B/2001/2337

Neutral Citation Number: [2001] EWCA Civ 1827
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BIRMINGHAM COUNTY COURT
(Mr Recorder Parry)

								Royal Courts of Justice
								Strand
								London WC2

								Thursday 14 November 2001

B e f o r e:

THE PRESIDENT OF THE FAMILY DIVISION
Dame Elizabeth Butler-Sloss
LORD JUSTICE KEENE

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D (A CHILD)

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(Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited, 190 Fleet Street,
London EC4A 2AG
Tel: 0207 404 1400
Official Shorthand Writers to the Court)

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MISS J MURRAY (Instructed by Russell-Cooke, Potter & Chapman, 2 Putney Hill, Putney, London SW15) appeared on behalf of the Appellant

The Respondent did not appear and was not represented

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J U D G M E N T
Tuesday 14 November 2001
1.	THE PRESIDENT: This is an appeal from Mr Recorder Parry sitting in the Birmingham County Court on 11 October, in which he made an order for staying contact in respect of a little boy, B, born on 26 June 1998. The recorder did two things. He made an order for staying contact and he also made an order for costs against the mother. 
2.	I make a direction that there should be no identification of the name of the child, the name of either parent, an address or anything else that may lead to the identification of this family.
3.	The background to this case is that the parents did not marry. They had a child born, as I have said, in 1998. They separated in March 1999. At that stage, entirely sensibly, the contact arrangements were agreed between the parents. B was, of course, extremely young at the time the parents separated. Between March 1999 and January 2000 he saw his father every Sunday and every Wednesday evening, and after January 2000 he saw the father one day in each weekend, changing the day from time to time according to everybody's convenience. Between October and December of 2000, however, the mother reduced the contact to a fortnightly basis. 
4.	There have been a number of reports from welfare officers, and on 3 August 2001 there was an agreed order for contact. Most unfortunately, although contact had been agreed between the parties and had been apparently reasonably successful during a period, the mother decided, without reference to the father (and, more importantly, without reference to the court) that there should be no further contact and suspended it. Not surprisingly, the father reacted very quickly on the suspension of the agreed contact. Two CAFCASS officers observed contact on 11 September and there was a CAFCASS officer's report on contact of 25 September 2001. The suggestion was that this little boy did not want to see his father, was upset at contact and displayed signs of stress and upset. The CAFCASS officers went to the mother's address and saw the mother with the grandparents. The mother was concerned that the CAFCASS officers were not going to travel with B and the father. There was some suggestion that the little boy became upset at the route that was taken. The only problem for B was being taken away from the Teletubbies, but once he was placated on that he was “happy and relaxed” (a quotation from the welfare report). He went to the front door, he saw his Daddy and he ran immediately towards him for a cuddle and was happily carried in his father's arms to his father's car, at which he saw the current partner of the father. One of the CAFCASS officers was in the car with B and the little boy remained entirely happy throughout the journey, including through the particular route that the mother had said had upset the child previously. B got out of the car, he saw his aunt and his cousin and he hugged his aunt. The whole picture is of a child entirely happy on a contact visit to his father. According to page 5 of this CAFCASS report, the grandmother turned up and he went to his grandmother for a kiss and asked where his grandfather was. It was an entirely appropriate contact visit. Paragraph 3.12 says:
“Throughout the contact [B] was relaxed and happy. He went up and down the stairs with ease to collect toys. He commented about changes in the garden and asked where things were; he was happy have a cuddle with his dad and grandmother. He clearly knew how to operate the television and CD system and knew where his personal CDs were kept. He was heard to say part way through the contact 'not go yet.'“
5.	The video of B upset in the car that had been presented by the mother was a matter of considerable criticism by the CAFCASS officers. Most important, the view of the CAFCASS officers was, at paragraph 6.6:
“Given the meetings we have had with the parties and the contact we observed, we feel contact is a positive experience for B ... Looking at it from [B's] perspective, we are of the view that overnight contact would be an enjoyable experience for him. However, our concern rests with how the mother might influence such contact, given her negative feelings about [the father].”
6.	That report was of course before the recorder.
