England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Portsmouth County Court
His Honour Judge Black
UK12P00560

		Royal Courts of Justice Strand, London, WC2A 2LL
		13/11/2014

Lady Justice King :

1. This is an appeal arising out of private law proceedings between the appellant, (father) and the respondent (mother) in relation to their two children, BF who was born on the 11^th July 2000 (14) and CF who was born on the 2^nd June 2003 (11).
2. On 9 April 2014, having heard evidence over two days and given a reserved judgment, Her Honour Judge Black made a number of orders. The principal terms of her order were to grant a residence order in relation to both children to the mother; to order that there be no direct contact between the father and the children but that there be indirect contact. In addition the judge made an order pursuant to s.91(14) in order to preclude further applications to the court without leave until the children attain 18 years. The judge dismissed the father's cross-applications for prohibited steps order, contact orders and a residence order in his favour.
3. The mother's application for the removal of the father's parental responsibility in respect of each of the children was refused; the judge made an order limiting the exercise of his parental responsibility by the father in the following way:

"Any school or education establishment, the boys GP and any agency which is contemplating providing Therapeutic Services with either BF or CF must be provided by the Mother with a copy of the judgment of HHJ Black dated 15 April 2014 and a copy of the order of HHJ Black dated 9 April 2014 and thus be advised that the Applicant father retains Parental Responsibility in respect of both BF and CF and therefore should receive copies of all written communication concerning the children sent to the Respondent Mother, but the Applicant Father cannot attempt to influence or be consulted about decisions regarding any aspect of the children's education, health or welfare unless any such agency considers it to be in the interests of either boy to be so consulted or involved and the level of such consultation or involvement shall be at the sole discretion of that agency"

4. The father filed a notice of appeal on the 30^th April 2014. The accompanying grounds of appeal set out nine grounds attacking various aspects of the Judge's management of the case. The matter came before Lord Justice McCombe on the 4^th August 2014, when he gave permission to appeal in relation to grounds 5 and 8 in the following terms:

a) Ground 5 stated :

"the judge was wrong to rely so highly on an untested expert report from four years ago when the facts before the court paint a different picture to that in 2010 and either an addendum report should have been ordered or time given if a further s37 was refused for an application for an expert report, as CF's behaviour mirrored that of BF and the hostility of the mother and her tactics to sabotage the father's relationship and motive were clearly to the detriment of the father and the children's relationship. "

Permission was "limited solely to the question of the absence of a satisfactory s.37 report or its equivalent"; and

b) Ground 8 stated:

"The Judge was wrong to restrict the father's parental responsibility, whilst admitting that the child welfare professionals including CAMHS, social worker, psychotherapist, Women's Aid, Dr Burch (sic), Lennox Centre, paediatrician and GP had all failed to take the father's views or to consider evidence contradicting the mother's words or to consult with him as a parent with PR when the disproportionate restrictions of the judge had the same result."

Permission was limited to "the question of whether or not the alleged marginalisation of the applicant father from the professional assessments impaired the Judge from making a proper appraisal of his case".

5. Lord Justice McCombe, having granted permission in relation to these grounds adjourned the question of permission in relation to five other grounds to be listed for hearing with the appeal, with the appeal to follow immediately thereafter if permission is granted.
6. Oral submissions were made by Mr Shaun O'Connell the father's McKenzie friend, on behalf of the father who has difficulties in speaking consequent upon illness. At the conclusion of Mr O'Connell's helpful submissions we announced our decision that the appeal was to be dismissed and in this judgment I give my reasons for joining in that decision.

