ON APPEAL FROM
HHJ COCKROFT
BRADFORD COUNTY COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Before :
LORD JUSTICE THORPE
LORD JUSTICE DYSON
and
LORD JUSTICE WALL
H (A Child)
(Transcript of the Handed Down Judgment of
Smith Bernal WordWave Limited
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Julia Nelson (instructed by Williscroft & Co. Solicitors) for the Appellant
Ian Miller (instructed by BSS Law Partners - Solicitors) for the Respondent
Judgment
As Approved by the Court
Crown Copyright ©
Lord Justice Wall :
Introduction
On 9 May 2005, HH Judge Cockroft, sitting in the Bradford County Court, made an order for contact in proceedings under the Children Act 1989 between the separated parents of HH (H), a girl, born on 8 April 1999. The applicant in the proceedings was H’s father, and the respondent was H’s mother. I shall, throughout this judgment, refer to the parents in those terms. The order reads as follows: -
The mother do make H available for six one hour contact sessions over a period of 12 weeks to be supervised at a contact centre commencing as soon as availability of contact centre places permits.
The sessions be supervised by CAFCASS and be attended by an appropriately trained interpreter of CAFCASS for as long as directed by CAFCASS.
There be a review of contact on the 1st available date 12 week following the 1st session at the contact centre with a time estimate of 1 hour, the matter being reserved to His Honour Judge Cockroft. The solicitors for the father to notify the court of the 1st contact date in order that the review hearing can be listed.
Hazel Kilner of CAFCASS do file and serve on both parties an addendum report no later than 7 days before the review hearing.
The father’s application for leave to appeal is refused.
On 5 June 2005, on the mother’s renewed application to this court for permission to appeal, Thorpe LJ on the papers adjourned the application to an oral hearing on notice with appeal to follow if permission was granted. He refused an application for the order to be stayed. However, no contact had in fact taken place pursuant to the judge’s order, due to the failure of the father’s solicitors to make the necessary arrangements with the contact centre. In the light of what follows it is, perhaps important to make clear at this stage that the mother was in no way responsible for the fact that the judge’s order has not been implemented.
The mother’s application for permission to appeal came before this court on 12 October 2005. Having heard full argument, we granted it, allowed the appeal, and set aside the judge’s order. We directed that the application be remitted to the county court to be reheard by a different judge to be allocated by the Designated Family Judge for Leeds, His Honour Judge Peter Hunt. We reserved our reasons, which we now give.
The issues raised by the case
This case raises two points of general interest. The first is the manner in which the court should approach applications in which the residential parent’s objection to contact is founded on domestic violence on the part of the parent seeking contact and where the court has made a finding of fact that domestic violence has taken place. The second relates to case management.
It would, in my judgment, be possible to deal with this appeal very shortly. Miss Julia Nelson, for the mother, divided her argument into four parts. These were: -
that in the judgment under appeal, the judge was “operating with an imperfect recollection” of findings of fact which he himself had made at earlier hearing;
that the judge had failed to have any regard to the judgment of this court in Re L (a child) (contact: domestic violence) [2001] Fam 260 (Re L); the psychiatric report written for this court in that case by Dr. Claire Sturge and Dr. Danya Glaser (the Sturge/Glaser report); and the guidelines prepared by the Children Act Sub-Committee (CASC) of the Lord Chancellor’s Advisory Committee on Family Law in relation to contact cases where there had been domestic violence (the Guidelines), also cited with approval by this court in Re L. In particular, the judge had failed to consider at all the attitude of the father to his actions and the effect that contact would have on the mother and child;
the judge had failed to have any or any sufficient regard to the views of Dr. Ali (a jointly instructed psychologist) and Mrs. Kilner, the CAFCASS Reporting Officer (CRO);
the judge had turned what was intended to be a hour’s review of the case into a final hearing without allowing sufficient time for full submissions and without hearing properly from the CRO or the parties.
In my judgment, Miss Nelson is entitled to succeed on each of her grounds of appeal, albeit to varying extents. The cumulative effect of her submissions, however, is amply sufficient to demonstrate that the judge’s conclusions were plainly wrong, and that the order he made must be set aside. It is for this reasons that I say it would be possible to deal with this appeal very shortly. I do not, however, propose to take that course, and need to explain my reasons for not doing so.
The Family Justice System has in recent years been the subject of serious and sustained criticism from responsible sources in relation to the manner in which it deals with applications under the Children Act 1989 relating to contact and residence. This culminated in the report of the House of Commons Constitutional Affairs Select Committee, which published its report on 2 March 2005 (HC 116-1).
Several of the most substantial criticisms have centred on the issues highlighted by this case, namely delay, a lack of proper judicial case management and continuity, and the manner in which, despite Re L and the CASC Guidelines, the courts continue to deal with cases involving domestic violence.
I do not lose sight of the fact that up and down the country, the judiciary and practitioners engaged in the family justice system, in whatever capacity, are doing their best, with inadequate resources at their disposal, to deal compassionately, effectively and swiftly with difficult cases involving children. I do not lose sight of the fact that very few cases reach this court, and when one does, we have no means of knowing whether it is an aberration or the tip of a particular nasty iceberg. For my part, I hope and believe that, for the most part, good practice is normally followed. However, when a case such as the present, which has manifestly gone badly wrong, does reach the Court of Appeal, it is, I think, appropriate for this court to examine it in some detail, and to take the opportunity to remind those working in the family justice system of the principles of good practice which have not been followed. That is what I shall attempt to do in this judgment.
I am, of course, aware that I have the luxury of examining the case at leisure, whereas the judge gave extempore judgments under pressure of time. I am also aware that reserving judgment in a case like this adds to the delay from which the case has already suffered, since although we announced our decision on 12 October 2005, it will be difficult for the case to be allocated and re-listed until the judgment of this court is available. I am of the view, however, that given the point this case has reached, a short further delay is warranted, when balanced against the need to identify carefully the points in the case which are of importance to the profession.
The facts
The parents are both Muslim and of Pakistani origin. The mother, however, was born and brought up in England. She has lived here all her life. The father, by contrast, was born and lived in Pakistan until, following the parties’ arranged marriage in that country on 7 July 1998, he eventually obtained a visa permitting his entry to the United Kingdom, where he arrived on 21 January 2001. There was, however, a pre-existing connection between the father’s and the mother’s family, as one of the father’s brothers is married to the mother’s sister.
H was conceived in Pakistan shortly after the marriage. It was not a straightforward pregnancy, and the mother returned to England at the end of August 1998 in order to avail herself of the superior medical facilities provided by the National Health Service. H was thus born on 8 April 1999, whilst the father was still in Pakistan, and he did not see her until his arrival in this country in January 2001, by which time she was some 21 months old.
It was common ground between the parties that they did not resume a sexual relationship after the father arrived in England. The mother’s case is that she both wanted and was willing to be a good wife to the father, but that he spurned her. The father’s case was that the mother was cold to him and that it soon became apparent to him that she had been strongly urged into the marriage. The mother had had a relationship with another man in England prior to her marriage to the father: she had lived with this man and only returned to her family when the relationship came to an end. Her family had not approved of the relationship, but had accepted her back when it broke up. The father’s case, although never clearly articulated, appeared to be that she had been persuaded into the marriage by her family in order to regain respectability.
It was common ground that the parents had separated permanently on 13 June 2001. The mother’s case was that on that day the father subjected her to a serious assault which required her to have hospital treatment. Thereafter, the father had no contact with H. For reasons which do not emerge from the papers, he did not make an application for contact to H until over a year later on 8 July 2002. By this time, H was three.
On 19 August 2002 a district judge ordered a report from the CRO, and when the CRO, Mrs. Kilner, reported on 15 November 2002, she recorded that the mother was expressing a strong objection to contact based on her fear of the father, his cruelty to H, and his violence to her which H had witnessed; whereas the father vehemently denied being violent or controlling either towards the mother or H. Mrs. Kilner thus concluded: -
“It would be helpful if there were findings of fact in this case. If the court is then satisfied that (the mother’s) fears and anxieties are based on her past experience of (the father) and violence towards herself and H, I would urge that an order for no contact be made. If on the other hand the court considers that (the father’s) recollection of incidents is accurate, then there would need to be further investigation as to whether or not progress could be made with contact, particularly given that H does not have a relationship with her father.”
The finding of fact hearing
Pursuant to that exemplary advice, the judge conducted a finding of fact hearing on 23 and 24 June 2003. We have been provided with a transcript of that hearing, and of the judge’s extempore judgment.
The mother’s lawyers produced a schedule of findings which they invited the judge to make. It reads as follows: -
“1. Soon after his arrival in England in November 2000, the Applicant made a threat to kill the Respondent.
2. On one occasion soon after the Applicant pushed the Respondent onto the sofa.
3. Towards the end of February 2001 the Applicant slapped the Respondent twice across her face.
4. The Applicant locked H in the bathroom for 45 minutes.
5. Around March 2001 the Applicant beat the Respondent whereby he slapped and pushed her, causing her to bang her head against the door.
6. In March 2001 the Applicant threw the Respondent onto the floor.
7. On 13 June 2001 the Applicant slapped the Respondent on her face.
8. On 13 June 2001 the Applicant grabbed the Respondent by her hair and dragged her along the floor.
9. In June 2001 the Applicant beat the Respondent about her head and face with his shoe.
10. In June 2001 the Applicant bear the Respondent on her back with a shoe several times.
11. On 13 June 2001 the Applicant pulled the Respondent’s hair.
12. On 13 June 2001 the Applicant punched the Respondent around her head.
13. On 13 June 2001 the Applicant beat the Respondent causing the small finger on her left hand to break.
On 13 June 2001 the applicant made threats to kill the Respondent and her daughter (H).”
