England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BARNET COUNTY COURT
(HER HONOUR JUDGE MAYER)

		Royal Courts of Justice Strand, London, WC2A 2LL
		14th November 2012

Lady Justice Black:

1. This is an appeal by Mr C in relation to his contact with his children, FX and D. FX is ten years old, having been born on [a date in] 2002. D was born on [a date in] 2008 and is four years old. They have a brother, FI, who is nine years old but this appeal does not concern him.
2. All the children are in the care of the local authority as a result of care orders made by HHJ Mayer on 20 July 2012. The father would have liked to have appealed against the care orders in relation to FX and D but he has been refused permission to do that. The children will therefore remain in the long term care of the local authority, placed with foster parents.
3. On 20 July 2012 HHJ Mayer also dealt with contact granting the local authority permission under Section 34(4) of the Children Act 1989 to suspend contact between the father and the children. McFarlane LJ granted the father permission to appeal against that order. The appeal focusses on the procedure leading up to the grant of the Section 34(4) order as well as on whether the judge was wrong to make the order that she did.
4. At times during these proceedings the father has chosen to represent himself although he would have been entitled (certainly at first instance) to publicly funded legal representation. He was representing himself at the hearing on 20 July 2012. He complains that the local authority had not given him notice that they intended to make an application for an order under Section 34(4) and that it was wrong of the judge to make an order in those circumstances. It is apparent that, with limited exception, he does not accept the criticisms made about his conduct at contact. It is his case that the way in which the contact application was dealt with, that is on submissions only, afforded him no opportunity to test what the local authority said and to put his side of the story.
5. I need to deal with some of the background before I get to the arguments that the father advances in relation to contact order.

The December 2011 hearing

6. HHJ Mayer made findings of fact about the children's home life at a hearing in December 2011. The children's mother has a history of mental ill health dating back to 2006. At times she has been admitted to hospital pursuant to the Mental Health Act. In March 2010 she became significantly unwell whilst the father was on a trip abroad. An emergency protection order was obtained and interim care orders. HHJ Mayer found on December 2011 that the father must have known when he went away that the mother's mental state was such that it was not only thoughtless or irresponsible but positively dangerous to leave her in sole charge of the children.
7. Whilst in foster care, FX made allegations about his parents having used physical punishment on him. Medical evidence supported that account. HHJ Mayer found that the children had been hit with implements at times especially with a coat hanger but possibly also with a belt. She found that the mother may well have hit the children, probably all three of them, in frustration. She found that the father hit FX, upon whom he was particularly harsh, as a punishment but she did not find that he hit the other children. She also made findings about the state of the house when the children were taken into care. The house was dark because light bulbs had been taken out of the fitting, the parents said for a reason to do with FI. The children's bedrooms were sparsely furnished with no bedding on the beds and the upstairs was particularly untidy. The exception was that the father's bedroom was warm, properly furnished and impeccably tidy.
8. Whilst in the care of her parents, D was said to be an incredibly quiet child who sat in her buggy without moving, without making sounds and completely lacking in affect. FX was described as a child with communication difficulties, without social skills and without friends. Both children rapidly changed dramatically on coming into foster care. HHJ Mayer made allowances for the difficulties caused in the family by FI's behaviour but she found that the mother, who was ill from time to time, had enormous difficulties in providing good enough care for the children. They had not been receiving the care and stimulation they needed at home and that had caused delay to their development and caused them to be as they were when they came into care.

