England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM PORTSMOUTH COUNTY COURT
(HER HONOUR JUDGE SULLIVAN QC)

		Royal Courts of Justice Strand, London, WC2A 2LL
		28th November 2012

Lady Justice Black:

1. Mr W has 15-year-old twins, A, a girl, and M, a boy. They live with their mother, who is Mrs B. For the most part in this short judgment, I will call the parents simply the mother and the father.
2. The father wishes to have contact with the twins. On 2 May 2012 HHJ Sullivan refused to make a contact order; the father wants to appeal against that refusal. He came before me on an oral permission hearing at which he was seeking permission to appeal not only HHJ Sullivan's order in relation to the twins but also orders made in relation to his three-year-old son, F. F is not Mrs B's child. An adoption order has been made in relation to F, and the father wished to appeal against that. I refused permission in relation to that proposed appeal but I adjourned the application for permission in relation to the twins to a hearing on notice to Mrs B, with the appeal to follow if permission were to be granted. That is the hearing for which we have assembled today.
3. The father tells us that the hearing in relation to contact took place actually on 20 February 2012 and that HHJ Sullivan's judgment was then reserved and handed down on 2 May 2012 when the order in question today was made. He also tells us that both he and the mother attended that hearing in person. He says that he was "represented by a lay advocate", or, as I would put it, he had the assistance of a Mckenzie Friend; that Mckenzie Friend was Mr O'Connell, and Mr O'Connell has been assisting Mr W today as well in our court. The CAFCASS officer who had investigated the case gave evidence in front of HHJ Sullivan, as did both the parents.
4. HHJ Sullivan's judgment records that the parents finally separated in 2003. A has not seen her father since then. M did do so, and the judge records that he appeared for a time to be in the shared care of both parents, but then contact stopped. The father issued proceedings in 2007 seeking, amongst other things, contact with the twins, but then withdrew that application. He has since had some indirect contact with M, but not with A.
5. HHJ Sullivan was aware of the fact that there had been other proceedings in both the civil and criminal courts involving the father. In October 2008, in care proceedings relating to the father's stepchildren, a judge determined that the father had raped his stepdaughter when she was 14. He was then tried in December 2008 in the Crown Court on two counts of rape and he was acquitted. The father has never accepted the findings made against him in the care proceedings; he has done everything that he can to have those findings overturned, including appealing unsuccessfully to this court in 2009 against the determination. That decision is reported as SW and KSW v Portsmouth City Council and Ors [2009] EWCA Civ 644. He subsequently sought, again unsuccessfully, to have the findings of fact set aside on the basis that there was material evidence which had not been considered by the fact-finding court.
6. My understanding is that the process ended, at least in this country, in January 2011, when Wilson LJ refused the father permission to appeal against orders which had been made in November 2010 in the care proceedings; that is to say, care orders in relation to two of the father's stepchildren and a care order and a placement order in relation to the father's son, F, who had been joined into the proceedings following his birth in the spring of 2009.
7. By the time of the hearing in relation to contact with the twins in 2012, F had been placed for adoption and an application for the adoption order in relation to F was outstanding. The father applied for permission to oppose the making of an adoption order on the basis that there had been a change of circumstances. That application was also dealt with by HHJ Sullivan, who refused it on 23 April 2012, between the hearing of the contact application in February 2012 in relation to the twins and the handing down of judgment on 2 May 2012. The father felt that it was inappropriate for the judge to have dealt with both matters in this way, but as I explained to him on the last occasion when he sought to advance this as a ground of appeal against the judge's order in relation to F, it was not a valid ground of complaint as, far from it being inappropriate, judicial continuity is almost always a benefit in children cases. It allows a judge to develop a deeper understanding of the issues affecting the family generally than might otherwise be possible.
8. I turn to HHJ Sullivan's judgment of May 2012. The judge considered that the most important factors in the case were the age of the children, then fourteen, and their expressed wishes, which she took to be that they did not wish to see their father. She considered that it would be inappropriate and not in their best interests to force them to meet their father against their wishes. She observed also that, even if the children did want to see their father, she would not consider it until the papers from the earlier proceedings had been provided to the court and an expert risk assessment had been made in relation to the father. She noted that the father submitted that she should not uphold the finding in the other proceedings that he was a risk to post-pubescent girls, but she said that without a successful appeal that finding stood and was relevant to her decision. She declined to order contact between the father and the twins. She also refused the father's proposal that a guardian should be appointed for the children, that the children should have a psychological assessment or that the children should at least meet him so that the CAFCASS officer could assess their reaction in contact. She observed that the children had been subjected to years of proceedings and that they should now be left alone to pursue their lives without repeated investigations.
9. An important source of information for the judge as to the children's views on the matter was the CAFCASS officer, Ms Link. She reported that she had seen the children and that they were both adamant that they did not want to see their father or have anything to do with him. A had written a letter to her father saying that clearly. M's position was reported as follows in the judgement:

"[M] was more ambivalent about the past in that he said his father had 'dumped' him in 2007, but before that he had had good and bad experiences with his father. He clearly said he wanted no further direct or indirect contact with his father and that he had erased his father from Facebook some time ago."

