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Cite as: [2018] EWHC 521 (Fam)

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The Judge has given permission for this anonymised version of the judgment (and any of the facts and matters contained in it) to be published, on condition always that the names and the addresses of the parties and the children must not be published. All persons, including representatives of the media, must ensure that these conditions are strictly complied with. Failure to do so will be a contempt of court.

		Neutral Citation Number: [2018] EWHC 521 (Fam)
		Case No: BD15P00165

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
ON APPEAL FROM HHJ SCARRATT
IN THE FAMILY COURT SITTING AT MEDWAY

Royal Courts of Justice
Strand, London, WC2A 2LL

21/03/2018

B e f o r e :

THE HONOURABLE MR JUSTICE MACDONALD
____________________

Between:

	A	Appellant
	- and -
	R -and- T	First Respondent Second Respondent

____________________

The Appellant appeared in person
Mr Matthew Persson (instructed by Goodman Ray) for the First Respondent
Ms Caroline Topping (instructed by Berry & Lamberts) for the Second Respondent
Hearing dates: 6 March 2018
____________________

HTML VERSION OF JUDGMENT
____________________

Mr Justice MacDonald:

In this matter the father appeals against the order of His Honour Judge Scarratt dated 28 November 2017 made in respect of his daughter, T, who is now aged 13. On 6 March 2018, I allowed the appeal against certain parts of the learned judge's order and gave directions for the further hearing of this matter. I now set out my reasons for doing so.

The first respondent to the appeal is the mother of T. The mother is represented by Mr Matthew Persson of counsel, who appeared below. T is a party to the substantive proceedings and accordingly is the second respondent to this appeal. T is represented through her Children's Guardian, Mr Dan Gaye, by Ms Caroline Topping of counsel, who also appeared below. The appellant father appears before the court in person with the assistance of the Personal Support Unit of the RCJ.

The father's Appellant's Notice was issued on 18 December 2018. Cohen J listed the matter for an oral permission hearing before Parker J on 29 January 2018. On that date, Parker J granted the father permission to appeal and listed the appeal hearing before me today with a time estimate of one day.

In determining the father's application, I have had the benefit of the father's detailed grounds of appeal together with amended grounds of appeal that are expressed in the manner of a Skeleton Argument. Both Mr Persson and Ms Topping have prepared comprehensive Skeleton Arguments. I have also had the benefit of a chronology prepared by the father and a chronology prepared by the solicitor for the child. With respect to the hearing on 28 November 2017, I have the benefit of a complete transcript of the hearing and a transcript of the learned judge's judgment. I also have the benefit of a transcript of the hearing on 15 September 2017, at which hearing a number of decisions were taken relevant to the hearing listed on 28 November 2017. I have heard oral submissions from the father, from Mr Persson and Ms Topping.

BACKGROUND

The background to this matter spans, regrettably, over ten years of litigation in respect of T, beginning with an application by the father for a prohibited steps order in relation to T's schooling. A final order in those proceedings was made in September 2008. In March 2010 children's services undertook an investigation following allegations of inappropriate behaviour towards T by the mother's partner. The case was closed following an investigation pursuant to s 47 of the Children Act 1989. Further allegations were made in December 2011 of inappropriate behaviour by the mother. Once again, following investigation by children's services, this time by a different local authority, the case was closed in February 2012 following a Core Assessment being undertaken.

In December 2012 the father made an application for sole residence. In February 2013 the mother applied for residence, contact and prohibited steps orders. On 5 March 2013 the learned judge made a shared residence order, which order was affirmed by final order made by the District Judge on 4 March 2014. In November 2015 a further assessment of T was undertaken by Children's Services following allegations of inappropriate behaviour made by the mother with respect to a member of the paternal family. That case was, ultimately, also closed.

In December 2015 the father made a further application with respect to the child arrangements for T. In January 2016 the learned Judge made an order re-introducing contact (the father complaining that there had been a gap in contact) and affirming the shared residence order. On 11 March 2016 the father applied for permission to temporarily remove T from the jurisdiction to take her to Hungary from 22 March to 6 April 2016 to visit members of the paternal family. On 17 March 2016 the learned Judge refused that application. In November 2016 the father made a further application seeking restoration of contact, a greater period of time with T and for the mother to pay his costs.

This short summary, taken from the chronology provided by the father, and that prepared by Ms Topping, gives some flavour of the burden of litigation that T has had to bear over a considerable period of time. Interwoven within this litigation have been cross allegations of abusive behaviour towards T by maternal and paternal family members and others, resulting in T being interviewed by both Police officers and social workers on more than one occasion, and the involvement of doctors by the mother concerning an alleged eating disorder and signs of stress in T.

As the history of this matter moves towards the end of 2016, it is necessary to consider the background in a little more detail having regard to the issues raised in this appeal. In December 2016 the father applied for permission to instruct an expert child and adolescent psychiatrist to assess T's wishes and feelings and whether she was the subject of adverse maternal influence. On 19 December 2016 the learned Judge joined T as a party to the proceedings and gave permission for Dr Berelowitz to be instructed to undertake an assessment of T. I am told by the parties that that instruction did not proceed because the parents accepted the recommendation of the Children's Guardian that they should attempt mediation. Within his report recommending mediation, the Children's Guardian also recommended that the proceedings should be concluded with indirect contact to the father and an order under s 91(14) for 12 months.

Sadly, the mediation, whilst undertaken, did not lead to a resolution. Within this context, at a hearing on 7 July 2017 the parties agreed, and the learned Judge endorsed, a direction for a psychologist, Mr Clowry, to report on a plan of clinical work to assist the parents with facilitating the progress of contact between the father and T. There is no copy of that order in the appeal bundle but Ms Topping's chronology makes clear that the order provided that there was no permission for the psychologist to see T for the purpose of preparing the report. On 14 September 2017 the father applied to expand the remit of the psychologist to include consideration of T's wishes and feelings and the question of parental influence.

