England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
IN THE MATTER OF THE CHILDREN ACT 1989
APPEAL FROM HHJ REDGRAVE

		Royal Courts of Justice Strand, London, WC2A 2LL
		28/03/2023

The Honourable Mr Justice Cobb:

Introduction

1. By notice of appeal dated 31 August 2022, Mr K ("the father") appeals against an order made in private law proceedings under the Children Act 1989 ('CA 1989') by Her Honour Judge Redgrave ('the Judge'), sitting at the Family Court at Bromley.
2. The order under appeal, dated 15 July 2022, provided:

i) For the mother to make the parties then 5-year old daughter, T, "available to spend time with the [father] by way of indirect contact: the father shall send [T], once per month, letters, gifts and/or cards";

ii) With a provision for "such further or other spending time arrangements as may be agreed by the parties";

iii) That order was prefaced by a recital as follows:

"… and upon the court indicating to the parties that until there was a significant shift in the girls^[1] wishes and feelings, having regard to the trauma they have suffered; And the father positively engaging in the necessary perpetrator programme, that indirect contact was the only realistic spending time arrangement that could be directed by the court."

3. The application for permission to appeal was considered by Moor J on the papers in February 2023; he granted permission to the father to appeal the order in relation to T, particularly given that the authors of section 7 reports had apparently contemplated that the father could have some direct contact with T. Moor J was further concerned (a) that the Judge had not adequately dealt with the allegation that the mother had influenced T against her father, and (b) the young age of T.
4. I should add here that the father had, in the proceedings at first instance, sought a child arrangements order also in relation to his then 15-year old daughter ('R'). HHJ Redgrave declined to make a child arrangements order in respect of R. The father's application for permission to appeal that order was refused by Moor J.
5. On the hearing of the appeal, I received short oral and written submissions from the father in person; the mother was represented by counsel, Ms Rhone-Adrien, who has represented the mother throughout the proceedings. I considered carefully the filed documents including the filed reports, the judgments, and a full transcript of the hearing before HHJ Redgrave. I reserved judgment for a short time.

Background

6. The father is 49 years old. The mother is 38 years old. They are both in employment in positions of responsibility.
7. They were in a relationship for altogether 20 years. They married in 2012. Their two children are, as I have already mentioned, R now aged 16 years 6 months, and T aged 6 years 4 months.
8. The marriage deteriorated in 2019-2020. Between the 19th of January 2020 and the 30th of March 2020, the mother called police for assistance on four occasions in relation to alleged violent incidents perpetrated on her by the father. It is notable that T was said to have witnessed at least one of the incidents, and that when the police attended the property on the first occasion "they found [T] hiding under a table … and had to coax her out" (extract from the Judge's fact-finding judgment: see §12 below). The Judge recorded in her fact-finding judgment:

"[T] was reported to have told a teacher on the 15th of January 2020 "daddy drinks and drinks….is very tired and not well and he fell and smashed his face".

It is to be noted that T's account of her father's behaviour actually pre-dates the first police call-out to the family home. The judgment continues:

"On the 20th of January 2020 [T] was reported to appear withdrawn and anxious at school and talked of her father being arrested but since the end of February had settled down and spoke fondly of him."

The Judge found that in the incident on 19 January 2020, T is "likely to have been distressed by the altercation and seeing [her mother's] injury to her arm". As to this incident, the Judge further commented:

"…it is probable that the [father] used considerable force to prevent the [mother] from closing/locking the door and either hurt her deliberately or with reckless indifference to the consequences of his actions."

9. As a result of the police involvement, a section 47 investigation was commenced, and a referral was made to the local Children's Services. On 30 March 2020 the father moved out of the family home. In April 2020 the children's situation was considered at a multi-agency Child Protection case conference; the children were identified as 'children in need'. The mother applied for, and was granted, interim injunctive relief from the Family Court under the Family Law Act 1996.
10. The father last had any contact with either of his daughters in March 2020, exactly three years ago.
11. Divorce and financial remedy proceedings were commenced and have now run their course; the former matrimonial home has been transferred into the sole name of the mother.
12. In January 2022, HHJ Redgrave conducted a fact-finding hearing within the CA 1989 proceedings in relation to the allegations of domestic abuse. On the 25th January 2022, she delivered a judgement making findings against the father of the following:

i) Physical assaults on two occasions by the father resulting in physical injury to mother;

ii) Physical intimidation and aggression by the father towards the child R including inappropriate methods of discipline;

iii) Discrediting and isolating behaviours, controlling and physical/verbal aggression and intimidation by the father towards the mother;

iv) The father's s irresponsibility and lack of safety concerns placing the mother and children at risk of harm, fuelled by cannabis and alcohol abuse.

