England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY COURT SITTING AT BIRMINGHAM
HHJ HINDLEY QC
FD14P01058

		Royal Courts of Justice Strand, London, WC2A 2LL
		27/05/2016

Mr Justice Keehan :

Introduction

1. This is an appeal by the father, AB, against the decision of HHJ Hindley QC on 22 December 2015 to make a child arrangements order in favour of the mother in respect of their son, S, who was born on 9 July 2012 and is 3 years 10 months of age.
2. The mother opposes this appeal.
3. HHJ Hindley QC refused the father permission to appeal on 22 December but granted a stay of the order until 25 January 2016 to enable the father to lodge an appeal and to seek a stay from this court.
4. On 19 February 2016 Baker J granted the father permission to appeal. On 16 March 2016 King LJ refused to grant a further stay of the order of 22 December 2015 on the understanding that S had moved to live with the mother which subsequently turned out not in fact, to be the case.
5. On 5 April 2016 HHJ Hindley QC heard the mother's application to enforce the order of 22 December. There then followed a number of further hearings in the light of recent developments in the case. These culminated in a hearing on 12 May when the judge further adjourned the mother's application for enforcement to await the outcome of this appeal. Pending the same, provision was made for S to spend time with his mother.

The Background

6. The parents began a relationship in May 2011. S was born in July 2012. The parents married in May 2013 but separated in November 2013. It is agreed that prior thereto the family enjoyed a holiday in Malta in August 2013. What then occurred is a matter of dispute between the parties. The father contends the mother abducted the child to Malta in November 2013. The mother contends there was an agreed plan for the family to relocate to Malta which was ultimately frustrated by the father losing his job before the mother, S and her 14 year old son from a previous relationship, T, had travelled to Malta.
7. Suffice to say, the father on his return to the UK in October 2013 made an application pursuant to the Hague Convention 1980 for S's return to this jurisdiction. On 18 September 2014 the Maltese Court found the mother had abducted the child to Malta and ordered his immediate return to this country. The mother failed to return S and the father effected the return on 3 October 2014.
8. On 28 October 2014 the mother made applications for a child arrangements order and for permission to remove S permanently to Malta (the latter application was subsequently abandoned by the mother).
9. On 1 December 2014 the father's application to make S a ward of court was issued.
10. In May 2015 the mother made an application to enforce the order for her to spend time with S made on 15 January 2015. The father was found to have been preventing contact because he believed a man, EF, was living with the mother.
11. The final hearing before HHJ Hindley QC commenced on 17 November 2015 and over the course of five days the judge heard evidence from no less than 15 witnesses, including the mother, the father and Mr Webb, the CAFCASS Officer, although the father contended in oral submissions that fewer witnesses were called at the hearing.

The Law

12. When determining an application for a child arrangements order the welfare best interests of the child are the court's paramount consideration: s1(1) Children Act 1989. It is important for the court to have regard to each limb of the welfare checklist of s1(3) Children Act 1989 insofar as it is relevant to the circumstances of the subject child.
13. The parties to an appeal do not start afresh. In Piglowska v Piglowski [1999] 1 WLR 1360, 1372, in relation to appeals against the exercise of discretion, Lord Hoffmann made the vitally important observation that:

"the appellate court must bear in mind the advantage which the first instance judge had in seeing the parties and the other witnesses. This is well understood on questions of credibility and findings of primary fact. But it goes further than that. It applies also to the judge's evaluation of those facts…… reasons for judgment will always be capable of having been better expressed… reasons should be read on the assumption that, unless he has demonstrated the contrary, the judge knew how he should perform his functions and which matters he should take into account…. An appellate court should resist the temptation to subvert the principle that they should not substitute their own discretion for that of the judge by a narrow textual analysis which enables them to claim that he misdirected himself."

14. As Baroness Hale observed in Re J (Child Returned Aboard: Convention Rights) [2005] 2 FLR 802, para 12:

"too ready an interference by the appellate court, particularly if it always seems to be in the direction of one result rather than the other, risks robbing the trial judge of the discretion entrusted to him by law. "

I have well in mind those observations when considering the submissions made in support of and against the grounds of appeal.

