Case No: B4/2009/1011

Neutral Citation Number: [2010] EWCA Civ 470
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: Wednesday 13th January 2010

Before:

LORD JUSTICE THORPE
 LORD JUSTICE WALL
and
LORD JUSTICE RIMER
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IN THE MATTER OF G (A CHILD)

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The Appellant appeared in person

Ms Fiona Baruah (instructed by HKB Wiltshires Solicitors) appeared on behalf of the Respondent.
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Judgment
Lord Justice Wall:

1.	This is an application by Mr Goodman for permission to appeal against orders made by HHJ Richards sitting in the Norwich County Court on 16 March 2009.  Mr G appears in person and the case is, in many ways, both untidy and unsatisfactory, certainly from this court’s perspective.

2.	It centres around Mr G’s daughter, V, born on 15 July, so now three-and-a-half.  I had the case on an application for permission to appeal in November of 2009, and what concerned me about it was this: that the judge had made an order that Mr G was to have no contact of any kind with his daughter and he was not to make any application to the court for contact or residence without the court’s permission for a period of five years, and it struck me on hearing Mr G at that point that this was a harsh order; indeed it is conceded to be harsh by Ms Baruah, who has been very helpful and appears today for the child’s mother, and therefore I thought that it was at least arguable that that order should be interfered with by this court, hence the case today.  

3.	Mr G, who, as I say, is in person, is convinced that he has not had a fair hearing before the judge because the judge has not had placed before him documentation which Mr G has had throughout available and which, if the judge had seen, would have altered the judge’s conclusion.

4.	Speaking for myself, I propose to look at this case purely and simply from the point of view of the little girl and what is perceived to be in her best interests. She is, if I may put it so, of mixed parentage insofar as, although Mr G now lives in England and is English, her mother is, as I have said, Lithuanian and has come from Lithuania and lives in England at the moment with the little girl.  There have been several previous applications to this court -- three in all -- by Mr G for residence and contact; and, although he feels passionately on the subject, it seems to me very clear that, since the little girl has throughout lived with her mother and has remained in England with her mother, in my judgment the order for residence which the judge has made is one which cannot possibly be interfered with by this court.  What concerns me, however, is the combination of the fact that the judge who made an order for no contact, and positively dismissed the father’s application for contact, was at the same time making an order under Section 91(14) of the Children Act for a period of five years.  The consequence of that, if no application was permitted to be made in that period, would be that in five years’ time, when the little girl was some seven-and-a-half years of age, the father would be entitled to come back to the court to ask for contact but would no doubt be met with the argument “well, you have not had any form of contact for the last seven-and-a-half years.  What have you got to offer the child?”

5.	For the mother Ms Baruah makes a number of good points.  She says that the mother had found dealing with the father very difficult over the years.  She makes allegations of violence against him and allegations of excessive alcohol consumption.  It is unfortunate that no findings of fact have ever been made at any stage by a judge in relation to those matters, and although Mr G was given the opportunity to place evidence before the court, in relation in particularly to his alcohol consumption, he did not do so; so there are allegations and counter-allegations and no doubt Mr G feels very strongly on the subject of the mother of his child and seeing his child.

6.	As I say, the judge did not make findings of fact, but dealt with the case on the basis which may, however, in the event prove to be inaccurate.  Firstly, he was clearly of the view that, whilst Mr G was before him on that occasion, he was essentially resident in Panama, therefore the practicalities in relation to contact were substantially reduced; and secondly, he does appear to have based his rejection of any form of indirect contact on a social services report which was more than two years’ old and which said that contact was impracticable because there was no means of it being monitored.  The judge gives no other reason for refusing direct contact or indirect contact than that, and in my judgment that is not a satisfactory reason for directing contact.  Equally it seems to me, on balance, that the period of five years is excessive.  

7.	The question therefore is what, if anything, we can do?  I fully appreciate that the judge was exercising his discretion.  I fully appreciate he had the opportunity of observing Mr G in the witness box, and I do not underestimate the stress on the child’s mother from Mr G.  Mr G passionately informs us that he has not done anything wrong; that he is not intimidating and that he is not in any way an unfit father; but it does not take a great deal to appreciate -- and he may not understand this -- that he could be perceived to be intimidating by a third party, and particularly someone with whom he has had an intimate relationship that has come to an end; and in my judgment there is a case that the mother is entitled to say “if this man can demonstrate that he is going to be a calm, sensible, proper influence on his child then in due course he may well be able to have face-to-face contact”, but at the moment her anxiety is such that she cannot contemplate that taking place, and I have some sympathy for that view.  

8.	But I remain of the view that what the judge said was, on the whole, excessive: the period was excessive and the refusal of all forms of contact were excessive, and in my view that is an error of principle with which this court can interfere on the basis that it was based on and in relation to one aspect, a misapprehension as to the facts, and, as to the other, a reason which is not fully articulated, and in those circumstances it seems to me that what should happen is this: that over the next two years Mr G should be given the opportunity to send cards and small gifts to his daughter.  He says he knows their address, and so any suggestion that we need an independent third party may not be necessary, and if he can demonstrate in that period that those presents are appropriate, that the messages he sends are calm and suitable; and if he is able to accept the fact that his daughter is living with her mother and will continue to live with her mother throughout her minority -- if he can do that for a period of two years, then it seems to me he should then be able to apply for a more direct form of contact.  It may in the first instance have to be supervised, I do not know, but, speaking for myself, what I would do in these circumstances, having carefully read the papers and the judgment of the judge, would be to substitute for the period of five years a period of two before any application can be made without permission, and I would order that there should be indirect contact during that period -- at Easter, her birthdays and Christmas, by means of cards and small presents, and it goes without saying that if at the end of that period Mr G has not been able to demonstrate the calm which we think he should be able to demonstrate, and if the presents and cards have been unsuitable, then the judge may take a very dim view.  But if, on the other hand, he is able to demonstrate that he is calm, that he accepts the status quo and that he is able to abide by an order of the court which enables him to send cards and small presents, then it may well be that the judge would enlarge the contact period.

9.	Speaking for myself, therefore, I do take the view that, with all respect to him, the judge, albeit exercising his discretion, went too far in cutting off all contact without any really good reason for doing so, and went too far in imposing a period of five years, and therefore I would propose a period of two years, during which time there should be the indirect contact I would propose.  To that extent I would grant permission to appeal and allow the appeal.

Lord Justice Rimer:  

10.	I agree.

Lord Justice Thorpe:  

11.	I also agree.  I only add that the case that is before us today is radically different to the case that was before the judge in the spring.  It is clear from paragraphs 29 and 47 of his judgment that he found the father to be habitually resident in Panama, offering to return to this country if contact or residence orders were made in his favour.  Today he presents himself as a father habitually resident in this jurisdiction, in close proximity to the mother.  That seems to me a highly significant shift and one that is duly reflected in the orders which my Lord has proposed and with which I fully concur.

Order:  Application granted