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W (A Child) [2008] EWCA Civ 1181

Application by father for permission to appeal refusal by judge to list a full fact finding hearing in the course of protracted contact litigation. Application refused.

Counsel for the father argued that the refusal to list a full fact finding hearing meant that the issue of possible parental alienation was not properly considered by the court but was highly significant in its impact on the wider family. More specifically she also argued that the judge was wrong to find that such a hearing would not in the interests of the child. The court’s refusal to list a hearing therefore led to a lack of clarity that only the clear findings of the court can resolve.

Wall LJ rejected these submissions primarily on the grounds that, unlike the cases cited in support of the argument, there “is no justiciable issue for the court to decide” especially as the father was no longer pursuing contact with the child. Therefore there is no decision to be made on whether, and, if so, where and when contact should be ordered. He also states that following Re M (1999) the general principle is that there should be no unnecessary litigation. Therefore the trial judge had not made any error in the exercise of her discretion. 

Neutral Citation Number: [2008] EWCA Civ 1181
Case No: B4/2008/1714
ON APPEAL FROM HH Judge Mayer sitting in the
Barnet County Court on 1 July 2008.

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 30/10/2008
Before :


W (A Child)
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Between :

AW (Appellant)

- and - 

SW (Respondent)

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The Mother neither attended nor was represented
Victoria Domenge (instructed by Osmond, Gaunt & Rose - Solicitors) for the Respondent

Hearing date: 14th October 2008
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Lord Justice Wall :
1. This application for permission to appeal arises out of private law proceedings between former spouses, and relates to an order made by HH Judge Mayer sitting in the Barnet County Court on 1 July 2008.

2. Although the judge plainly intended by her order to bring the proceedings to a conclusion, I will, nonetheless, write this judgment in such a way as to protect the anonymity of one child with whom the court is concerned, a boy called DW, who was born on 3 April 1996, and is thus 12 years old.

3. SW, who is DW’s father challenges paragraph 1 of Judge Mayer’s order, which refused his application to list the case for a finding of fact hearing. On 14 October 2008, I heard full and careful oral submissions from Miss Victoria Domenge of counsel, for SW, after which I decided to reserve judgment and to put my decision – one way or the other - into writing. In the event, having considered the matter carefully, I have come to the clear view that permission to appeal should be refused. This judgment, accordingly, explains my reasons for reaching that conclusion.

4. For the purposes of this judgment, it is only necessary to sketch in part of the background. DW is the youngest of the three children born during the marriage of SW to his former wife AW. The two older children are BW, who was born on 3 November 1987 (he is thus rising 21) and JW, who was born on 11 October 1990. He is thus 18.  AW has another child, a daughter M, who was born in April 1981 and is now 27.  SW is not the father of M, who was born during the mother’s first marriage. The evidence, however, is that M saw very little of her birth father,  and was, effectively, brought up as the child of SW and AW.

5. SW and AW were married in 1987. In May 2000,  AW petitioned for divorce, and there were a number of interlocutory hearings. In August 2002, SW issued his first application for contact, and on 3 October 2003, Her Honour Judge Mayer, sitting in the Barnet County Court, delivered a lengthy judgment, which has been transcribed, and a copy of which is in my papers.

6. It is clear to me that in the October 2003 judgment, the judge plainly thought that she had reached the end of the road, and was attempting to impose closure on the case. In paragraph 4 of that judgment, the judge summarised the history of the case as follows:-

This case has been before the courts in one form or another since August 2001. There were proceedings for non-molestation, occupation orders, ancillary relief and contact disputes. I am unable to count how many times the parties appeared in court. The reality is, remarkably, that all proceedings so far have been settled by agreement I say “remarkably” because I have rarely seen two parties who agreed less with each other. Whatever issues have been between them remain unresolved. Some of the issues have been festering for years. I have rarely seen people with more dislike, contempt, lack of trust, lack of respect and desire to goad each other than these parties whose decree nisi was pronounced almost three years ago in January 2001.

7. By 3 October 2003, SW was not having any direct contact with any of the children, and his applications to the court – as recorded by the judge - were that the director of CAFCASS Legal should appoint a guardian for the three boys; that they should be seen by a consultant child psychiatrist, and that he should have indirect contact with the children whilst further enquiries and an assessment about direct contact were conducted by the guardian or by the psychiatrist, or both. These applications were opposed by AW, who wished the proceedings to end, and rejected by the judge. She also accepted an undertaking from SW not to make any further applications for contact in relation to BW and JW, and not to make any further applications for a period of two years in relation to DW.