On 15 September 2017 the matter came before the learned judge for a further hearing. At that hearing the Children's Guardian was continuing to press for the proceedings to be brought to an end. The court has a copy of the order made on that date. In so far as is relevant to this appeal it provides as follows:

"6. EXPERT INSTRUCTION

Psychologist

The court being satisfied that such instruction is necessary to assist the court and the parties in the resolution of this case.

(i) The parties have leave to jointly instruct Mr Clowry to prepare a report in respect of the time that T should spend with her father.

(ii) The father's solicitor shall draft a letter of instruction to be circulated and agreed by the parties by 4pm on 18.09.17.

(iii) Mr Clowry has leave to see T for the purposes of the preparation of this report.

(iv) The parties have leave to disclose all previous papers together with the position statements prepared for today's hearing.

(v) The report is to be filed and served by 31 October 2017."

The order goes on to provide for the mother and the father to "file and serve" Position Statements by 23 November 2017 "setting out their response to the report of Mr Clowry and their proposals for T spending time with her father going forward" and for the Children's Guardian to "file and serve" a Position Statement by noon on 27 November 2017 "setting out his response to the report of Mr Clowry and his recommendations in light thereof". No directions were made for sworn statements of evidence, or for a final report from the Children's Guardian to inform the final hearing. Finally, the order of 15 September 2017 listed this matter for final hearing on 28 November 2017 reserved to the learned Judge with a time estimate of three hours. Mr Clowry was directed to attend the hearing on 28 November 2017.

The court has had the benefit of seeing a transcript of the hearing before the learned Judge on 15 September 2017. A number of points fall to be noted.

First, in respect of the issue of moving contact forward, the learned Judge expressed the view that a 13-year-old child should be told what they are going to do, that "pandering" should be avoided, that T was being "allowed to rule the roost" and that sometimes children must be told "this is what the court has ordered". Second, and within the context of both Mr Persson and Ms Topping telling me that the learned Judge expressed his decision to give permission to instruct Mr Clowry as being a decision that was "finely balanced", the learned Judge concluded as follows in a short ex tempore judgment with respect to the question of whether a report from Mr Clowry was necessary to resolve the proceedings justly:

"As I say, it's, I was going to say finely balanced, it's perhaps not so finely balanced, but it's not an easy decision. I have come to the view that a) such a report is necessary, not to establish the wishes and feelings of the child, that, that's been done already. But because the court needs assistance with a plan of work to get contact going, if I can put it in the vernacular, and a plan to ensure that contact is advanced and lasting. So I find it necessary, I also find on balance, that it is best done within Court proceedings. There is a history in this matter of non-communication by the parties, and if there is communication, not terribly constructive communication. There is a history of the Court having to make orders for each of the parents to comply with. So, on balance, I am going to order the report but, and I take note of what the Father has said today, it will be recorded in the preamble of the order, that if the outcome is that proceedings should end, if that is the recommendation of the psychologist, the Father would go along with that, because he sees, I've no doubt, as the Guardian states and the Mother sees that that would be best for the child."

The letter of instruction to Mr Clowry is contained in the appeal bundle before me, dated 18 September 2017, which letter provides as follows with respect to the instructions to Mr Clowry:

"Pursuant to the order of His Honour Judge Scarratt dated 15 September 2017, you are instructed to meet with the parties and the child, as set out in your letter dated 25 August, to prepare a report setting out a robust, clinically legitimate and reputable plan of clinical work for the sound and lasting advancing of contact between T and her father."

Leaving aside the rather peculiar terms in which the instruction is couched (parties to proceedings would hardly wish a report that was not robust, clinically legitimate and reputable), the term "Pursuant to the order of His Honour Judge Scarratt" at the beginning of the instructions to Mr Clowry is a potential cause of confusion. Whilst the letter of instruction limits the instructions to Mr Clowry to the preparation of a "robust, clinically legitimate and reputable plan of clinical work", the permission given in the order of the learned Judge is in somewhat wider terms, namely "to prepare a report in respect of the time that T should spend with her father."

Whilst the report of Mr Clowry was due to be filed by 31 October 2017, it is accepted by all parties that the document prepared by Mr Clowry only became available on the evening before the hearing on 28 November 2017. A copy of the report is before this court. All parties agreed before the learned Judge on 28 November 2017, and agree before this court, that that report is deficient in that it failed to comply with the instructions provided to Mr Clowry in the letter of instruction. In these circumstances, it is not necessary to descend into detail with respect to precisely how it is said that the report was deficient having regard to the terms of the letter of instruction. I do however, note that whilst the document produced by Mr Clowry is inconsistent with the ambit of the instructions contained in the letter of instruction, it is perhaps less inconsistent with ambit of the terms of the order of 15 September 2017.

One final set of documents requires to be considered. On 1 October 2017, T emailed her solicitor in the following terms regarding the order made by the learned Judge on 15 September 2017:

"Thank you very much for giving me the support that I need in court. I'm very grateful. Mum told me about a psychologist that the judge wants me to see and I've decided that I'm not going to co-operate with this decision as I believe it would be a waste of time considering the many others I have seen over the years. I'm really fed up. I know it's my Dad doing this, he thinks this will force me to see him more and it's quite the opposite, it will only make everything worse. I am already seeing him, I did yesterday, what more is there. So why do I need to see a psychologist?"

On 4 October 2017, the Children's Guardian replied to T's email, expressing sympathy with her view, emphasising that it was the court's decision and suggesting T should give some thought to co-operating. In particular, the Children's Guardian informed T that "There will be a psych report whether or not you co-operate, so it's just far more helpful if you've had input." There is no reply from T before the court, although the learned Judge was informed by the Children's Guardian that T remained opposed to meeting with any expert, notwithstanding the encouragement of the Children's Guardian.

The email from the Children's Guardian of 4 October 2017 is, in many respects, carefully drafted. It is of concern however, that the Children's Guardian also informed T in that email that the learned Judge had "promised" that the proceedings would end on the next occasion. This is not an accurate reflection of what the learned Judge had said and, in any event, is not a promise he could have made, not least having regard to the right of a party to appeal. The email from T of 1 October 2017 appears to have been disclosed to the father's legal team some time after it was sent, even though it was plainly relevant to the question of expert evidence.

