England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM READING COUNTY COURT
(HIS HONOUR JUDGE SIMON OLIVER)

		Royal Courts of Justice Strand, London, WC2A 2LL
		27th February 2013

Lord Justice Thorpe:

1. This is the mother's appeal from the decision of HHJ Oliver, sitting in the Reading County Court. The appeal comes to us as a result of the grant of permission by McFarlane LJ on 29 January in which he identified the points which led him to the conclusion that the grounds and skeleton established a reasonably arguable case.
2. Sadly, the parents of Lilian have been in dispute over contact arrangements for a considerable time and there has been litigation in the court ongoing since 2009. Mr Paul Storey QC, who represents the mother, emphasises that this is not a case in which the mother has been opposed to contact in principle, or who has not facilitated contact, provided that that contact is not inconsistent with her commitment to protect Lilian from risks that derive from her allergies.
3. There have been two judgments of HHJ Elly, who had conduct of the continuity between November 2009 and February 2012. When he retired, the mantle seems to have passed to HHJ Oliver, who gave judgment in April and would have given judgment on an issue that arose in August 2012 but for the fact that he was on holiday. So he took the hearing on 6 December, at the conclusion of which he reserved judgment, which was handed down on 20 December.
4. The modern issue has been whether the father's visiting contact should be extended to staying contact at weekends. HHJ Elly, in his original judgment of 10 November 2009, made it plain that this was a case in which the journey from visiting to staying contact would be accomplished. When HHJ Oliver had the case in April, he was equally clear that that was the court's objective. It was not only the father's right, but it was the right of Lilian to have what I can describe as conventional contact, so that she reaped the benefits of attachment to each of her parents living apart.
5. The Court Welfare Officer who has been assisting the judge shifted to Mr John Maina, who filed a written report on 29 November 2012 in which he recommended that the time was now ripe for this next step on the road to a normal father-daughter relationship. Following the circulation of his report, the mother filed a further statement in which she set out her strong anxiety, persisting anxiety, that to expose Lilian to staying contact was to expose her to risk, since very, very strict protective measures are necessary to ensure that she is not unnecessarily exposed to any substance that could excite or exacerbate her allergies.
6. When the case came before the judge on 6 December, there were discussions between the parties which were led by or to which Mr Maina contributed, and they consumed the whole of the morning. They did not result in a compromise, and accordingly the judge embarked on the case only after the lunch adjournment. Half the day had, therefore, been lost, and the procedure adopted was that Mr Maina would give oral evidence. We do have a transcript of the proceedings and we see, following opening submissions from counsel for the father and counsel for the mother, Mr Maina gave his evidence being questioned by counsel at some length. His oral evidence was of fundamental importance, because he shifted his ground markedly from the position taken in his report of 29 November as a consequence of digesting the final statement from the mother. He moved from his written recommendation to the position that the mother's anxieties were such that there would be a live risk of harm to Lilian were the court to proceed straight to a staying contact order.
7. What was the alternative course? Mr Maina floated the idea of a section 37 report, which hardly seems apt given that each of the parents is of the highest level of competence, and the only issue is this disagreement as to the pace at which the court should proceed from visiting to staying contact. An alternative was of course to engage professional help from a mental health professional, and the name of Dr Berelowitz was canvassed. Enquiries revealed that, were he instructed, he could not take on the investigation before the end of January and would then need four to six weeks in which to report. The judge had in his mind a timetable that would bring the case back into his list in mid-January, and he concluded that Dr Berelowitz's workload really ruled him out from instruction.
8. So the hearing on 6 December, as Mr Cull rightly emphasises, took the judge to the point where he saw the magnitude of the problem, but had not yet formed a view as to its conclusions. He required written submissions from the Bar, and, only after he had received those written submissions, did he reach the conclusion which he expressed in the judgment of 20 December. The judgment has not been transcribed, but a note has been prepared from the audio record, and it accordingly has the status of a transcribed, unapproved judgment. The judge found for the father in strong terms and was critical of the mother, condemning her in a number of respects.