8. The judge explained in her judgment  why she was conducting a finding of fact hearing:-

Since this hearing before me is an important one, deciding perhaps  the fate of this father’s contact with his three children  for a great part of their minorities I decided to air some of the issues which have been outstanding for years.  My view is that had findings of fact been made in this case at the time that there was an argument about an occupation order many of the issues with which I have had to deal three years later may not have arisen.

9. Thus it was that on 3 October 2003, the judge gave a judgment in which she made a number of findings of fact.  The outcome was flattering to neither party. However, it does not seem to me appropriate to set out the reasons for the  judge’s conclusions: it is sufficient for me to record her reasons for conducting the hearing as she did.

10. The judgment of 3 October 2003 was not, however, the end of the proceedings.  I am grateful to SW’s solicitors for providing a helpful chronology. From this it is clear that following the passage of time and certain examinations which DW was sitting, SW made a further application for contact. On 3 April 2007, the judge directed a CAFCASS report in relation to DW’s wishes and feelings about seeing his father; and  on 22 June 2007 Dr  Kirk Weir, a consultant child and adolescent psychiatrist was ordered to report as to the viability of future direct contact between  DW and SW. There were further directions appointments on  5 November, and 5 and 13 December 2007.

11. Dr Weir’s report is dated 13 December 2007 and makes dispiriting reading.  He begins his conclusions by stating that his interviews at the mother’s home “were typical of those in which the non-resident parent is the subject of severe alienation”.  It is, perhaps worth citing the remainder of the paragraph in order to obtain a flavour of the report as a whole:-

Even the most neutral question became an opportunity for a torrent of vilification against the father. The interviews had an “orchestrated feel; a sense that all knew this was an opportunity to leave me in no doubt as to their feelings.  All were supporting each other and there was not a chink between them. That a child of 11 should feel it acceptable to say (without comment from his mother or siblings) that he wished his father dead says a great deal about the atmosphere which the mother has allowed to develop. The family dynamic was obvious . The alliance against the father would be difficult for an individual to break, particularly the youngest. It was difficult to believe the mother was promoting contact with the father. It was clear she loathed him and regarded him as an emotional danger to her children.

12. On 17 January 2008, the judge vacated a two day hearing, and on 13 February 2008, AW wrote a response to Dr Weir’s report in which she joins issue with a number of the statements he makes, including that set out above. That letter was sent to  Dr. Weir who, following an order of the judge dated 19 February 2008, wrote a response to it. Dr. Weir’s “Addendum Psychiatric Report” is dated 3 March 2008.  It deals with AW’s comments and maintains the conclusions expressed in his main report.

13. It appears that the judge was initially minded to require Dr Weir’s attendance at court for cross-examination, but having read the addendum, she changed her mind in a letter written on her behalf to both parties and dated 7 May 2008.

14. Unsurprisingly, in the light of Dr Weir’s main  report, SW did not pursue his application for contact with DW when his  application for contact came before Judge Meyer on  1 July 2008: indeed, the order  records, at the outset, “the father confirming to the court that whilst seeking a fact finding hearing he does not seek contact with (DW)”.

15. Both parents were in person before the judge, and SW applied to her to make what he described as “a final finding of facts judgment”.  The judge pointed out that this would require a full hearing, which SW then requested. The judge asked: “What do you want me to make findings of fact about?”  SW’s answer was that he wanted the judge to determine “the cause of the reason why (DW) has not had contact with his father, particularly that highlighted by Dr Weir’s report, which has the full authority of the court”.

16. The order made by the judge on 1 July 2008, gives permission for each parent (if they so wish) to disclose Dr Weir’s report of 13 December 2007, AW’s letter of 13 February 2008, Dr Weir’s addendum and the judge’s judgment of  3 October 2003 to DW’s school counsellor and his general practitioner. SW was also given permission to disclose Dr. Weir’s report to DW “not before DW attains 21 or finishes his first degree studies, whichever the later”. There are other provisions in the order which are not material to the current application.

17. When refusing SW’s application, the judge said the following:-

It is not going to do nobody any  good (sic). (AW) does not oppose  the disclosure of the report. Dr. Kirk Weir is an expensive resource. I see absolutely no point in progressing the welfare of the children, which is my paramount consideration, in having him here telling me what he has written in his report. I have read his report. They are getting to ages where they will make their own minds up about what has happened in their childhood. They have got an analyst, an eminent psychiatrist, they have got their own lives and facts which they will rely upon. As I say, my consideration is the welfare of (DW) in this case and I cannot see that having a fact finding hearing, as you call it, on the basis of Dr Kirk Weir’s report advances it.

