England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Chelmsford County Court
His Honour Judge Holt
BO11P01235

		Royal Courts of Justice Strand, London, WC2A 2LL
		11/12/2014

Lady Justice King :

1. This appeal arises out of private law proceedings in relation to two children AK, a girl, born in June 2006, now aged 8 years old and PK her sister, born January 2008 and therefore 6 years old. The children's parents, M and F are both from Punjabi families and were married by arrangement in 2003. The parties separated on the 30^th March 2011 when, with the assistance of the police, the mother left the family home together with the children.
2. The mother obtained a residence order in her favour on the 21^st September 2011. It was not until 14^th May 2012 that the father applied for contact, which proceedings were consolidated with an earlier contact application made by the paternal grandfather. A finding of fact hearing was heard over three days at Chelmsford County Court before His Honour Judge Holt, leading to a judgment on the 19^th October 2012.
3. Conventional orders were thereafter made for the preparation of a CAFCASS report in the light of the fact finding hearing to assist the court in determining the applications for contact. The report was prepared by Ms Tina Ruffles and is dated the 20^th February 2013. Unfortunately, due to Ms Ruffles suffering bereavement and subsequently leaving CAFCASS there followed a significant delay during which a new CAFCASS officer Ms Ogo Williams was asked to report. The final hearing of the paternal grandfather and father's applications for direct contact to the children was not heard until the 21^st January 2014, 15 months after the finding of fact hearing, by which time, the children had not seen their father or grandfather for three years.
4. HHJ Holt dismissed the paternal grandfather and father's applications for direct contact to the children but directed that there should be indirect contact to be facilitated by a third party and ordered the mother to provide the father a redacted school report and a photograph of the children each year. The judge continued a non-molestation order dated 21^st October 2011, varying it to allow the indirect contact.
5. It is against the order dismissing his application for direct contact that the father now appeals.

The Grounds of Appeal

6. The father seeks to appeal the order of HHJ Holt on five grounds, which can be summarised as follows:

a) The judge had already made up his mind before any evidence had been heard from the CAFCASS officer.

b) The law requires a court to consider all available alternatives before ordering no contact and only to do so as a last resort. The judge rejected the recommendation of the CAFCASS officer without good reason.

c) The judge had erred in finding that there is "serious risk of harm to the mother if her whereabouts became known to the father", there was no evidence of ongoing threat other than generalised references to honour based violence that had never been the subject of any real risk assessment or finding.

d) The judge was wrong to rely on the untested evidence of Tina Ruffles rather than follow the recommendation of the present CAFCASS officer.

e) The judge was plainly wrong in making a finding of fact that there was a "serious risk to the children of kidnap if their whereabouts were known".

7. On 1 July 2014 McFarlane LJ gave permission to appeal with 'hesitation' deciding that the issues raised by Mr Peat, counsel for the father, in oral argument were on balance arguable and therefore had a real prospect of success in that context.

Background

8. The background is set out in the judge's finding of fact judgment of October 2012. Those findings are not the subject of this appeal and properly informed the decision the judge made in relation to future contact between the girls and their paternal family.
9. At the conclusion of the finding of fact hearing the judge summarised his assessment of the family with which he was dealing; he described the mother and father as products of their cultural background. Fundamental to their lives, he said, were the traditional roles of the husband and wife, with the husband as the head of the family, and, (as the judge found), with the expectation by the father that the mother would submit to him in all matters. In addition there was a strong belief within the family of the importance of the honour of the family, and of a sense of shame if that honour was besmirched.
10. The judge set out in his fact finding judgment details of a so called "honour killing" that had taken place within the family of the mother. In 1984 the mother's cousin had left her husband having been the victim of domestic violence. When the police took the cousin back to the matrimonial home to collect some personal belongings, she was stabbed to death by her husband in front of the police. It was said that she had brought shame upon the family by her actions in leaving her husband. The judge found that not only did this piece of tragic family history put the mother in genuine fear that she would suffer a similar fate, but also that the husband knew of the murder and used it as a means of controlling his wife.
11. The judge's assessment of the father's attitude to, and behaviour towards, the mother was that:

"8 I am quite satisfied that the mother has told me the truth. From the start, the father was controlling of the mother's behaviour. He expected her to be a servant and to provide with him with babies. He continually ran her down. He reinforced his commands by reminding her of what happened to her cousin. She sought help from her family. But they too were ingrained in the culture and did not want the shame of a failed marriage. They told her to compromise which in fact meant she was meant to submit".

