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Marshall v Marshall [2005] EWCA Civ 641

Appeal by father in contact case on gounds that original judge had not given opportunity to challenge the expert witness


Neutral Citation Number: [2005] EWCA Civ 641





Royal Courts of Justice


London, WC2

Thursday, 5 May 2005

B E F O R E:




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(Computer-Aided Transcript of the Stenograph Notes of

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MS RACHEL ROWLEY (instructed by Robinsons solicitors, Derbyshire DE7 5RQ) appeared on behalf of the Appellant

The Respondent did not attend and was not represented

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(Approved by the Court)

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Crown Copyright©

1. LORD JUSTICE THORPE: Lord Justice Wall will give the first judgment.

2. LORD JUSTICE WALL: The appellant, Mr Mark Marshall, applied in the Telford County Court for an order that he have contact with his son, Jake Issac Marshall, born on 20 June 2000. That application was opposed by his former wife and Jake's mother, Helen Claire Marshall now known as Toothill. On 1 February 2005 at a directions appointment timetabled for 45 minutes, Her Honour Judge Hughes dismissed the appellant's application for contact. Although at that point the judge had had previous contact with the case, she had heard evidence from neither party, nor (for reasons which I will explain briefly in due course) did she have the benefit of a report from CAFCASS. Indeed, the appellant had not himself even made a statement in the proceedings.

3. The basis upon which the judge proceeded was a jointly commissioned report on the respondent mother from a psychologist, a Dr Monica Thompson, who is based at the Traumatic Stress Clinic in Charlotte Street in West London. Basing herself on a statement made by the respondent and a single interview, Dr Thompson concluded that the symptoms demonstrated by the respondent met a diagnosis for chronic post-traumatic stress disorder and that the respondent also suffered with symptoms typically found in depression and anxiety. Dr Thompson stated that the purpose of her investigation was not to establish the validity of the respondent's version of what she described as "the traumatic events that she experienced"; and it is manifest from the report itself that the doctor was dependent upon the respondent's self-reporting. Nonetheless, Dr Thompson felt able to conclude as follows:

"During the assessment Ms Toothill stated that she is receiving counselling to assist her with her psychological difficulties. She stated that she has a good relationship with the counsellor and is benefiting from the sessions. However, Ms Toothill appears to be experiencing chronic psychological difficulties which require a more specialised intervention. Currently, the most effective treatment for her post traumatic symptoms is trauma focused cognitive behavioural therapy. Cognitive behavioural therapy (CBT) is also the most effective psychological treatment for depression and anxiety. Due to the chronic nature of her difficulties I would recommend that Ms Toothill receives trauma focused CBT from an experienced clinical psychologist.

It is likely that Ms Toothill will experience an increase in her level of psychological distress if her ex-husband is allowed contact with her son. This may well affect her overall level of functioning and therefore her ability to parent both of her children. If this situation arises it is important Ms Toothill receives appropriate psychological help to assist her.

Finally, in spite of Ms Toothill's current psychological difficulties she appears to parent to a high standard. Her concerns about contact do not appear to be irrational and relating to poor mental health. Indeed Ms Toothill stated that her concerns are based on her previous experience of her ex-husband as a violent man who has threatened both herself and her son. I am not able to comment on the validity of these claims but Ms Toothill does appear to believe them to be true."

4. The judge, after short oral argument, dismissed the application for contact. She refused an application by the appellant for an oral hearing at which the allegations made by the respondent could be tested and the validity of Dr Thompson's assessment examined. She ended her short judgment in these terms:

"I see no point, at this stage, in ordering there to be a finding-of-fact hearing. In fact, I reject the application for that and for any further hearing. On the evidence and information which I have before me currently I have to say that this application for contact, direct, indirect or otherwise, has little or no prospect of success and, in those circumstances, it should be dismissed and there should be no further hearings."

In subsequent exchanges the judge refused permission to appeal without giving reasons.