The April/May 2012 hearing

9. Following the finding of fact hearing in December 2011 further evidence was assembled for a welfare hearing in April 2012. At that hearing, at which the father was represented, the principal decision for HHJ Mayer was whether the parents were capable of having the children home. However, she set out in her judgment that amongst the other issues that needed to be determined was the question of ongoing contact if care orders were made. She determined that the children could not return home. Their mother did not understand what had gone wrong and what needed to change. As for the father, the judge found that his last minute acceptance immediately prior to that hearing of the findings that she had made in her December 2011 judgment was a tactical attempt to get the children back rather than a true acceptance of the deficient and abusive parenting they had suffered at home.
10. Whether the children should be placed separately or together in foster care depended on whether they could stay in their current foster placement. The necessary inquiries about that had not been made at that stage so HHJ Mayer felt unable to make final care orders and made interim care orders instead. The judge also made an order in relation to contact. The care plan was for a reduction in contact and the father took us to a passage of the social worker's statement that sets out the rationale for that which is in familiar terms concerning the need for the children to settle down in foster care and so on. In accordance with what all the professionals were advising, the judge reduced the children's contact with their parents to eight contact sessions a year. As the judgment makes clear, she heard evidence on the question of contact during that hearing. That evidence was that the father could have very successful contact with the children, being humorous and affectionate, but at times his behaviour was less satisfactory. He said thoughtless and damaging things and his attitude was harmful to the children, particularly FX. The judge referred in her judgment to contact notes that exemplified the problem. Those contact notes have been supplied to us and I have also read a number of them.
11. We can see that the father was cross examined during that hearing about his behaviour in contact. The judge accepted, having heard all the evidence, that at many contacts he behaved warmly and responsibly towards the children but she said that "at times he positively undermines the carer; upsets [FX], and causes him to feel threatened by the situation he is in". HHJ Mayer said that the father was unable and unwilling to accept the criticism of contact and found spurious excuses to explain some of his behaviour. He was not prepared, she said, to acknowledge that his contact was so damaging to the children -- particularly FX -- as to positively undermine the placement. She found that he showed minimal understanding of the fragile trust that FX was trying to build in him. HHJ Mayer's final comments about contact in that May hearing are to be found at her paragraph 67. She says:

"if the parents accept the outcome of these proceedings and if the father changes his attitude and stops behaving in the way I have described, contact, which is to be reviewed constantly, may well change. I should say that I have no criticism of the mother's behaviour at contact. I know [FX] wanted more contact, but it is a balance between the wishes of the child, the needs of the children and the behaviour of the parents. I would like the parents to consider that even between now and the end of the case and I will hear, if necessary, bullet points about the progress of contact and potential change in the father's attitude."

12. This passage was I think a clear indicator that contact would continue to be under review until the end of the case and that it was important for the father to address the problems that had been identified with his attitude at times.

The July 2012 hearing

13. At the July hearing with which we are concerned, HHJ Mayer made final care orders on the basis of a care plan for the children to stay with their current foster parents. She then went on to consider the question of contact.
14. The mother had accepted the local authority's plan for contact six times a year with regular reviews. She had signed a contact agreement on 12 June and she was prepared to abide by its terms. The judge was satisfied in those circumstances that her contact should continue.
15. The father's position was different. The judge summed up the position as she saw it in paragraph 10 of her judgment which recognises both the good things about the father's relationship with the children and the problems he creates. It reads:

"... [The father's] behaviour in the course of contact is at times obsequious, at times wholly inappropriate and at times positively and openly undermining the children's placement with their foster carers. At times he can be loving and affectionate, he can be funny and entertaining, and in my judgment, if these children are not to see him it will be a great loss to them. However, comments such as that they will come home, that the parents will do everything to bring them back, deriding social workers, deriding foster carers and whispering in D's ear that her mother cries at home all the time, are wholly unacceptable. So is the behaviour of the father in respect of trying to obsequiously and surreptitiously in my judgment record contact on equipment which he purports to bring in for the children to play games on."

She continued in the next paragraph:

"I am less concerned about him recording the contact than about the comments he makes, but the combination of the two in my judgment is an indication to me that the father instead of having the welfare of his children at the forefront of his mind, has in the forefront of his mind his own interests and his own battles with the Local Authority. This, in my judgment, is not consistent with the children's welfare."