When the final hearing came before the court on 28 November 2017, it did so initially before a District Judge, for reasons I will come to, before latterly being placed before the learned Judge. As noted above, the order of 15 September 2017 made no provision for statements of evidence to be filed and served for the final hearing on 28 November 2017, nor for the filing and serving of a final report from the Children's Guardian. In the circumstances, on 28 November 2017, the court was without up to date sworn evidence from the parents or a report from the Children's Guardian on the issues that fell to be considered at the final hearing. For the reasons I have already set out, the expert report that had been produced the evening before the final hearing to inform the same was deficient by reference to the terms of the letter of instruction.

At the hearing the Mother and the Children's Guardian argued that the proceedings should be concluded. Both sought an outcome that provided for no order to be made with respect to the time the father spent with T. The Guardian's Position Statement also urged the court to make an order pursuant to s 91(14) of the Children Act 1989 in respect of the father for a period of 12 months. However, no application had been issued. The father sought permission to instruct a replacement expert or an adjournment of the final hearing to permit him time to make a properly constituted application under FPR 2010 Part 25 for permission to instruct a replacement, with a view to him pursuing his argument for a far greater level of contact at an adjourned final hearing. In any event, the father sought a final child arrangements order that provided for a much greater level of time spent with T than was then taking place. The final hearing was, therefore, contested.

Within this context, the learned judge proceeded, following submissions by counsel initially in front of the District Judge and then before the learned Judge, and contrary to the arguments of the father, to refuse the father's application for permission to instruct a replacement expert or for an adjournment to allow the preparation of such an application. Further, and contrary to the varied positions of the mother, the father and of the child, the learned Judge proceeded to make a final child arrangements order. The final order made by the learned Judge in respect of the time the father would spend with T reflected the level of contact that was then said to be taking place. Accordingly, the order provided for the father to spend time with T for at least 2 hours once per month, with an additional 2-hour periods during the holidays, together with indirect contact.

As I have noted, the father's Appellant's Notice was issued on 18 December 2017. The father is no longer represented and completed the Appellant's Notice himself. The grounds of appeal drafted by the father and appended to that Notice are extensive, as are the amended grounds of appeal prepared for the permission hearing before Parker J. At the outset of this hearing, the father agreed with this court that his extensive grounds of appeal could be distilled into the following five key grounds, which grounds the father contends demonstrate that the learned Judge was wrong to make the orders he did or that he was guilty of serious procedural or other irregularity when doing so:

i) The learned judge had not prepared adequately to hear with the matter on 28 November 2017, did not allow the matter sufficient court time and proceeded to make final orders without any proper consideration of the arguments being advanced by the parties.

ii) The orders made by the learned Judge on 28 November 2017 were inconsistent with orders he had made earlier in the case, and in particular on 15 September 2017.

iii) The learned Judge was wrong not to persist with securing expert evidence in circumstances where the expert appointed by the court had failed to fulfil his duties as an expert.

iv) The learned judge placed too much weight on T's wishes and feelings when reaching his decisions on 28 November 2017.

v) The learned judge was wrong in the circumstances, to decide that it was in T's best interests for the case to be concluded summarily and on the terms of the final child arrangements order made by the learned Judge.

THE HEARING

Before dealing with the contents of the learned judge's short ex tempore judgment, having regard in particular to the father's first ground of appeal it is important to consider the transcript of the hearing of 28 November 2017. Counsel confirmed to me at this hearing that the transcript sets out the contents of the hearing on 28 November 2017 in full.

As I have noted, the final hearing on 28 November 2017 did not initially commence in front of the learned judge on 28 November 2017, but rather in front of District Judge Abigail Smith. The reason for this appears to have been that, whilst the learned Judge had reserved the matter to himself, he was very heavily listed on the day in question and the matter had therefore been placed in District Judge Smith's list. The matter remained before the District Judge for approximately half an hour. During that time the parties made substantive submissions on the adequacy of Mr Clowry's report and the proper course of action in respect of the report. The District Judge having expressed "severe concerns" regarding the report of Mr Clowry, counsel for the father, Ms Sarah Cooper, proceeded to make submissions in support of the continued need for expert evidence, a course opposed on behalf of the mother by Mr Persson and on behalf of T by Ms Topping.

It is a noteworthy feature of the transcript of the hearing before the District Judge that, as was to become a feature of the transcript of the hearing before the learned Judge, counsel constantly interrupted each other. Ms Cooper's submissions on the fate of Mr Clowry's report were interrupted by Mr Persson, without demur from the District Judge. Mr Persson was in turn interrupted by Ms Topping, again without judicial demur. Indeed, at times the transcript appears to show simply an argument between counsel with no input from the District Judge. This conduct continued until the District Judge decided that enquiries should be made as to whether the learned Judge could take the case. The net result of the way this part of the hearing was conducted meant that no party ever got to the point of concluding a complete, focused and structured submission on any issue.

The learned Judge agreed to take the matter and proceeded to hear the case, which had been given a three-hour time estimate, at 2.20pm. As I have noted, in summary the father's first ground of appeal includes the complaint that the learned Judge had not properly prepared for the hearing. The father also complained before me that the Judge appeared, from his initial comments, to have reached a settled judgment from the outset. The opening statements of the learned Judge, who had had long involvement with this case, form the basis of the father's contentions in this regard:

"His Honour Judge Scarratt: Yes well, I'm sorry you've had a bit of wait. The fact of the matter was this morning I had a one-day case with five applications and this three-hour hearing.

Miss Cooper: Yes.

His Honour Judge Scarratt: And so District Judge Abigail Smith's diary emptied yesterday and I'm afraid this happens. Cases are moved about. Not ideal but as it happens I have finished my five applications and given judgment so I'm, I'm now free to deal this but you've really got limited time because I have to be at a meeting at 4 o'clock. I've got bundles here, I've not looked at them –

Ms Cooper: Yes.

His Honour Judge Scarratt: I mean I'm just going to go on what I know about the case and well I gather Brendan Clowry's report was a nonsense so Judge Abigail Smith tells me.