Grounds of Appeal

15. The father's principal grounds of appeal may be summarised as follows:

a) the judge failed to take account of or give sufficient weight to the risk of the mother removing S from the jurisdiction in the future;

b) the judge made unfair and/or critical findings or observations about the father;

c) the judge failed to take account of or give sufficient weight to the risk presented by EF to S;

d) the judge failed to take account of or give sufficient weight to the absence of adequate safeguarding checks or assessments in respect of the mother;

e) the judge failed to give sufficient weight to an assessment undertaken by a social worker Ms Sullivan;

f) the judge accorded excessive weight to the importance of the relationship between S and his much older half brother T;

g) the judge failed to have sufficient regard to the status quo, where S had lived in his father's sole care for in excess of 12 months; and

h) the judge failed to attach appropriate weight to the opinions of the CAFCASS officer, Mr Webb, or to give sufficient reasons for departing from his recommendation.

16. There have been developments in this case since the judgment of December 2015, as set out in paragraph 6 above. None of these developments are, in my judgment, relevant to the issue in this appeal of whether the judge was wrong to come to her decision. They may be relevant to the future progress of this case but that is a matter for the court below and not for this court.
17. In the premises we invited the parties to focus on the evidence before the judge in November 2015 and on the judgment.
18. I have read with care the father's skeleton argument filed in support of this appeal and I have listened carefully to his oral submissions, which were prepared and delivered with the assistance of a McKenzie Friend who is a relative of the father.
19. The father made the following broad submissions at this hearing:

i) EF is a danger to S;

ii) the CAFCASS officer did not see S and T together in the mother's home and did not undertake sufficiently thorough investigations into the lives of the mother and the boys;

iii) although the mother asserts that she cared for S for the first two years of his life, 12 months of that period comprised a time when she had abducted S to Malta;

iv) the judge discounted the wishes that S is said to have expressed to Ms Sullivan, a social worker;

v) it was important not to underestimate the adverse impact on the father of the mother having abducted S; and

vi) the judge failed to follow the recommendation of the CAFCASS officer.

20. The mother filed and served a skeleton argument setting out her reasons for opposing the appeal and for inviting this court to uphold the decision and order of HHJ Hindley QC. This was supplemented by a skeleton argument filed by counsel who had been instructed after the late granting of public funding to the mother.
21. During the hearing counsel for the mother made the following additional submissions:

i) the status quo argument advanced by the father was a powerful one but had been clearly considered by the judge. The judge had undertaken a comprehensive and balanced assessment of S's welfare needs;

ii) the CAFCASS Officer was of the opinion that the move of S from his father's to his mother's care could be managed without adverse consequences for the child;

iii) the judge dealt fully with the issue of EF; and

iv) the CAFCASS Officer had not made a clear and unequivocal recommendation that S should continue to live with his father.

Discussion

22. In respect of the father's first ground of appeal, that the judge failed to take account of or failed to give sufficient weight to the risk of the mother removing S from the jurisdiction, I note the following:

i) the judge clearly had the risk of abduction in mind because she referred to the history and to the judgment of the Maltese Court in September 2014 making an order for S to be returned to this jurisdiction and she referred to the father's fear of abduction at paragraph 50 (xiv) where she observed:

"Undoubtedly feelings were running very high when S was returned to the UK and the father feared abduction by mother."

ii) the judge noted at paragraph 9 of the judgment that in December 2014 the mother had indicated her intention to withdraw her application for leave to remove and that she now wanted to remain in the UK with the children;

iii) the judge took account of the mother's commitment to care for S and the fact that she was the more insightful parent with regard to S' emotional needs;

Therefore she was entitled not to be more influenced in her final analysis by any risk of abduction because, I infer, she did not think the risk was likely to materialise.

