England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM WILLESDEN COUNTY COURT
(HIS HONOUR JUDGE COPLEY)

		Royal Courts of Justice Strand, London, WC2A 2LL
		25th July 2012

Lady Justice Black:

1. This appeal concerns four children: A is 14; S is 13; G is 7; and B is 4. They are all the children of the appellant mother. AK is the father of the older two and for simplicity's sake I will call him simply "the father". The younger two are not AK's children. Their fathers do not feature centrally in this litigation. The mother says that they were each conceived in the course of rapes by two different men.
2. The mother has an older child by another man. That child, a girl, lives with her father. The mother also has a younger child, D, aged two, whose father is JM. D lives with the mother.
3. The children who are the subject of this litigation are all living presently with the father. The relationship between the parents has been turbulent. Allegations have been made on both sides and there is much dispute about the details. No findings of fact have been made resolving this.
4. In broad summary the father says that he has been the primary carer for the children. He makes a number of allegations about the mother including that she has been physically abusive to him and to the children. The children themselves have made allegations about the mother's conduct towards them, including to a local authority social worker and a young person and children domestic advocate, whose role is to counsel children who have been in an environment where there has been domestic violence.
5. The mother says that she was the primary carer for the children until April 2011. She denies the allegations made by the father and by the children about her mistreatment of them. She alleges that she was subjected to domestic violence by the father, who was both controlling and violent.
6. There have been proceedings between the parties for some time. In 2010 the father began non-molestation proceedings against the mother which resulted in cross-undertakings until further order. In early 2011 the social services became involved because of concern that the children were being caught in the middle of parental conflict and it was concluded that they were suffering emotional harm. After a domestic incident in April 2011 the mother was asked by social services to leave the home and she did so. The father has looked after the children since then. The mother saw the children once a week for three hours until June 2011 when she says the father stopped all contact.
7. The father issued an application for residence in August 2011. The local authority had continued to be involved. In September 2011 they arranged supervised contact for the mother with G and B every Sunday for an hour and a half. The older children were free to attend if they wished. Until November G and B attended each contact and there were good reports of how it went. The 6 November 2011 contact took the form of a birthday party for G arranged by the mother. It was the last contact G attended, although B continued to see her mother thereafter, the length of the contact increasing in due course to three hours.
8. The court held a directions appointment in relation to the father's residence application on 4 October 2011. It was ordered that there should be a paternity test in relation to G and B, the results of which ruled out the father as their biological father. The local authority was directed to file a Section 7 report addressing the parents' competing claims to have residence of the children and the issue of contact. Although the mother has never filed a formal application for residence or contact, it has always been understood that she makes such applications and the court approached the case at all material times on that basis.
9. The next hearing was on 27 January 2012. A Section 7 report was available from the social worker, Ms Harries. It recommended that contact between the mother and the children "remains supervised in light of the significant emotional and physical abuse that has been reported by the children".
10. The judge ordered that the case would be the subject of a further review, this time listed for two hours on 26 March 2012, and that meantime the children would remain in the care of the father. He declined to order that a Rule 16.4 guardian be appointed for the children in the litigation or to request a report from a child and family psychologist.
11. The hearing on 26 March unfortunately could not start until 4 pm because the list was busy. It lasted until 6pm. The mother's position at the hearing was that the children should have a relationship with her unless an expert could clearly explain why that was not in their best interests and that there was a real risk, she said, that despite positive reports about his contact with her G may not start contact again and B may be adversely influenced so that she too would cease to have a relationship with her mother. The mother did not consider that the Section 7 report was sufficient to address the issues and she still wanted a guardian to be appointed for the children and an independent child and family psychologist to be instructed who could develop strategies for overcoming the problems. It appears to have been on that objective the guardian and the psychologist that her counsel concentrated at the hearing.
12. The father's position was that the proceedings should be brought to an end that day with a residence order in his favour and with the current contact arrangements continuing.
13. The judge heard oral evidence from the social worker, who was cross-examined, but the parties themselves did not give evidence. The social worker's evidence was that the children's views were clear and that the father had done all he could to persuade G to attend contact. She, the social worker, had also encouraged him to attend, but without success and she had nothing else to suggest. However, in contrast contact with B would move forward to three hours a week. The judge was also provided with an undated letter from G's school which described two events concerning G in November 2011. The first was when G told his class teacher that he did not like his mother because she was very mean. He said:

"Mum locks me in the cupboard. She is not nice."

