[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> A-N (A Child), Re [2002] EWCA Civ 1013 (13 June 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/1013.html Cite as: [2002] EWCA Civ 1013

[New search] [Printable RTF version] [Help]

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

		Royal Courts of Justice Strand London WC2 Thursday, 13th June 2002

Thursday, 13th June 2002

1. MR JUSTICE WALL: This is an application by Mr Al-Naimi for permission to appeal against an order made by Judge Bush sitting at Leeds on 5th December 2001. The case concerns Mr Al-Naimi's daughter, L, who was born on 15th October 1990 and is now 11 years of age. There is quite a lengthy procedural history to the case which is summarised by the judge in his judgment. But for my purposes the case really begins with the order of 21st August 2000 in which District Judge Jordan defined Mr Al-Naimi's contact with L as being from 9.00 to 2.30 on alternate Saturdays, from 23rd September.
2. The judge had before him an application by Mr Al-Naimi to vary that order by increasing the level of contact and for it to include staying contact. But, as I understand it, at the beginning of the hearing Mr Al-Naimi made it clear to the judge through counsel that he wished to apply for a residence order in relation to L. No objection was taken to that course by counsel acting for L's mother and so the judge heard Mr Al-Naimi's application for residence as well as the application to increase the level of contact. The judge decided at the conclusion of the hearing that he saw no reasonable grounds for transferring L's residence to Mr Al-Naimi. He increased the contact from 9.00 until 4.00. He refused Mr Al-Naimi's application for a staying contact order and he made an order under section 91(14) of the Children Act preventing Mr Al-Naimi from making any further section 8 applications without permission for a period of two years from the date of the judgment.
3. The judge's judgment has been transcribed and if I may say so, it both contains a very careful analysis of the facts and is a model exercise of judicial discretion. I will in a moment indicate the basis upon which Mr Al-Naimi seeks permission to appeal, but it needs to be said in this case, as in all others of its kind, that the decision at first instance is one plainly for the judge to make. The judge will see the parties and hear them cross-examined. In this case the judge also heard the CAFCASS officer who was also cross-examined. At the end of that process the judge had to balance the various interests of the parties, make findings of fact and to decide on all the evidence where his discretion should be exercised, whether in this case L should be moved to live with her father and if not what contact L should have with him. Provided the judge did that conscientiously, provided there was material upon which the judge could exercise his discretion and provided that he made findings of fact which were open to him, there is no basis upon which this court can interfere. This court can only interfere if the judge has made an error of law or the judge has exercised his discretion in a way that it is plainly wrong.
4. What the judge did in this case, as I indicated a moment ago, is to set out the history, including a brief résumé of what happened when the parties separated and residence of L was given to her mother with contact to her father.
5. It is very clear from everything Mr Al-Naimi said to the judge and as repeated before me today, firstly, that he loves his daughter very dearly. Secondly, it is plain to me, as it was plain to the judge, that his daughter loves him. But it was equally plain to the judge and found by the judge that Mr Al-Naimi not only made a number of very strong criticisms of the mother's care of L but made it clear very forcefully that his daughter should not be living with a mother who did not love her or care about her: she should not live with a mother who had no time for her and a mother who was destroying her very happy family life. He went so far as to say that she was living with a mother who put her life in danger and that his daughter knew that.
6. The judge recorded, as is plainly the case, that during the early years of L's life she was very substantially cared for by her father who clearly cared for her well. But the judge equally made it plain that Mr Al-Naimi had not in effect come to terms with the separation. He expressed surprise that Mr Al-Naimi's feelings remained so raw. Although Mr Al-Naimi denied conveying his views about his former wife and his family to L the judge said that he could not believe that he had in fact shielded L from his views and that L was fully aware of his views.
7. The main criticism which Mr Al-Naimi today makes of the judge's judgment is that throughout the CAFCASS officers had deliberately misrepresented what L had said to them about her own wishes. As reported, it seems to me reasonably clear (if the reporting is correct) that L was very well aware of the difficult situation in which she finds herself. On the CAFCASS evidence L obviously loves her mother and wishes to go on living with her mother and feels under pressure from her father. She is aware, according to the CAFCASS officer, that her father had attempted to increase contact by means of orders, and it is clear that she wants to see him. But according to the CAFCASS officer L does not wish to have overnight contact with her father at this point, something she wanted to be understood, she accepted it may happen in the future. She has, she told the CAFCASS officer, a close and strong relationship with her grandparents, for whom Mr Al-Naimi has very little time. She is aware that her father would object to certain courses she wished to undertake such as staying with friends. She reported that she loved her mother and wished to remain living with her and to see her father fortnightly. According to Mr Berry she did not wish to live with her father and he is very clear that that is her state of mind; and that although she did not want to stay with her father she felt that the visits she had with him could be extended. She asked that her views be respected and the conflict and pressure on her be put to an end. Mr Berry reports that L, in expressing all these wishes, was spoken to on her own.
8. What was very clear to the judge and is something which I have to say he was entitled to find on the facts was that Mr Al-Naimi had no understanding of how damaging it was to L to hear her mother vilified. He said in terms:

