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C (A Child) [2015] EWCA Civ 1096

Dismissal by the Court of Appeal of linked applications by a father in private law children proceedings: (i) permission to appeal a fact-finding judgment and subsequent welfare decision; and (ii) an appeal against a non-molestation injunction prohibiting the father from recording his meetings/handovers with the mother.

The parties separated in January 2010, a little over a year after C's birth in September 2008. Subsequent Children Act proceedings resulted in a consent order for shared residence in August 2011. That final order contained recitals confirming that neither party would seek to rely on allegations raised during the proceedings in any future litigation. Unfortunately, as C entered school age the parents could not agree on child arrangements so returned back to court. The level of acrimony was such that C was attending two different schools for part of each week.

At a finding of fact hearing over 3 days in December 2013 and a subsequent welfare final hearing in January 2014, the Recorder considered the 'current' allegations. In his oral evidence the father alleged the mother to be "evil", "unkind" and "abusive and violent". He had recorded on video (CCTV in his home) and taken photographs of C during contact, as well as handovers and conversations between the parties. The mother's allegations were of emotionally abusive behaviour by the father due to the above. The Recorder made a raft of findings against the parties in respect of their attitude and behaviour towards each other, but in particular found the father to be deliberately provocative and emotionally abusive to the mother and C, by drawing her into adult issues.

At the subsequent welfare final hearing, after oral evidence and the assistance of a report from the child's guardian, the Recorder made findings that: the mother had accepted the previous findings and was encouraging of C's relationship with the father; but that the father was not able to do the same, had not changed in his attitude to the mother and would harm C emotionally should she have her settled home with him. As a result, the judge provided for C's primary home to be with the mother, identified the school and granted substantial contact with the father. This was all expressed as a shared care arrangement. On the face of that order the father agreed to stop photographing or recording C and the mother.

In May 2014, with the father's application for permission to appeal the above decisions pending, an incident took place whereby the father recorded a handover at which there had been a heated exchange. The mother obtained an ex parte non-molestation order. The District Judge listened to the CD recording and considered other available evidence. He gave judgment and found the father to have been entirely responsible for the situation. The mother conceded there were no grounds for a broad-reaching injunction, but the judge concluded that the use of recording equipment amounted to a form of intimidation in the context of these proceedings. He made an order prohibiting the father from recording any occasions when he met with the mother. The father was granted permission to appeal by a Circuit Judge and the appeal was listed to be heard alongside the father's existing application for permission to appeal the other orders.

In respect of the Children Act orders, the father's appeal was described by the Court of Appeal as a "piecemeal criticism of the finding of fact judgment." The father was concerned solely with the judge's refusal to make findings against the mother and sought to rely on historic allegations made and retracted by the mother in 2011. Lady Justice King (delivering the majority judgment) considered that his grounds served only, "to endorse the judge's finding that the father was unable or unwilling to accept that the key issue…was C's emotional well-being." Considering each challenged finding in turn, Her Ladyship refused permission to appeal, not least of all on the basis that the judge had seen and heard the parties give evidence over 3 days.

Lord Justice McFarlane offered an additional reason to refuse permission. He considered the process of the appeal to be "wholly misconceived". The father sought not only to attack the fact-finding judgment, but also to invite the court to make contrary findings, which could only succeed if the appeal court had the "raw evidential material" before the trial judge. Such should include transcripts of the oral evidence of relevant witnesses. In this case the court had been provided with a slim and inadequate bundle, hence the father had not brought his appeal "even to the starting blocks by putting before this court material upon which we could engage in the process of auditing the Recorder's decision making analysis."

The appeal was dismissed in respect of the non-molestation injunction; the judgment was unimpeachable. The judge had been right to discharge the ex parte order, but had been left with no alternative but to make an injunction as the father had failed to honour the word of his agreement in the Children Act proceedings. It was accepted by the Court of Appeal that the fact of recording, either covertly or overtly, was capable of attracting a non-molestation injunction although, of course, such will always be a case-specific exercise.

Summary by Thomas Dance, barrister, 1 King's Bench Walk

INeutral Citation Number:
[2015] EWCA Civ 1096

IN THE COURT OF APPEAL (CIVIL DIVISION)              B4/2015/1032

Royal Courts of Justice
London, WC2A 2LL

Wednesday, 29 July 2015

B E F O R E:


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Mr M Evans (instructed by Direct Access) appeared on behalf of the Applicant Father
Ms J Renton
(instructed by The Family Law Company) appeared on behalf of the Respondent Mother

(As Approved)

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1. LADY JUSTICE KING:  These are linked applications made by the applicant father in respect of orders made in private law proceedings in relation to his daughter, C, who was born on 20 September 2008 and who lives with her mother and has substantial contact with her father, as a shared care arrangement.

