England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM WORCESTER COUNTY COURT
HIS HONOUR JUDGE HOOPER QC
WR11P00237

		Royal Courts of Justice Strand, London, WC2A 2LL
		21/12/2012

Lady Justice Black; :

1. On 5 December 2012, having heard the argument in this appeal, we told the parties that it would be allowed and that we would give our reasons for our decision later. These are those reasons.
2. S was born on 21 July 2007 and is 5 years old. The appellant is her mother ("the mother"). The respondent is her father ("the father").
3. The parents separated in 2009. From that time, S lived with the mother and at first arrangements for contact were amicable. After a time, however, difficulties arose. In March 2011 the father began proceedings with a view to his contact with S being restored.
4. Although the father did not know it when he began the contact proceedings, the local authority was concerned, for reasons to which I will come shortly, about the presence in the mother's household of Mr C. Mr C has been the mother's partner and is the father of her two younger children, S's half siblings, E and A.
5. Having learned something about the issues to do with Mr C, the father indicated at a hearing in May 2011 that he intended to apply for residence. It is a mark of the difficulty of the issues in the proceedings that in December 2011 S was made a party to the proceedings and the CAFCASS officer who had been reporting on the case was appointed as guardian to look after S's interests.
6. The local authority carried out a risk assessment with regard to Mr C. The assessment was completed on 10 February 2012. Mr C was previously married and has 5 children by that relationship. The history recited in the assessment report includes what appears to have been serious domestic violence between Mr C and his then wife and what were thought to be credible allegations of violent assaults by Mr C on 3 of his boys. Although Mr C denied acting in a violent way towards his family, the social worker carrying out the assessment considered that there were "strong indicators that Mr C may pose a future risk of physical harm to children" and was concerned also about the risk of emotional harm. She acknowledged that there was at that time no record of domestic violence between Mr C and S's mother and that consideration would need to be given to whether things were different in that relationship but she was not reassured. On the positive side, she observed a warm relationship between S and her mother and she also saw close and natural interaction between Mr C and E. However, she did not think Mr C had the capacity to engage in any work to assist him to understand issues such as the impact of domestic violence on children and the way in which others perceive him and she also had serious concerns about the mother's capacity to engage in any work because she appeared to be strongly of the view that it was not needed. She concluded her report by saying that she had "concerns as to whether [the mother] will be able to safeguard S from the risk posed by Mr C".
7. The positions of the parties fluctuated over the course of 2012 as, apparently, did the relationship between the mother and Mr C. The local authority and the guardian concluded that it was not possible to meet S's needs if Mr C was present in the mother's household. In March, the guardian recommended that S should live with the father unless the mother separated from Mr C. However, although Mr C continued to be part of the mother's household, no one applied for the transfer of residence to take place as a matter of urgency. At a directions hearing in June the case was set down for a contested residence hearing lasting 4 days in October 2012. Shortly after the directions hearing, the mother and Mr C made it known to the local authority that they were separating. At that stage, the father continued to pursue a residence order in his favour. However, the case then came before the court for directions again on 14 September 2012. The guardian's recommendation by then was that provided the mother undertook not to allow S to have any contact with Mr C, there should be a shared residence order in favour of both the father and the mother with the practical arrangement being that the mother continued to have care of S for the majority of the time. She stipulated, however, that if S was brought into contact with Mr C, there should be an immediate transfer of residence to the father.
8. The father changed his position in response to the guardian's recommendations. He was now prepared to accept a shared residence order with S living predominantly with her mother and staying with him on alternate weekends, each Wednesday night, and for a portion of the school holidays.
9. The mother was unable to accept the recommendations of the guardian. She was not prepared to give an undertaking that she would not bring S into contact with Mr C and she sought a sole residence order in her favour rather than shared residence with the father, although she agreed upon the actual division of S's time between herself and the father.
10. The issues for the October hearing had therefore reduced to whether there should be a shared residence order or a residence order in the mother's favour and whether an undertaking was needed. The time estimate for the October hearing was accordingly cut down to 2 days.
11. The hearing started on Monday 1 October. It is now clear that there had been a flurry of activity immediately preceding it.
12. On the weekend of 14 – 16 September, when S was staying with her father, she had said various things to him which suggested that far from the mother and Mr C having separated, Mr C was still part of day to day life. S said that:

i) Mr C had cooked her tea the night before she came to stay with her father; she came to stay on Friday 14 September so that would have been on Thursday 13 September.

ii) She had been swimming with her mother, E and A, and Mr C; A was born on 23 August 2012 so if she was right, that must have been a recent occurrence.

iii) She sometimes had to sleep with E because Mr C was sleeping in her mother's bed with A; again, given the presence of A in the account, that must have been a recent occurrence.

