England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL  (  CIVIL DIVISION  )
ON APPEAL

		Royal Courts of Justice Strand, London, WC2A 2LL
		27th February 2012

Lord Justice McFarlane:

1.  This is an appeal brought in the course of private law proceedings under the Children Act 1989 in relation to a young boy.  I propose in the course of this judgment to anonymise the individuals and indeed the location, because some of the individuals will be well known in the location of England in which these matters have taken place.  But in any event there will be an order preventing the publication of any material that might go to identify the child or the three key adults involved.
2.  The boy, who I will call "C", was born on 12 March 2009 and will very shortly be three years of age.  The dispute before the court is between Mr W, who is C's father on the one side, and C's mother, who is Mrs H and her husband, Mr H, on the other.  The circumstances leading to C's conception were the subject of a detailed examination before the court and it need not take this court any time to describe them.  In very short terms it is said that initially Mr and Mrs H, who realised that they could not produce a child of their own from their marriage because Mr H had previously undergone a vasectomy, sought to involve Mr H's best friend, Mr W, as a sperm donor in the course of what would have been an informal arrangement for artificial insemination.  But, be that as it may, it does not seem that any true attempt at conception by that means was attempted and in fact what occurred was that a full-blown sexual relationship of regular intimacy between Mrs H and Mr W took place, and C's conception in due course towards the end of that relationship was achieved by more traditional means.
3.  The proceedings are therefore proceedings relating to C and focus upon Mr W applying for parental responsibility for C and for contact.  The matter initially proceeded before the Family Proceedings Court, but in the course of what was to be the final hearing the magistrates recognised the complexity of the matter and transferred it to the local county court.  There District Judge A conducted a three-day hearing ending in the middle of October 2010, at the conclusion of which he gave a full and reserved judgment dated 29 October 2010.  He heard in the course of those proceedings first of all the Cafcass officer and then the three principal players, Mr and Mrs H and Mr W.  His detailed judgment shows that he formed a very negative view of the credibility of Mrs H.  He was not able to rely upon much of what she had said about the relationship between herself and Mr W.  Equally the judge was not accepting of everything Mr W said, but one matter that did plainly strike the judge as very important was the way in which Mr H had been affected by the events that had transpired, which included not only the fact that his wife had conducted a lengthy affair with Mr W but that there had been three occasions of some violence visited upon Mr H, two of which had directly involved Mr W and one that Mr H regarded as being instigated by Mr W.
4.  The District Judge put a priority in terms of looking at young C's needs upon achieving and maintaining stability and calm in the small family unit in which C lived.  That family unit was Mr and Mrs H and C.  Mrs H had been reconciled with her husband around the time that she had discovered that she was pregnant with C, although it is plain that she carried on for a time seeing both Mr W and Mr H during this period.  But the judge held that, by the time C was born, Mr and Mrs H had reconciled and so the judge put a priority upon maintaining the stability of that relationship and he felt that any contact with Mr W would be incompatible with that stability and he therefore dismissed Mr W's application for contact.
5.  I should say that, when C was some six months old, in or around October 2009, Mr W had had a number of contact visits with C which had been arranged by agreement with Mrs H.  Indeed I think a written agreement brokered by solicitors was entered into.  However at the end of one of those visits on 29 October the contact abruptly stopped, because it was said by Mr and Mrs H that C had been returned from contact in an untidy or dishevelled state.  That particular allegation was denied by Mr W and the District Judge did not find it proved.
6.  In terms of parental responsibility, the District Judge also dismissed the application for parental responsibility but did, in accordance with the DNA evidence that had been filed, make a declaration under Section 55A of the Family Law Act 1996 that Mr W is C's father.  This court has been shown a rectified birth certificate, a copy of which is dated 19 September 2011, which Mr W has obtained which now shows that he is C's father.  It is certainly my understanding, and the understanding of my Lord, Sir Scott Baker, and also counsel for Mrs H, that the entry of Mr W's name on that birth certificate automatically affords him parental responsibility for C.  Thus the issue of parental responsibility is, it seems to me, no longer a live one in the case. 
7.  Mr W was dissatisfied with the conclusion of the proceedings before the District Judge and he sent a letter to that effect to the court on 24 November 2010 in which he set out some 18 paragraphs of criticism and complaint about the District Judge's judgment.  The letter was treated as a Notice of Appeal and that appeal came on for hearing before a circuit judge, HHJ V.  The matter was to be heard by way of an appeal at a hearing in March 2011.  However, at that hearing, Mr W told the judge of events that had transpired over the two or three weeks immediately prior thereto.  In short terms Mr W explained that, without any act on his part, Mrs H had unexpectedly made contact with him whilst he was working as a taxi driver in the locality in which all three of these adults live one evening and she had in effect spent the night shift with him travelling around in his taxi and spending a substantial amount of time in conversation with him.  He also alleged that she had shown him photographs of C on her mobile phone, that the phone battery had died, that she had taken the SIM card out of her phone and tried to fit it into Mr W's phone and in the process the card had fallen down inside Mr W's car.  Mr W also alleged further conversation and interaction with Mrs H around this time.  Understandably the circuit judge adjourned the appeal hearing so that these matters could be put in statement form and indeed, when the matter came back before him on 15 August 2011, he heard live evidence and made findings of fact about those recent developments.
8.  The circuit judge, having heard that evidence, also obviously turned his mind to the question of whether the appeal before the District Judge should be allowed.  Throughout, Mr W has acted in person as he did on that occasion. Separate counsel acted for each of Mrs H and Mr H.  The judge's reserved judgment was prepared and circulated on or after 18 August and his conclusion was that the District Judge's process and order were erroneous, that they should be set aside and he therefore allowed the appeal and he indicated at paragraph 58, which is the last paragraph of the judgment, that he had formed a provisional view to make a direct contact order with a phased introduction of C to his father and he had also formed the view that the CAFCASS officer should be appointed to advise and assist in relation to that process.
9.  The matter came on for directions following the circulation of that judgment on 1 September 2011 and that is the occasion when the appeal was formally allowed and orders were made.  CAFCASS were asked to appoint a guardian for C and by implication the judge must have joined C as a party to the proceedings under Rule 16.2 of the Family Procedure Rules 2010 and appointed the guardian under Rule 16.4 and the order then says this:

