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A-M (Children) [2014] EWCA Civ 1489

Appeal by the mother of a decision to dismiss her application for an increase in contact and a section 91(14) order made in relation to the same. Appeal allowed on the basis that the trial judge had not dealt with any of the contact centre material in his judgment.

This was the mother's appeal of a decision to dismiss her application for an increase in contact and a section 91(14) order made in relation to the same. The court had also dismissed the mother's application for residence, but permission to appeal against that order had been refused. The mother had not raised an objection to a restriction under section 91(14) in relation to residence.

The court was concerned with the welfare of I, 13 years old, and H, 11. The children were parties to the litigation, and their interests looked after by NYAS.

The parents separated in 2004 and there had been ongoing litigation in relation to the children since that time. Residence had been transferred to the father in September 2010. The mother had argued that I suffered from Asperger's syndrome. Despite findings that I did not, it remained a recurring theme of the mother's litigation.

The level of contact which the mother had been having since the transfer of residence had varied, but immediately prior to HHJ Harlington's judgment of 2 April 2014 (which was the subject of this appeal) the mother was having contact with the children on a monthly basis. Contact had always been supervised, usually in a contact centre. The mother sought contact on alternate weekends and for half of the school holidays. NYAS invited an order for contact six times a year, which was supported by the father (although he envisaged a more frequent level of contact were the mother's attitude towards him and the children's placement with him to improve). HHJ Harlington had followed NYAS's recommendation, reducing contact to six times per year.

The appeal was allowed. The matter was to be listed for a rehearing in front of an alternative judge. In addition NYAS was to appoint a new caseworker.

Black LJ identified the problem with HHJ Harlington's approach as being that it did not contain an evaluation of what had happened during the mother's contact sessions with the children. It was inevitable that the appeal would be allowed because the judge had not dealt with any of the contact centre material in his judgment. Black LJ went on to state that in her view a decision as to what was in the best interests of the children could not be made without a thorough review of that material to see whether it provided a secure foundation for criticising the mother's approach during contact or not. Even if the judge had considered the material without referring to it, the omission was of such importance that it was fatal to his decision.  

Summary by Helen Pomeroy, barrister, 1 King's Bench Walk chambers

Neutral Citation Number: [2014] EWCA Civ 1489
Case No: B4/2014/1321


Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday 20th November 2014

Before :


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Between :


(Transcript of the Handed Down Judgment of
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The Appellant Mother appeared in person with assistance of a McKenzie Friend
1st Respondent Father who was in person, was unable to attend but provided written submissions
Mr Simon Worlock
(instructed by NYAS) on behalf of the 2nd Respondents

Hearing dates: 13th November 2014

As Approved by the Court
Crown copyright©

Black LJ:
1. This case concerns a decision made by His Honour Judge Harington on 2 April 2014 about a mother's contact with her daughter who is 13 years old (I) and her son (H) who is 11 years old and the imposition of a restriction under section 91(14) Children Act 1989 on the mother making further applications in relation to the children for 2 years. The case turns entirely on its own facts and no question of principle arises.

The parties

2. The children are parties to the litigation. Their interests are looked after by NYAS who have been involved in the case since 2009. The current NYAS caseworker took over in April 2010. Mr Worlock of counsel is instructed on the children's behalf.

3. The parents both act in person. The mother has the assistance of a McKenzie Friend, Mr O'Connell, who attended the appeal hearing with her. The father was unable to attend and instead made written submissions. He was not disadvantaged by not being present in court as his position was set out clearly in his submissions. Furthermore, given that he and NYAS were aligned in opposing the appeal, Mr Worlock's oral submissions furthered the father's case as well as the children's. 

The outcome of the appeal

4. At the conclusion of the appeal hearing, we announced our decision, reserving our reasons to be given later in writing.

5. Our decision was to allow the appeal, to set aside Judge Harington's order, and to direct that the question of contact be remitted to the Family Court for rehearing before a circuit judge other than Judge Harington, anticipating that there would be a directions hearing promptly in preparation for that rehearing. NYAS are to appoint a new caseworker. This will mean that there can be a completely fresh look at this case which is not at all easy.

