England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
CIVIL DIVISION
ON APPEAL FROM WARRINGTON COUNTY COURT
(His Honour Judge Farmer and His Honour Judge Hughes)

		The Royal Courts of Justice The Strand London Friday 22 March 2002

Friday 22nd March 2002

1. LADY JUSTICE HALE: This is a father's appeal against two sets of orders made in the Warrington County Court in proceedings primarily concerned with contact between the father and his daughter, H, who was born on 31 August 1995 and is therefore now six and a half.
2. First, on 5 December 2001 His Honour Judge Farmer QC refused the mother's application to adjourn the trial of the factual issues between the parties. Nevertheless he vacated the trial date fixed for 12 and 13 December because the Child and Family Reporter was not able to produce a report by then. He relisted the case for 4 and 5 February 2002. He made no order on the father's application for disclosure of social services records because the Child and Family Reporter could look at these to see if there was anything relevant. He adjourned the father's application for a psychological assessment to be decided at the hearing in February. He directed a relisting if the parties were unable to agree upon interim indirect contact. They were unable to agree and so on 20 December he made an interim contact order. H was to make a phone call to her father on Christmas Day. He was to be able to send fortnightly cards to her home address. The Christmas cards and presents that he wanted to be delivered to her were to be delivered by a named colleague of his, the welfare officer at the fire station where the father works as a fire fighter. The mother was to provide school reports and other information to the father.
3. Second, on 4 February 2002 the mother did not attend court, whereas the father did so attend, accompanied by his witnesses, ready for the trial. The mother applied through counsel for a further adjournment. His Honour Judge Hughes adjourned the case until 27 and 28 June:

"to consider findings of fact and contact and to proceed if necessary in Mothers absence."

A later order on 20 February 2002 says that this means the final combined findings of fact and contact hearing. He directed the Child and Family Reporter to attend the June hearing but he did not order a full welfare report. He ordered limited disclosure from the social services files and that social services make the files available to the judge at the hearing. He also made an indirect contact order that the mother make the child available for telephone contact once a fortnight on Sundays between 6.00 and 6.30 pm for ten minutes, H to telephone her father rather than the other way round; and he ordered letters and cards once a fortnight by post.

4. I gave permission to appeal against both sets of orders on 8 March 2002 and directed that this case be heard as a matter of urgency for obvious reasons.
5. The background is that the parties met in August 1994. The mother already had a child, L, who was born on 3 October 1991. A third child, E, is also relevant to this history. She is about eight or nine years old. She is being brought up by the mother's mother and her husband, the mother's stepfather, who is the grandfather of E, E's mother having gone to live abroad. The parties married in April 1995 and their daughter H was, as I say, born on 31 August of that year.
6. In June 1998 the mother left home with the children, alleging physical violence against the father. In July 1998 the father petitioned for divorce on the basis of her behaviour. One of the incidents alleged against him is an attempt that July to take H from the car in which she was travelling with the mother and the grandmother. H was taken to the hospital and seen by a paediatrician but no injuries were found. The parties reconciled in August 1998. On the papers there is a dispute about the extent of that reconciliation and what exactly happened in their relationship between then and early 2000, but clearly the relationship continued to some extent. According to the father, they finally separated in January 2000 and he was still seeing the children for some months after that. Another of the allegations against him is that he slapped E across the back of the legs in the garden in March 2001, an incident which he does not deny but says that it was perfectly proper chastisement and no different from that practised generally within the mother's family. The last contact he had with H, he says, was when she stayed with him and his new partner and her children for a weekend in August 2000.
7. The father filed a supplementary divorce petition in November 2000. Over this period the mother made over this period numerous complaints to the police about the father but none of them resulted in any police action against him. Another allegation against him surfaced in November 2000. The maternal grandmother reported to the mother that the older children had said that the father had walked around naked, or nearly naked, touched his front bottom and handled their food without washing. This is all alleged to have happened some time ago. On 14 December 2000 a police officer and social worker visited and interviewed the girls. No further action was taken. The father was not even interviewed about it. The social worker did, however, follow it up with a telephone call on 19 December to the mother and there is a file note, which it is now conceded should be disclosed to the father, recommending that the children did not see the father unsupervised.
8. The proceedings began with an application for a non-molestation order filed by the mother on 24 January 2001. This was precipitated by a visit from the father to their home. The father resisted that application strongly but nevertheless on 29 January he gave the standard undertakings not to use violence or intimidate, harass or pester the mother and also not to go within 50 metres of her home. On 6 February 2001 the father made the current application for contact, which has yet to get anywhere near final determination. The mother and the maternal grandmother filed witness statements in April making these allegations against him.
9. On 15 May the court ordered that CAFCASS report by 20 July. However, the Child and Family Reporter, Mr Horsefield, filed an interim report dated 23 May. In this he set out the disputed allegations against the father. He reported that the mother was opposed to contact in principle. He pointed out that she had made no mention during their meeting of sexually inappropriate behaviour by the father and she had also told him that she anticipated that there would be an order for contact but she believed that it should be supervised. His conclusion was that:

"In the light of the comments above it might be that this was a case in which it would be helpful for there to be findings of fact in relation to domestic violence and sexual abuse prior to further work in the preparation of a report concerning contact. ... If some or all of the allegations against [the father] were held to be true and should contact be seen as in her interest the key issue would be the protection of H within it. If some or all of the allegations ... were held to be unfounded, the key issue would be how contact might be facilitated so that the difficulties between adults would not adversely affect the child."

In the absence of any resolution of those issues he was reluctant to set out to meet H or to arrange meetings between her and her father, and he wanted further guidance.

10. The court responded to that invitation. In July it was ordered that a schedule of issues and witnesses be drawn up. Such a schedule was indeed drawn up by the solicitors who at that stage were acting for each parent, listing the allegations which had been made against the father. In August the mother applied for a prohibited steps order to stop the father approaching H. At the directions hearing that took place on 14 August the father gave an undertaking not to do so. Birthday cards were to be delivered by the mother's solicitor. The district judge also ordered disclosure from both the police and social services. The police were ordered to disclose to both parties' solicitors"all information and records relating to any incidents involving allegations of domestic violence and/or child abuse against the Applicant [the father] by [a particular date]." The social services were ordered to disclose to both parties' solicitors "all information and records relating to any incidents involving allegation of child abuse against the Applicant, whether of a sexual or physical nature", again by a particular date. Both were given liberty to apply to discharge or vary the order. At the same time the district judge ordered that the matter be listed for trial of the factual issues set out in the agreed schedule of issues before the circuit judge on 12 and 13 December 2001.
11. The police gave the disclosure ordered. Social services, however applied in September to resist that disclosure and on 6 November His Honour Judge Farmer discharged the order. But he made an order that there be "a Section 7 report addressing the issues of the alleged child abuse by the Applicant prepared by the Cafcass Officer to be disclosed to the Parties on December 5th 2001." 5 December 2001 was the final directions hearing before the trial date. I have already detailed the orders that were made on that occasion, including the fact that His Honour Judge farmer was most unimpressed by the mother's application to postpone the trial date because of her pregnancy. He thought that it would not be right to delay the case simply because the mother was pregnant. "All pregnant women do face the kinds of risk that the doctor referred to" and at that stage it was not at the very end of the pregnancy, so he was not satisfied that the case ought to be adjourned on that ground. Unfortunately, however, because the CAFCASS officer was not able to make the report which had been ordered on 6 November 2001, and he regarded that report as essential to the determination of the case, he did grant the adjournment to 4 and 5 February and made the other orders which I have described.
12. The trial was therefore put off for another two months, by which time it was obvious that the mother's pregnancy would be very advanced. Furthermore, although the judge did on 20 December make an interim contact order, the father complains that that order, and the substitute order made on 4 February, have not been complied with. The child did not telephone him on Christmas Day and would not accept the presents delivered by his colleague, who has put in a most interesting witness statement concerning that. Following the further order, the father received a letter from the child which is written in handwriting which I would associate with a six-and-a-half-year-old child of considerable writing skill:

"My Mummy said I have to ring you. I dont want to see you or speak to you again.

