Mr Justice Munby :
- These are private law proceedings relating to N, who was born on 22 March 2001. His parents never married and separated in August or September 2002, but the father, A, has parental responsibility pursuant to a parental responsibility agreement dated 25 November 2002.
- The proceedings began on 17 October 2003, when N was only 2½ years old, and have continued ever since with unabated vigour. The President of the Family Division recently described the attitude of the parents until July 2008 as "acrimonious, confrontational and emotionally fraught in relation to N's residence and parental contact": see A v G [2009] EWHC 736 (Fam) at para [1]. I see no reason to differ from that assessment, which accords entirely with my own impressions of this unhappy litigation.
The history of the litigation
- So far as is necessary I can take this comparatively shortly, omitting much and concentrating on what matters for immediate purposes.
- Much detail as to the history of the litigation is to be found not merely in the judgment of the President to which I have already referred but in judgments given by Sumner J on 9 December 2005 and 4 April 2007 (respectively, Re N [2005] EWHC 3145 (Fam) and G v A [2007] EWHC 780 (Fam)) and in judgments given by me on 6 August 2008, 5 September 2008, 20 January 2009, 13 March 2009 and 8 July 2009: respectively, Re N (McKenzie Friend: Rights of Audience) [2008] EWHC 2042 (Fam), [2008] 2 FLR 1899, Re N, A v G [2008] EWHC 2134 (Fam), Re N (Payments for Benefit of Child) [2009] EWHC 11 (Fam), [2009] 1 FLR 1442, Re N, G v A (No 2) [2009] EWHC 484 (Fam) and Re N, A v G [2009] EWHC 1663 (Fam). I do not take up time repeating or even summarising what is to be found in these judgments. I take them as read. There are also illuminating transcripts of hearings which took place before Sumner J on 19 May 2006 and before me on 2 November 2007.
The history of the litigation: down to July 2008
- The proceedings began on 17 October 2003 when the mother, G, issued an application for relief under section 15 of and Schedule 1 to the Children Act 1989. I shall refer to these as the Schedule 1 proceedings. On 17 November 2003 the father issued an application for residence and interim contact, which I shall refer to as the section 8 proceedings.
- During 2004 and the earlier part of 2005 there was much interlocutory activity, including appeals from various orders of District Judges in the Registry which came successively before Baron J, Bracewell J, Holman J, Wilson J and Bracewell J, and an application (by the father) for permission to appeal from Wilson J which was refused by Wall LJ, first on paper and then on renewed oral application.
- Both the section 8 proceedings and the Schedule 1 proceedings came on for final hearing before District Judge Roberts in the Registry on 9 May 2005. In circumstances which I subsequently had occasion to explore in Re N (Payments for Benefit of Child) [2009] EWHC 11 (Fam), [2009] 1 FLR 1442, at paras [85]-[89] and [113]-[114], the father chose deliberately not to attend. Having heard evidence, on 10 May 2005 District Judge Roberts gave two judgments. The first explained her reasons for ordering, as she did, that the father's applications for a residence or joint residence order be dismissed, that N live with the mother and that N have contact with the father. The second explained the order she proceeded to make giving the mother financial relief in the Schedule 1 proceedings.
- The father appealed both orders. The appeal came on before Sumner J on 9 December 2005. The appeal in relation to the section 8 proceedings was dismissed: Re N [2005] EWHC 3145 (Fam).[1] The order made by Sumner J on 9 December 2005 provided, so far as material for present purposes, that any further application by the father in respect to residence or contact was to be listed before Sumner J for an early directions hearing.
- Amongst the papers which were before Sumner J on 9 December 2005 were reports on the mother by a therapist, DS, a member of the British Association for Counselling and Psychotherapy (BACP), obtained by the father in circumstances of which Sumner J was critical: Re N [2005] EWHC 3145 (Fam) at paras [75]-[77]. DS had never met the mother, but nonetheless on 19 September 2005 produced a lengthy "Psychological Commentary" on her, together with a separate two page "Summary". Sumner J was extremely critical of DS's reports and of other aspects of her work: Re N [2005] EWHC 3145 (Fam) at paras [78]-[79].
- My first involvement in the litigation had been shortly before, on 21 November 2005, when I made an order, continued on 24 November 2005, that the father was not to take N to see DS without the prior written order of the court. On 24 January 2006 I made a further order permitting the mother to disclose my two previous orders to BACP. On 13 February 2006 the mother made a complaint to BACP about DS's report of 19 September 2006 and, without having obtained permission from the court to do so, sent BACP a copy of the report. This prompted the father to issue an application on 15 March 2006 seeking the mother's committal to prison for contempt of court in sending the report to BACP. That application came on for hearing before me on 15 May 2006. I found the mother guilty of contempt, fined her the sum of 50 pence and made no order as to costs.
- Those matters apart, Sumner J continued to deal with the section 8 proceedings. On 19 January 2006 the mother had applied to vary the contact order; her application was adjourned the same day by Sumner J. There were further hearings before Sumner J on 19 May 2006, 29 August 2006, 15 March 2007 and 30 March 2007. On the latter occasion Sumner J made an amended order for contact, barred both parents from making any further application without the prior consent of the court and gave directions for a further hearing, including a direction that a Cafcass officer was to report by 17 July 2007 on the viability of future contact between N and his father. Sumner J explained his reasons in the judgment he gave on 4 April 2007: G v A [2007] EWHC 780 (Fam).
- On 26 April 2007 the father issued an application for permission to appeal against Sumner J's order of 30 March 2007. That application came before Hughes LJ on 15 June 2007. Permission was refused. On 27 June 2007 Sumner J informed the parties that, following reconsideration, he had decided to recuse himself.
- The matter came before me for directions on 4 July 2007 and again on 16 July 2007. I gave the father permission to apply for a residence order, made N a party to the proceedings and directed pursuant to FPR rule 9.5 that an officer of Cafcass be appointed his guardian. The hearing was listed for five days starting on 4 February 2008. There were further directions hearings before me on 5 October 2007 and 12 November 2007 when I gave directions for expert evidence.
- In the event, the hearing on 4 February 2008 was vacated and the final hearing of the section 8 proceedings came on before me on 21 July 2008. Amongst the voluminous materials put before me were reports on the mother and the father, each dated 4 April 2008, by Dr CM, a consultant psychiatrist, an independent social work report on the father and the mother dated 23 June 2008 by Ms JJ, an independent social worker and guardian, and a report by N's guardian, Mrs Christine Payne, dated 8 July 2008.
- The father, in addition to his original statement dated 20 August 2007 in support of his application for residence (a lengthy document running to 44 pages with a further 270 pages of exhibits), had produced a 17 page statement dated 12 April 2008 criticising Dr CM's reports as "seriously flawed" and a 13 page "Response" dated 15 July 2008 to JJ's report which was critical of parts of her report. (I should add that JJ's report attaches, as an appendix, a 27 page document sent to her by the father following their first meeting on 4 June 2008 which was also critical of her approach.) The father had also prepared seemingly with professional medical assistance a 94 page "Critique" of Dr CM's psychiatric assessment of the mother which questioned the "professionalism" of Dr CM's work.
- The father's position at the start of the hearing on 21 July 2008, as set out in his position statement dated 18 July 2008, was that "the best option for the welfare of N, considering all the circumstances and the relative merits and demerits of residence with either or both parents, is that the father have sole residence of N and that there be reasonable contact with the mother." However, he continued, "in order to avoid a fully contested trial and in the light of the experts' reports, the father is now willing to accept an order for shared residence, N spending equal time with each parent". He elaborated this as follows:
"If equality of residence is presently unacceptable to the court at this stage then the father would be willing to accept that N spend time with each parent on a 6 night and 8 night split (in a fortnightly cycle)
on the basis that there be a review in a year's time.
Thereafter, at the review hearing, and, subject to progress and further reporting, the court could consider giving practical reality to the ideal of equality and shared residence so that N can spend 7 nights with each parent."
- The guardian's position, as set out in her position statement, made for deeply troubling reading:
"Examination of the papers reveals a wholly deplorable situation. N is a young boy who has two parents who love him but who have demonstrated an unwillingness or inability to put his needs first and who as a result of their relentless pursuit of their own agendas have caused him emotional harm and arguably that emotional harm is significant. This situation cannot be permitted to continue. The parents need to stop trying to score points against each other and examine instead their own actions to ensure that N and his needs are put first.
Whilst the guardian would earnestly wish to bring what N characterises as 'the trouble' ie., this litigation to an end, such are her concerns about N's emotional well being that she believes it to be necessary and appropriate to have a review of the situation in approximately 6 months. At that stage the court will be able to examine whether the parents have been able to modify their behaviour and stop trying to score points against each other and instead to focus on N's best interests. If the parents have not been able to demonstrate significant change to their attitude and approach then consideration will have to be given to the involvement of the Local Authority."
She added:
"The guardian hopes that the parents having read in particular her report and that of Ms JJ will realise the harm they are causing their son. The guardian hopes that they will in the future exert their considerable energies in trying to work together in a civilised and sensible manner for the sake of their son."
- In terms of practical arrangements the guardian recommended that N should remain living under a residence order with the mother, but added (and this is a matter of importance) that she:
"believes that the security of that placement is largely if not wholly dependent on the mother remaining living with the maternal grandparents [and that she] would wish to receive some assurance that the mother will continue to reside there, as a change of address would lead [her] to reconsider the position."
She also recommended that the parents both engage in family therapy and a parenting course and that arrangements be made for N to attend play therapy.
- At the outset of the hearing there was a certain amount of discussion. The parties sought time to discuss matters out of court. During the course of the discussion in court I observed that the process of negotiation in cases such as this might be more productive if the parents focussed on discussing how N was to "spend time" with each of them rather than concentrating initially on the issue of who should have residence and who should have contact. Indeed, I observed that it might even be appropriate for the order to be expressed in such terms. And I ventured the view which was never challenged by anyone at any stage of the hearing, either then or later that there was no obstacle in law to an order being expressed in such terms.
- Eventually, after some days of negotiation out of court, the parties invited me on 29 July 2008 to make a consent order, which I did, the order being in the terms of a document subsequently signed by both the father and the mother. The circumstances in which the order came to be made are set out at some length in the judgment which I handed down on 5 September 2008: Re N, A v G [2008] EWHC 2134 (Fam). In the upshot, the order was sealed the same day, 5 September 2008, though dated 29 July 2008.
The history of the litigation: the consent order of 29 July 2008
- The consent order runs to 16 pages of print. The first part of the order, prefaced by the words "upon the basis that", consists of 12 numbered paragraphs; the second part of the order, prefaced by the words "It is ordered by consent", consists of a further 29 numbered paragraphs.
- Paragraphs 6-7 of the second part of the order deal with what are called "the regular arrangements", providing in essence that N is to "spend time with his father" during school term time from the end of school on each Wednesday until the start of school the following day and from the end of school on each alternate Friday until the start of school on the following Monday and, during school holidays, for half of the school Christmas, Easter and summer holidays and the whole of each alternate half term holiday.
- Paragraphs 8-10 of the second part of the order deal with what are called "the extraordinary arrangements", providing that N is to "spend time with his father to allow for the observance of religious festivals and other significant religious occasions" as set out in the order. Paragraph 8 provides in essence for N to spend part of Hanukah and part of Rosh Hashanah every year with the father and the whole of Pesach (Passover), Yom Kippur and Purim with the father every alternate year. Paragraph 9 deals with N's Barmitzvah and paragraph 10 with "other significant religious occasions, such as weddings, barmitzvahs or funerals."
- Paragraph 11 provides for what is to happen in the event of any "conflict" between the ordinary arrangements and the religious arrangements, paragraphs 12-13 provide for "compensatory arrangements", paragraphs 14-18 with "handover arrangements" and paragraphs 19-20 with the related matters of N's passport and his removal from the jurisdiction by either parent "for the purposes of a holiday during any period the child is with that parent".
- Paragraph 21 provides that:
"At all other times not covered by the regular arrangements, the child shall spend his time with his mother unless the extraordinary arrangements apply."
- Paragraph 24 provides that:
"Neither parent shall cause or encourage the child to be known by any name other than: "NJA"."
- Paragraph 26 provides that:
"The parents agree that N shall attend for play therapy as soon as the same can be arranged. The identity of the play therapist shall be agreed between the parties and, in default, chosen by the guardian. The cost of the play therapy shall be divided equally between the parents."
- Paragraph 27 provides that N is to attend a named Synagogue Sunday School each Sunday.
- Paragraph 28 provides that:
"All previous orders in these proceedings in so far as they relate to residence and contact, prohibited steps and specific issue orders, in respect of N, and all previous undertakings in these proceedings, and all previous orders in the Family Law Act 1996 proceedings numbered BT04F00715 and FD04F01125, are hereby discharged and the father's application for a Residence Order is hereby dismissed."
- Paragraph 1 provides for a "review hearing" in Spring 2009 at which consideration was to be given to:
"(a) the necessity for an order being made under section 91(14) of the Children Act 1989 restricting either parent's right to make further application in respect of the child without prior leave of the court;
(b) the continuation of any undertakings; and
(c) whether any further orders are necessary to promote the welfare of the child."
- Paragraph 5 reserves the proceedings to me.
- I need not set out all the provisions of the first ("Upon the basis that") part of the order. Paragraph 2 recites that:
"The mother and father agree that they shall each attend therapy and parenting classes/therapy at the Institute of Family Therapy as soon as the same can be arranged for them and shall attend such therapy and parenting classes regularly thereafter, subject to each party's work and business commitments, both parents agreeing to prioritise the therapy and parenting classes and each parent shall endeavour therefore to make up any lost sessions."
- Paragraph 8 recites that:
"In the event of either parent failing to comply with any of the provisions set out in this preamble, consideration shall be given at the review hearing provided for in paragraph 1 of this order, as to the necessity for an order to be made to compel compliance."