7.	The recorder formed a strong view, as indeed I have, about the way in which the mother had stopped the contact three weeks after it had been agreed in August. He took a strong view about the video, as indeed the welfare officer had. The application before the recorder was that contact should be suspended pending further investigation by a child psychiatrist (to be appointed) of the alleged effects on B of the contact regime which had been taking place in accordance with the order. The recorder said at page 2 of his judgment:
“ ... it does not seem to me that the mother would be entitled to present the child for examination by a child psychiatrist, whether ... at her own cost or with the benefit of public funding, unless with the permission of the father unless there was evidence upon the basis of which a court could order that it would be in the interests of the child's welfare that a psychiatric examination of him ... should be undertaken. There is no evidence whatsoever upon the basis of which I could come to a conclusion that would entitle me to order that contrary to his father's wishes, [B] should be submitted for examination by a child psychiatrist.”
8.	On the basis of the evidence before the recorder he was clearly right, and he was clearly right not to direct that there should be investigation of B by a child psychiatrist.
9.	The recorder went on to say:
“I see no reason to suspend contact, for whatever purpose such suspension may have been proposed.”
10.	Then he sets out his concerns about the way in which the mother has behaved. He decided not to put a penal notice on the order, for the good and sensible reason that her then state of anxiety would be increased if she had the feeling that she might be committed to prison for contempt of court, and he went on to say ‑ and the mother must take very careful note of what the recorder said:
“ ... the mother should not be under any misconception that court orders are to be obeyed and disobedience of the orders of the court will commonly involve committal to prison if that disobedience is wilful.”
11.	In the Family Division it is more difficult for us to send mothers to prison, for very practical reasons, but it is a possible outcome of disobedience to a court order. The recorder went on to say:
“I do not see the mother's concerns about [B] as being justified in the light of the objective evidence of the court welfare officer. Nonetheless I do accept the strength and sincerity of the feelings that she has expressed. I merely doubt the wisdom of the manner of her expression and the manifestation of her disagreement with the findings of the court welfare officer.”
12.	So far I respectfully agree with the recorder. He then went on to say that he ought to make an order defining contact. In a sense that was not necessary because there was a carefully defined order for contact of 3 August.
13.	Then, unfortunately, the recorder went on to a point at which I depart from him, and this is the main basis of this appeal. He said:
“I propose to adopt the proposals put forward on behalf of the father by his counsel that contact should include staying contact.”
14.	It is important to remember that this was a half‑hour directions hearing. It was not a full hearing with the parties giving evidence and the submissions of counsel or solicitors on the substantive application. In particular the question of staying contact had been raised by the father and was to be considered at a hearing to take place early in January 2002. It was not expected that at the directions hearing there would be time for the parties to give evidence, time for the mother to express her concerns, time for the judge hearing the case to consider it in some depth. Miss Mullen, then representing the father, said at page 8:
“Your Honour, I had considered applying today for an increase in contact to go to the next level of overnight contact, but I accept that the court does not have time to look at the merits and would wish to hear from the [CAFCASS] officer before that happens.
The Recorder: She is not here today, I take it?
Miss Mullen: Yes, she is not here, but your Honour may know that she wrote to the court and to [the father].” 
15.	But although Miss Mullen, entirely appropriately on a directions hearing, did not apply for overnight contact, the recorder went on to say at page 20 of the transcript:
“I fully accept that [staying contact] is an extension of what was agreed before, an extension of the order made on 3 August 2001, and that it might be thought that by ordering that there should be staying contact, I might be seen in effect to be pre-judging the outcome of the application, which is to be heard, as I am now told in January ... 
... it may be said I am pre-judging the outcome of the final hearing, but I do not intend to do so. It seems to me that a judge before whom this matter comes in January may be assisted if he has some further information from an objective source as to how [B] has reacted to staying with his father and that the judge, on the basis of objective evidence, will then be better able to assess the case. He may conclude as a result of the outcome of [B] being given staying contact with his father on the evidence as a whole, that is something which should not continue or that the terms upon which it is enjoyed and the period for which it is enjoyed should be varied.”