At a later point, the judge described a finding of fact hearing as “disproportionate”.

The argument for the father 
18. For SW, Miss Domenge accepted that the decision made by the judge was discretionary. She argued, however, that in the exercise of her discretion that judge had omitted to give consideration to  relevant considerations, namely: -

(1) the relevance of the potential result for any future professional assistance to be afforded to DW;
(2) the important impact that findings might have on the parties and the wider family; and
(3)  the importance that findings might have for the court when considering what orders to make.

19.  Miss Domenge also complained that the judge had changed her mind in that she had written to the parties on 7 May 2008 stating that should either party not accept her “possible solution to impasse” the matter was to be set down for a further hearing at which Dr. Weir was to attend. The judge had given no reasons for her change of mind.

20. Miss Domenge’s essential submission, as I understood it, was that if there was to be closure, it ought to be on the court’s terms. The central issue – was this a case of parental alienation? - was one for the court to determine, and not one to be left in the air  and in relation to which the parties could retain their respective stances. This central issue was highly significant for the parties and the children, and went to the level of responsibility to be borne by each parent for the breakdown of contact.

21. Miss Domenge also advanced a number of reasons why the judge had been wrong to hold that a fact finding hearing would not be in the interests of DW. It was, she submitted, handing the burden of responsibility to DW. That was an abdication of responsibility, particularly where it was clear that DW was not in a position to make a clear and dispassionate assessment of Dr. Weir’s opinion and the view of his parents. DW, moreover, had the right to know the truth about significant events in his life, particularly if he had been the victim of emotional abuse.

22. Generally speaking, Miss Domenge submitted that the judge’s failure to conduct a fact finding hearing left a lack of clarity which only clear findings of fact by the court could resolve.  A hearing to resolve such uncertainties would last a maximum of two days, and would not be disproportionate.

23. Miss Domenge referred me to two cases; (1) the decision of McFarlane J in A County Council v DP, RS, BS (By the children’s guardian) [2005] EWHC 1593 (Fam); [2005] 2 FLR 1031, (DP); and  (2)  the decision of this court in  Re T (Contact: Alienation: Permission to Appeal) [ 2002] EWCA Civ 1736 [2003] 1 FLR 531 (Re T).

24. In paragraph 24 of the former, McFarlane J, after listing a number of authorities, identified nine factors which needed to be borne in mind before deciding whether or not to conduct a fact-finding hearing. They were:-

(1)  the interests of the child (which are relevant but not paramount);
(2)  the time that the investigation will take;
(3)  the likely cost to public funds;
(4)  the evidential result;
(5)  the necessity or otherwise of the investigation;
(6)  the relevance of the potential result of the investigation to the future care plans for the child;
(7)  the impact of any fact finding process upon the other parties;
(8)  the prospects of a fair trial on the issue;
(9)  the justice of the case

25. The issue in DP arose in public law proceedings, although it did not relate directly to the threshold criteria under section 31 of the Children Act 1989.  Re T was a private law case in which this court held that the judge had failed to make a finding on a critical issue in the case,  namely whether or not the mother of the child concerned had,  in the words of Rix LJ,  “even if prompted only at a subconscious level, nevertheless deliberately engaged in alienation”. This, as Rix LJ went on to say “was intended to be the platform for the future judicial supervision of contact”: - see paragraph 29 of the report.

26. The concept of a “fact-finding hearing”  is most readily to be found in cases under Part IV of the Children Act 1989, in which the threshold criteria under section 31 of the Act will only be satisfied if certain facts are found by the court. The classic example is allegedly non-accidental injuries to a small child which the parents of the child assert are accidental. In such circumstances the court may conduct a “split” hearing, the first limb of which is designed to decide what happened. Plainly, if the injuries are held to be accidental, that is the end of the case.

27. The concept of the split hearing has, however, been expanded in public law proceedings: - see Re DP itself, and the authorities listed by McFarlane J.  But in all of the cases, as it seems to me, the factual issue or issues which the court is asked to resolve go to a question or questions which the court needs to resolve as part of its decision making process; alternatively, as in DP in order to inform the local authority about how it should conduct itself in relation to the question of the father’s contact with the child concerned.

