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H (Children) [2006] EWCA Civ 1206

This is an application by a father for permission to appeal findings of fact, a contact order and an order under s91(14) of the Children Act 1989. Permission was refused on all three counts.

The principle interest in the judgment is Wall LJ's review of the trial judge's imposition of the s91(14) order, which he found to be well reasoned, balancing the interests of justice with the appellant's human rights.


B4/2005/2215, B4/2006/1422

Neutral Citation Number: [2006] EWCA Civ 1206






Royal Courts of Justice


London, WC2

Tuesday, 25th July 2006

B E F O R E:





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1. LORD JUSTICE WALL: I propose to direct that my judgment in this case be transcribed and sent to the applicant. I also direct that none of the parties to the proceedings and in particular the children concerned shall be identified. I propose therefore to give this judgment using initials only.

2. Mr H seeks permission to appeal against three orders. They are firstly findings of fact made by HHJ Darwall Smith, on 10 November 2004. Secondly, a substantive order relating to contact made by the same judge on 25 September 2005, as part of which she made an order under section 91(14) of the Children Act 1989. And thirdly, Singer J's refusal on 6 June 2006 to allow Mr H to make an application for contact during the period of the section 91(14) order. Mr H is the father of three children: two boys, whom I will identify as A and J, now 15 and rising 12 and a girl M, who is now 9. The proceedings which are the subject matter of these applications relate to Mr H's attempts to achieve contact with his children.

3. Before turning to the substance, I need to record that Mr H is not present in court this afternoon. That is because I refused the last of a series of applications for adjournments which Mr H had made. On 24 March 2006 the application for permission to appeal HHJ Darwall Smith's substantive order relating to contact and section 91(14), made on 22 September 2005, was adjourned by me to enable Mr H to prepare a bundle of documents. On 27 April, when Mr H appeared in person, I once again adjourned the matter at his request. He was at that point serving a short sentence of imprisonment for contempt in relation to a breach of HHJ Darwall Smith's order, and I took the view that it would be manifestly to his advantage were he to have the benefit of legal representation. He told me that he was due to be released from prison on 24 May, that he wished to obtain an interview with a representative of the Independent Police Complaints Commission and might well wish to put evidence to that effect before the court on any adjourned hearing.

4. In those circumstances, I adjourned the matter to 22 June 2006, making it clear that in my judgment it would be in the interest of Mr H to have legal advice and, if possible, representation, but I made it clear to him that the matter would in due course have to proceed; it could not be adjourned indefinitely.

5. Shortly before 22 June, Mr H sought a further adjournment of the ground that his father was unwell and undergoing important radical surgery and in those circumstances, on compassionate grounds, I directed that the matter should be re-listed for today. A further application for an adjournment was received on 21 July, once again Mr H, as I understood it, relying primarily on his father's health and his need to be at home to assist his father after the latter's discharge from hospital. There also appears to have been one further application for an adjournment made in May, which once again I refused.

6. I am quite satisfied that the court has given Mr H ample time to obtain legal advice and representation. Furthermore, as this judgment will demonstrate, the case turns essentially on its facts and I am in no doubt at all that Mr H has a very clear and detailed knowledge of those facts. I have therefore decided to proceed this afternoon in Mr H's absence.

7. I have already dealt previously with the order made by HHJ Darwall Smith on 10 November 2004. The purpose of the hearing before the judge on that date was one of fact finding. The position was that at the time of the hearing Mr H was serving a substantial term of imprisonment, which had been reduced from seven to five years on appeal for the rape of the mother of his children. The allegations which the judge investigated in the hearing concluding on 10 November 2004 were ones of sexual abuse made by three complainants against Mr H. The first was a stepdaughter, now adult and the daughter of the other children's mother by her first marriage. The second set of allegations was by another young woman, now adult, and the third by a close friend of Mr H's stepdaughter.

8. The allegations were that over a period of several years, sometime in the past from about 1992 onwards, Mr H had been guilty of serious acts of sexual abuse to the children, as they then were. The allegations did not, however, surface until April 2001. They were initially the subject of criminal proceedings, but as I understand it the judge in the criminal proceedings directed an acquittal of Mr H in relation to them, following one of the girls withdrawing her allegation and the other not being available to give evidence.

9. Mr H regarded it as unfair and oppressive in those circumstances that the same allegations of sexual abuse should be pursued in the family proceedings. Whilst of course I understand that a man who has been acquitted in the criminal court finds it difficult to understand that the same set of facts are relevant to family proceedings and that the family court is not bound by the verdict of the court of criminal jurisdiction, whilst I understand his frustration and incomprehension in that regard, the fact remains that the allegations of abuse were of direct relevance to the proceedings being heard by HHJ Darwall Smith, as they went to Mr H's capacity to look after children and those children's safety in his presence.

