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H (A Child) [2005] EWCA Civ 1404

This case confirms the proper approach to applications in which a residential parent’s objection to contact is founded on domestic violence, on the part of the parent seeking contact, and where the court has made a finding of fact that domestic violence has taken place. There is also a useful commentary on case management in private law cases relating to children.

H (A Child) [2005] EWCA Civ 1404

Court of Appeal: Thorpe LJ, Dyson LJ, Wall LJ (22 November 2005)

Summary
This case confirms the proper approach to applications in which a residential parent's objection to contact is founded on domestic violence, on the part of the parent seeking contact, and where the court has made a finding of fact that domestic violence has taken place. There is also a useful commentary on case management in private law cases relating to children.

Background
On 9 May 2005 HHJ Cockroft made an order for contact between H, a girl, born 8 April 1999 and her father. The parents separated on 13 June 2001 after the mother stated that the father had subjected her to a serious assault. Thereafter the father had no contact with H. He did not make an application for contact until over a year later on 8 July 2002. The district judge ordered a report from a CRO, who reported that the mother was expressing a strong objection to contact based on father's violence to her which H had witnessed. The father denied being violent and therefore the CRO requested a finding of fact hearing.

The finding of fact hearing took place on 23/24 June 2003. The judge found that the father had been violent but not to the extent alleged by the mother. The judge did find that on 13 June 2001 the father slapped the mother to the face, dragged her by her hair along the floor and beat her about the head, face and back with his shoe. Neither party appealed against the findings.

The hearing to determine whether or not there should be contact and what form contact should take was heard on 27 January 2005. The jointly instructed psychologist had not received a transcript of the judge's findings prior to preparing her report. However, she maintained her clinical opinion that the mother was suffering from Post Traumatic Stress Disorder and that contact between the father and H would impact upon her ability to care for her daughter. The CRO also gave oral evidence, in which she referred to the Sturge/Glaser report and stated that the father did not meet any of the factors which the doctors had asserted were necessary for contact to take place. However, the judge found that the attack came after months of unreasonable behaviour by the mother and provocation by her, and that the father had been immediately remorseful. He stated that contact will be pressed for by the court, save in the most exceptional circumstances, which these were not.

Judgment
Their Lordships found that the mother's appeal succeeded on all four grounds:

(1) the judge was "operating with an imperfect recollection" of findings of fact he had made at an earlier hearing;

(2) the judge failed to have regard to Re L (a child) (contact: domestic violence) [2001] Fam Law 260, the Sturge/Glaser report [2001] 30 Fam Law 615, and the Guidelines prepared by the CASC in relation to contact cases where there had been domestic violence;

(3) the judge had failed to have any sufficient regard to the views of the jointly instructed psychologist or the CRO;

(4) the judge had turned an hour's review of the case into a final hearing without allowing sufficient time for full submissions and without hearing properly from the parties.

In a lengthy judgment Lord Justice Wall sets out numerous extracts from the respective judgments of the finding of fact hearing and the hearing that resulted in the contact order, and some passages from the evidence. Lord Justice Wall attacked the judgment on many levels, including a criticism of the specific rhetoric used by the judge, which can only be fully understood by reading Lord Justice Wall's judgment in full.

In relation to the first ground of appeal it was found that even at the finding of fact hearing the judge had begun to minimise the assault by the father on the mother. This, together with the judge's subsequent belief that it was irrelevant to the contact issue, was plainly wrong.

The court also found that the second ground was clearly made out. The CASC Guidelines were accepted by Re L, a seminal decision of this court. The relevant factors that the judge should have considered in this case were set out:

(d) the capacity of the parent seeking contact to appreciate the effect of past and future violence on the other parent and the children concerned;

(e) the attitude of the parent seeking contact to past violent conduct by that parent; and in particular whether that parent has the capacity to change and / or behave appropriately. The judge's failure to have any regard to these authorities resulted in his minimisation of the serious assault on the mother, which lead him inappropriately to ignore the father's violence when making the contact order.

In relation to the third ground Lord Justice Wall stated that the judge was entitled not to follow the advice of the CRO and the psychologist but he had to explain his reasons for doing so. This, he manifestly failed to do.

With regard to the fourth ground Lord Justice Wall stated that an experienced judge could cut corners and make substantive orders on short appointments but to do so he must be very sure of his ground and have taken into account all relevant considerations. This the judge plainly failed to do.

In conclusion, Lord Justice Wall stated that the judge's decision was deeply flawed and plainly wrong. The appeal was allowed, the judge's order set aside, and the case was to be reconsidered by a different circuit judge.

Read the full text of the judgment here