assessment of himself and the mother of his child was a matter for the judge and for the judge alone; and (2) that in cases involving children – and this case is ultimately about a child - judges at first instance enjoy a very wide discretion. It is thus very difficult to challenge their decisions. All that said, however, if I come to the conclusion that the applicant has raised an arguable case, I will grant permission to appeal.

The case

6. This case is about a little girl, whom I will call G to protect her identity. G was born on 3 May 2007, and is thus now 2. The applicant is her father, and he seeks to have contact with her.
7. G's parents have never married or lived together. G was conceived whilst her mother was on holiday in Rome in 2006. G's mother is English and is aged 33. The applicant is Italian, and is aged 28. G is thus a child of mixed heritage. It is, I think, moat unfortunate that the CAFCASS Reporting Officer referred to her in his report dated March 2008 as being of "mixed race". She is nothing of the kind. Her Italian heritage is one half of her gene pool and is very important to her.
8. There is no doubt that the applicant wishes to play a full role in the life of his daughter. To that end he has moved to live in the United Kingdom, and has sought parental responsibility for and contact with G. Unfortunately, the relationship between G's parents has completely broken down, to the extent that there have been cross-allegations of harassment, criminal proceedings against the applicant (in relation to which he was acquitted) and; (1) the judge was conducting a hearing in which she was invited to make findings of fact about the applicant's alleged behaviour; and (2) G's mother was seeking injunctions to restrain the applicant from molesting her.
9. The proceedings between G's parents have been long and protracted, beginning shortly after her birth and continuing to date. They have involved numerous applications, court hearings, reports, statements and assessments.
10. The mother's case is that the relationship between herself and the applicant was over by August 2006, well before the birth of G. She also asserts that on 25 April 2007 the applicant began telephoning her, loitering outside her house and in her garden, and arguing with her neighbours. Eventually the police were called and he was warned to move on and not to return. The mother asserts that the father returned later that evening and again the following day. She says she called the police and when they arrived, the applicant informed the police that he was moving into the house opposite. Later that day, the applicant was arrested and received a first warning for harassment.
11. There then followed considerable communication between the parties through emails, text messages and telephone calls both before and after the birth of G on 3 May 2007. Since the applicant's arrival to the UK in April 2007, he has mostly lived in England at various addresses throughout Essex.
12. On 16 May 2007, the applicant made an application to the Southend County Court for: (i) a specific issue order for a DNA sample to establish paternity; (ii) a parental responsibility order; and (iii) a contact order. On 6 June 2007, the mother made a cross application for (i) a residence order; (ii) a prohibited steps order to restrain the applicant from removing G from the jurisdiction of England and Wales; and (iii) a specific issue order that the applicant undergo a psychological assessment.
13. In support of her application, the mother asserted that the applicant had been extremely obsessive, intimidating and controlling in relation to her, and had bombarded her with emails, telephone calls and visits to her home and work place to such an extent that she had involved the police who had given him a first warning to cease harassing her. She also asserted that the applicant had threatened to remove G to Italy.
14. On 14 June 2007 a directions hearing took place before a district judge. His order provided (inter alia) that G was live with her mother until further order, and that there was to be a DNA test to ascertain whether the applicant was G's father. The district judge also refused an application by the applicant for the christening of G not to take place in July 2007 and directed the applicant to file and serve (1) evidence from any medical professional whom he has seen in the last 12 months as to his health and in particular as to his mental health, giving details of any treatment he has received; and (2) up to date evidence from his GP as to the state of his health and in particular his mental health.
15. The case came before the district judge again on 13 August 2007. In the preamble to his order he noted the mother's agreement not to remove G from the country for any period in excess of 14 consecutive days, and the court's view that there should be no contact between the applicant and G save in a contact centre. He also recorded the following: (1) the mother's indication that she was willing to allow the applicant to have contact with G at a contact centre for one hour a fortnight; (2) the applicant's indication that he was not available to attend the Billericay contact centre as it was only open on Sundays when he was working; (3) the applicant's indication that he could not afford to pay to attend the Fledglings contact centre, which was open on weekdays; (4) the fact that neither the court nor counsel for either party knew of any other local contact centre which was open during weekdays; and (5) the mother's indication that she was not at present pursuing her application for a psychological assessment of the applicant.