In relation to this schedule, the judge’s findings, in summary, were as follows:
(a) “I ignore and dismiss paragraphs 1 and 2, they have not been substantiated or even pursued by any evidence”
(b) On the balance of probabilities, paragraphs 3 and 4 did not happen
(c) As to paragraphs 5 and 6 “I merely find that (the father) slapped the (mother)”
(d) Paragraphs 7 to 14 all related to what the judge rightly described as “the major incident”. He found paragraphs 7, 8, 9 and 10 proved. He did not think paragraphs 11 or 12 added anything. In relation to paragraph 13 he was satisfied “something happened during the assault to cause a small bone in the finger of her hand to be fractured, possibly the fall”. In relation to paragraph 14, he was not satisfied that there were any threats to kill.”
As the judge’s recollection of the findings which he made on 24 June 2003 is relevant to his reasoning in the judgment under appeal delivered on 9 May 2005, it is necessary to examine the earlier judgment in some detail. Neither party appealed against the 24 June 2003 findings, and both accept that, for the purposes of this appeal, they are bound by them. In order to get the true flavour of the case, it will be necessary to set out a number of extracts from both the judge’s judgments, and some passages from the evidence.
The judge clearly did not form a favourable impression of the mother, and was equally clearly sympathetic to the father, whom he thought had been badly treated by the mother and members of her family. This was despite the father’s written evidence in paragraph 7 of his statement made on 13 January 2003 that, following his arrival in the country he was “being treated extremely nicely and well by the (mother’s) family” and, more generally in paragraph 13:
“I had no problems with my mother and father in law they were extremely respectable hardworking people. They in fact told (the mother) it was her fault. In fact I must praise all her family, including her brother’s (sic).”
As I have already recorded, it was common ground between the parents that, following the father’s arrival in England, they did not resume sexual relations. On the balance of probabilities, the judge found that it was the mother who wanted nothing to do with the father. He added, however:
“I say it on a balance of probabilities because I cannot be sure of anything in this case, nor do I have to be. I have been told dramatically different accounts and I feel rather like someone required to perform brain surgery with some very blunt instruments. I have to come to conclusions about this marriage on a balance of probabilities in the disconcerting knowledge that I might be completely wrong. I might hold that one or the other or both are lying to me when it is not the case. The only certain thing in this case is that have not been told the unvarnished truth by both sides that would be entirely impossible. So there they are, quite soon in a home of their own in a loveless marriage with father increasingly disappointing his in-laws and their family at the way in which he is coping with life and work in this country.”
Before making his findings, the judge refers to the law and the burden and standard of proof required for the mother’s allegations to be established. Albeit brief, this self-direction is correct and perfectly adequate. During the course of this part of his judgment, however, the judge makes a passing reference to Re L which had been cited to him by counsel then appearing for the father.
“He has drawn my attention to the case of Re L in which the Court of Appeal emphasised what might in any event be regarded as common sense, namely that it is not only necessary to scrutinize whether the allegations are true or whether they are lies, but it is also important to consider whether they, if true in part, are nevertheless grossly exaggerated, and I bear that particularly in mind in the context of this case.”
In relation to paragraphs 3 and 4 of the Schedule set out in paragraph 15 above, the mother’s case in her written statement was that towards the end of February 2001 she heard H crying and screaming upstairs. The father was standing outside the bathroom and H was inside. The father told her that H had spilt some shampoo in the bath and needed to be taught a lesson. The father would not let her open the bathroom door, and when she tried to do so he slapped her hard twice across the face. It was only 45 minutes later, during which time H had continued to scream hysterically, that that father relented, and let H out of the bathroom. In cross-examination, when asked what happened during those 45 minutes, the mother said that the father had dragged her downstairs and refused to allow her to go back up.
The father’s case in relation to this incident, as indeed it was in relation to all the allegations of violence, was that nothing had happened and that the mother had invented them. The judge dealt with this particular incident in the following way: -
“17. Well what am I to make of this? Mr Shelton characterises mother’s as an implausible account. It does not fit with father being delighted the previous month to see his daughter for the first time at the airport. If father was a severe disciplinarian, and this allegation suggests no less, then Mr Shelton points out that it is difficult to imagine one isolated incident. Cruelty is a pattern of behaviour and yet there are no other allegations that H was mistreated in any way at all. Finally he draws my attention to the fact that although mother’s statement dramatically includes a wealth of colourful detail in relation to these allegations, there is no reference in that statement to her being dragged downstairs by him, when surely there would have been, if it had happened. This is confirmation that no such incident took place.
18. It would certainly have been convenient for this allegation to be made up, because at one stroke if truthful and unvarnished it shows not only father’s capability of treating his wife with violence but his potential for cruelty, this being an application for contact, with the daughter, which if found true would have severe implications for the future. Nobody knows what did or did not happen behind the closed doors of that matrimonial home, nobody else can give any evidence about it. On a balance of probabilities I have come to the conclusion it did not happen, and my finding in relation to paragraph 3 and 4 is accordingly.”
The next incident alleged by the mother took place in March 2001 and was described by the judge as “the bag incident”. The father had a bag which was padlocked. He refused to tell the mother what was in it. The mother was able to open it and found what in her written evidence she describes as “tablets, oils, packets of powder, dirty books and other various paraphernalia” One of the bottles of tablets was labelled “Midnight” and the tablets were to be taken half an hour before sex. The mother told her aunt. A few days later, she says she confronted the father, with the result that he assaulted her. She says he slapped and pushed her, causing her to bang her head against a door. He then threw her onto the floor. She says she was afraid for her life. She was bruised. She ran downstairs, picked up H and went to her mother’s house. She told her mother about the medication and the whole family became involved. The father was made to show the contents of the bag to the family, and her brother confiscated the contents.
The father’s case was that the bag was a figment of the mother’s imagination, and did not exist. The assault she described had not taken place. The judge rejected that explanation. The bag did exist. The judge said: -
“20. ….I think what was in it was nobody else’s business but father’s, but mother’s family, who had seen to it that father had his hair cut and dressed appropriately, were no respecters of his separate property and I believe they did have a discussion about how to deal with this……
21. …. when mother says she confronted father with the contents of the bag I can imagine his indignity and his embarrassment and I believe there may have been some incident of violence resulting from that, although the version of events which mother gives I believe has been exaggerated. It may be in his hurt and his humiliation and provocation he slapped her, but I am not prepared to go beyond that. So in connection with the relevant paragraphs of the schedule, paragraphs 5 and 6, I merely find that the applicant slapped the respondent in the context of her discovering the bag to him, but it will be apparent from the fact that I found the way I have in the first two items that this sadly is a case where I am satisfied both parties are lying where it suits them.”
The judge then turned to the events of 13 June 2001. On this issue, the judge was not restricted to the conflicting accounts of the parties. He had the hospital records relating to the treatment which the mother had received later that day. We do not have the records in our papers, but the judge’s summary suffices. He recorded: -
“23. It may be useful, when looking at this allegation, to look at the end first because the only hard objective independent evidence I have in this case at all comes from the hospital record, which is to be found at E1 and following pages in the bundle. There can be no doubt about it that mother was admitted to Bradford Hospital NHS Trust at 2.37 pm on the afternoon of the 13th June. At that time she was fully conscious, there was a large periorbital haematoma, that is to say bruising, around the left eye. She was tender on the left zygoma, the jaw bone, beneath the orbit of the eye; there were lumps over the occipital scalp, she was tender on the upper back and there was bruising and tenderness to the proximal interphalangeal joint of the left little finger. There were x-rays carried out not only to that little finger but also to the face, which suggests significant injuries consistent with the possibility of there being some underlying structural bony damage. In fact there were no bony injuries revealed by the facial x-rays but there was a fracture to the middle phalanx of the left little finger. It was strapped to its neighbour, she was prescribed pain killers and invited back next week, when I think really no further complications except for residual bruising were apparent. So on any view by 2.40 on the afternoon of the day in question mother was presenting with significant multiple injuries involving her face, head and her little finger. Fortunately with a small amount of treatment a full recovery has been achieved. ”
The judge then records the mother’s account in the following terms: -
“24. How were those injuries caused? It is her account that she got up, as she did every morning, to prepare her husband’s breakfast, to make his chapattis for his lunch. When father got up he was chuntering about her brother using bad language and she told him not to swear when referring to her brother, whereupon he fell into a rage and began a sustained assault upon her. Her account of this is at paragraph 13, page C19 in the statement. She says “He slapped me hard, initially to the face, which caused me to fall to the floor. He then grabbed my hair and dragged me from one room to another. I was screaming. He pushed H to one side, who was trying to intervene on my behalf. He then straddled me, took his shoe off and started to hit me about my head and face. He then, planning to hit her so that there would be no further sign of it, forced her dress up or down and beat her upon the back with his shoe. She was begging and pleading with him to stop, “and at the same time he was pulling my hair and punching me around the head with his free hand.” That was no doubt, if true, a sustained and extremely unpleasant assault, although there is no reason to suppose that mother was in fear of her life or anything like that.”
The judge then records the father’s account:
“25. This did not happen, the injuries that were caused to mother were not caused by me. I say again I did not lay a hand upon my wife during our marriage. I got up that morning, there was nothing remarkable about it. As I recall it, mother, who did not always prepare my breakfast, was that day in bed in her separate bedroom, and I left for work at 9.30 or thereabouts. The family business was not far away from where we lived so I walked there. I heard nothing of any difficulty until three hours later when T, my brother, came to my work place to tell me that there was trouble involving the family and that there had been a fight involving my wife. He says that he did not immediately down tools and take advantage of T’s having transport to go to the house, that he walked there in his own time to see what was happening. He found the door locked and nobody there.”