12. Those representing the mother had set out in a Scott schedule the findings of fact which they sought. The judge, in accepting the mother's case, found each of them to be made out. The findings cover a period of three years, and paint a picture not only of the mother being denigrated and humiliated by the father and the paternal grandmother, but also of incidents of physical and sexual abuse by the father upon the mother. The most serious of the findings made by the judge was that the father not only taunted the mother with the death of her cousin, but that he had also threatened to kill her.
13. Matters came to a head when the mother had an opportunity to do some voluntary work at the children's school. The father forbade it and kept her a prisoner in the house for a period in March 2011. The mother managed to make contact with her family who refused to help her and so, in desperation, she wrote for help to a teacher at the children's school. The judge found that:

"These are truthful letters written by a very frightened and desperate woman, in part seeking help, but equally written in the belief that she is likely to be killed, and these letters will record why."

It was these letters that led to police intervention.

14. The teacher contacted the police and the mother and children left the family home with their help. In the light of the serious concerns for the safety of the mother and the children that these events raised, a core assessment of risk was carried out by social services which incorporated a police convened multi-agency risk assessment conference (MARAC). Each assessment concluded that the mother was at high risk of being the victim of an honour based killing.
15. In due course, the father and paternal grandmother were charged with false imprisonment and remanded in custody between March and September 2011. At their trial at Snaresbrook Crown Court, when she was part of the way through her evidence, the mother felt unable to continue, accordingly the trial was halted and the judge dismissed the case. The father subsequently told Ms Ruffles, the CAFCASS officer, that dishonour had not been brought on him by the proceedings, as he was acquitted, but that the mother had brought dishonour on her family. The judge, within the private law proceedings having heard and seen both parties give evidence, was quite satisfied that, not withstanding that the criminal trial had been aborted, the mother had been held by the father in the matrimonial home against her will.
16. It was against the backdrop of these serious findings that the judge dealt with the issues of contact in January 2014.

The Contact hearing

17. The early determination of the contact application was derailed and considerable delay caused as a consequence of difficulties with CAFCASS. The initial CAFCASS report, provided by Ms Ruffles, was a lengthy document prepared with the benefit of a long meeting with the two girls, who had felt able to "open up to her". The report made it clear that neither the father nor the grandfather accepted any of the findings made by the judge in October 2012 and, after lengthy analysis of risk, she concluded that she could not see how contact between the children and their father could be managed in such a way as to ensure that the mother remained safe.
18. The judge was clearly impressed with the depth of the analysis of risk and the quality of the report prepared by Ms Ruffles. Ms Williams, Ms Ruffles' replacement, wrote to the court following her appointment, saying that she had met and interviewed the parties and the children and that she would be attending court to answer questions at the intended final hearing on the 17^th October 2013. All involved in the case understood her views to coincide with those of Ms Ruffles. It was therefore to everyone's considerable surprise and consternation that she arrived at the hearing on 4^th December indicating that, contrary to Ms Ruffle's views, she was recommending that direct contact take place; she had not reduced her recommendation or reasons to writing. The judge therefore adjourned the matter to the 21^st January 2014, in order for her to produce a report. The judge found the report she thereafter produced to be "cursory" and based on a twenty minute interview with the children when she "got very little out of them".
19. Ms Williams had, for the purposes of her own analysis, adopted the detailed and lengthy risk assessment contained in Ms Ruffles report. Having done so, she thereafter substituted her own view as to whether there should be direct contact. Her report is short; her analysis is contained within two paragraphs. Her seeming lack of understanding of the seriousness of the findings made by the judge are reflected in her observation that "it is not in the children's best interests to solely focus on the mother's needs and allow this to impede on the possible relationship the children could build with their father". Ms Williams went on to make the surprising suggestion, (given the findings made), that the mother would be an appropriate person to supervise her proposed introductory telephone contact.
20. The report recommended telephone contact thereafter to move to supervised contact. Ms Williams did not address the issue of the practical problem which arose due to the fact that the children do not speak Punjabi and the father does not speak English.
21. A grave risk identified by Ms Ruffles in her report had been that the children would inadvertently provide information to the father, which would enable them and their mother to be located. Notwithstanding this identified risk, Ms Williams, having recorded in her report that the father showed little insight into issues of domestic violence and wholly denied all the findings made by the judge at the earlier hearing, nevertheless proposed that the risk of the father discovering the whereabouts of the mother and children through the children could be addressed by the father giving undertakings to the court that he would not seek information as to the whereabouts of the mother and children.
22. The judge was clearly dissatisfied with the work done by Ms Williams and summed up his views as follows:

"7… I think it would be fair to describe her report as cursory and containing shortcomings. As far as her recommendation is concerned, it became increasingly clear to me that she regarded the problem as the mother's fear but did not analyse whether that fear was genuinely based as opposed to genuinely held. She took it that was genuinely held but appears to have ignored the evidence that was genuinely based. As it was only a fear, she took the view that the fear could be managed and in time could dissipate. When I pointed out there was a genuine risk of harm to the mother and the children, she was not able to help as to how that risk could be managed at the same time as there being contact. I have to say that Tina Ruffles gave me a great deal of assistance. Ms Williams gave me very little".

23. The judge had been presented with what might be regarded to all intents and purposes, as "the standard" formula for the reintroduction of contact as between and a parent and child where there had been a long break. The judge's sense of frustration at what he obviously regarded as a simplistic and inappropriate approach to a serious case with important cultural issues is evident from his judgment.
24. The father's attack on the judge's treatment of the CAFCASS evidence can be summarised as follows; the judge rejected the recommendation of the CAFCASS officer without good reason, he had made up his mind prior to hearing the evidence of the CAFCASS officer who gave evidence in her role as the court expert on the welfare of the children, and further, that the judge had been in breach of the father's Article 6 rights in relying on the untested evidence of Ms Ruffles as opposed to that of Ms Williams.
25. I do not accept that the judge was wrong in his treatment of, and approach to, the CAFCASS evidence. Ms Williams had, in effect, incorporated the risk analysis of Ms Ruffles into her report. Thereafter despite having had limited engagement with the parties, she substituted what in a case with less serious findings would be the orthodox structure for the gradual reintroduction of direct contact as between parent and child. The judge, as he was entitled to, disagreed with her recommendation and expressed his view for doing so, albeit in short and somewhat trenchant terms.
26. Having dealt with the CAFCASS evidence the judge considered the law. He set out the essential principles found in Re W [2012] EWCA Civ 999, which are applicable in a case where it is contemplated that there should be no direct contact between parent and child. The judge thereafter moved on to make his findings before saying that those findings "lead me to conclude, and I believe cogently, that exceptionally, there should be no contact of a direct nature".
27. Mr Peat submits that the judgment is fatally flawed in not having explicitly and in detail conducted a balancing exercise setting out the potential benefits to children of contact taking place. He further submits that the judge's reasoning is one sided, dominated by negative considerations of risk based upon what he submits are "unsustainable facts".
28. There are a number of threads to this ground of appeal:
29. First: In the paragraphs immediately preceding his conclusion, the learned judge set out the principles he had to bear in mind and the matters which must always form part of the balancing exercise which included the following passage from [39] & [42] of the judgment in Re W:

[39]The second principle, that it is almost always in the interests of the child to have contact with the parent with whom the child is not living, has been approached by judges, both before and since the decision in Re O, as requiring the presence of "cogent reasons" for departing from that general principle. A classic statement of the need for cogent reasons appears, for example, in the short judgment of Waite LJ, from which Sir Thomas Bingham MR expressly quoted, in the case of Re D (A Minor)(Contact: Mother's Hostility) [1993] 2 FLR 1. Waite LJ said "the judge properly directed himself by asking whether there were any cogent reasons why this child should, exceptionally, be denied the opportunity of access to his natural father."