" The matter is adjourned to 10 October 2011 before [and then the name of the same circuit judge is inserted] for further directions and consideration of a restart to contact."

And then below that:

"The guardian is directed to file a brief report not less than 48 hours prior to such hearing with her recommendations in relation to the reintroduction of contact."

10.  We are told by counsel Ms Bryan, and it is really confirmed by Mr W, that there were no fresh submissions made about contact at the hearing on 1 September.  The couple, Mr and Mrs H, each applied for permission to appeal, which was refused, and the judge simply made the directions for the matter to come back before him in due course.
11.  The appeal which is now before us is that of Mrs H.  Her Notice of Appeal was filed on 27 September 2011 and sets out some eight grounds of appeal which have been fully argued in the written skeleton argument of Ms Bryan and further enlarged before us orally today.  The matter came before me on paper and I granted permission to appeal on 25 October 2011. 
12.  The perspective that one has now in February 2012, sitting in this court, of the process that was undertaken by both the District Judge, first of all, and the circuit judge, secondly, is such that I am troubled that there has been a proper hearing of all the issues in relation to this highly important decision with respect to the relationship that this little boy is, or is not, to have with his father as the years go by.  I make that general observation despite the respect that I have both for the District Judge and the circuit judge involved, each of whom properly is to be regarded as very experienced in this work.  Equally I am cautious in being over-critical of two judges, in particular the District Judge who carried the burden of the day by hearing the oral evidence over three days and who prepared a clear and well-structured judgment.  Despite that caution I am afraid I am concerned about the process and the outcome.  It will help if I indicate now what my conclusion is upon the appeal, because it will then make sense of the fact that I will be fairly cursory in what I have to say about the substance.
13.  My conclusion is that the appeal should be allowed.  In short terms that conclusion is because I am not satisfied that there was a proper evaluation of the range of important issues that should have been prominent in any welfare decision for C undertaken by the District Judge.  Conversely, although I share the basic concerns that the circuit judge had which led him to allow the appeal, I am equally concerned that he too fell into the same trap and failed to conduct his own welfare examination in relation to C and his future contact with his father before pressing the green button and moving forward with the task of reinstating contact.
14.  I take the view that, although it will be a depressing outcome for all of the adults involved here, this case needs now to be heard by a judge who is fresh to the case, either a High Court judge or a judge appointed by the Family Division Liaison Judge for the Western Circuit and I will direct that the matter comes to be listed before Baker J in Bristol during the second half of March for directions for the determination of the identity of the judge who is to hear the case.
15.  Given that that is my conclusion and the way I see the matter moving forward, it is not going to be helpful or indeed wise for me to enter into a detailed evaluation of the various substantive issues in the case.  I therefore propose to be brief.
16.  In entertaining the view that the District Judge fell into error I consider that the circuit judge was in broad terms correct to allow the appeal on the basis that he describes at paragraph 50 onwards in his own judgment.  Taking the matter in round terms, the first ground for concern is the prominence that the District Judge gave to the potential for upset to the family unit of Mr and Mrs H and C that might be occasioned if Mr W were to have any ongoing contact with C.   A reading of the District Judge's judgment at paragraphs 28, 29 and 30 shows the very high degree of prominence that that factor was given in that judgment.  I am not going to read those paragraphs now into my judgment, but in paragraph 28 the District Judge noted that the CAFCASS recommendation was in favour of contract.  The District Judge then made a number of observations, which led him to the view that the CAFCASS officer's recommendation might not be entirely robust and in the course of that made a number of observations that were negative about the introduction of contact and simply records the positive in these terms:

"All of these factors would have played a part in shaping the recommendation as would the theoretical basis that it was generally in the best interests of a child to know their father."

In paragraphs 29 and 30 the District Judge lists, I think, some seven or eight different aspects of the case that would lead him to refuse contact, all of them based around the emotional stability and integrity of the household with Mr and Mrs H.  The only factor on the other side of the scale, namely in favour of contact, is put in these terms:

"On the other hand it would mean that [C] would be denied the opportunity to know and be with his father."

These observations, all of them against contact, save for that one, are in the course of a paragraph which starts by identifying that the District Judge is undertaking "a balancing exercise". 

17.  In looking at this aspect the circuit judge noted the prominent emphasis put upon the potential for upset and added to that the findings of fact that he had made on the more recent material, which was in effect to accept largely what Mr W had said had occurred, namely that Mrs H had voluntarily got in touch with him and herself was looking to rekindle some form of relationship, and I put it in neutral terms, with the very person that the District Judge had indicated was to be avoided in terms of contact because of his potential to destabilise a family home.  But the point also ties into the circuit judge's criticism, which is that the District Judge failed to evaluate the issue by running it up against the yardstick of the welfare checklist in section 1(3) of the Children Act.  The circuit judge in terms said that there was very little or no analysis of C's needs and he went on to say:

"Had I been carrying out the exercise it is at that point that I would envisage I would have turned my focus on such matters as [C's] needs in relation to this own sense of identity, an important matter in the realms of his emotional needs more generally. A reading of the judgment would leave the impression that [C's] sole need is for stability.  In short, the treatment of the welfare checklist and the evaluation of its vital paragraphs was far short of what was needed."