23. In the premises the father has failed to satisfy me that the judge erred and, therefore, this ground cannot succeed.
24. In relation to the second ground of appeal that the judge made unfair and/or critical findings or observations, the judge made those findings and observations after listening to five days of evidence and assessing the behaviours and actions of, most particularly, the parents. She was perfectly entitled to do so and I do not find any basis upon which her findings or observations can be impugned. Even if, for example, her finding that the father chose not to visit S when he was living in Malta with his mother, was wrong or unfair that would not, of itself, undermine the judge's ultimate conclusions and decision. I observe that her views on this issue were based on the father's evidence that he could not afford to travel to Malta as opposed to what he now asserts, which is that the mother prevented him from having contact with S in Malta: "he said in his oral evidence that he was not able to do so for 'reasons of affordability' ".
25. The third ground relates to the risks presented by EF. The judge not only took full account of the risks presented by EF but she dealt with the issue robustly. Having reviewed the role played by EF and the criminal proceedings bought against him, she said, at paragraphs 45 and 46 of the judgment:

"This court is unable to draw any final conclusions based on this report. Plainly if EF is the partner of Mother he may present a real risk. If he is to come into contact with S then this court would need safeguarding checks and a risk assessment of EF. Given that Mother asserts that he is not her partner then it is open to the court to make no contact order to EF without the need for further enquiry to ensure S's safety while visiting or living with Mother.

Father stated that he believed that EF has been brought into contact with S. He insisted that CAFCASS should check Mother's home to see if EF was present or living there. This was done, there was no evidence of a male person being there save T. However the MGM said in her evidence that EF had visited the Mother's home in the UK, she said she did not know if there had been contact with the child."

And later she said of EF:

"I formed a very negative view indeed of EF in the witness box. He was somewhat combative verging on the aggressive when challenged. I found that he was defensive and determined to portray the Father in a poor light. His evidence was generally unreliable. He contradicted himself more than once. I am satisfied for the reasons set out earlier in this judgment that he is an unassessed risk so far as any contact with S is concerned and I shall consequently continue the order prohibiting contact with him. "

26. Accordingly, on the evidence before the judge she took full account of the potential risks presented by EF and made orders to safeguard S. The relationship between the mother and EF may have changed since the judgment, but this is an appeal of the judge's decision on the information available then and as such does not affect its correctness.
27. The fourth ground is based on the alleged failure of the judge to take account of or give sufficient weight to the absence of adequate checks or assessments of the mother. This submission ignores (a) that CAFCASS undertook a safeguarding check at the mother's home at the insistence of the father and (b) the judge's finding, at paragraph 50 (xvi), that:

"there is no criticism of the mother's capacity as such, she is an experienced parent who has met the needs of T over an extended period, and she has worked hard to provide for the boys materially. "

In these circumstances this ground can not succeed.

28. It became clear during the course of oral submissions that the father appeared to expect that the CAFCASS Officer would undertake, and should have undertaken, a full safeguarding and welfare check of the mother, S and T, including looking into all of her home circumstances and even into matters which were not in issue between the parties (eg the mother was a capable and loving parent). Two matters arise:

i) this point was not taken by the father at the hearing before the judge, nor by counsel instructed on his behalf ; and

ii) it is not the duty of a CAFCASS Officer, when preparing a report, to explore every aspect of a parent or a child's life or to investigate matters that are not in issue. The CAFCASS Officer will, aside from interviewing the parents and the child, usually make enquiries of the police, a child's nursery or school, health care professionals or social workers, if they have been involved with the family, but no more than that unless the court expressly requires other more extensive enquiries.

29. The fifth ground concerns the assessment undertaken by a social worker, Ms Sullivan. The judge said of her report, at paragraph 50 (i):

"S loves both of his parents. I am not able to give any weight at all to the very cursory report from WCC which carried out an initial assessment in July 2014 following a referral. The Social Worker stated that S told her that he likes living with his father and would rather be with his father than his mother. the circumstances of this comment by the child and how this was adduced was not set out; I find that it is not therefore reliable. "

I can discern no error on the part of the judge in reaching these conclusions which were entirely open to her on the totality of the evidence.