There were aspects of the mother’s account which concerned the judge, not least the delay in getting her to hospital. There is no doubt that other members of her family became involved, and they gave evidence to the judge of the mother’s condition. The father’s case, in the event, was that the mother had been assaulted by an otherwise unidentified boyfriend. The judge rejected that suggestion. He concluded: -
“29. In the end I am not satisfied that mother, together with various members of her family from who I have heard, have dreamt this up out of thin air. Although they are, as I have described, sophisticated and resourceful, I do not believe they have come here to blame father for something that he did not do. It may be after on any view an extremely frustrating and a humiliating experience in this country, and I have read his statement and it is part of his evidence in chief as to the autocratic and domineering way that he was treated, his patience finally snapped that morning, and I believe that he did beat mother. Although the assault caused the injuries which are described in the medical record, there has been some further exaggeration on the part of the mother as to her life being in jeopardy and so on. This was just an ugly and sustained assault for which, on a balance of probabilities, I find he is responsible. I may of course be quite wrong. I suffer from a dearth of evidence in this case but it is more likely than not that when I look at the damage to mother’s face, head and finger as described in the hospital record I am looking at damage which I believe he has caused – put into its context of months of an impossible marriage and a good deal of provocation – nevertheless it is more likely than not that he was to blame for her injuries.
30. So in relation to the relevant paragraphs of the schedule I am satisfied, paragraph 7, that he slapped her on the face; I am satisfied he dragged her by the hair along the floor, paragraph 8; I am satisfied he beat her about the head and face with his shoe and on the back, paragraph 9 and 10; paragraph 11 seems to add nothing, nor paragraph 12; paragraph 13, something happened during the assault to cause a small bone in one of the fingers of her hand to be fractured, possibly in the fall. I am not satisfied there were any threats to kill, paragraph 14.
31. After the incident was over, mother says that she was made to swear upon the Koran that she would tell no-one of this incident. That has the ring of truth about it. I think father was instantly ashamed at what he had done and did not want it to go any further, showing proper remorse after losing his temper and control. Of course, mother did, I am not sure whether she is in fact a follower of Islam, I notice that she did not swear upon the Koran although there are reasons for that, she elected to affirm. Whether it be that she was so distressed that she put her own position above her religious duty, nevertheless she immediately broke that promise, told her family, and I do not need to detail the evidence from her aunt or her brother or her mother, which was broadly supportive of mother’s in that regard. Of course none of them saw the incident but they each described mother’s accusation as to who was responsible, and aunt in particular imitated the gesture of the applicant, being contrite, head cast down, hands put together, which is very much the posture that he has taken up throughout this case. When the allegation was put to him he did not try to brazen it out or insist that somebody else was responsible, he had nothing to add or explain, and that weighs with me in coming to the conclusion that sadly he did behave in most of the ways that are alleged on that particular day.
32. Whether or not two years later that should deprive him of all contact or any contact with his daughter is a very moot point for another day with the benefit of a CAFCASS officer’s report upon all the circumstances, including the findings as I have found them. I am going to say no more. ”
Events after the finding of fact hearing
Having made his findings of fact, the judge directed the production of a transcript of his judgment at public expense, and gave the parties permission to instruct a consultant psychologist, Dr. Ali to prepare a report, on a joint letter of instruction, relating to (a) the mother’s inability to cope with direct or indirect contact; and (b) the father’s response to the findings. The report was to be filed and served by 30 September 2003.
Unfortunately, and for reasons which are not explained, the judge’s judgment was not transcribed and shown to Dr. Ali before she wrote her report. On 22 January 2004 the judge adjourned the review, extended the time for Dr Ali to produce her report to 30 January 2004. He also repeated his order for a transcript, and directed the CRO, Mrs Kilner, to file a further report when the transcript had been obtained and approved.
Dr. Ali had in fact reported on 20 January 2004. Unfortunately, however, not only had she not received the transcript of the judge’s findings; she had also not been able to interview the father, who by this time was living in Scotland. Her report, which was based on the mother’s account, concluded that the symptoms which Dr. Ali observed were consistent with a person suffering from Post Traumatic Stress Disorder (PTSD). At paragraph 4.1 and 4.2 she says:
“(The mother) has suffered from intrusive thoughts and images of being verbally humiliated and physically abused by her husband. These occurred without any cue or reminder for the first few weeks following her removal from her marital home. Since then they have reduced in frequency and intensity and are only triggered by cues such as conversations about her experiences. She often experiences flashbacks if she watches television scenes similar to her experiences. She is still bothered by intrusive images of the look in (the father’s) eyes whilst he was assaulting her.
(The mother) continues to feel tense and anxious. She becomes easily upset and aroused and feels that her life had been destroyed. She sometimes experiences flashbacks and feels that she is reliving her experiences. She is aware that her heart starts pounding uncontrollably and she feels agitated and upset when reminded of her experiences. These symptoms are now less in their intensity and frequency than initially, but have not fully resolved. The worry that her daughter is going to be allowed contact whether direct or indirect with her father has exacerbated her agitation.”
In the paragraphs of her report under the heading “Opinion” Dr Ali concludes:
“From (the mother)’s account, it appears that she was under enormous psychological stress at the time she was living with (the father). As a direct result of her situation within the marriage, (the mother) has suffered from symptoms of PTSD, which are highlighted in appendix A. She continues to feel anxious in relatively minor situations. Her symptoms are not as intense as initially but continue to affect her for example she is better on some days but if she needs to deal with legal issues relating to the contact order she is anxious and is unable to sleep for days beforehand.
In addition, she suffers from mild symptoms of depression although she does not qualify as suffering from clinical depression. Her low moods are accompanied by anxiety and a tendency to ruminate excessively about the consequences on her life and her daughter’s if a contact order is made. She felt concerned about her daughter’s welfare as she felt H was a happier child now well cared for by her extended family and feared that contact with her father would disrupt the stability she had gained since they separated from (the father).
(The mother) is extremely worried about how she will react if (the father) has contact with H. Given her own experiences while living with him she inevitably holds a deep mistrust of his motives and feels that his attempt to have contact is merely a way of gaining permanent residence. She feels agitated and traumatised at the thought of attending court to face him in any way and at present feels tremendously vulnerable and lacking the capacity to cope with the stress of a contact order in favour of (the father).
However, more importantly, she is terrified about (the father) taking his frustrations out on her daughter, as her belief is that when things do not go his way, he is abusive towards those closest to him. Research suggests that there is strong likelihood that men who are physically abusive will become violent in a new relationship and that they often use non-violent tactics that can harm the children. This is a deep concern for (the mother) that either (the father) will expose H to violent situations given that he did not seek to protect her when he allegedly abused her mother or that he will be violent towards his daughter. (The father)’s contact with H will have a deleterious effect on (the mother)’s mental health by exacerbating her current symptoms of anxiety and depression therefore impacting on her ability to care for her daughter.
In conclusion, (the mother) is emotionally very vulnerable and there is a danger of her mental health deteriorating into developing a clinically depressive state if her stress levels are not controlled. In my opinion a direct or indirect order would be psychologically damaging for (the mother), as she no longer has the capacity to cope with any further stress.”
Having stated that she was unable to address the father’s response to the findings, the final two paragraphs of her report read: -
“The abuse of women has an impact on many aspects of their lives, including their psychological well-being, self-esteem, bodily integrity, public participation, autonomy, and the well-being of their children. Current research suggests that victims experience a variety of negative mental health effects from physical assault, including, but not limited to, post-traumatic stress symptoms.
It is my opinion that (the mother) has suffered from symptoms of PTSD and depression following her experiences within the marriage. I am also of the opinion that experiences have created a vulnerability in her, which will cause further psychological distress if a contact order is made in respect of her daughter at the present time. Her daughter appears to be well cared for and is the focus of both her and the immediate family’s life. If the situation was to change and she had to allow H to have contact with her father, I believe it will have a significant negative impact on her emotional and physical health, which will then impact on her ability to be a good enough mother to her daughter.”
The hearing before the judge on 27 January 2005
This was an important hearing, which was meant to determine whether or not there should be contact, and if so, what form contact should take. Both Dr Ali and the CRO gave evidence. By this time, Dr Ali had read the judge’s judgment of 24 June 2003. She readily acknowledged that she had not had the opportunity to read the judge’s findings prior to writing her report. However, she maintained her clinical judgment that the mother was suffering from PTSD. That, she said, depended on her assessment of the mother’s perception of her experiences. The judge put the point to her fair and square: -
“Q. On the basis that you may have been instructed to carry out an examination of (the mother), you were entitled to take what she told you as being accurate and truthful, whereas my findings of fact include findings that mother was extremely resourceful, utterly hostile to father, exaggerating and deceitful and manipulative, but that does not make any difference to the way in which you have concluded your report?
A. Even those sort of attributes in a personality, fair enough they are there but the way she reacts to a situation, it may be because she is deceitful, it may be she is hostile, but she has reacted quite emotionally to her situation, her marriage and everything that went on. Her reactions are still quite severe. It may be because she is hostile to her estranged husband but nevertheless she has developed symptoms which are as a result of being in a marriage, you know, regardless of the fact that she may have been deceitful and resourceful, but she was in a marriage that maybe she did not want to be in any longer and it did create a lot of emotional upheaval in her and therefore a sort of possessiveness towards her daughter and perhaps her perception of wanting to protect her daughter from somebody who she perceived as being hostile to her.”