10. The judge therefore conducted a long and very detailed hearing. Mr H had the advantage in those proceedings of being represented by well-known leading counsel. As I indicated in my initial reasons for refusing permission to appeal, I had taken the view, which I maintain, that during the course of that hearing the judge made a number of rulings, for example allowing Mr H to cross-examine in person, not withstanding his representation by leading counsel, which other judges might well have refused.

11. I was therefore of the opinion, which I maintain, that Mr H's argument that he did not have a fair hearing within article 6 of the European Convention was manifestly untenable. Furthermore, I took the view that the case hinged crucially on credibility, a matter which was exclusively for the trial judge. I noted that the judge had given herself clear and correct directions on the law and on the practice to be applied and had then carefully followed her own directions. She had reminded herself at every relevant point as to the weight she should give to particular pieces of evidence, and the appropriateness of weighting that evidence in the scales against the applicant. She was manifestly entitled, in my view, to believe the complainants and to disbelieve Mr H. She gave clear and good reasons for doing so.

12. I pointed out that cases involving historical allegations of sexual abuse always pose difficulties for the judge hearing them, particularly when, as in the instant case, there had been previous criminal proceedings in which the alleged perpetrator had been acquitted. Such cases require great care and attention from the judge, who has to direct him or herself clearly on the law and approach the evidence with appropriate caution. Here the judge was faced with a blanket denial by Mr H, and what she found to be cogent evidence from the complainants.

13. In my judgment, therefore, HHJ Darwall Smith was fully entitled on the evidence to find the allegations established and since she made no error of law, the appeal was one of pure fact. It followed that since there was ample material from which the judge could find that facts as she did, an appeal against her findings would have no prospect of success. I expressed the view that whilst I was aware that the matter was of considerable importance of Mr H, such a consideration did not give him an arguable appeal.

14. The position moreover was that following the finding of fact hearing in November 2004, the judge was due to go on with a welfare enquiry to decide whether or not Mr H should have contact. I refused an application to adjourn the permission hearing in relation to the order of 10 November 2004, because I took the view that it was necessary for that hearing to go ahead. By the time Mr H came to make it, it was May 2005; the hearing had been as long ago as 10 November 2004 and I took the view that it was simply not acceptable for an application for permission to appeal in a child case remaining outstanding for more than six months.

15. I pointed out once again that Mr H had had the benefit of representation by leading counsel in the court below. I was, therefore, concerned that the judge should continue with the welfare hearing and took the view that any application to adjourn the application for permission to appeal the 10 November 2004 order would be likely to throw the welfare hearing into doubt. I also pointed out to Mr H that he would have the opportunity, at the conclusion of the welfare hearing, to seek permission to appeal if the result went against him; such a permission to include an application for a challenge to the findings of fact.

16. Thus it was that Judge Darwall Smith came to make her findings in September 2005. Once again, this is a long and extremely careful judgment. The judge approached the matter from a viewpoint favourable to Mr H; namely, that the issue of contact to a father essentially was based on a presumption that all children have a right to know their father and a right to have contact with him, unless there were compelling reasons to the contrary. If anything, that puts the law favourably, as far as Mr H is concerned, but certainly he cannot complain about it.

17. The judge had before her an abundance of evidence, including expert evidence from a consultant adult psychiatrist instructed on behalf of Mr H, and from consultant child and adolescent psychiatrist, instructed on behalf of the children. She also had evidence from a local social services department and from the children's guardian. Both medical witnesses agreed fully with the judge's assessment of the father and the risk he presented to his children, and both medical witnesses were firm in their view that contact should be reduced to a minimum. The judge therefore took into account the medical evidence, the evidence of the guardian and the social worker, and the views of each of the children concerned, none of whom had expressed a clear wish to see their father.

18. Unfortunately, Mr H had refused to accept the findings of fact made by the judge in November 2004 and he also, according to the judge, did not recognise the pressure that he placed on the family by pursuing contact with the children by covert means, contrary to the 2004 order. The father, Mr H, had convinced himself that the mother was being untruthful about the events she described and that he himself had done nothing wrong. The guardian agreed with the assessment of risk prepared by the experts. She accepted the psychiatric recommendation as to contact. She believed that there were no other options but to restrict indirect contact to three times a year, Christmas, Easter and Birthdays and as to a report and photographs from the childrens' schools. She was satisfied that supervised contact would not be safe and that Mr H was incapable of containing his views and that he would seek to undermine the relationship between the mother and the children.

