Case No: B4/2011/0302 
Neutral Citation Number: [2011] EWCA Civ 1147
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM PORTSMOUTH COUNTY COURT
(HER HONOUR JUDGE BLACK)
(Lower Court No: PO10F01088/P00474)

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Tuesday 19th April 2011

Before:

LADY JUSTICE SMITH
and
LORD JUSTICE WILSON
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Between:

	In the matter of G (A child) 
	
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Ms Rosein Magee (instructed by Swain and Co Solicitors, Havant) appeared on behalf of the Appellant Mother

Mr Neil Maton (instructed by Churchers Solicitors, Cosham) appeared on behalf of the Respondent Father
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Judgment
Lord Justice Wilson:

1.	A mother appeals against an order made in proceedings under the Children Act 1989 between herself and the father.  The order was made by Her Honour Judge Black on 20 January 2011 in the Portsmouth County Court.  As issued, the order wrongly purports to be an order made by District Judge Cawood on 1 February 2011.  Nowadays we judges are all charged with responsibility for the accuracy of the terms of our orders, as issued; and this must have been an order which unfortunately slipped through the circuit judge’s net.

2.	The order was one which varied the terms of an order for contact between the father and the child who was the subject of the proceedings, namely a boy, T, who was born on 18 March 2010 and so has recently attained the age of one year.  The original order for contact, made by consent between the parties at a hearing on 20 September 2010 at which both had been represented by solicitors, provided for the father to have supported contact with T at the Havant Contact Centre -- or at such other contact centre as might be agreed --on alternate Saturdays for two hours. 

3.	The variation of the terms for contact ordered by the judge on 20 January 2011 was that the father should have contact not at a contact centre but under the supervision of his mother, the paternal grandmother, whom I will describe as “the grandmother”.  The judge directed a review of the contact arrangements on 5 May 2011.  

4.	It is highly unusual for this court to entertain an appeal about very interim arrangements for contact in circumstances in which, in principle, the residential parent, no doubt very responsibly, has conceded that contact should take place.  

5.	T lives with the mother in a flat on Hayling Island pursuant to a residence order to which, also on 20 September 2010, the father consented.  The father lives with the grandmother and his two younger sisters in or near Havant. 

6.	The parents were never married.  Prior to T’s birth the parents scarcely even cohabited.  Once, however, following the birth, the mother had been granted the tenancy of her flat on Hayling Island, the father, with her consent, moved in there.  So also, for a few weeks, did the grandmother.  

7.	On 23 August 2010 the father, together with the grandmother, moved out of the mother’s flat; the parents’ brief cohabitation then came finally to an end.

8.	On 25 August 2010, by a solicitor, the mother secured a number of interim orders on a without notice basis.  Under the Family Law Act 1996 she secured non-molestation orders against the father and under the Children Act 1989 she secured a prohibited steps order against his removal of T from her care. 

9.	The evidence by reference to which the mother secured those orders was a statement, in my view important for present purposes, signed by the mother on the same date, 25 August.  On the face of it the mother in that statement made serious allegations, primarily against the father but also, incidentally, against the grandmother.  In the statement the mother alleged that on one occasion the father had hit her in the face with a chair and had tried to strangle her; that there had been two or three further occasions of domestic violence on his part towards her, as a result of which the police had been called; that the grandmother had bullied the mother; that on another occasion, when the father had tried to strangle the mother, the grandmother had pulled him off her and the police had been called and had made a referral to social services; that on 13 August 2010 the father had threatened to cut the mother with a knife “down below” so that no one else could have her, had grabbed a hairbrush and forced its handle into her anus and had threatened to cut her neck, arm, chest and vagina, as a result of which the police had again been called; that on 22 August when, during an argument, the mother had grabbed her keys and tried to leave the flat, the grandmother had called the police and had alleged to them that the mother was incapable of looking after T, as a result of which the police had later arrested the father; and that matters had come to a head on 23 August when the father and the grandmother had left the mother’s flat but had taken T with them, as a result of which the mother had called the police, who had caused T to be returned to her care.  In the statement the mother added that she understood from the police that the father had previous convictions for inflicting violence on the grandmother. 