Dr. Ali told the judge that, in the light of the unfortunate sequence of events surrounding her instruction in the case, she no longer felt she was the appropriate person to make an assessment of the father. That said, however, she stuck firmly to her opinion that the mother’s mental health would suffer quite significantly if an order for contact were made. She did this in the course of an exchange during which counsel then acting for the mother asked whether contact, if ordered, would affect the mother’s parenting in any way, and so in turn affect the child. The judge intervened: -
“Judge Cockroft:
I do not think that is an improper question, clearly. I am just thinking, I have been doing these cases for fifteen years now and I would hope I am able to assess the adverse effects upon a child of any contact being ordered against the wishes of the main carer and main parent. Did you feel able to comment on that doctor?
A. I do believe that her mental health will suffer quite significantly if this order is made.
Q. Mother’s?
A. Mother’s. I do feel that that is the case.
Q. I think you were outside court, of course, when the matter was briefly opened and it was then made clear, you should have the opportunity of knowing this, that there is no question of contact being unsupervised and it is going to be happening, if it happens at all, infrequently, in the most restricted of circumstances, by way of an experiment before the idea that father and daughter should leave the rests of their lives, effectively, without knowing each other. Does that affect what you say might be the reaction of mother?
A. I would say that she is going to suffer quite significantly but if that was an order that was made, for supervised access, I think she would have to be encouraged to have support. I know she has been having counselling before all this thing was sort of brought to court again, she was actually doing quite well in counselling and I think one of the things that has set her back is the though of having to have some sort of contact again. So if that is an order that you will make it would need for her to have some sort of supportive counselling or therapy in place for her to be able really manage her distress so it does not impact on H. As you say, the welfare of H is the most paramount here and it would need to be managed in a way that H does not have to sort of see her mother in a state of distress every time she has to go for access.
Q. What I meant to say was does it make any difference to your answer if you now know that the only contact which is being contemplated is for several hours, once every few months.
A. It makes a difference in the sense that –
Q. Under the closest supervision.
A. Yes the distress will be a lot less than I anticipated if it was to be sort of regular contact unsupervised.”
The judge made a number of other interventions in the evidence of Dr. Ali. Having agreed with Dr. Ali that simply being in a marriage she did not want to be in could lead to a huge level of distress on the mother’s part, the judge commented: -
… I am coming to the conclusion, I mean there is no criticism of the doctor, that really she is unlikely to be able to help me further on the issue which is now before the court, which is what is H’s best interests, because we know that contact is often ordered because it is deemed to be desirable, despite a mother’s hostility and therefore despite the fact that it is going to cause the mother distress, so even if Dr Bhatti Ali were entirely right on what she perceived, even where it is inconsistent with my findings, I do not think it bears on what is best for H.”
The second report and oral evidence of the CRO
Mrs. Kilner had produced a second report dated 15 July 2004. Several issues stand out from this report. The first is contained in the opening paragraph.
“When (the father) came to my office he appeared to be under the impression that the Finding of Fact Hearing had exonerated him on any blame for violence towards the mother. He stated that the Findings had not been properly explained to him at the time.”
Mrs Kilner in her report made it absolutely clear that in conversation with her, the father did not acknowledge that he had injured the mother. She recorded her conversations with the mother. She described her conversation with H, and recorded H telling her that her father had hit her mother and cut her eye. H said she remembered, and she was there. She said that sometimes her mother was upset and cried and that she did not know why. Mrs. Kilner’s observations of the mother accorded with those of Dr. Ali.
Mrs. Kilner cited from the Sturge / Glaser report referred to in Re L, and published at [2001] 30 Fam Law 615. She identified seven of the factors which the doctors had asserted were necessary for contact to take place. In paragraph 17 of her report she stated:
“17. The court is aware of the views of Drs Sturge and Glaser on violence within the family and its effects on children and their carers. I shall quote from them: -
Domestic violence involves a very serious and significant failure in parenting – failure to protect the child’s carer and failure to protect the child emotionally (and in some cases physically – which meets any definition of child abuse). Without the following we would see the balance of advantage and disadvantage as tipping against contact: -
(a) Some (preferably full) acknowledgement of the violence.
(b) Some acceptance (preferably full if appropriate i.e. the sole instigator of violence) of responsibility for that violence.
(c) Full acceptance of the inappropriateness of the violence particularly in respect of the domestic and parenting context and the likely ill effects on the child.
(d) A genuine interest in the child’s welfare and full commitment to the child.
(e) A wish to make reparation to the child and work towards the child recognising the inappropriateness of the violence and the attitude to and treatment of the mother and helping the child to develop appropriate values and attitudes.
(f) An expression of regret and the showing of some understanding of the impact of their behaviour on the ex-partner in the past and currently.
(g) Indication that the parent seeking contact can reliably sustain contact in all senses.”
Mrs. Kilner commented:
“(The father) did not meet any of the above when I first met him in 2002 shortly after the events and he is, if anything, even more in denial now. He swings from denying completely that he injured (the mother), or occasionally says that he injured her accidentally but that the responsibility for that lies with her. He does not acknowledge, nor try to understand, the impact either on the mother or on H.
H has no relationship with her father and no warm memory whatsoever of him. He was part of the family for a very short time. She remembers the violence her father perpetrated against her mother during that time, and she also says that she remembers that he was violent to her.
The mother is making a good job of parenting H. In spite of her anxiety, she tries hard not to let H be affected. H’s security lies with her mother and any threat to her mother’s well being is also a threat to H’s.
This matter has been ongoing for two years, during which time the mother has not been free to rebuild her life. Every court hearing revives the memory of the violence for her. Dr Bhatti-Ali comments on the mother’s post-traumatic stress disorder, her vulnerability, and the possible impact that an order for direct or indirect contact would have on the mother’s physical and emotional health, and her ability to care for H. It is imperative that this matter is finally decided so that mother and child can continue to live a secure and settled life together, within their family.
Balancing carefully the usual advantages against the disadvantages of contact for H, I am of the opinion that the disadvantages far outweigh any advantage. In these circumstances, and in H’s best interests, I have no hesitation in recommending an Order for No Contact.”
On any view that was a powerful and well reasoned conclusion. In her oral evidence on 27 January 2005, Mrs. Kilner stood her ground firmly, courteously and, in my judgment, correctly. A number of extracts from her oral evidence warrant repetition. She pointed out to the judge that it was she who had asked for findings of fact. She had been through the transcript with both parents. In relation to the father she said: -
“A. And have to say I hoped that the father would accept what your Honour had found but …..
Q. Well it seems neither parent does.
A. That is right and because the father is the person applying for contact, H’s father, natural father in this, I was hoping against hope that he took responsibility for what your Honour describes as the violence that he perpetrated and that I could then look at an assessment of what he felt the effect on H was of witnessing the assault, how he might be able to empathise with her and how it would be for her seeing her mother beaten and how he might want to change and look at how he could behave differently if he were in situations of stress, but I am afraid, your Honour, he, apart from blaming me, he blamed anyone but himself and even said that your Honour had it wrong at one stage. So that disappointed me greatly, your Honour, because it is difficult to know where to go from there because H is in a position of having of having been witness to the violence –
Q. But I did not say so, did I, in my transcript?
A. I think you did somewhere, your Honour, I think so.”
The judge having been reminded that H had indeed been present on 13 June 2001, the following significant exchange occurs which is lengthy, but which is worth setting out in full, as it explains the judge’s subsequent course of conduct : -
“Judge Cockroft:
No, I should have stated it but I think you are entitled to point out that H was obviously there when the trouble started and there is no reference either way to what happened to her afterwards. Yes, right, thank you. But I know what might happen in an ideal world, Mrs Kilner, I mean in an ideal world there should never have been such an incident at all. Once regrettably there has been, it should be faced up to and acknowledged –
A. Absolutely, your Honour, particular –
Q. But this was three and a half years ago.
A. It was your Honour.
Q. And what I have to decide now, and it is a very difficult decision, is whether the link between H and her father should effectively be broken for all time as a result of an attack which I found came after months of unreasonable behaviour by mother and provocation by her, of which father was immediately remorseful, and I do not know whether he had her swear on the Koran that she would not tell anyone because of the shame of that incident, whether that assault, and really little else, should stand in the way of an attempt to build some relationship between father and daughter here.
A. I think your Honour, with the greatest of respect I would have to say that I cannot accept as a professional that any amount of unhappiness and provocation justifies an assault on a woman.
Q. No it does not justify it.
A. So that is my basis your Honour. And in terms of remorse, my own experience of (the father) has not been one of a remorseful man, in fact he consistently says he didn’t do it and blames other people, he blames people I have never heard of, he blames his mother, even obtusely blames yourself, and so that has been my experience of him, your Honour, I can only tell you what that has been and I have seen him on more than once occasion. I do take your point very seriously about the future for H and the seriousness of even contemplating that a child should not see her father who does not live with her, that is something I take very seriously your Honour, but I come back … there are lots of strands to this and one of them is that as well as H’s experience of that incident, H’s mother is her primary carer and I have read the account your Honour gave in the judgment about the assault and one of the things that really has been mentioned, and I think it is relevant, is that part of the assault took place with a shoe and I am sure your Honour will be aware in the Asian culture using a shoe as well as other forms of assaults, not to put too fine a point of it, is saying to the person on the receiving end, as one of my colleagues put it, I will paraphrase that, but one of my own Asian colleagues who I followed this up with said “In our culture we would not hit a dog with a shoe, it is like saying you are not worth even being like the excrement on my shoe.” So I think that is –
Q. That very much mirrors the attitude that I found mother displayed towards father so I do not know how that takes us any further.
