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Home > Judgments

Re M-A (A Child) [2018] EWCA Civ 896

Appeal considering a decision at first instance by a Deputy High Court Judge in the Manchester Family Court, whereby the judge had ordered that C, a 3-year old boy diagnosed with autistic spectrum disorder, should live with his father in Canada and spend holidays with his mother who lived in England. The decision reversed the child’s established living arrangements.

The mother was British and the father American. C had been born following a very short relationship between the parents whilst the father was working in England. When the father moved back to Canada in early 2015, C remained living with his mother in England. Subsequently, the matter came before the court on no less than twelve occasions, including two substantive sets of proceedings, applications by both parents for injunctions and enforcement and parallel proceedings brought by C's mother for financial support.

In April 2016 a detailed consent order was drawn up, providing for C's care to alternate between his parents and between both countries. C was to spend 8 weeks with his mother and 4, rising to 6, weeks with his father. These arrangements were negotiated having taken into account C's autistic spectrum characteristics, later diagnosed as an autistic spectrum disorder. Given the considerable history of acrimony and mistrust between the parents, Cafcass was tasked with assisting the parents and C by virtue of a Family Assistance Order.

By January 2017 it had become clear that the arrangements were not working and Cafcass referred the matter back to court. Each parent brought complaints against the other. However, the mother's conduct towards the father and his family, which included hostile telephone calls and adverse social media postings, caused sufficient concern to trigger a psychological assessment. The subsequent report highlighted the mother's negativity towards the father and his family and recommended therapeutic support for the mother. By the time the matter came back before the Deputy High Court Judge for a four-day final hearing in January 2018 the mother had completed two courses of therapy. The court heard evidence from the parents, the paternal grandparents and Cafcass. The Cafcass final analysis and recommendation was for C to move to live in Canada with his father.

The Decision at First Instance
In his reserved judgment, HHJ Jordan, sitting as a Deputy High Court Judge, summarised the issues and history of the case, the written evidence, the oral evidence and submissions heard over 4 days and directed him self on the law. When considering the welfare check list, the judge reflected on whether domestic abuse had occurred and the emotional harm to C of living in such an environment. Whilst the judge blamed both parents for the parental conflict he concluded that, although mother's practical care for C raised no issues, her evidence did not demonstrate the greater insight to be expected given the therapy she had undertaken. In light of C's particular need for clarity and certainty, C should not have to live in a conflicted household as he had done throughout his life, primarily as a consequence of his mother's behaviour.

Weighing up the options, the judge found that the father was better able to meet C's welfare needs and that the change of circumstances involved in a move to live primarily in Canada would be limited due to the nature of the living arrangements already in place. C was to spend extensive periods of time during school holidays with his mother.

Grounds of Appeal
The mother sought to appeal the decision on two grounds:

(i) That the court had been wrong to find that the mother had not changed and consequently that she was unable to meet the child's emotional needs; and

(ii) That the court had erred in stating that the child had been living in a "conflicted household" throughout his life, that he had suffered harm, and that the mother's behaviour fell within the definition of domestic abuse.

Those instructed by the mother also invited the court to admit fresh evidence in the form of a statement by the mother concerning a recent visit by C to Canada. Having read the statement, Jackson LJ refused to formally admit it into evidence, opining that the contents would make no difference to the outcome of the appeal.

Appeal Dismissed
Giving the lead judgment, Jackson LJ dismissed both grounds of appeal raised by W and substituted an updated order in the terms that had largely been agreed between the parties following the decision on the appeal.

In dismissing the first ground of appeal, Jackson LJ found that a challenge to a judge's evaluation of a witness was extremely difficult to sustain because "the conclusion is quintessentially based on the judge's direct exposure to the witnesses themselves." The whole purpose of the trial was to establish which of the different possibilities raised by the evidence was the more likely. This was done by means of the Guardian's investigation and by the testing of evidence in court. Jackson LJ noted that the arguments addressed by mother's counsel on appeal were the same as those rejected by the trial judge, whom he found to be uniquely well placed to know where the truth lay. The finding that the mother had not changed sufficiently to be able to meet C's welfare needs was one that was clearly open to the judge in all the circumstances of the case.

When addressing the second ground of appeal, Jackson LJ accepted that the judge at first instance could have provided a more nuanced overall assessment making explicit reference to the balancing factors in relation to the mother's strengths and the father's shortcomings. However, he found that the judge's failure to do so did not undermine the overall determination. In light of the history of the case together with his finding that C had already suffered emotional harm, the guardian's assessment and his own assessment of the witnesses, the trial judge had ample evidence before him that the father was able to offer C a more stable future than the mother.