Miss Cooper: Certainly the District Judge was not impressed.

His Honour Judge Scarratt: Yes, well I, I've, I have looked at that, eating my sandwich at lunch.

Miss Cooper: Yes.

His Honour Judge Scarratt: He's gone completely off piste.

Miss Cooper: Well it, it is right to say –

His Honour Judge Scarratt: Well he's gone off piste.

Miss Cooper: Yes.

His Honour Judge Scarratt: I'm putting it to one side and I doubt whether he'll get paid.

Miss Cooper: Yes, well no doubt --

His Honour Judge Scarratt: So where are we now, that being the case.

Miss Cooper: You Honour, we are at the following bit of the case. What he had done was he had interviewed my client and my client and the mother had paid him quite a lot of money. The mother, I don't know if you've seen, I did a further very short position statement, could I just briefly hand that up because I did it last night once the report had come --

His Honour Judge Scarratt: I mean at the end of the day your client's got to accept that [T] has had enough. There's a very poignant note to Mr Gaye, a very experienced Guardian, and last, I don't think you were here last time.

Miss Cooper: No, I wasn't your honour.

His Honour Judge Scarratt: No. Well can I tell you and this is the benefit of having me, judicial continuity.

Miss Cooper: Yes.

His Honour Judge Scarratt: That really last time, the application made by the Guardian being repeated today was made last time, but I felt your client should have a chance and that Clowry, who has now thoroughly blotted his copy book, I shan't be having him again in these Courts, your, and, and I gave the chance for this to happen, but it's not happened but, but at the end of the day I've got a 13 and a half year old girl there who's saying actually, let's have the contact, let's have the drinks and the teas and the lunches or whatever, which have gone on. This is not a case where there's no contact. So I think it can be finished quite, I think your client's got to accept that contact should continue as organised between the parents. Does he agree that?

Miss Cooper: No, Your Honour.

His Honour Judge Scarratt: Well, I'm not having a final hearing with this little girl dragged in now. Have you read the letter from her?"

Following this opening exchange, the learned Judge went on to conduct a hearing over the course of the next hour and a half. As I have noted, in his first ground of appeal, the father also contends that during this hearing the learned Judge proceeded to make final orders without any proper consideration of the arguments being advanced by the parties with respect to that issue. Within this context, the father also complains before me in support of his grounds of appeal that the hearing descended into what the father termed a "shouting match". The genesis of these complaints by the father is apparent from the transcript.

Miss Cooper commenced, on behalf of the father, by seeking permission from the learned Judge for a replacement expert to prepare a report and, in default, for a short adjournment to permit the preparation of a properly constituted Part 25 application to that end. Ms Cooper sought to advance her argument in circumstances where the default on the part of Mr Clowry was not known to the parties until the evening before the hearing and was not the father's fault, or indeed the fault of any party. Ms Cooper did not get to conclude that submission because she was again interrupted, by Mr Persson. Whilst Ms Cooper managed briefly to reclaim the floor, she was then interrupted by Ms Topping, followed by a period during which all counsel appeared to be making submissions in an unstructured and unfocused fashion. Indeed, as had occurred before the District Judge, the majority of the hearing before the learned Judge was characterised by counsel interrupting each other and speaking over each other, again without apparent judicial demur.

During the course of the unstructured and unfocused submissions regarding expert evidence, at times the Judge appeared to be dismissing the question of a further expert out of hand. At other times, the learned Judge appeared to indicate it was an issue he was prepared to decide. The precise ambit of the issue the parties are addressing in respect of expert evidence is only belatedly defined and no party ever got to the point of concluding their submissions on the question of further expert evidence, although Ms Cooper made a valiant effort to conclude organised submissions to the Judge in support of permission for a further expert or a short adjournment to allow the preparation of a properly constituted Part 25 application.

Matters then moved on to the question of whether the learned Judge should conclude the proceedings at the hearing. In respect of this issue, the learned Judge initially gave a clear indication that he considered it inappropriate to determine the matter by way of final orders at the hearing in circumstances where the matter remained fully contested by the father:

"His Honour Judge Scarratt: I, I can't make final Orders today at ten to three.

Mr Persson: Well Your Honour, the –

His Honour Judge Scarratt: If the father isn't going to agree an order.

Mr Persson: Well Your Honour it, the –

His Honour Judge Scarratt: It will be set down for two or –

Mr Persson: Well, no the –

His Honour Judge Scarratt: Three or days evidence –

Mr Persson: That, that it's open to the Court summarily to determine this matter. It's within the Court's case management powers to do so.

His Honour Judge Scarratt: Of course it is but it would be unwise probably."

However, both Mr Persson and Ms Topping made concerted and strenuous submissions to persuade the Judge that the matter should be dealt with on summary basis and the proceedings concluded in the time remaining that afternoon. Having heard those submissions, and notwithstanding his initial view that this would not be appropriate, the learned Judge ultimately stated to Ms Cooper that he would be deciding "whether to end these proceedings today".

Ms Cooper then proceeded to attempt to make submissions, persistently interrupted by Ms Topping, that the matter should not be finalised in order to allow the preparation of a proper Part 25 application in light of what all agreed was Mr Clowry's default and, more importantly, because the father wished to contest the final hearing and seek a "much wider order in relation to contact" (the learned Judge by this point already having indicated his preference for an order that reflected broadly the current, limited contact taking place between father and daughter). In response to the latter submission, the learned Judge commented as follows:

"His Honour Judge Scarratt: Listen, even if there was a, a further report and then a final hearing which would be probably at Easter, early summer next year, poor [T] waiting around what's the contact Order I am going to make, it would be probably that it be such contact as agreed by the parents. I am not going to, I'm not going to Order staying contact because that's quite improbable at the moment and I'm not going to make an Order of something that just won't happen. Neither would I hear a review hearing. So, I'm not sure what your client thinks the Court is going to Order. I'm certainly not going to Order half the holidays in Hungary and overnight contact. We're way beyond that now. Your client's got to accept that this little girl does not want that sort of contact at the moment."

