P v. P

1986, No. 39
(Civil)

IN THE COURT OF APPEAL

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BETWEEN

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Coram : Hon. Cons, V.-P., Hon. Silke, J.A., Hon. Power, J.

Date of Hearing : 30th April and 2nd May 1986

Date of Delivery of Judgment : 2nd May 1986

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JUDGMENT

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1. The appellant, Mrs. P is the mother of a child B who was born on the 11th February 1976, of the union between herself and the respondent Mr. P.  The parties were married in Bombay on the 4th April 1974 and difficulties seemed to have arisen between the parties almost immediately thereafter.  The parties separated on the 15th of December 1979 when the appellant left Hong Kong and went on a two month excursion ticket to India.  She did not return until July of 1983.  It appears that she sent the child presents on his 4th birthday in February 1980, his 5th birthday in February in 1981 and his 6th birthday in February 1982.  The respondent, who was clearly bitterly disappointed at the break down of the marriage, did not inform the child that any presents had been sent by his mother.  The husband commenced dissolution proceeding in July of 1982 alleging misconduct and there was a cross-petition by the appellant with counter-allegations of misconduct.  The decree nisi which was granted on the 11th July 1983 was based simply on the irretrivable break down of the marriage after two years’ separation with consent.  The decree was made absolute on the 11th April 1985.  The appellant returned to live in Hong Kong in December of 1983 and until September 1985, she had access on a number of occasions.  At first this access was in the presence of the respondent or a third party but later she had access without supervision.  The appellant says that when she has had this access, the child has behaved in a normal, happy and loving way.  It must be said that the breakdown of the access arrangement after September 1985 was not in any way, the desire of the appellant.  B does not, however, agree with his mother that the access with her was normal and loving.  He told Judge Caird that he did not feel his mother was sincere and did not wish to have any contact with her.  It appears that the access given by the Court ceased in part, at least, because of the attitude of the child.

2. The mother takes the view that the child is conditioned by his father in this attitude and that if she has regular access, she would be able to change it and could build up a normal mother and child relationship.  The respondent because of his deep distrust of and antipathy towards his former wife does not try to encourage the child to accept his mother and is clearly not prepared to lend himself to the enforcement of the spirit of any access order.

3. The trial judge was thoroughly conversant with all of the facts of the matter as he had dealt with a number of applications and on occasions saw both the parties and the Child between July 1983 and March 1986.  At the hearing in March affidavits of the parties were read, both were cross examined thereon, 2 reports of Doctor Green, a psychiatrist made in May of 1984 and February of 1985, were considered and Dr. Green was cross-examined. The judge was satisfied that it was in the interest of the child that the respondent have no access until further order.  He ordered also, that there will be no restriction placed by the father on any access that the child indicated that he wished to have with his mother.  It is from that order that this appeal was made.

4. The judge was satisfied that the appellant’s attitude towards her ex-husband was more balanced than was his attitude towards her and was satisfied that her motives in seeking access were not, as had been suggested, prompted by financial considerations.

5. The child, it seems, erroneously believes that his mother is a Christian.  The trial judge was satisfied that this was not so and found that she was a practising Hindu but not in regular attendance at Temple as are her ex-husband and his family.  The question of religion is, it seems, of some importance in this matter as the child appears to believe that his mother is a Christian and the respondent has done nothing to dissuade him from disbelief.  Mr Payne who appears for the appellant urges that this is one of the matters which can only be put right if the mother is allowed to have contact with her son.  The trial judge apportioned no blame for the marital breakdown and was not influenced by any consideration of blame when making his decision.  He simply remarked that the appellant felt restricted and depressed when living with her husband and his parents and that this led to the break up of the marriage.  He accepted that the appellant was genuinely fond of her son and were satisfied that her only real fault was leaving in 1979 and not returning until 1983.  The judge was satisfied that the respondent “was completely intractable and would not resile from the stand he had taken, i. e. despite Doctor Green’s evidence that the key to successful access was in his hands, nevertheless, he would not use it.  He maintained that he could not see how he could influence B and he unreasonably persisted in this stand”.  It must be said that while the judge was satisfied that the respondent was the person solely responsible for the alienation of the child from his mother, he did not consider that the respondent had forced his view on the child but was satisfied that he had, when asked, given the child information which in his view was true, but which was coloured by his antipathy to the appellant.  The judge otherwise found no fault with the father saying that he was “deeply concerned about his son and loves him very much”, and had raised him extremely well on his own.