16. The judge recorded in her judgment that she had attempted to broker an agreement between the father and the local authority as to how contact should be conducted (to which I will return) but the father had not been interested in the substance, she thought, only in his battle with the local authority. She said at paragraph 14 of her judgment:

"Having seen the father's behaviour today and having read the contact notes and having what I consider to be a very good working knowledge of this case, it is with regret but without hesitation that I accede to the Local Authority's application for an order giving them permission to suspend contact if necessary. I am satisfied that they will not do so lightly but I am satisfied that the application is made for the correct motives."

17. She recorded that the father took issue with many matters referred to by the contact supervisor and the foster father and accused them of lying. She said that she did not make individual findings about these issues since she had not been asked to do so and in any event she considered it unnecessary to do so. She said that "the accusation of everybody lying has been a theme running through this case and I have in the past made my views about it absolutely clear".

The father's grounds of appeal: procedural grounds

18. I turn to the father's grounds of appeal, firstly the procedural ground of appeal. In his written grounds of appeal and argument the father complains that contact was never the focus of the July 2012 hearing, that the application for an order under Section 34(4) was not issued in advance as he says it should have been, and was not supported with evidence and witnesses, but was made in the course of counsel's submissions. He argues that the procedure was not fair and that the order should be set aside on that ground.
19. Today the father has told us very clearly that his complaint is that he was not given time enough to prepare to deal with the local authority's application because he only heard of it in their position statement the day before the hearing. He says he did not realise the gravity of the issue and he did not ask HHJ Mayer for an adjournment so as to enable him to put his case properly to her. He complains that she did not have time at the review hearing to deal with the issue of contact properly, including hearing evidence. In his written submissions to the court he cites the case of Re C (Litigant in Person: s 91(14) Order) [2009] EWCA Civ 674 in support of his argument on this ground. In that case the Court of Appeal gave guidance on the approach to be taken when considering making an order under Section 91(14) of the Children Act, indicating that it is of the utmost importance that the party affected by the order, particularly if they are representing themselves, understands that an application for such an order is being made or consideration is being given to making such an order, understands the meaning and effect of the order and has a proper opportunity to make submissions to the court. The court in that case said that a request for a short adjournment to consider the position should normally be granted. Re C of course concerned a different type of order from that in this case but the father seeks to draw an analogy with it.

The father's grounds of appeal concerning the merits

20. The father argues that his relationship with his children is of fundamental importance to them and that the order that the judge granted failed to preserve that relationship with them. He argues that her order amounted to a violation of his rights under Article 8 of the European Convention on Human Rights, being neither necessary nor proportionate. He also complains in this connection of a breach of Article 6 although it may be that this is more properly raised in connection with what I have termed the procedural grounds of appeal.
21. He submits that an order authorising the local authority to suspend contact should only be made in exceptional circumstances and that such circumstances were not to be found here. He also submits that an order under Section 34(4) should be made for a finite specified period of time. He says that there were three hundred or more good quality contact sessions and only five occasions on which there were issues about contact. Even on those occasions the evidence of the problems was untested. The proper approach was therefore, he says, to proceed upon the basis that the family enjoyed their time together. He invites our attention to particular contact sessions going back through the history of this matter.
22. The father would have liked to have pursued a complaint about HHJ Mayer's contact decision in May 2012 when she reduced the contact to eight times a year but as we explained to him and as I have already explained in this judgment he has not been given permission to appeal against that order. He has therefore helpfully confined his submissions, as he had to do, to the 20 July order under Section 34(4). I do nonetheless note the points that he made in relation to the earlier order insofar as they may have relevance to the current order, including that the children do have good quality contact with him at times and that FX was reported at one point as being confused by the reduction in contact. It was clear in the argument before us that a particular focus, possibly the particular focus of the father's arguments about contact, is upon the local authority's insistence that he is not to take a laptop into contact. He takes issue with that and he sees the requirement that he sign a contact agreement as being provoked by it. I think his point of view is that children are entitled to computers and enjoy them and he is entitled to bring the computer to contact. The reason, of course, that the local authority are against that is that they fear that he is recording the contact sessions on the computer. He would argue that insofar as the judge took the laptop issue into account she was taking into account an irrelevant factor.