2. The first proceedings in time relate to a finding of fact hearing and a subsequent welfare decision made by Ms Recorder Lister, her judgments being given variously on 22 December 2013 and 7 January 2014. 

3. The second appeal in time relates to the granting of an injunction by District Judge Arnold on 23 July 2014, whereby the father was forbidden from "recording, or instructing or encouraging any other person to record, any occasion when he, or they, met with the mother or members of her family whether or not C was present".

4. The father's application for permission to appeal the injunction first came before His Honour Judge Vincent on 17 October 2014, under the leapfrog provisions, His Honour Judge Vincent gave the father permission to appeal the order and transferred it to the Court of Appeal to be heard together with the application for permission to appeal the orders of Ms Recorder Lister.

5. The court therefore has before it today:

(1) An application for permission to appeal with appeal to follow in respect of the order of Ms Recorder Lister.  The order now appealed had provided for C to reside with each of her parents, it confirmed that her primary home during school term would be with her mother.  The details of how C's time was to be divided was set out in a schedule attached to the order, which, in summary, provided for her to spend each alternative weekend with her father, with an evening visit in the middle weeks and the school holidays to be divided equally.

6. In the judgment and recorded on the order was an agreement (accepted by Ms Recorder Lister) that the father was to turn off CCTV cameras which he had filming activity within his home and that he would no longer record conversations he had with C, nor take photographs of her other than for family records of her activities and achievements, further that he would not "record any occasions he meets with the Applicant and that this shall include the recording of their joint meetings with professionals concerning [C]'s education or health unless he has sought and received permission to do so from all the parties present.

(2) The appeal against the making of the non molestation order made under the Family Law Act 1996 by District Judge Arnold.

7. Prior to considering the applications before the court, I would wish to note my combination of dismay and frustration the fact this matter is before the court at all in circumstances where the court has only recently had to extend significantly its "hear by dates" for all cases, including ones relating to the future of children, as a consequence of the substantial increase in the volume of work to this court.

8. The shared living arrangements in relation to C were put in place some 18 months ago.  Both mother and father have been complying with the terms of the order; for C, therefore who is still only six, it must be hard for her to remember any other routine. 

9. So far as the injunction is concerned, it took the making of the injunction for the father finally to stop using the recording of both his child and the mother as a means of evidence gathering within proceedings.  That non molestation order was made a year ago and there have been no difficulties since that time.

10. The findings of fact (to which I will refer in a moment), made by the Recorder, relate in the main, to the appalling relationship between the mother and father following their separation and the father's persistent recording of conversations and the recording of C for his own ends. All has now calmed down in the light of the new regime. It is hard to see what possible point there is on the father's part in now pursuing this appeal, a course of action which can only have had the effect of causing the mother anxiety and of heightening tension between the parties at a time when it would otherwise have been hoped in C's interests that they had settled down into the new regime.  Indeed it might reasonably have been hoped that the father had reached the same conclusion, as the bundles and the skeleton arguments arrived so late that the appeal had been placed in the "dismissal list" prior to the unexpected arrival on 6 July 2015 of the bundles and confirmation that this hearing was to be effective.


11. The parties met in May 2006 and C was born on 20 September 2008.  The parties separated in January 2010, the father making his application for residence the following month.  In August 2011, those proceedings concluded with the making of a shared residence order.  That might at first glance have seemed to be sufficient for the purposes of considering this appeal.  However, Mr Evans QC, on behalf of the father, has sought, in support of his applications, to lay heavy emphasis on matters which occurred prior to that hearing in August 2011.  That hearing took place in front of His Honour Judge Shawcross; before him were numerous recordings of contact handovers. Those recordings showed beyond peradventure that the mother had greatly exaggerated the father's behaviour at a number of contact handovers.

12. At the August 2011 hearing, an agreement was reached between the parties which led to the shared care arrangement. That arrangement thereafter proceeded (given the history of this matter and given the relationship between the parties), really very well until the matter had to return to the court in front of Ms Recorder Lister in order for there to be a resolution as to the future educational arrangements for C.  The order of 15 August 2011 had sensibly included in the preamble a clause which said:

"Neither F nor M has sought nor will seek to pursue or rely on any past allegations raised in the course of these court proceedings to date without prior permission of the court in any future proceedings."