18.  I agree with that basic criticism of the District Judge's approach.  Doing her best, Ms Bryan submitted to us today that it must be effectively a given that the District Judge will have had the importance of some contact between child and father as his starting point and one to which he would have given priority.  If that was a given, it was not a factor that surfaced in terms of the words that the District Judge put into his judgment and I am concerned that a disproportionate emphasis was put upon the potential for instability occasioned by Mr W having contact.  It is of course a given, and a starting point for these courts, that children will normally benefit from having a full and meaningful relationship with both of their parents as they grow up.  Whilst the original reason that Mrs H and Mr W first talked about the conception of a child was in a rather clinical context of potentially achieving that through artificial insemination, he was in fact born as a result of a full relationship that they had and there is a need for the District Judge to have approached Mr W and C's relationship with Mr W by giving that priority and then balancing it against the other issues in the case.
19.  The second and third reasons can be taken more shortly.  The only case law that the District Judge refers to is a case of Re SM (a minor) (Natural father: access) [1991] 2 FLR 333, which has a certain similarity on the facts.  The circuit judge was critical of the District Judge referring to that, holding his own view that that decision would no longer be decided the same way today.  I give that no great prominence, but I am concerned that there was no reference to other cases which in more modern terms establish the starting point and the basic approach to contact.
20.  Finally, and this is of more substance, but it is unfair in a way for me to highlight this point now, because I take it in a different way from the one that the circuit judge took and it relates to the CAFCASS officer's involvement. For better or for worse, she had seen everybody and prepared her report in the spring of 2010.  Yet the hearing came on before the District Judge in October.  The report was based upon the highly conflicting accounts that Mr W, on the one hand, and Mrs H, on the other, gave of C's conception and the fact or not of any relationship between the two of them.  The CAFCASS officer therefore made her recommendation in a vacuum without any findings of fact having been made.  After his exposure to the three adults in the case and having been able to make detailed findings of fact as he did, it seems to me that the prudent course would have been to somehow bring the CAFCASS officer back into the equation at that stage, so that she could assist the court in recommending the way forward for young C in the light of the findings that the judge had made. Simply to keep her in the state of knowledge that she had had some six months before, and then look at her recommendation made in that context, would seem to me to be a waste of resource and to run the risk that an independent voice on behalf of C was not heard in the court as it was constituted before the District Judge as one would normally wish it to have been.  So I am critical of that process.  The circuit judge was critical of it in ways which he explains at [53] and [54] of his judgment.
21.  I certainly would not allow an appeal against the circuit judge's approach to the basic task of acting as an appellate court to the District Judge.  I think there were reasons to be concerned about the District Judge's process and by and large I do not think the circuit judge was wrong in deciding that the appeal should be allowed in terms of setting aside the resulting orders.
22.  Before moving on to what I wish to say next, I do make it absolutely plain that, just as before the circuit judge, here there is no ground for questioning the validity of the basic findings of fact that the District Judge made or for that matter the findings of fact that the circuit judge made on the new evidence that he heard.  If this matter comes on, as I take the view it should, before a fresh judge, it will be for that new judge to decide what evidence he or she wishes to hear.  No doubt they will be assisted by having oral evidence from Mr and Mrs H and Mr W as to some matters so that they can form their own view of them in the witness box, but for my part I certainly am not allowing the appeal on the basis that any of the findings of fact should be set aside.  It will be a matter for those matters to be re-evaluated by the new judge who is to take the case.   I also, in the context of factual matters, report that Mr W, in the course of his submissions to us today, raised fresh factual information to the effect that Mr and Mrs H had been separated for some time now.  Mrs H has moved to live in a road near to him, E Road, and that Mr H lives separately in property some way distant across the city in a road beginning with B.  Again I am not being drawn into that process, but it seems to me that there will inevitably be fresh factual matters that any new judge will have to consider.
23.  Having got thus far and endorsed the decision of the circuit judge to allow the appeal, I am afraid I do take the strong view that the circuit judge fell into the same trap that he had discerned within the District Judge's judgment.  It is one thing to decide that the District Judge had been erroneous in the process that he adopted and set his conclusion aside.  It is completely a different matter to impose a different conclusion yourself as the appellate court without going through a full evaluation process.  Nowhere in the circuit judge's judgment does he actually undertake the process of evaluating where C's welfare lies.  He indicates what he might do had he been the judge at first instance, but at no stage does he balance the various factors in the case before expressing his provisional view that direct contact should now be phased in.  After expressing that view the judge heard no further submissions and made orders on 1 September effectively looking to restart contact.  I fear that he too, as I say, fell into the trap of not evaluating these matters carefully. 
24.  This is a difficult case.  This little boy needs to have a court, one judge seized of the totality of the matter, come to a view as to what if any contact he needs to have as the months and years go by in the context of this rather odd but by no means untypical set of relationships between his father on the one hand and his mother and her husband on the other, living close by as they do in one busy community.
25.  I therefore would allow the appeal against the circuit judge's determination and direct that the matter is listed for directions before Baker J in March 2012 for him to determine how it should now be concluded in front of a fresh judge.  That is my judgment.

Sir Scott Baker:

26.  I agree. I hope that an early hearing date is identified for the new hearing because it is high time that C's future is decided.

Order: Appeal allowed