NOs: B1/2001/0320
B1/2001/1040
Neutral Citation Number: [2001] EWCA Civ 864
IN THE SUPREME COURT OF JUDICATURE               
COURT OF APPEAL (CIVIL DIVISION)                                  
ON APPEAL FROM HIS HONOUR JUDGE ELLIS
(CROYDON COUNTY COURT)

                                    Royal Courts of Justice
                                    Strand
                                    London WC2
 
                               Tuesday 15th May 2001

B e f o r e :

THE PRESIDENT

‑and‑

LADY JUSTICE HALE

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IN THE MATTER OF A (CHILD)

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Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited
190 Fleet Street, London EC4A 2AG
Telephone No: 020 7421 4040
(Official Shorthand Writers to the Court)
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The Applicant appeared in person

MR S WEBSTER (instructed by Messrs Ormerods, Croydon, CR0 9XN) appeared on behalf of the Respondent

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J U D G M E N T
1.	MRS JUSTICE HALE: There are two applications before the court today. The first is the father's application for permission to appeal against an order of His Honour Judge Ellis in the Croydon County court on 25th January 2001. I adjourned that application on 29th March 2001 for an oral hearing on notice to the mother with the appeal to follow if permission were granted. The second is the father's application for permission to appeal and an extension of time in which to appeal against an order of His Honour Judge Ellis of 16th June 2000. Although his application refers to a later order refusing permission to appeal on 18th July 2000, what he clearly wants is to appeal against some parts of the order of 16th June. In connection with that application the father wishes to adduce new evidence.
2.	The parents met in Peru in 1978. The mother is Peruvian. They were married in this country in 1981. There were difficulties in their marriage almost from the beginning. The mother has spent long periods of time back in Peru, some with her children, but she has always returned and it is clear that she regards this country as her home. Their first son, J, was born in August 1983, and so he is now nearly 18. Their second son, M, was born in October 1988 and so he is now 12. He has known no other life than difficulties between his parents, although we should bear in mind that in J's view at least, matters within the home are not as black all the time as they have sometimes been painted. The social services became involved at the father's request because of difficulties in controlling J. Both children were on the child protection register for a while under the category of “emotional abuse” stemming from the dispute between the parents.
3.	A decree of judicial separation was granted to the mother by His Honour Judge Ellis on 10th November 1999. The father applied unsuccessfully for permission to appeal against that decree on 4th April 2000. Meanwhile all four members of the family are still living under the same roof. There are proceedings for ancillary relief which are due to be heard on Friday 13th July 2001.
4.	On 1st November 1999 the father took the unusual step of applying for parental responsibility orders in relation to both boys ‑ these were misconceived as he already shared parental responsibility with the mother ‑ and also for contact, specific issue and prohibited steps orders in relation to M. He wanted defined periods of quality time with M so that they could go away together at weekends and on holiday. He also wanted to be involved in the choice of secondary school for M, as M was due to change schools in the year 2000. He wanted to prohibit the mother from permanently removing M to Peru and he wanted to prevent the mother and M sleeping together in the mother's bedroom.
5.	On 10th March 2000 His Honour Judge Coningsby accepted an undertaking from the mother and allowed her to take both children to Peru for a three week holiday. Otherwise he prohibited her from removing them from the jurisdiction without the father's written consent until further order.
6.	Meanwhile, a court welfare officer, Margaret Derrick, had been appointed and her enquiries were continuing. She has made one report dated 6th June 2000. She reported the view of social services that things would only improve once these parents were able to be separate from one another. She made various comments about M. He referred to himself as “piggy in the middle”. He also said that he was frightened of his father. She observed that:
“M's manner and delivery are at variance with his age... He is extremely, and in my view, overly close to his mother. He therefore identifies totally with her views and beliefs. There were moments when M lapsed into dialogue appropriate to a child of 11. These comments held emotional charge. M is obviously torn by the dissent between his parents and the tactics evolved by them to block and hurt each other. He has taken sides and is therefore not open to any change with regard to his relationship with his father or willing to adopt or accept his wishes.” 
7.	The matter came before His Honour Judge Ellis on 16th June. He decided unusually to make a contact order. The order that he made was in the following terms:
“In addition to day‑to‑day contact within the home, the father shall have the following specific periods of contact with M when he may take M out from home:
	i) Every other Saturday from 12.30 pm until 9 pm commencing 	1st July 2000.
	ii) The last complete weekend in each month from 4.30 pm 	Friday until 6 pm on Sunday save during school holidays when 	it will be until 8 pm on Sunday, commencing Friday 23rd June 	2000.
