England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SWINDON COMBINED COURT
(HER HONOUR JUDGE MARSHALL)

		Royal Courts of Justice Strand London WC2A 2LL
		6 October 2015

1. LORD JUSTICE McFARLANE: This is an appeal against the determination made by Her Honour Judge Marshall on 17 March 2015 in a further hearing in relation to children born to a family who separated as long ago as 2004. There have been ongoing proceedings about the two children of the relationship between their mother and father for many years, and a third child born to the mother after the separation, a girl, M, born in April 2007 and now aged eight, has been drawn into the process.
2. Before focussing on the issue that concerned Judge Marshall in March of this year, it may be helpful to set something of the background. The two older children are a girl, A, born in August 2000, therefore now 15, and a boy, R, born in January 2002, therefore now 13. It is the case as found established by the judge on earlier occasions that unfortunately, following the birth of the first child, the mother's mental stability became out of balance and that for a period at least at that time she was less than fully emotionally and mentally well.
3. The relationship between the couple did not survive and separation finally took place after a turbulent period in 2004. The separation was achieved with the mother and the two children going to live with her, but fortunately contact, which developed into relatively ordinary and unremarkable contact to the father took place after initial proceedings were before the court.
4. As I have indicated, M was born to the mother as a result of another relationship she had by then formed in 2007. M's father is a Mr JP, and he has played no part as I understand it in any of the proceedings about M that have subsequently been before the court.
5. The next significant event is that the father, as I shall call him, Mr McC, married his new partner in January 2011, and either coincidentally or in a way that was more connected, contact between the father and the children, A and R, was seen to deteriorate from around that time, and indeed contact to him stopped in 2011. He issued private law proceedings before the local court, but within those proceedings he came to express growing concern as to the way in which the children, all three of them, were being cared for by their mother in the family home. Being more precise, as a result of what the children said from time to time, there was concern that they had been given substances, pharmaceuticals, that were not prescribed for them.
6. The Local Authority became involved. A care application was issued and the case came on for a full fact finding hearing before Her Honour Judge Marshall. She gave judgment at the end of a lengthy process involving expert evidence on 26 April 2013. In short terms, the judge was driven to the conclusion that all three children had been given pharmaceuticals, prescribed for the mother by her doctor, by the mother; in relation to the older two children on relatively few occasions, but in relation to young M more frequently.
7. The judge also found that the case was complicated by the very dictatorial and bombastic personality of the father. She was not optimistic, it would seem, at that time that the children could be placed with the paternal family. Certainly her conclusion as to the risk to the children in the mother's care was that they could not be placed with her.
8. Matters progressed. Assessments were made and, contrary to the view I have just described, all three children, including M, who is obviously not "the father's" child, moved to live with him and his wife on 20 December 2013, and they have remained in the care of that couple since that time. The mother was having contact to them, and the issue before the judge when the case came on for what was no doubt hoped to be a final hearing was to determine the orders that were to be made for the children's long term care, and also the contact for the mother to the children. However, the options before the judge were relatively narrow. The judge had at an earlier hearing indicated that she could not contemplate returning any of the three children to the mother's care because of the findings that she had made, and also, unfortunately, by that time the two older children, effectively both teenagers, were firmly saying that they did not wish to have any direct contact with their mother. The placement with the father and his new wife was described in positive terms, and so the issues were what sort of order should be placed around that placement and what the level of contact should be.