- Paragraphs 10-12 are important, reciting that:
"10 And upon it being recorded that the guardian thinks that the effect of any move for N from living at the maternal grandparents' home would need to be considered prior to any move;
11 And upon the mother stating her current intention to remain living at the home of the maternal grandparents pending the review hearing provided for in paragraph 1 of this order;
12 In the event of the mother wishing, for whatever reasons, to move from that address prior to the review hearing, she undertakes that she shall notify the court and the other parties of
(i) The reason for the proposed move;
(ii) The date upon which she plans to move;
(iii) The address to which she will move; and
(iv) The name and current address of anyone else who will live at such property.
This information shall be provided as soon as possible once plans are known and in any event not less than 42 days prior to a move."
The history of the litigation: the section 8 proceedings since July 2008
- As appears from the judgment I gave on 5 September 2008 (Re N, A v G [2008] EWHC 2134 (Fam)), the father appears to have had second thoughts about the consent order as early as 14 August 2008; hence the need for me to give that judgment.
- On 2 October 2008 the father sent the court a "request" for (1) leave to disclose certain documents to the appropriate professional body for the purpose of making a complaint about Dr CM, (2) what was described as the "amendment" of the consent order and (3) what was described as a "declaration as to the status" of that order. The "request" was supported by an affidavit sworn by the father on 2 October 2008. Further issues were raised by the father in letters dated 17 October 2008 and 4 December 2008.
- In the meantime, on 27 November 2008, the father issued a summons seeking the committal to prison of the guardian and her solicitor for contempt of court and the removal of both of them from the case. That application was supported by an affidavit sworn by the father on 27 November 2008, supplemented in due course by a further affidavit sworn by him on 17 February 2009 in response to the affidavits sworn by the guardian's solicitor and by the guardian on 4 February 2009 and 9 February 2009 respectively.
- On 7 January 2009 I made an order of my own motion in anticipation of a hearing which had already been fixed for 20 January 2009 for the hearing of the father's committal application. In that order I gave certain directions including, so far as is important for present purposes, directions that the father, the mother and the guardian were each to file a precise draft of each and every final order they were seeking and that the father was to file "details of each and every authority relied upon in support of the proposition that the court has power to vary (otherwise than by consent of the parties) the order made on 29 July 2008 (and subsequently sealed by the court)." In response to this order the father filed a short skeleton argument dated 16 January 2009 and a further document, also dated 16 January 2009, listing no fewer than 21 orders he was seeking. The mother's document, dated 19 January 2009, sought, in addition to an order under section 91(14) of the 1989 Act, six other orders. The guardian's document, also dated 19 January 2009, invited me to consider making a section 91(4) order but did not otherwise seek any orders.
- At the hearing on 20 January 2009 I directed that the father's application for committal and certain additional and consequential directions (that is, items 1, 2, 3, 4 and 5 in his document dated 16 January 2009) be listed for hearing before the President of the Family Division.
The history of the litigation: the hearing before the President
- The hearing before the President took place on 26 February 2009 and 4 March 2009.
- By an order dated 4 March 2009 the President by consent made certain orders in relation to the father's forthcoming trip with N to Israel over the Easter/Passover 2009 holiday. The order recited the President's "unwillingness" to entertain the father's application in that respect "on the grounds that to do so would or might involve variation of the arrangements provided for in the consent order." It was made, as it recites, only after the President had "urg[ed]" the parties to reach agreement on the holiday arrangements and after they had in fact reached such agreement.
- The President handed down judgment on 8 April 2009: A v G [2009] EWHC 736 (Fam). He found (para [35]) that the guardian had "unwittingly and with the benign intention of expediting the matter" committed a contempt of court by instructing her solicitor to disclose to the Institute of Family Therapy (which the parents had agreed they would attend for therapy and parenting classes) the reports of Dr CM, Ms JJ and the guardian and that the solicitor had similarly, "albeit on a mistaken view of the law," committed a contempt by forwarding the reports. He went on to find (para [42]) that it would not be "either appropriate or constructive" to impose any penalty upon either the guardian or the solicitor. He dismissed the father's application that the guardian and her solicitor be replaced (see paras [44]-[66]), observing (at para [48]) that
"So far as N's interests are concerned, this application
is neither timely nor desirable
to replace [the guardian] would be yet another disturbance in the tenor of N's existence in a situation where it is clear that N
"is now, very clearly, pleading for help in bringing about an end to what he refers to as 'the trouble'" (see paragraph 29 of the guardian's report of 8 July 2008). His interests dictate stability rather than change."
- One of the matters relied upon by the father in support of his contention that the guardian should be removed was his complaint ("belatedly raised" as the President put it) that the guardian had failed to carry out a proper risk assessment prior to the hearing before me in July 2008. That complaint, in the view of the President (see para [54]) had no substance. He held (at para [58]) that the guardian's report dated 8 July 2008 constituted a full and sufficient risk assessment for the purposes of section 16A of the 1989 Act and the President's Practice Direction: Children Act 1989: Risk Assessments under Section 16A [2007] 2 FLR 625.
The history of the litigation: the hearing before me on 5 May 2009
- Following receipt of that judgment, on 21 April 2009 I made a further order giving directions in relation to the review hearing which by then had been fixed for hearing on 5 May 2009. Amongst the directions I gave were directions that the father, the mother and the guardian were each to file a precise draft of the order they were seeking and a "position statement or skeleton argument." The order also provided, in paragraph 8, that "Each of the parties shall set out their arguments in full in their position statement or skeleton argument (it being the intention of the judge that oral argument at the hearing on 5 May 2009 will be largely confined to matters of clarification and response to the other parties' contentions)."
- The father chose to comply with these directions by issuing an application dated 24 April 2009 listing no fewer than 30 orders he was seeking an increase from the 16 listed in his earlier document of 16 January 2009 which remained unresolved following the hearing before the President and by filing a position statement dated 24 April 2009 which put in issue my power to give the direction in paragraph 8 of the order. The mother's position was set out in a position statement and a skeleton argument both dated 30 April 2009. The guardian's position was set out in her position statement dated 1 May 2009 and an addendum position statement dated 4 May 2009.
- In addition to all these position statements there were also before me a further report by the guardian dated 1 May 2009, a further statement from the father dated 5 May 2009 and a bundle of correspondence between the parties since the making of the consent order dated 29 July 2008 running to in excess of 160 pages itself, it might be thought, illuminating and saddening evidence of the continuing inability of these two parents to work together collaboratively in the interests of their son.
- As previously the father was represented before me by his McKenzie friend, Dr Michael Pelling, and the mother by her McKenzie friend, Mr David Holden, to both of whom, as previously, I granted a right of audience in accordance with section 27(2) of the Courts and Legal Services Act 1990. On this occasion N was represented by Ms Shelagh Farror.
- The hearing lasted two days, most of the time being taken up with Dr Pelling's submissions. At the end of the hearing I made directions orders in relation to various outstanding matters and reserved judgment.
The history of the litigation: since 6 May 2009
- During the course of the hearing there had been discussions between Mr Holden and Dr Pelling which, I understood, had been at least partially successful in resolving some of the matters in issue. Accordingly it was left that those discussions would continue following the hearing to see what, if any further agreement, could be reached. Eventually on 8 June 2009 I was supplied with a draft consent order setting out, in agreed terms, what had been agreed between the father and the mother as a result of the negotiations between Mr Holden and Dr Pelling.
- On 11 June 2009 I received a communication from the guardian saying that she was content with the draft consent order but was "disappointed that the agreement reached is quite limited." She asked whether I would wish to be told of certain views on the applications which she had previously held back from expressing in the expectation that the parents could reach an agreement. I informed the parties that, in the light of what she had said, I would invite the guardian to put her views in writing, limited to 4 sides of A4 paper. I directed that the father and the mother, if they wished, could each respond to what the guardian had to say, their responses to be limited to 4 sides of A4 each. I made clear that, beyond that, no further submissions were to be filed.
- The guardian filed her submissions on 16 June 2009 and the mother on 17 June 2009. The father's followed on 30 June 2009. Characteristic of his whole attitude to the litigation and to the court, the father chose to defy my very clear direction, submitting a reply running to no fewer than 14 pages, to which was attached an 'exhibit' running to a further 16 pages. He described my direction as "unjust" and "in breach of the rules of natural justice" and asserted that "equity requires all parties should have another full round of submissions." Included in his reply was a yet further application. Unsurprisingly, perhaps, the mother's response to this defiance of my directions was to file, on 2 July 2009, her 'response' to the father's submissions a step which also simply ignored the directions I had given.
- On 8 July 2009 I made a consent order in the terms of the draft sent to me on 8 June 2009. I shall describe below the effect of this order. For the moment it suffices to note that it amends paragraph 2 of the "Upon the basis that" and paragraphs 6(c) and 19 of the main part of the earlier consent order and adds a new paragraph 27A to that part of the earlier order,
The stance of the parties
- Before turning to address the many issues which have been raised before me and which, despite the further consent order, still remain in contention, it will be convenient at this point to say something about the varying stances being adopted by the parties. I start with the father.
The stance of the parties: the father's stance
- The father's stance is utterly at variance with the consent order which, to repeat, he had put his signature to as recently as 29 July 2008.
- At its least extreme the father's application seeks a number of more or less significant alterations to the consent order: some additions to its terms and, explicitly, a number of "variations" to its terms. At its more extreme the father's application seeks, whatever he may profess, completely to subvert and overthrow the consent order, for he seeks a sole residence order in his favour.
The stance of the parties: the father's stance in relation to the guardian
- It will be recalled that on 8 April 2009 the President had dismissed the father's application for the removal of the guardian and her solicitor, making clear, as we have seen, that this was not, in his view, in N's best interests. The father's response to this, as set out only a fortnight later in his position statement dated 24 April 2009, is so revealing that it requires to be set out in full:
"The Guardian and Solicitor were found guilty of criminal contempt but no penalty was imposed (though they had to bear their own costs) and they were not removed from acting. Mr A has a great many complaints about the Guardian/ Solicitor, set out in his Affidavit No. 4 17/2/09, has no confidence in them and does not wish to have any further dealings with them. He is preparing a formal Complaint to CAFCASS
The Applicant's position in regard to the present Guardian and Solicitor is that they ought to go, notwithstanding the President's Judgment declining to remove them by Order of the Court. He has no confidence in their competence and impartiality and finds himself unable to work with them any further; whatever the President found in mitigation the fact remains that they were convicted of criminal contempt and that is damaging professionally
; the Applicant now finds himself constantly looking over his shoulder waiting for the next back-stabbing from Mrs Payne and Mrs Williams and is advised that the test in cases of apparent bias is satisfied in the present circumstances, mutatis mutandis as they are not judges. In Taylor v Lawrence [2003] QB 528 CA §60 the Court of Appeal said, "the House of Lords has put to rest the conflicting views as to how the test in cases of apparent bias should be expressed. It can now be said that the approach should be:
"The court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility that the tribunal was biased."
Given the Applicant's successful prosecution of the Guardian and Solicitor and all the circumstances of the case any subsequent decision or report of these persons adverse to him is bound to lead a fair-minded and informed observer to conclude a real possibility of their being biased (in parenthesis, could a judge continue in like case?). If they had any professional integrity they would have resigned by now and would not have meretriciously used N to justify themselves. Their continued presence poisons this case with suspicions of bias and ill-motivation that can never be allayed.
The Applicant will have no further involvement with the Guardian and Solicitor other than by way of the most routine procedural correspondence and service of documents. He has already declined a requested appointment with Mrs Payne. As stated supra a Complaint is being made to Cafcass and that will include request that Cafcass itself remove Mrs Payne from this case. The criteria there will not be the same as for the Court on a formal removal application. It is not a matter of res judicata. A Complaint may also be made to the Solicitors Regulation Authority. The Applicant through his advocate Dr Pelling did consider seeking to appeal against the President's decision not to remove but it was felt that with a discretionary decision of that nature there would be difficulties and that the time and expense involved could be wasted. So Dr Pelling did not ask for Leave to Appeal and in the Court the matter rests there."
- Strikingly absent from this is any recognition let alone acknowledgement by the father of what the President had said about the potential impact on N were the guardian to be removed. On the contrary, it is marked by the same pedantic and legalistic approach on the part of the father of which, unhappily, there are already too many instances in the litigation. It is also a further illustration (for another see my judgment of 20 January 2009, Re N (Payments for Benefit of Child) [2009] EWHC 11 (Fam), [2009] 1 FLR 1442) of the father's adoption of evasive tactics to escape by indirect means court orders which he does not like but which he prefers not to challenge 'head on' by way of appeal.
- Equally dismissive of and, indeed, defiant of the President's judgment is, as we shall shortly see, the father's response to the President's dismissal of his complaint of the guardian's alleged failure to carry out a risk assessment.
The stance of the parties: the mother's stance
- The stance of the mother, as set out both in her document dated 19 January 2009, in her position statement and skeleton argument dated 30 April 2009 and in her further submissions dated 17 June 2009 and 2 July 2009, is, fundamentally, that the father's applications should be dismissed, that the arrangements set out in the consent order should be maintained and that there should be a section 91(14) order against both parents. In her latest statement she puts it in this way:
"The Court should be aware that generally the Consent Order made last year actually works. Accordingly, I humbly ask that, save for the matters agreed between the parties, the Consent Order remains intact.
For the sake of N, I humbly ask this Court to make a s.91(14) Order, so that the trouble can now stop."
- That said, and as I have already mentioned, the mother in her document dated 19 January 2009 had identified six further orders she sought. In her position statement and skeleton argument dated 30 April 2009 she identified certain further orders she was seeking (see further below).
- In her skeleton argument the mother sketches out the background as she sees it: litigation in which over 20 judges have adjudicated on 80 applications, of which perhaps 5 or 6, she says, she made. She points to N's desperate wish for what he calls "the trouble" to stop. She observes that the parties agreed the consent order following many days at court and elsewhere, in which it was anticipated that the parties could proceed with getting on with their lives and, more importantly, that N could have a more settled arrangement. She reminds me that the father's counsel, Mr James Bogle, stated in court that it was his client's wish for the matter to settle. Yet, immediately following the consent order, she says, the father started making applications which suggests that he had and has no intention whatsoever of making "the trouble" go away. It is, she says, abundantly clear from the applications, witness statements and other documents filed by the father, that he wishes to re-open the matter. But, she says, he had this opportunity in July 2008, when all the persons with whom he had a grievance were due to come to court, give oral evidence, and be cross- examined. Yet he did not take that opportunity, agreeing instead to settle the matter and, moreover, signing the consent order, and all the time having the benefit of both counsel and Dr Pelling (in whatever capacity he was advising). And what the father is now seeking is not just a modest adjustment of the consent order; he is in fact, she says, seeking a completely new order.
