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F, Re (A Child) [2005] EWCA Civ 499

Appeal concerning Re L fact finding hearings


Neutral Citation Number: [2005] EWCA Civ 499





Royal Courts of Justice


London, WC2A 2LL

Thursday, 7 April 2005

B E F O R E:



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(Computer-Aided Transcript of the Stenograph Notes of

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MR MICHAEL HORTON (instructed by Messrs Norman H Barnett & Co) appeared on behalf of the Appellant

MISS MAUREEN TAYLOR (instructed by Lillywhite Williams & Co, Essex RM8 1AA) appeared on behalf of the Respondent

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(Approved by the Court)

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Crown Copyright©

Thursday, 7 April 2005

1. LORD JUSTICE THORPE: This is an appeal from an order of 6 December 2004 made by His Honour Judge Platt, sitting in the Romford County Court. Judge Platt himself gave leave to the father to appeal and he has been ably represented this morning by Mr Michael Horton. The reason that he was granted permission to appeal is evident from the first paragraph of the judgment below which is in these terms:

"This case raises an important point of principle in relation to contested applications for contact where the court has ordered a fact finding hearing following the authority of the decision of the Court of Appeal in Re L, M H [2000] 2 FLR 334."

The judgment closes with this paragraph:

"As I indicated at the start of this judgment the case raises issues upon which further guidance from the Court of Appeal would be very welcome both to practitioners and first instance judges and leave to appeal is therefore granted."

2. The circumstances which concerned Judge Platt arise out of the relationship between Rhys Foster and Vikki Brett, which commenced in 1996. At that time the mother was four months pregnant and the child subsequently born was named Jordan, and he is eight years of age. His father has subsequently deceased. Reece Foster has always been Jordan's psychological father. There were two children born to the couple, Karhys, now a six-year old girl, having been born on 2 August 1998, and Kalum, a five-year old boy, having been born on 12 October 1999.

3. The mother asserts that the relationship between the couple was characterised by domestic violence. Certainly on 1 August 2003 she sought and obtained an injunction under Part IV of the Family Law Act 1996 restraining the father from violence or harassment, an order which was set to run until the end of that year.

4. The first application in relation to contact was issued by the father on 15 September 2003 and resulted in an order that required the father to issue his proceedings by a certain date. The period during which the first Part IV order ran does not seem to have been characterised by any specific incident between the parents. However, after its termination on 18 March 2004 there occurred an incident which led to an application without notice to Judge Platt for further protection under Part IV of the 1996 Act. The order that he made on 24 March restrained Mr Foster from violence or threats of violence, from harassment, from communication other than through solicitors and from approaching within 100 metres of the mother's home. The order as first drawn was stated to run until 24 May 2005. That was a mistranscription by the court office and, when noticed, was amended under the slip rule to 24 May 2007. The order, having been made without notice, of course provided every opportunity for the respondent to enter the field and to dispute the foundation of the order or its need. Specifically, the order said that there would be a further hearing to be fixed on request by the respondent, and that the respondent was to file and serve his evidence at least two days before the review hearing. On the following page there was the important standard notice to the respondent, which include these words:

"If you think the order should be set aside or varied you will have the opportunity to apply for this at a full hearing which will take place as soon as just and convenient. At that hearing the court will hear evidence from both parties and decide whether to confirm, or vary, or set aside the order."

5. It is not insignificant that the respondent took no step whatever to set aside or vary that order, and I am sure that that fact must have influenced the CAFCASS officer who, in the course of her report of 6 May, said:

"Given the incident on 18 March last led to a three year injunction with power of arrest I have to believe there was a serious and unsettling incident instigated by Mr Foster. Ms B and the children were placed in a position of fear. I would suggest that any direct contact would alarm and unsettle the children."

However, towards the end of her report, the CAFCASS officer suggested that indirect contact involving cards and presents would be appropriate. She offered to act as a postbox for communication, and she expressed the view that mother should encourage the children to send thank you notes to Mr Foster again via her office. She concluded:

"I would hope that given time, Mr Foster may settle and be able to restrain himself from unacceptable behaviour towards Ms B. This would lead to consideration being given to a reintroduction of direct contact and to parental responsibility."

6. The extent of the factual issues that required to be investigated in the light of the decision of this court in Re L (already cited) led to the abandonment of a one-day fixture and the setting up of a three-day hearing to commence in December. On the day before the hearing Mr Foster sought to withdrew his application for direct contact and his application for parental responsibility on the basis that he was content to accept the recommendation of the court welfare officer and to proceed for the time being to implement the programme of indirect contact. The court was informed that only an hour would be required rather than three days.

7. The judge did not accept that it was appropriate to withdraw his application for parental responsibility, an application that required the court's permission. He said:

"In the light of his conduct of these proceedings and the contents of the Cafcass report I do not consider that it is appropriate to grant that leave and I dismiss his application."

That is not a discretionary conclusion that has been challenged during the course of this appeal.

8. Mr Horton tells us that the first intimation he had of a cross-application for a direction under section 91(14) of the Children Act 1989 was on the morning and from his opponent. I would only say that that seems to me procedurally inappropriate. If this was a case in which it was thought that a section 91(14) order was justified, then the application should have been issued in advance and supported by evidence. However, Mr Horton did not take any point below on procedural disorder, nor has he sought to run a criticism in this court. He simply addressed the judge on the basis of the guidelines given by this court in Re P [1999] 2 FLR 573. He said that this was a completely inappropriate case for a direction, and he did not suggest to the judge that, alternatively, if the judge was minded to impose any restriction, there should be excepted from the restriction any future application for the variation or extension of the order for indirect contact that had been agreed. It was a root and branch objection to any imposition and that is basically the line that Mr Horton has run in this court, although he has sought to suggest that, alternatively, if any direction was appropriate, it should not have been drawn as wide or as long as the judge determined.