When considering the complaint in relation to the trial judge's deployment of PD12J and introduction of the concept of domestic abuse, Jackson LJ found that the trial judge was not wrong to consider, at his own instigation and in the circumstances of this case, the definition of domestic abuse as set out in the Practice Direction. The trial judge's overall conclusions had not depended upon his consideration of PD12J to any great degree, the court's focus being clearly on the consequences of mother's conduct for C rather than the impact of mother's behaviour on the father.

The court also commented upon a) whether a s.91 (14) CA 1989 would have been appropriate and b) generally with respect to allocation of work to s.9 Judges. The latter should only be done in compliance with the guidance given by the President in December 2016 as set out in paragraph 6 "Allocation of Work to Section 9 Judges" and, in the normal way of things, on notice to the parties.

Summary by Dianne Martin, barrister, St John's Chambers, Bristol.
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Case No: B4/2018/0110
Neutral Citation Number:
[2018] EWCA Civ 896

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MANCHESTER FAMILY COURT
HHJ JORDAN
MA17P50055

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 25 April 2018


Before :

LORD JUSTICE HAMBLEN
and
LORD JUSTICE PETER JACKSON
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Re: M-A (A Child) 
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Susan Grocott QC and Susan Deas (instructed by Stephensons Solicitors) for the Appellant mother
Damian Garrido QC
and Sheren Guirguis (instructed by Mills and Reeve) for the Respondent father
Linda Sweeney
(instructed by AFG Law) for the Children's Guardian

Hearing date: 18 April 2018
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Judgment
Lord Justice Peter Jackson:
1. This appeal concerns C, a three-year-old boy.  On 12 January 2018, HHJ Jordan, sitting as a Deputy High Court Judge, ordered that he should live with his father, who lives in Canada, and spend holidays with his mother, who lives in England.  This was a change from the existing arrangements, under which C had been dividing his time between his parents, the balance favouring the mother.  She now appeals.

2. At the end of the hearing on 18 April, we informed the parties that the appeal would be dismissed and we made an updated order to govern the situation as it now stands.  This judgment contains my reasons for joining in that decision.

3. The background is that the mother is British and the father American.  They had the briefest of relationships while the father was working in this country and as a result C was born in 2014.  In early 2015, the father moved to work in Canada.  Unfortunately, there has been almost continual parental strife throughout C's life.  There have been two substantial sets of proceedings about him, plus applications by both parents for injunctions and enforcement, and parallel proceedings about financial support.

4. The first set of proceedings under the Children Act 1989 began with an application in September 2015 by the father for parental responsibility, for a change of surname, and for orders governing his time with C.  That litigation ended in April 2016, when Judge Jordan himself approved a detailed consent order, arrived at after lengthy negotiations.  The judge had first had contact with the case shortly after it started and by the time he came to make the orders now under appeal it had been before him not less than a dozen times.  The 2016 consent order had the unusual feature that the of care of C was to alternate not only between the parents but also between countries, with him spending 8 weeks at a time with his mother and 4, rising to 6, weeks with his father.  These arrangements were negotiated in the knowledge that C has special characteristics and in October 2017 a formal diagnosis of autistic spectrum disorder was confirmed.  In order to achieve his potential, he needs a professionally-led support package and it was intended that the father's time would rise to 6 weeks at a time once this was in place in Canada as it is in England.  In the light of the parental conflict, the judge also made a family assistance order to the Cafcass officer.

5. Whether or not these arrangements were ever likely to work, the fact is that they did not.  The very poor level of trust between the parents meant that there was constant attrition, and in January 2017, the Cafcass officer restored the matter on the basis that she had found it impossible to work with the parties.  There then followed a series of hearings, as set out in the chronology. 

6. No purpose would be served by rehearsing the unhappy details of the evidence that was before the judge.  Both parties complained about the other's behaviour.  In addition, the relationship between the mother and the father's parents was difficult.  Particular concern arose from the events in March 2017, when the mother made a hostile call to the grandparents that was recorded and admitted in evidence.  She also contacted the father's employers and others, and made social media postings that were calculated to cause difficulty for him.  As a result, the judge directed the mother to undergo a psychological assessment.  This became available in July; it highlighted the mother's poor regulation of her negative emotions concerning the father and made recommendations for therapy to support enduring positive change.

7. To her credit, by the time the matter finally came on for hearing in December, the mother had completed two courses of therapy.  At that hearing, which ran for four days, the judge heard evidence from both parents, the paternal grandparents and the Children's Guardian.  She had filed three reports, and her final advice was that C should move to live with his father.