A. Very well your Honour. But I think the way it takes me further is that in my second inquiries with (the father), he continued to denigrate mother, the child’s primary carer, and to criticise her care of the child, and taken alongside not accepting responsibility for the violence that gives me great concern, your Honour. How would it be for H if she was seeing this man who is her father if he continues to do this and she lives with her mother, who cares for her all the time, the conflict for her in this, combined with the distress of mother, which I believe would be there, which has been evident all along. And I am concerned how that would be for H and also how would her father deal with her when the chips were down. She is six now, little girls of six tend to get more difficult to deal with and as they grow up they can become quite mouthy and challenging and if he cannot take responsibility for his actions in dealing with her carer, how will he deal with her, your Honour?
Q. I suppose the answer to that is we shall never know if it is not tried, if the experiment is clearly unsuccessful it will be brought to an end, is that not so?
A. I am loathe to experiment with this child’s welfare, your Honour. It concerns me given … If father had come to my office saying, “I heard what the judge said, I did do it and I regret it, it happened and it should not have happened and I would like to do something about it, maybe make amends to my child” I would have seen some way forward, your Honour with this, and probably at that point we would even have tried a supervised contact to assess the situation.
I think as well your Honour, although I heard what the psychologist said that she did not manage to interview (the father), I did, and his attitude worried me frankly. I have read criticisms of mother and I accept what your Honour is saying, and she does focus on her child when I speak to her, whereas (the father) focuses on himself.”
During her cross-examination by counsel for the father, it was put to Mrs. Kilner that the father’s failure to acknowledge his violence should not be a bar to some “experimental” contact, Mrs. Kilner replied:
“A. We do not know what the future holds, your Honour, but we know how he behaved in the past and my fears are for H and her carer, how does her carer deal with it in a way that H is not in conflict, emotional conflict about this contact, and how does father portray mother to H, how does father deal with H if she is quite challenging for him?
Judge Cockroft:
But is this not ultimately to argue, Mrs Kilner, that in a case where, maybe for good reason, mother is irredeemably hostile to contact, contact should not take place?
A. No your Honour I would not argue that.
Q. Does that not cut the court out from the decision-making process altogether?
A. I would say not, your Honour. I can count on maybe two fingers the cases where I have made an assessment that contact was inappropriate, and I deal with hostile parents all the time.”
It was also put to Mrs. Kilner in cross-examination that even if the father had admitted responsibility for the assaults, “we would still be left with the ….same mother with the same feelings and emotions”. This led Mrs. Kilner, in her answer, back to the Sturge / Glaser report:-
“A. May I just explain, your Honour, when we are talking about acceptance of a person’s behaviour, I am talking about in the context of wanting to change and do things differently and if a person who wants contact with a child cannot see that maybe dealing with a situation differently would help, then I find that very difficult; the acceptance leads to change. And if this man is saying “I didn’t do it, I don’t want to change because I didn’t do it” in the middle of all this is a little girl who may be put in a situation where father behaves in a similar way again. That is my concern, your Honour. I think your Honour I have laid it out in the comments of Drs Sturge and on Glaser on page 5 of my report dated 15th July 2004 and –
Q. Your Honour that is at page 29 –
Judge Cockroft: Yes I have it open in front of me.
A. Even an express of regret your Honour, would have been somewhere to start.”
During the cross-examination of Mrs. Kilner by counsel for the mother, the judge interrupts to comment on the extract from the Sturge / Glaser report contained in Mrs Kilner’s report. It has to be said that his attitude is dismissive. He says:
“Well I can see these factors; this is not a judicial announcement of the Court of Appeal, is it? It is nothing more than common sense, but I am bound to say, Miss McFadden, what is equally if not more significant in my judgment is the months of cruelty that led up to that loss of temper on the one occasion, which no one seems to have focused much upon. But I take your point, I can see there are some paragraphs of this learned text and it is obvious that domestic violence, even when perpetrated on a partner and where the child concerned is very young is nevertheless an important factor.
Miss McFadden: Your Honour I believe that to some extent the Court of Appeal have taken this research into effect in reaching judgments, and in particular that the courts would expect a violent party to change his behaviour and demonstrate that he is a fit person to have contact, so –
Judge Cockroft: Having heard all the evidence in the case, having spent two days coming to an assessment of this marriage I can say now I came to the conclusion that father was not typically a violent partner.”
When Mrs. Kilner says in answer to counsel that she had not found any evidence that H was not very well cared or and was doing well at school and so forth, the judge intervenes to say: -
“I entirely accept that, with perhaps one reservation that if H is vividly recalling her father’s cruelty it is because she is assiduously reminded of it for mother’s own purposes.”
I have not found anything in the evidence which suggests that the mother behaved in this way.
At the end of her cross examination, the judge raises with Mrs. Kilner the possibility of a Family Assistance order (FAO) under CA 1989 section 16. Mrs. Kilner asks what the purpose of the FAO would be. The judge explains: -
“Well you have made it clear that in your view if even the most minimal observed or supervised contact were ordered there is, in your judgment, a risk that mother’s mental health would be adversely affected and therefore H’s. If the view were taken that it might be in H’s best interests for her to have some limited contact with her father, I would have thought that there is a pretty obvious amount of work there to be done to lubricate the wheels, by way of explanation to H why the court took the view it did, supposing that was the order of the court, and how mother can best approach such an order, both in terms of her own behaviour and in terms of encouraging daughter. I do not think I can spell it out more clearly than that, it is just a thought that occurred to me.
A. Right your Honour. Were the court to order that, your Honour, I think, I heard what the doctor said too, I think mother might need maybe a psychologist or a counsellor to do some very in-depth work with her, work that I would not see that I was capable of doing. I would obviously be able to prepare her for what the court wants to happen and explain matters to H, and provide a review at an appropriate point. But with regard to her emotional health, I think it would need someone who was differently qualified from myself your Honour.”
The judge did not give a judgment on 27 January 2005. However, shortly before the lunch adjournment, he said to Mrs. Kilner:
“….. I am grateful to you for your evidence, irrespective of the view that I may come to in the end. I hope I have an open mind but having vividly formed a picture of what led up to the lamentable events of June I do not think it would remotely useful for a psychologist or any other specialist to be focusing upon that. What is important now, three and a half years later, would be preparing father for an experience strange to him, that is to say seeing and looking after a six year old daughter, and preparing mother for the consequences of such contact. Any attempt to harp back three and a half years to what happened in the most extenuating of circumstances in June of 2001 in my judgment would be as futile as it would be unhelpful. I say that before we break in order that you might add that into the balance here.
We have talked about an experiment and I am conscious that one does not experiment with a child’s welfare if the risk is disproportionate to the benefit but we all, with respect, I think ought to be approaching this case as every case on the basis that contact will be pressed for by the court, save in the most exceptional circumstances. In fifteen years I have denied a father contact who was taking drugs whilst the child was with him, I denied contact in cases of persistent and serious violence. This is not a violent man, it is a man who was driven to lose control wholly exceptionally in circumstances that |I have outlined, for which mother is principally responsible. So I am not going to say that either that event, or his continuing attitude to it, make contact something that cannot be addressed here on the face of it. What everyone seems to overlook is the long term possible disadvantage to a young child in never knowing her father. That is why, I suspect, the courts do strive, and now ever more vigorously than before, to set up contact in the teeth of hostility often, where it is thought nevertheless that in the long term there may be an advantage to the child.
If it is clearly not working it will not be persisted in. That is what it looks like to me, and of course I have to hear the evidence of the parents, if mother wishes to pursue her claim that there should be no contact and I will do so being prepared to alter my views as I have presently stated them. But it will be naïve to suppose I have not got a very full grasp of this marriage from the evidence that I heard over two days, from both sides.”
In the light of these remarks, neither parent gave evidence and the outcome of the hearing on 27 January 2005 was that the judge directed a further report from Mrs. Kilner “dealing with the outcome of work which she will carry out with each parent and with H and her recommendations arising therefrom as to what form contact should take, if it is at all feasible”. The report was to be filed by 4 May 2005 and the father’s application was adjourned to a further hearing on 9 May 2005. The application was “listed for review with a time estimate of one hour”. Mrs. Kilner was directed to attend.
Mrs. Kilner’s third report
Mrs. Kilner’s third report is dated 28 April 2005. She duly undertook preparatory work with H, which she describes. Her summary of her interview with the mother is significant: -
“(The mother) complied fully with the work I undertook with H and was accepting of it. She looked tired and drawn. She appeared ‘flat’ and lacking in energy. When I discussed the Court proceedings with her it became clear that she feels browbeaten by the process and resigned to it. She wants and needs it to come to a conclusion as soon as possible. She feels that she has taken the right action in protecting her child, but now has no emotional resources left.
The mother agreed to my request that H take the sheets of photographs home with her.”
The father maintained his denial of violence to the mother. Having described her interview with him, Mrs. Kilner commented: -
“(The father’s) stance has not changed. He has little understanding of any impact on H of the past history, and does not acknowledge his part of it. Indeed, he now says that he cannot remember. He appears to have a very selective memory, and continues to be unable or unwilling to recognise that he, for whatever reason, assaulted H’s mother. His responses as to how he would deal with H’s possibly awkward questions are inadequate. He continues to show no respect for H’s mother and openly blames her for the marriage breakdown and the assault. I remain fearful about any response he may have to any un-co-operative behaviour from H or her mother were direct contact to be ordered.