Please leave me alone and dont send me any more presents or cards.

[H]"

The father also complains that their letterbox has been sealed up so that if another person seeks to post a card through that letter box, as he would like to be done on the day when she is supposed to telephone him (asking her to do so, no doubt) she cannot receive that card.

13. When the father came to court again with all his witnesses on 4 February, the mother was not there. She was represented by counsel who expressed herself to be unable to proceed with the case and she applied again for an adjournment. She produced a letter from the doctor. That letter was addressed "to whom it may concern", it was dated 22 January 2002 and it referred to a consultation with the mother on 14 January 2002. She also produced an undated sick note. We do not have a transcript of any judgment given by His Honour Judge Hughes on that occasion, but we do have a note from him in which he says that he did not in fact deliver a judgment that day. He notes that a medical note was produced and that counsel was without adequate instructions. He says:

"it was obvious that [the father's] application for contact could not be dealt with properly until findings of fact had been made concerning allegations made against him of sexual impropriety. Although I had some sympathy with [the father] who had had his case adjourned on more than one occasion before, as he told me, because of the mother's medical condition, and who had attended court more than once with several witnesses, I felt it was not possible to do justice to the case without being able to hear evidence from the mother."

That was why he allowed the adjournment. The note also explains that since then the father had applied to the court complaining that the interim contact order had been breached, and he declined to deal with this new application on its own before the final hearing, now fixed for two days in June. But he made a separate order to that effect on 20 February 2002 which incorporates his reasons.

14. The mother is not here today. She has, of course, now had her child. Nor is she represented. Public funding has been withdrawn on financial grounds. Her solicitors have, however, written. They say that there has been no indirect contact because of the child's distress and fear caused by an unauthorised visit to the home. They say that the father's own solicitors, when they were acting for him, were responsible for two of the adjournments. But they do suggest that it may now be appropriate for the Child and Family Reporter to see H. Social services have appeared today and a measure of agreement has been reached in relation to the disclosure of material from their files for the purpose of this case.
15. It is easy to understand the father's mounting sense of frustration at the course of these proceedings. His basic contention is that both he and his child are being denied justice through the delays that have taken place. What then are we to do about it? In my view, the system has completely failed this little girl and her father. Section 1(2) of the Children Act 1989 contains the one provision in that Act which could be said to have within it a presumption about what is in the interests of children. It says:

"the court shall have regard to the general principle that any delay in determining the question is likely to prejudice the welfare of the child."

That is what English law says. If that were not enough, Article 6 of the European Convention on Human Rights reinforces it by giving an entitlement to a fair hearing "within a reasonable time" in the determination of civil rights and liabilities. In relation to children, the jurisprudence of the European Court of Human Rights makes it plain that within the concept of "a reasonable time" it must be implied that a time must not be allowed to go by which will itself be determinative of the case. It is therefore wrong in principle to allow the determination of such an application to drag on for as long as this.