6. The mother raised no objection to there being a restriction under section 91(14) preventing her making further applications in relation to the children's residence for a period of two years and we made such an order. It is important that everyone understands that for the foreseeable future, to all intents and purposes, this concludes the question of the children's residence which is with their father. The question of whether there should be a wider section 91(14) order will be determined at the rehearing.

7. The purpose of this judgment is to explain why we took this course in relation to the appeal. Because there will be a rehearing of the contact issue, I intend to keep it very short in order that I do not stray into areas that will have to be explored in the course of the new hearing.

The history
8. The parents were married in 2000 and separated finally in 2004. Litigation over the children began almost immediately and has continued over the intervening years.

9. The children lived with their mother to begin with. There were difficulties over contact.                                                                 

10. In September 2010, District Judge Fawcett transferred residence to the father because she considered that the children had been subjected to the stresses of the mother's anxieties and hostilities and that the way in which the mother had dealt with the father was harmful to their emotional welfare. During the hearing, the district judge heard evidence from a child psychiatrist and a paediatrician as to whether, as the mother argued, I suffered from Aspergers Syndrome. She found that I did not, but this has remained a recurring theme of M's litigation.

11. The mother's appeal against the district judge's order was dismissed by Her Honour Judge Norrie in January 2011. The district judge's finding that I did not suffer from Aspergers Syndrome was also affirmed. 

12. The children have been living with their father since the district judge's order in 2010, together with the father's partner and their half siblings. Contact began fortnightly but it was reduced to three weekly in August 2011 and then in December 2011 to four weekly. It has always taken place on a supervised basis, mostly in a contact centre.

13. A hearing was scheduled for June 2012 at which the judge intended to review the contact and make a final order. No final order was in fact ever made because matters continued to develop.

14. In April 2012, the mother applied for residence to be transferred to her. In May 2012, Judge Harington refused an application by her for I to be reassessed by a specialist in autistic disorders and permission to appeal that decision was refused by Thorpe LJ. However, the residence application itself remained live. Although I do not think that a formal application for an increase in contact was made, the mother was seeking that in the alternative. Her objective is to achieve as normal a contact arrangement as possible, including overnight stays in due course.  

15. On 26 September 2012, the father issued an application under section 91(14) Children Act 1989.

16. A directions hearing took place on 25 April 2013 at which the question of contact was listed for a contested hearing in mid July 2013. The court noted that the mother wished to pursue her application for residence as a separate issue and that that should be dealt with as a separate hearing. The question of a section 91(14) order was to be dealt with at the conclusion of proceedings at a time considered appropriate by the court.

17. The contested hearing began on 15 July 2013. On the one hand the mother was seeking what the judge described as a "conventional" contact order which would provide for the children to stay with her on alternate weekends and for half the school holidays. On the other hand, NYAS invited the court to replace the current monthly contact with 6 visits a year. The recommendation was that on four occasions the contact would be supported and would take the form of a day out, with the mother alone, and twice a year there would be monitored contact which the maternal grandparents and other family members could attend. It seems that the father supported NYAS' position but had it in mind that more frequent contact may be appropriate if the mother's attitude towards him and the children's placement with him improved.

18. The hearing was not concluded in the time set aside for it and it was unfortunately a long time before it could be resumed because first the judge was ill and then the NYAS caseworker was unable to work for a period of time for personal reasons. The final part of the hearing took place in February 2014 and judgment was given on 2 April 2014.

The judgment
19. The judge dismissed the mother's application for residence and McFarlane LJ refused permission for the mother to appeal against that order, so that matter is at an end.

20. The judge also dismissed the mother's application for an increase in contact. Instead he followed the recommendation of NYAS, reducing it to direct contact 6 times a year plus limited email and telephone contact. It is against that order and the judge's section 91(14) order that McFarlane LJ gave the mother permission to appeal.

21. It seems that the judge's decision was based upon the mother's hostility to the father and her attitude to the children's life with him. The judge acknowledged that the children love their mother and want to see her. However, he found that she persisted in fighting old battles and observed that her closing submissions demonstrated her continuing hostility to the father and the NYAS caseworker and her conviction that she is not to blame for what happened and the courts have got it all wrong.  He did not accept that she wished to have I reassessed for I's good and took the view that it was to do with her attempt to show that she was right.