[42] In Re C (A Child) (Suspension of Contact) [2011] EWCA Civ 521, [2011] 2 FLR 912 Munby LJ summarised the relevant ECHR case law as follows:"

"a) Contact between parent and child is a fundamental element of family life and is almost always in the interests of the child.

b) Contact between parent and child is to be terminated only in exceptional circumstances, where there are cogent reasons for doing so and when there is no alternative. Contact is to be terminated only if it will be detrimental to the child's welfare.

c) There is a positive obligation on the State, and therefore on the judge, to take measures to maintain and to reconstitute the relationship between parent and child, in short, to maintain or restore contact. The judge has a positive duty to attempt to promote contact. The judge must grapple with all the available alternatives before abandoning hope of achieving some contact. He must be careful not to come to a premature decision, for contact is to be stopped only as a last resort and only once it has become clear that the child will not benefit from continuing the attempt.

In my judgment having set out the test in the paragraph before immediately before that in which he reached his conclusions, it is implicit that this very experienced judge had to the forefront of his mind all the factors to be balanced, the one against the other; he specifically couched his decision in terms of 'cogent" in relation to the facts, and 'exceptional' in relation to the decision he was reaching in refusing direct contact saying:

"Those acts lead me to conclude, and I believe cogently, that, exceptionally there should be no contact of a direct nature. I remind myself of para 70 of Tina Ruffles report where she states:

30. It was agreed by Mr Peat that the issue of risk was the overriding issue in the case. Given the findings made at the finding of fact hearing, (behind which the father cannot go despite a number of pejorative comments made about the judgment by Mr Peat), it was inevitable that the hearing would focus on the issue of risk balanced against the backdrop of the importance of contact and the exceptionality of the order sought.
31. Secondly: the judge said at [9] that the global findings leading him to dismiss the father's application were:

i) That there is a serious risk of harm to the mother if her whereabouts became known to the father.

ii) Secondly, there is a serious risk to the children of kidnap if their whereabouts became known to the father.

iii) There is a serious risk that if direct contact of any sort takes place, the girls because they are so young, will leak information as to their whereabouts.

32. The first and third of those findings, which really link in to one another, were ones that the judge was clearly able to make in the light of the original findings of fact hearing and his assessment of the father having seen him give evidence in the finding of fact hearings.
33. Whilst there were considerable concerns as to the safety of the mother and children in the event that the father found them, a finding that the children were at risk of kidnap if their whereabouts became known to the father, was not a finding made in the finding of fact hearing or specifically dealt with within either judgment. The question therefore is whether the erroneous inclusion of such a finding by the judge, is fatal to his judgment and conclusions as a whole.
34. In order to determine the effect of this error, it is necessary to consider what is left, that is to say:

i) The nature and seriousness of the findings which the judge had been entitled to, and did make and;

ii) The assessment of risk contained in the report of Ms Ruffles and adopted by Ms Williams.

35. The findings are as set out and are extremely serious, including as they do false imprisonment and threats to kill, findings which need to be considered against the background of the mother's own family's refusal to support her for reasons of the family's "honour".
36. It is important to note that the risk assessment carried out by CAFCASS did not rely on the erroneous finding of a risk of kidnapping in concluding that direct contact could not be safely managed. Further, Ms Williams in oral evidence, whilst withdrawing her proposal that the mother should supervise telephone contact, was unable to make any practical suggestions as to how the security of the mother and children could adequately be provided for in the context of direct contact.
37. It was undoubtedly a significant and unfortunate error on the part of the judge to have made a specific finding that the children are at risk of being kidnapped if their whereabouts become known to the father. In my judgment, that 'finding' was not a decisive factor providing a tipping point which would have led the court, once it had conducted the appropriate balancing exercise, to a conclusion which it would not, or could not, otherwise have reached.
38. In my judgment:

i) the combination of the findings made in October 2012, which led to the two properly articulated findings of risk at paragraph [9] of the judge's judgment (but excluding the risk of kidnapping), and

ii) the risk assessment including, as it did the father's lack of understanding about domestic violence and vehement denial of the judge's findings

led inexorably to the conclusion reached by the judge that the welfare of the children demanded that they should have only indirect contact with their father notwithstanding the exceptional nature of such an order .

I would accordingly dismiss the appeal.

Lord Justice Tomlinson:

39. I agree.

Lord Justice Moore-Bick:

40. I also agree.