5. When the papers came to me on 18 March I gave permission to appeal. However, by letter dated 26 April the respondent's solicitors wrote to the Civil Appeals Office stating that the respondent would neither be present nor represented at the appeal. This, it was said, was partly due to the prohibitive costs of instructing counsel, and partly explained by the matters contained in Dr Thompson's report. It was pointed out that the respondent had attended none of applications in the county court.

6. The force of the letter of 26 April is, in my judgment, weakened to a substantial extent by information given to us this morning by Mrs Rowley who appears for the appellant. It appears that there were ancillary relief proceedings between the parties in January. It was the respondent's application for a lump sum. She attended with counsel. The appellant was present. He was unrepresented; and it appears that the respondent achieved a substantial victory in managing to garner to herself the remnants of the proceeds of sale of the former matrimonial home. On that basis it is plain that she is capable of attending court when necessary.

7. In any event, as a result of that letter the time given to this appeal was reduced from half a day to an hour and a half and we have had this morning helpful observations from Mrs Rowley as to the best way forward. However, before turning to that, I need to put the extract from the judgment which I have read in context and to explain why, in my view, the judge's order simply cannot stand.

8. The parties were married in April 1999 and separated in July 2001 when Jake was some 13 months old. There appears to have been a short period of about a month when the parents operated a shared care arrangement, each taking seven days care of Jake at a time. However that arrangement seems to have broken down some time in September 2001.

9. In July 2002 both parties were convicted of VAT fraud. The appellant was sentenced to a term of four and a half years and the respondent received a suspended sentence. We do not have any of the criminal papers, but it seems likely that it was the respondent's childcare responsibilities which enabled her to avoid a prison sentence.

10. Although the respondent took Jake to see his father in prison on two occasions, it seems that he has not had any contact with Jake since he came out of prison. There was, however, prior to the conviction an agreement that the respondent should have Jake's residence and an order was made to that effect on 20 February.

11. A significant development is that on 2 October 2003 (according to what she told the psychologist) the respondent gave birth to a child by her current partner.

12. The appellant applied for contact on 7 November 2003. The history of the case is neatly summarised in the chronology contained within Mrs Rowley's skeleton argument. Directions were given in the Telford County Court, both parties attending. CAFCASS was requested to prepare a report on the issue of contact.

13. On 24 May 2004 the CAFCASS officer wrote to the county court informing the court that the respondent had cancelled a previous arrangement and moreover when he had contacted Jake's nursery he had been informed that Jake had been withdrawn from nursery and had apparently moved house with the respondent. No one had been given any prior warning that this was likely to occur. As a result of the CAFCASS officer's letter the matter came urgently before the judge on 8 June. The respondent did not attend. The court was informed that the respondent's partner, Mr Smith, had written to the CAFCASS officer alleging that the CAFCASS officer was personally connected with the appellant and requesting that another officer be assigned to the case. That is an allegation refuted by Mr Trigg, the CAFCASS officer.

14. The correspondence which had taken place was put before the judge. The appellant sought an order that the CAFCASS officer should continue with and complete his enquiries but that was rejected by the judge, who instead ordered the respondent to file a medical report and a statement setting out her allegations relating to the appellant's behaviour and its relevance to the issue of contact.

15. The respondent duly filed a statement. It is significant that in that statement she makes no allegations of physical violence against her by the appellant, although it is otherwise couched in fairly vituperative terms. At that point a medical report from her GP was produced. The judge took the view - rightly I think - that the medical evidence before the court did not support the respondent's position and therefore gave her the opportunity to obtain a psychological report. We inquired this morning as to how it was that that report came into existence. It seems reasonably clear that it was substantially at the initiative of the judge rather than the parties. It was, however, a joint report in the sense that Dr Thompson was jointly instructed and no doubt the fee was divided between the two parties. But it was, as my Lord Thorpe LJ has pointed out, something of a litigation trap because the mother was alleging symptoms of post-traumatic stress disorder and Dr Thompson, a clinical psychologist specialising in post-traumatic stress disorder, duly produced a report which indicated that the mother was suffering from post-traumatic stress. She does not, however, identify the life-threatening incident on which the post-traumatic stress disorder is founded and clearly there would be substantial scope for cross-examination of Dr Thompson on her report, particularly given the fact that the report was based exclusively on the mother's reporting.