9. I think it is not unfair to HHJ Oliver to say that, over the course of his judicial control, he had become increasingly impatient with the mother's inability to move, and with her tendency to introduce a defensive position at a relatively late stage in each preparation for hearing. He took a no-nonsense position. This has been going long enough, and staying contact is now due or overdue, and accordingly he directed that there would be periods of staying contact, the first of which was to be the last weekend in January. The application for permission had been refused by the judge below and should, as a matter of best practice, have been with this court considerably earlier than 29 January. The consequence was that the father, who reasonably believed that he had achieved the natural development, was obliged to see it snatched from him with very little notice when he understood the belated application for permission and the resulting stay.
10. The skeleton argument that McFarlane LJ referred to is extremely well-drafted and expresses a number of fundamental criticisms of the judge, all of which are of a procedural nature. The order that is criticised is not only the provision for the regime of staying contact, but also a prohibited steps order restraining the mother from removing Lilian from the jurisdiction for the purposes of a holiday and/or removing her from school during term time for the purposes of holiday save with the permission of the court or the written consent of the father given in advance. Mr Storey's fundamental attack on the order and judgment of 20 December is that the judge departed from the Cafcass Officer's recommendation given in his oral evidence without any or any sufficient rationalisation.
11. Secondly, he complains that the judge made adverse findings against the mother, without having heard her oral evidence, which was a fundamental precursor to such a judgment. Mr Storey also criticises the judge for rushing his fences. The rejection of Dr Berelowitz simply on the grounds of timing was erroneous, given that the judge had himself recognised that to make a contact order simpliciter was not going to solve any problems. Mr Storey is also critical of the judge for categorising the potential of instructions to Dr Berelowitz as being only to assist the mother as a sort of therapeutic process which she could elect should she so desire. Mr Storey also criticises the judge for restricting the mother's right to leave this jurisdiction with Lilian for holidays during the school holidays. That was something that was really not the subject of evidence, hardly canvassed at the hearing when we see even Mr Travers for the father accepting that that was an issue for another day.
12. Mr Cull has prepared a very skilful skeleton argument in which he defends the judge and emphasises that the judge had ample opportunity to get the measure of these two parents, and that he was not only justified in, but was plainly right to call a halt to the mother's manoeuvrings. In his oral submissions, Mr Cull has made it plain that he has exhausted his ability to fund representation. He is faced not just with a further hearing in this issue set down by the judge for June but he has a hearing in April, end of April, of an application he has issued for the enforcement of his visiting contact rights, and on top of that he is facing a three-day trial in May before a District Judge of the same court. That is the final hearing of the applications for financial remedies.
13. I have considerable sympathy for the respondent to this appeal. What he aspires to is only normality. He has conducted himself very responsibly, both as a litigant and a parent, throughout the long course of litigation. He succeeded in front of the judge only to have his success dashed away a day or two before the looked forward to first occasion when he could have his daughter to stay. Moreover, my sense of sympathy for the father is, if anything, magnified by the fact that he has had to come here today unrepresented to face a strong appeal advocated not only by the junior who appeared below, but also by leading counsel. I do not think that, even had he been able to instruct Mr Travers to represent him today, Mr Travers could have said anything more effectively to respond than he has himself done. Sadly, the reality is that the order is vulnerable to attack on procedural grounds. The judge was faced with a difficult position once he had lost the morning and had only the afternoon to give to the case. The decision to hear only the Cafcass Officer was pragmatic and sensible, but it did restrict the judge's capacity to move the case on. He had to recognise the importance of the Cafcass Officer's shift in his oral evidence and he had to state in plain terms why he was rejecting that recommendation. It is by no means clear that he recognised that the Cafcass Officer was saying that the progress to staying contact would ignite anxieties in the mother which would risk harm to the child. That is the crucial element upon which he had to focus, which had its genesis the shift in the Cafcass Officer's position. I accept, too, that the mother was not to be condemned in the terms that she was unless the judge had had the opportunity of hearing her oral evidence and reaching adverse conclusions on her sincerity or her motives. Equally, it seems to me that the judge did not fully understand the role that Dr Berelowitz was ready, able and willing to perform. What he could do was to investigate the family dynamics and to help the parents and the court in achieving the desired but difficult goal. The judge in his judgment, in my opinion, demonstrated this misapprehension when he said:

"I am not going to delay the making of the Order while she gets this assessment, but I suggest she does it for personal reasons. I think that her anxieties, whether real or perceived, her distrust of [the father] all needs to be addressed by some work undertaken by a psychiatrist. It is something that is not in my gift to order but Dr Berelowitz is an expert I know and whilst I have no concerns that mother has mental health issues, her anxieties need to be addressed. I am told that Dr Berelowitz can report in relatively shorter order, can commence his assessment in January and this can take 6-8 weeks, however that is a matter for Miss Graham and not for me."

14. Finally, I accept Mr Storey's submission that paragraph 5 of the order which I have already cited is procedurally flawed, as the judge simply did not have the material and had not made the investigation necessary in order to write that paragraph. So I have equal sympathy with the judge, who was obviously frustrated by the late developments in the case, who had a clear primary objective to move the visiting contact on. But quite simply he could not go that fast or by that route to his desired conclusion. He had to accept that procedure demanded a slower pace and that the chances of success would be much enhanced were he to bring in Dr Berelowitz to do some work on the family dynamics.
15. I would accordingly allow the appeal and set aside the order. The application will have to be relisted. There is a draft letter of instruction to Dr Berelowitz, which in my opinion is unnecessarily lengthy and complicated. A letter of instruction needs to be settled today, and I hope that it can be agreed between the parties. If not, this court will need to settle it. I would, were I settling it, go for a very short letter, simply drawing Dr Berelowitz's attention to the litigation file, identifying the issue, namely how to move forward from visiting to staying contact and asking for him to carry out his assessment and deliver general advice. The remitted hearing needs to take place as soon as possible. It could not be before mid- or late April, given that we are where we are, and it will have to dovetail into the other fixtures in the court's list. It might be possible to take advantage of the listing on 26 April for contact enforcement. If that is not a possibility, then there will have to be some breathing space between the financial remedies final hearing and a date beyond.
16. I just add one footnote. Mr Storey tells us that there was no specific direction for the filing of written submissions. That does not seem to me to be much of a lacuna, because it was open to the judge simply to indicate to counsel "I want your written submission by 4 o'clock" on whatever date he chose and that would be that. But what happened here, we are told, is that the submissions were simply filed and were not exchanged, so that Mr Owens had no idea what Mr Travers said to the judge, and Mr Travers had no idea what Mr Owens said to the judge. Worse than that, Mr Storey tells us that, when Mr Owens asked Mr Travers for a copy of his submissions, he did not immediately respond and so Mr Owens has still not seen them. It is simply elementary that counsel do not communicate privately with the judge and one-sided communications can only be made on a without notice hearing, which is the prelude to an inter partes hearing. So if this is something that is happening, it certainly should not happen and it should be absolutely automatic that counsel submitting his written submission to the court simultaneously transmits that submission to his or her opponent.

Lord Justice Sullivan:

17. I agree.

Lord Justice Davis:

18. I also have great sympathy for the father. As he rather bleakly pointed out to us, Lilian is now aged over five and still she has not spent a single night with him, found to be a good and caring father.
19. I think two points should be borne in mind throughout. It has been found by the courts, and has been the view of Cafcass, that, all other things being equal, it is in Lilian's interests to have at the appropriate time staying contact with her father. Second, the courts and Cafcass have assessed the father, as I have indicated, as being a responsible and caring father. He is well alive to the risks posed by the allergies which Lilian has. He has sought to train himself as best he can to deal with him. The unchallenged finding of fact of HHJ Oliver on the last occasion was to this effect:

"I am satisfied that Lilian has been well cared for by her father, the fact that there has been no anaphylactic reaction whilst in her father's care since April indicates that he knows what he is doing, he is able to prioritise Lilian's needs, and is able to ensure that she is safe."

