England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LINCOLN COUNTY COURT
HIS HONOUR JUDGE OWEN QC
LN11P01677

		Royal Courts of Justice Strand, London, WC2A 2LL
		16/05/2013

BLACK LJ :

1. This appeal is brought by the mother (M) of a 4 yr old child, S, against an order made by HHJ Owen QC on 13 November 2012. The order concerned S's contact with her father (F). M also wishes to appeal against a number of "findings" made against her by the judge in the course of his judgment that day. She wants those findings set aside.
2. The parents were in a relationship between 2007 and January 2010 when they separated. S lives with M. Initially she had overnight stays with F but that stopped, apparently due to incidents when she was being handed over between the parents.
3. In May 2010, F made an application for a defined contact order and there have been proceedings in relation to contact on and off ever since. I will give only so much detail about them as is necessary to set the scene.
4. The first set of contact proceedings lasted only a few months. In September 2010, F withdrew his application. Contact was by then proceeding on a weekly basis at a contact centre.
5. In October 2010, F began a second set of contact proceedings. The case was listed for a fact finding hearing in early 2011 but that did not take place because an agreed schedule of findings was drawn up which satisfied the court. The schedule recorded that F had been convicted of rape in 1988 for which he was sentenced to 6 years in custody. It also recorded concessions made by each parent about their conduct in the course of what appeared to be a rather volatile relationship involving heated rows, verbal abuse and some physical confrontation. The schedule included three particular incidents arising from contact. Two took place on the occasion of S being handed over from one parent to the other and involved physical confrontation. The third involved F inappropriately insisting at contact that S's vest was lifted and she was turned over so that he could see if she was being abused.
6. A CAFCASS report was produced in May 2011. By then contact was still based at the contact centre but incorporated an outing for about an hour, on foot and in the local area of the centre. The reporter had seen S with her father during contact, including playing in the park with him. She observed S to be at ease, talking to F and holding his hand.
7. The report identified two areas of concern. First, the reporter had a number of concerns about F's attitude towards M whom he repeatedly criticised, to the extent that the CAFCASS reporter had little confidence that his contact with S would not be used to campaign against M. Secondly, the reporter was concerned about F's rape conviction. She said F was "vague" when she asked him about it. He told her he had spent 3 years in a young offender institution and then attended probation. The report also refers to an accusation of rape against F in 1993; that case had been "dismissed". The reporter took the view that matters were relevant to "assessing safe contact" and that she did not herself have the expertise to assess the risk posed to a child by a parent who had been convicted of rape. F had not told M about his rape conviction. The first she knew of it was when it came to light through CAFCASS investigations in the course of the second set of proceedings. She was said to be worried about it.
8. The CAFCASS reporter advised that there should be a psychological risk assessment of F. She said that full information relating to the conviction and the allegation in 1993 needed to be disclosed and observed that:

"A psychological assessment would assist in determining whether contact with S can progress and what assistance F needs to ensure this is a positive, safe contact. This would also be in respect of his attitude to her mother and other important people in S's maternal family."

9. She did not recommend expanding unsupervised contact until the psychological assessment was available. However, she contemplated that the hour long outings from the contact centre would continue as they improved the quality of contact for S and she suggested that now she was older, S could cope with an increase in the overall duration of contact to 3 hours.
10. F was not willing to participate in an assessment and withdrew his contact application. Meanwhile, contact continued at the contact centre for 3 hours although at some point it ceased to incorporate the hour's outing. The information available to us does not make it clear when that was or why it happened.
11. In October 2011, F commenced his third contact application. In December 2011, the district judge ordered that there should be a psychological assessment and that it should be paid for by F. Once again, things did not proceed smoothly. F sought to appeal the order that he should pay. M applied for an order under section 91(14) Children Act 1989 restraining F from making further applications about S without leave of the court.
12. In April 2012, S was made a party to the proceedings and a guardian appointed for her; this was the family court adviser who had prepared the earlier CAFCASS report.
13. The following month the district judge gave directions about the psychological assessment. F did not attend for it or agree to his medical records being made available and his failure to have the assessment led eventually to the dismissal of his contact application by the district judge in August 2012. F appealed to the county court against this.
14. On 2 October 2012, all parties attended on Judge Owen QC who gave directions. Reading between the lines of the order he made that day, and with assistance from §17 of his November judgment, it appears that he restored the contact proceedings that the district judge had dismissed and the district judge's order for a psychological assessment, varying it to substitute a different psychologist and giving ancillary directions. He also ordered that contact was to "continue at the contact centre, subject to a period outside the contact centre on terms agreed with the Guardian".
15. The judge understood at this hearing that whilst F had objected to the psychologist originally appointed to do a report, he did not object to an assessment provided it was by a psychologist of his choice and took place in Lincoln. It was thought that the assessment would be covered by public funds but problems were subsequently encountered over this and F wrote to the court, apparently indicating that he did not in fact want to undertake the assessment. Judge Owen considered the matter on paper and made an order on 2 November 2012 listing the case before himself on 13 November 2012 for a one hour directions hearing. In accordance with good practice, he set out the parameters of the directions hearing in his order. From that, it was clear that he intended to clear the decks of any outstanding applications which no longer served a purpose, to consider whether a psychological assessment of F was necessary, to consider whether it remained necessary for F's contact to be confined to the contact centre, and to give directions for the final hearing.

