England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE BRISTOL COUNTY COURT
(HIS HONOUR JUDGE HARINGTON)

		Royal Courts of Justice Strand, London, WC2A 2LL
		4th June 2008

Lord Justice Ward:

1. The issue in this appeal is whether HHJ Harington, sitting in the Bristol County Court on 6 May 2008, was plainly wrong to direct that a father should have unsupervised contact to his three-and-a-half-year-old daughter, G.
2. This is a quite extraordinary case, extraordinary because of the occupations of the parents. Father is a chartered child educational psychologist who has worked professionally for 35 years with disadvantaged children and as a secondary school teacher in secure units and special schools. His life has involved dealing with children. The mother is much younger. She is 39. He is 66. She, by occupation, is a children's advocate specialising in the representation of children with special needs. One would have hoped that with that professional background this case would never have seen the light of day and to my utter astonishment it has grown like Topsy from a case in which there were initially allegations being made which would need investigation for two days. That grew to four and has now grown to six and I dare say will take eight, and it seems to me to be utterly extraordinary. But there we are. Those are not the issues that we have to consider.
3. The background to the case is that the parties developed a relationship together and married. G was born on 9 September 2004 and the parties separated on 14 September 2007. Mother has two children by a previous relationship, A and H, boys aged 14 and 12, sadly both suffering from Asperger's Syndrome, which would present great difficulties in their care, and one has sympathy obviously for them and for mother and, latterly, stepfather. The reason for the breakdown of the marriage, or the final straw leading to the breakdown in the marriage, relates to an allegation of an assault by father on A some weeks earlier. It is alleged that father badly assaulted the boy but that is heavily contested and I need say no more about it. Following the separation, father had daily telephone contact to G until 26 November of last year when contact was re-established but it may be largely by default. That contact was supervised by the local authority.
4. On 13 December HHJ Harington became involved in the case, I think for the first time, when he had to adjourn the finding of fact enquiry, and he then directed that there be supervised contact as directed by the local authority. That contact took place thereafter. On 31 January 2008 HHJ Bromilow directed that the contact be supervised by G's paternal aunt on weekly occasions from 15 February -- the local authority to be present, I think, on every fortnight of that contact. That contact apparently took place but came to an end in March.
5. The finding of fact enquiry had been listed to be heard in May, but because it had now grown to the four days it was adjourned with that date left open to resolve the issue of further contact. It appears that, unbeknown to the mother, aunt had refused to continue to supervise that contact for a variety of reasons. Some may be personal, some were probably geographical and some may have been unwillingness to become further embroiled in this unhappy dispute because it appears that, after contact had taken place on 6 March 2008, an allegation was made five days later when the mother took the child to a general practitioner in Wales where she was then living, complaining that the little girl had returned from that contact occasion with her vagina red and swollen.
6. It is at the moment something of a mystery what steps the general practitioner took or what the general practitioner found because there is as yet no medical report from that doctor, who, nonetheless, in the light maybe -- and I emphasise maybe, because all of these matters are yet to be investigated -- that mother was making allegations suggestive of sexual abuse as a result of which the matter was referred, perfectly properly, by the general practitioner to the local authority in Wales. Whatever happened, what we know is that the local authority in Bristol, having considered the matter at a strategy meeting, later concluded, and we were told today on advice from among others the consultant paediatrician in Bristol that, as it is set out in the notes at the paragraph dealing with the meeting held on 17 March:

"Strategies discussion held. [G's] presenting condition is not symptomatic of sexual abuse in the absence of other evidence. No invasive medical required."

7. So as far as the local authority were concerned there was no further investigation to be undertaken of that event. I confess that I had been under the impression that that was a central complaint being presented by the mother of father's conduct because it was not the first time that the matter had been raised. The mother refers to similar events in paragraph 86 of her second statement at page B129 of the bundle where she says that G often had a red and sore vagina and the respondent blamed A and accused him. G would complain of a sore 'woof'. We were told by counsel today that in fact the mother does not allege that this was a deliberate act of sexual abuse and that she is in fact not relying on this incident at all. I repeat I was somewhat surprised by that because my reading of the papers had not led me to understand that was her case. Her case for supervision, as summarised by counsel, relies on a pattern of behaviour characterised by, in the first place, domestic violence, some or much of which will have occurred in the presence of G in particular and certainly of the older boys as well; secondly, the father's sheer unpredictability of behaviour, as evidenced by his outburst which resulted in the alleged assault on A in August of last year; thirdly, his drinking; fourthly his rough handling of the children generally but G in particular and, finally, the sexual fantasies he has manifested. On further enquiry about the nature of the rough handling of G we were referred to an incident which the mother set out at page B8 of the bundle, her first statement, where in paragraph 6 she described an incident a week after the child's third birthday when the child was being placed in her pushchair and the father was:

"struggling to keep her still long enough to secure her straps and became so angry with her that he wrenched her arms in different directions and clearly hurting her. I had to tell him to stop as she was clearly in pain and becoming hugely distressed."