10.	The father has never filed a statement in response to that of the mother dated 25 August 2010.  Nor, for that matter, has he caused the grandmother to sign a statement on his behalf by way of response.  The mother’s account of these events remains the only evidence on file.  The father has not sought to secure the discharge or variation of the non-molestation orders, which, accordingly, subsist and will continue to subsist, unless discharged or varied in the interim, until 25 August 2011.  There came a time, soon after the events recounted by the mother, when the father was charged with offences of common assault on her and of an indecent assault on her on 13 August 2010.  I suspect that, at the hearing on 20 September 2010, when the original contact order was made, the district judge was informed by the solicitors for both parties that criminal proceedings had begun or were in prospect.  At all events one of the district judge’s further directions, made by consent, was that the father should undertake both an anger management course and a domestic violence perpetrators’ programme through a provider to be agreed. 

11.	One or two occasions of supported contact took place at the Havant Contact Centre pursuant to the order dated 20 September 2010.  Apparently however the mother had always expressed a disinclination to travel to Havant in the light of the residence there of the father and of the other members of his family.  Indeed we are told today that it was agreed, perhaps outside court on 20 September, that the centre in Havant should be replaced by a contact centre in Waterlooville as the venue for contact between the father and T.  At all events it is clear that, until Christmas 2010, there were also occasions of supported contact between the father and T at the centre in Waterlooville.  Thereafter, however, contact ceased.  The father’s solicitor told the circuit judge on 20 January that the police had informally advised the father not to go to Waterlooville and accordingly the  solicitor suggested to the circuit judge, just as Mr Maton, who today enters the proceedings on behalf of the father, suggests to us, that the circuit judge was faced with an impasse in relation to the venue for contact.  We have a transcript of the entire proceedings which took place before the circuit judge on that date; and it was certainly not an impasse which she sought to resolve.  It was of course entirely within her power to override the mother’s concerns about travelling to Havant, or indeed to override the father’s concerns about travelling to Waterlooville, if she had been minded (which she was not) to continue contact at a contact centre. 

12.	The hearing on 20 January 2011 had been set up as a hearing for review. One half hour was allocated for it.  As I have indicated, solicitors appeared on behalf of both parents. 

13.	It is unclear how much preparation for the hearing had been able to be conducted by the judge.  But her first questions were entirely apposite.  She asked the solicitors to confirm that the hearing was one of review.  Then she asked the solicitor for the father whether the latter had complied with the direction dated 20 September for him to attend the anger management course and the domestic violence perpetrators’ programme.  The father’s solicitor informed the judge that the father had begun to attend neither of them.  He explained to her that the criminal proceedings were still pending against his client and were due to be heard on 11 April 2011.  I interpolate to state that today we have been told that on 11 April, at the Crown Court, the father did no more than to enter pleas of not guilty and that the substantive trial is now fixed to take place on 20 June 2011.  Then, before the circuit judge, the father’s solicitor outlined the problems which the mother had articulated about going to the contact centre in Havant and which the father had articulated about going to the centre in Waterlooville.  The solicitor said: 

“My application this morning, your Honour, before you would be to seek an interim hearing.  We would wish to put forward my client’s mother as an appropriate supervisor for contact until such time as the long-term contact arrangements are dealt with... ultimately Your Honour we would also seek a report.”

One construction of the solicitor’s words was that he was at this review hearing only seeking a direction for an interim hearing to be set up at a later date, at which his proposal for supervision by the grandmother might be considered; but Mr Maton has persuaded me that it is arguable that the solicitor was seeking a direction for a change in the supervision there and then.  All we know is that the father’s solicitor had informed the mother’s solicitor about his proposed change of supervision only at the moment when they were both entering the judge’s court.  

14.	After the solicitor for the father had thus addressed the judge, the solicitor for the mother explained the mother’s concerns about going to the contact centre in Havant, her willingness to attend the centre in Waterlooville and, alternatively, provided that the costs of travel were met, her willingness to attend a contact centre in Portsmouth itself.

15.	Apparently there were no less than two Cafcass officers present in court during the short hearing.  At an early stage the judge naturally consulted one of them, who responded that in his view contact really needed to continue at least to be supported, if not supervised.  The judge, entitled to be proactive in the discussion about contact arrangements, soon expressed concern that a child as young as aged one should be, in her words, “clunked off” at a contact centre.  She expressed concern that a baby might not receive the sort of attention in relation to the changing of nappies and to feeding etc which might be available if, instead, a family member was to supervise or support the contact in a home.  

