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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 [2001] EWCA Civ 742 (3 May 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/742.html Cite as: [2001] EWCA Civ 742, [2001] 2 FCR 751

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE LEEDS COUNTY COURT
(HIS HONOUR JUDGE CLIFFE)

		Royal Courts of Justice Strand London WC2 Thursday 3 May 2001

1. LORD JUSTICE THORPE:. M was born on 12 November 1998. Her father and mother are respectively about 29 and 33 years of age. They had married on 25 August 1997, the marriage lasting but a brief time. The initial separation occurred in April 1999 and the final separation on 15 July 1999 when the mother and child left the matrimonial home. The mother applied immediately for a residence order. That application was granted by consent by His Honour Judge Garner on 15 October 1999.
2. During the period in which the mother had sole care of M, her father developed mounting anxiety as to the standard of care that she was receiving. On 15 December 1999 he sought an order for interim residence without notice to the mother. That order was granted by the district judge. It was granted only on the most limited basis pending a hearing on notice. It was possible to arrange that hearing shortly before the Christmas holiday on 21 December 1999. The case was listed before His Honour Judge Garner. The mother and her solicitor were present in court when an interim order in favour of the father was confirmed.
3. It is of some significance that the challenge to the father's assumption of sole care was comparatively muted after the hearing on 20 December. The case was allowed to develop through its interlocutory stages with directions being given in February and March. A court welfare officer's report was not available until 2 June 2000. Ordinarily, in a case of any urgency, the hearing of the application for a substantive order follows immediately after the filing of the court welfare officer's report, since it is often the necessary delay in preparation of that investigative report rather than pressure on the court lists that leads to delay.
4. But in this case the final hearing did not occur until three months after the filing of the court welfare officer's report, with a 2-day fixture before His Honour Judge Cliffe on 7 and 8 September 2000. He heard evidence from twelve witnesses. There was no time on that day for speeches. Accordingly he adjourned the case until 14 September when, having heard Mr Sharpe for the mother and Miss Brereton for the father, he gave his judgment confirming the residence order in favour of the father with a strong defined contact order to the mother.
5. The litigation between the parents had given rise to a great deal of bitterness and anguish. In the course of his judgment the judge said:

"I hope that today's hearing will be a watershed which will see an end to the bickering and the in- fighting that has gone on in this case."

6. Unfortunately his hopes were disappointed. There was an application to this court for permission to appeal, which was initially refused on paper on the 19 October 2000 but subsequently granted at an oral hearing on 14 December. Thus it is that we come to hear an appeal from the judgment of His Honour Judge Cliffe some eight months after it was given, and with the passage of those further eight months in the life of this very young child who has been in her father's uninterrupted care since 15 December 1999.
7. Under those circumstances, Mr Sharpe, who again represents the mother, faces an uphill task. The judgment of the judge, which he subjects to critical review, develops from clear findings of credit and reliability in relation to the witnesses who testified, leading to clear findings of fact which, unless they can be displaced, lead ineluctably to the order which he made.
8. Although this was a private law contest between two parents, it had many characteristics of a public law dispute. Essentially the case against the mother was that, during the course of her care, she had exposed the child to risk of harm. In the scale of public law litigation, the nature of the allegations would have been at the lower end of the scale of seriousness. But local authorities have brought applications either for care or supervision orders contending that the section 31 threshold has been crossed in cases scarcely more grave than this.
9. The judge's primary task was to investigate the worth of the charges that had been brought against the mother by the father, acting on the information of neighbours who asserted that, during the period between July and December 1999, the mother's drinking habits had led her to abandon the child on occasions. The neighbours asserted that they had in many respects become the substitute carers of the child.
10. All those allegations were stoutly denied by the mother. She denied that she had a drink problem. She denied that she had exposed the child to any risk, and she challenged, in particular, the evidence relating to a summit incident on about 15 August when it was said that she had become drunk, had invented some sort of fight and had inflicted harm upon herself.
11. Those were the key issues of fact for the judge to investigate and to determine. Obviously, if he dismissed the allegations as worthless, then the whole basis of the father's intervention came into question. If, on the other hand, he found those allegations proved, there would be a most obvious impediment to returning the child to the mother's sole care.
12. I should say by way of addition that by the time of trial both parties had settled down with new partners. The judge heard oral evidence from the mother's new partner. The father's new partner, although not testifying, was also at court.
13. At the outset of his judgment, the judge defined for himself what he regarded as issues that he had to determine on his road to a conclusion. They are five in number and have been criticised by Mr Sharpe as being either inapt or incomplete. It seems to me there is some force in that criticism, but I do not regard it as taking Mr Sharpe very far, since these only seem to be aids that the judge was establishing for himself to ensure that he proceeded in an orderly way from his beginning to his conclusion.
14. More important is the following pages of judgment in which the judge carefully recorded all the witnesses who had testified. He summarised, first, the father's case and, secondly, the mother's case in response. Having completed that summary, he particularly commented on the contribution of the court welfare officer, Mrs Schofield. He said that she had given the most objective evidence and he commented on the fact that, unusually, she had been able to make herself available throughout the two days of the trial so that she had had the advantage of hearing all the other witnesses and of commenting upon her final position at the end.
15. Mrs Schofield's final position was no different from the position that she had taken in her report of 2 June, which was, essentially, to support the father's case and to propose that there should be a family assistance order to moderate animosities that the case had generated.
16. At page 9 of his judgment the judge turned to his findings in relation to witnesses who had testified. He said of the father that he was a credible witness. He was hard working and intelligent, committed to the welfare of the child, certainly not conducting a crusade, and not the sort of man who would concoct evidence. He commented favourably on the corroborative witnesses saying he was satisfied that they had given accurate evidence about the mother's drinking. By contrast he said that he was unimpressed with the mother's evidence, particularly in regard to the incident of mid-August 1999. He said:

"I do not accept that the mother was being truthful about her evidence in relation to the drinking or the effect that it had on her ability to care for the child in the latter part of last year."