- The mother says that, by and large, the arrangements I put in place under the consent order have worked. Apart from one particular incident with regard to Yom Kippur (see below) the arrangements have worked. Inevitably, as it was impossible to foresee every eventuality, some minor difficulties with regard to interpretation of the order did surface; however, she says, the substance and performance of the consent order did work.
- The mother proposes one change of real substance. She says that N has suggested, both to her and to the guardian, that he would like to shorten the time he spends with his father. In particular, she says, he does not like the midweek time with his father and has requested that it be stopped. In the light of what N has requested, she suggests that the time he spends with the father should be every alternate weekend from Thursday (collecting N from school) until Monday morning (taking N to school).
- Finally, and importantly, the mother says that she has found a flat which she wishes to move into.
The stance of the parties: the guardian's stance
- The guardian's stance as at 20 January 2009 was clear. She believed that the arrangements provided for in the consent order had generally worked well.
- She would support an amendment to the consent order if it improved the clarity of the order so as to prevent possible future misinterpretations, but did does not believe that any further orders were necessary to promote the welfare of the child.
- With regard to the other variations suggested by the father, the guardian said she had no wish to stand in the way of any further agreements reached between the parties, provided that such agreements were consistent with N's welfare and best interests and were, as she put it, true agreements rather than the result of one or other parent 'bulldozing' the other parent into agreement. That said, she would have some concerns about a prohibited steps order, simply because she would be concerned as to the possible consequences in terms of further litigation with such an order. Similarly, she would have reservations about specific issue orders being imposed. She would oppose the imposition of penal notices as suggested by the father; it could not be in N's interest to have the threat of imprisonment hanging over his parents with all the stress that follows from that.
- By the date of the hearing in May 2009, the guardian's stance was equally clear and essentially unchanged. She submitted that pursuant to section 91(14) the father and the mother should be prohibited preferably for a period longer than two years from making any further applications in respect of N without the permission of the court (any such application for permission to be made to me); that the father's application for residence should be dismissed; and that there be no orders in respect of the father's remaining applications save as agreed between the parties and subject to the approval of the court.
- Her position statement dated 1 May 2009 made clear that the guardian's view on the applications filed by the father remains unchanged. Essentially, she says, she believes that the consent order that was, as she puts it, so carefully crafted on 29 July 2008 has, in the main, worked and she sees no reason to impose any changes, not least given that it was an order made by consent. As previously stated, she would not stand in the way of any agreement reached between the parties to vary the order providing the agreement is consistent with N's welfare and is a true agreement, and any amendment designed to clarify the original order so as to enhance the parties' interpretations of the order could well be of benefit.
- The guardian's position is that she is content with the overall working of the consent order and that she would not support the reopening of the whole case which is implied by the father's recent application. She does not support the father's application for residence, because in her view it is not in N's best interests. In particular, she does not consider that the mother's proposed plan to purchase a home for herself and N and to live independently justifies the father in seeking to resile from the consent order and reopen the issues in the case by seeking residence. The division of N's time between the parents appears to work and she does not support any change unless agreed. She has in mind N's oft stated desire for the litigation to come to an end so that he is not the focus of dispute between his parents. In her view, continuing litigation by either parent can only be detrimental to his welfare. There is no benefit to N in continuing litigation. On the contrary, she is clear that his welfare is being damaged by the on-going acrimony and the consequent stress and anxiety that the litigation causes to his parents.
- For that reason the guardian would suggest that now is an appropriate time for a section 91(14) order to be made, and for at least two years, this being, she says, "essential" to N's future well-being. This will give N and his parents a breathing space to focus and concentrate on making the agreed arrangements set out in the consent order work, without the anxiety of ongoing proceedings or the constant stress of the threat of further litigation, and to focus and concentrate on making the time that N spends with each parent as enjoyable and stress free as possible.
- In support of her contention that there should be a section 91(14) order the guardian makes a number of further points which, as it seems to me, have a very profound and much wider significance:
i) There have been continuous proceedings concerning N's residence and contact since the father issued his first application in November 2003 when N was aged 2½. N has therefore spent most of his childhood subject to the uncertainties, tensions and effects that the litigation has had upon him and his parents and their care of him.
ii) N has demonstrated stress and anxiety beyond his years. He has pleaded with his school, with Ms JJ, the independent social worker, and with the guardian that he wanted the fighting to stop and the judge to stop "the trouble". Ms JJ's concerns about the parents, in the context of this "highly antagonistic litigation" having the capacity to undermine N's wellbeing, were such that she was even considering whether the case was more appropriately a public law case. She also recommended play therapy for him.
- I must also draw particular attention to certain passages in the guardian's addendum report dated 1 May 2009. It requires, of course, to be read as a whole, and in conjunction with the earlier reports, but I should emphasise the following passages:
"Since the Consent Order was made in July 2008 N perceives his circumstances to be 'worse than ever' and identifies his parents increased anger as a cause for this.
N's physical and educational needs continue to appear to be well met. With regards to N's emotional needs, for the benefit of these parents, I repeat my previous comments that: "
if N is to grow up with a sense of security it will be important to ensure that his relationships with the important people in his life are not placed under threat and he receives clear messages to this effect. Children who have to cope with emotional stress are often negatively affected and may not achieve their full social and academic potential'. Indeed N's recent school report show that signs are beginning to emerge that N is being emotionally affected by the behaviour of each of his parents. It will now be important for each of them to fully acknowledge and act upon this."
- In relation to the father's application for residence:
"With regards to Mr A's residence application, clearly this would involve the reopening of the whole case and I am of the firm view that this would have a very detrimental and damaging impact upon N's emotional wellbeing. The need for proceedings to cease has been highlighted by all professionals who have worked with this family and I am only able to re-iterate this. This is particularly taking into account the huge emotional impact that this undoubtedly has upon each of the parents and ultimately the effects of this upon their parenting of N
N has been centre of court proceedings for most of his life and is now desperate for the conflict between his parents to end. With regards to Mr A's assertion that boys of N's age are best placed with their fathers this is clearly not correct. Whilst fathers undoubtedly have an important role to play in the lives of their children, as dictated by the Children Act, the child's welfare is of course paramount and all variables must be taken into account and weight given to them accordingly.
I believe that, at this juncture, it may be helpful to remind the parents of my comments made under this heading of the previous Welfare Checklist: "Ms JJ's consideration of this possibly being a Public Law matter provides a clear indication of the level of concern held with regards to the harm being caused to N by the ongoing behaviour of these two parents. Unless these parents now make considerable changes to their behaviour and stringent measures are put into place to reduce the risk of N's further exposure to this it may be that the court will have no other option but to consider whether these matters do indeed need to be Public Law matters.""
- The guardian added these more general observations:
"the status of both parents in N's life is equal and I firmly remain of the view that the terms of the current consent order clearly reflect this and provides both parents with a clear message about their respective roles. I see no reason why this should be changed.
Since the making of the order in July, as anticipated, there have been some problems but N now spends considerably more time with his father, has more certainty as to when he will be with him and his exposure to direct conflict between them has been substantially reduced. Overall, I am of the view that the current consent order has worked well. Other than making amendments which both parties agree to and which would either clarify the order, or be of benefit to N, it is my recommendation that no other changes should be made.
At the time of making that consent order the previous history between these parents had been highlighted as well as professional opinions. I am unable to identify any material change in circumstances, which would now warrant any major deviation away from that order or indeed the re-opening of this case. Again taken from my last report Ms JJ refers to Mr A's own parenting capacity and states that "this is not of a sufficient quality" or "demonstrably better than the mother's" to warrant N being disrupted and for him to become the resident parent."
- As I have mentioned, the guardian has considered the implications of the indication from the mother that she wishes to leave her own mother's home and move into a flat with N. The guardian is very aware that this is one of the triggers for the father's application for a sole residence order, being concerned, so he says, that N would be at risk of harm if this were to happen. Her conclusion, having carefully considered the matter, having noted some improvement in the mother's behaviour following the conclusion of the hearing in July 2008, and being satisfied with the overall working of the order, is that she would not stand in the way of the mother's desire to move by asking her to renew her undertaking. She is aware of the mother's not unreasonable desire to lead an independent life and that over time there may be changes in the grandmother's circumstances which might necessitate a move. In the end, she thinks, the only way in which the issue can be considered in detail is for the question to be tested by the mother living with N.
- If this leads to the father having serious concerns about N's behaviour and there is external evidence that it is adversely affecting him (for example, concerns raised by the school) then even the existence of a section 91(14) order, were there to be one in place, would not, as the guardian points out, prevent the father appearing before the court for permission to issue a further application. She is also aware that concerns can also be raised with the local authority. If either parent had significant child protection concerns then it would be appropriate for them to notify the local authority, which would in turn carry out investigations; in fact she suggests that the latter course would in the first instance be the most appropriate. She would ask for an indication from the mother to give some reassurance to the father that if N does not settle away from his grandmother she would consider moving back to live with her.
- Addressing this issue in her report, the guardian said this:
"I am advised by Ms G that she plans to move into a 'new build' 2 bedroom apartment
which will be ready for occupation in September 2009 and is 5 miles from her parents' home and near an underground station.
In undertaking such a move with his mother N will have to adapt to a number of changes, this not only relates to moving from a very substantial sized property to one which is a lot smaller but more importantly moving away from his maternal grandparents who clearly play an extremely important role in his life and [with] whom he currently has day to day contact. With careful and sensitive planning and good support it is likely that within time N would adapt to such changes. However, I have also been mindful of the concerns raised in my previous report with regards to aspects of Ms G's behaviour, which were identified by Dr CM, Ms JJ and me and the impact of this upon N.
However, Ms G has never had the opportunity to demonstrate that she is able to care for N on her own and it may be that living independently from her parents will provide her with a greater sense of responsibility, confidence and stability which ultimately would enhance her parenting of N. Safeguarding features within such a move being made are that were Mr A, or indeed Ms G's parents, to have any significant child protection concerns it is highly likely he/they would address this with Ms G and if necessary report this to the appropriate local authority. Likewise, as with all children in their daytime care, the school would equally have an obligation to report any child protection concerns to the local authority. In addition, in such circumstances there would be nothing preventing Mr A from making a further application to the court even were there to be a s 91(14) order in place."
- The guardian added this:
"Particularly during the build up to the court hearing in July 2008 the mother displayed some very worrying behaviour in court, to Ms JJ, Dr CM and me. I believe that the drawing up of the consent order has since provided her with some re-assurance that N was not going to be removed from her care or her contact with him restricted. I have since observed some improvement in her behaviour. Nonetheless, I acknowledge that there would be an element of risk were the court to agree to Ms G moving into her own accommodation with N but I believe the safeguarding measures identified above are sufficient for this to now be tested out. Perhaps one of the more positive aspects of such a move would likely be that this would lessen N's exposure to the difficult dynamics between his mother and the maternal grandfather."
- In her latest statement, filed on 12 June 2009, the guardian also made a number of general observations which need to be set out in full::
"When we were last in court on 5 May 2009, it was hoped that the parents would be able to negotiate
and reach a consensus. I see from the order submitted to the Judge for his approval that, sadly, only a few issues have been resolved. It seems therefore that the court will be asked to make a ruling. I would hope that the order made would leave the original order intact as far as possible to preserve the consent that lay behind the making of that order.
At all times, I am mindful that it is from N's perspective that I must consider the applications and it is with his best interests in mind that I put forward my views. Essentially, he is a child who knows that there is conflict between his parents. He becomes understandably anxious and concerned about the conflict between his parents and it is the responsibility of all involved in this case to try and protect him from this as far as possible. The Court is already aware of my overall view which is that the division of N's time as defined in the July 2008 order is broadly right for him. I would want the parents to expend their time and energy now on making the order work, to try to be more flexible with each other and put the proceedings to one side. I know that N would be profoundly grateful if this could happen."
- She concluded:
"I would hope that both parents would take a step back and try always to put N at the forefront of their minds when considering requests from the other parent or when dealing with each other generally. It is unfortunate that the father is pursuing the matter of the mother's mental health and it is easy to see why this is offensive to her. The father might want to consider how N would ultimately view this. N loves both his parents, they both have different strengths and weaknesses which are part of who he is. It is sad that neither parent seems able to recognise that in each other. There may be times when the other parent will have to grit their teeth to accede to a request but, if what is being asked will benefit N, then each parent should try to be as accommodating as possible for his sake."
- The father's response to this, in his document dated 30 June 2009, is to accuse the guardian of being in "serious" breach of the Cafcass 'two homes' policy. He refers to what he calls her "glaringly obvious bias in favour of" the mother and professes to be "appalled" by the way in which she has written her recommendations.
- Sadly the father is simply deaf to any message but his own. His reaction to the guardian's wise words, and the tone in which he chooses to present his most recent submissions his document of 30 June 2009 requires to be read in full, both for what it says and for how it says it is a depressing and revealing commentary on his whole approach. Not merely, and most importantly, on his continuing failure to prioritise N's welfare over his (the father's) animus against both the mother and the guardian indeed his animus against anyone who does not agree with him but also on his relentless determination to pursue the litigation, as long as it takes, and by pressing every point, however trivial, technical or pettifogging, until he eventually has his way.
The issues
- As will be appreciated I have before me a very large number of applications, raising numerous issues, and the written materials which have been filed by the mother, the guardian and, more particularly, the father are voluminous. It would be quite impossible for me to address, or even to summarise, all this material unless this judgment, which is already long, were to swell to a quite inappropriate and, indeed, totally unnecessary length. I have had careful regard to all the material and submissions put before me, both in writing and orally, and have them very much in mind even if they find no expressed mention in this judgment.