13. The father instructed a private investigator to observe the mother's house. Mr Preece was that private investigator. He observed the premises over the back fence from 18 September to 24 September. A report by him was produced, stating that he had observed Mr C coming out of the back door of the mother's house on Tuesday 18 September at 08.06 and on Thursday 20 September at 08.05. On Monday 24 September at 15.00, he saw Mr C leave the property and get into a car and drive away. Mr Preece's report was appended to a statement from the father dated 27 September which was served on the mother just after midday on 28 September, that is the Friday before the hearing was due to start on the Monday.
14. Also on 28 September, James Green, S's allocated social worker, visited S at school and talked to her. There is an email from him in which he set out what happened [E11]. It reads:

"S said she has been ill and off school. She said she has been up in the night when sick. I asked her who was in the house. She said Mummy and that A and E were in mummy's bed. I asked what about [Mr C]. She told me [Mr C] was also there. Also that he was helping her when she was ill last night.

I asked S about swimming. I asked her who goes swimming with her. She told me A, E and [Mr C]. She said [Mr C] has to stay out the pool and watch to look after A [sic]."

15. The mother was then visited by Mr Green who discussed with her the evidence pointing towards Mr C having been in contact with S. Mr C was there too. Apart from admitting that Mr C was at the house at 15.00 on 24 September, both he and the mother denied the information that emerged from the investigator and from S.
16. These last minute developments obviously placed all the parties in a difficult position. The judge had to decide what to do in response to them. It was clear that the matter was of great significance because the guardian made plain that if it was established that there had been unofficial association between the mother and Mr C, she would be recommending an immediate transfer of residence from the mother to the father.
17. The mother's position was that Mr C had not been in contact with S or been at the house except in accordance with the "official" arrangement for him to see the younger children. She wished to assemble evidence to demonstrate that. There were a number of pieces of evidence that she had in mind; I will focus on the main ones.
18. First, she wanted to call Mr C to give evidence that he was not at the house on the occasions in question. In relation to 18 September, she also wanted to produce documentary evidence in support. Her case was that on that day, Mr C was in Glen Parva near Leicester meeting his son who was being released from the Young Offender Institution there that morning. She was able to produce a form showing that Mr C's son was being released that day. She also produced a copy of a bank statement of Mr C's which showed that his Advantage Gold card had been used for a purchase in McDonalds in Leicester that day. However the bank statement did not record a precise time for the transaction. A telephone call to McDonalds had indicated that the transaction was at 9.19 a.m. but documentary proof of that could not be obtained at such short notice. It was common ground that if Mr C had been in Leicester then, the private investigator could not have been seen him at the mother's property.
19. Secondly, the mother wanted to call her own mother ("MGM") to give evidence on a number of points. MGM was present at court although no written statement was available from her. Her evidence would have been that she and her husband were at the mother's property before 08.00 on 20 September, having been called urgently to help the mother by taking S to the school bus. MGM would have said that she went to the bus with S and her husband stayed at the property. It was suggested that he was of similar age and could have been mistaken for Mr C. MGM would also have given evidence relevant to Thursday 13 September when S said her tea had been made by Mr C. MGM would have said that S came to her house for tea every Thursday before a weekend contact with her father and it follows that she would have provided S's tea on that Thursday. Finally, she would have given evidence which might have shed light on what S had in mind when she described the sleeping arrangements.
20. Thirdly, the mother wanted the social worker, Mr Green, called to give evidence. He was the person who heard what S had to say on 28 September. What S said then was not identical to what she had said to her father a fortnight before. The mother's argument was that the judge needed to hear Mr Green's account first hand rather than receiving a second hand report via another social worker, Ms Straughan, who came to give evidence on behalf of the local authority and who had spoken to Mr Green by telephone.
21. The judge was rightly anxious about S's situation. He considered that there had to be findings made about what the position in relation to Mr C really was. He decided that the best course was to use the two days of court time to make those findings but he indicated from the very start that the case had to conclude by 4.30 p.m. on the second day. He therefore regulated the proceedings in such a way as to ensure that that objective was achieved, giving judgment extempore at the conclusion of the second day. He heard evidence but only from the father, the mother, the guardian, Ms Straughan the social worker, and Mr Preece the investigator. At the risk of losing some of the nuances of his findings, I would summarise that he accepted the father as a truthful witness who had relayed what S said to him essentially accurately, he accepted Mr Preece's evidence notwithstanding some shortcomings in it, and he considered the mother's evidence "generally untruthful and unreliable". This led him to make a finding that Mr C was living at the mother's home. He then followed the guardian's recommendation that if such a finding were made, S should move immediately to live with her father and he made an immediate residence order in the father's favour. He made it clear that he saw this as interim relief only and he scheduled a review and directions hearing for the first open day after 16 October 2012.
22. I need now to return to look at the progress of the hearing in a little more detail.
23. The judge was asked to allow the mother to call MGM and Mr C and to obtain documentary evidence. He declined to do so saying (§16) that it was his "unfortunate duty to decide as a matter of case management that [he] could not adjourn this hearing or prolong it to hear Mr C's evidence". He also observed that he would have been:

"unwilling to admit Mr C to these proceedings. It is not necessary for him to take part in any feature of these proceedings and I have to do the best I can, considering other evidence and applying common sense."

24. As to the evidence of the bank card payment in Leicester, he observed that:

"use of a credit card bearing Mr C's name need not necessarily suggest his own presence at the place of use".

25. He declined to allow the mother to call MGM saying:

"I accept that it was necessary for me, in similar case management rigour, to refuse permission for the evidence of [MGM], but I have to do that in earnest of completing this case today. It was a difficult case management decision which I had to make in the interests of, as I judged it to be, the necessary progress of the case." (§18)

26. The judge also determined that it was not possible for Mr Green to be called as he accepted the mother would have wanted. He said:

"in a perfect hearing, [counsel for the mother] would very properly have wanted, or indeed required – and the court would properly have agreed – to arrange for evidence of James Green. That has not been possible, partly because we have not had enough time anyway and, secondly, because he was on sick leave yesterday and has……a pre-booked schedule of ….children's engagements this morning such that it just has not been possible. However, because it has not been possible, I will not take any more into account in this judgment about James Green and what he may have said in evidence, or indeed may have accepted in cross-examination, than I have already said." (§27)

27. We are told that the judge imposed a 20 minute limit on the cross-examination of the guardian by the mother's counsel (although in fact a little longer was permitted) and that counsel were limited to 10 minutes each in submissions.
28. A number of grounds of appeal are advanced. The import of them is that the judge's rigorous management of the hearing resulted in unfairness to the mother, that the judge deprived himself of relevant and potentially significant evidence, and that his finding was unsafe. The transfer of residence that was based upon that finding was therefore wrong, it is argued. It is also submitted that even if the finding was safe, the transfer of residence was wrong as an exercise of discretion because the question of what to do next required more sophisticated consideration. Attention is invited to the months running up to the hearing when despite knowing that Mr C posed a risk, the local authority and the guardian were prepared to countenance him living in the mother's household in constant contact with S and his own two children. There was no suggestion that summary removal of S from the mother's care was necessary then, although the guardian recommended a planned transfer of S to the father's care. Attention is also invited to the potential harm to S if removed precipitately from the care of her mother who had always been her primary carer and from day to day contact with her siblings and it is argued that evidence was needed about this. It is also submitted that the decision as to whether to move S needed to take account of the mother's commitment in evidence to preventing Mr C from coming to the house, including by seeking an injunction.
29. As I see it, the central issue, and the appropriate starting point, is whether the finding made about Mr C's presence in the mother's household can survive the attacks made upon it by the mother's counsel. Given that the judge's order is to be overturned as a consequence of this appeal, the case will have to be remitted for a fresh hearing and the decision as to S's residence will have to be taken in the light of all the material factors as they are at the time of that hearing. There is therefore nothing to be gained by further consideration now of the judge's decision as to interim residence and it would be undesirable for us to complicate the position for the judge who decides residence issues by expressing views about the merits of it. Fortunately, it is unnecessary for us to do so because the mother very sensibly conceded, at the outset of the hearing before us, that in view of the time that S has spent living at the father's since Judge Hooper's decision, it would be wrong to seek an order returning S to her care until a fresh hearing has taken place; in making this concession, she must have had S's best interests at heart.
30. Both the father and the guardian support the judge's factual finding.
31. The father submits that the judge had to press ahead to make a finding as he did and could not afford to permit an adjournment so that the mother could call the evidence she wished. Finding the days for another court hearing would have taken months, it is said, and S was sufficiently at risk to need an urgent determination.
32. The father supports the approach taken by the judge to the evidence presented to him. He argues that the judge was entitled to discount the probative value of the bank statement. The judge was also entitled, he says, to refuse to hear evidence from Mr C because he was investigating the mother's honesty and her ability to safeguard S and it was her evidence that was key to informing the court about whether or not S had seen Mr C. It is submitted that the judge was not being invited to make findings against Mr C but against the mother and that he kept the focus of the proceedings where it should have been. As for MGM, it is pointed out that there was no statement from her although she was present at court. It is submitted that other evidence enabled the judge to make secure findings, without having to hear from MGM and that the mother could deal with alternative explanations for what S said to her father.
33. The father also relies on the fact that the orders made by the judge were interim only.
34. The skeleton argument filed on behalf of the guardian understandably concentrates mainly on the welfare decision. As to the factual issue, and in particular the case management decisions made by the judge, her counsel identifies that the judge appears to have refused to hear from MGM to prevent delay and also because he felt that the mother's evidence was the key to the factual issue and he found her untruthful and unreliable. It is submitted that whilst it was unfortunate that Mr Green was unavailable to give evidence, it was not crucial that he did so as the ground was covered in other ways during the hearing. It is also submitted that as the judge's order was an interim one and a review was to be held, it was arguably open to the mother to serve more evidence on the factual issue and to ask the court to reopen it.