16. Having read the report on 22 November the judge was plainly minded to dismiss the appellant's application for contact there and then. She did not do so, however, on the basis that further enquiries were to be made by the appellant's advisers from Dr Thompson. Thus the matter was adjourned for those enquiries to be made. The order which the judge made, however, was that the application for contact would stand dismissed unless within 28 days the applicant's solicitors sought a further hearing having received information from the jointly instructed expert. Questions were put to the expert. They were answered and when the matter came back on 1 February the judge took the view that there was no point in any further hearing, there was no point in a hearing relating to findings of fact, and that the matter should be dismissed then and there.

17. In her statement, apart from her criticisms of the appellant, the mother does make some very worrying assertions as to how she views Jake's paternity. The judge does not refer to these. At paragraph 23 the respondent says:

"Jake knows who [his] daddy is and that's Rob [her current partner], if anyone was to tell him different he would argue and get very upset."

And perhaps even more strongly at paragraph 29, she says:

"Jake does not remember or know anything about there being another man who is his biological father. We do want Jake to know about Mark in the future but we as his parents do not feel now is the right time. We don't feel that at his age he will understand and we think it will upset him too much. We do not want to jeopardise the wonderful relationship he has with Rob, his Daddy."

That was the state of the evidence before the judge on 1 February. No CAFCASS report, no statement from the father, no oral evidence - simply the mother's statement and Dr Thompson's report.

18. Against that background, giving what was a short judgment, the judge declined the invitation made by Mrs Rowley for a hearing in which the factual issues underlying the case should be investigated. She recognised that the case had a troubled background as far as mother's cooperation was concerned, but she wondered quite of what value a finding-of-fact hearing would have, or how the court would be able to reach findings of fact after such a long period of time in any event. Of Dr Thompson's report she said this:

"5. There is no doubt at all that Dr Thompson's report concludes that this lady ... the respondent in these proceedings, is an extremely vulnerable lady who is suffering from chronic psychological difficulties. The psychologist, in answer to some additional question from the father's solicitors, says that the mother does not appear to hold irrational views -- that is, in medical terms, she is not suffering from any psychotic illness -- and her concerns as expressed to the psychologist appear rational. By that the psychologist concludes that her concerns are consistent with and understandable in the context of the experiences she ... believes she has encountered with Mr Marshall.

6. She goes on to say that Miss Toothill appears to have been traumatised by her contact with Mr Marshall, symptomatic of flashbacks and hyper-arousal, which relate to the experience that she has reported.

7. The psychologist has identified difficulties within the mother, which she describes as chronic psychological difficulties, which she concludes indicate a relationship to matters which occurred during the mother's relationship with Mr Marshall, and I think I am right in saying that the psychologist says that the reintroduction of contact between Jake and his father at this stage may well affect the mother's parenting of Jake. She does not say that it will affect her parenting of Jake, but she does say that it may well affect her parenting, and she does recommend cognitive behavioural therapy for the mother.

8. It seems to me that this is a case in which a finding-of-fact hearing will achieve little, because one would then have to go on to the second stage and ask 'How can contact be promoted?', 'Is it to be promoted?' and 'Can it be promoted without detriment to the mother in terms of her parenting ability?'. 9. On the report which I currently have in front of me it is very clear that the psychologist takes the view that any reintroduction of contact may well affect the mother's parenting ability. I accept that it does not say 'will' but read as a whole the report outlines that the mother has chronic psychological difficulties and that without cognitive behavioural therapy those difficulties will continue."

It was in those circumstances that the judge dismissed the application. In my judgment her decision was premature and plainly wrong.

19. In my judgment the judge has fallen into error in several ways. The psychological report may reflect the respondent's state of mind and constitute a truthful record of what occurred during the marriage. But on the other hand it may not. The respondent's avoidance of the CAFCASS officer and her determination to allow Jake to treat her current partner as his father are both potential warning signs that the appellant is being deliberately airbrushed out of the child's life. The judge mentions neither fact. Of course it is not for Dr Thompson to decide the case: it is for the court to do so. But in my view the court can only do so on proper evidence and after making proper enquiries and making appropriate findings of fact.