13. When the matter came on before the Recorder, the mother made what the Recorder referred to at paragraph 18 as "clear and helpful concessions" in respect of her historic allegations.  Those concessions included that she was unable to sustain allegations that the father had been abusive during handovers and the withdrawal of various allegations she had made about the father's use of alcohol.  The concessions are set out in five numbered paragraphs.  The Recorder did not simply brush aside those unfounded allegations made by the mother in 2011 but recorded at paragraph 26 of her judgment:

"Whilst there was no fact finding in 2011, I do take into account in this Judgement that M's credibility is damaged by the false allegations she made in the earlier proceedings".

It was against the backdrop of that damaged credibility that the judge, having seen and heard both parties give evidence, reached her findings of fact.

14. The father's case is that as though the making of innumerable false allegations, the mother has time and again attempted to prevent him from seeing his child.  The fact of the matter is in reality that since 2011, contact and the shared care arrangement has progressed satisfactorily, if not from the parents' point of view, certainly from C's.

15. The structure of the order in 2011 was that whilst C was still attending nursery, the week was to be divided on a 2 week rotation, with C spending part of each week with each parent.  Clearly, this was unsustainable once C started school.  Unfortunately, agreement could not be reached between the parties as to which primary school C should go to and as a consequence, the mother applied on 23 November 2012 for a residence order with contact to the father and for a specific issue order regulating C's schooling.

16. For my part, I have never before seen a case where, as here, the parents have allowed their animosity and inability to co operate with each other to have the consequence that a little girl, just starting school for the first time, has ended up attending two separate schools for part of each week 

17. As a consequence of some appropriately robust case management, the findings sought by each of the parties to be determined by Ms Recorder Lister in order to determine the issues were substantially trimmed. 

18. It is stated on behalf of the father that the allegations made to the Recorder by the father against the mother were relatively modest and it was he who had been overwhelmed by numerous false allegations made by the mother.  That submission does not sit comfortably with the oral evidence that was given by the father, recorded at paragraph 59 of the judge's judgment, this records allegations made by the father during his evidence that the mother is "abusive and violent" towards C, that the mother is "mad", "unkind" and "evil".

19. So far as the allegations made by the mother are concerned, (and by that I mean the current allegations, as opposed to the historic allegations which she had abandoned), these centred around what was alleged to be emotionally abusive behaviour on the part of the father by the recording of conversations and the photographing of C, not only when she was out and about and at handovers but also within the father's home.  The judge carefully set out an analysis of the evidence given by each of the parents.  She described the father's evidence as "forceful" and set out the allegations to which I have already referred.  The father described his recording and tape recording of C, for example at school, as being "just in case the mother is here".  He also described C as having had bad nappy rash and of having lifting her up (without a nappy on), so as to be closer to the CCTV camera in her home in order to record the nappy rash; he also photographed her private parts "as evidence". This highly inappropriate conduct took place yet the father did not take C to her general practitioner in relation to the nappy rash.

20. The judge at paragraph 68 of the judgment made adverse finding in relation to both parents to this effect:

"a. That both parents are unable to see any good in the other 

b. That each parent is ready and quick to make allegations against the other

c. That neither parent is able to control their emotions toward the other parent, even when C is present and clearly upset by their battle raging over her head

d. So far as one can tell to date, C has coped with her situation remarkably well.  I find that this is unlikely to continue."

The judge found at paragraph 51:

"Clearly the adult relationship is very difficult indeed, and is likely to remain so.  As appears later in this Judgment, I find that F has been deliberately provocative towards M in his frequent recording of handovers, of C, and of any person, including professionals, in his mission to gather evidence for his case.  I find that M has reacted to this provocation.  I find that at other times, M is a good and capable parent for C, and that there is no evidence to suggest otherwise."

The judge made no findings against the father in relation to a number of issues, but she did find that:

"The father has been and continues to be emotionally abusive to the mother by recording conversations, and to [C] in recording and photographing the child."

The Recorder further found that the father had behaved aggressively to the mother and, perhaps inevitably, that C had been drawn by the father into adult issues, which she also found to be emotionally abusive to her.