13 November 2012 hearing

16. On 13 November, the matter took the whole of a long day. At the end of the day, the orders that the judge made included:

i) An order confirming the 2 October direction that there should be "a psychological risk assessment" of F and giving ancillary directions about it including that it was to be filed by 31 January 2013.

ii) An order that contact should be from 2 p.m. until 5 p.m. at the contact centre, with F being allowed to take S out between 2 p.m. and 4.30 p.m..

17. F has not appealed in relation to the psychological risk assessment although we have been told that since the judge's order, he has again declined to submit to the assessment.
18. M appeals against the provision in the contact order which permitted F to take S out of the centre for 2 ½ hours. Two aspects of this order concern her. The one hour outings had been restored after the October 2012 hearing but the 13 November order represented a material increase in the time spent away from the contact centre. Furthermore, whereas the outings had previously been local ones on foot in the area of the contact centre, F was not now restricted in what he could do and, when the new contact regime started after the 13 November hearing, he could and did take S to his home. That stopped when in mid-March, Lord Justice McFarlane gave M permission to appeal and stayed the order in relation to unsupervised contact. Since then F and S have spent the whole of their contact sessions in the contact centre.
19. As I indicated at the outset, M also appeals against the "findings" made by the judge against her in the course of his judgment and wants these to be set aside.
20. M's appeal is opposed by F who is in person.
21. The guardian's position is that although, at the time of the hearing in November, she did not support the relaxation of the contact regime, she cannot ignore what happened subsequently which was, she felt, that the quality of contact improved when S was spending time away from the centre. She therefore feels that continuing to confine contact to the contact centre now would not be in S's best interests. She is neutral about M's appeal in relation to the "findings" made by the judge.

The judge's judgment and the criticisms made of it in this appeal

22. By the time of the hearing before Judge Owen on 13 November 2012, there were four strands to the proceedings: F's appeal (the objective of which had originally been to restore his contact application), M's application to have contact limited to indirect contact, M's application for a section 91(14) order, and an application by F to have the proceedings transferred to another court on the grounds of 'hostility' and bias on the part of the judges who had dealt with the proceedings.
23. The judge dealt with the peripheral applications at the start of the hearing. F no longer pursued his transfer application and that was dismissed (§16). F's appeal was dismissed, the judge indicating that it was no longer necessary as the contact proceedings had been revived and that F was apparently now using it only in order to pursue a personal grievance against M's solicitor. The judge dismissed M's application for an order under section 91(14) because he thought there was no proper basis for such an order although he indicated that if, at the end of the full hearing, there did appear to be a proper basis on which to make one, then no doubt the trial judge would make the appropriate order (§15). That left the parents' cross-applications about contact.
24. The parents had not filed witness statements for the purposes of the hearing. There was a guardian's report dated 28 September 2012. Each party had provided a position statement.
25. The guardian had met S on 15 September and spoken to the parents. She included in her report what she had by then been able to learn about the progress of contact. She said that there was little evidence that S's contact was harmful to her. However, she observed that F had "not been able to prioritise S by co-operating with the court's directions [about an assessment] and there is no assessment of how he can meet her developing needs". She considered that the court process needed to end and proposed that there should be once monthly contact at the contact centre including an outing of up to an hour and a section 91(14) order for two years.
26. Contact notes were also available to the judge, including a recording by the guardian of her observations of a contact session on 10 November 2012. I will return to those observations.
27. The judge considered carefully whether a psychological assessment was in fact now necessary and concluded that it was. It was to address two main areas of concern.
28. One area of concern related to the rape conviction. The judge agreed that the psychologist could be asked "whether the fact of the conviction for rape 24 years ago and the fact of a dismissed allegation of rape 19 years ago, without more, carries with it any, and if so what, real risk of sexual abuse on the part of F towards S".
29. Mrs Bradley QC, who appears with Mr Jacques on behalf of M, submits that the judge misunderstood the nature of the risk that M feared F posed. She was not contending that S was at risk of sexual abuse from F by virtue of his rape conviction as the judge seems to have thought. However, she does not seek to disrupt the judge's decision to pose a question about the sexual abuse risk to the psychologist. Her concern actually related to F's attitude and approach and arose from her own experience with him and also his apparent preoccupation with the proceedings. Mrs Bradley submits that the rape conviction makes a contribution to an understanding of F's attitude too. F told M nothing about the conviction during their relationship and Mrs Bradley submitted that this deception and also F's discussion about the conviction with the guardian, both in terms of its limited ambit and its content, was worrying.
30. The second and main purpose of the report was, as the judge put it in §41, to address "the risk of emotional harm, if any, posed to S, by F's attitude towards M in the context of unsupervised contact". In his §36, the judge set out the circumstances which persuaded him that a psychological assessment was necessary. They included that in his view F had demonstrated consistently to the court, in written communication and in his oral presentation of his case, that he appeared to be "fixated upon injustices which he is too quick to identify and which appear to distract him from the real question". The judge said that F's "animosity towards those whom he regards as against him including M comes across in his case".
31. Having resolved the issue of the assessment, the judge went on to deal with the question of contact in the interim period whilst it was being obtained. In this passage in his judgment, he made a number of damning observations about M's attitude to F which are the "findings" that Mrs Bradley seeks to dislodge by this appeal. I will return to those later. They do not in any way form the foundation for his decision about interim contact.
32. It seems to me that the judge's reasoning for his decision to relax the restrictions on contact commences at §52. He noted the guardian's observation that there is no evidence that S's contact with F is harmful and that it appears to be beneficial to her. He said that this:

"raises the obvious question as to whether it really is necessary, any longer given the long history of successful contact, in S's interests to confine the contact sessions to within the contact centre premises"

33. He continued that:

"objectively, there seems little justification to require F not to take S outside for her own entertainment and to render contact more interesting and enjoyable."

34. He said that at the last hearing he had envisaged that a majority of the time would be spent out of the centre and that a more flexible arrangement would have been reached which would have been more pleasing to S. He observed that no problems had arisen in the hour that S was spending out with F. He said that the apparent justification for this restricted period was that in a longer period S may be put at risk from hearing adverse comments made by F about M but said that he did not consider that a sound basis for restricting time away from the centre and said there was no evidence that F had engaged in this kind of behaviour in recent months. Finally, he determined, in §57, that "[t]here appears to be no good reason why F should not be permitted to enjoy interim contact outside the contact centre and, in due course, away completely from it", particularly if he conducted himself appropriately with S and certainly if he co-operated with the forthcoming assessment.
35. Mrs Bradley submits that the judge was wrong to relax the restrictions on contact. Her submission is essentially a very simple one. She argues that there was a major decision to be made about contact in the long term, the judge had decided that it was necessary to obtain a psychological report to inform him about the risk of emotional harm that F may pose in the context of unsupervised contact and it was wrong to increase unsupervised contact significantly before that psychologist's advice was available.
36. F, naturally, supports the judge's decision and conveyed to us strongly that he considered it contrary to S's best interests that she should have to spend her contact time inside the contact centre.
37. I have explained that the guardian did not support a change in contact at the time of the hearing before Judge Owen but has changed her position following the hearing because of developments since then. I do not close my eyes to the view she now holds and the material upon which she bases it. However, it is necessary to remember that the role of this court is as an appeal court. In evaluating a discretionary decision such as Judge Owen made in this case about interim contact, it seems to me that we should focus principally on the situation as it was before the judge.
38. I am persuaded that the judge was wrong, on the material that was before him, to make the order that he did. I stress that my conclusion about this is dictated by the particular facts of this case. I am not saying that a judge can never make adjustments to interim contact whilst a material report which has been commissioned is awaited. In this particular case, however, M's anxiety about unsupervised contact revolved around F's attitude and the risk that time spent in his company away from the supported environment of the contact centre would provide him with the opportunity to behave in a way which would cause emotional harm to S and the judge had sufficient concerns of his own about F's attitude to take the view that it was necessary to have a psychological assessment directed at this very issue. The judge contemplated, as we can see from his §37, that the assessment would, amongst other things, provide an opportunity for F to explain to the psychologist "the reasons why contact should no longer be restricted to a contact centre". In §38, he spoke of a move in future "to a more normal form of contact away from the confines of a contact centre" and plainly saw the psychological assessment as part of the preparation for that. The guardian was opposed to increasing the time spent by F and S alone until the assessment was available. Yet the judge went on to make an immediate order under which most of the contact would in fact no longer be restricted to a contact centre (the centre's involvement being confined to a total of half an hour at the start and end of the session) or even to the local area around it. In so doing, he did not explain why it was that he felt it appropriate to act in advance of the assessment which was going to address precisely the risks to which such a course may give rise. In all the circumstances, it seems to me that his decision was premature.
39. The question arises as to whether we should substitute our own order as to interim contact or remit the case for determination in the county court. I think that it would be unhelpful for us to abandon the issue of interim contact to await the attention of a judge in the county court and I think we have sufficient material upon which to make a cautious decision in order to tide matters over for what will hopefully be a short period before a further hearing can take place in the county court, whether that be the final hearing or a further interim hearing which can consider the full picture in relation to contact following the November order and take account of the guardian's most up to date views about it.