Throughout the course of my enquiries with (the father) he has never once enquired as to H’s progress and welfare. This is surprising when he purports to have her best interests at heart.”
Mrs. Kilner’s recommendation was expressed in the following paragraphs: -
“H has no attachment to her father. He knew her for five months. She has not seen him since the day of the violent incident when the marriage ended and (the father) was prevented from returning to the matrimonial home. H’s security lies with her mother, who is her primary carer. The mother has shown consistent care and concern for H, and a clear understanding of her needs. She is, though, worn down by the Court process. She needs the space to be able to settle down and recover her emotional health without it continuing to drag on, for H’s and her own sake.
For all the reasons stated above and in my previous report dated 15 July 2004, I consider direct contact is not in H’s best interests.
H clearly needs some knowledge of her father and his history, the paternal family, and of her place in it. I would suggest that the Court order that a life storybook is prepared so that H has an understanding of her paternal family. I am available to assist H’s parents with preparing one, and in explaining it to H. I am satisfied that The mother would allow H to have this and to keep it for the future.
I would also suggest that (the father) be provided with a school report and photograph of H, on an annual basis. If he were able to reply to that communication, say by sending H a card, The mother could add the cards to the life storybook each year.”
The judgment under appeal
Mrs. Kilner was present on 9 May 2005, and gave oral evidence to the judge, although we do not have a transcript of her evidence. Neither of the parents gave evidence. The judge heard submissions from their respective counsel, and gave judgment. The result was the order set out at paragraph 1 above.
The judge begins by stating that he needs to explain why it is “apparently contrary to much of the received wisdom” he has come to the conclusion that there should be “an attempted sequence of direct supervised contact”. Paragraphs 2 to 5 of the judgment need to be cited in full: -
“2. My involvement in this case has a very long history and in order to understand the order that I am about to make it is really necessary to look back through that history. First and foremost, it will be essential for anyone considering this case further to have sight of the transcript of my finding of fact which followed a two day hearing concluding on 24th June of 2003, - the transcript is 13½ pages long – what I found has been misunderstood by almost everybody who has since read it. I am not going to go over all that old ground which is set out in the transcript of my judgment. It was a finding of fact hearing which led from the breakdown of this marriage following upon father’s application for contact, and no doubt mother felt that, if I came to certain conclusions as a result of that hearing, it would be the end of the matter with his daughter H, born on 8th April 1999.
3. Each party seems, wrongly, to have believed that they were effectively vindicated by my findings. I emphasise that I dismissed as untruth as many allegations made by mother as I found proved. I found both parties had lied to me. What preceded the final incident of serious violence as a tragically loveless marriage in which mother treated father throughout with contempt and arrogance and her family were also involved in that process of humiliation of father, a stranger to this country, whereas she was a relatively sophisticated young woman, and all this should have been self-evident from my finding of fact and the transcript of the judgment.
4. In the final analysis, therefore, but for one minor incident in March of 2001, there was one serious incident of assault after extreme provocation, mother having commenced a relationship with a boyfriend during the course of her marriage to father, and, as I say, father having been treated in, I regard, as an almost inhuman way.
5. The sad fact is that that serious incident of violence has been seized by mother and by the Cafcass officer and by a psychologist who was once involved as being the cause of the breakdown of this marriage; it was nothing of the sort. It was one incident out of character by a man who is not given to outbursts of temper and, generally speaking, save under extreme provocation, has little difficulty in controlling himself. He has throughout the many proceedings in which I have been involved presented as an abject figure, far from being in any way “cocky” which is the word that Mrs Kilner, the Cafcass officer, used of him in one context.”
In the course of reciting the history, the judge refers to Mrs. Kilner in paragraph 6 of the judgment in the following terms: -
“6. Mrs. Kilner has consistently and in good faith been unsympathetic to any contact at all, but the reality is, having acknowledged the one serious incident of violence out of context and out of character, there is no reason now, and there has not been for some time, which emphatically points to an order that there should be no contact. This is a difficulty for mother and her advisers. This is not a case where there has been a history showing a consistent tendency towards loss of temper or serious violence. This is not a case where father is a drug taker or a child abuser; and so those exceptional cases where one can say that the child cannot benefit from contact with a non-resident parent do not apply here. The starting point of the court must be that, other things being equal, there should be contact, and one looks to see what there is on a fair reading of the history of this marriage and a fair reading of my transcript, what prevents the ordinary course of events from taking place here.”
The judge’s view of the mother is made clear at the beginning of the following paragraph: -
“7. There are formidable logistical difficulties, quite apart from the objections that mother has raised and persists in, despite pretending that she is exhausted now and resigned to whatever course the court is minded to take. She is still vigorously fighting against any contact because she wants her daughter to have nothing to do with her father because she has nothing but contempt for that man and probably never had any other attitude than that.”
The judge deals with events from January 2005 in paragraph 8 of the judgment, when he says: -
“8. In January of this year the matter came before me for a final hearing but it was manifestly not ready for such at that time. Mrs Kilner’s then current report was against all contact and it seemed to me, before any such draconian step were taken, it was necessary to explore and exhaust every realistic possibility. I now have Mrs Kilner’s report, and she has given oral evidence before me in the course of this review hearing to supplement it, but that report seems to me to take as a starting point that there should be no contact and, as between no contact and some contact, Mrs Kilner comes to the conclusion now that there should be an order for indirect contact consisting of the usual exchange of photographs and school reports, albeit only on an annual basis. What I meant her to investigate was the possibility of direct contact and of course, having considered direct contact, she was free to come to the conclusion as an alternative that there should be indirect contact. So one comes to today’s hearing then without there having been much investigation of what direct contact should consist of if there should be any such. That has been resolved during the course of this morning, during which there was an adjournment for telephone conversations to be made. I will come to the details of the order in due course, but first of all I have to explain the reasons why it is that I differ from Mrs Kilner and notwithstanding the very able submissions that have been made by Mrs Cohen on behalf of the mother.”
In my judgment, this is a misrepresentation of the work Mrs. Kilner had attempted to carry out.
The judge’s reasons for disagreeing with Mrs. Kilner’s recommendation are contained in paragraph 9 of the judgment which, once again, needs to be set out in full.
“9. As I say, the starting point must be that, given that the one incident of violence, now four years old, was out of character and exceptional and after extreme provocation by mother and her family, putting therefore that on one side, there is no clear reason why the court should begin to look at this case from a starting position of making no order for contact. Therefore, this case does not fall within those exceptional cases where that is the rule. I recognise the difficulties that long delay, which is not father’s fault, have lent to this already difficult case, but it seems to me that the passage of the years itself should not now lead the court to throw up its hands helplessly and conclude that the opportunity for direct contact has been missed for all time. Courts proceed on the basis that, generally speaking, unless the contrary is clearly demonstrated, children have much to benefit from in having contact with a non-resident parent. I do not despair of a meaningful and constructive relationship developing in this case. It strikes me that, before any such despair could set in, there needs to be an experiment which has not yet been embarked upon in this case. Of course when I say “experiment” I am not, I hope, irresponsibly playing with the best interests of H, but I look at father and I see his commitment over years and I believe he loves his daughter and may have something to offer her. If it turns out not to be the case, if he has no means of relating to her, if he raises matters in the course of contact sessions which are negative towards mother, the main carer, all this will become apparent and it will be clear that this contact is going nowhere. (The father) has a difficult task which he must approach with care and sensitivity. Clearly, these two are going to start as strangers but with patience there is a relationship which might be built upon. There is no question, after all this time, and against this difficult and negative background, of introducing H unsupervised to her father, who, sadly, is a total stranger to her, without whom she has been doing perfectly well for the last few years. So any contact to be attempted must be supervised. That means to say in reality it has to take place at a local contact centre. Shipley is a possibility but the Buttershaw Family Contact Centre, I am told, may be ideal for just such a purpose as I have in mind. I have indicated that an interpreter should initially be present, though father and daughter may find they have sufficient common understanding, either in English or Punjabi, to dispense with an interpreter in due course. I am told that Lubna Kamil or Fawzia Ali should be available to perform this task. If they alternate then once every four weeks is not too great an imposition upon them. It may be that in a city as multi-cultural as Bradford other Punjabi interpreters might come forward to assist if necessary. The sessions should be supervised, at least initially, by someone whom H trusts. That someone is Mrs Kilner. I am very conscious that she and I have in good faith differed as to the issue of direct contact in this case and she approaches her task believing, no doubt, that I am wrong. If that causes a conflict of interest such that she cannot do her duty she will have to arrange for a replacement, but I have higher hopes of her than that and I believe that she should be able to put aside our differences and work wholeheartedly for the success of this contact. Mother too will need to indicate to H that, when she goes to contact, it is not with mother’s disapproval. This is a duty which has been imposed upon her by the court, in the hope that H may come to recognise her father and any opportunity to pull down that experiment for selfish purposes will soon be exposed. If the contact sessions do not work for genuine reasons then the experiment, clearly, will not be persisted in and father will have to wait, no doubt many years hence, when H has a mind of her own to seek out her father. One hopes that she will not turn against mother, as children often do in these situations, who have been deprived of knowing the non-resident parent. But I believe that, when faced with the alternative of saying today this father and this daughter are not going to see each other directly, the order of the court is an appropriate order in H’s best interests.”