21. The application for permission to appeal before the court today has focused on the findings that were sought against the mother.  No specific appeal is made in relation to the findings that I have just recorded in relation to their attitude and behaviour towards each other.  In particular, the court is asked to look at the findings found at paragraph 70 of the judgment.

22. One of the difficulties the court faces in dealing with this particular application, or I should say that the father has in dealing with this particular application, is first of all the difficulty, as was readily accepted by Mr Evans on behalf of the father, of challenging findings of fact made in a detailed and careful judgment following a 3 day hearing where the judge has seen and heard both parties give evidence. 

23. Secondly, from the point of view of this court being asked to grant permission for there to be a wholesale challenge against the findings, neither the recordings which have been relied upon nor the transcripts of evidence given have been produced in order for the necessary and painstaking task of showing, by reference to the evidence, that the judge was wrong in making the findings she did.  What we have, however, is the judge's assessment of the recordings that she in fact listened to, at paragraph 49:

"I have no doubt that M feels intimidated by F's recordings and photographing of C.  He is not defending himself against an allegation that he is causing C harm, as no such allegation has been made by M, he is evidence gathering against M.  F is quite unable to understand that C will say to the parent they are with, what they know that parent wishes to hear.  F is quite unable to understand that his frequent recording and photographing of C is emotionally abusive of her.  As C grows up, what is she to make of it?  She will know, if she does not already, that F is looking all the time for the means to criticise M."

24. So far as the specific findings are concerned, 70a says as follows:

"I do not find that the mother has an explosive and volatile temperament or that on numerous occasions [C] has been exposed to inappropriate outbursts of temper.  I do find that on occasions, the mother has reacted inappropriately to provocation by father and as a result of her fear of and intimidation by him."

At the heart of the submission made in relation to that finding and the basis upon which it is said that it was wrong is that the father denies, through counsel, that he has provoked at any time the mother.

25. Looking at the judgment as drafted and without any references to any transcripts of recordings which would gainsay it, there does not seem to me to be any basis whatsoever upon which that finding could be challenged.

26. The second finding sought to be challenged is a finding in relation to behaviour at handovers.  The position is that the judge said in that finding at 70b simply that it was pre August 2011 and had not been tested in this particular hearing, she noted that the mother had withdrawn the allegation and the Recorder therefore simply did not make any finding.  In those circumstances, I cannot see upon what basis that observation by the judge that she had not considered the allegations and was not therefore making any findings, can be challenged. 

27. Similarly, at 70c a similar finding is made: the mother had withdrawn the allegation and the allegations were not tested.

28. So far as 70d and 70e is concerned, that relates to an allegation that the mother injured or neglected C.  Mr Evans accepts that he cannot take that matter any further and those two grounds therefore disappear.

29. Therefore, so far as the first five grounds are concerned, there can be no basis, in my judgment, upon which they can be challenged.

30. That leaves then 70f, which says as follows:

"I do not find that the mother has a history [and the judge underlined has a history] of mental instability which includes incidents of self harm by cutting, suicide attempts and overdoses.  I note that the mother suffered from post natal depression as described in the reports of Dr Noakes and Dr Haynes."

31. Mr Evans seeks to submit that the evidence before the court was to the contrary and that the judge was wrong in reaching that conclusion.

32. On behalf of the mother, Ms Renton accepts that this was a somewhat broad brush summary of the position but reminds the court that this was not a case where the mother's mental health was in issue. What was anticipated was an adjustment to a shared care arrangement to allow the child to attend one single school.  There was no question of the mother's contact (if the father was to have residence), becoming supervised or in any way constrained as a consequence of the mother's alleged instability. 

33. The backdrop of the allegation must be considered against an order that was made as long ago as 12 June 2013 by District Judge Arnold, who determined that:

"It is neither necessary nor proportionate for any party to seek to rely in the fact finding hearing on either of the two previous experts reports, Dr Haynes and Dr Noakes, in the previous proceedings."

In fact, when it came to the hearing in front of the Recorder, the Recorder allowed the reports to be filed but on the basis that the doctors concerned would not be called for cross examination.

34. The court has in front of it only the report of Dr Haynes.  Unfortunately, the report of Dr Noakes was never filed by the father.  That is particularly unfortunate given that if it was sought to rely on one, both should have been filed; Dr Noakes whose report is omitted from the bundle prepared by the father, I note, examined both the parties and made adverse findings against the father which he does not accept.