13. The Judge did not find proved an allegation of financial control.
14. The Judge concluded her judgment by remarking that the mother and the children had been victims "directly and indirectly" of domestic abuse perpetrated by the father. She found that the father further:

"… manifests a lack of insight into the effect of this toxic situation on the children and a disregard for their welfare when he put forward the proposition that he should re-enter the former family home and care for the children to the exclusion of the [mother]".

And that:

"The [father] clings to the view that unless the girls were physically present, they would not be affected by these altercations. This ignores that they would have seen their mother's injuries and distress in the aftermath."

At the conclusion of the fact-finding hearing the Judge made a non-molestation order and an occupation order.

15. The fact-finding judgment provided an essential context for the order under challenge by this appeal, and the reasons for it.
16. In March 2022, the father stood trial at the Crown Court on an indictment based upon the domestic abuse allegations (assault occasioning actual bodily harm); the jury was unable to reach a verdict. He was re-tried and at the conclusion of the second trial he was acquitted.
17. At the final hearing on 15 July 2022, HHJ Redgrave received brief sworn evidence from the author of the addendum section 7 report, and also from the father; she heard submissions from both parties.

Section 7 reports

18. Following the fact-finding judgment, and within the proceedings under the CA 1989, the court ordered a report under section 7 CA 1989 from the local authority which had been involved with this family (see §9 above). This was filed with the court in April 2022, and an addendum was filed in July 2022; the addendum was (by reason of the unavailability of the original author) prepared by a different social worker.
19. The authors of the section 7 reports had contemplated that the father and T should be enabled to have time with one another, gradually increasing from letter-writing (or e-mails) through to direct contact. Progression through the various stages of indirect to direct contact was expressed to be contingent upon the father's demonstration of his commitment to the relationship with his daughter, and of his completion of a domestic abuse perpetrator's programme. Thus, telephone contact was said to be "providing [the father] is consistent with the letter contact", and progression through to direct contact "…will be dependent on [the father] successfully completing the 'Strengthening Families, Strengthening Communities' (SFSC) program which encompasses drug and alcohol issues", and the completion of a domestic abuse perpetrator programme^[2]. And even then, the resumption of supervised direct contact at a contact centre was to be subject to "review" by two family members (one appointed by the mother, and one by the father: see below §20(v)/(vi)).
20. Given the father's challenge to the Judge's apparent failure to follow the recommendations of the section 7 reporters, it is important that I record the following key passages from the section 7 reports:

Main report

i) T was assessed to be a "very confident and articulate" young person who was expressing the view that she did not want to see her father;

ii) It is "… not surprising that both children [T and her sister] have expressed their wishes" as they have "given the background of domestic abuse";

iii) "The children continue to suffer emotional harm with [T] indicating that she is worried about contact with her father".

Addendum report

iv) "I am aware that both [R] and [T] have been victims of physical and emotional abuse whether this be indirectly or directly. However, despite this, it is my view that the children need to be given the opportunity to recognise people's propensity to change as this will support them to build resilience and be able to process what has happened for them in order for them to move forward which will support them to become well rounded adult, who are able to build and maintain healthy relationships";

v) "… it would be my recommendation that [the mother] identifies a trusted person within her family support network that can support her to facilitate the contact arrangements pending the time that Non-Molestation Order is in place and [the mother] feels comfortable to take over the arrangements given her own experiences and the needs of the children";

vi) "It is my professional view that the designated adult identified by [the mother] undertakes this review with a person identified by [the father]";

vii) "[R] and [T] have both expressed not wanting to have contact with [the father] ... [T] has expressed that she is worried about seeing [the father] as he is a dangerous man who has hurt her, mummy and [R]";

viii) "[R] and [T] will need support through therapy and engagement with a domestic abuse support programme (Keys to Freedom) for young survivors of abuse particularly in regard to [T] who is said to be fearful of men due to her exposure of domestic abuse. It will be important that she is supported to understand her experience, process any emotions that this evokes in her so that she is able to establish and maintain healthy relationship are she develops".

