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S (A Child) [2012] EWCA Civ 617

Appeal in private law contact case in which Cafcass officers disagreed as to whether there should be supervised contact but where commencement of supervised contact had been ordered without oral evidence from the Cafcass officers.

After a fact-finding hearing within private law contact proceedings (where findings had been made against the father) a section 7 report on the issue of contact was ordered.  The report recommended supervised contact and the mother and father entered into a consent order for the supervised contact between the father and the child.

An addendum section 7 report was ordered to consider the progress of contact but a different Cafcass Officer was appointed to complete the report.  Before supervised contact commenced, the second officer had written to the court expressing her concern about supervised contact and that in her opinion it should not commence until the father had produced evidence that he had successfully engaged with a therapeutic project and had accepted responsibility for his inappropriate behaviour.

As a result of the divergence of opinion, at a direction hearing, the Cafcass officers were directed to meet to try and resolve the differing opinions.  The officers each stood by their initial opinions.

At the following directions hearing, after hearing submissions on behalf of the mother that the court should hear oral evidence form the officers and the submissions on behalf of the father that supervised contact should start immediately, the judge ordered that the contact should commence.

In allowing the mother's appeal, the Court of Appeal held that the decision by the judge was not a case management one and that the judge should have heard from the Cafcass officers before deciding the issue.  The Court of Appeal noted the very unusual circumstances of the case that the judge had been faced with and the competing arguments made on behalf of the parents including on the issue of delay.

Appeal allowed.

Summary by Richard Tambling,  barrister, 1 Garden Court  


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Case No: B4/2012/0007
Neutral Citation Number: [2012] EWCA Civ 617
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BRADFORD COUNTY COURT
(HIS HONOUR JUDGE CLIFFE)

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Wednesday, 14th March 2012

Before:

PRESIDENT OF THE QUEEN'S BENCH DIVISION

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LADY JUSTICE BLACK
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IN THE MATTER OF
S (A CHILD)
 
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(DAR Transcript of
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Ms Anita Guha (instructed by Williscroft & Co) appeared on behalf of the Appellant mother.

Ms Marisa Allman (instructed by McManus Seddon) appeared on behalf of the Respondent  father.

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Judgment

(As Approved by the Court)

Crown Copyright©

Lady Justice Black:
1. This is an appeal from an order of HHJ Cliffe made on 8 December 2011 in relation to a little girl whom I shall simply call "A" who was born on 20 September 2008 and is now three years old. 

2. The appellant is A's mother and the respondent is her father.  I will call them simply "mother" and "father" in the course of this judgment.

3. A lives with the mother and the issue that HHJ Cliffe had to decide was in relation to the father's contact with her.  The father has not had contact with A for a considerable time and is effectively unknown to her.

4. After a fact-finding hearing in February 2011, HHJ Cliffe made findings of violent behaviour by the father towards the mother and towards her 16-year-old son, whom I will simply call AQ.  The judge also made a finding of neglectful behaviour by the father towards A.  Giving directions thereafter, he ordered that a Cafcass report should be prepared on the issue of contact and a Cafcass officer, Ann Crossley, was appointed to do this.  In her report of 16 June 2011 she said that a period of professionally supervised contact could be a means by which the father could be reintroduced to his daughter whilst affording the mother some reassurance that A was "safe and supported throughout the introductory period".

5. On 21 June with the mother's consent the court made an interim contact order, HHJ Cliffe providing that the mother should make A available for supervised contact at one of two named contact centres and that an addendum report should be prepared by Cafcass on the progress of the contact.

6. A referral was duly made by the father's solicitors to one of the centres.  However, a different Cafcass officer, Zoe Davidson, was then appointed to prepare the addendum report and, having met the father in the course of her enquiries, she took a different view of the case and wrote to HHJ Cliffe expressing concerns about supervised contact commencing.  She put her concerns in a report dated 4 November 2011, recommending that until the father had produced evidence that he had successfully engaged with a therapeutic project and had accepted responsibility for his inappropriate behaviour there should only be indirect contact.

