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R (A Child) [2007] EWCA Civ 943

Application by mother for permission to appeal, with appeal to follow, two orders confirming regular supervised contact with the father. Application and appeal allowed.

The child suffered from serious learning and physical disabilities. This factor influenced the Court of Appeal in reaching their conclusion to allow the appeal as the case management judge had characterised the level of contact in the order as "modest". Given the circumstances the Court of Appeal disagreed and stated that more time was required to decide on an order that would reintroduce contact safely.


Case No: B4/2007/1583

Neutral Citation Number: [2007] EWCA Civ 943

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Wednesday, 8th August 2007



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(DAR Transcript of
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Mr B Kennedy (instructed by Mustoe Shorter Solicitors) appeared on behalf of the Appellant.


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Judgment (As Approved by the Court)

Lord Justice Ward:
1. This comes before us as an application for permission to appeal orders made by HHJ Beashel in the Weymouth County Court, firstly on 31 May when he ordered the mother of the little girl concerned, called J, who was born in September 2000, be made available for contact with the father for half an hour during the paternal grandparents' contact on Sunday 29 July 2007 and Sunday 26 August. Mr N, the respondent's partner, may be present during this contact.

2. The second application relates to the Judge's order, made on 19 June, when he dismissed an application made by the mother to review the order of 31 May, and said there was to be no change to it.

3. It is a difficult case concerning a girl with serious disabilities, outlined in the expert's report, presented to the court by Dr Blincow; especially in the light of those difficulties, it is an appropriate case where, I think, there should be a reporting restriction and that that should be ordered.

4. This little girl probably suffers from a constellation of difficulties: being visually impaired, having an Asperger's type disorder and possibly an attention deficit hyperactivity disorder. It is not entirely clear, nor does it matter for present purposes, precisely what is happening. The sad facts which bring the case to the court are that the parents, who have never married, separated in January 2006 and the father last saw this little girl in February of last year. There have been difficulties between the parents and those difficulties were examined by the Recorder, Miss Recorder Ralphs, who had to make certain findings of fact in the case, which she did last year and she found that, although mother had exaggerated some of those complaints, and although some of them were not proved, there were allegations proved to her satisfaction of some domestic violence and, sadly, also some inappropriate excessive physical chastisement of this little girl and some rather horrible remarks passed of her, which I am sure the father today bitterly regrets. But that has put its inevitable shadow over the contact which the court has been endeavouring to bring about. It is important to record that the mother, through her counsel, confirms today that she does not oppose contact in principle; it is merely a question of resolving when it should take place and in what conditions it should take place.

5. The concern is that the girl's special needs render her highly vulnerable and she is receiving at the moment special treatment at school, from a dedicated team who have reported on the extreme behaviour which she manifests by reason of her disorder.

6. The court ordered that there should be some contact indirectly. That was ordered in May of last year, but in November of last year the court ordered that the CAFCASS Officer, Miss Eccleston, should supervise contact with a view to reintroducing father into his little girl's life, and Miss Eccleston set about diligently to try and bring that about. She concluded, however, having taken soundings from the school, that the girl's behaviour had deteriorated so badly that she could not herself effect that reintroduction; and thus the matter came back before HHJ Beashel, on a short appointment for directions, at the end of May. He had, therefore, but an hour in which to review matters, one of them being an application by father for parental responsibility.

7. The proceedings were necessarily truncated, and the judge heard from Miss Eccleston but did not have her give evidence in the formal sense, and there was certainly no opportunity to cross examine her. She had filed a long report, dated 25 May, which the judge was able to consider but perhaps cursorily, because it seems to have been placed before him at the last minute. That report was gloomy, in the sense that Miss Eccleston was reporting that the special educational needs coordinator was saying that J could easily be tipped over the edge, so that her behaviour would be completely unmanageable.

8. It was the opinion of Miss Eccleston that timing was very important. The school wished to see J settled into full-time school, and that would not take place until the beginning of the next term in September; and it could mean a delay, therefore, by the time she was settled, until October. She said, and I quote paragraph 14, that:

"I think there is an argument for saying some contact could take place during summer holidays when J does not have the pressure of the school routine."

She said in paragraph 15:

"I think J's seeing her father as part of the grandparents' contact for half an hour at a place she enjoys going with them has some merit."

9. So those were tentative proposals from her. Dr Blincow also reported for the court in his view it would be:

"… optimal for her to be settled at school when direct contact first takes place but this may not occur for some time. In the short term, dovetailing contact in with the grandparental contact offers many benefits."

10. And so he expressed a view, which strikes me as again being tentative, that there was a chance for contact to take place with the grandparents; but he did emphasise that that contact needed to be carefully planned and more closely monitored than is usual for children who did not suffer these sensitivities and severe difficulties. He thought it would be prudent for her to be settled within the school when contact was embarked upon. He acknowledged that the grandparents, who had a good relationship with her, could be the vehicle for the reintroduction; but he emphasised that it would be helpful to have the assistance and observations of CAFCASS with regard to handovers, the contact itself and how J is to return home.