9. Thus there are two points to be decided. First, the specific point: is the order or direction under section 91(14) one that withstands appellate review? The second question is whether this court can give any guidance on the areas identified by Judge Platt. I will take the first and essential question: does Mr Horton make good his submission that the order made by the judge was wrong in principle? In my judgment he does not. After all, the judge was fully entitled to look to the history of the case from its inception. He was fully entitled to look to the respondent's reaction to the without notice order of 24 March. He was fully entitled to have regard to the content of the CAFCASS report, including the outcome of discussion between the CAFCASS officer and the children which, in legal terms, can be categorised as corroborative of the mother's allegations. He was fully entitled to have regard to the circumstances in which the applications before the court were being withdrawn or dismissed and he was bound to have regard, above all, to the welfare of the children and their need to be protected from direct or indirect disturbance that might result from renewed litigation.

10. Accordingly, it seems to me that, as a matter of principle, this order can easily be categorised within the terms of paragraph 6 of the Re P guidelines set out at page 37 of the report in these terms:

"In suitable circumstances (and on clear evidence), a court may impose the leave restriction in cases where the welfare of the child requires it, although there is no past history of making unreasonable applications."

11. If the order was not wrong in principle can Mr Horton succeed in his submission that it was unnecessarily extensive in its area and duration? Again I conclude that he cannot. The suggestion that the judge might have excepted from the restriction an application for variation or extension of indirect contact is superficially attractive, but, given that the point was not raised below, it should not drive the outcome of this appeal. Obviously it is open to the parties to agree that slight variation if the issue is raised between solicitors.

12. Nor do I think that the duration of the order can be said to fall without the wide discretion vested in the judge. Perhaps two and a half years was toward the top of the appropriate bracket, but it certainly cannot be said to fall without the boundary of the judge's discretion. Manifestly, if circumstances change - and to some extent there have been fresh developments which I will mention briefly in a moment - it is open to Mr Foster at any stage to go to the court and to demonstrate that he has a case which requires judicial investigation.

13. When the case was before Judge Platt he knew that there was to be a criminal trial arising out of the incident of 18 March 2004. Mr Horton has informed us today - and his information is confirmed by Miss Taylor for the mother - that at the trial last month before the justices Mr Foster was acquitted for the simple reason that the mother explained to the justices that she was not prepared to give evidence against him and that she did not wish to see him punished.

14. That leads neatly to considering the second question in the appeal, namely that on which the judge sought guidance. He felt the need for guidance because, as he said in paragraph 6 of his judgment:

"This is the fourth out of the last five Re L hearings at this court in the past four months which have ended without an effective fact finding exercise. The question is therefore whether the court ought simply to accede to the parties wishes and in the context of this case simply make an order for limited contacted on the terms agreed."

He then in paragraph 8 recorded Mr Horton's submission that since the parties were agreed in the issue of direct and indirect contact there was no lis between them. The judge said:

"With respect that is fundamentally misconceived. Children Act proceedings are not a lis in the traditional adversarial sense. They are and should remain a simple enquiry into what solution to the particular problem which the court is facing best meets the welfare needs of the child or children concerned."

With that passage I am in whole-hearted agreement. However, there can be no doubt that the burden imposed on the courts of trial by the decision of this court in Re L has resulted in practical difficulties. In some instances it has burdened the already stretched resources of the trial courts with difficult factual investigations into past events and past relationships. That has undoubtedly had an impact on the productivity and speed of the family justice system. Mr Horton has made a number of cogent submissions as to the ways in which procedures could be improved to reduce the burden on the courts of trial, but I do not intend to express any views in this judgment on that aspect since it is not the issue that was referred by Judge Platt for our consideration. Restricting myself to that issue alone, it seems to me that the disintegration of an intended Re L investigation at the last moment is likely to result from one of two possible developments. The first is the development seen in this case. The applicant withdraws the applications which have obliged the respondent to deploy the history which the court has then arranged to determine. In that event, the consequence is, it seems to me as a matter of principle, straightforward. Once the applications are withdrawn then there is no need for the defensive case, there is no need for the investigation of that case, and the court can with an easy mind accept the compromise, since the acceptance of the compromise does not at that stage risk the welfare of the children or require any proactive steps for their protection. Plainly, the regime for indirect contact agreed in his case does not expose the children to any measurable risk of harm.

15. The other possibility is not that which confronted Judge Platt on 6 December, but it is one that is easy to posit, given the events before the justices. The resolute applicant may outface the defensive wall raised by the respondent who succumbs to the pressure of complex emotions. The respondent may in the abandonment of the defence endanger the welfare of the children and engage the court's obligation to protect. The judge may well in those circumstances determine to proceed with the investigation despite the absence of the principal defence evidence. There may be evidence from some other source; there may be material within the history; there may be a CAFCASS report, any one of which may heighten the need for investigation and form the basis for conclusions adverse to the applicant. Of course the court may always also engage child protective procedures by requesting an investigation and report from the local authority.

16. So whilst appreciating the circumstances that led Judge Platt to grant permission and to seek guidance, it does not seem to me that it is possible to go beyond those generalisations, given the infinite variety of facts which ultimately drive the discretionary conduct and disposal of these difficult cases.

17. I would, for the reasons already given, simply dismiss this appeal.


(Appeal dismissed; assessment of both parties' publicly-funded costs).