14. The second was an occasion about a week later when G was unhappy at school and told his class teacher that he did not want to have contact with his mother but his father was forcing him to see her. He said:

"I don't want to have contact with mum because she just tries to be nice but is not. She is mean and horrible."

15. The teacher had apparently discussed G's concerns with the father and after the weekend G thanked the teacher for talking to his father and gave her a kiss. The letter also speaks of a change in G in that he had recently started to voice his fears and anxiety about seeing the mother.
16. Having heard from the social worker, the judge heard submissions then gave judgment. He ordered that the children were to reside with the father and he was to make them available for contact with the mother "as directed by the local authority". The mother's application for residence and for contact was "adjourned generally with liberty to restore", and if no request to restore was received by a year on from then the applications would stand dismissed.
17. There is apparently no possibility of a transcript being obtained of the judge's judgment or of the hearing that preceded it as it seems that the recording system at the court was not working. We have been provided with an agreed note of the judgment, but we do of course understand that it is not quite as full as a transcript would have been and we make allowances accordingly.
18. In dealing with residence the judge took into account that the minutes of the local authority meeting about the children in February 2012 stated that if the court did not secure the children's residence with the father the local authority would initiate proceedings. I interpose to say that it appears from those minutes that the local authority considered the children had suffered emotional and physical harm and they viewed the mother as the problem, considering that although she denied it the mother had abused the children physically. In contrast they had no concerns about the care that the father was providing and considered that the positive changes in the children since he became their sole carer showed that it was the mother who was responsible for "perpetrating the abuse".
19. The judge also took into account that the children had settled with the father, albeit that he was not the father of two of them. He did not consider that it would be in their interests to remove them from their current surroundings and he took the view that it was in their interests to make a residence order in favour of the father. The majority of the judgment focusses on the issue of contact in relation to the younger two children, G and B. The judge said that A and S were old enough to make their own minds up whether they wanted to have contact with their mother. This appeal does not essentially concern them.
20. There was no difficulty with B either. She was content to go to contact, and the judge recorded in his judgment that the intention was to move on to supported contact of a longer period for her and he indicated that that should be done as soon as possible.
21. The real problem was concerning G who was apparently refusing to see the mother. The mother thought this was because of the father's influence on him. The social worker's view, formed not only from what G said but also from his behaviour, was that the father was not trying to influence G against the mother but was trying to make him go to see her and that G was expressing his own clear and articulate view, not anyone else's. This was supported by what was described in a school letter. The judge recorded that the social worker had been asked about whether a seven-year-old should not simply do what he was told, that is go to see his mother, and had said that that depends on the circumstances and that she and the father had done all they could to encourage him thus far and could not see what more could be done at this stage, not wanting to cause him distress.
22. The judge dealt with and rejected again the proposal that a guardian be appointed, considering that the children's voices were plainly articulated by the social worker. He did not think that the court or the family would be assisted by a guardian. He did not think a child psychologist would help either. He was clear about his own view that there should be contact between G and his mother, and even though the mother was sceptical he expressed himself to be optimistic. He thought that if G saw B going for contact with the mother and seeing his half sister there too, he would follow suit and things would settle down to normality once the parties were no longer coming to court. Indeed the judge thought that, with appropriate encouragement from the social worker and the father and perhaps some indirect contact in writing, G would not only attend for contact but want to do so. He considered there would have to be gradual increments in contact. He pointed out that an order relating to children is not set in stone and that if circumstances change it can be varied and different orders made or, as he put it:

"If it does not work out she can bring it back."