11. So that was the written material before the judge. In addition, he had Miss Eccleston telling him that there was a school report about to be prepared offering her advice; that all, and especially Dr Blincow, needed to see the school report before they could come to firm conclusions as to the best way forward; but she repeated her tentative submission that, because the longer the process goes on, quoting from page 4 of the transcript,

"…the more possibly negative views J keeps of her father."

12. Because of that fact, she thought there was a possible benefit of introducing contact outside school term and during the school holidays. That was seized upon by the judge, and although Mr Kennedy, who appeared for the mother, was submitting courteously but nonetheless plainly to the judge that there were deficiencies in the evidence before him, namely from the absence of an up-to-date report from the school, and deficiencies in the procedure, that the mother had not any opportunity to cross-examine or challenge the recommendations, it was, submitted counsel, inappropriate to order any contact on that disputed and unclear evidence. The judge heard those objections but stated peremptorily on page 15:

"I am not going to hear evidence today; I have another case to hear. This is a holding operation. I have read Dr Blincow's reports, of course, and they will receive close scrutiny in September. If this were a case of frequent contact, things would be altogether different, but it is not. And I am going to order this modest contact. So there we are."

13. It was a quite abrupt end to the hearing. The judge did give the shortest confirming judgment in one paragraph, appearing on page 16 of the transcript, recording that Miss Eccleston thought it was a good idea. Unfortunately, he said, she cannot be involved in the actual contact for reasons she had set out in her report, but that modest contact would be a good starting point.

14. I have to say that, whilst I respect the judge's desire to move the case forward and keep the momentum going, nonetheless this was a finely balanced decision where the evidence was far from clear and it was in those circumstances, in my judgment, necessary to proceed a little more cautiously than the judge did, and to give a fair opportunity to the mother to voice her objections, and present the evidence and test the evidence before making an order. The judge, I fear, rushed at this prematurely and misdirected himself in treating this as mere modest contact. It was modest, perhaps, in as much as he ordered only two periods of half an hour but it was a giant leap for this little girl to take at this stage of her development, and from her point of view it was not modest at all; it was going to be the first step in a long journey of reconciliation, and I fear the judge mischaracterised the importance of the step he was ordering.

15. When the matter came back, mother was in effect saying to the judge: I asked you please not to make any order until we had heard from the school. We have now heard from the school, and the report on the teacher, or rather the special needs expert, was set out in a letter of 5 June in which she says this:

"It is felt quite strongly by both the teacher and TA [the teacher's assistants] that there is a correlation between J's anxiety levels and the extreme behaviour she displays, and that she did become anxious when contact with her father, A was planned.

Whilst we are not in any way against the proposed contact, as we recognise the benefits of children having contact with both parents, we ask that it is recognised that J's emotional and behavioural difficulties mean any new experience has to be managed very carefully. Due to her difficulties, J is yet to attend school full time and is unlikely to be able to manage full days until at least September. It gives me some concern, then, that I understand contact is proposed for July. I would wish for J to be secure in school before any further changes were introduced.

I understand the father's desire for contact with his daughter, but if contact is to be successful, I would suggest, it needs to be carefully timed for a period when J is more emotionally secure."

16. That letter was placed before the judge when, again, he was in the middle of a long trial and there was but the shortest opportunity for that to be fully considered; counsel made his points but the judge, in a short judgment, said that he agreed that much of the girl's behaviour is "disturbing in the extreme". He said he did not in any way make light of the difficulties encountered by those involved in the care of J and he fully understood why they were anxious not to make things worse. "But", he said:

"… the contact I ordered is very modest and if in the result the first contact goes badly, then there would be no second contact before the main hearing. That was made plain at the last hearing on 31 May.

I am satisfied that the welfare of this little girl will not be placed in jeopardy by the order standing. It is modest contact and February 2006 is a long time ago, no contact, and the months go by without J having contact with her father. So I am not going to allow any alteration in the order I made on 31 May. That order stands."

17. I have, with respect to the judge, the same criticism to make of his characterisation of this huge event in the girl's life as something which is modest. It is, as I have said, much more crucial than that.

18. Given that three days have been set aside for the hearing of this question of contact when, to some extent, the issues of domestic violence will have to be addressed, but when, given the mother's acceptance, that contact in principle is to take place, the main emphasis will, I hope and expect, be directed to an examination of Dr Blincow's opinion and to the valuable insight proffered by Miss Eccleston, together, I suppose, with input directly from Miss Goodinson, the special needs teacher; the court will focus more upon how this contact is to be introduced safely. I would have thought that the judge should have delayed this contact for this comparatively short time; it would not be delay that will be seriously harmful to this child and the benefits of ensuring that contact is reintroduced, in a way the experts suggest, in a way that can be overseen by Miss Eccleston and properly reported on, outweigh the advantage of an immediate reintroduction.

19. In my judgment this application for permission to appeal should be granted and the appeal allowed, so that paragraph 6 of the order of 31 May is discharged.

Lord Justice Mummery:
20. I agree

Lord Justice Jacob:
21. I also agree.

Order: Application granted. Appeal allowed.