	iii) A period of up to 2 weeks during each school summer 	holiday when the father may take M away on holiday providing 	he gives the mother not less than 3 weeks notice in writing of 	the details of the proposed holiday including dates and 	destination.
	iv) Such further or other periods as may be agreed between the 	parties.” 
8.	His reason for doing this, according to a note of that judgment provided for us by counsel for the mother, was that:
“There are clear difficulties when the father wants to take M away for the weekend. There should be an order that the father can take M away from the home. The father in evidence said that when the leave to remove order was made it helped all to know what should happen. It is in M's interests to specify when M can be taken.” 
9.	He went on to point out, as we always point out in these cases, that of course there has to be a degree of flexibility, parties have to be sensible, and it cannot always work out exactly as contemplated.
10.	His Honour Judge Ellis also decided that M should go to the school favoured by the mother ‑ that is St. Mary's school ‑ rather than the school favoured by the father ‑ that is the John Fisher school. He did not consider a third school ‑ Woodcote's school ‑ which had been suggested by the court welfare officer because J had been happy there after being asked to leave the John Fisher school. Both are of course Roman Catholic schools and it is an important feature of this case that the mother is a Roman Catholic, that the boys have been brought up Roman Catholic and indeed M is extremely devout in his religion and has even expressed interest in becoming a Priest. The reasons given by His Honour Judge Ellis for prefering St. Mary's were as follows:
“...notwithstanding that John Fisher is the better school...it is in M's best interests that he should go to St. Mary's... It is important that M has been an active member of St. Mary's Parish Church. He is closely involved with the charities, particularly on a Saturday. He knows the priests very well. If he goes to St. Mary's the same priests will be available to both mother and M...
The mother is not able to turn to the father for help with difficult emotional problems relating to M. She will find it much easier to discuss those with the priest. That is also an important factor. M is a religious boy... Of some importance is the fact that St. Mary's is an easier journey from home. It is important that the mother is able to drive him to and from school.” 
11.	Finally, it was a significant factor that St. Mary's provides Spanish and as the mother's first language is Spanish M has been brought up bi‑lingual. 
12.	As to the sleeping arrangements, the father had accepted that it was undesirable to make an order. The mother agreed to encourage M to sleep in his own room.
13.	His Honour Judge Ellis refused permission to appeal on 18th July 2000 and at that stage the father did not take the matter further. Equally, of course, neither did the mother. The contact order has clearly not worked out as the father hoped. He claims never to have been able to take M away in the manner envisaged at weekends. He could not take M away on a summer holiday as planned and indeed had to take all of them away together instead. He has put in a detailed chronology of what took place in the latter part of 2000. Predictably the mother has herself put in a detailed chronology giving a rather different version of events. It is plain, however, that the involvement of the mother and M in church activities has presented a significant obstacle to the father being able to take M away as he wishes.
14.	The father then applied for a penal notice to be attached to the contact order and also to prohibit the mother sleeping in the same room with M. There was an additional application to facilitate obtaining a passport for M but that has now been resolved. The matter came before the court on 25th September 2000 and a hearing was fixed for 25th January 2001. For my part I find it unfortunate that there was such a long delay between the September and January hearings, particularly as there appears to have been no further court welfare officer's enquiry.
15.	The order made on 25th January did not deal with the sleeping arrangements at all. The reasons for this are explained by His Honour Judge Ellis in his judgment as follows:
“It is highly desirable that he should at this stage of his life sleep, on a regular basis, in his own room but it would be quite wrong for me to order that the mother shall make M sleep in his own room. I have got to make such orders as are in the best interests of the child and it would be impossible to say that such an order was in the best interest of the child because there may be circumstances, because he is a sensitive boy, obviously close to his mother, where for a particular reason he should be able to sleep in the mother's room.” 
16.	He also refused to put a penal notice on the contact order. His reasons for this were as follows:
“There is a real practical difficulty with that application. A court cannot attach a penal notice to a contact order unless the order is in mandatory form. M is a boy of 12. He has his own activities that he is interested in. He plays a role in his local church, which is on the evidence important to him. There are frequently church activities at the weekend and it is impossible in my judgment to devise an order which would be in M's best interest which compels the mother to make M available for contact with his father.” 
17.	Nevertheless, having said that he went on to say that the parties should continue to work to the order that he had provided in the previous June and he pointed out that so long as the parties continued to live together under the same roof they have got to do the best they can to agree together in some way the activities each of them undertakes with M. He concluded:
“...it would be quite wrong for me to attach a penal notice to the order because the wording of the order would have to be made mandatory and it is impossible to devise a form of words that would be in M's best interest in accordance with the Children Act.” 
18.	He went further than that and amended the June contact order so as to provide that:
“On those occasions when M spends time away from home with his father on a Sunday, the father shall ensure that M attends Roman Catholic Mass and, if necessary returns home in time for him to attend the 6 pm Mass on Sunday at M's church.” 
19.	My concern about this case, when the matter first came before me, was that it was not clear whether the judge was effectively saying that his contact order of last June was not in M's best interests, in which case it was difficult to understand why he had continued it in operation with only one adjustment, or whether he was saying that it was an order that it was not possible for him even to seek to try and make more effective. Not surprisingly, therefore, the father is frustrated by the lack of effective action to respect his family ties with his son. He knows that proceedings such as these run the risk of making matters worse but he was prepared to take that risk and that is why he appealed against the January order. He also now wants to challenge the June order and in particular the decision about St. Mary's school. He says that M now wants to go to the John Fisher school, that he is not settling well at St. Mary's and the fresh evidence he wishes to put in includes the Ofsted reports on the schools which bear out, as the judge acknowledged, that the John Fisher school is academically considerably the more successful school. He has today put before us M's school attendance record since he joined St. Mary's school last September. It shows a considerable number of absences for sickness, most of it not of a very serious nature according to the records, and for appointments with dentists and opticians, most of which one might have thought could have been arranged more conveniently, and at least one absence on which he overslept.
20.	I have considerable sympathy and understanding for the position in which the judge found himself. Here we have two grown up people, a mother and a father, who ought to be able to cooperate in the upbringing of their son. Children are not possessions; they are people. They are people with two parents and they are entitled to have a proper, healthy relationship with each of them in which of course there has to be common sense, give and take and an understanding principally of the needs of the child rather than the needs of the parents. Those are sentiments which these courts have expressed time and time again, and I notice that the court welfare officer said last June that the parents
“...are so caught up in their own relationship and the preservation of their assets and personal security that they are unable to act in the best interests of their children. Indeed they are causing harm”. 
21.	So neither of the parents is blameless in this dreadful situation. No doubt their character and personalities will have much to do with this ‑ a literal‑minded father and a volatile and dependent mother. But, the situation which has developed is, as the court welfare officer foreshadowed last year, one in which there is such a close relationship of interdependence between the mother and her son that she is in danger of denying him his proper opportunity to grow up, to turn into, first, an adolescent, and secondly, an adult young man. All children need that opportunity and he is at the particular age at which that is most important to him. He needs to be able to have his own space, to do his own thing and included in that is to have a proper relationship with his father.
22.	There are three interrelated problems. The first is that it is most unhelpful for M and his mother to be continuing to share the same bedroom. It is very important that the mother does not permit him to do so because he has to feel free to find his own feet, learn how to think for and look after himself. Secondly, it is very worrying indeed that his school attendance record is so poor and it is at least possible ‑ and I would put it higher than that ‑ that there is a relationship between his poor record of school attendance and the fact that he is still sharing a room with his mother. This will make it much harder for them both to get up and out of the house, and that close interdependence will make it much more difficult for her to achieve the firmness that she needs to achieve in order to let him grow up and take responsibility for himself. All parents have to learn to do that. It is not easy but it is inevitable, otherwise there will be problems in the future. The third part of this problem is that he needs to have a proper and healthy relationship with his father: Not a relationship which will alienate him from his mother ‑ that is not the point. Obviously he loves his mother and he feels that his security is with his mother. But there are all sorts of things that boys also need from their fathers, including fun quality time and different experiences with them. The father has said today that he does not intend to apply for a residence order. The mother need not feel that in learning to let go of her son, to some extent, she runs the risk of losing him to the father. There would be a poor relationship indeed between M and her if that were the case. But it is not such a poor relationship so she need have no such fear. But what she has got to do is to address each of the problems which I have identified. So far as the court is concerned, some of those are more susceptible of clear‑cut solutions than others.