Background

7. The parties' relationship commenced in mid 1999. They lived together between September 1999 and May/June 2006 during which period each of the children was born. In June 2007, the mother and father separated, the boys were 6 and 3 years old. In May 2007, there was a serious incident at the family home, when in the absence of the mother or children, the father put petrol on himself and threatened to set fire to himself and the family home. As a result of this incident, the father was convicted of affray. This incident was the third domestic incident which had been referred to local social services by the police.
8. In June 2007, the mother applied for a residence order and prohibited steps orders in respect of the boys. A CAFCASS report was prepared during the course of those proceedings which resulted in a consent order dated the 26^th August 2008, giving the father extended contact with the provision for a review to consider staying contact. A matter of days later, on the 1^st September 2008, the father applied for a penal notice and for a residence order. The whole process therefore recommenced.
9. In November 2008, social services conducted an investigation under s 47 Children Act 1989 following an allegation being made by the father that the boys were being smacked by the mother's partner. The outcome of the investigation was that physical chastisement was not substantiated.
10. On the 11^th December 2008, an order was made for the children to become party to the proceedings and the guardian, Mr Andrew Haughton was appointed. In July 2009, a report was filed by the guardian and at about that time, a core assessment was completed by social services following a report from the police stating that the father had contacted them saying that BF was alleging that he had been assaulted by his mother as a result of his refusal to tell her what he had discussed with the guardian. The outcome of the assessment was that the parents continued to raise concerns regarding each other's care of the children, which was having an impact on the emotional development and welfare of the children. On the 26^th August 2009, an order was made giving the father parental responsibility in relation to each of the children and providing for regular staying contact.
11. Meanwhile in September 2009 a second s47 investigation concluded that the father's allegation that the mother had assaulted BF was unfounded.
12. On the 20^th November 2009 an order was made instructing Dr Ciaran Kelly, a child adolescent psychiatrist, to prepare a report. His report is dated the 2^nd February 2010. The judge referred at length to the report and found that the assessment of Dr Kelly of the acrimonious relationship between the parents and its damaging effect on the children, is as relevant now as it was when the report was written. She specifically referred to a passage which the guardian regarded as prophetic:

"Both BF and CF have split allegiances and feel emotionally torn between their parents. It is my view that this painful dynamic is intolerable in the long term. Eventually BF and CF will psychologically need to take one side or the other so that they can divide the divided loyalties."