35. This was not therefore an issue that was properly litigated before the court.  The only evidence before the court was one of two untested medical reports and even that report flagged up that the mother's alleged instability was a matter for determination by the court.

36. In those circumstances, given the very limited relevance to the matters before the court and the unsatisfactory state of the evidence before the judge (who nevertheless noted the fact of the mother's post natal depression and had clearly read the medical report which was available); the finding made was not something which in my judgment in itself would lead the court to take the view that the father had a reasonable prospect of succeeding in an appeal against the order made.

37. Those then are the specific findings of fact sought to be challenged by the father.

38. Following the finding of fact hearing, the judge gave a second judgment on 7 January 2014, where she considered the welfare considerations.  She had the benefit on that occasion of updating statements from each of the parents but significantly also the report of C's guardian, Meg Owen, dated 3 January 2014.  The judge recorded that so far as the mother was concerned, she had "taken on board" the findings that had been made, whereas the father was, as the guardian said, "initially avoidant and subsequently partially acceptant of the judgment".

39. The judge expressed the view at paragraph 22 of the welfare judgment that:

"This case is really about finding arrangements for [C] where she can enjoy time with each of her parents, with the full and proper encouragement of the other parent.  What I called the war raging over [C]'s head in my earlier judgment really has to stop, or [C] will be irreparably damaged by it.  As the Guardian has made very clear, this case is about meeting [C]'s emotional needs, she having experienced conflict between her parents for the whole of her remembered life, they having separated when she was only 16 months old."

40. The evidence accepted byt eh judge was that the mother had accepted the findings and was encouraging of C spending time with her father. C, the judge found at paragraph 21:

"I find that she has accepted and is encouraging for [C] about [C] spending time with her F.  [C] has M's permission to enjoy time with F.  I do not think that F is yet able to put aside his allegations against and concerns about M.  I was pleased to hear that M took [C] to visit F in hospital when he was ill recently, everyday save one, I was told."

41. The father, unfortunately, did not accept that this was a case which was essentially about C's emotional well being, it is evident today from the submissions made on his behalf that that remains the case.  The judge concluded, as she was entitled to, that the father had not changed his position about and attitude to the mother.

42. The guardian recommended that C's settled home should be with the mother.  That was not, she said, determined by the quality of physical care by either parent or by which school she was to attend (the father wishing her to go to private school and she would attend state school should she be with her mother).  The guardian's recommendation rather was based on the quality of emotional care which C receives from her parents.  The guardian described the mother as the "most emotionally attuned parent for [C]".  Although the mother sought a sole residence order (now child arrangements order), the guardian recommended a shared care order reflecting the importance of C's relationship with her father.  The judge concluded (paragraph 48):

"In my judgment, M is more inclusive and less critical and mistrustful of F's care of [C], than F is of hers.  This M, in my judgment is more able to care for [C] in a way which is appropriately inclusive of her F in her life, and is able to give [C] permission to enjoy her time with F.  There is a real lack of this positive approach in any part of F's case concerning M, whether he refers to her past, her present, or to the future.  In line with my findings in the Fact Finding Judgment, [C] is fully aware of this and will be emotionally damaged by it, if she has not been already.  It is true that F's evidence does not include any approval of what [C] does with M, or of M's care of her."

43. In those circumstances, the judge made a raft of orders providing for C's primary residence to be with her mother from where she was to go to school but with very substantial contact to her father.

44. The father's grounds of appeal were described by McFarlane LJ when he considered the matters on the papers on 19 February 2014 as "largely a piecemeal criticism of the finding of fact judgment".

45. The framework and structure of the grounds and skeleton argument, whilst refined for the purposes of this oral hearing, only serve to endorse the judge's finding that the father was unable or unwilling to accept that the key issue in the case was C's emotional well being.  The grounds of appeal and the skeleton wholly fail to engage with those issues, relying almost entirely on historic allegations and grievances. 

46. The findings of fact made by the judge which informed her welfare evaluation were made by her having seen and heard both parties give evidence and being cross examined and she having conscientiously considered all the allegations and having made adverse findings against both parents.

47. In my judgment, the judge's assessment that the case turned on which parent was most able to provide for C's emotional welfare, far from being wrong, was clearly right, and in my judgment there is no reasonable prospect of succeeding in attacking the findings of fact made or as a basis for attacking the judge's ultimate welfare evaluation.