8. The judge gave a reserved judgment.  In it, he summarised the issues and the history and directed himself on the law.  He recorded the positions of the parties, which included that they both agreed that they could no longer actively co-parent C and that one of them should be predominantly responsible for arranging his healthcare.  The judge then referred to the five files of evidence, and summarised the substantial psychologist's report in some detail.  He recited the oral evidence extensively, giving his assessment of the witnesses; he then recorded the submissions of the parties before coming to his findings of fact, his consideration of the welfare checklist, and his decision.

9. The prominent features of this material are as follows:

(1) The opinion of the psychologist was that positive change could be expected from the therapy, and that the mother appeared to have fully engaged: markers for positive change would be evident to other professionals, such as better engagement with others in relation to matters concerning C 

(2) The judge however was critical of the mother as a witness and was not persuaded that she had developed better insight into her behaviour and its consequences for C.  He particularly referred to the way in which she had handled receipt of the autism diagnosis, sending it through legal channels rather than telling the father directly.

(3) In contrast, he found the father and grandparents to be impressive and straightforward witnesses. 

(4) He recorded the evidence of the Guardian, who described her recommendation as difficult, though not finely balanced.  There were no issues about the mother's practical care or her accessing appropriate health care, but C was a little boy who had been exposed to parental conflict, with a recent lull.  Both parents were responsible.  She was concerned about the mother's unhealthy thirst for knowledge about the father in relation to money and lifestyle, and the risk that her negative behaviour would continue.  She considered that C's emotional needs would be better met by the father, who has a far greater capacity to promote the relationship with the mother than the reverse.  The judge found that the Guardian had given a comprehensive professional opinion based upon the expert psychological evidence and her analysis of the parties' positions. 

(5) The judge concluded that C had become lost in the mother's obsessive behaviour and in her pursuit of knowledge about the father's money and lifestyle.  The mother's evidence and the submissions made on her behalf did not demonstrate the insight that would have been expected from the therapy.  She had not changed in the way she had asserted.  Her behaviour towards the father amounted to a form of domestic abuse and her attitude towards the grandparents was unfounded and extremely worrying.

(6) The judge described C as a young boy whose needs are greater than normal and who needs clarity and certainty.  He should not have to live in a conflicted household, as he had done throughout his life, primarily in consequence of the mother's behaviour.

(7) When considering the welfare checklist, the judge reflected on the domestic abuse that had occurred and the emotional harm of living in such an environment.  He found that both parents could meet the child's needs, except for the mother's inability to meet his emotional needs because of her enormous difficulties in dealing with the disappointments of what she sees as a failed relationship.  On all the evidence, the father was better able to meet C's welfare needs.  The change of circumstances involved in a move to Canada would be limited because of the nature of the existing arrangement.

(8) Weighing up the options, the judge found that the better one was for C to live with his father in Canada.

10. At this hearing, we were invited to admit fresh evidence in the form of a statement by the mother concerning C's recent visit to his father in February/March.  Having read the statement, my view is that it should not formally be admitted.  It does not contain information that would be likely to have an important influence on the result of the case and its contents are doubtless contentious.  Even if it was admitted, it could make no difference to the outcome of the appeal.

11. On behalf of the mother, Ms Grocott QC and Ms Deas pursue two grounds of appeal, with permission granted by Moylan LJ.  Firstly, they argue that the judge had been wrong to find that the mother had not changed and consequently that she was unable to meet the child's emotional needs.  Secondly, the judge was wrong to state that the child living in a "conflicted household" throughout his life, that he had suffered harm, and that the mother's behaviour fell within the definition of domestic abuse.

12. The first ground of appeal challenges the judge's evaluation of a witness in relation to one of the key issues in the case.  A challenge of this kind is extremely difficult to sustain because the conclusion is quintessentially based on the judge's direct exposure to the individuals themselves.  In the present case, a reader of the bare facts about matters such as the mother's phone call to the grandparents, her social media activity, her contacting the father's employer and her response to the diagnosis, could not know whether they were isolated aberrations or whether they represented a more deep-seated ongoing problem.  Likewise, a reader of the mother's statements could not know whether therapy had brought about genuine change or merely outward compliance.  The whole purpose of the trial was to establish which of these different possibilities was more likely.  That was done by means of the Guardian's investigation and by the testing of the evidence in court.

13. Ms Grocott realistically accepted that in order to succeed, she had to establish that the judge was bound to find that the mother had changed on the basis of the evidence before him.  In my view, that submission cannot succeed.  The arguments that were addressed to this court were the same as those rejected by the judge, who was uniquely well-placed to know where the truth lay.  The difficulty for the mother in challenging his assessment is only multiplied by the fact that the Guardian saw matters in the same way.  The finding that the mother had not changed sufficiently to meet C's emotional needs is one that was clearly open to the judge.

