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K (Children) [2013] EWCA Civ 1776

Father’s appeal against an order for reduced contact and in relation to case management issues regarding experts.

The proceedings concerned two children who, following the separation of the parents and a short period of time with foster carers, remained living with the mother. There was an extensive litigation history, during which findings made in an earlier fact finding were reversed, the court subsequently finding that a wound on the father was self-inflicted and that the father was responsible for a fire at his home. Following such findings in 2009, the court made a residence order to the mother, a monthly supervised contact order to the father and a s.91(14) order for a period of 2 years.

Proceedings returned to court on a number of occasions leading to an order on 22.02.13 in which the father's supervised contact was reduced to twice a year and a s.91(14) order for a period of 10 years was made, reserving any further applications to that judge.  During the hearing the father had told the judge that he could not or would not answer questions about the findings previously made in 2009. The judge found that the father posed a risk to the mother and a high or very high risk of abducting the children.

The father appealed the reduced contact order as well as two case management issues relating to the appointment of experts.

The father argued that the trial judge, in deciding to reduce his contact, had failed to take into account the father's privilege against self incrimination within section 14 of the Civil Evidence Act 1968. The negative inferences drawn by the judge when the father refused to answer questions about the findings made in 2009 should not have been drawn and accordingly, the evaluation of risk was incorrect.

Lord Justice Ryder did not accept that once adverse findings had been made by the court at the fact finding hearing, the self-incrimination privilege arose under section 14. In any event, counsel for the father at the appeal hearing informed the court that the father had instructed his lawyers on the previous day that he did not in fact accept the findings made. Accordingly, it could no longer be asserted that the trial judge had made an error in his evaluation of the father's evidence and in finding that there was a risk of harm to mother and children.

The father further argued that the trial judge had failed to find the right balance between the risk to the mother and children against the positives of contact. The Court of Appeal found that it could not be said that the judge's welfare evaluation or order were wrong or disproportionate.

The father argued that although the s.91(14) order could properly have been made on the facts of the case, the length of the order was in question. The Court of Appeal found that once the principle for the imposition of the order was conceded, the length of such an order was in the discretion of the judge. His imposition of a 10 year term could not be criticised given the judge sought to provide for in the interests of the children.

The Court of Appeal refused to accept that the trial judge's reservation of future applications to himself was wrong. There was no reason of bias or impropriety that would bar the judge from hearing the case.

Accordingly, the Court of Appeal dismissed the appeal.

The Court of Appeal reminded the parties of an appellant's representatives' obligation to inform the court and the other party in advance of the hearing of any change in the appellant's case or change in circumstances after the grant of permission of appeal.

The Court of Appeal also reminded the parties that each party had a separate duty to ensure that the court is provided with all papers required, even if there was no agreement between the solicitors.

Summary by Laura McMullan, barrister, Coram Chambers

Neutral Citation Number: [2013] EWCA Civ 1776



Royal Courts of Justice
London WC2A 2LL
Friday, 18 October 2013

B e f o r e:


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Miss E Nartey (instructed by Hawksleys) appeared on behalf of the Appellant  
Miss S Glaister Young
(instructed by Lovell Chohan) appeared on behalf of the First Respondent
Ms F Orchover
(instructed by Lovell Chohan) appeared on behalf of the Second and Third Respondents
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LORD JUSTICE RYDER:  These proceedings concern two girls who are now aged 8 and 6 years.  The appellant is their father and the first respondent is their mother.  The children are separately represented through their children's guardian. 

The girls' parents had a relationship leading to marriage between 2004 and 2007.  That relationship broke down and the children were removed from the paternal family home with the assistance of the police on 30 March 2007.  Apart from a short distressing period of care with foster carers, the children have since lived with their mother. 

Very sadly, the litigation history of this case is extensive.  Black J, as she then was, held a fact finding hearing in relation to serious allegations and made findings of fact in September 2007.  In 2008, she had to undertake a second fact finding hearing, which led to the reversal of some of these original findings in a judgment delivered on 13 August 2009.  In particular, a wound the father sustained in May 2007 was found to be self inflicted, and a fire which occurred in the father's house in September 2009 was found to be the responsibility of the father himself. 

The consequence of this extraordinary position was that Black J granted a residence order in respect of each child to the mother, supervised contact every month to the father, and an order under section 91(14) of the Children Act 1989 barring further applications to the court, without the court's permission, for a period of two years.  The full narrative of Black J's judgment has to be read to understand the significance of the findings and evaluations that she made.

Proceedings came back before the Family Division of the High Court on a number of occasions in the intervening period before this appeal was launched in the Court of Appeal.

The substantive appeal is against an order made by His Honour Judge Bellamy sitting as judge of the High Court on 22 February 2013.  On that day, Judge Bellamy reduced father's supervised contact to two occasions a year, and imposed various conditions upon that contact.  At an interim hearing, he had previously dismissed what father now accepts was a wholly unmeritorious application by him for a shared residence order.  In February, and in addition to the contact order, Judge Bellamy reserved future applications to himself, and imposed a further section 91(14) order for a period of ten years.