16. The order made by the district judge; (1) prevented the applicant from removing G from England and Wales until further order; (2) refused his application for interim contact; (3) directed that the applicant could apply to vary the refusal of his application for interim contact upon providing there was evidence of a local contact centre which he was able to attend; (4) directed that the parties were to exchange and file statements of evidence from all witnesses of fact on which they sought to rely on the issues of residence, contact, and the applicant's application for parental responsibility; (5) granted the mother's application for an order prohibiting removal of G from England and Wales by the applicant; and (6) ordered that a report be prepared by CAFCASS.
17. Various other directions hearings took place over the following months, with directions being given in relation to listing, and the filing and serving of evidence.
18. In September 2007 the applicant was arrested for a second time for harassment and was bailed to attend Basildon Magistrates Court on 19 September 2007. He was granted bail conditions which included a prohibition on contacting either the mother or G and on entering the area in which they lived apart from for appointments with his solicitors.
19. The next significant directions were given on 9 January 2008 by His Honour Judge Dedman. He ordered that the mother make G available for contact with the applicant for one hour per fortnight a the Billericay Contact Centre, the actual day and time of the contact to be agreed by the parties through their solicitors.
20. The CAFCASS report was completed on 25 March 2008 and filed on 7 April 2008. It noted that G played happily with strangers but burst into tears on many occasions upon seeing her father, despite numerous attempts by the CAFCASS officer to introduce them to each other. The CAFCASS officer commented that this was 'unusual' and predicted that any continuation of contact at this stage would be likely to see a repeat of this response from G and that this would not be helpful. He therefore concluded by suggesting the matter be set aside for six months 'chiefly for the purpose of G's development, by which time we might get a more positive response from her towards her father.'
21. On 22 April 2008 the case came before deputy district judge Skerratt for another directions hearing. He ordered the contact centre to carry out an assessment of the applicant's ability to care for G and report to the court on any issues which impacted on his ability to care for her and any recommendations it might have as to the nature and frequency of any contact between the applicant and G.
22. After two adjournments, the applicant's criminal trial for harassment of the mother took place before Basildon Magistrates on 13 June 2008. Both parties gave evidence and the applicant was acquitted.
23. On 15 August 2008, the applicant issued an application seeking a variation to the order made by the deputy district judge and a new interim contact order. His reasons were that the order could no longer proceed as anticipated as the contact centre due to report on him had indicated that it would not be able to do so within the four month time frame they had previously agreed to. They had now indicated their waiting list meant a minimum wait of four to six months.
24. The mother made further allegations of harassment on 10 and 14 September 2008, and an allegation of harassment and violence on 3 October 2008. The case then came before district judge Ashworth on 9 October 2008. By consent, the applicant was granted the leave of the court to withdraw his previous application. The court ordered that the previous order be varied to show Homefields Contact Centre as the agreed contact centre of choice; that the court papers be disclosed to them; and that all other directions remain in force.
25. On 23 October 2008, the mother made an application for an order suspending or terminating all contact visits between the applicant and G. She also sought the applicant's committal to prison for breach of the undertaking given to His Honour Judge Dedman on 9 January 2008 not to molest, harass, interfere, approach, contact or attempt to contact her, to arrive at the contact centre at the scheduled time and leave the area of the contact centre promptly at the conclusion of contact.
26. On 14 November 2008 the case came before Her Honour Judge Murfitt who dismissed the committal application, adjourned the issue of interim contact to be dealt with in January and made various other directions about timetabling and listing. The case then came before His Honour Judge Dedman on 5 January 2009. He ordered (again) that Fledglings Contact Centre carry out an assessment of the applicant's ability to care for his daughter, with particular focus on any issues which may impact on his ability to care for her, and any recommendations they had as to the nature of frequency of any contact.. He also ordered that contact was to be at the direction of the contact centre subject to their critical assessment of the parties and the child, with an expectation that it would take place at least once a week. He gave various other directions relating to timetabling and listing.