At this point, discipline in the hearing appears to have broken down entirely. The father himself begins to make submissions to the learned Judge, Miss Cooper, Mr Persson and Ms Topping continue to make points with little order, structure or focus, and even Mr Gaye enters the arena at one point. All this occurred as the learned Judge continued to propound his view that a final order should be made at the hearing, reflecting the then current level of contact, and sought repeatedly to press the parties to agree to that course of action.

Within the foregoing context, it is of particular note from the transcript that no party was ever able during the hearing to get to the stage of making submissions on the key issue before the court, namely the question of whether, if the court decided to proceed to conclude the proceedings, a final child arrangements order should be made and, if so, the nature and extent of the contact in any final child arrangements order. Whilst counsel were able, up to a point, to make submissions on the question of whether the learned Judge should proceed with the final hearing or adjourn it, the increasingly unstructured nature of the hearing meant that, as conceded by Ms Topping and Mr Persson before me, no party ever reached the stage of making submissions, nor did the learned Judge invite submissions, on what outcome with respect to contact was in T's best interests if the learned Judge determined, against his initial instinct, that it was right conclude the proceedings then and there. This was the case even though Miss Cooper had made clear on behalf of the father that the matter was contested, and that the father would be seeking more extensive contact in any final order than that then taking place, and even though Ms Topping's instructions from the Children's Guardian remained that there should be no order as to contact and an order pursuant to s 91(14) of the Children Act 1989 with respect to the father for a period of 12 months.

Finally, in the context of the District Judge having expressed "severe concerns" regarding the report of Mr Clowry, and the learned Judge having stated that his report was "nonsense", that Mr Clowry had "gone off piste", that he had "thoroughly blotted his copy book" and that the learned Judge would be putting the report aside, and despite strenuous objection from Ms Topping, the learned Judge decided to hear from Mr Clowry, who was invited into the courtroom. His opening gambit to Mr Clowry was as follows:

"His Honour Judge Scarratt: Afternoon. Just, just come and sit there for a moment will you. Everyone is thoroughly disappointed with this work you've done. When I say everyone, I mean everyone. It not what we asked for at all."

Notwithstanding the views expressed by the learned Judge during the course of the hearing, and his level disappointment stated directly to Mr Clowry, the learned Judge then proceeded to enquire of Mr Clowry when the work he had been instructed to undertake could be completed if his instruction was continued. Mr Clowry having stated his work would not be possible if T would not agree to see him, the learned Judge also put to Mr Clowry that forcing T to see a psychologist would not work, in respect of which Mr Clowry responded as follows:

"Mr Clowry: Well, with respect to the language I think if that were the attitude and the way in which it was manage, forcing putting great pressure on a child but I think encouraging a child would not, might be productive.

His Honour Judge Scarratt: Well to be fair that's exactly what the Guardian has done in a response, in a, in an email response. He has encouraged her, really, really encouraged her to go.

Mr Clowry: But, I would tend to see situations like that Your Honour not in terms of black and white. Sometimes in a preliminary meeting a child who has never seen psychologist or social worker might, perhaps if I saw the child with the mother, feel then on the basis of evidence having met the person reasonably inclined to continue. If the child is caught up in a very powerful adversarial situation there's a high probability the child is going to reflect certain of the adult attitudes and opinions. If the child were enabled to meet the psychologist whether it be me or anybody else the child might then be prepared to reconsider. I don't know, I don't know the child.

His Honour Judge Scarratt: So you could, you could have a plan of work available by the end of next week could you?

Mr Clowry: Yes, indeed.

His Honour Judge Scarratt: Provided the mother and [T] saw you in the week?

Mr Clowry: Yes indeed Your Honour"

Whilst having heard from Mr Clowry the learned Judge told him that he was "released", this appears to be a term of art as there is no indication that Mr Clowry was sworn, and no party was permitted to cross examine him. The status of the information Mr Clowry provided to the court is, accordingly, unclear. He did not give evidence and his report was, by common acclaim, considered deficient by all parties. However, at one point during the hearing, and despite the criticisms levelled at the report of Mr Clowry by the Children's Guardian, Ms Topping was permitted to rely in her submissions on that self-same report as evidence that the father had not reflected on his behaviours, whilst almost in the same breath stating the report was deficient and could not be relied on.

Within this context, it is also unclear what status the learned Judge attached to the report, and to the contribution of Mr Clowry at the hearing when considering his decisions with respect to the instruction of a further expert and with respect to whether to conclude the proceedings. However, immediately before giving judgment the learned Judge said:

"His Honour Judge Scarratt: Yes well, I'll, on the basis no wants to say anything else I'll, and having now heard from Mr Clowry about what he can and cannot do, I'll make a decision."

THE JUDGMENT

In a compact final judgment spanning twenty-five paragraphs, the learned Judge set out briefly the history of the matter, noting that litigation had been continuing for almost a decade and recalling in broad outline the procedural stages that preceded the hearing on 28 November 2018, in particular the instruction of Mr Clowry.

The learned Judge recalled that Mr Clowry had "not given evidence" but that the learned Judge had asked him about his ability to prepare a report. The learned Judge then dealt with T's stated view that she would not see any psychologist, the efforts of the Children's Guardian to encourage her to do so and Mr Clowry's statement that he could not complete his work if T would not see him. Within this context, the learned Judge then expressed himself unwilling to deal with the father's application under FPR Part 25 for an alternative expert "on the hoof", notwithstanding his sympathy for the father that he was unaware until immediately prior to the hearing of Mr Clowry's default.

The learned Judge then went on to deal in a little more detail with the history of the matter, and in particular the progress, or lack thereof, of contact. He noted that "a decade of litigation hangs over" T and stated that T has told the Children's Guardian she has "had enough". Within the context of noting the Children's Guardian's view that "if the pressure is off, the child will organise contact of her own accord", the learned Judge noted that he had previously made orders for monthly contact and that, whilst the learned Judge had hoped those orders would "kick start the contact", they had not done so, albeit that, importantly, some short contact had gone ahead.