13. In the meantime, the effect on the children of the continuing dispute between the parents was beginning to have serious consequences particularly on BF who was becoming increasingly resistant to contact. By late 2009 he was exhibiting such serious emotional disturbance, in particular by his being violent towards his mother and wider family members, that between November 2009 and September 2010, he was accommodated by the local authority in a residential unit.
14. BF has not seen his father since his reception into care and is adamant that he will not now do so. Whilst the father had a live application for a residence order in relation to BF before HHJ Black, the reality is that the focus in the trial was almost entirely on CF as it has been in this appeal.
15. Following the filing of reports by both Dr Kelly and the guardian an agreement was reached between the parents and recorded in an order dated the 21^st April 2010. The order made "no order" in relation to where BF should live, (although it was always intended that upon his leaving care, he would live with his mother). A shared residence order was made providing for CF to stay with his father alternate weekends, an alternate weekday night, and half of the school holidays. The order further provided that, pursuant s.91(14) of the Children Act 1989, neither parent would be permitted to apply for a s.8 order in relation to either child until the 16^th April 2012.
16. Unhappily in February 2011, the father failed to return CF to the mother and the mother had to make an application to the court for his return. A further core assessment was carried out in February 2011 after allegations were made from CF to his father that his mother was physically abusing him. The allegations were investigated; the police formed the view that CF was not being physically abused by his mother but that once again, CF was being caught up in his parents' acrimonious relationship.
17. On the 14^th March 2011, a further order was made recording the local authority's intention to remain actively involved with the family to include supporting BF in receipt of his individual work with Child and Adolescent Mental Health Service (CAMHS), and supporting the mother's referral to CAMHS in respect of CF. The order recorded that the local authority were to support both mother and father in a referral to CAMHS in respect of individual work, both parents having indicated that they would undergo such work. The parents were also directed to take part in a Parenting Information Programme. Mother has completed the programme, the father has not.
18. During most of 2012 the father continued to have regular contact with CF in accordance with the consent order including a successful holiday abroad.
19. Although the father's case is that CF was doing well on all fronts during 2012 that does not tie in with the evidence before the judge; whilst CAHMS had discharged him, it was on the basis of a referral to Havant Women's Aid a service which provides support for children who are or who have experienced domestic abuse. The father, denying as he always has, that there has ever been domestic abuse was strongly opposed to such a referral. During this period the Guardian records that the father made a number of complaints against professionals and services and halted the input of some professionals. By September 2012, CF was showing significant signs of emotional disturbance; he wanted to sleep with his mother and was getting increasingly anxious with repeated stomach ache. CAHMS wrote to the parents suggesting a one off meeting with them and CF. The father responded stating his strong objection to such a meeting taking place as it was more of "the mother's nonsense".
20. On the 25^th September 2012, the father made an application for a prohibited steps order in relation to CF in order to prevent him from attending the proposed CAMHS appointment. In his application he phrased it " to stop CF's involvement with any professionals without his input and attendance" The matter came before District Judge Veysey on the 3^rd of December 2012, when a raft of directions were made, including yet again the preparation of a CAFCASS report.
21. Meanwhile CF, who had been visiting his father regularly, was becoming reluctant to attend, culminating with a telephone call from a doctor from the out of hours clinic on the 31^st December 2012, where CF was indicating that he would not go for contact. To all intents and purposes, there has been no contact between CF and his father since that time.
22. The father continued to suggest that CF was being emotionally abused by the mother and raising issues in relation CF's education. CF's school was therefore asked to undertake a common assessment framework (CAF) to ensure that his needs were being met appropriately by the mother. A core assessment was undertaken. As part of the assessment, the consultant who had seen CF was spoken to, who indicated that whilst he had no major medical problems, psychological and emotional issues were creating medical problems in the form of stomach aches and loose bowel movements. Intensive support services were put in place for the family, who assisted the mother to manage CF's behaviour. At the same time, CAMHS was actively involved with CF and the mother.
23. On the 4^th February 2013, the father, now unrepresented, issued a further application seeking an enforcement order in relation to the earlier orders, a variation of residence and also an s.37 direction.
24. CF became increasingly distressed and his attendance at school dropped off to the extent that he left his school completely and started to attend a specialist education unit, the Lennox Centre to try and help him back into mainstream education.
25. An order was made on the 7^th March 2013, when a CAFCASS report was ordered which considered amongst other things whether a direction pursuant to s.37 was required. The matter came before District Judge Veysey on the 28^th March 2013, when the father agreed that CF could receive treatment and assistance from CAMHS.
26. The matter came on before District Judge Veysey for the substantive hearing of the father's applications. The father's application for residence was refused and a full residence order in relation to both children was made to the mother. The District Judge ordered that there be no contact save indirect contact between the children and the father. The District Judge removed the father's parental responsibility in relation to both children.
27. The father appealed against the order removing his parental responsibility; the mother cross-appealed in relation to the District Judge's failure as she saw it to make a further s.91(14) order.
28. The appeals came on before Her Honour Judge Black on the 9^th September 2013 and the order made by District Judge Veysey was discharged although the residence and the no contact orders were to remain in place pending a final hearing. The order directed social services to produce an s.37 report with the direction for the report to be discharged in the event that social services issued care proceedings.
29. On the 16^th October 2013, a further core assessment was filed and on the 11^th November 2013 the s.37 report was filed. Unhappily, that report was prepared without any input from the father. He was neither seen nor spoken to prior to its preparation.
30. On the 2^nd December 2013, Her Honour Judge Black quite properly finding the s37 report to be inadequate without the father having been seen, she therefore made a further order directing social services to prepare a further s.37 report. On the 10^th January 2014 the s.37 report was filed; the father had been seen and his input sought in relation to its preparation. It was accepted by the social worker in evidence that she had not read all the voluminous papers filed, (in particular by the father), although she had extensive knowledge of the case and the issues given the considerable involvement of social services with the family.
31. On the 6^th February 2014, the guardian filed her report recommending that that what had now been the status quo for some considerable period reflected the best interests of the children and therefore in relation to CF there should be a sole residence order to the mother and no direct contact with the father.
32. On the 8^th and 9^th April 2014, Her Honour Judge Black heard evidence from the parents, the guardian and the social worker and author of the s.37 report Cheryl Campbell. Ms Campbell was cross-examined about the contents of her report and the enquiries she had made during the course of its preparation. The court has available to it a transcript of her evidence. The judge had also read the trial bundle which comprised of 4 lever arch files. The trial bundle included, what by now amounted to, thirteen expert and other reports produced over a period of 4 years.
33. On the 15^th April 2014, Her Honour Judge Black delivered judgment and dismissed the father's applications for a residence order in respect of CF and for direct contact with both CF and BF. It is against these orders that the father appealed and in respect of which he has been given the limited permission as set out above.

Ground 5: s37 Children Act 1989

34. s37 CA 1989 provides as follows:

"37 Powers of court in certain family proceedings.E+W

(1)Where, in any family proceedings in which a question arises with respect to the welfare of any child, it appears to the court that it may be appropriate for a care or supervision order to be made with respect to him, the court may direct the appropriate authority to undertake an investigation of the child's circumstances.

(2)Where the court gives a direction under this section the local authority concerned shall, when undertaking the investigation, consider whether they should—

(a) apply for a care order or for a supervision order with respect to the child;

(b) provide services or assistance for the child or his family; or

(c) take any other action with respect to the child.

