England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
On appeal from the Family Court
At Liverpool – HHJ de Haas QC
No. LV16P02266
IN THE MATTER OF THE CHILDREN ACT 1989
AND IN THE MATTER OF NA (A CHILD)

		Royal Courts of Justice Strand, WC2A 2LL
		3rd October 2017

MR JUSTICE BAKER:

1. This is an application for permission to appeal, by a mother against an order made by Judge Margaret de Haas QC dated 5^th April 2017, in which she ordered that the child, who is the subject of these proceedings, N, should continue to live with her father. She further ordered that the mother be permitted to send, by way of indirect contact to N, cards, letters, and a small gift once every three weeks via the local authority social worker, but that there should be no direct contact between N and her mother. She further ordered, pursuant to s.91(14) of the Children Act 1989, that the mother should not be permitted to make any applications for child arrangements orders in respect of N without the leave of the court for a period of three years, any future applications reserved to Judge de Haas, but for the avoidance of doubt the mother would be permitted to make an application for a psychological assessment of herself.
2. The mother's application for permission to appeal out of time was listed for an oral hearing by me in a directions order dated 7^th August 2017. At the outset of the hearing, I explained to the mother, who appears in person today representing herself, the role of the appellate court and the approach to appeals and applications for permission to appeal which the rules impose. An appeal against an order in a children's case can only succeed if the court is satisfied that the judge at first instance was wrong, or that there was some serious procedural or other irregularity. Permission to appeal will only be granted where there is a real prospect of an appeal succeeding, or some other compelling reason for the appeal to proceed.
3. The background to this application for permission to appeal is as follows: The proceedings, as I have said, concern a little girl, N, born 28^th August 2011 and therefore now aged six. There have been long-running proceedings in court, concerning N, between her parents. The judge, in her judgment of April 2017, rightly referred to the corrosive effect on children from repetitive applications to the court and long-running court proceedings.
4. Initially, N lived with her mother, but in April 2013 she went to live with her father under a care order made in favour of the local authority which, according to the judgment of April 2017, was made because the mother had failed to comply with contact orders in respect of contact between N and her father. Thereafter, N has lived with her father, and the principal issue in subsequent court proceeding has been the question of contact with her mother. In August 2015, the care order was discharged and thereafter N has lived with her father under a child arrangements order. Contact was initially on a supervised basis in August 2015 twice a week. Thereafter however it was extended. The judge, in her judgment of April 2017, found that the father had been supportive of expanding contact. Contact duly extended to include overnight staying contact at weekends, and in 2016 it seems it was progressing even further.
5. Things deteriorated dramatically however in July 2016. The mother, who was due to be attending a graduation ceremony in Manchester, asked the father for permission for N to attend the ceremony. The father refused. When the matter came before Judge de Haas on 20^th July, she ruled in favour of the mother on this issue. She made an order for defined contact, permitting N to be with her mother for a specified period the following day on the day of the graduation ceremony.
6. The father alleged, and the judge later found, that the mother did not comply with the terms of that order and returned the child later than directed. The judge further found that the mother had told lies in her evidence about that matter.
7. On 22^nd July, the following day, an incident took place which lies at the heart of the hearing under review before me today. It is clear, and not contested, the mother went to the father's house, but what happened thereafter was disputed. Each party alleged that he or she was assaulted by the other. The father applied to court later that afternoon, and Judge de Haas made an ex parte order, suspending contact until the next hearing five days later. At that hearing on 27^th July, at which the mother was represented, contact remained suspended and a further hearing ordered for 18^th August. By consent, on that occasion, the judge also ordered a mental health assessment of the mother.
8. On 18^th August the judge directed there should be a fact-finding hearing into the events of 22^nd July. The judge concluded that contact should revert to being supervised, but the mother refused to agree to contact being supervised and contact was therefore suspended again. The fact-finding hearing was listed for 27^th/28^th October, but that hearing did not take place for reasons unclear to me. Contact remained supervised. A further case management hearing took place in January 2016, and the fact-finding hearing was re-listed for a date in April.
9. At that hearing in April, the judge heard evidence from the mother, father, and paternal grandmother, concerning the events of 22^nd July 2016. The judge, in her judgment, was plainly influenced by the mother's behaviour in the course of proceedings. She described the mother as dominating the proceedings. She referred to the fact the mother feels frustrated, distressed, and angry. She described the mother as talking over the court and not having any regard to rulings made by the court. The judge observed that the mother had regarded cross-examination as an opportunity to hector the witness. The judge concluded that the mother presented as being, "emotionally unhinged, without insight, with very worrying behaviours." That was the judge's impression after observing the mother in court on a number of occasions, and in particular in the hearing of April 2017.
10. As to the events of 22^nd July, the judge accepted the evidence of the father that the mother had become animated in the father's house, was controlling, and dominating, and then suddenly leapt forward, headfirst, into the father's chest and violently pushed him back, hitting, grabbing, and shoving him forcefully through the porch door and into the hall. The father described, and the judge accepted, how the mother had then attempted to get in to the room where N was with her grandmother who was, by this point, ringing for the police. The judge accepted further allegations made by the father about the mother's behaviour during that incident, corroborated, as it was, by the evidence of the grandmother.
11. The judge recorded the mother's evidence, namely that she denied the allegation, that she had not been violent, but instead the father had laid hands on her. The mother relied, importantly, on the fact that when police arrived, the father did not actually say that he had been assaulted. Similarly, the grandmother did not make any such allegation to the police at that stage. The judge noted that both the father and the grandmother accepted that they did not tell the police that they had been assaulted, but the judge noted that the father had been anxious about N, who had, of course, been present in the house when the incident occurred.
12. The judge's conclusions, in summary, were therefore as follows at paras.55-57,