The learned Judge then moved on to deal with the respective positions of the parties. Whilst learned Judge states at [12] that "The parties have agreed that I should deal with the issues today by way of submissions", it is not at all apparent from the transcript that this agreement had, in fact, ever been forthcoming from any or all of the parties. In any event, in circumstances where no party was able during the hearing to get to the stage of making submissions on what outcome with respect to child arrangements was in T's best interests if the learned Judge determined to conclude the proceedings, the learned Judge's summary of the parties' positions in that regard was necessarily broad.

Within this context the learned judge then made two substantive decisions. The first was to dismiss the application of the father for permission to instruct a replacement expert or for an adjournment to allow him to prepare such an application. The second was to grant a final child arrangements order providing as follows:

"11. CONTACT

T lives with the Respondent Mother and there shall be the following contact between T and the Applicant Father:

(a) Each month – at least 2 hours to include a meal. These monthly sessions shall take place regardless of whether there are any further holiday sessions in addition, as provided for below.

(b) Holidays – in addition to the monthly periods of time above, there should be the following further periods, each of at least 2 hours:

(i) Christmas – one further period.

(ii) Easter – one further period.

(iii) Summer – two further periods.

(c) Mobile phone – the father may ring T on her mobile phone and the mother shall re-confirm T's current mobile phone number to the father forthwith.

(d) Email – the father may email T on her current email address as confirmed at court today.

(e) Such further or other contact as may be agreed between the parties in writing or requested by T which may include holidays in the UK and overseas.

(f) All face to face contact shall be agreed between the parties in writing at least 56 days in advance of a session of direct contact."

With respect to each decision, the following reasons can be deduced from the judgment.

As regards the father's application for a replacement expert or a short adjournment to permit the preparation of a Part 25 application, the learned Judge appears to have refused that application because T had indicated in the email of 1 October 2017 that she would not meet with an expert, and her wishes and feelings had to be balanced against the question of necessity, that such a course of action was "vehemently" opposed by the mother and the Children's Guardian, that Mr Clowry had said that "a psychologist would have to see a child before he or she could reach a conclusion" (it is clear from the passage from transcript that I have set out above that this is not a complete summation of what Mr Clowry had, in fact, said) and that it would be "a complete waste of time to expend monies" on another expert.

With respect to the decision to make a final child arrangements order in the face of objection by the father, and indeed by the Children's Guardian, the learned Judge noted during his judgment that T's best interests were his paramount consideration and that he had to have regard to the 'welfare checklist' in s 1(3) of the Children Act 1989. He stated he placed "great weight" on T's wishes and feelings. By way of explaining his reasons for making a final child arrangements order in the face of the father's objections in the terms he did, the learned Judge said as follows at [19] and [20]:

"[19] There is contact in this case. I am satisfied with the Guardian's position that of [T] is left to her own devices with the guidance of an order of the court that there will be some contact between her and the father if I make those orders today. I accept the father's misgivings about this and I accept that the father will not be happy with the amount of contact ordered but ordered it will be and it is the mother's duty as a mother and as a primary carer of the child to ensure that the contact works. If it does not work, I shall hold the mother to blame. It is a difficult task being a parent and a very difficult task being a single parent of a teenage child who has to toe the line and see an absent parent. I accept that.

[20] For all those reasons I have decided today that this will be the end of the litigation. I am not going to instruct or have instructed or entertain any application for further psychologist's reports. I am, though, going to make an order for contact and it will take place once a month for at least two hours between [T] and her father, the mother can be present if [T] wishes. It can be put in the preamble of the order that the mother should not be present on each and every occasion."

THE SUBMISSIONS

The Appellant Father

The father made moderate and considered submissions on the five broad grounds distilled with the assistance of the court from his Grounds of Appeal and amended Grounds of Appeal at the outset of the hearing. His submissions mirrored those grounds and he expanded on each in turn when invited by the court to do so.

With respect to his first ground, in summary, the father submitted that the fact that the judge said he had not looked at the bundles and had read the expert report over a sandwich demonstrates he had not prepared for the hearing adequately. He submitted that, in circumstances where the hearing was not moved to the learned Judge until 2.20pm and that the learned Judge had to attend a meeting at 4.00pm demonstrated that the learned Judge did not accord the final hearing, listed for three hours, sufficient time. The father further argued that the transcript of the hearing plainly showed that the learned Judge did not give proper consideration, or indeed any consideration, to the arguments on the central issue before the court at the final hearing, namely the nature and extent of any final child arrangements order. As I have noted, the father complained that the fact that the hearing before the learned Judge descended into a "shouting match" further prevented the learned Judge from giving proper consideration to the arguments before him. As I have noted, before me, the father also argued that it was apparent from the transcript that the learned Judge had pre-judged the case when he came into court.

With respect to his second and third grounds, the father submitted that the learned Judge's decision not to allow the application for an alternative expert, or an adjournment to allow the preparation of a properly constituted Part 25 application was contradictory in circumstances where the learned Judge had been satisfied on 15 September 2017 that such evidence was necessary to resolve the proceedings justly. The father argued that this was further evidence of the learned Judge having failed properly to prepare for the hearing. The father further argued that, in circumstances where the fact that the expert evidence the court had considered necessary was not before the court due to the default of Mr Clowry and not a change of circumstances that affected the conclusion on necessity, the learned Judge should have at least allowed a short adjournment to permit him to issue a properly prepared Part 25 application in circumstances where he had only received the deficient report of Mr Clowry the evening before the final hearing and where, on the father's submission, expert evidence remained necessary.

With respect to his fourth ground, the father submitted that, having regard to the learned Judge's comments on 15 September 2017 expressing the view that a 13-year-old child should be told what they are going to do, that "pandering" should be avoided, that T was being "allowed to rule the roost" and that sometimes children must be told "this is what the court has ordered", the learned Judge's decision to place determinative weight on T's stated position that she would not see any experts was again contradictory and, within this context, unjustified on the basis of a single email, disclosed late to the father, with no further cogent evidence of how T's views had evolved following the email sent by the Children's Guardian on 4 October 2017.