16. There is, as I said on the previous occasion, a great deal to be said for having a split trial between factual and welfare issues in some cases. Obviously factual issues which have a direct, or even sometimes a less direct, bearing on the central question of whether it is in this child's interests to see her father must not be swept under the carpet. Recent guidelines on contact and domestic violence emphasise that. In the past we have been too ready, perhaps, to sweep such issues aside in the rush to get on with the determination of the contact issue. But we should not go too far in the opposite direction. It cannot be acceptable that the trial of factual issues, which was proposed by the Child and Family Reporter in May 2001, a date when the father had already not seen the child for nine months, is not to take place until June 2002, more than a year later, when the father will not have seen the child for nearly two years. Such a split trial can only be acceptable if it is not too long delayed and if, furthermore, suitable steps are taken to safeguard the possibility of restoring the relationship in the meantime, in other words by some form of interim contact, even if it is indirect. Neither of those steps was taken here. There was no contact ordered at all until December 2001.
17. The question of the Child and Family Reporter's consideration of the welfare issues appears to have slipped by. Although a welfare report, no doubt addressed to all issues, was ordered way back in May 2001, the report that was ordered in November 2001 was simply addressed to the issues of alleged child abuse.
18. No consideration seems to have been given, when deciding whether or not the trial of the factual issues should be adjourned, to how compelling the evidence of any abuse was likely to be, or how serious such abuse would be as an obstacle to at least some contact on a supervised basis. All of the alleged incidents took place before that last weekend visit in August 2000. The mother herself did not apparently think that the sexual abuse issue was important enough to mention to the Child and Family Reporter. The father would add to that for consideration a long history of the mother involving the authorities in complaints which the authorities did not see fit to take any further.
19. In my judgment, all of those matters should have been taken into account by His Honour Judge Farmer and it is arguable that had he done so, he would not have adjourned the trial of the factual issues on 12 and 13 December. He appears to have thought that the Child and Family Reporter could have helped him resolve those factual issues. As the reporter had not even met the child concerned, it is difficult to see how he could have done that. The question of disclosing material to the court could easily have been dealt with by requiring the file to be brought to court and the judge investigating the various items which had already been identified by social services as relevant to the issues. Furthermore, the court already had the police disclosure, which is extensive. In those circumstances, to my mind the preferable solution would have been to go ahead with the case in December 2001. The matter was then put off until February 2002 and in February a further adjournment took place without, on the face of it, any serious consideration to any of the points which I have raised, which might have led the judge to be rather more proactive about the case than he appears to have been.
20. What therefore can the system do to repair matters now? At the outset of this hearing we put to the father two possibilities. The first was that the hearing in front of His Honour Judge Hughes in June should go ahead but that the court should give forceful directions to CAFCASS to ensure, firstly, that full welfare information was before the court for the purpose of that hearing and, secondly, perhaps, that the welfare officer should now take the step not only of seeing H but attempting to arrange a meeting between H and her father so that the welfare officer could observe such a meeting. The second possibility, which this court had discovered on its own inquiries, was of transferring the case to the High Court where there appeared to be a possibility that a High Court judge, Hedley J, could hear the case in Liverpool at the end of the period 15 April to 3 May when he would be there to hear a stand-by case which cannot be heard in Manchester. There appears to be a possibility of space in his list. The additional advantage of that is that Hedley J is the liaison judge for the Wales and Chester Circuit and so if he is seised of this case he would be in a position to make further progress with it. The disadvantage of taking that course is that it may well not be possible for full welfare enquiries to be completed before then. Nevertheless, the two options having been put to the father, he would clearly prefer the second and it is not only for that reason that I prefer it too. This is a case where it is essential that a judge of the standing of Hedley J should take charge, get a grip of matters and ensure that no further delay takes place unless such delay is necessary both in H's interest and for the fair determination of the case.