16.	The solicitor for the mother told the judge that the suitability of the grandmother was “a big question” for the mother and suggested that the mother’s aunt might supervise the contact.  Then, however, the judge suggested that it would be appropriate to hear briefly from the grandmother, in particular to learn what assurances she might give in relation to her behaviour during the father’s contact.  The judge invited the Cafcass officers to comment on that idea and one of them responded that, at the very least, there would need to be “safeguarding checks” in relation to the grandmother before any contact were to take place under her supervision.  

17.	Then the grandmother was invited into court and, without her having signed any statement in the proceedings at all, she was asked six questions by the father’s solicitor and 11 questions by the judge.  Thereupon the judge invited the mother’s solicitor to ask questions.  In the event she asked three questions. They were as follows:

The solicitor: “Were you aware of the domestic violence inflicted by your son on the mother?”  

Grandmother: “I never witnessed anything of my son doing anything to [the mother].” 

The solicitor: “Were you aware that something was happening within the household?”  

Grandmother: “Arguments”. 

The solicitor: “But nothing physical?” 

Grandmother: “No”.

18.	It was following such cross-examination that the solicitor for the mother informed, or perhaps reminded, the judge that, according to the mother’s statement dated 25 August 2010, the mother had alleged domestic violence against the father including that, in the course of it, the grandmother had been present in the house and had bullied the mother.  The solicitor informed the judge that the mother did not feel comfortable about supervision of contact by the grandmother, whereupon the judge responded “That is my judgement call, I think, is it not?”  Then the judge asked six further questions of the grandmother; indeed they were pertinent questions.  From them it emerged for the first time that the grandmother’s two daughters had been placed on an at risk register by a social services department on the basis that the grandmother’s former husband had sexually abused them.  The grandmother added that she herself had been “cleared”.  

19.	Such, then, was the oral evidence given by the judge which led her to order the variation in the contact arrangements.  It is right to record that, before she gave her judgment or rather articulated her brief observations, she asked the Cafcass officers whether they wished to make any further comments and that one of them thereupon replied :

“I think that we would like to see the safeguarding checks, most certainly, before any further decision is made, your Honour. There are some areas that I am not comfortable with.”

20.	As I have indicated, the circuit judge did not give anything that could be described as a judgment in the matter.   Her concluding observations were as follows: 

“The bottom line is that there ought to be some contact at the moment.  It ought to be supervised by a family member rather than in a contact centre, given the age of this child; I would have thought as a matter of principle that has got to be right.  So, those are the first two sort of points.  The third is trying to establish someone who can safely deal with that supervision of contact.  I would certainly want to see the safeguarding checks on the grandmother, in particular in the light of the evidence that she has given, but were they to confirm that she has no convictions and no involvement with social services at this point in time, then, given that we are looking at a fairly short period of contact pending your client’s trial, there would seem to be no particular reason why she should not supervise the contact, unless the parents can come up with another alternative in the meantime.  I am not convinced that it is terribly helpful for contact to be supervised by someone who does not really know the father.  So if there was, if you like, anyone who both parents know, then that would be the ideal but, if not, then, subject to the tests being appropriate, then it would be the grandmother, for two hours, supervised, on a weekend, on a Saturday.”

21.	The solicitor who represented the mother before the judge and who is present in court today, sitting behind Ms Magee of counsel, realistically and courageously accepts that, in retrospect, her advocacy was insufficiently robust.  I hope that it is not impertinent for me to suggest that she might have made a final submission along these lines:  

“Your Honour I respectfully submit, with all the force at my command, that it would be wrong at this juncture for your Honour to vary the arrangements for contact so as to make the grandmother the supervisor or supporter of contact. I rely on the following 13 features: 