Within the foregoing context, the father submitted that the learned Judge unfairly truncated the final hearing in circumstances where expert had not done his job and decided case without hearing properly from the parties. The father submitted that the learned judge was wrong to decide that it was in T's best interests for the case to be concluded summarily and on the terms of the final child arrangements order made by the learned Judge, in circumstances where the learned Judge had considered no substantive submissions on the nature and extent of any final order. In particular, the father submitted that the learned Judge was wrong to decide the case based on his conclusion that contact would develop under the auspices of the final order he made if T was left to her own devices, the father submitting that all of the evidence before the court pointed precisely to the contrary.

The Mother

On behalf of the mother, Mr Persson mounted a strenuous defence of the learned Judge's orders in his comprehensive Skeleton Argument, supplemented by his oral submissions to this court.

With respect to the refusal by the learned Judge to countenance a replacement expert or to permit an adjournment for a properly constituted application to be prepared, in summary, Mr Persson submitted that the original decision of the learned Judge to permit a report from Mr Clowry had been a finely balanced decision (as is apparent from the transcript, this is not an accurate reflection of the learned Judge's reasons as given on 15 September 2017) and that the instruction of Mr Clowry was an "expressly time sensitive instruction". Within this context, and in the context of T's expressed views about seeing an expert and the length of time the proceedings had been on foot, Mr Persson submitted the decision of the learned Judge to refuse further expert evidence or a short adjournment fell well within the ambit of his discretion.

With respect to the decision of the learned Judge to make a final child arrangements order and conclude proceedings summarily as Mr Persson had urged him to do, in summary, Mr Persson pointed out that the learned Judge articulated the paramountcy principle and made reference to the existence of the 'welfare checklist' in s 1(3) of the Children Act 1989. Mr Persson further pointed to the fact that the learned Judge had long experience of the case and that his decision to make a final order and conclude proceedings was based on "a complex matrix of fact, opinion and allegation". Mr Persson argued that the primary issue in the case was whether Mr Clowry should continue his work and, if the conclusion was no, whether the proceedings should be brought to a close and with what order. In seeking to defend the learned Judge's making of a final child arrangements order, Mr Persson submitted that contact "had been working at the rate previously arranged" without an order (a point disputed by the father), that proceedings were by then over a year old and litigation had been continuing and on and off for nearly eleven years, that Guardian's position had been "unequivocal" and that further proceedings would be counterproductive. Mr Persson concluded his written submissions by contending that the appeal should be dismissed as being "contrary to the interests of T".

Mr Persson did not engage in his written argument with the Appellant's key submission that, on the face of the transcript and the judgment, the learned Judge had moved to make a final child arrangements order in a case that remained contested without hearing or properly considering arguments from the parties on the issue of whether a final order should be made and, if so, the nature and extent of contact. In his oral submissions however, Mr Persson conceded that, within the context of manner in which the hearing progressed, no party was able to make substantive submissions as to the merits in respect of a final order or contact before the learned Judge made a decision in respect of those issues. Mr Persson likewise conceded that the court did not have before it statements of evidence or a final report from the Children's Guardian. Mr Persson however resisted the suggestion that the learned Judge had pre-judged matters, characterising the learned Judge's statements as perfectly permissible robust indications at a final hearing, and likewise resisted the suggestion that the learned Judge was not adequately prepared for the hearing, pointing out that the learned Judge had long been involved with the matter over a number of hearings.

The Child

On behalf of T, Ms Topping also mounted a forceful defence of the learned Judge's orders in her Skeleton Argument and oral submissions. Overall, the tenor of Ms Toppings submission was that T had spoken, that she had been "promised" that the proceedings would be concluded by a certain point and that, therefore, the Judge had acted appropriately in bringing the proceedings to an end summarily, in the manner that he did.

With respect to the decision of the learned Judge not to countenance a replacement expert or to permit an adjournment, in summary, Ms Topping submitted that the fact that Mr Clowry had not fulfilled his instructions was really neither here nor there in circumstances where the time for instructing an expert had "run out", having regard to the Judge's stated intention that the proceedings would be concluded before Christmas. Indeed, Ms Topping submitted that the fact that the Children's Guardian had "promised" T that the proceedings would be concluded by Christmas 2017, and that accordingly the time for instructing an expert had "run out", was a complete answer to all points concerning Mr Clowry's default, and one which brooked of no exception, particularly in circumstances where T had indicated her objection to seeing an expert. Within this context, and relying on an assertion that the learned Judge had characterised his decision to permit the instruction of Mr Clowry as finely balanced (again, an incomplete description of the learned Judge's characterisation of his decision) as justification for the learned Judge's view that expert evidence should no longer be pursued notwithstanding the decision on 15 September 2017 that the same was necessary to resolve the proceedings justly, Ms Topping submitted that the learned Judge was not wrong to reject the father's case on replacement expert evidence in circumstances where the proceedings had been ongoing for a decade and it was not being suggested that T should live anywhere than with her mother.

Like Mr Persson, Ms Topping did not engage in terms in her written submissions with the Appellant's key submission that the learned judge had concluded the proceedings with a final child arrangements order (which was an outcome opposed by the Children's Guardian) without properly considering arguments from the parties on the question on the need for a final order and, if an order were made, on the nature and extent of contact. In her oral submissions however, like Mr Persson, Ms Topping conceded that, within the context of an increasingly unstructured and fractious hearing, no party ever came to make substantive submissions as to the merits in respect of any final order. Ms Topping likewise conceded that the court did indeed not have before it, statements of evidence from the parties or a final report from the Children's Guardian when considering whether to make a final child arrangements order and, if so, in what terms. Like Mr Persson, Ms Topping also however, resisted the suggestion that the learned Judge had pre-judged matters, characterising the learned Judge's statements as perfectly permissible robust indications of the type regularly seen at final hearings in cases of this nature. Ms Topping also resisted the suggestion that the learned Judge was not adequately prepared for the hearing, also pointing out that the learned Judge had long been involved with the matter.