There are two further appeals by father relating to case management issues, in particular the appointment of experts to advise the court.  These appeals have not been withdrawn before today, although the opportunity to do so was patent, and so they likewise fall to be determined by this court.

Permission to appeal in respect of the February 2013 order was considered by McFarlane LJ on 30 July 2013.  On that day the court explained that the case management appeals had been stood out in each case to abide the substantive decision made by the court.  Permission was accordingly not given for those matters to be pursued, although they remain technically before this court.  If I am wrong about that interpretation of the intention of McFarlane LJ, in any event I will deal with those applications on their merits.

The key issue upon which the unconditional permission which was granted was based was whether Judge Bellamy had failed to take into account what was referred to by father's counsel as his privilege against self incrimination; that is, the privilege that can be found in section 14 of the Civil Evidence Act 1968.  The single judge was taken to the transcript of the cross examination of father in the court below, and he had demonstrated to him the importance that Judge Bellamy had placed upon the father's response to the findings of Black J.  To put the matter simply, father had not accepted the truth of the most serious of the findings made by Black J, including the issues of self inflicted stabbing and fire raising in his discussions with the forensic psychiatrist instructed in the proceedings, nor in the cross examination, which included examination by the judge himself. 

As a consequence, as can be ascertained from the judgment, Judge Bellamy concluded that father remained very dangerous and that the risk of the abuse of the mother and the risk of abduction of the children remained high or very high.  The import of the appeal was to demonstrate that father told the judge that he could not or would not answer questions about those findings because he relied upon what he described as his privilege against self incrimination and hence the negative inferences drawn against him should not have been so.

Let me put to one side the fact that speaking entirely for myself I do not accept that once the adverse findings had been made by Black J, the section 14 self incrimination privilege arose, so that this was never a true self incrimination point at all.  The submission was that the judge should have taken into account the father's refusal to answer questions, no doubt on advice, and not made adverse findings against him.  Before this court this morning, Miss Nartey for father very properly, and at the beginning of her submissions, announced that yesterday the father had instructed his lawyers that in fact he did not accept the findings made by Black J.  That has the consequence that the primary ground of this appeal falls away.  It can no longer be asserted that Judge Bellamy made an error in his evaluation of father's evidence with the inevitable consequence that the index of dangerousness and the nature and extent of the risk of harm remain in place. 

It would have been better if father's legal team had informed this court of this event yesterday.  That might have led to a more appropriate use of the court's resources and perhaps more focussed preparation.  In future, such matters should not be left to be announced once the court has begun its sittings.  Likewise, a number of the key documents were missing from the court's papers, including orders and judgments appealed from, and each party should recognise that they have a separate duty to ensure that the court is provided with that which it needs, even if there is no agreement about it between solicitors.

Returning to the substantive appeal, the question which remains in respect of which the appeal is pursued is whether the judge found the right balance as between the risk of dangerousness on the one part, that is the negatives, and the needs of the children for contact on the other part, that is the positives, in the contact order he made.  His judgment on the point is careful.  He describes the risks inherent in father and the effect of his persistent failure to implement change on the mother.  He acknowledged that very late in the day father had begun to undertake some of the recommended courses and steps which might in due course lead to the substantial change that is necessary to ameliorate the risk in this case. 

He described the mother as a deeply fearful and anxious woman, whose distress was palpable.  Indeed it appears from the evidence before the court that she has symptoms akin to post traumatic stress disorder.  She has had to re enter therapy.  The father's application for a shared residence order and his failure to accept the findings of the court will not have improved her position.  To the contrary, what the judge faced was that the position from the perspective of the mother was deteriorating, not improving. 

The children's contact was at best neutral; that is, a relatively happy occasion, but without any of the intense empathy that might justify an increase in contact as father had sought.

It was submitted to us the judge put too much emphasis on the negatives and too little emphasis on the positives.  The expert evidence was all one way.  The changes were not in father's favour and the position was not neutral over the period from the time when Black J had first made her orders.  The changes were adverse, and in my judgment that justified a reduction in contact to that concluded by Judge Bellamy.  It cannot be said in the context that I have described that the judge's welfare evaluation or order were wrong or disproportionate. 

Most of the subsidiary grounds of appeal were abandoned before this court.  Those that remain relate to the section 91(14) order and to the reservation of this case to Judge Bellamy.  These questions are interlinked.  It is conceded that a section 91(14) order could properly have been made on the facts of this case.  The only question before this court is as to the length of the same. 

When one looks at the reasoning behind the section 91(14) order, it becomes clear that there was a strong purpose in maintaining a barrier to continuing litigation during the minority of both of the children.  The section 91(14) order was a proper risk reduction measure, and one only has to recollect the risk in this case is at least high, if not very high.  Once the principle for the imposition of the order is conceded, the length of the same becomes a matter in the discretion of the judge.  Having regard to that which he sought to provide for in the interests of the children, his imposition of a ten year term cannot be criticised. 

I would have had sympathy with a submission that a shorter term should have been imposed if this had been a case where no direct contact had been ordered, but on the facts of this case, the only logical order is that it be for the duration of the minorities of the children.  The judge was entirely right to have imposed it, and the order is in any event not an absolute bar to applications, but a procedural filter, albeit an important procedural filter, to try and prevent the deleterious effects of continuing litigation.

