England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BRADFORD COUNTY COURT
HIS HONOUR JUDGE CLIFFE

		Royal Courts of Justice Strand, London, WC2A 2LL
		12th October 2012

Lord Justice Munby:

1. This is an appeal, pursuant to permission given by Black LJ on 18 July 2012, from a decision taken by His Honour Judge Cliffe in Bradford County Court on 16 April 2012. The judge was exercising the private law family jurisdiction in relation to three children who were living with their mother in accordance with a residence order made by the court in 2008.
2. It is apparent that there had been continuing difficulties between the mother and the father, not so much in relation to contact itself, which appears to have gone most of the time in accordance with the court's orders, but in relation to a range of matters to do with the children's day-to-day and medical and dental care. The father has for quite some time taken the view that this been significantly deficient, such as to impact adversely upon the children's welfare. He has grave concerns involving physical mishandling, physical maltreatment and, most serious of all, although there is no suggestion that the mother is responsible for this, a suggestion that one of the children suffered a cigarette burn.
3. The matter came before Judge Cliffe for the first time on 28 September 2011 when he was hearing the father's appeal against an order of the district judge which had temporarily suspended contact. On that occasion Judge Cliffe made an order setting out the contact arrangements which were to take place for the future and, on that being done, the father agreed to withdraw his appeal. Judge Cliffe directed the matter be listed to review the position regarding contact on 9 November 2011. He reserved the case to himself.
4. When the matter came back before Judge Cliffe on that date, the father was actively pursuing the suggestion that there needed to be a fact-finding investigation in relation to his concerns. Accordingly Judge Cliffe directed the filing by the father of a schedule of the facts which he intended to prove, giving details and dates of the incidents, and directed that the mother serve her response.
5. The father's schedule served in pursuance of that order lists the allegations helpfully under discrete headings, and then under each heading lists the specific matters relied upon. The first heading was "Missed medical appointments", the second "Inappropriate child care not commensurate with the children's welfare needs", the third was an allegation of non-accidental injury, the fourth were described as verbal and physical assaults by the mother, the fifth was described as blocked contact, and the sixth was the respondent's inadequate parenting. The mother's response to that schedule was detailed. It went far beyond bare denials; it set out a detailed refutation of the father's complaints.
6. It was in these circumstances that the matter came before Judge Cliffe on 16 April 2012 for the purpose of investigating the father's factual complaints. What happened on that occasion was that, although the matter had been listed for two days, after the father had given evidence for something of the order of one and a quarter hours, one hour before the lunch break and some fifteen or twenty minutes after the lunch break, Judge Cliffe effectively stopped the proceedings and gave judgment explaining why he was doing so.
7. Referring back to the order which His Honour Judge Bartfield had made in 2008 giving residence to the mother, Judge Cliffe said this:

"What I have to decide in this case is whether the decision of His Honour Judge Bartfield back in 2008 should be overturned. Of course I have no jurisdiction to turn over the decision of another judge unless there is some new and compelling evidence put before me that satisfies me that the interests of these children require them to move from the principal carer, the mother, who has always been the main carer, to live with their father and for the purpose of this exercise I exclude all the additional criteria that would become necessary at the welfare stage about what sort of home they should live in, who would support them, who would offer the father support in his care of his children. All those matters I lay to one side, because as I have said it is for the father to establish that he can show on a balance of probabilities compelling reasons why these children should move and he has singularly failed to do that."

Judge Cliffe then proceeded in the next part of the judgment to analyse the various categories of complaint the father had raised in his schedule.

8. In relation to the missed medical appointments he expressed the view that it was "by no means evidence of neglect". Turning to the allegations of non- accidental injury Judge Cliffe recorded that the father was not able to put specific evidence before the court to show that those were indeed non accidental injuries. He commented:

"…children are injured from time to time in the hurly-burly of family life. It does not mean that someone has done it deliberately. It does not even means that someone is neglectful."

9. He then, at somewhat shorter length, dealt with the other matters raised in the schedule saying:

"These are all matters which may loom large in the mind of [the father], but not actually amount to a reason for changing the residence of the children. I repeat there is nothing in the schedule that has been established that justified any order that these children be moved."

10. Judge Cliffe then proceeded to identify the mother's case as being that the father's complaints were being made maliciously, as to which he concluded: "I do not go that far, but I have no doubt at all it was mischievous" – that being specifically a reference to one particular allegation.
11. In his concluding observations before he then turned to deal with the issues of contact, Judge Cliffe expressed himself as follows:

"But on the fundamental issue of whether there were grounds for changing the residence of these children I say without any hesitation at all the father has failed to prove any single matter that could justify the court in taking that view. Therefore his application for a residence order is dismissed at this stage which means that it would not be necessary for the guardian to go on and prepare a formal report about the future residence of the children."

12. The father's complaint goes essentially to the procedure adopted by Judge Cliffe. He complains that the judge fell into plain error in stopping the proceedings at that stage, and in particular not requiring the mother to give evidence. But there is also a suggestion that the test which Judge Cliffe applied when he formulated the task facing the father as being "to establish, if he could, that on the balance of probabilities there were compelling reasons why the children should be moved" set the bar inappropriately high as a matter of law.
13. It is a striking feature of the father's own presentation of his case before us today that he makes no bones about the fact that in relation to many of his allegations he was not in a position to establish them himself, albeit he was confident that he could establish them if only he was able to cross-examine the mother. I quote for example from one of the helpful written documents which he has put before us today explaining his case:

"My plea was that the allegations would be proved during questioning of the respondent and supported by the evidence that was entirely focussed upon the examination of the respondent."