14. In relation to the second ground, Ms Grocott rightly points out that the concerns about C's needs had to be assessed against a background in which he was happy in his mother's care and where she had shown herself a capable mother in other respects.  The judge's findings that the child had suffered harm as a result of his mother's actions were unfair, with exaggeration of her shortcomings and a marked lack of a similar critique of the father's behaviour, such as his non-attendance at the original final hearing in November.  Repeated references in the judgment to the shortness of the relationship and the characterisation of the mother as a financial opportunist were unacceptable.  In support of this submission, Ms Grocott drew attention to a number of places in the judgment where the judge castigated the mother alone about matters for which the father bore at least a share of responsibility.

15. In a case in which the Guardian had assessed both parents as bearing responsibility for the state of their relationship, I consider that there is some substance to Ms Grocott's submissions in this respect.  A more nuanced overall assessment might have made explicit reference to balancing factors in relation to the mother's strengths and the father's shortcomings.  However, this does not in my view come close to upsetting the judge's overall determination.  He was faced with a most unsatisfactory history which, by common consent, could not continue.  His finding that C had already suffered harm as a result of the parental conflict was one that was open to him; there was certainly a risk of harm for the future.  He also had ample evidence before him in the shape of the assessment of the Guardian and his own assessment of the witnesses to show that the father offered the prospect of a more stable future for C than the mother.  Moreover, although it was not a feature of the decision, it is obvious that the existing transatlantic schedule could not survive the time when C starts at school.  He is a child who needs a stable home environment and a directing hand in relation to his treatment.  Against this wider background, the judge's ultimate decision is not undermined by the criticisms that we have heard.

16. I also understand the complaint made in relation to the deployment of PD12J and the concept of domestic abuse.  The issue had not been raised in this form by the parties at any stage in the lengthy litigation, but was introduced by the judge himself in questions at the end of the Guardian's evidence.  The judge was not wrong to note that the definition of domestic abuse in paragraph 3 of the Practice Direction includes coercive behaviour, defined as including a pattern of abuse that is used to harm, punish or frighten the victim.  This can clearly include malicious social media campaigns and attempts to cause damage by contacting employers.  However, I doubt whether this analysis added anything of any significance in the present case, where the focus was not so much on the impact of the mother's behaviour on the father but on the consequences for C.  The judge's overall conclusions did not depend upon it to any great degree and there was no question of the mother's time with C being curtailed as a result: on the contrary, the court's objective was that he should spend as much time as possible with her, consistent with the main decision about where he was to live.  So again, this issue does not on examination call the judge's conclusion in question.

17. For those reasons, I would dismiss this appeal, and substitute an updated order in the terms that were very largely agreed between the parties following the decision on the appeal. 

18. It only remains to comment on two other matters.

19. During the course of the hearing, attention focused briefly on an order that the judge made under s.91(14) CA 1989.  This was something that had originally been suggested by the Guardian and appears in the order as a five-year restriction on the mother's ability to make applications without the court's permission.  In the end, the judge determined that the order should last for six months only.  Now that this court is making a fresh order, the parties are in agreement that an order under s.91(14) is unnecessary.  It is very much to be hoped that C will not have to suffer any more litigation, but any future dispute would likely come before the courts of his country of habitual residence.  If that was to happen, the fact that an order of this kind had been considered at all is a sign of the concern felt by the English courts about this litigation history.

20. Finally, I note the circumstances that led to this appeal coming before this court rather than before a judge of the Family Division.  It was only when the judgment was handed down that the parties became aware that the judge had constituted himself as a Deputy High Court Judge.   There is no indication that he had followed the relevant guidance, which I referred to in similar circumstances in Re M (A Child) [2017] EWCA Civ 2356 at [32]:

"Since October 2016, the question of whether a judge is sitting as a Deputy High Court Judge has important consequences of route of appeal. Appeals from decisions taken at circuit judge level are now heard in the High Court, while appeals from judges sitting at High Court level come to this court. This case, rightly in my view, was allocated at the gatekeeping stage to circuit judge level. There was no order reallocating it to be heard at High Court level. That could only happen as a result of compliance with the guidance given by the president in December 2016: "Allocation of Work to Section 9 Judges". Paragraph 6 of that guidance reads as follows:

"If at any time a judge who is conducting proceedings considers they should be reallocated to High Court level for hearing by a High Court judge or a section 9 judge, the judge shall, before reallocating the case, discuss the matter with the DFJ, who shall, if necessary, consult the FDLJ."

21. To this I would add that a judge who is considering the possibility of reallocating a case to High Court level should also, in the normal way of things, inform the parties of the possibility before reaching a decision about it.  This will allow the parties to express their views about the appropriateness of the reallocation and its consequences, including for the destination of any appeal.

Lord Justice Hamblen:

22. I agree.