35. There is no dispute as to the relevant law in relation to s37 reports namely :

i) Where a judge is satisfied that the local authority has not complied with a direction under s37 or failed to conduct an investigation which met the court's concerns, the court may renew or extend its direction Re K ... Children) [2012] EWCA Civ 1549

ii) If the local authority decide not to issue proceedings, the court has no power to make a care order or a supervision order of its own initiative Nottinghamshire County Council v P [1993] 2 FLR 134

iii) Best Practice Guidance on s37)1) directions issued by the Children Act Advisory Committee before its abolition said:

(3) The purpose of a s37(1) direction is to enable the court to cause a local authority to assess whether a care or supervision order is needed. It is not to obtain a general welfare report.

36. That a s37 report has a specific purpose and is not a general welfare report is endorsed by the provisions in s41 Children Act 1989 which provide so far as is relevant:

"41 Representation of the child

(1) For the purpose of any specified proceedings, the court shall appoint an officer of the Service or a Welsh family proceedings officer for the child concerned unless satisfied that it is not necessary to do so in order to safeguard his interests.

(2)..

(3)..

(4)..

(5)..

(6) In this section "specified proceedings" means any proceedings—

(a) On an application for a care order or supervision order;

(b) In which the court has given a direction under section 37(1) and has made, or is considering whether to make, an interim care order;

37. The structure of the act therefore anticipates that hand in hand with a s37 (1) CA 1989 report will be the representation of the child in question by a children's guardian who will, (as in this case), investigate and prepare an analysis relating to welfare for the court which will make recommendations as to what orders, if any, should be made in the best interests of the children concerned.
38. It was not, and is not, acceptable that the father was not seen by the social worker in preparation for the s37 report and it is easy to understand that the father has been left with a deep distrust of it as a piece of work; further one can understand that he may well have wished the social worker, prior to reaching her conclusions, to have read all the voluminous documentation he had presented to the court setting out his side of the story and in particular his denial of domestic violence.
39. The father, as a litigant in person, albeit assisted as he is by his McKenzie friend, is however failing to understand the purpose of the report. The report's purpose was not to conduct a full welfare enquiry, although inevitably it would have a significant overlap with such an enquiry. The purpose of the s37 report was to consider only whether a care or supervision order should be made and the provision of services.
40. It is hardly surprising, given the history, that the judge felt the need for such a report and the judge rightly required a further report to be written after the father had been seen and his views factored into the decision making process. The judge having read the report concluded:

"[91] Whilst in my judgment there would have been grounds for the local authority to take proceedings in respect of CF, so far as the outcome of these proceedings would be concerned I could see no other outcome than that being achieved through these proceedings."

41. A further report was submitted once the father had been seen. The local authority had considerable knowledge of the family and had had extensive involvement with the family both in relation to BF's period in care and in helping the mother cope with CF's difficulties from 2013 onwards. The report sets out (Section 16) Identified risk and protective factors and, (Section 17) contains an analysis of the risk and protective factors in relation to each child. The Children's Services concluded that there was no cause or significant concern which would meet the threshold necessitating care proceedings and indeed noted a considerable improvement in CF's presentation in recent months.
42. The second report or addendum, (on the facts of this case it matters not what it is called), concluded that care proceedings were not required in the child's interests; a view shared by the Children's Guardian after her extensive welfare enquiries.
43. The father argues that the judge should have ordered a third report as the social worker had not read all the documentation. Cross-examination about issues referred to in the documents did not, he submitted, remedy the defect. Although the Guardian and the Judge had read all the statements and substantial exhibits, the father submitted that as the Guardian had come late to the case, there was not proper analysis of the exhibits, (although he accepted that such a criticism had not been put to the Children's Guardian in cross-examination). The judge dealt with this issue in her judgment at para[64]:

"… It is clear that the social worker when preparing her report did not read all the up-to-date statements, however it is clear from the chronology prepared that she did have a full understanding of the history and the respective parent's complaints against the other."

44. The issue on appeal is limited to a consideration of whether there was or was not a satisfactory s37 report. In my judgment the appeal must fail on this ground.
45. The first report was undoubtedly unsatisfactory, but the court properly ordered that to be put right and the second report did precisely what it had to do which was to consider whether there should be care proceedings. The task of the author of the s37 report was not thereafter to make representations as to outcome in the private law proceedings. The task of a s37 report in private law proceedings is to 'clear the decks' so that the court has an understanding of the local authority's future intentions in relation to potential public law proceedings and of what services they intend to provide for the family. Once that information has been provided, the court moves on in the private law proceedings before it to determine the welfare needs of the child/children with the assistance of the welfare report which will have been prepared by the Guardian or Cafcass officer or independent expert.
46. In the present case it was within the discretion of the judge in case managing the case, to decide whether the s37 report was adequate and having done so to move on to deal with the case as a private law dispute between the two parents.