So far as the reservation is concerned, in my judgment this is a submission devoid of merit.  Judge Bellamy regularly sits as a judge of the High Court in the Family Division pursuant to section 9 of the Senior Courts Act 1981.  He regularly conducts case management both from his base court in the Midlands and from the Royal Courts of Justice, and likewise organises hearings at both locations to suit the facts of the case and, where necessary, the convenience of the parties.  There is no assertion that he should not be dealing with this case, or that there is any reason of bias or impropriety which would bar him from hearing this case.  Having regard to the existing guidance on judicial continuity, in my judgment it is impossible to submit that this matter should move between a sequence of judges in the High Court when a judge is available to provide continuity for these children.

That left an interesting question relating to the February 2013 order, which purports to restrict father's contact in this way: that when he exercises it, the extended paternal family, including a paternal grandmother, a paternal uncle and paternal aunt, are to be excluded.  For my part I am concerned about this exclusion, which appears on the face of an order but is not reasoned in the judgment that was come to by Judge Bellamy.  This court was directed to an earlier judgment on an occasion when the point was decided in July 2012.  Again, the order is not reasoned on the face of the judgment.  The order appears to have been an interim measure rightly imposed by the judge to permit an assessment of the father in the circumstance that the court was looking at whether he had changed his position.  Whether there should be objection to the extended paternal family attending contact in the longer term remains an issue to be decided.

Entirely from my own perspective, and without making any observations which would bind a court hearing the merits, in the face of no substantive objections from the other parties before this court, it would seem appropriate for father, mother, and the children's representatives to see if they cannot agree an appropriate pragmatic position for the restoration of some contact by the extended paternal family, without the need to reembark upon litigation, which was one of the central features that Judge Bellamy sought to avoid in these proceedings.  I very much hope that this point can be agreed, but even if it cannot, it is a matter for the court at first instance on application by the extended paternal family, rather than a matter which grounds a substantive appeal before this court.

For all of these reasons, I would refuse permission in respect of the two case management appeals, if permission has not already been given.  If permission has been given and not properly recorded, in any event I would dismiss those appeals, along with a dismissal of the substantive appeal in respect of the order made in February 2013.

  I agree.  I too would refuse permission to appeal, if not already done so, for the reasons given by my Lord, Lord Justice Ryder in relation to the case management hearings.  If permission has been granted, I would dismiss these appeals.  So far as the substantive appeal is concerned, for the reasons given by my Lord, Lord Justice Ryder, I too would dismiss the appeal. 

I entirely associate myself with the criticisms that my Lord has made concerning the preparation of the appeal bundle, which has caused some delay in being able to recognise and focus upon the main issues in this appeal. 

I entirely adopt his comments in relation to the wider paternal family's continuing contact, if that is possible to manage in manners which are safe for the children and conducive to the mother's emotional welfare.

LADY JUSTICE ARDEN:  I entirely agree with the judgments of my Lord, Lord Justice Ryder and my Lady, Lady Justice Macur.  I agree on all the matters that they have addressed and on the orders which they propose should be made. 

I am satisfied with one exception as regards grand parental contact, that in this unusual and difficult case the judge was well entitled to make the orders that he did with regard to the issues placed before us on this hearing, and that this court should dismiss the appeal. 

I, too, wish to make observations about the conduct of the appeal, starting with the bundles.  The bundles were materially and seriously incomplete.  The court had to ask for a number of documents before this appeal came on for hearing.  Members of this court should absolutely not have to do that.  It means that they have to break off pre reading, and it takes a good deal of their time, which should be more actively and better spent on other matters. 
Then this morning, without warning, shortly before the appeal was called on for hearing, the appellant sent a large number of documents to this court with a request for them to be filed in the bundles before the appeal began.  Not only had the appellant not asked the other parties whether they agreed to these documents going into the file, it emerged that there was other highly material documentation which was not in the bundle, as my Lord has said.  There was no way in which the court could consider those documents before the appeal began. 

In addition, and very seriously, there was a material change in the appellant's case on the principal issue on which permission was granted, which was not in any way notified to this court before the court sat.  It should not be a surprise to this court that this court has indicated in its judgments that that was a matter for which some indication should be given to the court first.  Part 1 of the Civil Practice page 1731 has a passage headed, "Change in appellant's case or change in circumstances after the grant of permission", and to read the first sentence, it says:

"Where the appellant's case changes after the grant of permission, the appellant's representatives should write to the appeal court and to the other party, indicating the proposed nature of the changed case."

The note contains other information. 

The purpose of that practice is, as my Lord, Lord Justice Ryder said, so that the court can consider what it should do, and if possible, save resources.  So not only should it not be announced at the sitting of the court, there must be communication with the court in some way before that happens.  Not only does failure to do this involve a lack of courtesy to the other parties, it completely overlooks the fact that communication with the court is there for a good reason, conserving the resources of the court and helping other parties.  It may help ensure that other litigants can be given an earlier hearing.

So with those observations, I agree with the order that my Lord and my Lady propose for the reasons which they each have given.