"To diminish the parent in a child's eyes is to risk causing emotional harm to that child. I find on the evidence before me that Father's denigration of Mother as a carer is ill-founded."

9. The judge accordingly on his own assessment, having heard both parties and the CAFCASS officer, accepted the evidence of the CAFCASS officer and Mrs Al-Naimi and confirmed the residence order. He heard the allegations made against Mr Berry and the criticisms of Mr Berry including the suggestion he was unfit to be a CAFCASS officer. It was clearly put to Mr Berry that Mr Berry was misleading the court and abusing his power. The judge commented:

"I have seen Mr Berry and heard his evidence and I do not accept that he is partisan. It seems to me that Father believes Mrs Simpson and Mr Berry to be biased because he perceives that any favourable comment about Mother's care is baseless. Mr Berry made clear in his oral evidence that L is aware that Father wants her to live with him and not with Mother. He said that it was amazing L could cope with the pressure from Father and he said in relation to contact 'I think it would be very difficult for a child to continue with this, year on year.'"

10. The judge was entitled to accept Mr Berry's evidence and to reject that of Mr Al-Naimi.
11. The judge then went on to direct himself in accordance with section 1 of Children Act and the welfare checklist. He found L was happy and well-cared for in the home of her mother, and she was happy and well-cared for when she went on holiday during the school holidays to the home of her grandparents. The judge found that she wished to remain with her mother. He went on:

"I repeat that I believe Mr Al-Naimi deeply loves his daughter but I find that he has not yet been able to recognise that she is happy and well-cared for by her mother with whom she has lived since this sad separation. I find that there is no reasonable ground for a transfer of residence to Father and that that would be contrary to the welfare of this child."

12. As I said earlier that, in my judgment, is a decision which the judge was perfectly entitled to come to and is a proper exercise of his discretion. There is no way that this court on a full hearing of the appeal could interfere with it. Equally the judge's decision to extend the contact in the way that he did is eminently within his discretion and something with which this court cannot interfere.
13. Finally, in relation to the section 91(14) order the judge carefully directed himself in relation to the leading case on the subject Re P and once again in my judgment his exercise of discretion is impeccable.
14. The message from the judgment is plainly that L loves her father but feels under pressure from him. L wishes to be released from that degree of pressure. All I can say to Mr Al-Naimi, who clearly loves his daughter, is that if he wishes to increase his contact with her he really must rethink his position about his former wife and the criticisms he makes of other people. L is clearly cared for well, as the judge found. She wants to see her father, but, as I say, feels under very substantial pressure from him at the moment.
15. The judge has made his decision. In my judgment it is one which was clearly open to him. There is no prospect of this appeal succeeding if it goes further and therefore permission to appeal by Mr Al-Naimi will be refused.
(Application refused; no order for costs).