23. The mother advances her appeal under seven headings, although her complaints can be grouped together into a smaller number of categories. One category of complaint relates to the form that the hearing in front of the judge took. The mother complains that the judge effectively made a final order in respect of residence and contact without hearing from the parties and on a hearing which had been listed only as a review and for which the judge had declined to have a bundle, even though there was a large quantity of relevant social services documentation that could have been provided in it.
24. It is argued that both the mother's residence application and her contact application deserved more thorough consideration by the court, including at least the hearing of evidence from the parties; more expert help was needed from a guardian and from a psychologist.
25. The mother has today conceded that there should be a residence order in favour of the father in relation to the two older children. This was an inevitable concession given the age of the children and the fact that they are adamantly opposed to living with her or even seeing her. However, the mother's case is that her application for residence of the younger two children was a realistic one that needed to be determined in the conventional way. It is said that she has the capacity to offer a suitable home to G and B. That she would be able to look after them can be seen from the fact that social services were largely content with the care that she has been giving to D. She is their biological parent whereas the father is not, she stresses, and they would also be living with their half-sibling D. It is submitted that it is material that B is very attached to the mother and has been reluctant to leave her after contact on occasions.
26. As to contact, there was also a real issue to be tried, the mother says, and it was not open to the judge to limit the evidence he heard to the social worker only and then leave the matter to hope. He thought that contact should be taking place. There was evidence that there had been good contact with G before he ceased to attend the sessions and there was good contact with B, so the judge needed to resolve what was preventing G from attending, the mother's argument goes, including ascertaining whether the father was in any way responsible.
27. There were other factual issues that also needed to be tried in the mother's submission, notably there needed to be findings about the allegations of domestic violence. Not to order a fact finding hearing was, she submits, contrary to the Practice Direction (Residence and Contact Orders: Domestic Violence) (No 2). Such findings would, she says, have the capacity to influence decisions as to residence and contact and would help experts to make recommendations as to the way forward.
28. The father responds that the mother was on notice that the hearing would in fact be a final hearing. This was apparent from the directions hearing that preceded it and from the fact that the judge had ordered the social worker's attendance to give evidence and be cross-examined. There was a full and comprehensive Section 7 report to assist the judge who, the father argues, considered the matter thoroughly. It is submitted that the judge rightly did not consider that oral evidence from the parties could affect his decision. Furthermore there was evidence in the Section 7 report that the proceedings were causing distress to the children, and it is submitted the judge brought them to an end to avoid further distress and uncertainty. He did not, however, close the door to the mother and made it clear that she could return the matter to court and the order he made could be varied.
29. As to the failure of the court to set up a fact-finding hearing to resolve the disputed issues as to the parties' conduct, the father points out that the judge was never invited to do this by the mother nor was the need for this raised with the Section 7 reporter at any stage. In fact it was not necessary to have such a hearing for a number of reasons, says the father. First, it was not necessary in the light of the recommendation for residence to be granted to the father and for contact with the mother. Secondly, the father says, the children's accounts of the mother's abuse had been accepted by social services, who knew that the mother denied them but were impressed by matters such as the consistency between the children and the manner in which they spoke; the father submits that this should be sufficient for the court. Thirdly, the court needed to have regard to proportionality, as a factual hearing would have prolonged the proceedings when they needed to come to an end so that the children could settle down.
30. A second category of complaint concerns the decision that the judge took in relation to contact, which the mother submits was inappropriate. She complains that the course taken by the judge amounted to an abdication of the court's responsibility to be proactive in promoting contact. Handing over to the social worker was not going to do the trick, she says, because the social worker had tried to promote contact but had failed and had nothing else to suggest. There was no framework in place to progress contact and it was not enough for the judge to speculate hopefully without any basis in the evidence for his optimism. He needed to give permission for an expert to become involved and arrange for separate representation for the children.
31. The particular points that the mother would wish the expert to address are the contrasts between G's enjoyment of contact when he was seeing his mother and his refusal to attend, and the difficulty of G living in a home with two older children who are extremely hostile to contact. She sought help from an expert in explaining why this had happened, that is to say why G had appeared content with contact when seeing his mother but then had refused to attend, and to propose strategies to move things forward. As for separate representation this case was, it is submitted, within the terms of the Practice Direction 16A to the Family Proceedings Rules on a variety of counts.
32. The father responds that the author of the Section 7 report was a senior social worker who had the assistance of an experienced domestic violence worker. Social services had an extensive knowledge of and involvement with the family. The social worker recommended that the current contact schedule should continue and the children should be encouraged to attend, and the local authority were acutely aware of the issues and best placed to set up, monitor and supervise contact in accordance with their recommendation. They were also able to convey to the court what the children thought about the issues. It was right of the judge, the father says, to put the matter into their hands rather than involving another professional and he did set up a framework by explaining how he expected contact to move on. A prescriptive contact order would have put pressure on the children whereas what needed to happen was that they should settle down and get on with their lives. As to the appointment of a guardian, the father submits that, whilst the case may satisfy some of the conditions of the Practice Direction, equally others were not satisfied. The Section 7 reporter had not recommended a guardian; the contact had not ceased; and the children's interests were capable of being represented by the social worker. It was not mandatory to appoint a guardian and the judge was right, the father says, to take the view that it would delay matters significantly to the detriment of the children and would not assist.
33. The mother also complains that the course taken by the judge failed to give sufficient weight to the fact that she is the only biological parent of G and B. She says that the judge made no reference to this. That is not strictly accurate as it was referred to in his judgment, although it is fair to say that the judgment passes on rapidly without any discussion of the importance of this. The mother also argues that the judge failed to give sufficient weight to the fact that G was not seeing D, of whom he is reported to be very fond. The father says in response that although not their biological parent he was in fact the children's parent in other ways, and he was the only father they knew. In the context of this case biological parenthood was irrelevant, he says. In fact, he submits, as the social worker advised the court, the mother was not able to look after the children because she had been abusive to them.