To similar and indeed more emphatic effect, in another document he has put before us today he said:

"I could not prove the allegations or offer a balance of probability based upon my testimony, the court would and should recognise the testimony of the respondent was key. I do not believe the court has been fair in refusing to allow the respondent to be cross-examined under oath."

14. It is important to recognise the nature of the proceedings before Judge Cliffe. These were family proceedings, not ordinary civil proceedings where the function of the judge is in large part to act as the umpire determining the competing cases put before him by the litigants. In ordinary civil litigation the circumstances in which a judge can prematurely stop a case are limited, albeit less limited now in accordance with the Civil Procedure Rules than was once upon a time the case. But these are not ordinary civil proceedings, they are family proceedings, where it is fundamental that the judge has an essentially inquisitorial role, his duty being to further the welfare of the children which is, by statute, his paramount consideration. It has long been recognised -- and authority need not be quoted for this proposition -- that for this reason a judge exercising the family jurisdiction has a much broader discretion than he would in the civil jurisdiction to determine the way in which an application of the kind being made by the father should be pursued. In an appropriate case he can summarily dismiss the application as being, if not groundless, lacking enough merit to justify pursuing the matter. He may determine that the matter is one to be dealt with on the basis of written evidence and oral submissions without the need for oral evidence. He may, as Judge Cliffe did in the present case, decide to hear the evidence of the applicant and then take stock of where the matter stands at the end of the evidence.
15. The judge in such a situation will always be concerned to ask himself: is there some solid reason in the interests of the children why I should embark upon, or, having embarked upon, why I should continue exploring the matters which one or other of the parents seeks to raise. If there is or may be solid advantage in the children in doing so, then the inquiry will proceed, albeit it may be on the basis of submissions rather than oral evidence. But if the judge is satisfied that no advantage to the children is going to be obtained by continuing the investigation further, then it is perfectly within his case management powers and the proper exercises of his discretion so to decide and to determine that the proceedings should go no further.
16. The fundamental reality of this case as presented to Judge Cliffe on 16 April 2012 -- and he had of course by then been familiar with the case for some seven months -- was that there was in place, and had been in place since 2008, the residence order which the father was seeking to challenge. That was the starting point; and, quite apart from the judge being entitled to say that there was no solid advantage to the children to be obtained by further investigating the matters, it was entirely appropriate for the judge, given that historical reality, to say that it was for the father to demonstrate that there was some real basis of challenge to the existing arrangements and some real basis for asserting that the material he wished to put before the court might lead to a change in the residence order.
17. Given that by the time he gave the judgment which is now under attack Judge Cliffe had heard the father's evidence in chief, it seems to me that it was entirely appropriate for the judge to direct himself, as he did, that it was for the father, seeking to overturn a residence order which had been in place for over three years, to establish, if he could, that on the balance of probabilities there were compelling reasons why the children should be moved, just as it was in the light of the material he had before him and in the light of the evidence he had heard from the father, within the proper exercise of his judgment to conclude that the father had failed to meet that test. In my judgment, there was no error of law and no error of approach on the part of Judge Cliffe either in determining the standard by which the father's evidence was to be evaluated or in his consequential decision that he had heard enough to be satisfied that, as he put it, "without any hesitation" the father had "failed to prove any single matter that could justify the court" in taking the view that residence should be changed.
18. It is pre-eminently a matter for the trial judge in a case of this sort to determine the form of procedure which will best meet the welfare needs of the children. A judge is not obliged, merely because one parent or the other wishes him to do so, to listen to evidence if it has become apparent to him that the process is not going to be of any advantage to the children. That was the view Judge Cliffe took. It was a robust view, but it is quite impossible, in my judgment, to assert that the judge, in taking that view and adopting that approach, exceeded the generous ambit of discretion which the law conferred upon him as the trial judge. In my judgment, there was no error of law or misdirection when Judge Cliffe identified the test which faced the father; there was no error of law, no error of approach, when Judge Cliffe decided to take the course he did. In taking that course he was taking a decision which, in my judgment, was plainly open to him in the light of all the circumstances, not least in the light of what the father had so singularly failed, by that stage, to prove. It simply cannot be said that he was plainly wrong.
19. In those circumstances, in my judgment, this appeal should be dismissed.

Lord Justice Thorpe:

20. I agree that this appeal should be dismissed for the reasons given by my Lord. I would only observe that these parents have demonstrated to this court today how strongly they care for their children and how strongly they feel about the wellbeing of their children, but children really suffer if parents engage in litigation. The past few years have not been happy for the children, insofar as they know that their parents are engaged in court warfare, and there is another ten years ago, or eleven if you count the years to the minority of the youngest. So I do appeal to them to show tolerance and charity each to the other for the sake of the children, for if they cannot be more relaxed, more easygoing, more supportive each of the other, they risk to do real harm to the children in the long run.

Lord Justice Munby:

21. May I just add that I agree entirely with everything my Lord has said.

Order: Appeal dismissed