"I find first of all that this mother on 22^nd July went to the father's house uninvited. That she forced her way in. That she behaved, and I cannot describe it better than the father did, as a whirling dervish. That she thereafter lunged at the father and at the grandmother, that she completely lost control. That there had been an accumulation of behaviour throughout the week. Out of control. Demanding, and only thinking of what she wanted, not N's interests, that this should not happen in front of the child. Thereafter, notwithstanding the fact that she had caused this incredible confrontation in front of the child, she went to the police and started making allegations against the father which were wholly unwarranted.

She told lies to the police. Not only did she tell lies, she went into all the allegations of sexual behaviour of the father, and as a result this has had the most appalling consequences. The police descended on the father's home on 24^th July. Fortunately, N was sleeping. I think it was six officers arrived. On 28^th July the father was arrested and was kept in custody all day, eleven hours. In consequence, N was destabilised. She was upset, she was insecure, she started wetting the bed.

The summer was a tense, nasty, experience because of the mother's behaviour. Her undermining, selfish conduct, her controlling behaviour, where the mother thinks only of herself. The mother's behaviour is incomprehensible."

13. The judge therefore decided, in the light of her findings, that there should be a psychological report before any question of direct contact being resumed. The mother refused to agree to the psychological report, and therefore the judge made the order for no contact as summarised above.
14. As also summarised above, she decided that there should be an order under s.91(14), as set out at the start of this judgment. In reaching that conclusion, the judge reminded herself of the case law – in particular the decision of the Court of Appeal in Re P [1999] 2 FLR 573, and decided that the legal requirements for such an order were satisfied. The court concluded that there should be no application for a child arrangements order for the next three years without the leave of the court. But, significantly, the judge excluded from the restrictions imposed by the s.91(14) order any application by the mother for a psychological report. In other words, the impact of the judge's order was that there should be no application for contact in the next three years without the court's permission, unless the mother came to court and applied for a psychological assessment of herself. This was entirely consistent with the judge's overall view, which was that contact should not take place unless the mother had undergone a psychological assessment.
15. In her notice of appeal, skeleton argument, and submissions to me today, the mother makes a number of points arguing that the judge was wrong. She points out, in her written document in particular, that other judges earlier in the proceedings had not been so critical of her, and had, on occasion, been critical of the father and raised some concerns about his parenting. Accordingly, it is the mother's case that Judge de Haas was prejudiced against her, and that she made her mind up before she came into court in April. The mother says that, in contrast to earlier judges, Judge de Haas has repeatedly criticised the mother in a series of hearings, and the mother has therefore concluded that the judge is biased against her.
16. The mother puts it this way in her written document,

"One only need to look at all the judgments of her Honour Judge de Haas in years and see the praises showered on the father, and the heavy, unreasonable, illogical criticism to see the closed-mindedness against the mother, and that Judge de Haas was ready to call the mother a liar."