6. When making his assessment of the child the judge relied very much upon the evidence of Dr. Green.  He was satisfied from the reports and the evidence of Dr. Green and from his own observations that the child is highly intelligent and is much more mature than a normal ten year old.  He was satisfied that the child has totally rejected his mother and that at the present time there is very little likelihood of any change in his attitude.  He was satisfied, given the maturity of the child, that his wishes had to be taken into account.  While he had no doubt that the wishes were genuine he was satisfied that they were formed under the influence of the father.  The judge bore in mind the claims of a loving mother and the biased and intractable attitude shown by the father.  He was nonetheless satisfied that because of the considerable upset to the child, if his mother reentered his life to a significant extent against his wishes, the paramount interest of the child required him to refuse the mother access.

7. It is the general contention of Mr Payne that the judge failed properly to exercise his discretion in that he did not take certain relevant matters into account or alternatively that he, having taken all relevant matters into account, failed to give proper weight thereto.

8. We turn new to deal, seriatum, with the grounds of appeal.

1. The learned judge failed to give any or any sufficient weight to the fact that the animosity of the child towards his mother could possibly be removed and attempt ought to be made to remove it.

9. When arguing this ground, Mr Payne said that the judge was clearly not giving sufficient weight to the evidence of the mother as to the normal and happy relationship that existed between herself and her son on occasions when they had been able to have access without any interference from the father and had not given sufficient weight to the second report of Dr. Green which did not rule out the possibility of a reconciliation.  We are satisfied that the judge did have in mind both the possibility and desirability of a reconciliation and that he did address his mind to the problem posed in the final words of the second report: “The considerable problem facing the Court in this case lies, to my mind in deciding whether the alienation which has produced an otherwise adjusted child should continue or whether the certainty of the upset which would be produced if his mother re-enters his life to any significant extent, should have priority.”  What Dr. Green was saying was that the Court had to decide whether to continue the present largely satisfactory situation which had produced an adjusted child or order access and risk the extent of the upset which would follow.  While it is true that Dr. Green in his evidence said that children who are alienated from their mother at times in later years develop psychiatric problems, it is an over-simplification to suggest that he was saying that this is the primary danger in the present case.  The fear of the doctor in this case is the likelihood of psychiatric problems if a reconciliation is forced upon the child.

2. The judge failed to give any sufficient weight to the oral evidence of Dr. Green but wrongly based his decisions very substantially on the report of Dr. Green dated 26th May 1984

10. It seems to us clear that the judge was well aware both of the reports and of the oral evidence of Dr. Green.  We fully appreciate Mr Payne’s argument that the child labours under some mis-apprehensions of fact that only the mother can remove but do not think that this, of itself, is anywhere nearly sufficient to tip the balance in favour of access.  The real complaint here made is that the trial judge did not balance the chance of success or failure of reconciliation but proceeded upon the basis that a reconciliation was not a practical possibility.  It is true that he did, in the end, take that view, but we are satisfied that he did so only after having come to the conclusion, upon the basis of all of the matters placed before him, that there was such a slight chance for reconciliation and such a risk of damage to the child that he was not entitled to take that risk.

3. The judge failed to give any sufficient weight to the respondent’s evidence that when she was alone with the child, he responded naturally towards her.

11. We have already dealt with this ground.

4. The judge failed to take any consideration that the risks of further access were slight compared with the possible benefits.

12. Given the evidence of Dr. Green and the view that judge himself had formed after his interview with the child, we find it difficult to see how this ground can be urged.  He was clearly satisfied that the risks were compelling real as are we.

5. The judge having found that the alienation of the child was the fault of the father ought to have compelled the father to assist in removing such alienation.

13. We are concerned by what is implicit in this ground.  The mother’s rights while not paramount must be given due weight.  It is rare that a Court makes an order that a caring mother, who is not physical or morally unfit, have no access to a child of ten.  It may be that if the respondent were prepared to comply with the spirit as well as the formality of an access order, there would, in time, be some possibility that the child would be reconciled with his mother.  We are disturbed that the father is unwilling to try but nonetheless, given the reality of the situation, we are quite unable to say that the judge erred when exercising his discretion.  The appeal is therefore dismissed.

Representation:

Mrs. Penlington, (Helen A. Lo & Co.) for Petitioner/Respondent.

Mr I. Payne (Hamption, Winter & Glynn) for Respondent/ Appellant.