7. Directions hearings took place in November 2011 as a result of this divergence of opinion between the two Cafcass officers and it was directed that there should be a meeting between them to attempt to resolve the conflict.  There was a meeting on 29 November but no resolution was arrived at because the two officers held firm to their views. 

8. The next directions hearing before HHJ Cliffe took place on 8 December 2011 and from his decision at this hearing the appellant appeals.

9. Submissions were made by both sides at that hearing as to what to do next.  The mother submitted that the court should hear oral evidence from the Cafcass officers and adjudicate upon what should happen about contact and that until that had been done supervised contact should not proceed.  The father submitted that supervised contact should commence straight away without further ado.

The judgment on 8 December
10. The judge rejected the mother's submissions and decided there and then that interim supervised contact should go ahead.  He said that he was not inclined to adjourn for a contested hearing "because I think we would have two CAFCASS Officers saying essentially what they are saying in this report, namely that they disagree, and the court would then be in a position of having to break the log jam in some way before being able to make a final decision.  That is going to engender yet further delay".  He said he was more in agreement with Ms Crossley's view than Ms Davidson's at this stage but observed that the two officers were at least in agreement that it was in the child's interests to have a continuing relationship with her father even if ultimately only by way of indirect contact.  He said that he was satisfied that Ms Crossley was right in saying that there would be no physical risk to the child in supervised contact and that he thought that supervised contact would produce valuable information for the Cafcass officers to consider and for the court's final decision.

11. The judge's judgment is concise and to the point.  In principle, there is absolutely nothing wrong with that.  It is to be commended.  The question is whether the decision that he took, as illuminated by the reasons that he gave for it, was a decision that was open to him.

The domestic violence findings
12. It is important to consider the judge's decision against the background of the findings of fact that he had made earlier in the process.  He found that there was an incident in March 2008 when there was pushing and shoving in the course of an argument.  It seems not only to have been one-sided.  The father pushed the mother and she fell onto the sofa but she injured his lip.  There was another argument in October 2008.  The mother was in bed.  She had A, who could only have been a few weeks old at the time, with her.  This time the father punched the mother and she tried to retaliate.  He pulled her hair and she banged her ear and bruised her neck.  The judge said that the most serious aspect of it was that the mother relinquished her hold on the child during the incident and A ended up covered by a duvet or blanket.

13. In March 2009 the mother left A, aged about six months, in the care of the father whilst she was busy elsewhere in the house and the father went out without telling the mother.  The mother returned to find the baby just about to fall off the sofa.  The judge said that on this occasion "at best the Father was neglectful in his duties to the child" and that at the very least the Father should have made it clear to the mother that he was leaving the house.  An argument later ensued about this, and the father was verbally abusive to the mother, kicked her so that she fell from the bed and then kicked her again causing bruises.

14. The final incident between the parents was in May or June 2009 when there was further pushing and shoving and a confrontation during which the mother slipped down five stairs and the father was verbally abusive to her, causing distress particularly to the older children. 

15. The incident involving the mother's son, AQ, happened whilst he was out jogging with a friend.  The father said that the boys set on him, put up to it by the mother.  The judge found that that was not true.  He accepted the account given by the boys which was that AQ fell slightly behind his friend and the father then verbally and physically assaulted him without any provocation.  The friend became aware of what was happening and came and pulled the father away.  AQ suffered an injury to his neck, had trouble swallowing and was considerably distressed by the incident.  The judge observed that it "shows that the Father is capable of gratuitous violence".

The grounds of appeal
16. The appellant raised a number of procedural points about the hearing, arguing that the process adopted by the judge deprived her of a fair hearing.  The matter was only listed for a short directions hearing and it should not have proceeded directly to a determination.  She should, she argued, have been given the opportunity to cross-examine Ms Crossley about her view including about her opinion firstly that supervised contact would not give rise to any risk of harm to A and secondly that the father had addressed his difficulties with gratuitous violence by attending at the Brave Project for two months, which contrasted with the Brave Project's report which said that he had only demonstrated superficial engagement with the programme and amongst other things was struggling to articulate any emotional awareness.  No doubt the appellant would also have wished to have called Ms Davidson or had her called by the court so that that officer could have had the opportunity to defend her views in cross-examination as well.