17. The mother says that the judge was wrong to prefer the evidence of the father and the paternal grandmother about the incident on 22^nd July, and repeats her argument as referred to above that the judge should have attached significant weight to the fact that the father and paternal grandmother failed to mention any assault when the police first arrived that day.
18. The mother makes a number of other points in her documents and in oral submissions, which I have carefully considered. The mother concludes by making a heartfelt and very moving plea, in these terms, "What I am is a desperate mother who wants to give her child the chance to see her mother and be raised by her mother." She repeats those observations in her oral submissions to me today, and in further documents which she has prepared over the short adjournment after I concluded the hearing before lunch. It is plain this mother feels very deeply the angst, the separation from her daughter, as one can well understand.
    
19. I have already referred to the legal principles that this court has to apply when determining applications for permission to appeal. Having considered the judgment and the transcripts of the hearings, which the mother has produced for me today, it seems to me that Judge de Haas carried out a careful, patient, and thorough hearing in very difficult circumstances, in which the mother, as the judge describes, repeatedly interrupted her. The judge's findings of fact were based on her assessment of the evidence. The judge heard the witnesses and reached the conclusions that she did. It is very difficult for an appellate court to interfere with findings in these circumstances, and in this case, I find that Judge de Haas has analysed the evidence in very considerable and careful detail. I find that her findings of fact, having heard the evidence about the events of 22^nd July, were plainly findings that she is entitled to reach, and I entirely reject any suggestion of bias. The fact that a judge has made findings on a number of occasions against a party does not mean that he or she is prejudiced against that party.
20. In the light of the findings of fact which amount, in my view, to serious findings of domestic violence, or violence against a former partner, I conclude that the judge's decision to suspend contact until such time as the mother undergoes a further psychological assessment to be reasonable and in accordance with good practice as reflected in Practice Direction 12J. The court is under an obligation to ensure that, where violence or abuse is proven, any child arrangements order in place protects the safety and wellbeing of the child, and the parent with whom the child is living, and does not expose him or her to the risk of further harm, and that the order will in the best interests of the child.
21. In this case, the findings of fact made by the judge were serious and have to be treated seriously because of the well-recognised impact of domestic violence on children, which underpins the policy provided in Practice Direction 12J. It is, of course, extremely concerning for N that she is not seeing her mother, to whom she is obviously close, particularly at this time, when the mother is now expecting another child by her husband. I accept, of course, that it is to be presumed that contact is in the best interests of a child, but at the same time the court has to take into account serious findings of the sort made in this case.
22. I recognise and have great sympathy for this mother, who is understandably distressed about not seeing her daughter. And I am quite satisfied that her daughter N, too, is also distressed. But, in the light of the findings made by the judge, findings which in my view she was entitled to make on the evidence, the reason for the fact that contact is not taking place lies in the mother's own behaviour as the judge found it to be, and I conclude that the judge was perfectly entitled to decide that there should be no direct contact unless and until a psychological assessment has been carried out.
23. The mother says that such an outcome is disproportionate and, of course, an interruption in contact between a mother and child is a very serious step, but I find that the judge's assessment in her judgment was within her discretion and that she was entitled to take the severe step that she did in all the circumstances. I also conclude that the judge's decision to make an order under s.91(14) was justifiable in this case. The judge was rightly concerned about the impact of the long-running proceedings upon the child, and her analysis of the arguments on this issue was careful and, in my view, impeccable.
24. It should also be noted that an order under s.91(14) is never a complete ban on applications, but merely requires the mother to obtain permission before starting further proceedings. Furthermore, and significantly in my view, the judge was careful to make an exception so that the mother had an unhindered right to apply to her for a psychological assessment of herself.
25. In my judgment there is no real prospect of an appellate court concluding that the judge was wrong in the orders she made in April 2017, and accordingly, as there is furthermore no procedural or other irregularity, permission to appeal is therefore refused.
26. I concluding by saying again that I understand the mother's distress and anguish at being separated from the daughter completely in this way. But I respectfully suggest that the remedy lies in her own hands. She must now accept the findings that Judge de Haas made, and apply for a psychological assessment. I am confident that Judge de Haas would allow such an assessment, as it is plain from her judgment that that was a course that she was anxious to take. In my view, therefore, the mother would be well-advised to reapply to Judge de Haas as soon as possible for such an assessment. That is the only way that direct contact with N can possibly restored in the short-term.