- I turn to deal with the various issues in what seems to me the most logical sequence. I shall first identify the various issues and set out the essence of the competing arguments. Having thus surveyed the entire battlefield for each application in detail can sensibly be considered only in the context of the forensic landscape as a whole I shall then turn in the next section of the judgment to consider what if any relief I should grant.
- To assist in cross-referencing the judgment to the papers in the case I insert references where appropriate in the form {X} to the relevant paragraph numbers in the father's application dated 24 April 2009.
The issues: (1) "correction" of the consent order {3}
- The father seeks an order that paragraph 28 of the consent order be "corrected" or "amended" by substituting, in relation to his application for residence, the word "withdrawn" for the word "dismissed". His contention is that he agreed only to "withdrawal", which was, moreover, the form of the consent order as pronounced orally at 4.22 pm on 29 July 2008, and that there is no reason to force a subsequent change on him to which, he says, he never consented. The reference to dismissal is, he asserts, an error and does not reflect the court's true intention.
- The mother says that this is semantics. In any event, she says, the father cannot now say that he wishes to restore the application, having made it perfectly clear through his counsel that there was to be a settlement agreement.
- The guardian sees no reason to amend the wording that was on a document signed by the father, particularly if in some way he would hope to use the substitution of the word "dismissed" with "withdrawn" as justification for launching another application for residence.
The issues: (2) "declaration as to status of" the consent order {4}
- In his 'request' dated 2 October 2008, the father sought a declaration as to the "status" of the consent order, namely a declaration that it is a joint or shared residence order under the 1989 Act, or alternatively a declaration as to what jurisdiction it was made under and if under the 1989 Act what species of section 8 order or orders it is. This was, he said, a mere request for clarification of the meaning and status of the order in circumstances where, he asserted, it is simply not clear under what jurisdiction it was made or what species of section 8 order or orders it constitutes. He added:
"I emphasise that I do not seek any substantive alteration in the division of time that N has with each parent and I am not seeking a new or different order."
- The father's primary contention, as set out in his application dated 24 April 2009, is that there should be a declaration that the consent order, so far as it relates to residence and contact as defined in section 8 of the 1989 Act and the time N spends with each parent, is a joint or shared residence order pursuant to sections 8 and 11(4) of the Act. He submits that, as it is put in his application, the legal status of the order, expressed, as he correctly notes, uniformly in terms of "spend time with", is unclear and that the parties are entitled to have it clarified, which in the interests of justice, he adds, the court must do. He asserts that legal rights are affected, for example in regard to testamentary guardians. He says that he considers the order to be a joint residence order but the mother and the guardian disagree, though without saying what species of section 8 order it is or indeed whether it is a Children Act order at all.
- The mother says that the words "spend time with" were agreed by the father with the benefit of advice from both counsel and Dr Pelling. There is, she says, no duty upon the court to make a residence order and the court may make no order. She says that the approach which I had indicated at the outset was, in the event, agreed by all parties. She adds that, if the father is really concerned about the position after death, then appropriate provision can be added to the consent order to the effect that, in the event of the death of either parent, then N shall live with the surviving parent, together with appropriate provision for him seeing members of the deceased parent's family.
- The guardian opposes the father's application. The current wording of the order is, in her view, satisfactory from N's point of view and she does not believe that it requires further clarification. Moreover, she would specifically oppose the order being 'clarified' to declare that there is a joint or shared residence order. The basis of the consent order, in an attempt to remove unnecessary conflict, and the court accepted that this would be appropriate, was to avoid the use of such emotive words as "residence" and "contact". She does not see that the arrangements now require being labelled as 'joint' or 'shared' residence, and is concerned as to why the carefully crafted and agreed consent order should now require such 'clarification.'
The issues: (3) interpretation of the consent order {5-8}
- The father raises two matters involving interpretation or construction of the consent order.
- The first {5}, which is raised also by the mother, relates to the operation of clause 8(c) of the consent order, which deals with Yom Kippur. It arises because of what happened in October 2008, when the eve of Yom Kippur fell on Wednesday 8 October 2008. This was a night when N would otherwise have been with the father in accordance with paragraph 6(a) of the order but the mother treated herself as entitled to have N with her. The father seeks a declaration that "the extraordinary arrangements" as set out in paragraphs 8-10 of the consent order do not apply so as to give the mother time with N save where expressly stated.
- The mother for her part seeks "clarification" in respect of paragraph 8(c), contending that in the alternate year in which N is not with the father, he should be with her and that this "overrides any other arrangement." She says that the very fact that the consent order states alternate years, clearly suggests that that the other years are with the other parent, quite apart from the fact that, as she asserts, this was agreed during discussions. She acknowledges, however, that there is no immediate problem, as Yom Kippur will not fall on a Wednesday for the next three years.
- The guardian sees no need for a declaration, saying that appropriate clarification of the order will make such a declaration unnecessary.
- Because of what happened on 8/9 October 2008 the father seeks not merely the declaration I have already mentioned but also {6} a declaration that he was entitled under paragraph 6(a) of the consent order to his regular Wednesday overnight time with N on 8/9 October 2008 together with {7} an order that he be "compensated for the denial of his regular Wednesday overnight time with N on 8/9 October 2008 by having N for one extra overnight stay in the course of the Summer holidays 2009." The father submits that the court's adjudication is necessary to determine whether or not there was a breach of the order, and if so whether compensatory time should be awarded compensatory time being, he says, just and reasonable and for N's benefit.
- The guardian does not believe that it is necessary or appropriate to go back over what happened in October 2008 or, even were I persuaded to deal with what happened in October 2008, that it is necessary or appropriate to provide 'compensatory' contact. She is concerned that N is being viewed more as a chattel than an individual and does not believe that it will make any significant difference to him whether he has an extra day or not. She suggests that, given that the parents have now agreed the summer 2009 holiday arrangements (see below), the father's request for compensatory contact is not appropriate.
- The other matter of interpretation {8} relates to paragraphs 19 and 20 of the consent order, dealing with the handover of N's passport. The father seeks a declaration that paragraphs 19 and 20 do not operate so as to require him to provide the information in paragraph 19(a) to the mother prior to the release of the child's passport provided for in paragraph 20. Further, and insofar as the precise meaning of paragraph 20 is not clear, he seeks appropriate "amendment" of it "by way of clarification."
- The mother says that the provisions of the order are perfectly clear. The parent who wishes to take N out of the jurisdiction must notify the other parent in accordance with the order, and the mother must provide the passport to the father not less than the required days before the holiday as provided in the order. The mother emphasises that she is not trying to control the father. She would simply like to know where N will be travelling, and where he will be staying. She says that she has repeatedly said that she will provide the father with N's passport, but he absolutely refuses to tell her where he is taking him. She says that she has told the father that if he gives her those details earlier he can have the passport earlier. She asserts the father analyses matters rather differently that the father has demanded, and she has conceded, that she advise him about her summer holiday arrangements by the end of March each year, yet he cannot or will not tell her where he will be taking N on holiday some 3 days before departure. It cannot, she says, be in the best interest of N that his mother may not know where he will be travelling to. And how can N share the anticipation of the holiday if he and his mother do not know where he is going, some three days before departure? The order, she says, should remain as was originally agreed between the parties.
The issues: (4) "working out of" the consent order {15-21}
- The father seeks seven orders which, he says, arise from "the working out" of the consent order.
- The guardian's position in relation to all this is, as I have already recorded, that she would not stand in the way of any further agreement reached between the parents provided that such agreement is consistent with the welfare of the child and is a true agreement. And she would support any amendment if it improves the clarity of the consent order so as to prevent possible future misinterpretations. But, as I have noted, she would have some concerns about my making any prohibited steps order or specific issue order and would specifically oppose the imposition of any penal notice.
- The first order sought by the father {15} is a specific issue order that:
"In alternating weeks in term time N's school homework will be done in entirety during N's time allocated to his Father, and under his Father's supervision, and in particular in the current school year in each Father's alternate week the Respondent Mother shall send the Mathematics homework (usually handed out Tuesday) on Wednesday and Science homework (usually handed out on a Thursday) on a Friday, to the Father to be completed by N with his Father during the Father's Wednesday overnight and alternate weekend respectively, and all such homework shall be left in N's schoolbag until it is handed in by N. All holiday homework shall be shared equally between the parents, but Mathematics shall always be allocated to the Applicant. The Father may make special arrangements to directly receive and return the homework with the School."
According to the father, it is in N's interests for the homework to be allocated as sought and, he says, research has demonstrated the importance of the father's role in the child's education.
- The mother says that N's homework should be done with the parent who he is with at the time. But she adds that she has no difficulty with N doing his homework with his father, but this can only be done if it is workable; if the school can make arrangements that might involve father further, she will not object.
- The guardian expresses her "despair" that this is a matter that the parents are not able to sort out between themselves. She points out that N is barely over 8 years old and that the amount of homework that he has at this stage is relatively limited. And, as she says, the homework is for him to do under the supervision of the parents and in accordance with the school's expectations. Since the homework arrangements are likely to change at the start of each academic year, and may be subject to change throughout the year, it would be foolish, she suggests, to try to impose strict regulation of the homework. But, she says, the father's desire to be involved in the homework set during the week should be recognised. She suggests that the parents take the homework each week in turn, so that any homework set at the beginning of the week is completed one week by the mother and the next week by the father and homework that is set after the father's midweek contact should be supervised by the parent with whom N is spending that weekend, unless the homework has to be handed in before the weekend.
- The second order sought by the father {16} is a specific issue order that:
"Any item required by N for any future event governed by the Order of 29 July 2008 [or the new Orders herein] shall be passed over with N when he goes from one parent to the other, and for the avoidance of doubt including set of school clothes, satchel and sports bag & kit and homework in holidays. Any item belonging to one parent but provided for N's use that accompanies N, shall travel back with N to that parent the next time N goes to the other parent. In particular, a black Nintendo DS for N's use belonging to the Applicant shall be returned in N's care to the Applicant the next time N goes to the Applicant."
The father says that this is appropriate for what he calls the smooth working of the order. He says it is wrong for the mother to "steal" his property this is the phrase he chooses to use purchased for the benefit of N.
- The guardian says that with regard to issues like this and the previous one it is not appropriate for the court to involve itself in "micro management". She points out that such issues are the type of "dispute" that might have been avoided had the parents attended for the agreed therapy.
- In the event this is a matter which the parents have managed to resolve themselves, for paragraph 4 of the supplemental consent order dated 8 July 2009 provides that the consent order of 29 July 2008 shall be amended by the addition of a new paragraph 27A as follows:
"The parent who takes N to School at the start of a term or half-term shall be provided (if not already in his or her possession) by the other parent with the appropriate set of school clothes, satchel, kit-bag and other items necessary for School purposes which shall be delivered to the first parent with N or left at the School Office, at the time when N comes to stay with this parent."
- The third {17} and fourth {18} orders sought by the father relate to N's attendance at Sunday School in accordance with paragraph 27 of the consent order. The father seeks a specific issue order that:
"On those Sundays when the Respondent Mother is responsible for taking N to the
Synagogue Sunday School pursuant to Clause 27 of the Order of 29 July 2008 she shall re-acquaint herself with and fully comply with the Sunday School's Rules and Regulations and shall in any event ensure that N, when attending, arrives in class no later than 9-45 am and is collected no earlier than 1-00 pm. (Penal Notice) There be a Penal Notice directed to the Respondent Mother endorsed on this order."
He also seeks a prohibited steps order that:
"The Respondent Mother is prohibited, on all Sundays when she takes N to the
Synagogue Sunday School pursuant to Clause 27 of the Order of 29 July 2008, from remaining on the Sunday School premises between the times of delivering N to the School and collecting him from the School, and is prohibited in any event from going to the Sunday School on those Sundays when the Applicant takes N there pursuant to Clause 27, unless she is invited by the Sunday School to attend for a specific purpose directly relating to N or is attending an event where all parents are welcome to attend."
The father says that the mother has breached clause 27 of the order and it is only right and for his welfare that N should attend his Sunday School at the correct time. He says that the mother has behaved violently and abusively and caused stress and embarrassment to N, other pupils, and the school staff. He says that even on a Sunday when N was with his father and taken to the Sunday School by his father she attended and unlawfully removed N from his class.
- The mother denies the allegations made by the father.
- The guardian points out that the mother conceded the father's request that N receive his religious education through his (the father's) synagogue. She is aware of the allegations made by the father about the mother's behaviour which, she says, if true, is entirely inappropriate and hard for N to witness. She says that it is important that N arrives on time for the Sunday School and is collected at the correct time but says that it is inappropriate for a penal notice to be attached to this, for if N became aware of it (as well he might) he would become very anxious and he might also be resentful of his father for putting him and his mother in that position.
- The guardian records her suggestion in July 2008 that the father collect and return N to and from his mother's home for the Sunday School but says that he did not wish to take up this suggestion, commenting that, given that the offer made was rejected, the father has to accept the mother's involvement in the synagogue. She notes that the parents have received a letter from the synagogue reprimanding them about their behaviour and making it clear that those running the synagogue do not wish to become involved in disputes between them, observing that she can see exactly why this was said and that she thinks it is entirely appropriate. At the end of the day, she suggests that paragraph 27 of the order remains as it is.
- The fifth order sought by the father {19} is that there be a penal notice directed to the mother endorsed on paragraph 24 of the consent order (relating to the child's name). The father says that the mother has breached this clause of the order and on the evidence is unlikely to comply unless what he calls "strong enforcement measures" are imposed.
- The guardian is opposed to this. She has ascertained from the school that N is registered in the name of NJA and he is known by that name there. It is also his name on his passport. She says that it is not appropriate for clause 24 to be altered or for a penal notice to be attached to it. She points out that N may very well have an attachment to the name G, because he will at times have to explain to others why his mother's name is different. She suggests that this "is not something that the father should continue to press."
- The sixth order sought by the father {20} is a prohibited steps order that:
"The Respondent Mother is prohibited (whether by herself or her servants or agents) from showing any of the documents filed in these proceedings to N and is prohibited from discussing with or talking to N about any of the proceedings herein in the Court, and the Respondent Mother is further prohibited (whether by herself or her servants or agents) from delivering any correspondence between the parents via N."