28. However, I fully accept that similar principles apply in private law proceedings. Here, the obvious example is domestic violence. If allegations of domestic violence are made as a defence to a contact application, the court cannot properly decide the application unless and until it has decided whether or not domestic violence has taken place: - see the President’s recent Practice Direction reported at [2008] 2 FLR 103.

29. In the instant case, however, there is no justiciable issue for the court to decide. Critically, SW is not pursuing his application for contact with DW. The court does not have to decide whether or not he should have contact, or whether the contact should be direct or indirect. The order is clear. Plainly the two elder boys are beyond the ages at which the court can or will make order. DW is 12, and is in a different category to his brothers.  However,  SW has confirmed that he is not seeking contact with him.

30. If SW is not seeking relief, what is the purpose of a hearing? Miss  Domenge’s answer is clear. She says that if there is to be closure, the family is entitled to know why and on what basis the court felt it had reached the end of the road; that the court has a responsibility not to leave the family in suspense, and to make findings which are binding and which the parties cannot challenge. Thus when the children come to read the various reports - and in particular the reports of Dr. Weir – they will have an objective analysis of those reports against which to judge their parents’ behaviour.

31. I understand, but am unpersuaded by that argument.  I note that in Re M (Threshold Criteria: Parental Concessions) [1999] 2 FLR 728 at 734F, Butler-Sloss LJ (as she then was) identified as a general principle that “there should be no unnecessary litigation in the courts”. In my judgment, the word “necessary” in this context must mean necessary for the proper exercise of the court’s jurisdiction in resolving the issues before it. In the instant case, there are no outstanding justiciable issues. Equally, there is, of course, no guarantee that either party would, in reality, accept as binding particular findings made by the judge, and in my view the judge was right herself to describe Dr Weir as a “precious” resource. In my judgment,  his recall was plainly unwarranted on the facts.

32. In my judgment, therefore, this application fails for two reasons. Firstly it is a discretionary, case management decision by a judge who knew the case well, and recognised that she had reached the end of the road. There is no evidence that she made any error of law in the exercise of her discretion, and the factors she weighed in the balance are all, in my judgment, appropriate. Furthermore, it seems to me that although tersely expressed, the reasons for her decision are sufficient, and adequately explained.

33. However, because of the care and skill with which the point was argued, I have gone on to consider, if what I have said in paragraph 32 above is wrong, whether or not there is a wider principle engaged in this case. In my judgment there is not. A further hearing in this case would not, in my judgment, be necessary litigation, and there is no justiciable issue which the hearing would help to resolve. I remain of the view that hearings must be related to issues, and that dealing with a case “justly” in accordance with the overriding objective does not involve conducting a hearing which is unrelated to any justiciable issue.

34. In my judgment an analogy can be drawn with the decision of this court in Re M [2007] EWCA Civ 589. In that case, a doctor who had been instructed to advise on whether or not a child suffered from osteogenesis imperfecta recommended an expensive test to confirm his diagnosis. The judge refused to order the test, and his refusal was upheld in this court. Giving the leading judgment, Thorpe LJ said: -

13. In the present case, the doctors were not expressing a medical opinion on clinical grounds and insofar as they ventured an opinion on what was forensically required, they were trespassing onto judicial territory. The discretion of the judge in taking case management decisions is particularly generous. The judge here clearly decided that enough was enough, and enough had been achieved in Professor Patton's considered view that in this particular child osteogenesis imperfecta was extremely unlikely. The judge clearly placed considerable emphasis on the fact that the expensive blood test which was urged upon her had been demonstrated to establish osteogenesis imperfecta in cases where there were no other clinical signs in only one percent of three hundred cases researched. The judge also attached weight to the fact that testing for osteogenesis imperfecta is only 90 percent accurate.

14. So this seems to me not only a permissible decision but a wise decision. There has to be a point at which the garnering of evidence is sufficiently full and thorough to enable the court to arrive at a conclusion, even on the elevated balance of probabilities standard of proof. It seems to me that Miss Wiley's argument comes close to saying that no stone must be left unturned. I do not accept that. The value to be derived from submitting this child to what is an invasive investigation was too small to justify the considerable cost both in cash and in time. I have no hesitation at all in upholding the judge's conclusion.

35. I also bear in mind that, even were the judge to make findings in relation to DW’s attitude, and his reasons for not wanting to see his father, there would no guarantee that those findings would be accepted – either by DW or, for that matter, anyone else.

36. For all these reasons, it follows, in my judgment, that the application must be dismissed.