Re A (A Child) [2013] EWCA Civ 1104

This appeal concerned an extremely protracted contact case. The parties separated when the child ‘M’ was 21 months’ old.  The first application for contact was made 5 months later.  Litigation concerning M and her parents had continued, almost without interruption, for the ensuing 12 years.  Since 2006 there had been no fewer than 82 court orders. 

The proceedings concluded on 9th October 2012 with an order of HHJ Goldsack providing for indirect contact only between M and her father.  A section 91(14) CA 1989 order was made until M’s 16th birthday.  The father was acknowledged to be an ‘unimpeachable father’ against whom no adverse findings had been made at any stage in the proceedings.  At the final hearing the mother was held to be ‘always implacably opposed to contact’.   HHJ Goldsack felt driven to make the no contact order as M had expressed a firm opposition to the continuation of proceedings and attempts to reinstate contact.

By way of brief background, the father only ever enjoyed contact with M as a result of making applications to the court and referring it back to court if and when contact failed to take place or failed to progress. Allegations were made by M that her father had sexually abused her. Following a five day fact finding the court concluded that the alleged abuse had not occurred and the Judge described M as ‘telling a story rather than reliving it’.  The mother’s mental health deteriorated and she was admitted to hospital.  During this time the father was in fact granted a residence order in respect of M, although when the mother left hospital M was returned to her at the recommendation of the Guardian. Following the return the mother failed to make M available for contact and the matter was brought back to court.

After the involvement of numerous Cafcass officers in the case, and numerous experts, the final hearing came before HHJ Goldsack. For various reasons the final hearing did not conclude until some twelve months after the first day of the hearing.  One expert, Dr Weir, recommended that residence should be shared or, failing that, there were grounds for transferring residence to the father although this would require the assistance of an outside agency. No outside agency was apparent however, with the Local Authority supporting M remaining with the mother. The Judge determined that a line had to be drawn under proceedings and made the no direct contact order.

In his appeal the father relied upon the entirety of the court process in support of his submission that the family justice system had failed to afford paramount consideration to the welfare of M and to respect both his and M’s right to family life under Article 8.  Lord Justice MacFarlane in his leading judgment was satisfied that the proceedings as a whole had violated the rights enshrined in Article 8.   No facts had been established to support a finding that it was necessary or proportionate, in terms of Article 8(2), to refuse contact to protect the health or rights of freedoms of others.

The case affords the following guidance for similar protracted and high-conflict cases:

  • There is a need for judicial continuity, judicial case management and consistency of judicial approach. 
  • The judge must, in the absence of good reason for any failure, support the order he or she has made by considering enforcement either under the Children Act enforcement provisions or by contempt proceedings.  It was emphasised that the first time that a judge should give serious consideration to whether or not he or she will be prepared to enforce an order for contact should be before the order is made and not after a breach has been committed.  If a directive contact order is called for, on making that order the judge should be clear that upon breach enforcement shall follow.  It was stressed that there was no judicial discretion as to whether or not to attach a penal notice but the discretion is whether or not to make the order itself.
  • If implacable hostility may be an issue that should be identified as soon as possible.

As the outcome was determined to be unjust due to a serious procedural irregularity the appeal was successful and a complete rehearing was ordered.

 Re C (A Child) [2013] EWCA Civ 1412

This case reminds the courts of the importance of putting in place procedures and processes to assist litigants in person who are unaware of the rules and practice directions of the court.  The parties had been in a relationship for ten years.  The breakdown was acrimonious and the father moved to another area of the country.  The mother made an ex parte application to the court for a prohibited steps order preventing the father from removing the child from the care of his mother or nursery school.  A prohibited steps order was made along with an order for indirect contact only.  The Court of Appeal concluded that a series of procedural irregularities caused the decision to be unjust.

The mother made her application in person and on a without notice basis.  There was no statement attached to mother’s application so the only written evidence before the court was the brief outline of allegations on the application.  The Court of Appeal characterised the matter as a dispute about contact with low level allegations which cried out for a rapid resolution.  If a prohibited steps order was to be made it needed to be substantiated in evidence and the proportionality of an order restricting the exercise of parental responsibility of one parent needed to be considered. 

The Court of Appeal suggests that the current tick box forms may not be a sufficient reflection of the duty of full and frank disclosure on those seeking orders on a without notice basis.  It is suggested that there ought to be pro forma narrative statements for completion. 