21. So I would allow the appeal against the timetabling of the case and I would order that the case be transferred to the High Court and be listed before Hedley J during that period. However, that order has to be associated with a direction to CAFCASS to proceed immediately with the investigation of the welfare aspects of the case. Included in that should be a consideration of whether the court will require expert evidence to assist in determining the extent to which H's welfare is being adversely affected by the attitude displayed towards contact and interim contact, as manifested by the letter written by H which I have quoted. That is in my judgment a most disturbing letter. No six-and-a-half-year-old child would write such a letter on their own account, and there is good reason to suppose that it was prompted by someone or other. The direction should include a direction for the Child and Family Reporter to consult with CAFCASS Legal with a view to their taking over the case at some appropriate date should they see fit.
22. The father would also like us to emphasise the importance of obeying the limited interim contact order that is currently in existence. It is tempting to vary that order so as to permit the father to telephone H, rather than the other way about. I have reservations about that only because there would have to be undesirable supervision of any such attempts in order to reassure both the father and the mother and, in particular, to guard against allegations of inappropriate behaviour. But, in my view, there is sufficient evidence from the letter written by H and from the witness statement from the fire station welfare officer to indicate that the time has now come for a penal notice to be attached to that order for indirect contact and I would vary it to that extent. As the matter is to come before Hedley J comparatively soon, the further variation or enforcement of that order can be dealt with then. In my judgment the time has now come, irrespective of whether findings of fact can be made, for an attempt to be made to introduce H to her father.
23. As far as disclosure from the social services records are concerned, we have been most grateful for the assistance of Mr Norton on behalf of social services. He agrees that an additional file note, dealing with the telephone conversation between the mother and the social worker on 19 December 1999, should be disclosed to the father with the mobile phone number deleted. He also agrees that a copy of a letter from the paediatrician who examined H after the car incident to which I have referred should be disclosed. Both of these complete the picture for the father of the incident referred to, and the father agrees that he now has sufficient disclosure about the incidents relating to him. What he is still concerned about is what he sees as a pattern of the mother involving the authorities inappropriately in allegations not only against him but also against other people. He is also concerned because the Child and Family Reporter's account of the social services files, which is dated 31 December 2001, makes a reference to a referral from Ms R, who is the mother's sister-in-law, suggesting that social services should be concerned about the mother's lifestyle and standard of care for the children. This referral did not lead to action by the social services department and we do not know when it took place or what else there is.
24. In those circumstances, any welfare officer's report should contain a chronology of the contacts between the mother and social services. It should not identify the other people against whom the mother may have made allegations, but it should make clear the number and nature of the allegations that have been made. Of course it should also make clear the allegations that have been made against the father. The date of the contact with Ms R should be made plain, along with any further indications from the file to substantiate the general allegation that Ms R seems to have made against the mother. That, for the time being at least, will be sufficient to enable the court to deal with the relevance of those matters to H's best interests.
25. So the order for disclosure can be varied to provide for the two further items of disclosure and the order relating to the full welfare enquiry can be varied to include the requirement for such a chronology within the Child and Family Reporter's section 7 report.
26. Finally, there is the matter of costs of the hearing on 4 February. It is quite clear that His Honour Judge Farmer had intended that that hearing should go ahead. The father turned up with his witnesses. The evidence on which the application to adjourn was based was dated two weeks before the hearing date and indeed the doctor's letter was based on a consultation with the mother a week before that. I cannot see any reason why an application to adjourn should not have been made immediately on that basis, rather than on the day of the hearing when, of course, costs were thrown away. The costs of a person acting in person are limited under the rules, and furthermore the mother had at that stage the benefit of a public funding certificate. Nevertheless it is not an entirely empty exercise to make a costs order in those circumstances, particularly if it turns out that the mother had more resources than had hitherto been thought. For my part I would consider that, although no order for costs is usually the right order in children cases, where one has this sort of behaviour on the part of a litigant it is not a correct order. I would set it aside and make an order that the mother pay the father's costs on that occasion, subject to the usual conditions, which mean that nothing comes of it unless she is assessed to have the resources available to meet it.
27. On that rather complicated basis, therefore, I would allow this appeal.
28. LORD JUSTICE SIMON BROWN: I agree with all that my Lady has said and with each of the orders and directions which she proposes. There is not a single word that I can usefully add.
ORDER: Appeal allowed on the basis given in the judgment. A copy of the judgment to be sent to both parties at public expense. (Order not part of approved judgment)