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Home > Judgments > 2009 archive

E (A Child) [2009] EWCA Civ 1238

Application by father for permission to appeal, with appeal to follow, refusal of leave to appeal and related directions in disputed contact proceedings. Application and appeal allowed.

The order under appeal arose out of the mother's allegations of physical abuse by the father. The judge found the allegations proved and in his judgment went on to state that the father's application for contact was almost bound to fail. However there had been no argument as to what contact, if any, should be allowed in the light of the findings.

In allowing the appeal, Ward LJ concluded that the judge should not have expressed his view on the issue of contact at this juncture. After reviewing the comments of Baroness Hale in Re B, he then goes on to direct that the issue should be remitted back to the county court but that this was a case where the final hearing should be heard by a different judge because of the procedural irregularity caused by the judge's remarks.
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Case No: B4/2009/1092

Neutral Citation Number: [2009] EWCA Civ 1238
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SOUTHEND COUTY COURT
(HIS HONOUR JUDGE DEDMAN)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday, 20th August 2009

Before:

LORD JUSTICE WARD
LORD JUSTICE WALLER
and
LORD JUSTICE STANLEY BURNTON
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IN THE MATTER OF E (A Child)

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(DAR Transcript of
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Mr N Elcombe (instructed by Geoffrey Forrester & Co) appeared on behalf of the Appellant father.

Ms S Freeman (instructed by Fisher Jones Greenwood LLP) appeared on behalf of the Respondent mother.
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Judgment (As Approved by the Court)
Crown Copyright©

Lord Justice Ward:
1. This is a case about contact taking place with regard to a young boy, who is six or thereabouts, against a background of allegations of domestic violence having been perpetrated by the father against the mother.

2. As is common form in these cases, the district judge made an order on 1 July that:

“1. A fact finding hearing be listed before the Circuit Judge at Colchester County Court Norfolk House 23 Southway Colchester Essex at 10:30am on Friday 31st October 2008, to adjudicate:

(i) the allegations of domestic violence made by the Respondent Mother

(ii) whether the nature and effect of such allegations, if proved, are such that the decision of the court on the issue of contact is likely to be affected”

The district judge gave the directions for the filing of the evidence and recorded that the court would or may also be asked to determine interim contact at that adjourned hearing.

3. The mother duly filed her evidence and set out her schedule of allegations of violent behaviour in a Scott schedule to which the father responded. 

4. That hearing was conducted by HHJ Dedman in the Colchester County Court on 19 January.  The hearing apparently lasted all day and the judge reserved his judgment which he then handed down on 5 February 2009.  In that judgment he set out the complaints made by the mother against the father. They were, in essence, and I need not set out the detail: that there was physical violence, particularly by way of his stamping on her feet which resulted in her breaking bones in her foot, and also forcing himself upon her to have sexual intercourse when she was unwilling to do so; once, it was alleged, in the presence of the then four year old child.

5. The judge set out his findings in a way in respect of which there is no serious complaint, and, having accepted the evidence of the mother in preference to the father, came to the following conclusions as set out in paragraphs 34 and onwards of his judgment.  In paragraph 34 he said:

“In these circumstances I found the complaints which she made against the Father were proved and in my judgment they were of such a serious nature as to impact very substantially on the question of contact between the Father and [C, the child] who I think would have been the subject of serious emotional trauma in the course of and as a result of his parents’ failing relationship certainly if as I have found there was sexual violence in his presence.”

6. Then the judge went on in the following paragraphs to seem to deal with the question of contact.  He continued in paragraph 35:

“Having regard to the apparent effect of these proceedings upon the Mother I would have serious doubts that for her to be obliged somehow to furnish the Father with direct contact, which could well expose her to the possibility of his discovering her whereabouts would also impact upon her capacity to care adequately for [C] as a Mother if she were constantly looking over her shoulder in case the Father had done so.”

7. In paragraph 36 he acknowledged that it was sad for a parent to be excluded but he had to consider the paramount consideration of the child’s welfare in accordance with section 1 of the Children Act 1989, and he then in effect went through the checklist factors, dealing in paragraph 37 with the wishes and feeling of the child; in paragraph 38, the needs of the child; paragraph 39, the effect of any change in the circumstances and so forth; paragraph 48, background etc; paragraph 41, mother’s capacity to care for him; and in paragraph 42 he said this:

“Having regard to the powers of the Court under the Act, it seems to me on the basis of the findings which I have made the applications for direct contact and a specific issue order by the Father are almost bound to fail whilst I think it is appropriate for there to be an order for the Mother to have residence of [C] and for there to be a prohibited steps order directed at the Father’s not removing [C] from his mother’s care

43. It may well be that some agreement can be reached between the parties as to the way forward with regard to possible indirect contact, as long as this can be achieved without disclosure of the whereabouts of the Mother, perhaps by letter or postcard to [C], but if on consideration of this judgment the parties wish or either of them wishes for the case to be restored to the list they will please let the Court know so that a date can be provided for any appointment for further directions.  In the meantime, as I think I indicated I would do, I extend the time for filing any application for permission to appeal so that such time runs from the receipt of this written judgment.”

