B1/2001/0196 PTA

Neutral Citation Number: [2001] EWCA Civ 110
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY DIVISION
(Mr Justice Connell)
								Royal Courts of Justice
								Strand
								London WC2

								Thursday 25 January 2001

B e f o r e:

THE PRESIDENT OF THE FAMILY DIVISION
(Dame Elizabeth Butler-Sloss)

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T (CHILDREN)

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(Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited, 190 Fleet Street,
London EC4A 2HD
Tel: 020 7404 1400
Official Shorthand Writers to the Court)

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The Applicant appeared in person

The Respondent did not appear and was not represented

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J U D G M E N T
Thursday 25 January 2001
1.	THE PRESIDENT:  This is an application for permission to appeal against the decision of Connell J last Friday, 19 January 2001. It is a matter of some urgency because it relates to two occasions of interim contact which will be taking place, according to the order of Connell J, on Saturday of this week, 27 January, and on 10 February. The substantive hearing will be on 22 February, when cross applications for residence will be heard in Norwich by a High Court Judge, Johnson J. 
2.	There is a long and complicated history to this case. On 22 November 2000 Connell J gave a careful judgment in which he set out some of the earlier history. The two children concerned are G, aged now just twelve, and T, who is seven. The family were in Spain. The father brought the children from Spain to England in January 2001 in breach of the mother’s rights of custody. A High Court judge, Wall J ordered a return under article 12 of the Hague Convention. That order was set aside by the Court of Appeal on 18 April 2000, when they held, largely for reasons of G, the elder child, that article 13B and the proviso to article 13 applied; that the views of the child G should be given weight. She refused to return to Spain with her mother and there would be serious risk of return without her being intolerable for T. Since then the children have lived with their father in East Anglia. The mother is currently in London. 
3.	As I said, the final issues of residence will be dealt with next month. On 22 November 2000 there was a contested application in respect of interim contact which was heard by Connell J, who was assisted by evidence from both parties, from the Official Solicitor representing the children and, in particular, by medical evidence from Dr Lucey, called by the Official Solicitor.
4.	The father was very concerned, and so indeed was G, by two major matters. One of them is that the mother has been intoxicated from time to time and she has an alcohol problem. That was a matter which was particularly relevant to G’s views about her mother. The other reason is that both the father and G are of the view that the mother is likely to try and abduct either or both children. According to the father, who acts in person on this application for permission to appeal, it is now principally T they are concerned about. The father believes that the mother might wish to abduct T back to Spain, and that her wish to have custody of him is not so much for the love of her son as by reason of her desire for a property in Spain, in respect of which she requires custody of one child in order for the Spanish court to give her that property. That is no doubt a matter that had will be investigated, if it has not already been, by Johnson J in February. But the two principal matters are the problems of abduction and alcohol. On 22 November 2000, accepting the evidence of Dr Lucey, and of Dr Drummond in respect of the mother’s own psychological problems and her drink problem, the judge decided that it was not necessary for the contact between the children and their mother to be supervised at the supervised contact centre in Norwich Families House. He decided that it was appropriate for the children to have unsupervised contact to their mother, both in or near the town where they live and in London, where the mother is currently living. The father did not accept this. He did not, however, appeal it since, as he said to me, quite properly he tried to make it work. 
5.	On 19 January he went back to Connell J, always acting in person (and, if I may say so, most competently acting in person), and he explained to the judge that G absolutely refused to go on any contact other than supervised contacted, and he was having considerable problems. G had got to the point where she was not cooperative and, although she was very concerned that T might be abducted if she was not there to protect him, she did not wish to see her mother. She gave a number of reasons about the form of contact, the people she was meeting and the way in which she was unhappy about visiting her mother and seeing her mother’s friends and relatives. Connell J heard this, as I say, last Friday. I assume that the mother and also the Official Solicitor as the guardian ad litem were both present on Friday. The judge decided that the order he had made by way of interim contact should continue until the hearing next month. 
6.	We are concerned, therefore, with two occasions, one in London on Saturday and one in East Anglia on 10 February. The father was not satisfied with the second decision of Connell J on 19 January. He applied for a stay of that order, particularly in relation to last Sunday, when there was a contact session. Arden LJ refused a stay. However, because of the urgency of this matter and because there will be another contact visit this coming Saturday, the matter was put into the Court of Appeal for a rapid hearing of an application for permission to appeal, to see whether or not permission should be given. 