23.	For my part I would give permission to appeal against the order of 25th January 2001. Instead of the variation of the order of 16th June which is provided for in paragraph 2 that order, I would substitute a new contact order in substitution for the contact order of 16th June, but to similar effect. I would provide that the mother is to allow M to have contact with the father at the following times. Those will be the same times as were provided for last June, that is every other Saturday from 12.30 pm until 9 pm; secondly, the last complete weekend in each month from 4.30 pm Friday until 6 pm on Sunday, save during the school holidays when it will be until 8 pm on Sunday; thirdly, a period of up to two weeks during each school summer holiday when the father may take M away on holiday; and fourthly, such further or other periods as may be agreed between the parties. I would specifically provide that such contact may take place (a) within the home, or (b) outside the home, or (c) outside the country ‑ provided that in the last case the father gives one week's notice to the mother in writing and that the father undertakes to this Court to return M at the end of the notified period of contact. I would further provide that for that purpose the father is entitled to collect M's passport from where it is deposited with Canon Collins and to return the passport at the end of the period of contact. That is to make it clear that it is a matter for the father and M to choose how they will spend the time that they are to have together. A further proviso in that order is that on the Saturdays when M is to have contact with his father, he is not to be taken to church or to church‑related activities that morning before that period begins. I would make a particular order that the mother is to allow M to spend the coming bank holiday weekend with his father, that is from 5 pm on Friday 25th May until 1 pm on Tuesday 29th May, and that of course it is contemplated that the father will take M on a trip to France during that period.
24.	That is the order that I would propose in relation to contact. Like Judge Ellis I will not put a penal notice on it at this stage because it is recognised that that is a last resort. However, the order as I have proposed it is in mandatory terms; it is an order which is capable of having a penal notice attached to it and should circumstances deteriorate to such an extent that that were appropriate then that could be done. The mother has Mr Webster representing her here today and I know that he will make it absolutely plain to her that this order of the court has to be obeyed. She has to give priority to permitting M's relationship with his father to develop normally rather than to anything else to which she or even M attaches importance during those times.
25.	So far as the school is concerned, I would not give the father permission to appeal against the order made last June. He did not choose to appeal it to this court at the time with the result that M has begun at St. Mary's school and it must be given a fair chance. However, it is clear that there are some difficulties and it would always be open to the parents, if between them they took a different view as to the school, and it were convenient for M to change, between themselves to agree to a change. But at the moment in my view it would not be a matter for the court to impose on them. However, the court might well take a different view some time in the future if M's attendance at that school does not markedly improve in the future. Contrary to the judge's belief that attending that school might make things easier for M and indeed for the mother, there is some reason to suppose that it has not done so and part of that may be the overdependent relationship which is evidenced by their still sharing a bedroom.
26.	The mother must be under no doubt that it is her obligation to ensure that M gets to school and related to that, in my view, she should be under no doubt that she is no longer to permit M to share her bedroom, save in absolute emergencies. It would be unwise to give examples of such emergencies. In all of these transitions one does have to harden one's heart and be prepared to say no to a child's demands for their own good. I therefore would make an order that from the beginning of June the mother is not to permit M to share her bedroom, save in an emergency.
27.	THE PRESIDENT: I agree with the judgment that my Lady has given and with the orders proposed.
28.	There is just two points I need to check. I think Mr Annett ought to give a general undertaking to return the child to the jurisdiction after each occasion and has a passport been obtained, Mr Webster?
29.	MR WEBSTER: Yes, my Lady. 
30.	THE PRESIDENT: And that is with Canon Collins.
31.	MR WEBSTER: Yes, my Lady.
32.	THE PRESIDENT: Very well. The order in principle is that the application for permission to appeal and extension of time in relation to the school is refused, but the application for permission to appeal in respect of the orders of 16th June and 25th January are granted, and the appeal is allowed to the extent that my Lady has set out. I think we make no order on the application to adduce additional evidence. We have taken it in for what it is worth and the actual wording of the contact arrangements to be varied, both my Lady and I will have a look at the draft that will be presented to us by the Associate. What we do now need is for Mr Annett just to be given a piece of paper so that he can write his undertaking.
33.	There is no order as to costs, Mr Webster, save legal aid assessment.
34.	MR WEBSTER: Yes, thank you, my Lady.