The father's case is that the mother has done what is sought to be prohibited and it is detrimental and upsetting to N.
- For reasons which I have already set out, the guardian would not support a prohibited steps order, but adds that, were consideration to be given to such an order, consideration should also be given to such a prohibition being made in respect of both parents. She adds that neither parent should involve N in the details of these proceedings, though adding that it is clear to her that both have done so and that N has "far too great an awareness of what is going on." She suggests that it might be appropriate for me to record in any order I choose to make an expectation from me that neither parent shows N any court documents or discusses any court proceedings with him. As she observes, one of the problems with this case is that inevitably N is drawn into what is going on, because he can see the effect on both parents of the continuing litigation. She adds: "The sooner this is stopped the better for him."
- The seventh order sought by the father {21} is that:
"The Guardian shall comply with Clause 26 of the Order of 29 July 2008 and take prompt steps to ensure the attendance of N for play therapy. Subject to the therapist's consent, the therapist shall provide a report to the Court on the progress and outcome of the therapy, and shall in particular advise whether harm to N has been occasioned by his being known by or called by or his using any name other than NJA, and shall advise on any further assistance for N considered appropriate."
The father complains that clause 26 of the order has not been complied with "and the guardian has failed in her duty to provide assistance in arranging the play therapy." A report from the play therapist will, he says, be beneficial to the court and the parties.
- The guardian accepts that there have been regrettable delays in securing an appropriate play therapist to work with N, but she remains committed to trying to secure play therapy as a matter of urgency. She would oppose the play therapist being either instructed or invited to advise on any harm occasioned by N being known by a name other than NJA.
- In her report the guardian said this:
"I remain firmly of the view that N would benefit from play therapy but as previously identified this would be solely to provide N with the support he needs in processing events in his life and certainly not for any purpose of the parents gaining information so that they can use this against the other in Court proceedings. Of course, as with any professional working with children, they would be under an obligation to report any child protection concerns to the appropriate authority should they emerge during the course of their work. Two names which I am able to put forward for the parents consideration with this regard is
who is based in York but may travel
and
who is based in Chichester but who again may travel."
- That remains the guardian's view. She still thinks it would be helpful for N to have some play therapy "although I do not consider it essential for him." Play therapy would enable him to process what he has been through and the effect on him of the conflict between his parents. She has provided some names and is willing to continue to assist in making suggestions, although she thinks that the actual arrangements should be made by the parents themselves. She does not agree that the therapist should prepare a report for the court. "I consider these proceedings should come to an end and I certainly do not think that there should be any direct instruction for any therapy to raise the question of N's name. The point of the therapy would be to assist N."
The issues: (5) "variation" of the consent order {8A-14A}
- The father seeks a number of "variations" to the consent order, some more fundamental than others. It is convenient to take them in the order of the paragraphs of the consent order to which they relate.
- The first group relate to paragraph 2 of the "upon the basis that" part of the order. First, {9} the father proposes that, subject to their consent, the agreement of the parents that they shall attend parenting classes and therapy at the Institute of Family Therapy, should be varied to provide for different institutes or organisations or individuals to provide therapy (whether jointly or separately) to enable the parents to communicate better with each other for N's benefit. For the avoidance of doubt, he says, each parent should be responsible for arranging their own classes and therapy, with joint therapy to be arranged jointly, and the guardian and her solicitor are not to have any involvement in those arrangements. Secondly, {10} he proposes that the providers of the classes and therapy should be limited to persons willing to prepare reports for the court as to the outcomes in relation to each parent. And when the providers are known and have confirmed they will act, the father will obtain appropriate directions from the court, to be agreed by all parties if possible, for instruction of them in accordance with the President's Practice Direction: Experts in Family Proceedings Relating to Children of 1 April 2008. Thirdly, {11} he proposes that all parties are prohibited from disclosing any document filed in these proceedings, other than orders of the court, to the providers of the classes and therapy save as permitted by order of the court or as agreed by the parents in writing.
- The mother says that she was prepared to attend the Institute of Family Therapy and it was father who refused to attend. She does not oppose attending therapy, but it must be an independent organisation and not chosen by either party. As for the appropriate disclosure, she suggests the court can determine this.
- The guardian says that she would not stand in the way of the parties agreeing to go to another organisation in place of the Institute of Family Therapy should they both wish.
- In the event this also is a matter which the parents have managed to resolve themselves, for paragraph 1 of the supplemental consent order dated 8 July 2009 provides that paragraph 2 of the "upon the basis that" part of the consent order of 29 July 2008 shall be deleted and replaced with the following:
"The mother and father agree they shall each attend parenthood classes at the institutions of their choice at the earliest practical opportunity (unless in each case a course of such classes has already been attended) and therapy to enable the parents to better communicate with each other, at an institution or with an individual therapist to be chosen jointly by the parents, to be conducted by a single joint therapist on the basis that initially the parents will receive therapy separately but will progress to joint therapy as guided by the therapist, such therapy to be arranged by the parents at the earliest practical opportunity, and that they shall attend such therapy and parenthood classes regularly thereafter, subject to each parent's work and business commitments, both parents agreeing to prioritise the therapy and parenting classes and each parent shall endeavour therefore to make up any lost sessions. The parents also agree that the only case document that shall be disclosed to the therapist is the Consent Order of 29 July 2008 as amended."
- Secondly, and more fundamentally, the father proposes {14} that paragraphs 6(a) and (b) of the curial part of the order be varied to read:
"(a) Each alternate Wednesday from the end of school until the start of school the following Monday commencing on Wednesday 29 April 2009;
(b) Each other alternate Wednesday from the end of school until the start of school the following morning commencing on Wednesday 22 April 2009;"
- His reasons for proposing this deserve to be set out in full:
"In general terms N has now reached the age of 8 and has thus reached that age when it is normally best for a son to be with his father. This is also supported by the Warshak research
It is discriminatory and not justified by N's interests to leave him in the majority care of the Mother and this modest adjustment on a Review is a move in the right direction. It is particularly justified by the help the Applicant can give N educationally
, which he certainly needs given his Lent 2009 School Report and the disruption to his religious education caused by the Respondent which has led to N being bottom of the class in Hebrew. It would also alleviate the homework problem
"
- The mother opposes this, commenting in relation to N's learning Hebrew that the father can use the opportunity to teach N Hebrew when N is with him, instead of making applications to the court. She tells me that she is herself attending Hebrew Classes each week so that she can understand that which N is learning.
- For her part, as I have mentioned, the mother also seeks a variation of paragraphs 6(a) and (b). She says that N has requested that the midweek contact with the father be stopped, as he wishes to spend less time with him. In the light of N's request the mother suggests that the time he spends with the father should be every alternate weekend from Thursday (collect from school) until Monday morning (when father takes N to school).
- The guardian in her report comments that:
"Although N has now requested that the Wednesday contact with his father be replaced with contact on alternate Thursdays he was unable to identify how this would make things better for him and I did not gain a sense that he had particularly strong feelings about this."
- The guardian's position is simple. She thinks that the division of time as set out in the consent order is right for N and therefore does not support any amendment of paragraphs 6(a) and (b).
- Thirdly, the father proposes {12} that paragraph 6(c) of the order be varied by the addition of the following paragraphs:
"The dates of the Mother's work holiday entitlement for each year after 2009 shall be provided by letter from her employers by 10th January in that year. If the Mother is not employed on that date (10th January) in any year but she still wants the 1st two weeks in August with N then she shall so advise the Father by 10th January, and N shall then be with the Father that Summer from the end of Summer term returning N to the Mother midday on July 31st, and the balancing number of days making up one half of the Summer holidays with the Father shall instead be added to the Father's half of Easter or Christmas holidays in that year, the dates to be decided and notified to the Mother by the Father before 15th February in that year.
In relation to the year 2009 the preceding paragraph applies with the substitution of "10 May" for "10 January" and "15 June" for "15 February"."
This, he says, is necessary to ensure that plans for the Summer holidays and the division thereof can be made by the parents in reasonable time and with adequate notice.
- To an extent, though only to a limited extent, this again is a matter which the parents have managed to resolve themselves, for paragraph 2 of the supplemental consent order dated 8 July 2009 provides that paragraph 6(c) of the consent order of 29 July 2008 shall be amended by the addition at the end of the following:
"In Summer 2009 N shall spend time with his parents divided as follows:
With his Father for the nights of July 8-30 inclusive (23 nights);
With his Mother for the nights of July 31-September 1 inclusive (33 nights);
With his Father for the nights of September 2-6 inclusive (5 nights)."
- In relation to this helpful development the guardian comments that the parents seem to have successfully negotiated holiday arrangements for the summer of 2009, though she understands the father would still wish to know as soon as possible what holiday entitlement the mother may have from her work. She suggests that the starting point should be the arrangements as set out in paragraph 6 of the original order save that she suggests adding to the paragraph headed "summer" a further sentence: "The mother shall advise the father of her work holiday entitlement by 31 March each year if she wants to vary this agreement because of her holiday entitlement. If no such letter is received by the father, the original division of time as set out above will prevail."
- Fourthly, the father proposes {13} that paragraph 6 be varied by providing for telephone contact of each parent with N when staying with the other parent within the jurisdiction in school holiday periods including half-term holidays. He points out that paragraph 19(b) already provides for telephone contact in those holiday periods when out of the jurisdiction and says that it would also be beneficial for N when in the jurisdiction.
- The mother says she has no objection to reasonable telephone contact when N is within the jurisdiction.
- This again is a matter which the parents have managed to resolve themselves. Paragraph 3 of the supplemental consent order dated 8 July 2009 provides that paragraph 19 of the consent order of 29 July 2008 shall be amended by the addition at the end of a new sub-paragraph (d) as follows:
"Each parent with whom the child is spending time shall encourage him to telephone the other parent twice weekly outside school terms (including during half-term holidays) when in the jurisdiction."
- Fifthly, the father proposes {14A} that paragraph 8(c) be varied by changing the time "5.45 pm on Day 1" to "4 pm on Day 1". He says that 5.45 pm proved impractical in relation to the important Tashlich service in the Rosh Hashanah of September 2008, adding that the mother did not comply anyway, delivering Nicholas at 6.21 pm for a service originally scheduled to start at 6 pm but rescheduled to commence at 5 pm for security reasons. He says there could be similar last-minute changes in future years.
- The mother says that she does not wish to amend the Rosh Hashana timetable. The festival, she says, should be equally split between the parents.
- The guardian recognises that problems arose in 2008 and that the father would wish to ensure that N is with him well in advance of the ceremony to prevent a repeat. She accepts that N needs to have sufficient time to make the transition from one parent to the other and to be able to prepare with his father for the religious festival. It is her understanding that synagogues generally publish the time of the ceremony in their calendar and she therefore suggests that paragraph 8(e) is amended to read "one and a half hours before the published start time on day one."
- Sixthly, the father proposes that paragraphs 19(a) {8A} and 20 {8B} be varied. Paragraph 19(a), he suggests, should be amended in line, he says, with the guardian's recommendation in paragraph 109 of her report of 8 July 2008 so that the only information about holidays out of the jurisdiction that each parent is required to notify to the other is details of flight train or sea/ferry as soon as booked. So, he proposes that paragraph 19(a) simply read:
"The parent taking the child out of the jurisdiction shall notify to the other parent forthwith after making any travel booking full details of the travel arrangements, that is to say flight numbers and times, train, sea, or ferry times and details as the case may be. There shall also be notified a contact mobile telephone number which will be available throughout the trip."
Paragraph 20 should be varied by replacing it by the following:
"Each parent shall ensure that when the child goes to the other parent for a half-term holiday or for a period in the Christmas, Easter, or Summer School holidays then he shall have his passport with him, or it shall be delivered to the School for collection, unless it is already in the possession of the latter parent. This applies whether or not the latter parent actually utilises the relevant holiday period to go abroad and whether or not any Clause 19 notification has been given. If a parent notifies the other parent of an intended trip abroad at any other time (such as a weekend in term-time) then the first parent shall ensure that the passport is delivered in time for that proposed trip, with the child or by delivery to the School, unless already in the possession of the latter parent. In the event of a parent requiring the passport at an earlier time to facilitate obtaining visas then he or she shall notify the other parent of the requirement and that parent shall then provide the passport to the first parent (unless already in his or her possession) for this purpose by sending it with the child or by delivery to the School. "
He says that both paragraph 19(a) and paragraph 20 in their present form are unnecessarily complicated and a recipe for argument and intrusive control. As to paragraph 19(a) he adds that the guardian's original recommendation is to be preferred. As to paragraph 20 he adds that it is discriminatory and that the proposed replacement is better.
- Related to this is the yet further application that the father included in his document of 30 June 2009, seeking an order "that N's passport accompanies him to school on Wednesday July 8 2009, the day [the] school closes for summer holiday." I informed the parties that I was not prepared to make this order and that the matter would accordingly be governed by the terms of the consent order dated 29 July 2008 as amended by the consent order dated 8 July 2009. I said that I would incorporate my reasons in this judgment (see below).
- I have already summarised the mother's position in relation to this. In addition to seeking clarification as to the meaning of paragraph 20 (see above), the mother seeks that the consent order be amended to state that upon the father providing the relevant information she shall deliver the passport in accordance with the provisions set out in the consent order.
- The guardian suggests that it is important to separate the question of how to pass the passport from one parent to another from the obligation for the parent who is taking N on holiday to notify the other of the details of the travel arrangements. She says that she would expect the parents to inform each other as soon as practicable of arrangements they have made for a holiday. This will enable N to share with both parents his anticipation of the holiday and be supported in this anticipation by both of them. He should not be put into the position of worrying about whether or not a planned holiday will in fact take place. She suggests that paragraph 20 be amended as follows: "The precise arrangements are that the mother shall deliver the child's passport to the school, during school term time, not more than 7 days prior to the proposed trip (irrespective of whether the full details of the itinerary have been made available to her)." She would expect any parent to advise the other of where their child is going to be at any particular time but that neither should have the ability to control how the other spends their holiday with N. She hopes that both parents can respect this by giving each other full details of their plans as soon as possible and that neither should be frustrated in making those plans by concerns about whether or not the passport is going to be made available to them. She suggests that the rest of paragraph 20 should remain unaltered.