10. The father submitted to the judge that there were a number of mistakes in the CAFCASS report and that Ms Link was biased against him. The judge did not accept this. She found Ms Link an impressive witness, who was not biased against the father. The father also submitted that the children had been influenced in what they said by the mother and that they had been driven to the CAFCASS officer by their mother. Ms Link's evidence was that she was satisfied that the children were expressing views which were their own and that they had not been influenced by their mother, and the judge accepted that that was so. She also accepted the mother's evidence that she did not in fact drive the children to meet Ms Link and that they were taken by her husband.
11. It is of note that the mother, whose evidence the judge accepted as truthful and reliable, told the judge that she was happy for the children to have indirect contact with their father if they wished it and said that they had the means to do so if they wanted to do so.
12. So far it will no doubt appear that what happened in front of HHJ Sullivan was no more than a standard evaluation of the various factors that needed to be considered in determining what order to make about contact, and a routine exercise of judicial discretion. Why, therefore, did I adjourn this matter to this hearing? The answer is that the father was able to demonstrate to me on the last occasion that the accuracy of certain parts of the CAFCASS report may be in question and, as the CAFCASS officer's evidence about the wishes and feelings of the children was of such central importance, I thought that the matter should be explored further. I also caused notice to be given to the mother in case there was any need for her to assist us at this resumed hearing. She has attended today and represents herself, as she did in front of the judge, but it has not proved necessary for us to call upon her.
13. In his addendum skeleton argument, the father has returned to his challenge to findings made against him in the care proceedings. He argues that as the findings were made in different proceedings they cannot be relied upon in the contact proceedings without him first having the opportunity to "demonstrate to the court that the findings were made unfairly without all the available evidence" and that further material has come to light after the findings which had cast serious doubts upon them and makes them unreliable. The father correctly identifies the leading authority on issue estoppel in Children Act proceedings as the case of Re B (Children Act Proceedings) (Issue Estoppel) [1997] 1 FLR 285. That is a decision of Hale J, as she then was, sitting in the Family Division. In Re B the local authority sought to rely in care proceedings in relation to two boys on a finding of fact made in earlier proceedings concerning two other children. The finding was that the father, who had participated in the earlier proceedings, had sexually abused the two other children. Hale J was asked to determine as a preliminary issue whether the father was bound by that finding. She held that the answer was "not necessarily", because there is no strict rule of this issue estoppel in cases concerning children and the court has a discretion as to how to conduct its inquiry. She said that it was for the court to decide whether or not to allow any issue of fact to be tried afresh. She listed certain factors which, amongst others, were to be considered. I will not recite them here, but they included that a matter should not be tried twice unless there is a good reason for doing so, and that above all the court would consider whether there was any reason to think that a rehearing of the issue would result in any different finding.
14. In this case the father's attempts to overturn the findings made in the care proceedings have led to the findings and the evidence surrounding them being considered repeatedly by the courts at first instance and by this court, including recently. In the circumstances it would be impossible, in my view, to persuade this court that HHJ Sullivan was wrong to proceed upon the basis that the finding in relation to the father's sexual activity with his stepdaughter stood, together with the risk assessment dependent upon it. I would therefore refuse permission to appeal HHJ Sullivan's contact order in relation to the twins on this ground and, whilst I have listened to what has been said with regard to the lack of opportunity given to Mr W to comment upon the judge's suggestion that a risk assessment would be necessary, I am not persuaded that that provides any valid basis for appeal. In fact, the question of a risk assessment was not a fundamental reason why the judge refused contact; she added it as an addendum, having made her decision on other grounds. I return, therefore, to look further at those other grounds and to focus upon the evidence of the CAFCASS officer.
15. The CAFCASS officer's report was dated 14 December 2011. As well as reporting her own interview with the children, Ms Link also reported discussions that she had had with the children's schools. She reported that the father had been in regular communication with the schools, that he received some school reports, and that he attends parents' evenings. She said:

"[A's] college expressed their disappointment that [A] had been unable to attend a recent trip to Barcelona dated late 2011 as it had been their wish that [A] represent the school as ambassador."