Discussion

35. It is always difficult for a judge faced, as this judge was, with an urgent decision to take and insufficient time in which to take it. It is a dilemma which family judges regularly have to confront. How they resolve it will depend upon the precise circumstances of the individual case. As this court has often observed, a judge making case management decisions has a very wide discretion and anyone seeking to appeal against such a decision has an uphill task.
36. However, in this case, I am very clearly of the view that the judge's case management decisions not only deprived the mother of the opportunity to answer the case against her but also deprived the court of evidence that was necessary to enable it to make reliable findings of fact. It is therefore necessary, in my judgment, for the judge's finding of fact and his consequential orders to be overturned and for the matter to be reheard in front of a different judge. I do not wish to say anything that would suggest that I have formed any view as to what factual findings may be made in the course of the fresh hearing so I will avoid going into any more detail than is necessary to explain why I have reached the views I have.
37. It appears that the judge considered that he could determine the truth or otherwise of the allegations about Mr C's presence in the mother's house through the prism of the evidence of Mr Preece and the mother. He said (§16):

"it seems to me that I have got to grasp the nettle of whether I accept Mr Preece's evidence or whether I accept mother's evidence."

38. Judges do sometimes have to decide, almost in a vacuum, whether or not to believe a witness. However, this was not such a case.
39. This is perhaps most clearly demonstrated by the position in relation to Mr C's credit card. The combination of the bank statement and the preliminary enquiries that had been made of McDonalds suggested that there was a realistic possibility that documentary evidence would be forthcoming that Mr C's credit card was used in Leicester McDonalds in circumstances which, if Mr C was the user of the card, would make it impossible for him to have been seen by Mr Preece on 18 September. The judge was of course correct in saying that the fact that Mr C's credit card was in Leicester did not necessarily mean that Mr C was. However, if more detailed bank records did in fact support the presence of the credit card there at the material time, it would have been an important piece of evidence for the judge to include in his evaluation of the totality of the evidence and not one, I think, that could be dismissed as robustly as the judge dismissed it. There would have needed to be consideration of how the credit card got there, if not with Mr C. Mr C's own evidence would have been particularly important in that regard. And assuming that Mr C did not concede that he had not used the card in Leicester himself, counsel would no doubt also have wished to challenge Mr Preece with the evidence of its use and the impossibility of Mr C being in two places at once, endeavouring thereby to shake Mr Preece's evidence that he saw him at the mother's house.
40. I am troubled by the judge's comment that he would have been "unwilling to admit Mr C to these proceedings". It is understandable that the judge wished to keep the focus on S and those immediately responsible for her care. He may well also have had in mind that, as we were told by counsel for the father, Mr C had earlier been involved in the proceedings but ceased to be so when he failed to provide his solicitor with any instructions. However, when it comes to making findings of fact, the court's focus should be firmly on an analysis of what evidence is necessary to enable proper findings to be made. Of course, the urgency of the court's decision can sometimes make it imperative that there be limitations on the evidence that is called, however relevant it would be. Similarly, the judge may find himself unable to permit a witness's evidence to be adduced because it has been produced too late in the day or without regard to earlier case management directions or he may determine that it is disproportionate to the issues to permit reliance on it. However, matters such as those are different from a decision to decline to hear evidence from a material witness because, for some reason not related to their evidence, the witness is not thought to be an appropriate person to participate in the proceedings; such a decision is much more difficult to justify. Here Mr C was a material witness, indeed a central witness, not only on the issue of the bank card but also generally in addressing the allegations that he was present at the mother's home when he should not have been. Subject to the need to decline to hear Mr C for reasons of urgency (to which I return below), I do not see how the judge's decision to refuse to consider evidence from him and about the use of his credit card can be supported.