Comment

27. I have listed the detail of the proceedings leading up to the decision under appeal at such length because it seems to me that they demonstrate plainly: (1) that the relationship between G's parents has indeed, sadly, broken down irretrievably; (2) that contact has been attempted unsuccessfully; (3) that the applicant's no doubt genuine wish to play a full role in the life of his daughter has seriously backfired; (4) that the court is faced with a very difficult task in seeking to implement any contact between the applicant and G; and (5) that the judge was required to conduct a fact finding hearing designed (from the mother's perspective) to establish that the relationship between the adults was such that any contact between G and her father was simply not a practical proposition.

The decision appealed

28. The case came before Her Honour Judge Harris for a three day hearing on 21, 22 and 23 April 2009. Both parties were represented by counsel. The judge was presented with a schedule of allegations and selected those which she perceived were relevant to the underlying issues in the case.
29. The judge, in broad terms, found that the allegations were made out. She found the mother to be an honest witness and an intelligent person; that she did not embellish her account and was wholly genuine when describing her fear and intimidation. She found that the applicant was also intelligent and highly educated. However, she preferred the mother's evidence and agreed with counsel for the mother, that the applicant was animated, effusive, at times aggressive and at times emotional. She did not find him to be a truthful witness, but commented that at times it was as though he had convinced himself of the truth of what he was saying.
30. One particular finding stands out. The judge noted that G attended a nursery, and that at one point the mother had been provided with the nursery's newsletter which stated: "We have also recruited three new members of staff, Charlotte, Flavio and Cassandra. They will start as soon as two references and their CRBs come through, so watch this space." The mother said that she then telephoned the nursery who confirmed that they had offered the job to the applicant (the "Flavio" in the newsletter) subject to references. The mother said she then removed G from the nursery.
31. In the event, the applicant did not begin work at the nursery as he did not produce the required references. He told the Court that he did not know G attended the nursery and that although he was a computer engineer with a masters degree in IT, he wished to work in childcare and to prove to the court that he could be a good father to G. The judge commented that: "it strains credulity to breaking point that he did not know G was at the nursery. I find this action on the father's part to be particularly disturbing as it took a great deal of resourcefulness and determination to go to the lengths of getting himself a job at the nursery. This is a bizarre and troubling episode."
32. The judge made other findings which were unfavourable to the applicant. These included findings that the applicant had loitered outside the mother's home with his hat and scarf pulled up over his face; that he had followed the mother in her car, and assaulted her on 3 October 2008 in circumstances in which when she was walking along the street at around 10pm, with G in the pram; that he had grabbed her from behind, dragged her backwards from the ground and threatened to shoot her.
33. The judge thus concluded that G had been subject to serious disruption as a result of the applicant's actions. She found that contact would never work if the mother remained frightened of the applicant. She also noted that the applicant potentially has much to offer G, in terms of her Italian extended family, his intelligence and his education. She considered that there needed to be a psychiatric or psychological assessment of the applicant before contact could progress, and that the applicant needed to demonstrate to the court and to the mother that he could refrain from harassing her for a period of at least six months.
34. The order made at the conclusion of this hearing records that the applicant had indicated to the court that he was not prepared to go through a psychiatric or psychological assessment. The mother undertook not to remove G from the jurisdiction of England and Wales without giving three months notice to the applicant. An injunction was made, prohibiting the applicant from molesting, harassing, interfering, approaching, contacting or attempting to contact the mother save through her solicitors and from entering or attempting to enter various locations marked on maps annexed to the order. The court also gave various other directions on listing and timetabling, including the adjournment of the application on contact until 23 October 2009, reserved to Her Honour Judge Harris.