48. Accordingly, I would dismiss the application for permission to appeal the two orders made by Recorder Lister.

49. That leaves then the appeal against the order of District Judge Arnold dated 23 July 2014. 

50. It will be recollected that the order made by Recorder Lister on 2 January 2014 recorded the father's agreement, or "assurance" as Mr Evans put it, to stop the photographing and the recording of C and of the mother, both inside the home and outside.  It is the failure of the father to honour that agreement (if not in its precise terms, definitely in its spirit), that led the matter coming before the court in July 2014.  The judgment of District Judge Arnold dated 23 July 2014 sets out the background leading to the hearing.  All went well between the making of the order in January and May.  On 28 May 2014, however, a matter of days after the adjourned oral hearing for permission to appeal in front of Black LJ, an incident, the first for many months, took place in the early evening when C was to be returned by her father. 

51. The mother had a work commitment and the mother, the judge was satisfied, texted the father to inform him of this and to confirm that her parents would be at home to receive C upon her return.  The judge saw the text and said that the content and tone could not be regarded as other than a helpful message "intended to inform the father of the arrangements for dropping off".  The father's account was that he could get no reply from the house and texted mother to say that nobody was answering the door.  This culminated in one or more than one telephone call when the mother alleged, and the judge found, that the father had raised his voice in front of C.  Key to the order that the judge ultimately made was the fact that the father recorded the whole event.  A transcript of this recording prepared by the father was given to the judge. The transcript referred to the father as having "banged like hell" on the door.  The judge, not satisfied with the contents of the transcript, listened to the CD recordings, not once but three times, and said about them:

"What those recording suggest is that he went to the house and he knocked on the door.  What he did not do, as he would suggest in the transcript, he did not, 'bang on the door like hell'.  The reason I know that is because I have listened three times, once in court and twice in chambers, to the CD which contains the recording.  I had to strain my ears to hear anything which approaches a knock.  I am prepared to accept that he did knock, but not so loudly as he has suggested.  That knock did not attract the attention of the maternal grandmother and her husband, and so the father went back to the car."

52. The judge noted that the dogs in the house had not reacted to the knocking and the judge further recorded that he found the transcript of what was happening next to be "quite disturbing" because even though C was with him, the father raised his voice.  The father, the judge records from having listened to the recording, was not calm and he said something to the effect to the grandparents of, "Are you both drunk like the last time I dropped her off?"  The judge, unsurprisingly, could not think of anything more inflammatory for the father to have said in that sort of situation.  The judge found the father's suggestion that the whole of the events of that evening were some sort of conspiracy on the mother's part completely unbelievable. 

53. On the other hand, the judge did not entirely accept the grandmother's account of what had happened and concluded that she had been exaggerating about the amount of shouting and the number of occasions when the father had allegedly called her drunk.  The judge, however, was clear that the father was entirely responsible for the situation having become heated. The blame did not tie with the mother's family.

54. Following on from that incident, the mother obtained an ex parte non molestation injunction a few days later on 5 June.  The judge, when dealing with this matter on the return date, found that ex parte application for the non molestation order had been an overreaction and had been inappropriate. 

55. It is submitted today that the judge had found that the account given by the mother was "wholly wrong" and that this was another example of a recording made by the father having effectively "saved the day" because it showed that the mother was lying and inventing issues arising at handover contact.  That, is an entirely erroneous interpretations of events.  The judge, as I have just set out, completely accepted that the difficulties arose as a result of the father's behaviour, whilst nevertheless accepting exaggeration on the grandparents' response.  It was conceded by those representing the mother, on the return date, that the behaviour that had occurred was not of a type which would merit the continuation of a broad reaching non molestation order in the terms which had been drafted. 

56. The judge concluded that nevertheless the use of recording equipment amounted to a form of intimidation in the context of the proceedings and in the context of previous findings where the recordings where the subject of specific references.  He noted that the school was of the view that C had been affected by the incident on 28 May.  The judge accordingly discharged the ex parte order obtained on 5 June and instead forbade the respondent from recording any occasions when he meets with the applicant or members of her family whether or not C is in his presence.

57. The appellant's notice dated 6 August 2014 seeks to suggest that covert recording cannot be regarded as abusive.  I am grateful to Mr Evans for clarifying that matter today, he now accepts that that goes too far and that whether covert recording can be abusive is specific.  He accepts that the fact of recording, either covertly or overtly, at these types of handovers or family arrangements are capable of attracting a non molestation order, but not, he says, on the facts of this case.