17. The appellant complained that the judge's worry about delay was not put in context by an investigation to see what delay would actually be involved in putting the matter over for the Cafcass officers to attend for cross-examination.

18. The appellant also argued that the judge made the wrong welfare decision.  He failed, she said, to grapple with the extent of the concerns of Ms Davidson, which included that A should not be subjected to the risk of emotional harm to which Ms Davidson considered even supervised contact gave rise, and/or to uncertainty about whether contact would start and then be discontinued again.  He also failed to evaluate properly whether the father had addressed the problems revealed by the violence that the judge had found had occurred.

19. The appellant invited our attention to the well-known guidance in Re L (A child) & Ors (Contact: Domestic Violence) [2000] 2 FLR 334 and to the Practice Direction 12J to the Family Proceedings Rules 2010, entitled "RESIDENCE AND CONTACT ORDERS: DOMESTIC VIOLENCE AND HARM" which she argued that the judge did not appear to have considered or applied.  She invited our attention particularly to the provisions of paragraphs 26 and 27 under the heading "Factors to be taken into account when determining whether to make residence or contact orders in all cases where domestic violence has occurred."

20. She also invited attention to paragraph 30 of the Practice Direction, which provides that the judge must make clear how his findings on domestic violence have influenced the decision on contact, and why he considers that the order he makes is in the best interests of the child.

21. The appellant argued that the judge's contact decision was inconsistent with his approach in the proceedings up to that point.  He had directed a Cafcass report on whether or not there should be contact in the light of his findings but then, having ended up with two conflicting Cafcass views, he had overruled one of the officers without proper investigation into why she had made her recommendation.

22. I turn to the respondent father's arguments.  The father argued that it was vital to see the judge's order in the context of the consent order made on 21 June 2011, which set up the supervised contact in the first place.  That was the moment, he argued, for a contested hearing about direct contact, with cross-examination of the Cafcass officer, but the order shows that the mother was at that stage accepting that there would be supervised contact and not seeking to challenge Ms Crossley, her challenge only arising once the report of Ms Davidson was received.

23. It was argued that a number of things flowed from that.  First, it meant that the judge had already decided back in June that the case was not one in which domestic violence would disqualify the father from any contact, so all the December order did was to confirm the venue and the number of sessions.  Ms Allman for the father argued that this was a decision that was open to the judge, not only because he had had the benefit of Ms Crossley's report when he made the decision in June but also because he had had the opportunity to assess the parties when they gave their evidence before him in the fact-finding hearing.  Amongst the factors he was entitled to take into account in June was the finding that he made that the mother had confronted and challenged the father and had injured him during one of the incidents.  This was relevant in December to the question of the degree of fear that the father's behaviour may have given rise to in the mother, which was one of the factors taken into account by Ms Davidson who had not herself seen the mother in her investigations so was unable to reach her own evaluation of that question.

24. Secondly, it made it questionable whether the mother's reasons for opposing direct contact sincerely arose from the father's violent behaviour.  Thirdly, it put the burden on the mother to establish that there had been a substantial change since June, justifying a variation of the June order and the father's argument was that there had not been such a change.  All that had happened was that Ms Davidson had analysed things differently from the way in which Ms Crossley had analysed them.

25. The father also sought to rely on the terms in which the mother's application to HHJ Cliffe for a contested hearing was couched.  It was not, it was argued, a formal application for such a hearing but a suggestion or an invitation.  I think it would be fair to say that the father argued that the judge's decision was no more than a case management decision in which he controlled the evidence adduced and limited cross-examination, as he was entitled to do under the Rules.

26. It was pointed out by the father that there is no presumption against contact where domestic violence is proved although it is one of the factors that have to come into account.  The judge's order was not in conflict with the guidance in Re L and took into account the Practice Direction as well, he said.

27. The decision the judge took was an exercise in discretion, the father submitted, and he had the relevant factors in mind, in particular he had in mind the physical risk and also recognised that the father needed to keep working therapeutically at the Brave Project and at the mosque at understanding the impact of his behaviour.  It was argued that the judge did not reject the concerns about emotional risk but contemplated that they would be better evaluated once the court had received information about how the supervised sessions went.