21. When giving oral evidence, the author of the section 7 report (addendum)| confirmed that the father had told her that he "doesn't believe that he perpetrated abuse"; she considered that the father needed to undertake and complete a domestic abuse perpetrators programme before direct contact could be considered. She confirmed that the arrangements for progressing contact should be left in the hands of the parents and family members. The following passages from the evidence of the section 7 author are notable:

i) Social worker on the necessary steps to progress from indirect to direct contact:

"COUNSEL FOR MOTHER: Q: If he shows consistency with that letterbox contact – and please, correct me if I am wrong – and if he successfully completes the domestic perpetrators programme, that is when there should be a review of contact?

A: Exactly, yes, because that is what should trigger a review."

ii) Social worker on the necessary steps to progress from indirect to direct contact:

"JUDGE REDGRAVE: So really, your recommendation goes no further than actually either letters or emails for a period of time?

THE WITNESS: Um-hmm.

JUDGE REDGRAVE: There is no recommendation for direct contact.

THE WITNESS: There was a recommendation for it to progress to supervised contact.

JUDGE REDGRAVE: Well, yes, but it would only progress to something else if progress is made.

THE WITNESS: Yes.

JUDGE REDGRAVE: If there is not the progress, then it seems to me that you are stuck.

THE WITNESS: Yes."

iii) Father's acceptance that contact with T would begin with indirect contact, and that progress to direct contact would be conditional:

"JUDGE REDGRAVE: Well, can we just be very specific? The section 7 report at this stage is recommending indirect contact, and it is suggesting emails, and that the recommendation then is that if you then successfully complete the domestic violence programme, hopefully you can then move on to telephone calls and contact in a contact centre.

FATHER: Yes.

Q. So that is what you agree to?

A. Yes".

iv) The father accepting that there should be a final order:

"COUNSEL FOR MOTHER: Q: [The social worker] is saying that there should be a final order today.

A: Yes.

Q. Do you understand that?

A. Yes, there should be.

Q. Do you agree with that, that there should be a final order today?

A. Yes".

The Judgment

22. At the conclusion of the final welfare hearing, the Judge delivered a short ex tempore judgment. She made reference to the welfare test and the welfare checklist and recorded in her judgment (per section 1(3)(a) CA 1989) that neither child wanted to see their father. She said that:

"They have expressed to schoolteachers and social workers, they do not want to see him because their father has drunk to excess and has behaved in an aggressive way towards them, and that he has hurt their mother".

23. She reflected the recommendation of the section 7 authors, namely:

"… indirect contact until such time as [the father] has been able to address and develop some insight into the effect his behaviour has had on the girls."

She made no order for contact between the father and R given her age (then nearly 16) and R's strongly expressed views against seeing her father. She ordered indirect contact only between the father and T.

24. In reaching this conclusion, the Judge drew from her fact-finding judgment (see §12 above). She followed the recommendation of the section 7 authors insofar as they recommended indirect contact at this stage, while rejecting their proposals for family members to take responsibility for managing contact going forward. In this regard, the following passages from the welfare judgment are of note:

i) "I think that there are aspects of the addendum report, which are completely unrealistic, because the author recommends that each party should nominate a representative to act on their behalf and could mediate in relation to progress of contact, and who at a later stage can get together and decide whether, in fact, [the father] has made sufficient progress in terms of his developed insight into the effect of his behaviour on the girls, and that it can mean that the case can then go on to a different level in terms of Zoom calls and then perhaps contact in the contact centre";

ii) "I think that the author's recommendation of representatives to act as mediators to decide at what stage they should (inaudible) wholly realistic (sic.) [I am sure that the word should be 'unrealistic']. I think it is also bordering on the unprofessional, to be honest. Brothers, maternal grandmothers, friends, relatives, they do not have the expertise to carry out risk assessments, or anything of that nature. What, it seems to me, is in the interests of the girls is that they continue to know that their father cares about them, and that he should really send them direct notes, by way of letters and cards, on a monthly basis, in which he can inform them of the developments in his life";