THE LAW

Pursuant to FPR r 30.12(3) this court may allow an appeal where it considers that the decision of the court below was wrong or unjust because of serious procedural irregularity or other irregularity in the proceedings before the lower court. On behalf of the mother, Mr Persson also urges upon me the dicta of Lord Wilson in Re B [2013] UKSC 33 at [38] to [41], which paragraphs consider the well-known authorities of G v G [1985] 1 WLR 647 and Piglowska v Piglowska [1999] 1 WLR 1360.

The father has referred me to a large number of authorities concerning the duty of the court to promote contact between a child and his or her non-resident parent in cases of intractable hostility by one parent towards contact. Given the basis on which I am satisfied that the father's appeal should be allowed, it is not necessary for me to consider these authorities within this judgment. However, it is important to look in a little detail at the authorities that deal with the spectrum of procedure that a court may adopt when dealing with a final hearing in proceedings involving children, and the authorities dealing with the boundaries that circumscribe judicial indications during the course of a hearing.

With respect to the spectrum of procedure at a final hearing, in the well-known case of In Re B [1994] 2 FLR 1 Butler Sloss P considered the circumstances in which courts could make final orders in private law matters without a full hearing:

"… Applications for residence orders or for committal to the care of a local authority or revocation of a care order are likely to be decided on full oral evidence, but not invariably. Such is not the case on contact applications which may be and are heard sometimes with and sometimes without oral evidence or with a limited amount of oral evidence…The considerations which should weigh with the court include:

(1) whether there is sufficient evidence upon which to make the relevant decision;

(2) whether the proposed evidence (which should be available at least in outline) which the applicant for a full trial wishes to adduce is likely to affect the outcome of the proceedings;

(3) whether the opportunity of cross-examining the witnesses for the local authority, in particular in this case the expert witnesses, is likely to affect the outcome of the proceedings;

(4) the welfare of the child and the effect of further litigation – whether the delay in itself will be so detrimental to the child's well-being that exceptionally there should not be a full hearing. This may be because of the urgent need to place the child, or as is alleged in this case, the emotional stress suffered by both children, and particularly D;

(5) the prospects of success of the applicant or a full trial;

(6) does the justice of the case require a full investigation with oral evidence?"

In Re C (Family Proceedings: Case Management) [2012] EWCA Civ 1489, [2013] 1 FLR 1089, the President observed as follows:

"[14] … These … are family proceedings, where it is fundamental that the judge has an essentially inquisitorial role, his duty being to further the welfare of the children which is, by statute, his paramount consideration. It has long been recognised – and authority need not be quoted for this proposition – that for this reason a judge exercising the family jurisdiction has a much broader discretion than he would in the civil jurisdiction to determine the way in which an application of the kind being made by the father should be pursued. In an appropriate case he can summarily dismiss the application as being, if not groundless, lacking enough merit to justify pursuing the matter. He may determine that the matter is one to be dealt with on the basis of written evidence and oral submissions without the need for oral evidence. He may, as His Honour Judge Cliffe did in the present case, decide to hear the evidence of the applicant and then take stock of where the matter stands at the end of the evidence.

[15] The judge in such a situation will always be concerned to ask himself: is there some solid reason in the interests of the children why I should embark upon, or, having embarked upon, why I should continue exploring the matters which one or other of the parents seeks to raise. If there is or may be solid advantage in the children in doing so, then the inquiry will proceed, albeit it may be on the basis of submissions rather than oral evidence. But if the judge is satisfied that no advantage to the children is going to be obtained by continuing the investigation further, then it is perfectly within his case management powers and the proper exercises of his discretion so to decide and to determine that the proceedings should go no further."

Within the foregoing context, in Re Q (A Child) [2015] EWCA 991 the Court of Appeal again affirmed the principle that a judge may, in appropriate circumstances, deal with the matter summarily and make final orders at a short hearing without hearing evidence. However, when adopting this course of action, the Court of appeal has also made clear that great care is required on the part of the court. In Re H (Contact: Domestic Violence) [2005] EWCA Civ 1404, [2006] 1 FLR 943 at [106], Wall LJ noted as follows with respect to the proper approach:

"Of course, an experienced judge can cut corners and make substantive orders on short appointments. But if a judge is to take that course, he must be very sure of his ground, and demonstrate clearly that he has taken all relevant considerations into account."

As Lewison LJ noted in Re S-W (Children) [2015] EWCA Civ 27 at [48], family cases, however inquisitorial and streamlined they may be, are not exempt from the basic principles underpinning a fair trial.

With respect to the boundaries circumscribing judicial indications during the course of a hearing, I note the observations of McFarlane LJ in Re Q (Children) [2014] EWCA Civ 918. In Re Q, McFarlane LJ observed, albeit in the context of interim case management hearings, as follows with respect to the boundary between robust case management and premature adjudication:

"[45] Family judges are encouraged to take control of the management of cases rather than letting the parties litigate the issues of their choosing. In undertaking such a role, a judge must necessarily form, at least a preliminary, view of the strength and/or merits of particular aspects of the case. The process may well lead to parties reviewing their position in the light of questioning from the judge and, by agreement, issues being removed from the list of matters that may fall to be determined.

[46] Despite having to adopt a 'pro-active' role in this manner, judges must, however, remain very conscious of the primary judicial role which is to determine, by a fair process, those issues which remain live and relevant issues in the proceedings. The FPR 2010 makes provision for an 'Issues Resolution Hearing' ['IRH'] at a later stage of care proceedings. As the IRH label implies, it is intended that some, if not all, of the issues will be resolved at the IRH stage. The rules are however plain [FPR 2010, PD12A] that the 'court resolves or narrows issues by hearing evidence' and 'identifies the evidence to be heard on the issues which remain to be resolved at the final hearing'.

[47] The task of the family judge in these cases is not an easy one. On the one hand he or she is required to be interventionist in managing the proceedings and in identifying the key issues and relevant evidence, but on the other hand the judge must hold back from making an adjudication at a preliminary stage and should only go on to determine issues in the proceedings after having conducted a fair judicial process.

[48] There is, therefore, a real and important difference between the judge at a preliminary hearing inviting a party to consider their position on a particular point, which is permissible and to be encouraged, and the judge summarily deciding the point then and there without a fair and balanced hearing, which is not permissible."

DISCUSSION