Case No: B4/2006/2452
Neutral Citation Number: [2007] EWCA Civ 555
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM WORCESTER COUNTY COURT
(HIS HONOUR JUDGE RUNDELL)

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday, 17th May 2007
Before:

LORD JUSTICE THORPE
and
LORD JUSTICE TOULSON

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IN THE MATTER OF C-E (a Child)		

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(DAR Transcript of 
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Mr M Rees (instructed by Messrs Tonner Johns Ratt) appeared on behalf of the Appellant.

The respondent appeared in person (instructed by Messrs Nowell Meller).

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Judgment

Lord Justice Thorpe:
1.	Mr Matthew Rees, on behalf of the father, seeks permission to appeal pursuant to an order made by Wall LJ on 17 March 2007.  He had read the application on paper as settled by Mr Rees and it persuaded him to order an oral hearing on notice with appeal to follow if permission were granted.  He quite rightly characterised the case as highly unusual and certainly did not hold out to the father any great prospects of success at the oral hearing.  
2.	This is a tragic case in which what I am sure is a very nice family has been rent by continuous litigation over the course of the last four and a half years.  The respondent mother in person in her very impressive skeleton argument says in paragraph 3:
“There have been to date around fifty hearings before one Deputy District Judge, four District Judges’, one Recorder and four Circuit Judges’ in nine different court jurisdictions …”
She continues in the next paragraph:
“Fortunately for the children there has been consistency of judicial decision since HHJ Rundell reserved the case to himself in December 2003.”
3.	I am in complete agreement with that sentiment.  HHJ Rundell has given the most careful and conscientious consideration to this case in judgments that he had delivered in January 2004, May 2004, December 2004, August 2005 and finally in this his last judgment of 6 November 2006.  As he notes in this last judgment, the case has before been in this court on an application for permission, which was listed on 13 December 2005.  It was an oral hearing and the application was dismissed; although, in the course of my judgment, I sought to hold open the possibility that despite all the judge’s proper findings that there was still the option of some future supervised contact.
4.	That was something relied on by Mr Rees on 6 November and it was large in the judge’s mind, particularly because of the recommendation of the experienced CAFCASS officer who had been brought into the case to ensure separate representation for the children.  The recommendation of the CAFCASS officer was that there should be three exploratory periods of supervised contact, which might develop into a pattern of continuing supervised contact.  The guardian alternatively suggested that there might be three supervised sessions to constitute a process of farewell between father and children.  That was an option which I think the judge was plainly right to reject.  He was left with the primary recommendation of three sessions, one hour each, to ascertain the views of the children and maybe at the end of that they would be content for there to be a cessation; or maybe it would mature into some form of continuing contact.
5.	The point that was largest in the guardian’s mind was that despite all they had been through, these children still clearly wished to have contact with their father and that was a point to which equal emphasis was given by the judge.    
6.	Mr Rees, in his submissions this morning, has drawn our attention to paragraphs 25, 27 and 29 of the judgment, paragraphs that all record points in favour of the father’s application.  The last of those is the wishes and feelings of the children, as to which the judge said:
“This seems to be the most formidable single aspect of the case in father’s favour.”
However, in the end the judge explained why he rejected the guardian’s recommendation.  He said:
“In all the circumstances I consider that the children’s overall long term welfare would be better served if I call a halt to these present proceedings and order no further direct contact for a significant period.  I acknowledge that in doing so I am reaching that view in opposition to the children’s views, which I hope I have carefully considered and weighted in the balance. I also acknowledge with regret that I am taking a decision contrary to the views and recommendations from an experienced guardian, but I do so because in judgment I think she has placed just too great and emphasis on the children’s wishes and feelings, and if I may respectfully say so she has minimised the impact on them in the future, if we proceed to some form of supervised maintenance of contact.  I firmly believe that that would not be in their best interest, with father maintaining his present views and prejudices.”
7.	That last observation brings me to the heart of this sad case.  It is that all the difficulties -- or if not all, the overwhelming majority -- have been created by the father himself, who seems in the context of the family relationship to be his own worst enemy.  The judge has repeatedly, throughout the course of his several earlier judgments emphasised the theme: if only the father would change, if only the father would seek help to change, then these negative orders would not be necessary.
8.	The same theme is there plain throughout this judgment of 6 November.  The judge not only refused the application, but also imposed a restriction under section 91(14) of the Children’s Act 1989, which prohibits an application without prior permission until 1 January 2009.  The judge said, in relation to that, that he wished to emphasise two points.  First, the section 91(14) prohibition is not a bar to issue, it is simply a bar to issue without prior permission.  Then he said:
“Secondly, if, despite what he presently says, Mr C in the future will seek help to enable him to gain insight, that might be a very good reason indeed in my grating leave for an application within that two year period.  I hope that the decision today will bring it home to him that if he is to see the children in short or medium term, he must seek the help that he so plainly requires.”
9.	In the six months that have since passed, there is not much sign of a shift in Mr C’s position.  We have been told that he did at least overcome his resentment to the point of resuming some indirect contact through the conduit of the guardian at Christmas.  But the principal relevant development since 6 November has been the shift in the guardian’s position.  She has visited the children on 9 November, 1 December and 1 May 2007.  The first visit was to fulfil her duty to explain to the children the outcome of the hearing, and thereafter she has kept in touch with them to see how they are doing. 
10.	In her skeleton argument, Miss Baker says of the meeting of 9 November that the children were accepting of the conclusion that the adults could not find a way of making contact with their father safe, and did not seem distressed.  At that stage the guardian concluded that there should be no appeal in the case.  More recently, she has sought to file a respondent’s notice and a notice in draft must have been before Wall LJ because he said:
“Were it not for the guardian’s change of stance it would, I think, have been arguable that the judge’s refusal to contemplate supervised contact on a long term basis was wrong.”
11.	That notice has now been issued and the tenor and purpose of the notice is to uphold the judgment below.  It is said:  
“At the final hearing the guardian agreed with the judge’s assessment of the father’s persistent non cooperation with both the court and the guardian, but proposed an alternative strategy, but the judge decline to follow the recommendations.  The guardian has had the opportunity to reflect on the judge’s decision and she understands his reasoning, since then she has seen the children on [it says two but it should say three] occasions.  Whilst their wishes and feelings have remained the same, it is clear that they accept the courts decision and show no signs of distress at the outcome.  On balance therefore the guardian is persuaded that in the interests of finality for the children, the judge’s decision should be upheld.”
12.	Clearly that opposition to the father’s application has rendered Mr Rees’s task today a very difficult one.  He has faced it resolutely and said what could be said in amplification of his two skeleton arguments.  He has suggested that the judge was plainly wrong.  That is an exceptionally difficult submission to make good, given the quality of the judgment explaining an enormously difficult decision.   It is worth emphasising that there is a considerable advantage gained by judicial continuity in a case of this sort.  HHJ Rundell had been wrestling with this problem for some years and he knew the nuances in a way that would hardly have been possible for a judge who was coming to the case afresh.  He, on this occasion, and I have no doubt on all previous occasions, delivered a judgment which demonstrates how profoundly he has thought about all the circumstances and relevant factors; how carefully he has carried out the balancing exercise and with what difficult he has found the path to his ultimate conclusion.  This is predominately a case in which the trial judge has performed his essential function with commendable and conscientious care and, if open to any criticism at the date of delivery, that criticism has evaporated in the light of the developments since.  
13.	In recognition of Mr Rees’s efforts, I would grant permission but dismiss the consequential appeal.
Lord Justice Toulson:  
14.	I agree.

Order: Application granted.  Appeal dismissed.