Grounds of appeal

35. The applicant seeks permission to appeal against this decision. He raises a number of points under four particular headings. They are: firstly, the time-tabling of the hearing; secondly, what he calls "language as a discrimination"; thirdly witnesses and evidence; and fourthly, gender and nationality as a discrimination. The applicant argues that all four grounds of appeal amount to a breach of his ECHR Article 6 rights. I will take each of these in turn.
36. The first ground on which permission is sought is in relation to the length of time allowed for the hearing. The applicant feels that the time allocated to this matter was insufficient. In relation to this ground, the applicant must appreciate two particular matters. Firstly, judges at first instance, like Judge Harris, make assessments of adult credibility – in other words, they have to decide who they believe. Only the judge on the ground can do this, and two days in court is amply sufficient to enable them to do so.
37. The Court of Appeal cannot assess witness credibility. I did not hear the evidence. The question I have to ask is simple: was it open to the judge to believe the mother and disbelieve the applicant? The answer to that question, is plainly yes. In this context, in my judgment, a three day fact finding hearing in a contact dispute, albeit a complicated, long running and bitter one, is plainly sufficient. This is particularly so when, as in this case, the decision at the end of the hearing is not, and does not purport to be, the final disposal of the matter, listing as it does, until a final hearing for October 2009.
38. The second point which the applicant must appreciate is that three days of court time is a precious resource, and much more than would usually be allocated to a case of this nature. On any view, however, the time allotted was plainly enough. There is, in my view, nothing in this ground of appeal.
39. The second ground is, I think, stronger. The applicant is Italian and had to give evidence in English. English is plainly not his first language. The applicant may well have felt pressurised into agreeing to speak in English in order to avoid irritating the judge, a fact which he may have felt would impact on the outcome of the case.
40. There is, however, no evidence at all that the judge pressurised the applicant. He was, I remind myself, represented by counsel. Furthermore, it is in my judgment unlikely that the result would have been different is the applicant had given all of his evidence through an interpreter. Counsel would have made submissions on his behalf, and the applicant had and took the opportunity to submit various witness statements to the court. As I understand it, he gave at least some of his evidence through an interpreter, and he had been observed by a CAFCASS officer who also gave evidence to the court. In other words, the applicant had ample opportunity to present evidence to the court, none of which seemed to persuade the court towards a finding that it was in his daughter's best interests that she have contact with him at this stage.
41. In my judgment, there is nothing in the third point. The applicant asserts that he submitted evidence which was genuine, reliable and from third party bodies, independent of both parties. He argues that this evidence has been discarded in favour of evidence provided by The mother and her mother, whose evidence cannot be considered independent as they are related to one another. He argues further that new allegations were made against him by the mother and her mother during the hearing before Her Honour Judge Harris, and that the court was misled to believe that a restraining order was in place and breached, whereas in fact this did not happen and the person who should have been a key witness on the matter was not called.
42. I remind myself, again, that the applicant was represented by counsel and that the evidence which the judge accepted or rejected was, essentially, a matter for her. Moreover, the judge records all of the evidence submitted and plainly considered it all. She records:-"I have read a very large bundle and heard oral evidence from the mother, her own mother. and the father. .Since the conclusion of the hearing I have also received certain additional documents from the father which I indicated he could send in, and I have also read those documents." The fact that they did not assist the applicant in achieving the outcome he desired does not mean that they were not considered. In any event, given; (1) that the court must act in the best interests of the child; and (2) the findings made against the applicant, including assaulting the mother whilst G was in her care and of attempting to get a job at G's nursery, along with the observations of the CAFCASS officer regarding G's consistently negative reaction to him, it is unlikely that anything he submitted could have led to the outcome he sought.
43. In my judgment, there is also nothing in the fourth ground. The applicant seeks to argue that he has been discriminated by way of his gender and nationality. He argues that during the hearing before the judge he heard lies and defamation about himself which were so extreme he felt almost faint. He notes that the judge referred to him as 'white and contort' and feels that this is a judging of his Italian manner by English standards which is unlawful and unfair and contravenes his right to respect for freedom of expression and cultural belonging. He argues that the Court ought to know the standards of Italian society and take into account Italian norms when interpreting his behaviour, which is not violent or aggressive, but instead a normal way of communicating in his culture.
44. I am unable to accept these submissions. I reject out of hand any suggestion that the judge was biased against the applicant. To the contrary, she was of the view that he had much to offer his daughter, and that her Italian heritage was of considerable importance to her.

Conclusion

45. The applicant cited a number of authorities to me. I do not think they help him. This is a case which turns on its facts and on the judge's assessment of witness credibility, not on any point of principle or law. The English court is always concerned to attempt to ensure that the child of separated parties – particularly where one of them comes from abroad – retains a good relationship with the "absent" parent. I see no departure from that principle in the judge's judgment.
46. As I have already stated, in order for permission to appeal to be granted, the applicant needs to establish either that the appeal has a real prospect of success or that there is a compelling reason for granting permission. In my view these requirements have not been met and so permission to appeal will be refused.
47. It is not for me to advise the applicant, but I propose to add a few words to this judgment, in the hope that they will help him. Children are not assisted by ongoing disputes between their parents. Many contact disputes have nothing to do with the children involved: they are a battle between the adults who are litigating over the unfinished business left behind by the breakdown of their relationship.
48. My impression of this case is that the applicant is genuine in his wish to form a lasting relationship with his daughter, but has gone about seeking contact with her in a way which – in the English phrase – resembles a bull in a china shop. He has certainly antagonised G's mother. The applicant has a whole lifetime in which to build a relationship with his daughter and the English court will regard it as important that he should, if possible, develop a proper relationship with her. But he will not do so by seeking to enforce his will over the child or her mother, and he will certainly make his task much more difficult if he continues to antagonise G's mother. Quite how he chooses to live his life over the next few years is, of course, a matter for him. But he will not advance his cause by continuing the course of conduct found by the judge.
49. For all the reasons I have given, I do not think that an appeal in this case would stand any prospect of success, and the application for permission to appeal must be refused.