16.	Consequently he went on and made an order for staying contact. That, as I said, is the basic objection of the mother to that order.
17.	In the meantime, the staying contact has not taken place. There has been an application for a stay of execution before Hale LJ. She granted permission to appeal, stayed the staying contact and reimposed the 3 August visiting contact between B and his father.
18.	It is possible, on a hearing for directions, for the court to make a definitive order if the evidence is all one way and is absolutely clear. That is a way of dealing with a case that may be appropriate in unusual circumstances. But the normal procedure in family cases is that a directions hearing is intended to be for directions only. For instance, in a case where a parent has unilaterally stopped contact which has gone on before in circumstances where there is no evidence to show it should not go on, it is entirely appropriate on a short hearing to reinstate the contact. The court does not need the parties to give evidence unless it is concerned that the pre‑existing contact, for one reason or another, should not be continued.
19.	But to move from visiting contact in respect of a little boy of three years old to staying contact overnight is a considerable step beyond the contact that the little boy has enjoyed and understood. Children as young as three need the stability and security of their own bedroom, their own bed and the primary carer until the point at which, with the advice of the CAFCASS court reporter, the judge considers that it is appropriate to move to staying contact. There is, in this case, some clear evidence in support of staying contact from the CAFCASS court reporter and I have already read it out. If the mother did not object to staying contact, there would have been no reason for the recorder or judge not to make the order at a short appointment, but it would not then have been necessary to have the full‑scale investigation into staying contact which is arranged for January 2002.
20.	Despite what the recorder said, he plainly jumped the gun. He plainly did go ahead of what is an appropriate way of dealing with a case at a directions hearing. The mother does object. She is entitled to have her concerns placed before the court so that the judge has the advantage of the evidence of both parties and the opportunity to see that the child will be properly looked after in every sense. There is no reason to assume that he will not be, but the judge will have to see that before he makes an order that extends the form of contact from visiting to staying, particularly with a child as young as three. In the light of the welfare officer's report, the mother may well have a difficult task in persuading a court that she should not agree to staying contact or that, if she cannot be persuaded to agree, that staying contact will not in any event be of advantage to her son. He will not be three for ever. He will go on having a relationship with his father for the rest of the father's life and his life. It is important that this mother appreciates that it is good for the boy to know both his parents and the quicker she takes on board that a relationship with his father is not a threat to her, but a benefit, and that she should be handing the boy over in a cheerful way, encouraging him to enjoy what he clearly enjoys, the better. 
21.	But she is entitled to tell the judge how she feels about staying contact. That opportunity she was not given. The recorder did not even say “I will try it out once”. What he did was to make an order that made it a regular feature of the contact that there should be staying contact, and on a considerable number of occasions before the hearing in January. It leaves one with the question, what on earth was the point of the hearing in January, because he had prejudged the outcome? Or, if he thought the staying contact might not be successful, he was treating this little boy as a guinea-pig and that was equally unacceptable. So I have no doubt at all that it was premature to make a staying contact order in October. Looking at the welfare officer's report, the real possibility is that it may be the right order in January but the judge in January must have the opportunity, untrammelled by what Mr Recorder Parry did and equally untrammelled by any comments I make today, to see whether it is the right thing for B at that time.
22.	We have had a letter from the father's lawyers. His expenses in putting forward his case are such that he feels he cannot afford to attend today. He clearly wants to attend in January. He has said through his solicitors in their letter that he would like the recorder's order to be upheld. He felt that the overnight visits would be helpful for the judge in January. He was very happy for an overnight visit to take place during the week so that the CAFCASS officers could visit B at the end of the overnight stay. I think it is only fair that I should read out what he wishes to say through his solicitors:
“Our Client has absolutely no doubt whatsoever that [B] would be fine and instructs us that [B] seems very excited about the prospect of staying overnight ... We are instructed that if overnight contact did take place and [B] did show any signs of distress and remained inconsolable, then our Client would be content for contact to be built up gradually. The last thing our Client wants is for [B] to suffer distress in any way.”
23.	The father is concerned that ‑ and I read a sentence from an earlier paragraph:
“He fears that if there has been no overnight contact at all prior to the hearing, the Judge may take the view that no decision can be taken on overnight contact until it has been 'tried and tested'.”
24.	As I understand it, Miss Murray is saying for the mother on this appeal that she certainly would not take that line before the judge, and I would be surprised if the judge took that line. He would decide, it would seem to me, whether or not staying contact was appropriate, not whether or not it had to be tested.
25.	Consequently, despite the arguments put forward (and very well put forward, if I may say so) in the solicitor's letter on behalf of the respondent, in my judgment the recorder was not entitled, on a directions hearing, to extend contact from visiting to staying. That part of the appeal must be allowed.
26.	The second issue which has arisen is the issue of costs. The father's representative asked for a costs order against the mother in relation to those proceedings. Of course he had had to take the proceedings because the mother had suspended contact. The recorder had the background of a refusal by the mother to obey a court order ‑ she was technically in contempt ‑ and her stand that there should continue to be no contact and her request that this was the sort of case that required a child psychiatrist. She was not justified, according to the recorder, in any one of those three points, and I respectfully agree with the recorder. There are unusual cases where in child applications a parent is ordered to pay the costs. It is rare to order a parent to do so, and particularly rare in the case of a mother who, I understand, is on legal aid. If the recorder had set out in a subsequent judgment, given on the same day, that, after considering all those factors, he thought nonetheless that the behaviour of the mother and the waste of money in the necessity for a hearing on 11 October, leading to another hearing in January, was such that she must have that conduct recognised by an order for costs, then this court might have been in considerable difficulty in setting aside such an order. The recorder would then have exercised his discretion in respect of costs and it is not the practice of the Court of Appeal to interfere with such exercise of discretion in costs cases.
27.	But unfortunately the recorder seemed not to understand the background to the granting of costs orders in family cases. We have been reminded by Miss Murray for the appellant, and I am grateful to her, that under the Civil Procedure Rules 1998 rule 44.3(3):
“The general rule does not apply to the following proceedings - 
(a)proceedings in the Court of Appeal on an application or appeal made in connection with proceedings in the Family Division ... “
28.	Even more relevantly, there has grown up a clear practice in the High Court and the County Court, which has been set out in a number of cases, that it is not the practice to order costs in children cases. But the recorder unfortunately did not seem to know that and said:
“In the ordinary course of events parties to the litigation, even family or children-based litigation, who make applications which fail, the usual order will be that they will bear the costs. It does not seem to me that there are grounds in this case for departing from the usual rule. It seems to me, therefore, that the child's mother should pay the costs of today.”
29.	The costs order, which is also the subject of appeal to us today, cannot possibly stand. The recorder approached the case in error and without understanding the different position of family cases. Although I have been, in argument and in this judgment, critical of the mother's approach to contact, the recorder did find that she believed what she was saying and it was not malicious. This court will have to exercise its discretion on costs, since the recorder's exercise of discretion was incorrect, to see whether we think in the circumstances of this case there should be an order for costs. I do not for my part think that this is one of those unusual cases where a mother who is on legal aid should nonetheless be ordered to pay the costs of the hearing. It would seem to me that the appropriate order in that court was no order as to costs.
30.	I would therefore allow the appeal both on the staying contact and on the costs and set aside both orders, but with the reminder to the mother that she must loyally support the order which was made on 3 August for the existing visiting contact and the warning that if she does not, she will have a very difficult time in January.
31.	LORD JUSTICE KEENE: I entirely agree.
ORDER: Appeal allowed. The order as to staying contact and as to costs is set aside and the order of 3 August will continue until the hearing in January. No order for costs below and in the Court of Appeal. Public funding assessment of the appellant's costs.
(Order not part of approved judgment)