iii) She recorded that neither child wanted to see their father; she rejected the suggestion that the mother had "poisoned" the children's minds against him; "I do not have any evidence of that. What I do have is, as I am satisfied on the balance of probabilities, of the girls being exposed to the breakdown of the marriage in the latter months, which actually seriously affected their views of their father";

iv) She recorded that she "… would have considered making an order for supervised contact in a contact centre if the girls had expressed a desire to see their father, but both of them do not at this stage";

v) "I will make an order in relation to indirect contact between [T] and father, and I would ask that the mother would encourage [T] to send cards, or little drawings, or anything of that nature, to the father. But at this stage, I cannot make any face-to-face order for contact. I do not consider that it is in the interests of the welfare of the girls, bearing in mind they are still, to a certain extent, traumatised by what they have experienced."

The Appeal

25. The father invites the court to vary the order made by HHJ Redgrave, by substituting an order for supervised direct time with his daughter T, leading to "normal contacts at weekends and holidays". He specifically proposes that contact should resume initially with T by telephone.
26. It is the father's case that the Court erred by disregarding the section 7 recommendations (which he says would have led ultimately to an arrangement whereby he would have direct contact with T), leaving no possibility of the contact progressing from letter-writing / e-mails to anything more than that. The father told me that he wishes to progress to 'normal' visits with T at weekends and for holidays.
27. In his submissions on the appeal, he maintained, as it appears that he had stated to HHJ Redgrave, that he was never abusive to the mother (in spite of the judicial findings from January 2022). In his written argument on the appeal, he revealingly criticised HHJ Redgrave for "[believing] all the lies of abuse fashioned by the [mother]", adding that there was "there was no evidence to support this assertion" (i.e., of abuse) and "I have never abused the [mother] in our 18-year relationship". He told me, during his submissions on the appeal, that he had been "exonerated" in the Crown Court. He further told me that he recognised that the children had been traumatised, but by the mere fact of the parental separation, not by any abuse by him. He told me that he had undertaken the 'better parent' courses proposed, not because he considered that had behaved in any way as to justify his attendance, but simply in order to 'build bridges' with the family.
28. To his credit, the father recognised that the social workers recommendation that a member of his family (his brother) should mediate arrangements for the development of contact with a member of the mother's family (the maternal grandmother) and/or have responsibility for assessing the risks of introducing direct contact was wholly unrealistic. He had told the Judge that he was not able to talk to the maternal grandmother anymore (she had after all given evidence against him in the fact-finding hearing); he had also seen very little of his own brother, and at one time in the proceedings had described a poor relationship with him.
29. He argued that the children had been coached by the mother to express negative views of him, a point which – he said – had not been addressed sufficiently (or at all) by the Judge.
30. The mother opposes the appeal. Ms Rhone-Adrien emphasised the damage to the children as a result of the proven acts of abuse by the father, as reflected by the fact-finding judgment. She pointed to the fact that the father had no insights into his behaviour (abuse of the mother), and his alleged abuse of drugs and alcohol, telling the Judge that he did not accept her findings. She pointed to a section of the father's evidence at the hearing before the Judge which characterised his approach:

"I don't believe that I was that person [described in the fact-finding judgment as the perpetrator of abuse]. However, I am taking steps to try and address any issues that I might have that I may have… what choice do I have? I have been asked to do it. That is the way forward. I am willing to, you know, swallow my pride, or any of that, and do what I need to do. So that's what I'm going to do."

31. The mother points out that the recommendation of the section 7 reporters was actually for indirect contact at this point. Only highly conditionally did they propose the commencement of direct contact, and only then "after a period of time" and following a review of the success of the indirect contact. She also contended that the social worker's recommendation for family members to mediate the arrangements going forward was deeply flawed, and that the order which the judge made was the "only realistic order" that could be made.