The local authority's arguments

23. The local authority seek to uphold HHJ Mayer's decision on the grounds that she gave. They have also filed a respondent's notice in which they seek to bolster those reasons by reference to the negative impact that the father's occasionally inappropriate conduct at contact was having on FX, arguing that it is clear when the judge's three judgments are read together that she had this in mind when she made the order on 20 July. They emphasise the breadth of a judge's discretion when he or she is dealing with an issue relating to contact such as this and argue that it cannot be said that HHJ Mayer was plainly wrong either procedurally or on the merits.

Discussion

24. We have now had the benefit of seeing a transcript of the proceedings in front of HHJ Mayer on 20 July as well as seeing her judgment. The transcript of the proceedings would not have been available to McFarlane LJ when he gave permission but it contains important information. We have also had the advantage of information from the local authority as to how the contact issue came to be before the court in July. From all the material now available to us a number of matters are clear. It is clear that the father knew in advance that the local authority would be applying for an order under Section 34(4) and knew also the basis upon which they would be applying. The matters that they raised were matters concerning things which were within the father's own knowledge. He would therefore have been capable of dealing with them himself. Indeed there is a passage in his own position statement prepared for the 20 July hearing in which he does deal with them, albeit that that passage concentrates upon alleging that the local authority "bankroll their own witnesses", by which I think the father meant the contact supervisors, and attacking the new contact agreement as incompatible with what he describes as the HRA 1998 Protocol 1, especially Clause 3 which is the clause that prohibits the use of laptops.
25. It was open to the father to address the issues that the local authority had raised rather more widely than that in front of the judge, indicating for example where they were based on factual inaccuracies or proceeded on a wrong assessment of the children's emotions or of the situation generally. Alternatively he could have asked for an adjournment so that he could prepare his case in relation to those matters. There can be no doubt, it seems to me, but that he would have understood the importance of the order that was being sought by the local authority, contrary to what he submitted to us today. He did not seek an adjournment and neither did he take the opportunity that the judge afforded him to work through the issues raised by the local authority.
26. The local authority have invited our attention to the transcript of the proceedings in front of HHJ Mayer. It is not surprising, in the light of the father's position statement and of the way in which he has concentrated upon a particular issue today, that in that transcript one can see a particular concentration on the contact agreement and on the use of laptops in contact. The judge rightly declined to look at the matter in terms of legal rights as the father wanted her to do. She wanted to focus on the substance of the problems to do with contact and to attempt to achieve a resolution. She explained that robustly to the father and then gave him time to address her. She put to him that he was not behaving in contact and he was trying to undermine the foster placement and then she told him that he could have his say. He explained reasons why he wanted to take the laptop and the telephone into contact including that the laptop had a lot of games and videos and that "[FX's] wishes are in those telephones". He said that if he was recording contact what was the big deal? The judge explained to him that if it were not for him recording matters, the local authority may well let him take in equipment with applications that would interest the children. She made clear to the father that she was trying to help him and that if he did not allow her to do so, she may well agree to give the local authority power to suspend the contact if they thought he was misusing it. She painstakingly took him to the agreement about contact to find out what he objected to in it. She then gave him 25 minutes to look at it. She worked through with him an issue he had about outdoor activities having to be discussed in looked after children reviews and achieved a change to that in discussion with the local authority so that discussions about outdoor activities could take place nearer to the time of the contact.
27. Things however got nowhere. The father reiterated to the judge, during the course of the exchange, the allegation that the local authority paid their supervisors who would not necessarily be telling the truth and added that the foster father also lied. He declined to sign the agreement.