40. F would seek and the guardian would support a resumption of the more generous contact regime that the judge permitted. M opposes that and submits that there should be no contact outside the contact centre until the report is available.
41. I would restore the position to that which it was before the judge's order so that F and S will have the majority of their contact at the contact centre but will be allowed to spend an hour in the locality on foot. It seems to me to strike the right interim balance in S's best interests. There is no evidence that that limited period spent away from the centre was harmful to S, indeed she seems to have enjoyed it more than spending the whole time in the centre, but equally it does not run the risk of expanding the unsupervised element of the contact to an extent which the psychological assessment may ultimately conclude imports emotional risks.
42. I return now to the issue of the "findings" made by the judge about the mother. I need not spell these out here. They were about her attitude towards F and about the way in which she "denigrates and undermines" him in the presence of S. The judge said that it seemed to him that there was "incontrovertible evidence" that M posed a risk to S's emotional welfare.
43. Mrs Bradley submits that it was wrong of the judge to have made these "findings" at this directions hearing. There was no evidence from the parties, even on paper. M was given no opportunity in the witness box or through submissions to address the material upon which the "findings" were made, such as the guardian's note of her observations in the November contact which the judge said revealed "a somewhat worrying picture" which he linked with "malign influence" from M prior to contact. Mrs Bradley submits that if the findings are allowed to stand, they will damage the M's position in the proceedings.
44. F argues that the judge had a very good understanding of the case, having read a considerable amount about it, and that his findings should be upheld. The guardian adopts a position of neutrality although acknowledging that the judge's comments were "robust".
45. I am entirely persuaded by Mrs Bradley's submissions on this point. I am not sure that it is fair to the judge to categorise his observations as "findings" but they were indeed robust and, at least as expressed, they do not appear to be provisional thoughts although I completely accept that the judge would no doubt have been open to revising them as the case developed. However, there is no doubt that when findings (or what appear to be findings) are made, they influence the subsequent course of the case. They are carried forward to later hearings, whether in front of the same judge as is desirable in interests of judicial continuity or in front of another judge who has access to the judgment or a note of it. They are provided to experts to inform their assessments; the judge indicated here that a copy of his judgment should be provided to the psychologist assessing F as we can see from §41 of the judgment. It is therefore necessary that all findings are made on proper material and properly justified. Judges do make provisional observations before all the evidence has been assembled and such observations can sometimes be helpful, but it is vital that they are clearly identified as provisional only.
46. Here, it was not necessary for the purposes of determining any of the live issues for the judge to make findings about M. There were still gaps in the evidence; notably there were no witness statements from the parents themselves. Furthermore, M was not given the opportunity to address the possible findings in oral evidence or even in submissions as she should have been before findings as serious as these were made.
47. Accordingly, I would set aside the "findings" made by the judge in the paragraphs identified in the amended notice of appeal. This case will now return to the county court to resume its progress towards a final hearing. It would be fairest to all the parties, it seems to me, if that were to take place in front of another judge who can consider the entirety of the evidence, including evidence from each of the parents and, from a fresh perspective, make such findings as are necessary about each parent's approach to the other and the extent to which that may affect S and influence the decision as to contact in the long run.
48. As I indicated earlier, I would also allow the appeal in relation to the interim contact order; interim contact should revert to the position as it was before the decision of Judge Owen on 13 November 2012.

PATTEN LJ:

49. I agree.

MUMMERY LJ:

50. I also agree.