Conclusion

32. By the conclusion of the hearing of the father's application for a Child Arrangements Order before the Judge in July 2022, the following factual framework had emerged:

i) The father had perpetrated abuse directly on the mother in a number of ways; the mother and children were affected by the abuse directly or indirectly; these were the findings of the court;

ii) The father had given evidence before the Judge at the final/welfare hearing confirming that he explicitly rejected the court's findings that he had abused the mother in the ways proven;

iii) T's older sister, R, was clearly saying that she did not want to see her father;

iv) T was clearly saying that she did not want to see her father (the father argued, and argues, that this merely reflects the views of the mother);

v) T had not seen her father for more than 2 years;

vi) The father had not started, let alone completed, any kind of domestic abuse perpetrator programme as perpetrator;

vii) The social workers who had prepared the section 7 report were recommending indirect contact only between T and her father at this point. The progression of contact to direct contact was highly conditional;

viii) The father accepted that indirect contact was the appropriate starting point in his aspirations for contact;

ix) The father accepted that there should be a final order.

33. Given that framework, it is in my judgment excusable that the Judge provided, through her short judgment, only limited reasons for explaining why she was making a final order for indirect contact only between T and her father.
34. It is apparent that the Judge, who has very considerable experience in the Family Court, was aware of the need to prioritise T's welfare and to have regard to the welfare checklist. She said so. The Judge further rightly looked beyond the immediacy of her order to the changes which would be required in the situation before direct contact could be considered; she set this out as a recital to the order (see §2(iii) above), to stand as a record of her views. That said, a judgment of this kind, supporting an order with such important consequences for the father and T could, indeed I suggest should, properly have reflected the competing risk of harm of T in having contact with her father as against the risk of her not having contact. It would have been, moreover, helpful to the father if the Judge had, for instance, referenced the Court of Appeal's comments in Re H-N [2021] EWCA Civ 448 at [4]:

"Where past domestic abuse is found to have taken place, the court must consider the impact that abuse has had on both the child and parent and thereafter determine what orders are to be made for the future protection and welfare of parent and child in the light of those findings. Depending upon the circumstances, such orders may substantially restrict, or even close down, the continuing relationship between the abusive parent and their child." (Emphasis by underlining added)

And later at [31]:

"… the harm to a child in an abusive household is not limited to cases of actual violence to the child or to the parent. A pattern of abusive behaviour is as relevant to the child as to the adult victim. The child can be harmed in any one or a combination of ways …". (Emphasis by underlining added)

35. It is well-recognised in the Family Courts that the exposure of children to domestic abuse is profoundly harmful to them in the short and long term. This is reflected, inter alia, in the CA 1989 itself (see the definition of 'harm' in section 31(9) CA 1989) and, most recently, through section 3 of the Domestic Abuse Act 2021^[3]. It underpins the court's approach to cases involving allegations of domestic abuse as provided for in PD12J FPR 2010. I reproduce the relevant paragraph ([4] PD12J) so that the father himself can see how the Family Court is required to consider this issue:

"Domestic abuse is harmful to children, and/or puts children at risk of harm, whether they are subjected to domestic abuse, or witness [including where they are victims of domestic abuse for example by witnessing] one of their parents being violent or abusive to the other parent, or live in [living in] a home in which domestic abuse is perpetrated (even if the child is too young to be conscious of the behaviour). Children may suffer direct physical, psychological and/or emotional harm from living with [and being victims of] domestic abuse, and may also suffer harm indirectly where the domestic abuse impairs the parenting capacity of either or both of their parents".

36. While not expressly referencing the points raised in the foregoing paragraph, the judgment nonetheless reflects the Judge's view that T had been seriously adversely affected (indeed "to a certain extent, traumatised": see §24(v)) by the range of proven domestic abuse of the family by the father, and that he showed no real insight into his behaviours. It was apparent to me from the content of his submissions at the appeal that his lack of insight, regrettably, remains. In this regard, the salutary guidance of PD12J, undoubtedly well-known to the Judge, which is both clear and helpful (see especially in this regard [7] and [35]) was applied. For the benefit of the father, I reproduce [36] and [37] below):

"[36] In the light of any findings of fact or admissions or where domestic abuse is otherwise established, the court should apply the individual matters in the welfare checklist with reference to the domestic abuse which has occurred and any expert risk assessment obtained. In particular, the court should in every case consider any harm which the child and the parent with whom the child is living has suffered as a consequence of that domestic abuse, and any harm which the child and the parent with whom the child is living is at risk of suffering, if a child arrangements order is made. The court should make an order for contact only if it is satisfied that the physical and emotional safety of the child and the parent with whom the child is living can, as far as possible, be secured before during and after contact, and that the parent with whom the child is living will not be subjected to further domestic abuse by the other parent."

