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SW v SW & Anor [2008] EWHC 1890 (Fam)

Appeal and application for rehearing by father against findings of judge in protracted contact litigation. Appeal dismissed.

The father was seeking a shared residence order. There had been a two day hearing in January 2008 and a further one day hearing in June 2008 to see if matters had moved on. At that hearing, the appellant had been prevented from cross-examining the mother and the guardian, in particular concerning the report which the appellant claimed did not address the welfare checklist. His application for shared residence was dismissed. He appealed on the grounds that he had not been allowed a fair trial.

Hedley J, in dismissing the application, concluded that the decision to prevent cross-examination was within his direction as he had heard much of the evidence in the previous two day hearing in January. He also found that questioning the guardian would not have revealed any further evidence and so the appeal was still essentially one of discretion not fairness.

The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.

Neutral Citation Number: [2008] EWHC 1890 (Fam)
Case No: FD05P00525

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 31/07/2008

Before :

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Between :

S W  (Appellant)

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S W   (Respondent)

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D W-W   (2nd Respondent)
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Appellant in Person
Mr Christopher Miller (instructed by Hodge, Jones & Allen) for the 1st Respondent
Ms Melanie Carew (of CAFCASS)    for the 2nd Respondent.

Hearing dates: 16th July 2008
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1. This is an appeal by Mr. S W, the father of D W-W aged 3½, against an order made by District Judge Robinson, sitting in the Principal Registry on 17th June 2008.  By that order the learned judge in effect dismissed Mr. W’s application for a shared residence order and he further defined contact.  Mr. W seeks a rehearing of the case at a higher level.

2. The appeal appeared in my list for Directions.  Mr. W was acting in person and both the mother and the child were represented.  As some time was available all parties agreed that I should hear the full appeal.  I did so and at the end of the hearing reserved judgment.  There were in reality three possible outcomes:  the dismissal of the appeal, the remission of the whole appeal for rehearing by a circuit judge or the remission to such judge of only the application for a shared residence order.  Accordingly I indicated that I would hand down judgment without the need for attendance by any party.  This I now do.

3. Mr. W advanced his submissions both succinctly and courteously.  He contended that he had been denied a fair trial.  He complained that he had been prevented from giving oral evidence, had been prevented from cross-examining either the mother or the guardian and had in particular been unable to canvass with the guardian that her report was defective in that it did not address the welfare checklist.  In those circumstance he sought a rehearing.

4. In support of his contentions he referred me to a number of cases.  I can take one, the most recent, to illustrate his argument – Re C (CONTACT: CONDUCT OF HEARINGS) [2006] 2FLR289 (CA).  In his judgment Wilson, LJ refers to the judgment of Butler-Sloss, LJ in Re B(Minors)(Contact) [1994] 2FLR1 and in particular at p.5F-H  where she says –

“In my view a judge in family cases has a much broader discretion…to conduct the case as is most appropriate for the issues involved and the evidence available… There is a spectrum of procedure for family cases from the ex parte application on minimal evidence to the full and detailed investigations on oral evidence which may be prolonged.  Where on that spectrum a judge decides a particular application should be placed is a matter for his discretion.  Applications for residence orders or for committal to the care of a local authority or revocation of a care order are likely to be decided on full oral evidence but not invariably.  Such is not the case on contact applications which may be and are heard sometimes with and sometimes without oral evidence or with a limited amount of oral evidence.”

Then at paragraph 31 of his judgment Wilson, LJ comments –

“At 6A-D Butler-Sloss, LJ indicated that, in deciding whether to conduct a full investigation with oral evidence, a judge should consider:

1. (a)  whether there was already sufficient evidence to make the     decision;
2. (b)   whether the proposed further evidence was likely to affect the outcome of the proceedings;
3. (c)    whether the opportunity to cross-examine witnesses was likely to affect the outcome;
4. (d)   whether a full investigation, including any consequential delay, would be injurious to the welfare of the child;
5. (e)   whether the applicant for a full trial had real prospects of success; and
6. (f)   whether the justice of the case required a full investigation.”