20. One of the difficulties we have and which I think we can rectify is that there is no statement from the appellant. His response to the allegations is critical to any decision-making process and indeed the future progress of the case. If what the respondent is saying is broadly true and if the appellant fails to acknowledge the effect of his behaviour on his former wife, the psychologist's assessment may well turn out to be correct. If, on the other hand, the respondent has deliberately exaggerated her complaints, or if they are untrue, the psychologist has been misled and an alternative explanation has to be sought for the respondent's behaviour.

21. In deciding the future of the case, therefore, one has to strike a balance between a recognition that the outcome may indeed be on certain facts, as the psychologist has indicated; whereas on the other that it may not. There needs to be a proper investigation sufficient to ensure that the welfare of the child has fully been taken into account before any conclusion has been reached.

22. Above all, I have to say this does not seem to me to be the sort of case in which it is proper to take the shortcut taken by the judge. Of course there are cases in which a judge does not need to hear oral evidence and which can be resolved on the papers and on submissions. But in my view this is not one of them. Such a course is usually only appropriate when the written evidence is complete. Here, it plainly was not. Furthermore, there has been no report from the CAFCASS officer. The father has, in effect, been denied a proper hearing. This is not acceptable.

23. I do not underestimate the difficulty of an oral hearing, nor do I at the moment see my way clearly to the form that that oral hearing should ultimately take. Speaking for myself, that seems to me to be ultimately a matter for an experienced judge once the evidence has reached a more formulated stage. The extent and scope of the investigation therefore must ultimately be a matter of judicial discretion for the judge taking the final hearing.

24. However I am quite satisfied that in this case the judge acted prematurely and was plainly wrong to dismiss the appellant's application when she did. As I have already indicated, I am particularly concerned about the judge's failure to give any weight to the respondent's assertions about how Jake is to be brought up and the lack of knowledge he is to have of his father. I am also concerned about the respondent's reaction to the CAFCASS officer and her apparent removal of Jake from nursery and home without telling the CAFCASS officer of her intentions. These matters all need explanation. The respondent appears to be functioning well as a parent. She appeared at the ancillary relief hearing. She has solicitors even though they do not have public funding. In my judgment there is no reason why she should not participate fully in a proper hearing. I am, therefore, in little doubt, in disagreement with the judge, that the proper way forward here is a further hearing. But precisely what form that hearing should take should be left to the judge who is to take it.

25. We have had discussions as to how matters should proceed. The mother has moved and is living in the Doncaster area. The father is currently living in Derby. Telford is therefore inconvenient for both. The conclusion which we have reached is as follows. That this case should be at a court centre where there is a wealth of experience and which is geographically convenient. In those circumstances I propose that the proceedings should be transferred to the Nottingham District Registry and that there should be a directions appointment to take place as soon as possible before HHJ Butler QC. For that directions appointment, the father should file a statement within the next 14 days fully setting out his case and his answers to the allegations made against him by the mother. The judge will then have the opportunity to consider the two statements and to decide how the matter should proceed. Whilst not in any way wishing to fetter her discretion in that respect, I think it would be highly appropriate in the very difficult circumstances of this case if the judge were to give particular consideration to the question of Jake being separately represented in the proceedings either by CAFCASS or by an organisation such as NYAS; and plainly the judge will have to give anxious consideration to any further expert evidence which is to be produced in the case, given the obvious criticisms which can be made of Dr Thompson's report. Those, however, seem to me to be matters ultimately for the judge's discretion.

26. I would therefore, speaking for myself, allow this appeal, set aside the judge's order and give the directions which I have just indicated.


28. LORD JUSTICE THORPE: I also agree with my Lord's judgment and with the directions that he proposes.

(Appeal allowed; Appellant's costs to be the subject of detailed assessment; further orders to be drawn up).