Thursday, 20 September 2007

Re A [2007] EWCA Civ 889

An unusual case this, as there were two experts who unequivocally advised the court that the residence of the child should be transferred from the intransigent mother to the father. More striking still, was that this was against the express wishes of the child (aged 8 and well able to express a view) yet the court took that course.
There were a number of further unusual aspects of the case including the sheer number of occasions the court had dealt with it (14), the amount of judicial continuity (particularly with a Recorder – six of the most recent hearings), and the instruction of a psychologist into the mother’s propensity to adopt a more emollient view towards the father.
The tragedy of the mother’s case was that all parties accepted that she was a perfectly good parent and that the child was happy and prospering, yet she was apparently psychologically incapable of being reasonable towards the father. Of a video which she exhibited in a spectacularly unsuccessful attempt to bolster her case, Wilson LJ said he was ‘sickened that the mother should have created so unpleasant a scene... and... if her disorder drives her to inflict such damage on a son whom (sic) she greatly loves, the situation is deeply tragic’ (para 14)
Hedley J added at para 29
‘This case affords another vivid illustration of the inability of a court, in any jurisdiction, to protect children from all the consequences of the way their parents choose to behave. Where criticism of parenting is exclusively referable to issues of contact a transfer of residence will, of course, always remain the exceptional response, but there must be times when the court is able and seen to be willing to carry through a transfer of residence where all else has failed.’
Query whether the mother did indeed choose to behave in the manner she did, but the court endorsed the change of residence and in the process gave two pieces of advice to courts considering such a step.
First, there should be plenty of opportunity given to the parent at fault to improve his or her behaviour. In para 3 Wilson LJ wrote ‘I have no doubt that, in circumstances in which a court is considering whether to transfer residence by reference to contact difficulties, however extreme, created by the residential parent, it is in the interests of the child for warnings [of the possible necessity for change of residence were her course of conduct to continue], and thus opportunities for change, to be given.’ Though not unequivocally part of the ratio of the case, this is probably authority enough in my view to make an order made without such warnings, appealable.
The second advice concerns what to do when the order is made. In this case the Recorder refused permission to appeal and also refused an application for a stay of execution. At paragraph 27 Wilson LJ said that in his view a court faced with a dramatic change in the child’s life and an application for permission to appeal should always give serious consideration to staying the execution of its order (by whatever means) for a few hours to allow the aggrieved party an opportunity to seek relief from an appellate tribunal. (He then described the emergency procedures available to aspiring appellants even if no such stay is granted)
Now I have put the emphasis in the preceding paragraph to draw attention to the tentative nature of this guidance, but I wonder whether it is really guidance at all. His Lordship explains the rationale of his words in the next sentence where he says that ‘the judge needs to consider whether a refusal to afford a narrow opportunity for such an approach [i.e. a brief stay to allow an application to the appellate jurisdiction] unfairly erodes the facility for effective appeal.’
My difficulty with this is that the judge will have decided whether there is a need to provide a facility for an appeal in determining the application for permission so I fail to see why he should render his judgment vulnerable to the same attack from a different angle. Reading these remarks in the context of the whole judgment I think my Lord has fallen into error not by promoting fairness, but by suggesting that an unfair litigation advantage should be retained by one of the parties. To explain: courts are reluctant to make orders of the type in this case. Therefore a judgment which has not been given effect is far more likely to be overturned than one which has. If Wilson LJ’s guidance is followed then, a judge who has felt compelled to make an order and is convinced it is the right one (as shown by refusal to grant leave to appeal) should nonetheless hand an unfair advantage to the imminently-ex-resident parent by not requiring the order to be given effect until the appeal process (which, I repeat, the court has already ruled inappropriate) has been initiated.It seems to me that this second part of the guidance in the case is not so helpful as the first and seems to introduce to the process the sort of equivocality denigrated in Re C (A Child) 2007 (still unreported (unless you count my update of the 17th of July 2007) but demonstrably known about in the courts).