19. The judge was satisfied that both the guardian and other witnesses had approached this case with care and sensitivity in respect of both the children, and indeed Mr H. She took the view that this was an exceptional case, where stringent measures were needed to put in place to protect mother and children. The risks for the children were clearly expressed by the experts and by the guardian and, accordingly, HHJ Darwall Smith concluded that indirect contact had to be reduced to a minimum.

20. She reached that conclusion by applying the welfare checklist. She agreed with the guardian's summary within the welfare checklist set out in the latter's report and concluded that all the progress the children had made in their current situation could be placed at risk by the conflicts that contact with the father would bring to the children and the family. Her decision as to contact therefore had to accord with the welfare needs of the children, rather than the needs of the father. The judge took the view that indirect contact accorded with the childrens' wishes and feelings and provided appropriate protection for them. The purpose of indirect contract was to provide the children with knowledge of their father and the assurance that he cared for them.

21. Furthermore, the judge made an order under section 91(14) of the Children Act preventing Mr H from making any further application of any kind concerning the children without the permission of the court. In making that order she reminded herself of the leading case on the subject, Re P (Section 91(14) Guidelines) (Residence and Religious heritage) [1999] 2 FLR 573 and she applied those guidelines to her decision. Firstly, she said that the childrens' welfare demanded that there should be an end to the litigation. Secondly, she accepted that such an order was intrusion into the right of the father to bring his proceedings and, thirdly, that it was, an exceptional order to be used sparingly. Fourthly, she was satisfied in this case that there had been continuing litigation since the father's application for residence in 2000 and she was satisfied that there had been such ongoing litigation. Fifthly, the animosity which the father felt towards the mother was, she found, exceptional. He did not accept his conviction for rape, or the findings, which the judge had made against him. Sixthly, the father had been made aware of the application to restrict his application to the court prior to the hearing and therefore had had notice of it. The judge found that the mother was a competent mother and she would be able to protect the children and monitor indirect contact.

22. The order which the judge made was to last for five years until December 2010, when the youngest child would be 14. The judge balanced the need to protect the family from disruption against the requirement to make an order which was proportionate in the exceptional circumstances of the case. By 2010 she held that all the children would be old enough to express their views clearly. The reason for extending the term from two to five years was specifically to prevent disruption to the youngest child and to protect her from the effects of litigation as long as possible. In the judge's view, Mr H presented the greatest risk for M, of both sexual and emotional abuse. Five years would give the mother time to settle and reorder her life following the constant barrage of litigation.

23. As I have already indicated, contact was to be limited to three indirect contacts per year, and annual school reports and an annual school photograph going the other way. Mr H was prohibited from sending presents, money or any other items to the children and the orders were to be extended beyond the childrens' sixteenth birthdays and indeed were to continue until each child had attained the age of 18, the judge finding that there were exceptional circumstances which justified that course. Paragraph 4 of the order prohibited the father from entering a number of roads and that order was to last for five years. Paragraph 5 and 6 related to school and were expressed to last for as long as the children attended those schools. Paragraph 9 was a general prohibition of communicating information as to the proceedings and all matters relating to the family, and that order was also to remain in place until 1 December 2010 or further order of the court. Paragraph 10 was a family law injunction protecting the mother and was not limited in time. Paragraph 11 attached a power of arrest to paragraph 10 and was limited in time to 1 December 2010 or further order.

24. The judge was satisfied that the order under section 91(14) did not infringe Mr H's human rights because he was not prevented from returning to the court to seek permission. She believed that the order should be time limited in the interest of justice. She accepted that the order clearly interfered with Mr H's exercise of his rights under article 8, but the interference was manifestly warranted and justified. In addition, counsel had represented him. She had allowed him to make applications in person as to abuse of process, and as to calling witnesses; he had been allowed to cross-examine the mother. She believed that the case had been thoroughly investigated and assessed by a highly competent guardian and by eminent experts.

25. In my judgment, HHJ Darwall Smith's judgment of September 2005 is well reasoned, well balanced and thorough. The conclusions which she reaches are conclusions which were manifestly open to her.

26. The grounds of appeal are not altogether easy to follow, but Mr H appears to challenge the judge's orders on the following grounds. Firstly, no expert evidence had been adduced on the interaction and relationship of the children and their father during supervised contact, where no harm or risk to the children had occurred. Secondly, the transcript he argued did not reflect the actual words used in court by the judge. Thirdly, the High Court had ignored evidence of Mr H's steps to effect mediation in the dispute, he claiming he was the victim of Parental Alienation Syndrome. Fourthly, he argued that indirect contact would further damage the emotional, physical and psychological needs of the children. Fifthly, he argued that medical evidence had been excluded by the judge in the November 2004 judgment, with the result that her subsequent findings of fact were wrong. Sixthly, he argued that the judge had failed to hear the oral evidence of the Court Welfare Officer and other witnesses. Finally the judge, he said, should not have heard evidence by video link from an adult witness, which had previously been withdrawn in the crown court on 28 January 2003.