8. Counsel referred us to other matters in a draft schedule of the findings of fact that it is going to take six horrible days to try, but upon analysis it seems that those matters, when analysed, relate to in paragraph 11 handling G in a rough manner when uncooperative, causing her distress, an unparticularised allegation; 12, leaving the house without ensuring she was properly dressed; 22, taking her out into the snow completely naked and causing her distress, an incident which the father emotionally denied in his submissions to us; then an unidentified, as yet, general allegation of shaking the child when she was much younger. That seems to be the sum of the allegations being made against the father of rough handling of this little girl.
9. The judge had the benefit of hearing evidence not only from the mother and father but also from the social worker who has been involved in the case for some time and, more importantly, from the guardian. He had the benefit of their cross-examination. I do not have a transcript of that evidence but some note of it. It seems that Miss Finlayson, the social worker, gave evidence to the judge that her experience and her involvement told her that, at that stage, G would be safe with unsupervised contact and she was of the view that the little girl would be safe with her father. She was against causing any further delay by investigating the possibilities of supervision because there already had been delay in the case, and further delay would obviously affect the relationship between father and daughter.
10. Mr Harper, the guardian, told the judge according to the note we have that he was of the view that there was no reason why unsupervised contact should not take place and he, likewise, was not satisfied that an adjournment was necessary to investigate the possibilities of supervised or supported contact. For him the issue was clear: supervised or unsupervised contact. In her closing submissions Miss Dass, who appeared for the mother, did submit to the judge that there was a third alternative and that was to adjourn the matter to make enquiries as to whether some other person than maternal aunt would be available to supervise or to investigate generally the other possibilities, for example at a contact centre, or some other place where supported contact could take place. The judge dealt with the matter in this way. He addressed the question in paragraph 12 as follows:

"In the circumstances of the Final Hearing being put back until August and the lack of an alternative supervisor in the interim, it is right for the Court to revisit the question of supervised or unsupervised contact at this stage."

He then referred to the evidence from the social worker, saying that:

"In her evidence Miss Finlayson states there is no evidence that [G] would be at risk of having unsupervised contact with her father and she says her experience tells her [G] would be safe with unsupervised contact. Also she feels it is in [G's] interest for contact to continue twice a week unsupervised."

He referred in paragraph 14 to the evidence of the guardian, who had observed contact and seen G, and the judge noted his recommendation that contact should indeed be increased. He said:

"His view that whilst he could not go so far as to support overnight contact, although he had been minded to support this when the father's sister was present he now felt that it would be in [G's] interests to have unsupervised contact with her father over a period of two days. He stated that the only risk and concern that he had would be over the parents meeting each other at handovers and he suggested that [G] is returned to a child minder where she could be collected from and returned by her father. He also said that [G] enjoys her time with her father."

11. The judge summarised the submissions he had heard, including the submissions advanced on behalf of the mother by Miss Dass, that the risks were unknown; that supervision had been the rule in the past. She pointed to the need of the court to protect G and suggested that nothing had changed since the last order for supervised contact. She submitted:

"On the father's evidence, his sister may still be available to supervise and, if not, enquiries should be made to look into the possibility of someone else doing it."

12. He then expressed his conclusions, albeit shortly, in paragraph 19 of the judgment as follows:

"However having heard the evidence I am satisfied that in [G's] best interests father should have unsupervised contact with his daughter. It is clear that she benefits from contact with him and I believe that it would have a harmful effect if it were to stop. Also it would be unreasonable to suggest that [the paternal aunt] should continue to travel from Hertfordshire to supervise it. From what I have heard there is not such a risk to [G] at this stage that supervision is necessary to protect her."

13. In those circumstances Miss Dass advances the appeal, submitting that the judge erred in failing fully to take account of and to implement the recent Practice Direction, paragraph 20 of which states that:

(i) Where the court is considering whether to make an order for interim contact, it should in addition consider

(b) the arrangements required to ensure, as far as possible, that any risk of harm to the child is minimised and that the safety of the child and the parties is secured; and in particular:

(i) whether the contact should be supervised or supported, and if so, where and by whom; and

(ii) the availability of appropriate facilities for that purpose"

14. For my part I do not see that the judge can be criticised for failing to consider that. He did in fact consider whether contact should be supervised or supported and he concluded, on the evidence that was placed before him, which he was entitled to accept, that supervision or supported contact was not necessary in this case. Miss Dass submits that he was wrong not to accede to her application, however elliptically it may have been made, to adjourn. But it seems to me that in recording her submissions, he notes the suggestion for an adjournment; he had that position well in mind and in the exercise of a discretion decided not to adjourn. The reason he chose not to adjourn is that he was satisfied that the risks were not of such gravity as to make supervision necessary to protect the child. In those circumstances, having reached that conclusion, he was justified in refusing an adjournment. That conclusion was essentially a balancing exercise for him to strike. He had to weigh up, and he did weigh up, the competing factors of a risk of harm, for all the reasons being advanced by the mother which I have already summarised, that on the one hand, as against chances of those risks being well-founded and the harmful effect on the child if contact were to stop. It may be that other judges would have been more cautious but this was essentially a judgment for HHJ Harington to strike and the task of the Court of Appeal is to review whether or not it was a decision which fell outside the generous ambit within which there is reasonable room for disagreement.
15. For my part I cannot see that the judge erred in that respect. The matters were fully before him. Weight was a matter for the exercise of his judgment and, knowing full well the risks that were there to be run, he concluded that they were not of a sufficient gravity or strength to impose a restriction of supervised contact which would, by itself, impede in some way, possibly delay, the contact which the evidence satisfied him was good contact. There was no question at all from the evidence of the social worker and the guardian that this father and this child had a loving relationship; that he responded well to her in contact and that contact was not only working extremely satisfactorily but was highly beneficial to this little child and should not be interrupted. It was a bold decision but, having heard the argument today, for my part not only am I prepared to say the judge was not plainly wrong but I go further and say I may well have come to the same conclusion myself.
16. I would therefore dismiss the appeal.

Lord Justice Jacob:

17. I agree.

Lord Justice Rimer:

18. I also agree.

Order: Appeal dismissed.