(1) it was agreed between the parties as recently as at the hearing on 20 September 2010 that contact needed to be supervised at a contact centre; 
(2) my client’s statement, to which I have already referred in passing and which I hope that you may have had time to read, raises serious issues of domestic violence against the father but also issues of collusion on the part of the grandmother with the father which would, if established, make her an entirely inappropriate supervisor of contact; 
(3) it is (I suggest) important to note that, long before any proposal was made that the grandmother would be an appropriate supervisor of contact, my client was, in that statement, making allegations against the grandmother which turn out to be highly relevant to that very issue;  
(4) the father has never filed a statement, whether by himself or by the grandmother, in answer to my client’s statement; 
(5) the police have seen fit to charge the father with offences of assault, including indecent assault, upon my client and we understand that they are due to be heard in less than three months’ time; 
(6) it was agreed between the parties at the hearing on 20 September that the father should take part in an anger management course and a domestic violence perpetrators’ programme but he has not yet begun to do so; 
(7) this hearing was set up by the district judge simply as a review of contact and I had no notice that at it there was to be any suggestion of a change in the nature of the supervision of contact;
(8) in particular I had no notice, prior to walking into your Honour’s court, that my friend was intending today to contend that the grandmother should become the supervisor or supporter of contact; 
(9) I have had no time in which to prepare cross-examination of the grandmother and no statement has been filed by her by reference to which I might have taken instructions and formulated my questions; 
(10) only 30 minutes have been allotted for this hearing and such has been an entirely inappropriate period in which for us to argue, still less for your Honour to determine, what is an important point in relation to the safety of T during contact; 
 (11) your Honour has, with respect, had no time even to hear from my client about her concerns and, in particular, to hear her cross-examined by my friend if and insofar as, which is unclear, the father disputes the matters contained in her statement dated 25 August; 
(l2) as your Honour so well appreciates, where there is a history of substantial domestic violence, the question whether contact arrangements will generate anxiety and distress for the mother, indirectly damaging for the child, is itself an important feature, which your Honour has today had no time to address;  and 
(13) your Honour’s own, few, questions of the grandmother uncovered a bombshell, namely that her former husband had sexually abused -- or as she said in evidence had ‘apparently sexually abused’ her two daughters and that she had been cleared; on any view the sexual abuse of two daughters in her home raises serious questions about her ability to act as a protector of children in her care or temporary care; and the suggested enquiries into whether the grandmother has previous criminal convictions, or indeed whether, now that the former husband has left the home, the local authority are presently involved in relation to the daughters, would in no way answer them.”

22.	Yes, such is along the lines of what the advocate might in retrospect have submitted.  But this circuit judge is extremely experienced, and highly respected, in the despatch of family proceedings.  Her function under the Act of 1989 was quasi-inquisitorial. Irrespective of the abilities, on the day, of the publicly funded solicitor to collect her thoughts so as to present argument to her along those lines, the circuit judge ought to have been well aware of the sort of arguments which I have collected above.  The fact is that, notwithstanding the very wide discretion which she enjoyed in relation to varying the arrangements for the father’s contact with T and to her very conduct of the investigation into the issue (see the classic exposition of Butler-Sloss LJ in Re B Minors Contact [1994] 2 FLR 1 at 5F-H), the judge in my view went well outside the boundary of her discretion in allowing the grandmother to become the supervisor or supporter of contact in the above circumstances, taken together.  The judge simply failed to weigh at all many of the relevant considerations.

23.	I would allow the appeal and direct that, until the hearing on 5 May, which with respect should in the circumstances not be conducted by the circuit judge, the arrangements for contact at a contact centre should remain in force.  Were my Lady to agree with this disposal, we should no doubt hear argument in relation to whether it should be the centre in Havant, in Waterlooville or indeed in Portsmouth itself.

Lady Justice Smith:

24.	I agree with Wilson LJ and add a few words of my own only to underline the point that nothing in these judgments is intended to discourage judges from dealing summarily and robustly with issues which are suitable for such disposal.   But such robustness must have its limits.  Here contact as agreed had broken down.  The basis of the prior agreement had been that contact should take place at a contact centre.  Then not only would the mother be able to avoid direct contact with the father but could also be confident that T, the child, would be safe.  It would in my view have been entirely appropriate for the judge at this short review hearing to resolve the dispute as to which contact centre should be used but instead the judge decided to abandon the idea of contact at a contact centre.  She clearly thought that contact would be better at private premises.  She decided that contact should be at the home of the father and the grandmother.  The grandmother was to collect from mother’s home. This arrangement completely undermined the basis upon which mother had agreed to contact.  It reawakened all her worries about the father’s alleged conduct and the grandmother’s role in it as alleged by the mother.  These worries and concerns had been satisfactorily allayed by the arrangement at the contact centre but were not adequately addressed, indeed at all addressed, by the judge.  In short the judge’s willingness to change the basis of the agreed contact to a basis which was not agreed and without any real evidential investigation of the mother’s objections and concerns was a step much too far. These issues were not in my judgment suitable for summary disposal.

25.	For those reasons and for the reasons given by Wilson LJ, I too would allow this appeal.  I agree with the proposed disposal and am ready to hear from counsel as to their submissions as to which contact centre should be used in the short interim period before the next hearing.

Order: Appeal allowed