27. In my judgment there is nothing in any of these grounds. Both expert witnesses before the judge -- both the witness called on behalf of Mr H and that called on behalf of the children -- as well as the guardian agreed that Mr H should have limited and indirect contact with his children because he presented a risk to them. There was abundant material upon which the judge could properly make that finding. There is nothing to suggest that the father should have direct contact with his children, or that his rights under the European Convention had been violated. The judge had plainly applied the welfare checklist under section 1(3) of the Children Act 1989 thoroughly, and mentioned that the order which she was about to make was an exceptional one.

28. In the circumstances and in the interest of the children, this was in my judgment a clear case for imposing a restriction under section 91(14) and in my judgment she was plainly right to do so. I therefore conclude that Mr H's case is unclear and without any merit. In so far as it comprises a personal attack on the integrity of the judge, it is manifestly unfounded and I have therefore no hesitation in refusing Mr H permission to appeal against that order.

29. Nothing daunted, Mr H applied on 6 June 2006 to Singer J for permission to make an application for contact. He appeared in person. Counsel appeared on behalf of the childrens' mother. The judge listened carefully to Mr H and then gave a judgment dated 6 June, which has been transcribed. The judge deals with the history. It was clear from the judge's judgment that Mr H still did not accept that he had been guilty of the behaviour which the judge had found that he had committed and, like me, he told Singer J that he was intending to go back to the Court of Appeal, Criminal Division, pursuant to a reference from the Criminal Cases Review Commission. The judge rejected Mr H's application in the following terms, in paragraph 11 of his judgment:

"The judge found in the clearest terms that what the mother and the children needed was a period of respite, which she said should last until 2010, and yet within a matter of eight or nine months the father seeks to reopen it all, on a basis which clearly does not accept any element of the responsibility, as found by the judge, he bears for the tragic state of affairs that requires the children to be protected from contact with him, other than as ordered by the judge at this stage. There is no basis at all upon which I should or could give leave to Mr H to reopen in a fresh contact application matters so recently concluded and indeed still the subject of appeal. His application must be dismissed. There is no point at all in adjourning it to a date after the hearing of his oral application, because his oral application if successful will lead to an appeal. As I understand it, the mother and her representatives have not be bidden to attend on that date and so permission if granted will have to be for an appeal at a fixed time. In the meantime this pending application, if I were to adjourn it, would simply be another instrument of pressure on the mother, or so it might be perceived by her.

"I dismiss the application."

30. The judge then went on to express displeasure that Mr H had been able to go to a district judge, without previous experience of the case, and procure a listing before him within a matter of days, with the unfortunate situation which developed in this case. The judge said he would consider making additional directions that would prevent this happening in the future; notably, that Mr H should make any future application in writing and that such applications should in the first instance be referred to HHJ Darwall Smith, if she was available, and failing that to a judge of the High Court in the Family Division for consideration as to whether it should be dismissed at that point and, if not, what directions if any there should be as to a hearing or permission application being heard, with both parties present. In that way, the matter could be dealt with appropriately and could be brought to the attention of a judge who had more than an application judge's or district judge's opportunity to get to grips with the case.

31. Mr H makes a number of criticisms of Singer J's judgment, including the fact there appears to have been, as Mr H would argue it, an absence of appropriate documentation before the judge, thereby preventing the judge from dealing with the matter fully and appropriately. Otherwise, it seems to me that the arguments which Mr H seeks to advance in relation to the order made by Singer J on 6 June 2006, in so far as I can follow them, appear to be simply a re-run of the arguments previously advanced to HHJ Darwall Smith and furthermore, as Singer J recalls, it is plain that Mr H remains quite unable to take any responsibility for previous events and believes that the children's current condition is nothing to do with him. It is notable, of course, that he did serve a further short term of imprisonment for contempt of HHJ Darwall Smith's September 2005 order; indeed when I first met him, he was subject that sentence.

32. In my judgment, Singer J had no alternative but to refuse the application. He was plainly right to do so for the reasons that he gave and an appeal against his decision would stand absolutely no prospect of success whatsoever.

33. For those reasons, therefore, I refuse all three applications made by Mr H. I have done so in his absence for the reasons which I have explained and I repeat that I will make this judgment available to him at public expense, so that he can understand that has happened this afternoon.

Order: Application refused.