7.	The father has addressed me very fluently and has made clear the considerable number of concerns that he has. He remains very concerned that the mother might abduct the children. However, he says that G is even more concerned; that she is now turning very uncooperative and that last Sunday, at a contact session in East Anglia, G actually refused to go with her mother and T went on his own. The father says that he has tried to obey the court order:  he has done everything in his power to make his twelve-year-old daughter go, and he has failed. He considers that it is unreasonable that she should be expected to go; that she has gone through a great deal in this case and it is most unfair that she should be expected to see her mother when she does not wish to do so. 
8.	He also makes the point that the journey from East Anglia to London is for him an extremely trying one, a car journey followed by two trains. We all know, of course, that in East Anglia, as in other parts of the country, the train service has over the Christmas period been very unsatisfactory. In addition, the father suffers a considerable physical disability in his leg. He says that on the last occasion on which he took the children to London it had been snowing, it was icy, they did not get back until nearly midnight and it was a very trying journey. This all contributes to making the contact arrangements very uncomfortable and unreasonable.
9.	The problem for the father is that Connell J, who is a most experienced judge of the Family Division, had all of these points in front of him, both in November and last week - particularly last week, because the efforts by the father to persuade G to go to her mother and his failure to do so were placed, I have no doubt, fairly and squarely before the judge. The difficulty for the father, with his physical disability, of taking both children from East Anglia to London is again a matter which is known to the judge. With regard to the question of possible abduction, the judge had that also well in mind. He took the view in November that: 
“. . . both parents are likely to have learned a lot from these proceedings and I take the view that abduction now by the mother of either child is a remote possibility but no more.”
10.	We are really down to the fact that G will not see her mother, and how is this father expected to make her do so?  Connell J on two occasions has said that G must go, and there was evidence to support him in the view to which he came. I am well aware that there is a limit to how far you can push a girl of twelve into doing what she does not want to do. You cannot pick her up and carry her off as you would with a very small child. The father on Sunday asked her to go with her mother. She expressed to her mother that she was not prepared to go and the mother took T on his own. 
11.	There is no penal notice on this order. Looking at it, as I must do, as a member of the Court of Appeal, this was an exercise of discretion by the judge, who had knowledge of all the relevant facts on 22 November and had, of course, a reminder of those plus the up-to-date facts in January of last week. Unless the father can show that the judge approached the case in the wrong way - that he took into account things he should not have taken into account, or did not take into account what he should have done, or otherwise got the decision plainly wrong - the Court of Appeal will not interfere. The jurisdiction of the Court of Appeal is in these family cases extremely limited, as the House of Lords has told us. Much as we might sometimes wish to interfere with what trial judges do - I would not suggest that I would like to do so in this case, but even if did - I would not as a member of the Court of Appeal have the right to do so, because the House of Lords has said that I cannot. This judge had the evidence on which he could come to the conclusion to which he came. He knew that G does not want to see her mother otherwise than at a supervised contact centre. He knew about the fear of G - which may, but may not, be justified; the judge thought that it was not unjustified, but that the possibility was “remote” - that her brother would be kidnapped; and of perhaps the rather lesser fear, but nonetheless a fear, which the judge described as “not . . . groundless” that she will attend contact while drunk. The alcohol issue has not been raised before me today so I need say no more about it. 
12.	I cannot see, looking at this case, that the judge has approached it in the wrong way or, standing back and looking at it, has come to an obviously wrong decision. There are two contact periods only with which we are concerned. All the problems that the father has referred to me were before the judge. I can see no grounds for granting permission to appeal because, in my view, the application is hopeless. It will be a waste of the father’s time and a waste of the time of everybody else. 
13.	I recognise that there is a limit, as I have already said, to how far one pushes G into actually going with her mother, but I warn the father that he must take G to London on Saturday and he must not be instrumental in preventing G from making up her own mind whether she will or will not see her mother with T. T at the moment does wish to see his mother. Whether that is because he is at the moment being wooed by presents, or because he genuinely misses his mother, is something as to which I have no knowledge. But one way or another, T wishes to see his mother, there is an order that he should, and he and G must go to London on Saturday. The second occasion, on 10 February in East Anglia, will be much simpler. The mother will see whether G will or will not go with her, and in any event T will no doubt go. 
14.	The father has the opportunity, after these two visits, to express his opinion strongly, as he has to me, and politely, as he has to me, as to why this is not appropriate for future contact. He has also told me - and I have seen two letters from the mother to Dr Lucey - that the mother is indicating that if she does not attain residence she might consider whether she will withdraw from future contact with the children, at any rate for the time being. That is a matter which, no doubt, will be explored at the next hearing but, for the reasons I have given, the application for permission to appeal is refused. 
ORDER:  Application refused. Transcript to be provided at public expense.
(Order not part of approved judgment)