[37] In every case where a finding or admission of domestic abuse is made, or where domestic abuse is otherwise established, the court should consider the conduct of both parents towards each other and towards the child and the impact of the same. In particular, the court should consider –

(a) the effect of the domestic abuse on the child and on the arrangements for where the child is living;

(b) the effect of the domestic abuse on the child and its effect on the child's relationship with the parents;

(c) whether the parent is motivated by a desire to promote the best interests of the child or is using the process to continue a form of domestic abuse against the other parent;

(d) the likely behaviour during contact of the parent against whom findings are made and its effect on the child; and

(e) the capacity of the parents to appreciate the effect of past domestic abuse and the potential for future domestic abuse".

(Emphasis by underlining added).

37. In relation to the two specific matters which influenced Moor J to grant permission to appeal (see §3 above):

i) The father's challenge to the judge's failure to address the issue of whether T's views were authentically her own is not made out on my fuller review of the material on this appeal. It follows that the Judge's conclusion (reproduced at §24(iii) above) is secure;

ii) I consider that Moor J was right to be concerned about the relative rarity of a final order which contemplates only indirect contact between a 5/6 year old child and her father in private law proceedings. His concerns would I am sure have been alleviated had the Judge expressly referenced T's right to a family life, and the established principle that contact between a parent and child represents a fundamental element of that family life (see in particular the Court of Appeal's seminal judgment in Re C [2011] EWCA Civ 521, and Munby LJ's comments esp. at [47]); the Judge could perhaps usefully have further referenced the statutory presumption of parental involvement in a child's life: section 1(2A) CA 1989. Having looked at the case as a whole, I do not find that her failure to do so incurably undermines the decision.

38. In this particular case, the Judge was not particularly well-served by the social worker authors of the section 7 reports whose recommendation that 'trusted' albeit unqualified family members should play a pivotal role in mediating and risk assessing the situation going forward showed an astonishing lack of awareness of the complex risks in the case, and the extent to which this would expose the mother and children to potential further abuse. The Judge was right to reject that part of their evidence (see §20(v)/(vi) above and §24(ii) above). In fairness, not even the father thought that that recommendation was workable.
39. Thus, I am satisfied that the Judge reached a decision on these facts which was not wrong; indeed, it was, in the circumstances, in my judgment, probably the only order which realistically could be made at this point. The Judge plainly recognised that had any of the factors been different (for instance, had T been asking for contact with her father, or had the father completed a perpetrator programme), then a different outcome may well have resulted. Family Court Judges work under intense pressure of time, with variable resources to assist them; for these reasons I am not critical that the judge did not express herself as fully as she might have done.
40. For the reasons set out in this judgment, this appeal shall be dismissed.
41. I remind the father that the order under challenge in this appeal had clearly been prefaced (see §2(iii) above) with a recital of the court's contemplation that his relationship with his daughter could develop if her wishes and feelings changed, and if he positively engaged with a perpetrator programme. It is in his interests, and more importantly in T's, that he conscientiously maintains his letter writing to T to demonstrate, as the Judge contemplated (see §24(ii) above) that he cares about her. I trust that the mother will encourage T to respond (see her comments at §24(v), with which I agree).
42. That is my judgment.

Note 1   T and her older sister R. At the time of the hearing aged 5 and 15 respectively.    [Back]

Note 2   The social worker clarified in her oral evidence that the ‘review’ was to be “triggered” only when there was successful completion of the perpetrator programme.    [Back]

Note 3   This specifically provides that a child (under 18 years old) who sees, hears, or experiences the effects of domestic abuse and is related to the victim or the suspect is also to be regarded as a victim.    [Back]