And:

"22. Discussions with [M's] college highlight [M] to be making good progress and that the only concerns raised are in relation to [M] presenting as distressed when speaking about his father and as a result of the burden experienced in relation to the additional responsibility on [M] in organising appointments with school in respect of his father."

16. Later the CAFCASS officer said:

"63. [M's] College highlight that on occasions [the father's] contact with school exceed[ed] what is expected of a parent and on occasions [was] 'nasty' in content.

64. Discussions with [M's college] highlights [M] on occasions presents as distressed as a result of [the father's] persistence in relation to contact and the 'overwhelming pressure' experienced by [M] in establishing the appointments which on the last occasion [the father] failed to attend and did not notify the school until the following day."

17. Ms Link mentioned in her report a copy of a letter from M. The letter is, I think, that which appears in the bundle at C17. It is a chatty letter and it begins "Hi, it's me, M. I am ok and school is. I miss you".

Ms Link was asked about this letter in her evidence and she commented on the lack of a date on it saying:

"I can only go on the information that M shared with me on the office interview."

The CAFCASS officer considered that the letter shows that at times there has been some correspondence between M and his father, but she said that he had told her at the office interview that there had been no recent contact and that he did not want contact.

18. After receiving Ms Link's report, the father sent copies of passages in it to the children's schools and asked for comments upon them. It was asserted on his behalf that he was entitled to do this without seeking permission from the court by virtue of Rule 12.75 of the Family Procedure Rules 2010. That rule provides:

"(1) A party… may communicate information relating to the proceedings to any person where necessary to enable that party –

(a) by confidential discussion, to obtain support, advice, or assistance in the conduct of the proceedings;

(b) to engage in mediation or other forms of alternative dispute resolution;

(c) to make and pursue a complaint against a person or body concerning the proceedings; or

(d) to make and pursue a complaint regarding the law, policy or procedure relating to a category of proceedings to which this Part applies."

Rule 12.75 is supplemented by Practice Direction 12G, but that does not contain anything of assistance in this case.

19. If there is a provision that entitled the father to do what he did then it can only be Rule 12.75(1)(c). The judge took the view that that provision did not cover the father's actions. She considered that, even if the communication fell within the terms of that provision, it did not permit disclosure of the actual report or parts of the report, only of a summary of the content of it. It may be that in saying that the judge had in mind a decision of Sumner J in relation to the former rules that preceded the 2010 rules; that is to say Local Authority v D (Chief Constable of Thames Valley Intervening) [2006]  2 FLR 1053, in which I think a distinction was drawn between information and documents. I do not propose to spend time on this issue in this judgment. I think it is very questionable whether the father's action was permitted by Rule 12.75. However, even if it was permitted and the judge was therefore wrong to criticise him in relation to it, it was a peripheral issue in the proceedings before her and not the reason why she made the decision about contact that she did. One can sense that not only from her judgment in which the concentration is firmly upon the question of risk and the wishes of the children, but also in the exchange with Mr O'Connell which followed the handing down of the judgment and in which the issue was shortly discussed.
20. That brings me back again to the central issues in the case. The first of these is the question of whether the CAFCASS officer accurately reported what the schools had told her. First, A's college. It will be recalled that the CAFCASS report said that A's college had been disappointed that A was unable to attend the school trip to Barcelona. Of this the college said to the father, when he communicated with them directly:

"There was a school trip to Barcelona for students who study Spanish. [A] studies French and was not invited to attend this trip."

21. The CAFCASS report also said that the issue over the children's passports had been:

"particularly significant in relation to [A] with regards to failing to take part in the recent trip to France with her studies including French."

22. What the college, however, told the father about that was:

"There was a school trip to the battlefields in France in October last year for initially year 8 and 9 students. This was extended to year 10 students at the last moment and only boys were interested in going on this trip."

23. As I understand it from the college's letter, the person to whom the CAFCASS officer spoke was the Special Educational Needs Coordinator at the school. It may be that that person did not convey information accurately or clearly to Ms Link; it may alternatively be that Ms Link did not note and / or relay the information correctly in her report. However, it happened, what emerges from the CAFCASS report does differ from what is said in the college's letter.
24. Next, M's college. One result of the father's letter to that college appears to be that they made a complaint to CAFCASS because they considered that some of the comments that they had made to the CAFCASS officer had been taken out of context. The college dealt with the points raised with them specifically in their reply to the father. The CAFCASS officer had reported that the father:

"continually communicated with professionals with regards to M's education."