30. The sixth ground relates to the judge's observations on the importance which should be attached to siblings being brought up together if at all possible, allied with her alleged failure to accord sufficient weight to the status quo of S living with his father for the last 14 months. The case of C v C (Minors: Custody) [1988] 2 FLR 291 may predate the coming into force of the Children Act 1989 but it remains good law. The importance of raising siblings together, if at all possible, is a trite statement of childcare practice which is universally accepted. Her observations at paragraph 50 (vi):

"I accepted the mother's evidence that T loves his little brother and welcomes his presence. Absent a finding that T is a risk to S there is merit in this contention, this is what the boys have been used to even though there is an age difference, mother reports that there is a bond between them. A sibling relationship is the longest relationship in a person's life, and is generally a significant one into adulthood. "

are unassailable. I note that the CAFCASS Officer observed in his evidence that S and T considered themselves to be brothers and do not consider themselves as 'half siblings'.

31. The judge dealt comprehensively with the potential impact of altering the status quo; the seventh ground of appeal. At paragraphs 50 (viii) and (ix) she said:

"Mr Webb's evidence was that there could be future underlying issues for [S] and that problems can emerge at a later stage in a child's life. I am satisfied that S was upset at the very sudden separation from the Mother for which he had not prepared. The father tried to play this separation down in his oral evidence.

How would a further change by a return to Mother's care affect S? He enjoys his weekend staying contact with her; he has also stayed for a week's holiday without [any] problems at all. Mr Webb said that, 'Given that A has lived with Mother and that there is an established relationship between them and there is no doubt about her ability to manage him, a change (ie back to mother's care) can be managed' "

I cannot see how the judge's findings on these issues can be faulted, let alone be characterised as wrong.

32. The eighth ground concerns the judge's approach to the evidence and the 'recommendation' of the CAFCASS Officer. I am not satisfied that Mr Webb made an unqualified recommendation. In his report of 17 June 2015 he said at paragraph 30:

"Without the clarification of a court ruling upon [the issues in dispute], I do not feel able to recommend any other course of action to the court other than a continuation of the status quo with regard to who S primarily lives with. Whatever the court's view in this regard, all other issues of contact flow obviously from that decision and can, I believe be easily negotiated and agreed at court in similar terms to those that I outlined earlier. "

In his oral evidence he said:

"My recommendation is as it says which is for the court to hear the evidence in this regard as it felt so finely balanced. There are lots of allegations, not all of which I was able to be clear about.

If I had been forced to make a recommendation I couldn't have said that there was sufficient evidence that I had seen at that point to recommend the removal of S from father. Nonetheless, there were concerns about the issues that mother raised which is why I felt that the court needed to examine those matters in more detail."

33. The judge dealt with Mr Webb's report and evidence at paragraph 53 of the judgment where she noted:

"The Cafcass Officer said in his oral evidence that, if forced, he thought that there was insufficient evidence to recommend removal from Father but that he was originally concerned about the issues that have been raised in the case and it was necessary to look at them in detail. His view was not therefore a conclusive one. He has lacked the advantage of seeing mother and child together accepting as he did that there was no criticism of the relationship. "

34. The CAFCASS officer had not formed a concluded view. His views were clearly qualified by the findings that might be made by the court on the contested issues. The judge had the inestimable advantage of seeing and assessing the parents when giving evidence. In the premises it was entirely open to the judge to deal with Mr Webb's evidence as she did and to find that his view as expressed in his report and in his oral evidence was not a 'conclusive one'.
35. Once again I can discern no error in the judge's approach to the CAFCASS Officer's report nor to his evidence.
36. Thus I am satisfied that the findings and conclusions made by the judge were open to her on the totality of the evidence before her. Further it was entirely within her discretion to make the decision she did, namely that S should live with his mother and should spend time with his father. In no sense could that exercise of judicial discretion be said to be flawed, erroneous or wrong.

Conclusion

37. In the premises I am not satisfied that the father has established that the judge was wrong in making the order in December 2015 nor that her decision was unjust because of a serious procedural error or other irregularity. Accordingly I would dismiss this appeal.
38. It is plain, however, that there have been developments in this matter since judgment was given in December. Those developments are contentious and, accordingly, it would be inappropriate for this court to seek to adjudicate on them. It is for the parties to consider their respective positions in light of the dismissal of this appeal and to make, further applications which are appropriate to HHJ Hindley QC.

Lady Justice Black:

39. I agree.

Lord Justice Beatson:

40. I also agree.