And then, if I may respectfully say so, helpfully explains the relevant principle at paragraph 33 –

Judges exercising jurisdiction in relation to children have, in my view, a broader discretion in the mode of the conduct of the hearing than do judges in the exercise of a conventional civil jurisdiction.  Put another way, the sort of hearing which might be adjudged unfair, and therefore unlawful, in an ordinary civil context may, nevertheless, be lawful in a child context.  The difference is largely attributable to the fact that, although of course the welfare of the child is not the paramount consideration in the judge’s determination as to how to conduct the hearing,  it is a relevant consideration;  and that, unless to do so is essential to a proper determination of future arrangements for him, the child’s welfare will not be served by taking a course likely to fan the flames of the animosities of the adults who surround him.  Furthermore this court must consistently strive to be imaginative about the reasons, often deliberately left unexpressed at least in part,  why a trial judge in a child case takes a particular decision, whether substantive or procedural;  and it must also be constantly alive to the need, and even in the absence of need at any rate to the entitlement, of the judge often to act robustly in the exercise of this jurisdiction.

That then, provides the legal framework  for determining  whether oral evidence is required.

5. Now on the face of it Mr. W has a real point.  The decision to refuse to hear oral evidence will for its validity depend on the context of the case, the information available to the learned judge and whether in all the circumstance Mr. W was afforded a fair hearing.

6. This case presents a history of protracted litigation spread over the whole of this child’s life.  In later times the specific features of this case have been definition of contact and shared residence.  A number of judges have been involved in the case but in more recent times it has fallen to DJ Robinson.  He had heard the matter over two days at the beginning of the year and had delivered a reserved judgment on 10th January, 2008.  The hearing of 17th June had occupied a further full day.  It involved precisely the issues canvassed in January, the judge having decided to see whether or not things would move on.  It is a matter of some wonder that the child undoubtedly maintains an excellent relationship with both parents.

7. At the hearing on 17th June the learned judge made it clear that he intended to keep a firm grip on the hearing.  We do not have a transcript but we have counsel’s note of the various rulings.  Whilst the note does not pretend to be verbatim, the parties accepted that it fairly represents the essence of the judge’s reasoning.  What he appears to have done is deal with the various issues sequentially and give a short but reasoned ruling on each issue.  It is very clear that he prevented oral evidence and cross-examination and, of course, the guardian’s report is there to be seen.

8. In my judgment the learned judge was acting well within the permissible ambit of his discretion in refusing to allow Mr. W to give oral evidence.  He had heard his evidence at length on these very issues in January 2008 and the fact that the case lasted the full day amply demonstrates that Mr. W was fully able to put his case to the court and, judging by the cogency of his submissions to me, would have been well able to so.  Moreover that view would apply also the judge’s refusal to allow cross-examination of the mother, a decision which, had it stood alone, Mr. W would, I think, have accepted.

9. The real burden of his submission went to the evidence of the guardian and the refusal of the judge to allow him to cross-examine her.  I am satisfied that there is nothing in his suggestions that the guardian’s report was in some way illegal in that it failed to follow the welfare checklist.  This report was clearly to be read as supplemental to her earlier report on the same issues in which the welfare checklist had been fully considered.  His complaints under various International Conventions take his case no further than it goes in our domestic law.  The questions are:  first, whether the learned judge correctly directed himself in accordance with Section 1 of the Child Act 1989 and secondly whether he afforded Mr. W a fair trial within E.C.H.R. Article 6?

10. I am wholly satisfied that on the evidence available to him the decisions at which he arrived were well within the generous ambit of discretion that the law affords to trial judges in family cases.  Indeed Mr. W saw just the force of that in that he focussed his submissions on fairness and in particular, that had he been allowed to cross-examine the guardian, he might have elicited matters upon which the judge may have exercised his discretion differently;  hence his application for a rehearing.

11. This is the part of the case which has caused me the greatest anxiety particularly in relation to the question of a shared residence order which was clearly an arguable proposition.  Having reflected carefully on it, I have come to the conclusion that the judge’s decision should stand.  I do so principally for two reasons.  First that the judge’s knowledge of the case, the very full hearing which he had conducted in January 2008 and that the self same issues were under consideration entitled him to conduct the hearing as he did;  factually this is very different to Re C and in my view the judge’s approach was consistent with the principles in that case.  Secondly, the judge would almost certainly have arrived at the same conclusion had the guardian been cross-examined;  there was no new information to be uncovered, it would have been a debate about the exercise of the court’s discretion.

12. For all these reasons this appeal must be dismissed.