25. The college explained that the basis for this was that the father had "shown a keen interest in M's education" and there was regular communication with them. The statement they made was not, they said, meant to be judgmental. They also said amongst other things that, contrary to what is said in the CAFCASS report, M does not become distressed when talking about his father, although he was crying in the corridor about a problem to do with his passport.
26. The father wrote also to the two local authorities mentioned in the report. Their replies do not, in my view, give rise to any issues that need to be examined further by me in this judgment. The father perceives that the judge based her finding, or was influenced in making her finding, that he was manipulative and controlling upon material which the CAFCASS officer had relayed from the local authorities. That is not in fact the full picture; it is clear from the judgment that the judge made her assessment of the father on the basis of having heard him give evidence herself.
27. The issues, however, about the colleges that the father raises before us were raised before the judge as well. The transcript of evidence shows that the CAFCASS officer was asked about them during the hearing in front of HHJ Sullivan. At page 9 of the transcript Mr O'Connell put to her the letter from A's college. Ms Link said that she had recorded the conversation that she had. At page 11 of the transcript Mr O'Connell put to her the letter from M's college. In due course she explained that she had recorded what the teacher had said to her (page 15); she also said that her understanding was that M's distress was not directly caused by the father but was just the distress of the situation (page 14).
28. Paragraph 5 of the judge's judgment shows that she had in mind the different interpretations of matters that emerged from the communications that the father had had with the two colleges. The judge did not consider that this made any difference to the determination of the issue that the court had to decide. Having now had the opportunity to consider matters more fully than was possible during the first oral permission hearing, I am of the view that that was an approach that she was entitled to take. She had to consider all the material that was available to her in the round. It was for her to assess the witnesses and the evidence that they gave. She had seen the CAFCASS officer cross-examined thoroughly on the points that the father had raised and she was able to consider in the light of that whether the CAFCASS officer's capability or her integrity was undermined. In fact, the judge still considered the CAFCASS officer to be an impressive witness. It has not been demonstrated, either in the written argument or today orally, that the judge was even arguably not entitled to come to that view.
29. Furthermore, the material from the school was in fact a relatively small part of the picture. Of more significance was the CAFCASS officer's own meeting with the children and the views that they conveyed to her then. There was proper consideration during the hearing of whether the children's views had been influenced, and the judge concluded that they had not. The letter from M was considered during the actual hearing, as we can see from the CAFCASS officer's oral evidence. It was only part of all of the evidence that there was for the judge. Its date was unknown and it had in any event to be evaluated together with what the children had said to Ms Link. The judge was entitled not to regard that letter as pivotal; she did not mention it in her judgment, but, as she said to Mr O'Connell at the conclusion of the hearing, she had not dealt with every single piece of evidence. No judgment ever does do that, and this judgment will be no different in that respect in that it too will not deal with every one of the arguments that have been advanced in furtherance of the application for permission to appeal.
30. The issues raised by the father in relation to the treatment of the CAFCASS officer's evidence do not therefore, in my judgment, give rise to any argument that would have a real prospect of success on appeal.
31. From amongst the other matters raised in the father's earlier submissions in support of his application for permission to appeal, I would pick out two further proposed grounds of appeal with which I shall deal shortly, notwithstanding the fact that they have not been revisited in the course of today's oral argument. One of these is the father's assertion that the judge erred in failing to entertain more argument about her decision on the occasion of the handing down of the judgment. I think it has been explained to the father by this court on an earlier occasion in the other proceedings that the process of circulating a draft judgment and then handing it down is not designed to permit the case to be reargued on the occasion of the handing down of the judgment; the process is simply to allow for typographical errors and matters of that sort to be corrected. There is nothing therefore in this ground of appeal.
32. The other proposed ground of appeal is that HHJ Sullivan was biased against the father. It has not been demonstrated that it is arguable that there is any substance at all in that assertion. I would not be minded to allow it to go further by way of an appeal.
33. In all the circumstances, therefore, I can detect no arguable ground of appeal against HHJ Sullivan's order. It was an order she was entitled to make in the exercise of her discretion on the facts of this case; nor was she wrong to make the observation that she did about the need for a risk assessment. I have explained that the findings of fact in the earlier proceedings properly form part of the background in this case, and they would inevitably dictate that any judge proceed cautiously, even if otherwise minded to grant contact.
34. So for all those reasons I would refuse permission to appeal.

Lord Justice Tomlinson:

35. I agree and I do not wish to add anything further.

Mrs Justice Baron:

36. I agree.

Order: Application refused