In fairness to the judge, I should also set out paragraph 11 of the judgment -
“11. I am conscious that, in a short judgment under pressure, I have not stated all my reasons and views. If I need to deal with any particular aspects that I have not done I will gladly do so, but I would urge anyone reviewing this decision to look back over months of occasions when this matter has come to court and I have spoken my mind. I should say that I continue to be concerned that, although, I think, father has demonstrated his commitment many times over, he has not taken advantage of Mrs Kilner’s presence to enquire after H. It may be there is some cultural explanation for that, how it does not seem to him to be appropriate to be questioning Mrs Kilner about his daughter. I cannot, emphasise sufficiently, having made this order and kept the door open, how important it is for father to show the quality of his care and his commitment. Otherwise I shall be let down.”
The attack on the judgment
I have already identified the four elements in Miss Nelson’s attack on the judgment in paragraph 5 above, and expressed the opinion that there was force in each of them. I now need to explain why I take that view.
Miss Nelson’s first complaint is that the judge was “operating with an imperfect recollection of the findings which he himself had made”. I remind myself, when examining this allegation, that both the judgment given on 24 June 2003 and that given 9 May 2005 were extempore, and that there is, moreover, the best part of two years between them. The judge is entitled to the consideration which he seeks in paragraph 11 of the latter judgment, set out at paragraph 61 above. Miss Nelson is, however, in my judgment, legitimately entitled to complain about a number of aspects of the judgment under appeal. I start with paragraph 4 which I have set out at paragraph 56 above but which, for ease of reference, I will repeat: -
“In the final analysis, therefore, but for one minor incident in March of 2001, there was one serious incident of assault after extreme provocation, mother having commenced a relationship with a boyfriend during the course of her marriage to father, and, as I say, father having been treated in, I regard, as an almost inhuman way.”
There are several errors in this paragraph. As Miss Nelson submits, it is clear that in June 2003, the judge had found that the father slapped the mother in March 2001. It is, moreover, clear from the 24 June 2003 transcript that the judge found that it was on this occasion that the father had been sorely provoked by the mother’s behaviour. The provocation was that she had gone into the father’s padlocked personal bag, discovered the contents alleged to be drugs, pornography and pills to enhance sexual potency and had shared this knowledge with her family. It is, however, equally clear that the judge made no such finding of provocation in relation to the much more serious attack on 13 June 2001. The evidence was that the father had committed a serious and sustained violent attack upon the mother after she remonstrated with him for swearing about her brother.
Miss Nelson submitted that in May 2005 the Judge had mistakenly elided the two findings of violence into one, with the net result that he wrongly found that the father had been provoked into the far serious attack of June 2001. Miss Nelson courteously submitted that this may well have occurred because the hearing was listed for a ‘review’ only and perhaps the judge had not refreshed his memory from the bundle as thoroughly as he would have done for a fully contested hearing. However caused, she submitted that this error seriously affected the judge’s overall analysis, notably in the reasons he gave for dissenting from the expressed view of the CRO.
In my judgment, however, the matter goes much further than the error which Miss Nelson identifies. Paragraph 4 of the judgment under appeal states as a fact that the mother had commenced a relationship with a boyfriend during the course of her marriage to father. However, in the judgment of 24 June 2003, the judge had said in paragraph 14: “Whether or not there is another boyfriend waiting in the wings is again a matter of speculation”. Thus between June 2003 and May 2005 the speculative boyfriend had become a fact: yet the judge had heard no further evidence from the mother, nor was there anything in the papers to suggest that the mother was associating with another man.
The judge also refers to the father “having been treated in an almost inhuman way”. In my judgment, nothing in the evidence warrants a finding these terms. What is, however, clear, is that as time passes, the judge’s view of the parties becomes increasingly polarised, and the language he uses to describe each becomes extreme.
Two further aspects, amongst a number which I shall discuss as this judgment progresses, cause me particular anxiety. The first is the fact that in his June 2003 judgment the judge had already begun to minimize the assault by the father on 13 June 2001. He says in paragraph 29: -
“Although the assault caused the injuries which are described in the medical record, there has been some further exaggeration on the part of mother as to her life being in jeopardy and so on. This was just an ugly and sustained assault for which, on a balance of probabilities, I find he is responsible.”
Bearing fully in mind my previous caveat that this is an extempore judgment and that it may be unfair to pick out individual phrases from it, I am in no doubt at all that the judge’s use of the word “just” in paragraph 29 of the June 2003 judgment is both significant and inappropriate. By the time he came to May 2005 the assault on 13 June 2001 was something he could, as he said in paragraph 9 of his judgment “ put on one side”, despite the views in particular of Mrs. Kilner. Both in his subsequent minimisation of the 13 June 2001 assault and in his subsequent belief that it was irrelevant to the contact issue the judge was, in my judgment, plainly wrong.
The point is further compounded because the judge appears to have remained convinced in May 2005 that the father was contrite for what he had done, and that, despite failing to enquire after his daughter, he had “demonstrated his commitment many times over”. The reality was that to Mrs Kilner the father had not only maintained his denial that he had ever assaulted the mother, but had maintained his assertion, rejected by the judge, that blame must lie elsewhere. His stance had not changed when Mrs. Kilner interviewed him on 5 April 2005, for the report which she presented on 28 April 2005.
There is no suggestion by the judge that Mrs. Kilner was inaccurate in her reporting of the father’s attitude. The judge’s finding in paragraph 31 of his June 2003 judgment that the father had immediately acknowledged his responsibility for the June 2001 assault was manifestly not borne out by events. The judge had found that when he had been confronted by the family with the mother’s injuries, the father: -
“…. he did not try to brazen it out or insist that somebody else was responsible, he had nothing to add or explain, and that weighs with me in coming to the conclusion that sadly he did behave in most of the ways that are alleged on that particular day.”
The father had, of course, denied responsibility in his oral evidence before the judge, and maintained his denial to Mrs. Kilner throughout her investigation.
This appeal has loyally been conducted by counsel on the basis that since there had been no challenge to the 24 June 2003 findings, the hearing on 9 May 2005 must be judged against them. That does not, however, in my judgment, prevent Miss Nelson from complaining that a number of the findings made in June 2003 were not sustainable in May 2005, notably the finding of contrition of the part of the father, and the judge’s belief that the father had acknowledged responsibility for the June 2001 assault.
I am thus satisfied that Miss Nelson’s first ground is made out. On 9 May 2005, the judge had plainly looked at his 24 June 2003 judgment, as he quotes from its final paragraph in paragraph 2 of the judgment under appeal (see paragraph 57 above). It is, I think, most unfortunate that, having complained that “what I found has been misunderstood by almost everybody who has read it” the judge himself then appears to fall into the same trap.
Re L, the Sturge Glaser report and the CASC Guidelines
This ground is, of course, related to ground three, and the judge’s failure to address the points made by Mrs. Kilner. Its essence is that the judge failed to consider at all (1) the seriousness of the assault of 13 June 2001; (2) the attitude of the father to his behaviour; and (3) the effect which contact would be likely have on the mother and the child.
In my judgment this ground is clearly made out. In relation to it, I have to declare an interest, since I chaired CASC. The Guidelines were, however, accepted by this court in Re L and the government accepted a recommendation made by CASC that their application in the courts dealing with family cases involving domestic violence should be monitored.
Re L is a seminal decision of this court, and it is wholly unacceptable for the judge (1) to make only one incomplete and highly selective reference to it in his June 2003 judgment; and (2) to make no reference to it whatsoever in his second, unless such a reference is to be inferred from his use of the phrase “apparently contrary to much of the received wisdom” with which the judge describes the course he intends to adopt. In my judgment, the judge’s failure to follow the guidance of Re L and to have regard to the Sturge / Glaser report is all the more inexcusable because the CRO had, in her second report dated 17 July 2004 set out the principles identified in the latter, and given powerful evidence to the judge about their applicability.
It is unnecessary for present purposes to cite substantial passages from Re L. It suffices, I think, to repeat the headnote and the passage from the judgment of the President to which the judge referred in paragraph 12 of his July 2003 judgment. Re L dealt with four appeals, in each of which a judge had refused to make an order for contact in favour of a father who had been guilty of domestic violence. The headnote reads: -
“In each case the judge, having found proved the mother's allegations that the father had committed acts of domestic violence, refused the father's application for direct contact with his child or children and made an order for indirect contact.
On appeal by the father in each case –
Held, dismissing the appeals, that on a contact application in which domestic violence was alleged the court should investigate the allegations and make findings of fact on them; that, if proved, the effect of the violence on the children and on the residential carer were highly relevant factors, along with the past and present conduct of both parties and the motivation of the parent seeking contact, in considering orders for contact and their form; that in assessing the relevance of past domestic violence the ability of the offending parent to recognise the wrong he had done and to be aware of the need for change, and any steps taken to correct the deficiency in his character, were likely to be important considerations; that there was no presumption against contact simply because domestic violence was alleged or proved, although it was one factor amongst many which might offset the assumption in favour of contact when the judge carried out the balancing exercise applying the paramount welfare principle; and that, in each case, the judge's approach had been correct and he had been entitled to make the orders which he had made. (emphasis added)”
In the course of her discussion of the Sturge / Glaser report and the CASC Guidelines, the President, under a heading entitled General Comments said the following at [2001] Fam. 272H: -
“There are however a number of general comments I wish to make on the advice given to us. The family judges and justices need to have a heightened awareness of the existence of and consequences, (some long-term), on children of exposure to domestic violence between their parents or other partners. There has, perhaps, been a tendency in the past for courts not to tackle allegations of violence and to leave them in the background on the premise that they were matters affecting the adults and not relevant to issues regarding the children. The general principle that contact with the non-resident parent is in the interests of the child may sometimes have discouraged sufficient attention being paid to the adverse effects on children living in the household where violence has occurred. It may not necessarily be widely appreciated that violence to a partner involves a significant failure in parenting—failure to protect the child's carer and failure to protect the child emotionally.