Discussion

34. As is so often the way in family cases, events have moved on significantly since the hearing in front of the judge and this has led to a measure of agreement between the parties as to the procedure that should now be followed in this case. However, as will be apparent from the fact that I am giving this judgment, we still felt it appropriate to give our views on the issues that have arisen in this appeal.
35. I can deal robustly and swiftly with the question of the appointment of a guardian and/or a psychologist. I am not persuaded by the mother's arguments in this respect. The judge had the benefit of input from the local authority, who had been very much involved in the case over a period of time. They were not abandoning the case but were intending to continue their attempts to persuade G to see his mother and would continue to enable B to do so. It was certainly open to the judge to take the view that it was difficult to see what more another expert could offer and that this was not the moment to take the course of involving another person in the children's lives. Furthermore, appointing a guardian or instructing a psychologist would inevitably take time and he was entitled to put into the balance in this respect that the children needed to be settled and to return to normality. Protracted court proceedings would not help with that.
36. I am not persuaded by the mother's argument that the judge abdicated responsibility for solving the contact issue either. He determined that contact should be taking place and he made the decision to continue to entrust the furtherance of it to social services because he thought that G would come round. He made clear that this was not a final decision and that the mother could bring the matter back to court if it did not progress. Keeping the proceedings open for a further year and expressly providing for liberty to apply, which was not necessary in law and must therefore have been included as a deliberate message that the decision was not as the judge said "set in stone", underlined this. The judge was entitled to take the view that this was the course that was in G's best interests for the moment.
37. However, the question which has troubled me the most and which was the reason why I gave permission to appeal is whether the judge was actually entitled to embark upon a determination of the issues in the case other than the question of whether a guardian should be appointed or a psychologist instructed without hearing evidence from the parties. The recommendation of the local authority had, as a significant part of its foundation, a view that the mother had been abusive physically and emotionally to the children and the father had not. The mother denied that she had behaved in this way, and she could point to the fact that she was in principle able to look after a child as social services were permitting her to look after D. The judge must essentially have proceeded on the basis that the view of the father and social services of the mother's conduct was accurate. This certainly lay behind his making of a residence order in the father's favour rather than the mother's and no doubt also behind the continuation of supervised contact.
38. There is no doubt that there were considerable obstacles in the mother's way and, so far as residence was concerned, they were not least that except for B the children were all to a greater or lesser extent resistant even to seeing her, let alone living with her, and that the idea of separating the children was unpalatable. But was the judge entitled to proceed to make a residence order to the father rather than the mother without giving the mother an opportunity to deal with the case against her in evidence? Similarly, was he entitled to proceed to determine issues in relation to contact without making findings of fact in the conventional way in relation to the mother's conduct towards the children and possibly also in the home?
39. What essentially the judge did was to assume that the facts would be established to be as the father and the local authority saw them without giving the mother the chance of a hearing at which the evidence was properly aired, including her own evidence and that of the father. Furthermore, on the issue of contact, the mother would no doubt have wished to impress on the judge how good contact with G had been and would have wished her counsel to explore with the father whether he was influencing G's attitude to contact adversely.
40. I can well understand how it was that the judge took the approach that he did, that is not hearing from the parents. He was anxious, rightly, that the proceedings should not be drawn out any longer, and no doubt he was influenced by the weight of the evidence in support of the factual case put forward by the father and supported by the local authority's investigations, and also by the practical difficulties in the way of the mother's application for residence. Time had run out for the hearing, almost certainly because of the pressure of work in the court and it was already late in the day, and perhaps most importantly the judge was not asked by counsel for the mother to hear evidence from her or to permit cross-examination of the father. Counsel for the mother seems to have been taken by surprise by the judge's final determination of matters. He was, as I have said, concentrating on persuading the judge that the matter should be adjourned for the intervention of a guardian or a psychological report and he did not expect that the judge would not only dismiss that application but also proceed to make final orders.
41. There are certain situations in which it is correct for a court to deal with applications summarily or on very limited evidence, but if that is to occur it is normally necessary for there to be some argument as to whether that is an appropriate course and a determination by the judge that it is for reasons which he articulates.