9. In the event, the judge made a child arrangements order providing for the three children to live with the father and his wife, and she made a supervision order to the Local Authority for 12 months. The primary purpose of the supervision order was to monitor, encourage and if necessary police the highly negative relationship between the mother and father, and, within that, encourage contact. The judge expressed the hope that contact between young M and the mother would continue at the rate of one session per week, but she delegated some authority to the Local Authority to vary that if circumstances changed.
10. I should indicate that the mother's response to the fact finding determinations was that she did not accept them. She has never accepted the judge's findings against her. She sought permission to appeal those findings but permission to appeal was refused and thus the Family Court, and indeed this court, has to work on the basis that those findings are indeed a true reflection of what took place while the children were in the mother's care.
11. The welfare judgment was given by Judge Marshall on 11 March 2014. Despite the judge's expectation in that judgment that contact to M would continue, contact was in fact stopped by the father on 12 June 2014, and the mother therefore a month later applied, she says on the advice of the Local Authority, back to the Family Court at Swindon to enforce the contact orders. It was in part the mother's application to enforce contact that came on for final hearing before Judge Marshall on 17 March 2015. Of course that date was almost precisely the first anniversary of the making of the supervision order, which had been made for 12 months, and so an open question was whether or not the supervision order should be extended.
12. The position of the father was that he did not welcome continued involvement in the children's lives and in his life of the Local Authority under the supervision order. Initially the Local Authority had indicated that they were not going to apply to extend the supervision order, but in the week or so before the hearing they seem to have changed their position and indicated that they were going to apply for a further 12 month supervision order, in order to meet the aims that I have described that the original order was targeted at.
13. The mother's position was that she was very concerned about the welfare of all three children in the care of the father, and she favoured a higher level of intervention by the Local Authority. She sought to persuade the judge at the hearing in March 2015 that the judge should require the Local Authority to apply for a care order and the judge should make interim care orders at that stage. As a matter of law, that was not a course that was open to the judge, the judge having concluded that the evidence about the welfare of the three children in the father's care did not get to the circumstances that would justify making a direction to the Local Authority under section 37 of the Children Act 1989.
14. Thus the issues that fell to be determined in March 2015 were relatively narrow. They were whether the supervision order should be extended or not and what the contact arrangements for M to the mother should be. As I have indicated, the contact had stopped the previous June. At some stage, I think in the autumn of 2014, contact restarted, largely, as I understand it, through the endeavours of the children's guardian, who acted for the children in the proceedings, and it had been taking place for three or four months before the hearing at the rate of once a fortnight. The position of the parties before the judge was that the father, the Local Authority and the guardian favoured contact between the mother and M continuing at that rate of once a fortnight, whereas the mother wished it to be reinstated at the earlier rhythm of once a week.
15. Thus it was that the case was constituted on the morning of 17 March. Prior to the case being called on, the parties had assembled at court. The mother had in recent days achieved legal aid funding and had the services of a family law specialist junior barrister to represent her. The father was acting in person. He attended court. It seems that he had had some discussion with the advocates for the Local Authority and the guardian, and there then came a time when the mother's barrister joined those individuals, including the father, for what might loosely be called an advocates' meeting. It is plain that whatever took place during that meeting, it ended abruptly, with the father indicating that he was not going to remain at court, and leaving. There is some dispute as to precisely what took place and why he took that course, but the end result was that he was no longer present to take part in the process. That meant he was not able to put forward his case orally before the judge, but also, obviously, he was not able to be questioned in the witness box about any evidence that he had to give.
16. The case was called on. Judge Marshall was told that the father was not present and she records what she was told at paragraph 19 of her judgment in these terms:

"Mr M [the father], I am told, did attend court this morning, as he has attended most of the hearings previously, but it seems that he left. He expressed a view that he was finding the situation stressful. He said he had been advised to seek assistance from his GP and remove him from such situations. I am also told that it is likely that he objected to these issues being reopened, matters which he considered keep arising and have not yet been put to bed."

The judge then summarises the father's position as she understood it to be, both from what he had put in writing to the court and also from what she was told he had said at court that morning, and I have already summarised that, but the judge says this about the source of her information at paragraph 21:

"He and his partner have provided a statement to the court in line with my directions, which I have read and take into account. However, he has not made himself available to answer any questions."

17. The hearing had been preceded by a number of case management and directions hearings conducted by the judge. She was very familiar with this case and she was plainly familiar with the potential for both sides to range very widely and in detailed terms over all aspects of the history of the case, both ancient and modern. The judge had directed at earlier occasions that statements put into the court should be limited, and the most recent direction that operated for the hearing that occurred in March 2015 was that each of the two main parties, the mother and the father, should limit their written statements to six sides of A4 and that there would be no permission for any party to file any exhibits. Thus it was that the parents by and large sought to abide by that direction. In the mother's case, she filed a statement which runs to some 11 sides of A4. It is in very small, closely typed print, and contains a wealth of detail, commenting upon material put in by the other parties and making her own observations about the relevant circumstances at that time in early 2015.
18. Notwithstanding the father's absence, the judge heard the applications and heard oral evidence from the social worker, the mother, and the children's guardian. In the event the judge, having indicated that she considered she had no jurisdiction to accede to the mother's application for a more interventionist order, a care order to the Local Authority, extended the supervision order by a further 12 months, that being effectively the fallback position of the mother, and secondly, insofar as contact with M is concerned, she accepted the submissions made by the Local Authority and the guardian that it should be for the time being at the rate of once a fortnight, not once a week as the mother sought.
19. The mother's notice of application for permission to appeal was promptly filed on 14 April 2015 and the proposed grounds of appeal range very widely. At a hearing before me on 18 June, I refused permission to appeal on all grounds save for two. Those were first of all a criticism that the judge had case managed the case so as to limit the written material that was put in in the way I have described, the submission being made that that led to the mother's case not being fully put before the court and that that circumstance amounted to a breach of the mother's rights to a fair trial.
20. The second area of criticism that I gave permission for as a ground of appeal was the assertion that the judge was wrong to proceed with the hearing in the absence of the father, and as a result the mother was unable to test his evidence in cross-examination and the judge was wrong to rely upon anything that the father had said. I thought that either or both of those grounds of appeal were sufficiently made out on the material that was then available to me to establish a reasonable prospect of success on appeal.
21. The full appeal has been heard this morning by my Lady, my Lord and I, with the benefit of far more detail in terms of paperwork and obviously the ability to look at that in more detail. We have, for example, the fact finding judgment of the judge and the subsequent welfare determination made by her in April 2014. We have more focussed submissions put in at my request by the mother and her McKenzie friend, who is also her partner. We have clear submissions put in by the father and his wife, and we have short, helpful submissions by counsel, Miss Ephgrave on behalf of the Local Authority and Mr Moradifar on behalf of the guardian.
22. In addition, the court is grateful to Miss Sarah Phillimore, counsel who represented the mother on 17 March before the judge. Miss Phillimore has provided the court with a very detailed memorandum of her encounter with the father in the period before he left the court building. In short terms, she describes explaining to the father the case that she was intending to put for the mother in the hearing when they came in before the judge, and explaining to him in particular that she intended to refer to and question him about one, or it may be two, printouts of entries made either on a blog connected with the Today programme or upon Facebook. Miss Phillimore's account is that at that stage the father indicated that he was not prepared to stay any longer, and that his health made it necessary for him to leave the building.
23. We have heard full argument by Mr O, the mother's McKenzie friend, during the course of this morning, and that has been supplemented from time to time by observations made by the mother. I therefore propose now to focus in on the two matters for which permission to appeal was given. First of all, the judge's case management decision to limit the statements to no more than six sides and to prohibit any exhibits. The points made are short. They are backed up with detailed examples given by Mr O. The first short point is that it was not possible for the mother in the compass of the document filed to make the various points that she wished to make, give factual evidence that she wished to put before the judge on these points, and that simply she was not able to put her case.
24. So far as exhibits are concerned, the main point made is this: the mother's case is that in the period before contact was initially stopped, that is up until June 2014, she had been having good contact with young M, all the reports of contact were positive, and M was behaving as any seven or eight year-old child would do in such circumstances. The mother's case was that once the contact restarted in the autumn, M approached her in a different way. The mother says that at times M's behaviour was more like that of an adult and indicated that she might have been influenced by adults or her older siblings in her approach to her mother, and that there was a coolness, a distance, a difference, in the relationship between mother and child. The point being made in the context of exhibits is that without being able to point to the contact records, it was not possible for the mother to demonstrate the "before and after" point that she sought to make.
25. Secondly, there were the Facebook entries that could not be exhibited. Thirdly, and these are only some examples that Mr O raises, there are no doubt other matters, there were medical notes or letters that the mother by then had seen, which indicated that the diagnosis as to the behaviour of one of the older children might fall to be revised, and that that might have an impact upon that child's behaviour towards M and have a knock on effect in terms of M's approach to her mother in contact.
26. Dealing with those points shortly, for my part I simply cannot understand how the 11 closely worded and compact pages of the mother's statement can be said to have been an embargo on her ability to put her whole case. She was given a clean sheet, as it were, at the start of the process of writing that statement to make the points she sought to make, and the points that I have just referred to, for example, the "before and after" contact point, M's behaviour before the cessation of contact and after, simply does not feature in these 11 pages. The suggestion that there was now a need to reevaluate the personality or emotional and mental health of the older children is not made out either; there is simply a reference to the fact that the diagnosis might need to be looked at again.
27. So far as the mother's contact with M is concerned, the statement does refer to that contact, but it is in the context of the mother simply setting out her response to what the social worker has said about these matters in the course of his statement. The mother does not make the major point that is now made to us that I have described, save at page 9 of her statement, in reply to paragraph 15 of one of the social worker statements she says this:

"My behaviour with M is very good and contact is only affected by the M sometimes attends and how she is being influenced. I cannot control that. However, I am able to deal with M appropriately, using distraction techniques."

28. More significantly, during the course of submissions my Lady, Lady Justice Macur, asked whether the mother had been able to set out her stall, as it were, on this point in the course of her oral evidence, and the mother told us that she had told the judge that this was the point she wished to make. It is correct that the contact records were not available at the court hearing, but one might think the judge hearing firsthand from one of the two adults in the contact room, namely the mother, was if anything a better option in terms of receiving evidence on this point. The point, therefore, about the judge limiting the statements seems to me just not to get off the ground.
29. Mr O is not able to show an inability on the part of the mother to set out her case to the judge. She was able to do that. She made detailed points. There may be different points that she now wishes to make, but the judge had to decide the case on the way the evidence was put before her. More importantly -- and we do not have transcripts of the mother's oral evidence -- it is plain that this was a full hearing and the judge heard the mother's account directly from the witness box. For that matter, the mother was able to give her account without being cross-examined with any contrary view put forward on behalf of the father.
30. So for my part, I would not allow the appeal in relation to the judge's case management decisions. Going further, it does seem to me in circumstances such as these, where litigants in person have, perhaps understandably, a habit of ranging far and wide on issues, the judge has a duty to seek to assist the litigants to focus the issues in the case on the current welfare topics relating to the child that fall for determination. At the end of the day, this was a narrow issue as to whether contact should be once a week or once a fortnight. The judge's approach in limiting the material to be put before the court is therefore one in which I consider she was acting in an entirely proportionate manner. Equally, there is no suggestion before this court that Miss Phillimore, counsel for the mother at the hearing, made any targeted application for leave to put in any particular document or documents in support of the mother's case, and so the judge again simply dealt with the case on the way it was put before her.
31. I turn, therefore, to the second matter, which is the decision of the judge to proceed in the absence of the father. Mr O is able, in the course of the written skeleton argument that he has put in and in the course of his oral submissions to us today, to list a whole range of topics that the father might have been cross-examined upon had he chosen to stay at the hearing and enter the witness box. They range widely over the history of the case and are part of a core theme of the mother's analysis of how the circumstances with respect to her three children have come to be the way they are, which is that the father manipulates and controls matters and influences the children in order to reduce and then eradicate any effective relationship she might have with them.
32. That is, as it were, an old theme in this case. It was part of the evidence before Judge Marshall at both of the earlier two hearings. The approach of the judge is the focus that we must have in this court, and that approach really falls to be looked at in two ways: first of all, her decision to press on in any event and hear the issues in the absence of the father; and secondly, her approach to any evidence he had put in in the course of her analysis of the issues.
33. The Family Procedure Rules rule 27.4(3) provides that:

"Where, at the time and place appointed for a hearing or directions appointment, the applicant appears but one or more of the respondents do not, the court may proceed with the hearing or the appointment."

Mr O accepts that the judge had a discretion to proceed. His submission is that it was outside her discretion to proceed in this case because it was plainly wrong to do so. That is an adventurous submission to make in a family case with a judge who knows the issues and the parties very well.

34. A further matter of note to my mind is that there is no indication in the judge's judgment, or indeed any other document we have seen, that counsel Miss Phillimore made an express application for an adjournment in the circumstances of the father's unexpected departure from the court building. We are told by Mr O on the instructions of the mother, who was in the courtroom, that counsel did make such an application, it was refused and the judge did not give any reasons. That would be an unusual circumstance, and what is also unusual, if that is the case, is the fact that the judge does not mention the request for an adjournment in her judgment. Certainly if a judge had refused an adjournment and unusually not given any reasons at that moment in the hearing, one would have expected her to refer to it in the judgment itself.
35. Be that as it may, the judge, it seems to me, was entitled to proceed with this hearing on this day, because of the wealth of knowledge she had of the case and of the personality of the father who was absent, and, because the issue was a narrow one and because the issue was pressing, there needed to be some end of the process and a clarification as to what the contact arrangement was going to be for young M in the weeks and months to come. It is unlikely, on my reading of the papers now that we can see them in full, that there would have been much further light shone on the issues in the case had the father been subject to cross-examination despite the heat that would undoubtedly have been generated by that process. But the judge's decision to proceed in my view is unchallengeable in that it was within her discretion.
36. So the remaining point is what weight the judge gave to any evidence that the father had put before the court. It is minimal. She refers to the father's contribution on paper, as I have already described, in paragraph 21 of her judgment. She simply says, "I have read and take into account" the statement that he has put in. But this was not a fact finding hearing, it was a hearing at which the judge was going to exercise her discretion, and she had a wealth of information about the past history and she had the firsthand oral evidence of the mother.
37. So far as weight is concerned, in this case, the judge seems to have attributed the greatest weight to the professional views that she had that came to her via the Local Authority and the children's guardian. The question of whether or not contact was once a fortnight or once a week was not a question that was capable of a clinically right or wrong answer. It was a classic determination in a Family Court, attributing the child's welfare paramount position in the process of analysis. Here the judge decided to back the arrangement that had been in place for a few months in the hope that it would be seed corn for something that would be developing further, rather than moving on at a pace which was faster than she was being advised was correct by the Local Authority and the children's guardian, and, for that matter, the father.
38. In that regard it is an unremarkable decision, of a type taken by circuit judges, district judges and justices at all levels of the Family Court. I cannot see that the judge was in error at all in the way in which she brokered in the contribution that the father had made on paper to that deliberation. She seems not to have given it very much weight at all, her focus being as I have described.
39. It is therefore my view, having now looked at this matter in detail, that neither of the two points that initially concerned me when I granted permission to appeal, on consideration, actually get anywhere. I consider that the judge conducted a perfectly proper and fair process here, and I would therefore dismiss the appeal on both grounds and take no action therefore in relation to the orders made by the judge.
40. LADY JUSTICE MACUR: I agree.
41. LORD JUSTICE VOS: I also agree.