- Finally, the father proposes {13A} that the consent order be varied by adding the following provision in relation to birthday parties:
"In each year from and including 2010 there shall be one birthday party for N in which both parents and their families shall be invited to attend together with N. The father shall organise in 2010 and in subsequent years organisation and full responsibility shall alternate between the parents. By 31st December of the year before the organising parent shall inform the other of the weekend date and N will reside with that parent that weekend from Friday collect from School to Monday return to School. If that involves a swapped weekend, the parent who does not have N shall chose the weekend before or after for the swap, or three nights shall be added to that parent's summer holiday period."
He says that it not being sensible to have two parties and that the proposed order is equitable and in N's interests. The mother, he says, excluded the father from the 2009 party but he is always willing to invite the mother to any party he organises.
- The mother objects to joint parties, fearing that the father may use these occasions to criticise her.
- The guardian's advice is simple. "I do not think it is appropriate for the court to make any orders around how either parent organises a party. It is important that N is encouraged to enjoy his birthday and that both parents are reasonable about the organisation of any party. In view of the tensions between the parents, I cannot see how a party to which both parents and their families are invited could be anything other than a tense experience for N, unless the dynamics between them significantly improve."
The issues: (6) re-opening of the consent order {22-27}
- Quite apart from all this, and despite his very clear protestations to the contrary as recently as in his 'request' dated 2 October 2008 (see paragraph [90] above), the father now seeks, in effect, entirely to re-open the consent order.
- First, and most fundamentally, he seeks {22} that there be a (sole) residence order in his favour and that any existing residence order in favour of the mother shall be discharged.
- I should set out in full, and verbatim, the father's reasons for making this application, as set out in his application dated 24 April 2009:
"The Respondent Mother suffers from Borderline Personality Disorder and this has harmed and continues to harm N. She has emotionally and physically abused N. He has suffered and witnessed domestic violence. She has disrupted his religious education and continues to try to oust the Applicant's key involvement in his son's secular education by, for example, refusing to share homework supervision. She continues to pervert N's name, in breach of the existing Order. She has violated other terms of the Order. She has stolen property of the Applicant which he had provided for N's use, and N is aware of this. It is not safe for N to live alone with her, and her own mother has in effect become a substitute parent, which is not satisfactory. The Respondent has applied to the Court to be released from any fetter on her moving from her own mother's home, which would put N seriously at risk; she informed the Applicant on 21 April 2009 that she had found the property to which she wished to move. N has now reached the age of 8 and has thus reached that age when it is normally best for a son to be with his father. The Court should be guided by the general principle that a boy [of] this age, is, on the whole, other things being equal, better to be with his father. In this case other things are not equal but only strengthen the case for Residence with the father."
- Secondly, and linked with this, he says {23} that there should be a contact order in favour of the mother, namely in term-time alternate weeks from Wednesday collect from school to Saturday 6 pm and half of all School holidays, but subject to a condition under section 11(7) of the 1989 Act that she shall continue to reside with her own mother. He says that the mother should have contact with N but for this to be safe it should be in her own mother's home and it should not include Sundays in term-time given what he calls the mother's disruption and spoiling of N's Sunday School education.
- Thirdly, and following on from this, he says {24} that upon the making of these residence and contact orders, the consent order of 29 July 2008 "so far as relating to residence and contact shall be discharged." As he puts it, "The new residence and contact orders sought would not be compatible with the arrangements under the existing order, which should therefore to that extent be discharged."
- Recognising that the orders he is seeking could not be made without a further hearing, the father seeks directions: first, {26} that there should be a risk assessment by the guardian pursuant to section 16A of the 1989 Act which should be filed as a self-contained document (and not as part of any other document or report) and should in particular assess the risk of harm being suffered by N in the event that he were to reside with the mother other than in the maternal grandmother's home; and, secondly, {27} that there should be expert psychiatric assessments of N and the mother prior to the trial of the residence application, the choice of expert and instructions in the first instance to be agreed if possible between the parties and otherwise as may be directed by the court. In support of these suggested directions, the father says that a risk assessment is a statutory requirement, that given paragraphs 10, 11 and 12 in the "Upon the basis" part of the consent order there is undoubtedly cause to suspect that N is at risk of harm if he were to live alone with the mother, and that expert evidence is needed in this case, including in relation directly to the harm suffered by N. The existing evidence from Dr CM, he says, was methodologically flawed and his work was incompetent.
- The mother denies the father's allegations and disputes that she has Borderline Personality Disorder. She points out that her undertaking in paragraph 12 expires at the review hearing and says it will not be renewed. She tells me that she has found a flat a short distance from her current address and wishes to move there with N. There is, she says, no evidence of any risk whatsoever in the event of any move. She opposes the father's request for further psychological assessments of herself and N.
- I have already set out at some length the guardian's carefully expressed views in relation to the mother's proposed move. I need not repeat them.
- More generally, in relation to this part of the father's application, the guardian's position is stark and unequivocal. As she puts it in her most recent position statement, "As I have said before I do not think that these applications should be granted."
The issues: (7) matters raised by the mother
- The mother, as I have said, raised a number of issues in her document of 19 January 2009 and subsequently in her position statement and skeleton argument dated 30 April; 2009. Some I have already considered in the context of matters raised by the father. I now deal with the rest.
- The first matter relates to paragraph 8(c) of the consent order. In addition to seeking "clarification" (see above) the mother seeks a variation of paragraph 8(c) so as to provide that in the alternate year when he is not with his father for Yom Kippur, N should be with her. She points out that Yom Kippur is the holiest day of the Jewish Calendar. The consent order provided that each alternate Yom Kippur be spent with father, commencing in 2009, and it was agreed between the various parties, she says, as well as being perfectly obvious that in the years in between, Yom Kippur would be spent with mother. Accordingly, the mother suggests that the following wording be inserted to "clarify" in fact, to overcome the difficulty:
"In each alternate year commencing 2010, Yom Kippur as a whole shall be spent with mother (if such time or part thereof would normally be spent with father) as follows: from collection from school (or 3pm if not a school day) on the eve of Yom Kippur until the morning following the day of Yom Kippur returning to school (or 9am if not a school day)."
- The guardian accepts that under the order there was no provision for N to spend the night of 8 October 2008 with his mother but records counsel who was instructed on behalf of N recalling that there was discussion at court that on the alternate years when N was not with his father for Yom Kippur, he would be with his mother. She observes that although his father is correct that this is not in the original order, this was clearly within the spirit of the order and suggests that paragraph 8(c) be amended to add that "In the alternate year Yom Kippur as a whole shall be spent with the mother. If in that year, Yom Kippur falls on a night that N would normally spend with his father during the week, then the parents agree that N will spend a different night in that week with his father".
- Secondly, and more generally, the mother says that, for the avoidance of any doubt, where N spends time with the father in alternate years for whatever reason, such as, but not limited to festivals, then the years in between should be spent with mother upon the same terms as that with father. And this provision, she says, should take precedence over the 'regular arrangements' as set out in the consent order.
- The third matter raised by the mother relates to times when the father is not able to be with N during the period that N is to spend time with him. In her document dated 19 January 2009, the mother's proposal was that the father should inform her, giving not less than 7 days notice, and either request that the arrangement be varied so that N will spend another equal period with the father or seek the mother's consent that N stay with another member of the father's family. This, as the father was quick to point out, would have given the mother a veto. Her revised proposal, as set out in her position statement dated 30 April 2009, is that in the event that the father is not able to spend time with N for whatever reason and does not wish to change the arrangements, N may spend time with the father's family, subject to the father informing mother 7 days beforehand of his being unable to spend time with N, of the identity of the member of the family who will be spending time with N instead of father, the address where N will be staying, if not at father's home, and telephone details. In addition the mother suggests that the member(s) of the father's family who will be spending time with N instead of father confirm in writing not less than 7 days beforehand that they accept such responsibility.
- The mother elaborates the point by saying that she was surprised to discover that the father was away, when he clearly implied that he would be here. The result, she says, was that N's brother looked after him and mislaid N's school bag, which caused N to fret. She is, she says, simply seeking some kind of order that in the event that the father is away for any reason, she be advised of this and to whom the father has delegated the responsibility of looking after N.
- The guardian comments that she believes this issue has arisen because on one occasion the father was away on business and N spent the midweek contact with his half sibling. She thinks it is perfectly proper for N to spend time with his half siblings and says that any absence of the father when he is due to have midweek contact should not be a reason for the midweek contact not to go ahead. It would however, she adds, be courteous for the father to advise the mother of his plans as it is right that she should know who is taking care of her son if he is not there.
- In her document dated 19 January 2009 the mother sought three further orders: (1) first, that the father not to permitted to "hang around" N's Sunday School, for whatever reason, on the Sundays that the mother takes N there; (2) second, that in the event the court does not dismiss his applications, the father file and serve a witness statement, supported by a statement of truth, setting out his true intention and the ultimate purpose for these applications, and whether he intends to attempt to unravel the consent order; and (3) third, that in the event that his applications are dismissed, and he continues to make further vexatious applications, then contact between the father and N be "suspended".
- Since there was no reference to any of these proposed orders in either her position statement or her skeleton argument dated 30 April 2009, it would not seem that the mother is still actively pursuing any of these issues. I should however record what the mother has said very recently on the matter and at the same time draw attention to two observations which the guardian has made.
- The mother says that she does not seek suspension of any contact between N and his father. But she knows that he wants the 'trouble' to stop; he has said so on many occasions. "I wanted and still want, indeed plead, that this litigation comes to an end and that N can at last enjoy spending time with both parents. At the time when I suggested suspension of contact, I thought that this might assist in causing the father to think about his actions." She adds: "N is my only child, who I love more than life itself. Please allow this wonderful and brave child to live without the continuation of further litigation, and that his future should be without the troubles."
- The guardian says that she believes it to be inappropriate to suggest to the father that he should not be at the Sunday School if he is assisting them in a formal capacity. And she hopes that the mother would not consider suspending contact between N and his father "as I have seen a good bond between the two of them and N enjoys his time with his father." She adds that she understands that the mother finds the continuation of litigation stressful and points out, as is indeed the case, that I am well aware of N's views.
The issues: (8) leave to disclose {1, 2}
- I have already dealt with this in a separate judgment: Re N, A v G [2009] EWHC 1663 (Fam). There is no need for me to say anything more.
The issues: (9) section 91(14)
- The mother and the guardian, as we have seen, both seek a section 91(14) order. The father in his position statement of 24 April 2009 opposed a section 91(14) order as premature, in the light of, inter alia, DJ v MS [2006] EWHC 1491 (Fam) and Re W (Children) [2006] EWCA Civ 623.
- Without necessarily accepting that either of those authorities actually justifies the father's stance, I nonetheless accepted at the hearing that the question of whether or not there should by any section 9(14) order, and if so in what terms, is a matter best left to be considered, if the need arises, after I had given this judgment. I therefore say no more about it.
Discussion of the issues
- Having thus surveyed the battlefield in all its details it is now appropriate to stand back and assess the overall picture.
- The father agreed to he personally signed the consent order which I approved. With only minor exceptions, the arrangements set out in the consent order have, in the view of the mother and the guardian, worked well, and try as he may to suggest the contrary the father is quite unable to gainsay that assessment. Yet he seeks, in the more modest aspects of his forensic ambitions, to have the consent order varied in numerous respects. And, in his more sweeping ambitions and this in reality is what he is determined to engineer, whatever and however he seeks completely to subvert and destroy the consent order. For what he seeks is nothing less than to re-open the whole matter, in the hope that he will obtain the sole residence order which in over five years of litigation has thus far eluded him. And he persists in this demand despite, indeed in the teeth of, the consent order, and despite the fact, and fact it is (and I make clear that I say this bearing very much in mind everything said by the father in his voluminous written evidence), that he cannot, notwithstanding all his endeavours, point to any new evidence which has come to light or any significant change of circumstance since he agreed to the consent order.
- And if this is not bad enough, the father persists in his endeavours notwithstanding that he knows after all, he has been told often enough that his son desperately wants 'the trouble' to stop. So he proceeds on his never-ending forensic journey seemingly heedless of the effect it is having not merely on the mother the mother of his son but also, and most worryingly of all, on his son.
- Whatever he may have brought himself to believe, and whatever advice he may have received or be receiving, the father's behaviour is, if truth be told and the time has now come when, in the interests of his son, a judge must speak plainly an abdication of his duties as a father.
- I turn to a consideration of the various issues. I can be comparatively brief.
Discussion of the issues: (1) "correction" of the consent order {3}
- The father seeks the "correction" of the consent order notwithstanding that it has been sealed. Dr Pelling relies upon both the 'slip rule' and also the court's 'inherent power to vary its own orders so as to carry out its own meaning and to make its meaning plain': see the Supreme Court Practice 1999 Vol 1 pp 392-394. As he correctly says, both powers apply to an order which has been sealed and both powers apply to consent orders as much as to any other order.
- I do not propose to rehearse what I said in the judgment I gave on 5 September 2008: Re N, A v G [2008] EWHC 2134 (Fam). And I see no reason to change anything I said on that occasion.
- The simple fact is that the father agreed to the consent order: he signed it. The simple fact is that the consent order as sealed was in precisely the terms I intended. The simple fact, as I explained in the judgment I gave on 5 September 2008 (see Re N, A v G [2008] EWHC 2134 (Fam) at paras [21], [34]-[35]), is that there is no merit at all in the father's attempt to take advantage of the substitution in the document he signed of the word "dismissed" for the word "discharged" which had been used a little earlier when I orally pronounced the order. (Though it is to be noted that he seeks to "correct" the substitution by inserting in the order not the word "discharged" but the word "withdrawn".) And the simple fact, accordingly, is that I have no jurisdiction to "correct" the consent order because there is simply nothing to correct.
- To repeat, yet again, the consent order, in the form in which it was sealed, and sealed with my approval, was ipsissima verba in the terms of the document signed by the father. Moreover, as I pointed out in my earlier judgment (see Re N, A v G [2008] EWHC 2134 (Fam) at para [21]), because of the layout of the document he signed, the father's signature appears immediately below the very clear and legible words in manuscript "and the father's application for a residence order is hereby dismissed" (emphasis added).