42. In this case the course that was taken does not seem to have been the subject of such a process. I am driven to the view, in all the circumstances, that the procedure adopted by the judge was rather too pragmatic and resulted in a hearing that was not entirely fair to the mother. However, as it happens, it is not necessary for me to decide that in order to ensure that this matter is considered more fully in the county court. I said earlier that things have changed since the judge heard the case. I now need to give an indication of the direction of change, although it is not necessary to go into detail.
43. A few days ago the father's solicitors wrote to the mother's solicitors saying that contact with B, the only child who had been seeing the mother without problems, was going to be suspended. This was said to be because of a series of incidents which had given rise to concern about B's safety and the father's. They included the following. A man who called himself Stuart had turned up at B's school claiming to be B's father. A man who gave a different name had turned up at the contact centre wanting to join in contact with B. A third incident involved a man trying to snatch B from the father on a tube station platform.
44. The mother's solicitors replied to the father's solicitors saying that in mid-July, when at Homebase, the mother had recognised the man who raped her and had approached him and told him that B had been born as a result of the rape. The man (Stuart), had subsequently attended at B's school and at the contact centre. Stuart told the mother that the father was behind the rape, having instructed Stuart to beat the mother up and rape her, and said that if he did not do so he would be paid a visit in relation to money that he owed the father for drugs and could not afford to pay.
45. Both parties concede that, in the light of this new and presently untested material and the suspension of contact with B, the case will have to return to the county court judge in any event now and that findings will have to be made about factual allegations. It was agreed that the proper course would be for each party to draw up a Schedule of Allegations that he or she considered needed to be determined by the court. These will, of course, include allegations in relation to conduct towards the children and may also include allegations in relation to conduct between the adults. They will also need to identify the evidence that they would seek to call in support of the allegations. There will then need to be a directions hearing at which the judge considers which allegations have the capacity to bear on the decisions that the court has to make about the children and regulates the evidence that will be called. It will, of course, be for the judge to ensure that a proportionate approach is taken to the fact-finding exercise.
46. It is common ground between the parties that, by virtue of the judge's inclusion of liberty to apply in his original order, not to mention (I would add) by virtue of the ordinary law relating to children proceeding, the mother would be entitled to seek to have the question of residence reconsidered by the judge, as well as the question of contact, which has been sharply put under the spotlight by recent events.
47. As I have said, the mother has been prepared to concede that she will only be asking the court to look at the issue of residence in relation to the younger two children and that the residence order in relation to the father should remain in place in relation to the older two.
48. For the avoidance of doubt I would stress that the objective is for the judge considering the future conduct of this matter to have a free hand to give directions about it untrammelled by what has gone before.
49. In all these circumstances, I would therefore allow the appeal to permit this course to be followed, although the residence order in relation to the two older children will remain in place.
50. I would just add one short postscript. Family practitioners and judges have become adept at dealing with situations that are continually developing, which are not straightforward, and which require speedy decisions for which there is often insufficient court time. Conscious that children await their decisions they respond valiantly by getting on with the job without insisting on too many formalities. However, it is important that everyone understands the issues that are to be determined at each hearing and addresses the form that the hearing will take, ensuring that the process is robust enough, not too robust. The mother in this case had not filed a formal application for residence and contact and it would have assisted in an understanding of the matters that had to be determined had she done so. Indeed, it may be helpful generally if rather greater attention is paid to the formalities in family proceedings.
51. Secondly, a word about review hearings. Hearings at which there is to be a "review" of a case are not at all uncommon, but they do carry a risk that there is a misunderstanding as to what will be addressed by the court. It is important that in advance of such a hearing, there is as much clarity as possible about its form and ambit, the issues that will be addressed, whether evidence is contemplated and whether the orders that result will be case management orders or orders of substance and, if the latter, whether interim or final.

Lord Justice Aikens:

52. I agree with the judgment that my Lady has given and for the reasons that she gives. I therefore also allow this appeal.
53. I would just wish to add two comments, however. First, I can well understand why in the circumstances the judge took the robust and pragmatic course that he did. In particular I would note that the judge's course should be seen against the fact that the mother, represented by counsel, did not apply for the mother to be heard or for the father to be cross-examined; she did not submit that there should be an interim residence order and did not seek an adjournment.
54. My second comment is this. I entirely agree with what my Lady has said about the need for requisite formalities in family cases. If those formalities had been observed in this case, it is possible, to put it no higher, that the current position could have been avoided.

Lord Justice Ward:

55. I have some sneaking sympathy for the judge, but for the reasons given by my Lady and by my Lord, with which I entirely agree, this appeal must be allowed to the extent that we have identified.

Order: Appeal allowed