8. Riding yet again the hobby horse upon which I have galloped through this field on innumerable occasions, I observe that it seems to me most unfortunate that following upon that judgment no order whatever was drawn by the court recording the findings of fact that were in fact made.  It was in this case a perfectly simple task to make an order to the effect that the court finds that the facts set out on the Scott schedule to be proved or to be proved in so far as they are indicated on that schedule, but at least to give some record of precisely what is found.  Without such an order there could not be any appeal.  Nor was there an appeal in this case.  What happened was this.  The solicitors for the father read with consternation the judge’s views as expressed in paragraph 35 and onwards, particularly paragraph 42, and restored the matter for further directions before the same judge.  At that restored hearing, which took place on 18 March, Mr Nicholas Elcombe appeared on the father’s behalf, he having taken no part in the fact finding hearing.  His approach to the judge was to invite him to recuse himself from the continued hearing of the disputed contact proceedings on the basis that he had shown apparent bias against the father. The judge refused to recuse himself (again there is no order drawn to that effect).  The judge in a short judgment given on 18 March considered that he had not overstepped the mark, that he had left matters open and that he had made that perfectly plain in at least paragraph 43 of his judgment of 5 February.

9. And so the only order made on 18 January was to refuse leave to appeal and to give directions for the further conduct of the disputed contact application.  The father had sought permission to appeal that order, and Wall LJ adjourned that to be renewed on notice to the respondent with the appeal to follow if permission is granted.  I would both grant permission to appeal and I deal with the appeal accordingly.

10. We have been assisted very helpfully, not only by Mr Elcombe but by Ms Sally Freeman who did have the advantage of appearing at the fact finding inquiry.  The judge having risen at the end of the day and reserved his judgment, there was no opportunity for further argument as to whether or not interim contact should be allowed.  The father’s attitude was “I have not done any of these acts at all and therefore I should be allowed contact”.  But no one addressed the possibility that the judge would find the matters proved, and no one addressed what contact should follow in the light of such findings being made by the judge.  And so it seems to me that in the absence of any argument about what contact, even interim contact, should be permitted, the judge erred in expressing views about that subject.  It was, it seems to me, procedurally irregular to deal with matters which had not been the subject of full or any argument, to deal with matters without giving this father the opportunity to address them.  And for that procedural irregularity rather than for any suggestion of apparent bias, I would for my part find that the judge erred in his dealing with the future in the way he did following the facts which he found.

11. His judgment ought in my judgment to have ended with paragraph 34.  That made it perfectly plain that he found the facts to be proved.  He expressed the view that they were of such a serious nature as to impact very substantially on the question of contact, thus fulfilling (ii) of the district judge’s order.  I do not for my part think for a moment that he overstepped the boundary in describing the impact as very substantial.  That does not preclude him in any way or would not have precluded him in any way from going on to deal with the eventual questions of contact.  But given the way he did conclude his judgment, I regret that he unwittingly fell into error with the result that the issue we have to decide is whether or not to require a complete rehearing of the facts in dispute, or simply direct that some other judge determine the questions of contact in the light of the judge’s findings of fact which otherwise stand. 

12. The reasons for this dispute arise in the beginning from the observations of Baroness Hale of Richmond in the matter of in Re B (Children) [2008] UKHL 35, where Lady Hale  observed in paragraph 76 of her speech that the finding of facts is merely part of the whole process of trying the case.  It is not a separate exercise.  Once it is done the case is part heard.  The trial should not resume before a different judge anymore than any other part heard case should do so. 

13.Consequent upon that decision the practice direction was amended and paragraphs 15 and 23 of the new practice direction dated 14 January 2009 make it plain that, as set out in paragraph 23:

“Where the court has made findings of fact on disputed allegations, any subsequent hearing in the proceedings should be conducted by the same judge…”

So they should be.  But if the judge were unwell or otherwise unable to resume the part heard hearing, another judge would have to take over.  If delay were to ensue to get the same judge back, it may be necessary to make an exception as the practice direction acknowledged, so it is desirable that the same judge hear it but it is not imperative. 

14.In this case the findings of fact have not been challenged and could not seriously be challenged.  They should stand and the matter should be remitted to the county court for the issue of contact to be decided by a judge other than HHJ Dedman, and the judge trying the contact to have full regard to the judge’s findings as set out in paragraphs 1-34 of the judgment of 5 February and to take no account of paragraphs 35 onward, which have been the subject of the criticisms that we have had to direct at them.

15.So I would allow the appeal and direct that the disputed contact be heard by a judge other than HHJ Dedman.

Lord Justice Waller:
16.I agree.

Lord Justice Stanley Burnton: 
17.I agree.

Order: Application granted; appeal allowed