41. It is, in my view, no answer to say that the judge's order was to be treated as interim only. The residence order he made was intended to last for a finite period only but the findings of fact that he made were not interim findings of fact. Indeed I question whether there is any such thing as an interim finding of fact. Although concepts such as issue estoppel are perhaps more loosely applied in family cases, the existence of findings of fact made by a judge who has heard evidence presents the litigant who seeks to reopen those findings with a considerable challenge. The existing findings represent the status quo, legally and in the mind of the judge. There is good reason why this should be so, as policy (and common sense) dictate that there must be an end to litigation. Inevitably, therefore, it will take powerful evidence to persuade the judge to permit a party to reopen the findings.
42. The judge was rightly anxious to protect S and conscious of the need to do so without delay. The father submits that the risk to S had increased if the mother was lying about Mr C's presence in the household and that once evidence came to light to suggest this, the judge had to act. However, it seems to me that the judge needed to consider whether, rather than holding an immediate truncated hearing, there was any other way in which he could safeguard S's welfare. I got the impression that in fact no one had suggested any alternative to him but a possibility which occurs to me is that he could have ordered that S stayed with her father, possibly under an extended contact order or alternatively a short interim residence order, for whatever limited time was sufficient to enable a fuller hearing to be arranged (see for example Re K (Procedure: Family Proceedings Rules) [2004] EWCA Civ 1827 [2005] 1 FLR 764 as to the circumstances in which interim transfers of residence may be made), either adjourning the case entirely to another day or, if feasible, making a start on the evidence with a view to resuming it at a later date.
43. Given the option of an extended stay with the father by way of protection for S, I do not therefore see the judge's choice as a stark one between running such risk as there was to her safety in the care of the mother or determining the factual issues on the material that could be produced and fitted into the two days of court time that were available. It may well be that the anxiety provoked by the impression that those were the only options led the judge to give too much weight to the urgency of the situation and the need to get on with the hearing. The decisions that he took in relation to the material evidence that the mother wished to adduce were no doubt the product of that anxiety but I am persuaded that they were not decisions that were properly open to him in this particular case, even making allowance for the breadth of his case management discretion.
44. So far, I have addressed particularly the mother's wish to call Mr C to give evidence and to produce the bank documentation. It could be said that there was even less justification for the judge's decision to refuse to hear from MGM who was actually at court. It may not be surprising that there was no statement from her, given the very short notice that the mother had had of the allegations that had been made, but it seems that the gist of what she would say was known. She may have turned out to be a credible witness who was able to give information which called into question what S and Mr Preece had said and which might have led the judge to review his assessment of the mother.
45. It is clear that the judge recognised the relevance of her evidence because he commented on the difficulty of the case management decision not to permit it to be adduced, which he justified as necessary in order to complete the case that day. Actually, I think there were probably a number of options as to how her evidence could have been accommodated in the proceedings. The judge chose to use the time available to complete the whole hearing process including giving judgment, but it is not at all uncommon, where there is pressure on time, for the court day to be used for the oral evidence, with submissions and judgment then given in writing or on another day. If things had been arranged in that way, it might have been possible for MGM's evidence to be heard during the allotted two days. If not, perhaps some of the evidence could have been concluded on another day.
46. As for Mr Green, the judge himself seems to have been of the view that it would have been proper to agree to him being called to give evidence were it not for the urgency and the difficulties in securing his attendance.
47. It is not necessary, I think, to labour the issues in this case further. I am clearly of the view, as I have indicated, that the judge erred in the way that he regulated the evidence that the mother could adduce and that his finding of fact cannot therefore be supported. A fresh hearing before another judge is required and it is to be hoped that in the time that has elapsed since we announced our decision, progress has already been made towards arranging this. I would therefore allow the mother's appeal against the order of the learned judge.
48. I should say in conclusion that this appeal turns very much upon its own facts. Rule 22 of the Family Procedure Rules 2010 entitles the court to control the evidence in a case by giving directions. This is a wide power and can be used to exclude evidence which would otherwise be admissible. Robust case management therefore very much has its place in family proceedings but it also has its limits.

Lord Justice Aikens:

49. I agree.

Lord Justice Moore-Bick:

50. I also agree.