The judge went on further specifically to find that there was no "substantive reason" why overnight contact should not take place.

20. The history of this matter is, I think, of some importance. As long ago as November 2009, the matter was before HHJ Elly. HHJ Elly in terms stated that any decision of the court was not a matter in which the mother was given any veto. He went on to say this at paragraph 23 of his judgment delivered on 10 November 2009:

"I think that mother must accept that in due course staying contact will happen. Whether that is in a year's time or more time than that, I cannot really say at the moment, but Lilian needs to have as normal a life as possible, and as normal a time with her father as possible."

So those wise and sensible comments were made as long as three years ago.

21. When the matter came ultimately before HHJ Oliver, who had taken over from HHJ Elly, he expressly adopted that previous judgment. In a judgment of HHJ Oliver given on 4 April 2012, HHJ Oliver rejected the suggestion that Lilian had exceptional needs and required exceptional care, although of course he noted the problems posed by her allergies. He stated in terms:

"...I do not believe that Miss Graham has a monopoly on the ability to look after her daughter."

He went on to say in terms (and this may be noted in view of what is now being suggested) that it was totally inappropriate for there to be a psychiatric assessment of Mr Cull He then said this, in paragraph 12:

"Let me make it clear; contact is Lillian's right; it is not anybody's gift. It is not something that people can dictate. It is Lillian's right to have a good, healthy relationship with both parents, and that includes her father."

These too are wise and sensible comments. He went on later to say this, in paragraph 13:

"But I make it quite clear that if he is capable of looking after Lillian without risk to her health then overnight contact will be progressed. I know Miss Graham wants it not until Lillian is nine or ten or eleven, but it is not about what Miss Graham wants, it is about Lillian's needs, and Lillian needs to have a healthy relationship with her father. The CAFCASS Officer recommends a move towards overnight stay and contact and I agree with her."

22. So that was the way in which the matter was clearly moving at the early part of 2012. The Cafcass report of Ms Stewart had been filed for that hearing and itself had made a recommendation for a move towards staying contact. The subsequent report filed by Mr Maina in November likewise made the same recommendation. He fully recorded in that report the anxieties expressed by Ms Graham, the mother. It is only the very late statement of the mother, which Mr Maina had not seen when he prepared his report, that seems to have forced the change of position. We have not been given any clear explanation as to why this statement of the mother was put in as late as it was, especially in view of the previous comments both of HHJ Elly and then of HHJ Oliver in April. But the fact is that that statement was put in; and although, as it would appear, Mr Maina had no detailed discussions with the mother about it, Mr Maina was influenced by it in its written form and so changed his recommendation. His evidence was consistently to that effect when cross-examined. He was now expressing concerns in the light of the mother's stated anxieties and the potential detrimental impact on Lilian in consequence if staying was allowed.
23. As I see it, and although the judge I think was being put in a very difficult position, the judge was not in a position to make, and did not make, any finding that this late statement from the mother was some kind of ploy or was deliberately exaggerating her anxieties with a view to frustrating the possibility of staying contact. Indeed, the judge had not even heard the mother give evidence on the point. Perhaps more significantly, and as Thorpe LJ has pointed out, the judge did not address at all in his judgment, on the face of it, the very point which had caused Mr Maina concern: namely that the anxieties which the mother says she was suffering as a result of the possibility of staying contact might feed into Lilian herself and have a detrimental impact upon her. That was a point which did need consideration; and it may well be that the failure of the judge specifically to address that point also led him not to have regard, or sufficient regard, to the proposal that Dr Berelowitz or some other appropriate psychologist or psychiatrist be instructed.
24. For those reasons, and agreeing also with the reasons given by Thorpe LJ, and with some sympathy as I say for the father, I think that this appeal must be allowed.
25. As to the point about holidays and schools, I also agree. I add that I also find it extraordinary that counsel did not exchange their written submissions; and indeed the judge himself, through no fault of his own, would not have been alive to the fact that counsel did not know what the other was saying in this regard.

Order: Appeal allowed.