28. The patience and persistence with which the judge gave the father the opportunity to deal with the local authority's case are obvious to the reader of the transcript, although I do not think the father recognises them. I am afraid that the impression that comes from the exchange between the judge and the father is that which the judge recorded in her judgment. It is of the father seeking to focus on legal rights and his particular grievances, particularly about the computer, and the judge trying to focus on the welfare of the children.
29. Having looked very carefully at how matters unfolded in front of the judge I can find nothing wrong with either the procedure by which matters were brought in front of the court on that occasion or the procedure that was adopted by the court in the course of the hearing on 20 July.  I would therefore dismiss the father's procedural ground of appeal.
30. As to the substance of the case, it is clear that the decision to make an order under Section 34(4) did not result only from what occurred between May and July 2012. The problems were already there in May as can be seen from the May judgment following the contested hearing with evidence, including on the subject of contact. The problems had not resolved in the interim period and the father would not sign the contact agreement which was designed to alleviate them, not only by preventing the issue arising over the laptop but, for example, also by restraining the father from making negative comments about social workers and the foster carers which had the capacity to undermine them, and perhaps more importantly to unsettle the children in foster care, and with which FX in particular was finding it difficult to cope at times.
31. The local authority stressed quite rightly that the order under Section 34(4) is not an order that there should be no contact, simply an order empowering them to suspend contact when necessary. Accordingly they in fact arranged contact for both parents after the hearing before HHJ Mayer although they allude to there having been further issues and the Section 34(4) power having been used to suspend a session.
32. I have no doubt that HHJ Mayer's three judgments must all be read together. One of the benefits of judicial continuity is that a judge builds up a deep knowledge of a family over time upon which he or she is able to call when making decisions. It is helpful to others who refer to a judgment if the judge identifies and incorporates earlier judgments specifically because then the reader knows what judgments to seek out. However, a failure to do that does not mean that the earlier judgments are not incorporated. Common sense dictates that they must be.
33. HHJ Mayer's fact finding judgment established a good deal about the way in which the parents related to the children whilst they were living at home. Her May 2012 judgment established what the position was with regard to contact up to that date. There was no doubt about the father's refusal to sign the contact agreement which was reiterated in the course of the hearing in front of HHJ Mayer and which was an important extra piece of evidence available by the time of the July hearing. When given the opportunity to address the judge, the father could have used it to identify the points where the contact notes were wrong or misrepresented the position but he did not do so and the local authority's case which emerged from them was therefore not undermined.
34. Taking all of this material together I am entirely satisfied that the judge was entitled to make the order that she did. The limits of the order must be recognised. The local authority are in the driving seat with regard to contact, subject to the provisions of Section 34 of the Children Act, because they have a care order in relation to the children and they have to take care of their welfare. Section 34(1) provides that, subject to the provisions of section 34, they are to allow a child reasonable contact with, amongst others, his parents. An order under Section 34(4) empowers a local authority to stop contact but it is not an order that there should be no contact, as this local authority has recognised as I have said. Furthermore, section 34(9) provides that the court may vary or discharge any order made under Section 34(4) on the application of various people including the local authority, the child and anyone named in the order. There is thus a route by which the case can be returned to court should the circumstances require it.
35. It was not inappropriate for the judge to make an order under section 34(4) in this particular case on these particular facts, and I would therefore dismiss the appeal in relation to the merits as well as the appeal in relation to the procedural grounds.
36. I would in concluding urge the father to try to put to one side the battles that he has against the local authority over property and other rights (including about the laptop but about other issues as well) for the sake of these children. They want to see him, they enjoy seeing him and the local authority is trying to organise contact for them but it cannot happen if it is harmful to them and the local authority have established that it does upset the children at times for the reasons they have identified. It lies with the father to address that particular problem.

Sir John Thomas:

37. I agree that for the reasons given by my Lady this appeal should be dismissed

Lord Justice Moses:

38. I also agree.

Order: Appeal dismissed