|Sir Mark Potter|
The Facts: The parties were unmarried and have one child, B, who was born in February 2010. The parties' relationship broke down and they separated in December 2010.
During the relationship the mother suffered from depression and "was quick to emotional and violent response in the course of arguments or disagreements with the father". In view of her behaviour, the father insisted that the mother leave and go to live locally with her mother while the local child services assessed any risk to B which might be involved. The local authority completed a core assessment and concluded that, the parties' relationship having ended and the mother's depression having lifted, B was at no continuing risk.
The father did not accept the assessment and in February 2011 commenced proceedings seeking a Shared Residence Order on the basis that B should reside with him for two nights a week.
By June 2011 the mother was contemplating moving from her mother's house to live in Norwich where she had previously lived and had good prospects of future employment. The father then made a Without Notice Application to prevent the mother from relocating to Norwich, and a Prohibited Steps Order was granted, restraining the mother from moving B from London.
A welfare report was filed in July 2011, recommending shared residence. It also stated that the mother had put her plan to move to Norwich on hold, and that she would not move without consulting the father.
At a hearing in August the judge, on the father's application, made an order for the assessment of the mother by a suitably qualified psychologist, at the father's expense. The psychologist reported in February 2012, finding no indications that the mother was currently presenting with a mental illness or personality disorder. The father did not accept this assessment, stating that his concerns as to the mother's stability remained unabated and asserting that "in the absence of an identifiable psychological cause for the mother's dangerous conduct in the past his concerns in respect of her deficiencies and irrationality were confirmed". In view of this, he proposed that he be granted sole residency, with contact split equally.
The mother, on the other hand, claimed that the father "was controlling and hostile to her both in respect of contact on handover and the conduct of the proceedings, during which he had followed her about unnecessarily in his car, behaved in an intimidating manner and besieged her with unnecessary and bullying texts". She sought sole residence and indicated that her plans to move to Norwich were no longer on hold.
At the final hearing in March 2012, the judge essentially accepted the case advanced by the mother. She did not consider a Shared Residence Order to be appropriate, as she found that the father would use that to dominate and control the mother. Accordingly, she granted sole residence to the mother. She also made a Contact Order providing for the father to have contact on alternate weekends, rather than every weekend as had been happening, and she discharged the Prohibited Steps Order.
The father appealed. His grounds of appeal included that the judge had misunderstood or misapplied the law, that she had failed to have proper regard to the views of the welfare officer and that she was unfair or displayed bias against the father.
Held: Giving the leading judgment, Sir Mark Potter found:
1. That he did not detect any misreading or misunderstanding of the law on the part of the judge (paragraph 55).
2. That the judge's finding "that the father's motivations were not simply his devotion to B but a determination to dominate and control the mother, such that he would seek to operate a Shared Residential Order (if made) in the pursuit of that goal" was not open to review by the Court of Appeal. Accordingly, "the appropriate order was a Residence Order in favour of the mother, who was and remained the primary carer of B, with a Defined Contact Order in favour of the father" (paragraph 67).
3. That the only substantial criticism to be made of the judgment was the failure of the Judge expressly to allude to, and weigh in the balance, the potentially adverse effect of the move to Norwich upon the desirability of maintaining and developing a close and loving relationship between the father and B (paragraph 69). However, he did not think its omission invalidated the judge's decision when it was viewed in the context of the overall judgment. He said (at paragraph 70):
"As a general principle, the desirability and benefits of such a relationship and the need to encourage it in the long term interests of any growing child by, are a given for any family judge of experience and they were, in any event, urged upon the Judge on the father's behalf. In the context of this case, however, the question for the Judge was whether, and to what extent, the conduct and attitude of the father were such that the institution and maintenance of a "close proximity" shared care regime proposed by the father would jeopardise rather than foster the benefits of such a relationship in the long term. The Judge considered, for the various reasons she gave, that the contact sought by the father would be more likely to encourage rather than reduce parental competition and strife; would provide increased motive and opportunity to the father to seek to prove his superiority as a parent and indulge his controlling instincts; and would as a result increase the potential for emotional harm in a young child torn between two parents and uncertain which household to regard as home. Better, therefore, to provide for a settled, albeit more distant, regime recognising the mother in the role of the primary carer for the two-year-old B with such generous periods of weekend and holiday contact as were practicable in the circumstances."4. That the judge was justified in regarding the recommendations of the welfare officer as being of limited value, particularly given the events subsequent to the preparation of the welfare report (paragraph 71).
5. That no bias against the father was apparent (paragraph 72).
Accordingly, the appeal was dismissed
Mr Justice Norris and Lady Justice Black gave concurring judgments.