58. The skeleton argument filed in relation to the injunction seeks to rehearse the history of the relationship between the parties, referring to the mother having made false allegations and saying that the recordings of handovers serve to restrain the mother's otherwise "occasional extreme conduct".  The grounds refer to the father as having been "persuaded" to give the assurance that he would not record further handovers recorded on the August 2011 order which, it is now said on his behalf by Mr Evans (both in the skeleton argument and in oral submissions), was a mistaken thing for him to have done. Mr Evans submits that given the history and the circumstances of the case, the practice of recording was and remains justified and proportionate and had served a major part in ensuring that justice had been done and that previous false and fabricated allegations had been disapproved.  For this reason, Mr Evans submits this afternoon, there should be no constraint preventing the father from recording handovers or recording anything to do with C and the family in order to serve his purposes in future proceedings and the injunction should be discharged.

59. The District Judge, having had the benefit of reading the Recorder's finding of fact judgment and her findings in relation to the previous recordings as well as having heard the parties give evidence, was in my judgment, entitled to conclude that the use of recording equipment in the context of the case overall amounts to a form of intimidation and is abusive and is therefore capable of being the subject of an injunction. The danger of such recordings as an evidential tool can be seen in the use the father made of them in the earlier hearings. Ms Recorder Lister said:

60. "It is submitted on the part of F that against the background of this case, there is no criticism to be made of F's recording of C.  It is correct that the recordings we have heard or read have not been complete.  They have been topped and tailed by F, what other edits there have been we do not know.  The recordings include repeat questioning of C which is leading and suggestive.  M says that C has learned that F likes to hear bad things about M."

In my judgment, the District Judge's judgment was unimpeachable.  He rightly observed that the obtaining of an ex parte order had been an inappropriate overreaction to the incident of 28 May, no matter how unpleasant that incident may have been.  He analysed the events and the effect on C of what had happened.  There was no doubt in the judge's mind that the recording had been done by the father for entirely his own ends. 

61. The father, having failed to honour the spirit, if not the word, of the agreement made before the Recorder, and given the findings the District Judge made in relation to the incident on the 28th, in my judgment the District Judge had no alternative but to make the injunction now appealed. 

62. I would accordingly refuse permission to appeal against the finding of fact judgment and the consequent welfare decision and child arrangements order and dismiss the appeal against the injunction made on 23 July 2014.

63. LORD JUSTICE MCFARLANE:  I agree but would add only this to underline one aspect of the application for permission to appeal against the fact finding judgment that my Lady has already mentioned.  The father's proposed appeal was not only to attack the fact finding judgment but to invite this court to take a contrary view on the findings of fact sought by the father.  That is the father sought this court to make positive findings of fact based on his allegations.  However, the process of the proposed appeal is wholly misconceived.  The approach taken by Mr Evans QC, for the father, in both written and oral submissions was to make wide ranging and indeed extravagant submissions about the quality of the evidence and the quality of the Recorder's findings.  However, an attack upon a fact finding judgment can only succeed, in my view, if this court is taken to the raw evidential material, either in the form of the complete bundle of written material and evidence available to the trial judge and either targeted transcripts of particular witnesses or, in a case such as this where the two parents are the primary witnesses, all of the oral evidence transcribed as it was heard before the Recorder.

64. In this case, the bundle in support of the father's proposed appeal is short.  It contains no evidential document whatsoever which post dates the second half of 2010, save for a 1 page extract from the mother's statement of March 2011.  Those documents were there for 3 years and older at the date of the hearing before the Recorder.  The bundle we have, for example, does not contain any statement put in to the Recorder by the father.  Therefore, this court does not even have before it the basic allegations that the father was making in his written statements upon which it is said that the Recorder should have made her findings of fact.

65. It seems to me, therefore, that whatever the merits of the case that the father sought to put before this court, he has not begun to bring his fact finding appeal even to the starting blocks by putting before this court material upon which we could engage in the process of auditing the Recorder's decision making analysis.

66. For that reason, in addition to the matters that my Lady has so clearly described, I would refuse permission to appeal and I also agree that the appeal against the injunction should be dismissed.

67. LORD JUSTICE RICHARDS:   I too agree that permission to appeal against the Recorder's orders should be refused and that the appeal against the District Judge's order should be dismissed for the reasons given by King LJ and the additional reasons given by McFarlane LJ.