28. It was submitted that Ms Davidson's concern was that the supervised contact was designed to be a stepping stone towards further development of contact but that the period of supervision would not reduce the risks.  The father submitted that the judge did not think that the period of supervision would reduce the risks in the long term; what he wanted was the information that would emerge from the contact.

Discussion
29. It is important to recognise the true nature of the decision that HHJ Cliffe made in December.  It would be a mistake to view that decision as a case management decision.  It was not merely a case of the judge exercising his power, for example, to regulate the format of the evidence that he heard and deciding that he would proceed on written material.  What HHJ Cliffe was doing was taking a welfare decision, that is that the contact would continue notwithstanding the opinion of the new Cafcass officer that it would be inappropriate and notwithstanding the mother's opposition to it, formulated after the receipt of that Cafcass officer's opinion.

30. The mother's opposition appears in fact to have been present at the time of the June hearing but we were told that the mother did not pursue her objection in the light of an indication from the judge, no doubt recognising the force of the then Cafcass recommendation.  I am not persuaded by the father's argument that the question of contact had all been decided in June and that nothing had changed to justify varying the order of June.  Having gone along with the view of the then Cafcass officer at that time, the mother was faced with a different Cafcass officer who formed the opposite view and stuck resolutely to it.  That was undoubtedly a change of circumstances.  The mother then changed her stance and it was incumbent on the court to deal with the resulting problem.

31. I would not like by anything that I say in this case to tie the hands of judges who consider in different circumstances that a matter should be resolved without oral evidence.  To a large extent my decision on this appeal is tailored to the facts of this particular case.  Here the hearing went straight from an application by the mother for the matter to be put over for a hearing to a decision by the judge that contact should go ahead.  If the matter was going to be resolved without the attendance of the officers -- and for reasons that I shall give in a moment I do not think that it should have been -- there should at least have been an opportunity for both legal representatives to make submissions on the approach that the judge should take to the point of view of each of the Cafcass officers.  That there were submissions that could have been made was quite clear from the hearing before us, during the course of which counsel at our invitation made some of the various points that could be made about the recommendations: for example that, as it turned out, neither Cafcass officer had seen the mother; that Ms Davidson may not have understood fully what the judge had found about the mother's conduct in the incidents with the father; and so on. 

32. But in my view it was inappropriate for this matter to be determined without the judge hearing from these two Cafcass officers.  Nothing that I say should be taken as any indication of how the judge would have decided the issue about supervised contact had he actually heard from the Cafcass officers, but he was faced with two childcare professionals who each adhered to their views despite the meeting between them.  The points that Ms Davidson raised against supervised contact commencing (such as her anxiety about the implications of the father's failure to acknowledge the findings of fact) were points which were undoubtedly material, as the authority of Re L and the Practice Direction to which I referred earlier show.

33. Ms Davidson's points could not be dismissed on the basis that she agreed to contact in principle because she was only in favour of indirect contact, which is a very different proposition from direct contact even on a supervised basis.  Furthermore her anxiety was not confined to physical violence, in relation to which Ms Guha conceded the supervised contact would have been an adequate safeguard, but related to emotional damage that she considered could occur because of the mother's reaction to the contact starting and the father's attitude to the mother in the contact that he had with his daughter.

34. I have very great sympathy with the judge, who had to decide what to do about a most unusual situation, knowing that if he were to accede to the mother's suggested course he would inevitably be delaying the start of contact for a father and daughter who had already not been in contact with each other for a very significant period of time.  He would have been aware of the pressures on the court lists and on the time of the Cafcass officers.  But I cannot accept that in the exceptional circumstances that he faced it was appropriate to proceed without the attendance of the officers to give oral evidence.  I cannot in particular accept Ms Allman's suggestion that the meeting of the officers in some way substituted for cross-examination in the court setting.

35. I would therefore allow the appeal and return the matter to the county court for a determination of the issue between the Cafcass officers, although I appreciate that, as Ms Allman said in the course of argument, a considerable period of time has passed and circumstances may have changed.  It may now be that a different format of hearing is now appropriate.

President of the Queen's Bench Division:
36. I agree.

Order: Appeal allowed