17. Having made that assessment of the witnesses, he went on to findings of fact. First, that between July and December 1999 the mother's ability to care properly for the child was impaired because of her heavy drinking on a significant number of occasions. Second, that in mid-August she had made up an allegation that she had been attacked and in the course of that she inflicted some harm, albeit not serious, upon herself. Third, her present medical condition cast doubt on her ability to cope with the child on a full-time basis together with a new baby. The judge explained himself thus:

"That is by reason of her stroke in April of this year, her admission to hospital in July of this year, and her previous history of post natal depression."

18. He added that, fourth, the father was able to care properly for the child with limited assistance from his mother and his partner. The judge went on to have regard, as he inevitably had to, to both the primary requirements of section 1 of the Children Act and also the welfare check list contained in section 1(3). He said that those considerations satisfied him that there must be a residence order in favour of the father. He added:

"In particular her present physical and emotional needs are well met where she is and any change, at the age of one year ten months, is unnecessary and would be disruptive and unsettling. The father's ability to manage the child's welfare is proven - she has thrived and continues to do so in his care - whereas the mother's ability to do so is unproven and questionable because of her health and the demands of a new baby."

19. Mr Sharpe's attack on that judgment is mounted in five thrusts. He particularly criticises the judge's third finding that the mother's medical condition in September 2000 cast any doubt on her ability to cope with the child on a full-time basis together with the new baby.
20. In my judgment, this criticism has some validity. There is no doubt that the judge was factually justified in his reference to the stroke of April 2000, to the hospital admission of July 2000 and to the mother's past history of post-natal depression. However, the manner in which the judgment reads might suggest that that was a factor of equal weight amongst those four that the judge recited. It seems to me that the overwhelming finding compelling the conclusion was the first, namely the finding of heavy drinking on a significant number of occasions. Had I been the judge of trial, perhaps I would not have cast much emphasis on the mother's medical condition as it was in September 2000. However, the charge that Mr Sharpe mounts is expressed to be a finding that is in direct conflict with the medical evidence; that it is certainly not. Although Mr Sharpe has referred us to the agreed medical report from the general practitioner and the consultant cardiologist, they simply show no more than that the judge could be said to be vulnerable to a charge of over emphasising this consideration. The reports certainly do not demonstrate that he was in any error in his selection of the three aspects which stood out from her medical history.
21. The second charge is that the judge has failed to attribute any, or any sufficient, value to the advantage of a full-time mother to a baby girl. It is manifest and implicit in the judgment that the judge was well aware of that consideration. In many instances it may be an overwhelming consideration, but the force of that contention is much reduced in any case where the attachment of child to mother has been interrupted by a transfer of care from mother to father, and where, on a counting of months, the child has been more in the sole care of the father than in the sole care of the mother.
22. Thirdly, Mr Sharpe says that there has been no judicial evaluation of the rival households. That seems to me to be more advocacy than anything. Obviously, the judge was considering in a broad sense the rival proposals that each advanced. The submission would have far greater force in what would be a more conventional private law case that was not characterised by very serious allegations of neglect.
23. Fourthly, Mr Sharpe submits that the case was wrongly treated by both judge and court welfare officer as a case in which there was an existing status quo in favour of the father. That submission seems to me to be quite impossible against the chronology of this case. It is a tragedy for the mother that the final judicial appraisal did not come until September 2000. But that was the calendar and the judge was bound to reach his conclusion on the history as it was, however it had developed. Notionally he could not judge the case as it might have been had it come for final hearing in, say, February 2000.
24. Mr Sharpe's final point only falls for consideration in the event that he demonstrates that there is, within this judgment, a sufficient error or misdirection to open the way to a reappraisal by this court. I do not consider that Mr Sharpe has come within a long way of demonstrating that this is a case which requires this court's intervention. There has been a full trial in the county court. The essential task for the court in this case was to evaluate the witnesses and to make findings on the widely disputed issues of fact. That task has been completed by Judge Cliffe and I do not consider that his judgment is open to any substantial criticism.
25. I would only add that the case has been argued by Mr Sharpe with his customary realism and skill. He has said everything that could possibly be said in support of this appeal. I would also record that we have received a very full, careful and skilful skeleton from Mrs Brereton, such that it has not been necessary to call on her to make any oral submissions.
26. For my part, I would dismiss this appeal.
27. LORD JUSTICE CLARKE: I agree.
Order: Applications refused. Appeal dismissed with Section 11 costs order against Legal Services Commission. Detailed assessment of respondent's costs under the Community Legal Services Regulations 2000.