The court noted that there must have been oral evidence given in support of the application.  However, it was not recorded on the face of the order, neither was a direction made for that oral evidence to be transcribed or put into a witness statement and served upon the father.  According to rule 18.12(2) FPR 2010 the service of evidence in support of a without notice application is mandatory unless the court ordered otherwise. It is recommended that, as in the Family Proceedings Court, there should be a precedent form requiring reasons to be stated for each decision which involves a variation or abrogation of the procedural protection of the rules.  It is suggested this should be regarded as good practice in all family courts where written reasons or judgement are not easily available.

It was further noted that the prohibited steps order did not provide for the duration of the order.  Therefore the prohibition was without a time limit.  The matter was not reconsidered at the return hearing some four months later.  As no CAFCASS officer was present at that hearing it was adjourned for a FHDRA.  This was not listed within the time limit of 4 to 6 weeks as prescribed by PD12B.  Further there was no consideration as to whether any interim hearing was required to consider the real issue of direct contact.  Furthermore, the Pre-Application Protocol for Mediation and Information was wholly ignored removing the possibility of mediation.

At the FHDRA CAFCASS identified three safeguarding issues.  It was clear that at this stage these were mere allegations unsupported by evidence and not accepted by the father.  CAFCASS had recommended a fact finding hearing, however, CAFCASS were ordered to prepare a section 7 report dealing with ‘father’s anger issues and how these may be managed in promoting contact’.  The Court of Appeal noted that the determination that a fact finding was not required was contrary to the no direct contact order as this assumed the allegations were serious enough to warrant such an order.

The mother filed a short statement which was neither signed nor dated and was not verified by a statement of truth.  The statement raised a general allegation of domestic violence by the father and gave two particulars.  The Father replied and denied the allegations.  Both parties acknowledged the child was present on one occasion and the issues demanded determination.

During his telephone interview with CAFCASS the father became abusive and was abusive to the nursery and the mother.  He was sentenced to a 12 month community order and a restraining order.  The CAFCASS officer contacted the court to state that she could not complete the section 7 report.  It was further stated that father had withdrawn his application when he had only threatened to do so and it was suggested that the Mother should not be subjected to further intervention.  The e-mail was sent to the Court but not to the parties despite being disclosable.  The CAFCASS officer was a witness in a criminal trial yet continued to act in the proceedings.  The Court of Appeal concludes this was wholly inappropriate.

A section 7 report was finally filed without any input of the Father.  The report included new allegations asserted as bold facts despite the allegations not being tested.  A risk analysis was conducted in respect of father and he was, rather unprofessionally, compared to Raoul Moat.  The recommendation was for no direct contact.  The recommendation was not accepted by father and the matter was set down for a contested hearing. 

The first available date for such a hearing was five months later.  There was no attempt in the intervening period to update any of the information in the CAFCASS report or assess the risk father was said to pose.  Still no fact finding hearing was listed to determine the allegations.  Although the parties were given permission to file statements no direction was given as to how the father could or should respond to the allegations.  The Court of Appeal emphasised the need for case management by the Judges in the absence of lawyers due to LASPO 2012.

Before the contested hearing the CAFCASS officer filed and served a chronology.  No direction had been given for the filing of the same.  It should not have been admitted and was clearly highly prejudicial and of little probative value.  However, it became the primary evidential document in the case.  The document was only made available to the father on the morning of the contested hearing. 

The father applied to adjourn the contested hearing to adduce evidence pertaining to his mental health.  The application was refused.  At the hearing, the Mother did not give evidence and was accordingly not questioned by anyone.  Her statement was never technically admitted.  The only evidence came from the CAFCASS officer who continued to treat the untested allegations as fact.  The hearing proceeded as a welfare hearing rather than as a fact finding hearing to determine the veracity of the allegations.

Without any application on notice to the father, the CAFCASS officer was permitted to give evidence from behind a screen.  The Court of Appeal noted that this should not have happened.  The Court of Appeal suggest that a more inquisitorial approach may be beneficial in difficult cases involving litigants in person where emotions may run high but there remain determinations to make.  It is suggested that Judges could swear in the parties then ask them their proposals and the issues.  This could be used to formulate questions for the judge to ask of the parties.

The President of the Family Division sought to associate himself with the guidance contained in the judgement.  It is acknowledged that a lack of competent legal representation played its part in the breach of procedure and denial of natural justice in the case at hand.