22. His thinking is probably best summarised in his conclusion where he said:

"44. Whilst I accept that there has been some improvement in the monthly contact that has been taking place, in particular the mother herself has been far less emotional than had previously been the case, the evidence is that the mother does not try to reassure the children, nor does she take a real interest in their lives with the father and she does not try to promote their relationship with the father. Also her offer to withdraw her application for the residence order, now looks very hollow in the light of what she sets out in her written submissions."

Discussion of the grounds of appeal 
23. The mother advances various grounds of appeal but it seems to me that the problem with the judge's approach is in fact that identified by McFarlane LJ when he gave permission to appeal. He remarked upon the absence from the judgment of any evaluation of what had gone on in the contact sessions. Apart from the maternal family's account, the information available to the judge about this was largely in the form of the contact centre notes, which followed the usual format in recording events during each contact centre visit. The NYAS caseworker herself had not observed contact since April 2012 so she was reliant on her analysis of the contact notes.

24. Mr Worlock submitted to us that the contact notes revealed difficulties in the mother's approach to contact and provided a foundation for the anxiety of the NYAS caseworker about it and for the judge's findings about the mother's attitude during it. I think I am right in saying, however, that the only specific example to which we were directed was the session of 11 January 2014 where it was recorded that both children became emotional and reluctant to leave when it was the end of contact. There are a number of possible explanations for that; it does not, by itself, establish that the mother has been at fault in some way.

25. Even if Mr Worlock or the father had taken us to the detail of the contact recordings, in my view it would have remained inevitable that the appeal would have been allowed. This is because the judge himself did not deal with any of the contact centre material in his judgment. In my view, a decision as to what was in the best interests of these children could not be made without a thorough review of that material to see whether it provided a secure foundation for criticising the mother's approach during contact or not.  It may well be that the judge did, in fact, consider the material, even though he did not refer to it. However, it was of such importance that the omission to set out his conclusions about it in his judgment is fatal to his decision. I will not say more about what may be found in the contact notes and what conclusions may be drawn from the recordings because I am anxious that the judge who deals with this matter from now on should not be fettered in any way in his or her approach.

26. There is a difficult balance to be struck in this case. The children love their mother and want to see more of her. Her approach in the aftermath of the 2010 order transferring residence to the father has not made that easy to achieve. On the other hand, it seems to be agreed that there have been signs of improvement. The new judge will have to look at the whole picture in order to determine what contact arrangement will best suit the children's needs. He will have the benefit of a report from a new caseworker for the children who may or may not take the same view about the way forward as the last one. If a reduction in contact is still sought, there will no doubt have to be a critical evaluation of the contact notes in order to reach a reliable interpretation of them. Whatever the restrictions imposed by public funding on the work done by the NYAS caseworker, I would have thought it likely to be necessary for him or her to attend at least part of a contact session in order to form a view about the dynamics between the mother and the children.

27. I do not propose to say anything about the question of a section 91(14) order in relation to applications other than residence. The judge will have to consider whether it is appropriate to make such an order once he or she has determined what contact order to make.

28. It is unfortunate that the litigation in this case will be yet further prolonged by the need for a rehearing. However, this does give the parties an opportunity to take a fresh approach to matters and I would encourage them to do so. Judge Harrington spoke of the possibility of family therapy and/or mediation in his judgment. If the parties could agree to engage in something of this sort for the benefit of their children, it may prove to be of great assistance to the whole family.

29. It is important that the new judge is allowed to focus upon the important question of contact without being distracted by issues that are not on the agenda. The question of residence is closed, as is the question of a further assessment of I. The documentation produced for the appeal was voluminous and unwieldy and I suspect that Judge Harington may well have encountered a similar problem. It is imperative that a new court bundle is now prepared, containing only those documents that are relevant to the contact issue, set out in a logical and readily accessible order.

Patten LJ:
30. I agree.

Elias LJ:
31. I also agree.