- The father's application is devoid of merit. I suspect that his motive for making the application is, indeed, as the guardian fears, to make it more plausible for him to launch yet another application for residence. Be that as it may, the application is dismissed.
Discussion of the issues: (2) "declaration as to status of" the consent order {4}
- This application also, in my judgment, is at best unnecessary and inappropriate and at worst mischievous.
- If he is concerned only with the welfare of his son, and if he is content with the substance of the consent order (though of course he is not), what does it matter to the father what jurisdiction the order was made under? Why does he need 'clarification'? In all its practical aspects, the meaning and effect of the order is perfectly clear. And if it is not clear, if it so important for him to know, as he puts it, what the legal status of the order is, why ever did he agree to it? The reality is that he does not need to know any of these things. And the idea that an order in this form may give rise to future difficulties in relation to the appointment of a testamentary guardian is a theoretical spectre which owes more, I suspect, to the fertile ingenuity of Dr Pelling than to anything of substance in the real world.
- The fact is that this is all designed to enable the father to say but to what end so far as the interests of his son are concerned? that he has a joint or shared residence order. But why? Both parents have parental responsibility so both are equal in the eyes of the law. The mother does not feel the need for a residence order (whether sole or shared) and is content with the words "spend time with" which both she and the father decided to adopt when agreeing the consent order. The concerns of the guardian are concerns I share. I agree with her analysis.
- Dr Pelling took me at some length through the long line of cases, beginning with D v D (Shared Residence Order) [2001] 1 FLR 495, including such cases as Re A (children) (shared residence) [2002] EWCA Civ 1343, [2003] 3 FCR 656, A v A (Shared Residence) [2004] EWHC 142 (Fam), [2004] 1 FLR 1195, Re P (Shared Residence Order) [2005] EWCA Civ 1639, [2006] 2 FLR 347, and Re C [2006] EWCA Civ 235, and culminating with Re K (Shared Residence Order) [2008] EWCA Civ 526, [2008] 2 FLR 380, explaining the circumstances in which it is now recognised as being appropriate for the court to make a shared residence order. Subsequent to the hearing he brought to my attention the very recent decision of the Court of Appeal in Re W [2009] EWCA Civ 370, which in turn refers to the slightly earlier decision in Re A (a child) (joint residence: parental responsibility) [2008] EWCA Civ 867, [2008] 3 FCR 107.
- With all respect to Dr Pelling none of this helps me at all. The question is whether I should make some declaration 'clarifying' the order. The authorities I have just mentioned throw no light on this at all.
- The sheet anchor of Dr Pelling's argument is the decision of the Court of Appeal in Re B (a child) [2001] EWCA Civ 1968, a case apparently regarded as of such slight importance that it is seemingly not reported in either the Family Law Reports or the Family Court Reports. Ward LJ (with whom Dame Elizabeth Butler-Sloss P agreed) having referred (at para [8]) to the statutory definitions of a 'contact order' and a 'residence order', said this at paras [9]-[11]:
"[9] It seems to me to follow that one cannot have a contact order without having first determined who the person is with whom a child lives because it is that person who has to allow the child to visit or stay with the applicant for the contact order.
[10] A shared contact order 7 days with one, 7 days with the next is a creature unknown to law and for that reason ought to be discharged. It was not, as it might have been, a shared residence order, the power to grant which is expressly conferred by Section 11(4) of the Act
Reading the judgment, it seems to me plain that the judge failed to distinguish in his own mind the difference between residence and contact orders. His language is, with great respect to him, confused. For example, he speaks of benefits of what he proposed in these terms:
"I think that having seven days contact and then a changeover is, indeed, likely to cause the least possible problem. First of all, it will give this young man stability. He will know that for this week he is living with mum, and the next week he is living with dad
" (Emphasis added)
[11] The language portrays his confusion of the nature of the operation of the two orders."
- There is an echo of this perhaps, though he did not in fact refer to Re B, in Wilson LJ's observation in Re W [2009] EWCA Civ 370 at para [21] that:
"In circumstances in which a shared order for residence is made, the order may specify the periods during which the child is to live in the different households: in such circumstances contact, by contrast, does not arise. It is a contradiction in terms to grant a contact order to a person who has a shared residence order."
- Now I do not of course have any difficulty with anything said by either Ward LJ or Wilson LJ, all of which is, after all, quite obviously right. But the consent order as I approved it does not exhibit any of the vices to which they refer. Indeed, it carefully, and deliberately, omits all reference to "contact", just as it carefully, and deliberately, omits all reference to "residence". So neither of these authorities assists Dr Pelling.
- I see no good reason to assist the father in this unnecessary endeavour and good reason why I should not. The parties agreed what they agreed. With the blessing of the guardian at the time I approved it. Their agreement was embodied in a consent order in precisely the terms they had agreed. There is no need for me to provide 'clarification' of the kind the father seeks.
- And if it is being said that I had no jurisdiction to approve an order by consent in the terms of the consent order, then I entirely disagree. No authority for any such proposition has been produced and I am not aware of any. On the contrary, it would be profoundly unsatisfactory if, except possibly in some especially egregious case, a party who had willingly, and, as here, with professional advice, entered into a detailed consent order should then be able to escape from what he has agreed by reliance upon such an argument.
- I dismiss the application.
Discussion of the issues: (3) interpretation of the consent order {5-8}
- There are two issues of construction of the consent order on which the father and the mother cannot agree. As it happens, they are both right and both wrong.
- So far as concerns the meaning of paragraph 8(c) of the consent order the father, in my judgment, is correct, and essentially for the reasons he gives. So far as concerns the meaning of paragraphs 19 and 20 the mother, in my judgment is correct, and essentially for the reasons she gives.
- There is no need for me to elaborate much on what I have just said. So far as concerns paragraph 8(c), the key point is that it defines time to be spent with the father, and, moreover, time "in addition to" that specified in paragraph 6, but says nothing whatever about time to be spent with the mother. And there is nothing to be found anywhere in the consent order to deprive the father of the right to spend time with N in accordance with paragraph 6(a) in relation to a day which, although it falls on Yom Kippur (or the eve of Yom Kippur), is not a day on which the father has the right to spend time with N in accordance with paragraph 8(c).
- So far as concerns paragraphs 19 and 20, it will be noted that paragraph 19(a) provides for the travelling parent to provide the other parent with the relevant information either 3 or 7 days in advance of the trip (depending on whether the trip is to Europe or further abroad) whereas paragraph 20 requires the mother to provide the passport to the father "during school term time, not less than 2 days prior to the proposed trip, and at times outside of school term time, the passport is to be delivered by the child directly, during the child's next stay with his father immediately preceding the proposed trip." So there will be circumstances where the father is indeed required to provide the relevant information to the mother before she is required to release the passport to him.
- I agree with the guardian that there is no need for me to make any formal declarations in relation to these issues of construction, and I decline to do so. This judgment provides the necessary clarification as to what the relevant paragraphs of the order mean.
- So far as concerns the events of October 2008, I do not propose to make any order. No useful purpose will be served by a formal declaration that the mother was in breach, and the idea of awarding 'compensatory time' is, for the reasons given by the guardian, wholly inappropriate.
- Accordingly in relation to two of the father's applications, {5} and {8}, I decline to make any order, although agreeing with the father in relation to the first issue {5}. I dismiss the other applications {6} and {7}.
Discussion of the issues: (4) "working out of" the consent order {15-21}
Discussion of the issues: (5) "variation" of the consent order {8A-14A}
- I propose to deal with these together, for both involve more or less significant alterations to the terms of the consent order, the only difference being that the first group of orders seek alterations by way of proposed additional terms whilst the second group of orders seek variations of the existing terms of the order.
- Irrespective of their intrinsic merits or demerits (a matter which, to the extent it is appropriate, I touch on below) I decline to make any of the proposed orders.
- There are four reasons, in particular, why I take this course:
i) In the first place, the parties entered into a consent order, and if the court, absent the most compelling cause, once embarks upon a non-consensual alteration or elaboration of that order, it will inevitably begin to unravel, ultimately ceasing to be in any meaningful sense a consent order.
ii) Secondly, it is high time that these parents both of them began to take several and joint responsibility as parents for N's future. Parental responsibility, as defined in section 3 of the 1989 Act is not merely a platform for litigation, let alone for endless applications to the court of the kind pursued so relentlessly and for so long by the father. It is "all the rights, duties, powers, responsibility and authority" (emphasis added) which by law and in this respect the secular law of England merely follows the law of nature a parent has in relation to their child. These parents the father in particular need to shoulder the burden of their parental duties and parental responsibilities. They have an obligation a moral and parental obligation; not merely a legal obligation to their son (never mind their obligation to the court) to discuss between themselves and to decide how he is to live and how he is to be brought up. They merely abdicate that responsibility if they come to court, particularly in relation to matters as comparatively trivial as some of those on the father's list. And what do they imagine their son thinks of them, what do they imagine their son will think of them in future, as a teenager and later as an adult?
iii) Thirdly, there is a very real risk that further non-consensual intervention by the court will not, in the long run, assist anyone neither the parents nor, more importantly, their child. For the more the court is drawn into the process of imposing solutions which the parents are unwilling or unable to agree themselves, especially the more trivial the issues to be resolved, the more impotent the parents will become in arriving at their own solutions, the more they will come to rely upon the court as a crutch, as a provider of answers to any and every question, however trivial. Far from encouraging them to assume the parental responsibilities which nature and the law have imposed upon them, and them alone, the court if it allows itself to be cajoled down this road will simply be encouraging them to avoid, indeed to shirk, their responsibilities. And how long is this process to continue? N is only a little over 8 years old. Is the court to remain involved until he is 16 or 18? Certainly not!
iv) Fourthly, there is the effect of all this on N. I need not repeat what the guardian has repeatedly, insistently and correctly said. Unless the court now disengages, and, more importantly, unless his parents now buckle down to the twin tasks of making the consent order work and, where appropriate, of giving it the necessary consensual 'tweaking', the future for N will, I fear, be bleak. For unless the parents do now buckle down, unless the court declines resolutely and with immediate effect to arbitrate where the parents refuse to agree, even though they can and should be able to agree, the process will continue until N simply 'votes with his feet', perhaps, and worst of all, until he abandons them both, pronouncing a 'plague on both your houses.'
- There must be an end to this and the time is now ripe some might think over-ripe for that step to be taken and for the court to decline to adjudicate further on these issues. In my judgment I would be failing in my duty were I to tolerate the further procrastination which will be the inevitable consequence of a failure on my part to act decisively and to do so here and now. The 'Principle of Unripe Time' so memorably satirised by Cornford may be merely amusing when applied to debates in the Senate House. But it cannot be permitted any operation where the welfare of a child is at stake.
- Put shortly, if the parents wish to agree sensible alterations to the consent order then all well and good. But it is for them to agree, not for the court to impose. I agree with the guardian's approach to all this. I share the despair she has voiced. I join with the President in urging the parents to reach agreement.
- In relation to the "working out of" the consent order, the father seeks seven orders {15-21}. He also seeks ten orders by way of "variation" {8A-14A}, together with the further order sought in his document of 30 June 2009.
- In relation to {9}, {10}, {11}, {13} and {16} the parents have reached agreement, so I propose to say nothing.
- In relation to {13A}, {14}, {17}, {18}, {19} and {20} I would in any event decline to make the orders sought, essentially for the reasons given by the guardian, though in relation to {20} I wish to make clear my expectation that neither parent shows N any court documents or discusses any court proceedings with him.
- In relation to {8A}, {8B}, {12}, {14A}, {15}, {21} and the additional matter raised by the father on 30 June 2009 I would invite the parents to consider very carefully what, as it seems to me, are the very sensible ideas put forward by the guardian, ideas which I would hope they could build on to arrive at agreement.
- I should add that, insofar as any of these matters involve disputed issues of fact, I would in any event decline to conduct any fact-finding exercise requiring oral evidence (see further below).
- If the parents, even at this late stage, are able to reach any further agreement in relation to any of these matters, and wish their agreement to be embodied in a further consent order, I will happily make such an order.
- Accordingly I dismiss all these applications.
Discussion of the issues: (6) re-opening of the consent order {22-27}
- As I have already observed, the plain reality, whatever he may profess, is that the father seeks by this group of applications completely to subvert and destroy the consent order. He seeks to re-open the whole matter, in the hope that he will obtain a sole residence order the very ambition which he explicitly abandoned when he signed the consent order! And he persists in this demand, as I have said, despite the fact that he cannot, notwithstanding all his endeavours, point to any new evidence which has come to light or any significant change of circumstance since he agreed to the consent order.
- The poverty of the father's case was only heightened by the difficulties Dr Pelling had in coming up with any convincing list when I specifically asked him to identify the factors the father relied upon in support of his assertion that the matter should be re-opened. In part he relied upon opinions expressed by Ms JJ and by the guardian in the reports which were before me at the hearing in July 2008. But if these opinions were as important as he now suggests in supporting a case for sole residence, why on earth did the father ever agree to the consent order? In large part he relied upon various incidents which have allegedly taken place since I made the consent order. Even assuming for the sake of argument that the father's factual allegations are correct and much of it is hotly disputed by the mother I cannot attach to these incidents, whether viewed separately or in combination, anything like the same gravity or significance as the father would have me accept.
- The fact is, to repeat, that, with only minor exceptions, the arrangements set out in the consent order have, in the view of the mother and the guardian, worked well, and try as he may to suggest the contrary the father is quite unable to gainsay that assessment. As Mr Holden put it in his submissions on behalf of the mother, and I entirely agree, nothing which has since happened is so drastic as to warrant overturning the consent order the matters complained of are all essentially comparatively minor.
- The only remotely plausible part of the father's case is the fact that the mother is moving into her own flat with N. But the guardian has considered that aspect of the matter very carefully and has concluded that it is not any reason to re-open the case. I agree with the guardian's analysis and conclusions on the point.