Ground 8: Did the alleged marginalisation of the father impair the Judge from making a proper appraisal of the father's case

47. In his supplemental skeleton argument and as amplified by his McKenzie friend the father submitted that the court had been wrong to restrict his parental responsibility whilst at the same time admitting that a number of the welfare professionals had failed to take into account his views.
48. In determining whether this ground has merit there should be borne in mind the nature of the father's applications:

i) to prevent CF receiving treatment or therapy, which the father simply regarded as the mother's manipulation in order to "seek a diagnosis"

ii) for a residence order in relation to CF who had always lived with his mother and who had refused to see him for 18 months or so.

iii) for contact to BF who he hadn't seen for 4 years and who was now aged 14 refusing to see him;

49. The judge had no illusions about the mother, for example at paragraph [91] of the judgment the judge refers to the mother making "wild and sweeping statements to the court none were justified by the evidence" and that "she "seemed unable to step back and look at the whole picture and see what responsibility she might have for the difficulties". The judge further noted that Dr Kelly was clear that the mother must take her share of the blame for the difficulties the children were having.
50. The judge was aware that the father had not always been properly consulted: she said :

"[37] …..it is quite clear that he, (the father), has been marginalised not only by CAMHS but by many of the professionals involved in his children and it is fair that he criticises them for that"

51. Having factored that into the equation the judge went on:

"However his reaction by making the Prohibited Steps application was an over reaction to something that could have been achieved by other means. There appears to have been no enquiry as to why Women's Aid were being involved simply an objection by the father that this was going to happen in school time and the fact it was happening at all."

52. The judge had seen the father give evidence and at paragraph [73] she records a transient glimmer of hope:

"The father was asked to consider how CF might feel about a change of residence or being forced to see his father against his wishes. The father was unable to show any empathy or insight into how CF might deal with these matters or what impact that might have on him either emotionally or educationally. At one point there was a slight glimmer of hope in the father's evidence in that he did agree that CF's educational position was the most important at this time. He seemed for once to show some real emotion and seemed to be starting to think of how CF might be were the significant change in position that the father wished to adopt be supported by the court"

53. The judge then described how she gave the father time to consider his position and how after 10 minutes:

"the father simply got back onto his soap box and started complaining that everything had been so unfair and that he needed a section 37 report and reports in relation to alienation of CF from himself"

54. As the judge worked her way through the welfare checklist she found that both parents had caused the children emotional harm through their inability to put aside their feelings for each other in a child centred way [76]. In summarising the father's evidence the judge found:

"The father in the evidence he has given has shown that he has no understanding of his son's difficulties (or even an acceptance that he has such difficulties) and therefore it is impossible to see how his educational needs could be met in future by him. So far as his emotional needs are concerned the father has been unable to show any empathy or insight into CF's needs…. The father would be unable to support CF in receiving any therapy or in dealing with his education by the slow process which is recommended by the Lennox unit.

55. Finally in relation to the application for a Prohibited Steps Order the judge held:

"[95] the father persists in his application for a Prohibited Steps order in respect of CF receiving treatment. As discussed above the court has some sympathy with the marginalisation of the father's role in CF's life by the professionals who have been involved with him…. Equally there is some sympathy with the professionals who have been subjected to many complaints and the unrealistic position adopted by the father as to how he should exercise his parental responsibility.

56. In my judgment Ground 8 too must be dismissed. The judge was well aware that the father had to some extent been marginalised by some of the professionals and it is clear that she factored it into her assessment of his case. Her decision and the consequent order made turned however on his own presentation and the case he presented during the course of the trial. Having seen and heard the father and the way he put his case she was perfectly well placed, notwithstanding any 'marginalisation' of him by professionals from time to time, to make a proper appraisal of his case.

Other Grounds

57. The balance of the grounds in relation to which permission is sought relate to the father's general dissatisfaction with the way the judge ran the case, her evaluation of the evidence and the outcome. These are largely 'make weight' grounds which add nothing to the key issues discussed above and have no real prospect of succeeding on appeal and accordingly permission to appeal is refused.

Lord Justice Ryder:

58. I agree.

Lord Justice Tomlinson:

59. I also agree.