- Dr Pelling asserts that there is a very serious case for the father's application for a residence order. I profoundly disagree. He asserts that the father has a real chance of success in such an application. Again, I entirely disagree. The father is simply clutching at straws in support of his attempt to escape the arrangement embodied in the consent order which, truth be told, he now regrets having agreed to.
- If one stands back from the detail of the father's case and looks to the underlying realities the father is in truth faced with a dilemma. Either he accepts that the consent order was, at the time it was entered into, the most appropriate way of giving effect to and promoting N's best interests, in which case he is quite unable to point to any new evidence which has come to light or any significant change of circumstance since he agreed to the consent order which could begin to justify re-opening the case. Alternatively, he has to repudiate the consent order but in that case why did he ever agree to it?
- Am I obliged in these circumstances to go down the road that the father would have me travel? Emphatically not.
- Proceedings relating to children differ in important respects from ordinary civil litigation. As Balcombe LJ said in In re A (Minors) (Residence Order: Leave to Apply) [1992] Fam 182 at page 194, "this is not ordinary civil litigation: it concerns children."
- For present purposes there are two relevant principles to be borne in mind.
- The first is that set out in W v Ealing London Borough Council [1993] 2 FLR 788 at page 794, where Sir Stephen Brown P said:
"We reject [counsel's] contention that an applicant in all applications for which leave is not required is entitled to a full trial unless only the respondent can satisfy the stringent test required to justify striking out proceedings in ordinary civil litigation. In the first place, as Balcombe LJ said in ... Re A
"
this is not ordinary civil litigation: it concerns children". In our judgment that is a salutary observation and it would be unwise in this jurisdiction to seek to restrict the discretion of the court by imposing a rigid formula upon the conduct of proceedings."
- The second is the principle that the normal doctrines of res judicata and issue estoppel do not apply to children proceedings: Re B (Children Act Proceedings) (Issue Estoppel) [1997] 1 FLR 285. But this does not mean that the parties are free to re-litigate issues at will: AB v JLB (Brussels II Revised: Article 15) [2008] EWHC 2965 (Fam), [2009] 1 FLR 517, at para [39]. As Hale J (as she then was) said in Re B at page 294:
"this does not mean that the court is bound to allow the parties to call evidence on each and every issue which may be relevant in the proceedings. Several authorities attest to the existence of a discretion in the court as to how the hearing should be conducted."
- How then is the discretion identified both by Sir Stephen Brown P and by Hale J to be exercised? I go first to what Butler-Sloss LJ said in Re B (Minors) (Contact) [1994] 2 FLR 1 at page 5:
"[Counsel] argued that
a judge is obliged to hold a full hearing, permitting the parties to call oral evidence and cross-examine any witness they may choose. In my view a judge in family cases has a much broader discretion both under the Children Act 1989 and previously to conduct the case as is most appropriate for the issues involved and the evidence available
There is a spectrum of procedure for family cases from the ex parte application on minimal evidence to the full and detailed investigations on oral evidence which may be prolonged. Where on that spectrum a judge decides a particular application should be placed is a matter for his discretion."
- She continued (at page 6) by saying:
"The considerations which should weigh with the court include:
(1) whether there is sufficient evidence upon which to make the relevant decision;
(2) whether the proposed evidence (which should be available at least in outline) which the applicant for a full trial wishes to adduce is likely to affect the outcome of the proceedings;
(3) whether the opportunity [to] cross-examine the witnesses for the local authority, in particular in this case the expert witnesses, is likely to affect the outcome of the proceedings;
(4) the welfare of the child and the effect of further litigation whether the delay in itself will be so detrimental to the child's well-being that exceptionally there should not be a full hearing. This may be because of the urgent need to place the child, or as is alleged in this case, the emotional stress suffered by both children, and particularly D;
(5) the prospects of success of the applicant or a full trial;
(6) does the justice of the case require a full investigation with oral evidence?"
- In relation to the particular facts of that case she observed (at page 7) that:
"the emotional pressure on D of the continuing litigation over her is giving rise to considerable concern. It would not meet her best interests nor the justice of the case for [the stepfather's] application to go forward unless there were real prospects of success
I can see no prospects of success for the stepfather if this matter was to proceed to a full oral hearing."
- I should also refer to what Purchas LJ said at page 8:
"Whereas in a civil action if the pleadings disclosed a cause of action a litigant might well be entitled to proceed to a full trial, in equivalent circumstances in a case involving the welfare of children this might well not be the case. If it was established that the certainty of continuing harm to the children caused by the anxieties of litigation, or by the ongoing stresses between adults, outweighed the impact of possible chances of success of the application, this would justify the courts in refusing to allow the application to go forward."
- He added at page 9:
"the general ambit of the jurisdiction
extends to the determination by the judge of the manner in which the future trial and disposal of the application shall be achieved in the best interest of the children involved."
- In Re B, Hale J said this at page 295:
"the court undoubtedly has a discretion as to how the inquiry before it is to be conducted. This means that it may on occasions decline to allow a full hearing of the evidence on certain matters even if the strict rules of issue estoppel would not cover them. Although some might consider this approach to be a typical example of the lack of rigour which some critics discern in the family jurisdiction, it seems to me to encompass both the flexibility which is essential in children's cases and the increased control exercised by the court rather than the parties which is already a feature of the court's more inquisitorial role in children's cases (and beginning to gain ground in other litigation as shown in the Woolf Report on Access to Justice)."
- I appreciate that both the father and Dr Pelling would probably see themselves amongst the critics to whom Hale J was there referring see their previous expostulations recorded in Re N (Payments for Benefit of Child) [2009] EWHC 11 (Fam), [2009] 1 FLR 1442, at paras [63], [66], attacking what they were pleased to call "Hale J's pernicious judicial activism" but I cannot help that. The simple fact is that I respectfully agree with Hale J who moreover, it might be pointed out, was here doing no more than to follow and apply principles already laid down by the Court of Appeal.
- Recent examples of applications in children cases which have been summarily dismissed or dismissed after a substantive preliminary hearing on limited evidence and without oral evidence (for the distinction see W v Ealing London Borough Council [1993] 2 FLR 788 at pages 794-795) include S v S [2008] EWHC 2288 (Fam), [2009] 1 FLR 241, and AB v JLB (Brussels II Revised: Article 15) [2008] EWHC 2965 (Fam), [2009] 1 FLR 517. No doubt there are many others, most probably unreported.
- Referring to the list of factors identified in Re B by Butler-Sloss LJ, Dr Pelling submits that in relation to questions (1) and (4) the answer is no, in relation to questions (2), (3) and (6) the answer is yes, and that in relation to question (5) the answer is that the father's prospects of success at a full trial are good. With all respect to Dr Pelling I would answer each of the questions in precisely the opposite sense.
- Without treating the list as a catechism, I stress that I am quite satisfied (a) that I have before me more than enough evidence and other material to enable me to make a fair and proper decision, (b) that the prospects of the father succeeding were there to be a full trial are remote, (c) that the justice of the case does not require a full investigation with oral evidence and (d) that the further prolongation of this litigation can only be detrimental seriously detrimental to N's welfare. To repeat, N desperately wants, in my judgment N desperately needs, 'the trouble' to end.
- In S v S at para [31], I suggested that, although the statutory context is different, it is not unhelpful in private law proceedings to pose the question identified by Waite LJ in the context of public law proceedings in London Borough of Southwark v B [1993] 2 FLR 559 at page 573: Is there some solid advantage to the child to be derived from continuing the proceedings? In the present case there can be only one answer to that question. Not merely is there no solid advantage indeed, no advantage at all to N to be derived from continuing the proceedings; the continuance of the proceedings can only be seriously detrimental to his welfare.
- In the circumstances I have no hesitation in dismissing the father's applications. To do otherwise would, in my judgment, be an abdication of my responsibilities as the judge charged with safeguarding and promoting N's welfare.
- I should add a brief word about one matter which the father though not Dr Pelling identified as being one of "principle", namely what he asserts (see paragraph [151] above) is "the general principle that a boy [of] this age, is, on the whole, other things being equal, better to be with his father." This is in fact, as Dr Pelling pointed out, a direct quotation from what Lord Denning MR said in W v W & C [1968] 1 WLR 1310 at page 1312. Sachs LJ said much the same at page 1313.
- However, as Dr Pelling very properly drew to my attention, a very different view was subsequently taken by the Court of Appeal in In re C (A) (An Infant) [1970] 1 WLR 288, a case in which, it may be noted, the court had the benefit, seemingly denied to the court in the earlier case, of citation of relevant authorities. Harman LJ at page 291 said this:
"I do not at all agree with expressions of opinion which have fallen, perhaps per incuriam, from judges that a boy should, as a matter of "principle," be with his father just as much as I disagree with the other "principle," which has altogether been abandoned, that a girl of under three should, as a matter of principle, be with her mother. Other things being equal, these things may be so, but there is no principle involved in either. They are merely considerations which may weigh with the judge, where the scales are nicely balanced."
- Edmund Davies LJ at page 293 was equally forthright:
"If W v W and C [1968] 1 WLR 1310 is to be regarded as authority for the proposition that there is a "principle" that a boy of eight should, all other things being equal, always be left in the custody of his father, then that is a view with which, with profound respect, I cannot agree. The decision must depend upon who the father is, who the mother is, what they are prepared to do, and all the circumstances of the case. In my judgment, there is no such "principle," the age and sex of the child being but part of the considerations to be borne in mind."
- In short, the "principle" contended for by the father does not exist. The guardian was entirely correct in saying that the father's assertion is "clearly not correct."
- Dr Pelling, whilst disavowing this as a principle of law advanced it (and I quote from his suggested 'corrections' to the draft judgment) as "one of nature or science, based on the US research of Professor R Warshak, which did find that after parental break-up, a child, other things being equal, does do better in the custody of the same-sex parent." He commented that "the wisdom of those judges like Lord Denning MR from an older era had found confirmation in this more recent research."
- Having referred to Wilson J's observation in his 2002 Atkin Lecture, 'The Misnomer of Family Law', [2003] Fam Law 29, that "most of you will admit that your private perception of the Family Division is, in every sense, as the Third Division. The Leyton Orient of the High Court. We are not the Third Division", Dr Pelling went on as follows (I record what he says without further comment):
"One of the most appalling aspects of the Family Division, which causes it, amongst many other things, to merit the perception of it as the Third Division, is the way the judiciary routinely ignore expert research carried out under proper scientific conditions. When confronted with research findings they usually hide behind the mantra that each case turns on its own facts and that the court must concentrate on the particular circumstances of the case before it, hence research of a general character can be and will be ignored. This has the useful consequence of enlarging the scope of judicial discretion. The fallacy is obvious to those of a scientific and rational turn of mind: if a general principle or law is established which has exceptions in some cases, then the onus is upon the person who claims an exception to justify that. The existence of the general principle justifies reliance upon it until the contrary is proved, and the burden of proof is upon he who claims the contrary. I am sure that even a judge of the Family Division assumes that sugar will dissolve in his tea and does not say, well, we must not assume that since each cube of sugar and cup of tea turns on its own facts we must examine every cup and cube individually before judicially concluding that the cube will dissolve in the cup."
- Be all that as it may, I take the law, as I must, from the Court of Appeal.
Discussion of the issues: (7) matters raised by the mother
- My approach in relation to these matters is must be precisely the same as my approach to the similar applications made by the father. Irrespective of their intrinsic merits or demerits I decline to make any of the proposed orders. It is for the parents to agree, not for the court to impose.
- I would however again invite the parents to consider very carefully the very sensible ideas put forward by the guardian.
- I dismiss all the mother's applications.
Conclusion
- For these reasons I decline to make any of the orders sought in relation to any of the matters raised either by the father or by the mother. In relation to two of the father's applications {5} and {8} I shall make no order. All the other applications, whether of the father or the mother are dismissed, without prejudice, of course, to the terms of the consent order dated 8 July 2009.
Afterword
- I have already set out paragraph 8 of the order I made on 21 April 2009 and recorded how the father, in his position statement dated 24 April 2009, had put in issue my power to give that direction. It is convenient to set out what he says:
"[T]he Applicant objects to Clause 8 of the Directions Order 21/4/09
The Court has no power to compel the Parties to set out their arguments in full in writing in advance of the hearing
It is inconsistent with the oral tradition and due process of English Law; the Family Proceedings Rules 1991 contain no requirement for skeleton arguments or position statements and they are not even mentioned in the Rules; the President's PD 27 July 2006 mandates position statements but not skeleton arguments; it is a contradiction in terms to set out one's full argument in a skeleton and that is not the function of a skeleton; it is also inconsistent with the current trend for "transparency" in the Family Division since under the new FPR Rule 10.28 the press can be present at the hearing but it is not much use if all the arguments are in documents they are not entitled to see they need to hear the arguments; as to position statements the President clarified their function in his recent Judgment of 8 April 2009 on the Committal application, where he stated at Para.64 that:
"The function of the Position Statement is to inform the judge in relation to the issues he will have to decide the extent to which the matters raised to his decision are agreed or may be the subject of opposing argument"
and so not to set out one's whole argument. Mr A has now fully complied with the Rules by issuing Application in Form C2 and paying for it and is entitled to have all his applications therein processed in the proper manner at fair hearings."
- And at a later stage, as we have seen, the father in his document of 30 June 2009 likewise challenged my right to give the directions which I had thought appropriate, asserting that there should be "another full round of submissions."
- These are not the only occasions on which the father, with the assistance of Dr Pelling, has sought to lecture me on my judicial responsibilities; for another example see Re N (Payments for Benefit of Child) [2009] EWHC 11 (Fam), [2009] 1 FLR 1442, at para [116].
- I do not accept any of these strictures. And I would vigorously dispute any assertion that case management directions of the kind I gave on the two occasions of which the father complains are outside the competence of the court. Pro-active judicial case management is an essential feature of practice in the modern family courts. Without such case management the system would simply collapse. And the antics of litigants who, like the father here, seek to defy, without appealing, the orders which the judge to whom a case is reserved has thought appropriate to make as part of his responsibilities to ensure the proper management of the case, merely redound to the disadvantage of other litigants and other children who, patiently awaiting their turn in an already over-long queue, comply with the court's directions.