In a contact or other application under section 8 of the Children Act 1989, where allegations of domestic violence are made which might have an effect on the outcome, those allegations must be adjudicated upon and found proved or not proved. It will be necessary to scrutinise such allegations which may not always be true or may be grossly exaggerated. If however there is a firm basis for finding that violence has occurred, the psychiatric advice becomes very important. There is not, however, nor should there be, any presumption that, on proof of domestic violence, the offending parent has to surmount a prima facie barrier of no contact. As a matter of principle, domestic violence of itself cannot constitute a bar to contact. It is one factor in the difficult and delicate balancing exercise of discretion. The court deals with the facts of a specific case in which the degree of violence and the seriousness of the impact on the child and on the resident parent have to be taken into account. In cases of proved domestic violence, as in cases of other proved harm or risk of harm to the child, the court has the task of weighing in the balance the seriousness of the domestic violence, the risks involved and the impact on the child against the positive factors, if any, of contact between the parent found to have been violent and the child. In this context, the ability of the offending parent to recognise his past conduct, be aware of the need to change and make genuine efforts to do so, will be likely to be an important consideration. Wall J in re M (Contact: Violent Parent) [1999] 2 FLR 321, 333 suggested that often in cases where domestic violence had been found, too little weight had been given to the need for the father to change. He suggested that the father should demonstrate that he was a fit person to exercise contact and should show a track record of proper behaviour. Assertions, without evidence to back it up, may well not be sufficient…
In expressing these views I recognise the danger of the pendulum swinging too far against contact where domestic violence has been proved. It is trite but true to say that no two child cases are exactly the same. The court always has the duty to apply section 1 of the Children Act 1989 that the welfare of the child is paramount and, in considering that welfare, to take into account all the relevant circumstances, including the advice of the medical experts as far as it is relevant and proportionate to the decision in that case. It will also be relevant in due course to take into account the impact of article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms (1953) on a decision to refuse direct contact. The propositions set out above are not, in my view, in any way inconsistent with earlier decisions on contact. The fostering of a relationship between the child and the non-resident parent has always been, and remains, of great importance…”
In my judgment, citation of this passage demonstrates clearly that the judge was wrong in his judgment in July 2003 to isolate and to rely upon the President’s reference to the risk that allegations of domestic violence may be exaggerated. It is, moreover, clear to me that it was his failure to have any regard to Re L and the Guidelines, which was responsible for the judge’s minimization of the serious assault on the mother on 13 June 2001 and which led him inappropriately to ignore the father’s violence when making is order of 9 May 2005.
The Guidelines
As to the Guidelines, they were breached in a number of respects in this case. I shall return in due course to the gross and unacceptable delay in the holding of the finding of fact hearing, and the failure to provide Dr. Ali in particular with a copy of the June 2003 judgment. For present purposes, the critical area of the Guidelines which the judge does not seem to me to have addressed appears under the heading “Matters to be considered where findings of domestic violence are made”. This section of the Guidelines requires the court to consider a number of factors, two of which are of particular relevance to the instant case namely: -
(d) the capacity of the parent seeking contact to appreciate the effect of past and future violence on the other parent and the children concerned;
(e) the attitude of the parent seeking contact to past violent conduct by that parent; and in particular whether that parent has the capacity to change and / or to behave appropriately.”
It is, I think, plain beyond peradventure that the judge in making the order of 9 May 2005 took the view that the father’s violence was irrelevant, and ignored the father’s attitude to the violence which the judge had found. As a consequence, the judge simply did not apply his mind to the father’s capacity to appreciate the effect of his violence on the mother and H. In that approach, in my judgment, he was plainly wrong.
The judge’s attitude to the evidence of Dr Ali and Mrs. Kilner
I fully accept that a tension may arise when a judge makes findings of fact which are, on their face, inconsistent with a clinical finding of PTSD. This does not, however, mean that the clinical finding can be dismissed out of hand. Dr. Ali was ineptly instructed and may herself have been inexperienced in giving evidence as an expert witness. I will return to her evidence later. What strikes me as being more serious in the instant case is the judge’s treatment of the CRO.
The CRO in this case gave the judge consistent and clear advice which plainly followed Re L, the Sturge / Glaser report and the CASC Guidelines. Of course, the judge was entitled not to follow it if it was wrong. But if he was going to take that course, he had to explain his reasons for doing so. This, in my judgment, he manifestly failed to do.
The essence of the judge’s disagreement with Mrs. Kilner is expressed by the judge in paragraph 6 of his judgment under appeal in these words: -
“Mrs. Kilner has consistently throughout and in good faith been unsympathetic to any contact at all, but the reality is, having acknowledged the one serious incident of violence out of context and out of character, there is no reason now, and there has not been for some time, which emphatically points to an order that there should be no contact.”
In my judgment, that is plainly wrong. There were a number good reasons advanced by Mrs Kilner against direct contact, which the judge simply does not address.
I am, moreover, very concerned about the way in which the judge deals with Mrs. Kilner’s evidence in the judgment under appeal. Once again making every allowance for the fact that this was an extempore judgment, it is nonetheless a travesty of both Dr Ali’s evidence and the conscientious and thorough work of the CRO in this case for the judge to make the comments he does in paragraph 5 of the judgment under appeal which I have set out at paragraph 56 above, and which I will not repeat.
I have not been able to trace the reference to the use of the word “cocky” by the CRO to which the judge refers. The nearest I get to it is paragraph 2 of Mrs. Kilner’s second report in which she says that when she first met the father in 2002, he kept his head bowed and came across as a little unsure of himself. However, when she saw him on 12 May 2004, he appeared “very confident and self-assured”. The suggestion that Mrs. Kilner “seized on” the events of 13 June 2001 for any purpose is quite unwarranted from her reports and her oral evidence on 27 January 2005, of which we have a transcript.
Equally unfortunate is the suggestion by the judge in the judgment under appeal that the mother is “pretending that she is exhausted now and resigned to whatever course the court is minded to take” whereas, he said, in truth, he said: “she is still vigorously fighting against any contact because she wants her daughter to have nothing to do with her father because she has nothing but contempt for that man and probably never had any other attitude than that.” This passage in the judgment does not derive from hearing the mother give evidence. It derives from Mrs. Kilner’s description of the mother when she met her on 23 March 2005 to discuss the work which the judge had directed on 27 January 2005. |I have set out the passage in paragraph 52 above, and will not repeat it. It was, in my judgment, quite wrong for the judge to find that the mother’s attitude was a pretence without hearing her.
As I have already recorded, Mrs. Kilner gave oral evidence to the judge on 27 January 2005. I have set out extensive extracts from the transcript. Mrs. Kilner emerges from it well: the judge does not. He has, first of all, to be reminded that H had been present and had witnessed the assault on 13 June 2001. He then repeats his misapprehension that “there had been months of unreasonable behaviour and provocation by her, of which the father was immediately remorseful”. He has to be reminded by Mrs. Kilner that she could not accept “as a professional that any amount of unhappiness and provocation justifies an assault on a woman”. Mrs. Kilner points out that the father has not been remorseful: to the contrary, “in fact he consistently blames other people”, including (obtusely) the judge. She points out the significance of the judge’s finding that the father had beaten the mother with a shoe, an issue which the judge does not address.
Mrs. Kilner maintains her stance throughout cross examination by counsel for both mother and father. She makes it quite clear that her position is not that there should be no contact in every case in which, for good reason, a mother is irredeemably hostile to contact. When counsel for the mother (Miss McFadden) attempts to take here through the factors she has identified in the Sturge / Glaser report, the judge intervenes in what can only be described as a dismissive fashion. I have set out the passage at paragraph 47 above, and will not repeat it.
The judge then intervenes in counsel’s cross-examination to make two assertions. The first is his finding that “father was not a typically violent partner” and that “if H is vividly recalling her father’s cruelty it is because she is assiduously reminded of it for mother’s purposes”. There is, in my judgment, no evidence for the latter observation, and the judge’s description of the father seems to me a demonstration of what becomes, as the case progresses, an increasingly partial view of him.
I have come to the clear conclusion that the regrettable fact of the matter is that, far from explaining his difference from Mrs Kilner, the judge approached her evidence with an entirely closed mind. He failed to grapple with the straightforward and absolutely mainstream thesis she was advancing, based as it was both on her observation of the parents and her attempt to honour the judge’s findings.
In my judgment, a reading of the papers overall, giving due weight to the fact that it was the judge who heard the evidence and saw the parties, makes it that the reality on 9 May 2005 was that the judge not only misremembered his previous findings; his embryonic view of the parents formed in June 2003 became increasingly polarised. This had occurred without the judge hearing any further evidence from either of them, and had developed into the position where the mother was deliberately lying and misrepresenting her position in order to obstruct contact, whereas the father had become the innocent victim of the of the mother’s unprincipled strategy to separate him from his child.
I am, accordingly, in no doubt at all that many of the views expressed by the judge in his May 2005 judgment are partial, distorted, and not based on the evidence. Moreover, the fact that he had closed his mind led him to fail to address Re L, and Mrs. Kilner’s reports and evidence. I am in no doubt at all the Miss Nelson’s third ground is also made out.
In my judgment, however, looking to the future, this point goes somewhat further. This appeal has been conducted on the basis that the judge’s function was to make findings of fact, and that those findings stand. I do not, however, think that the same approach can or necessarily should apply on any re-hearing. So hostile is the judgment to this mother, and so partial are the judge’s findings that I am led to the conclusion that it should be open to another judge on a re-hearing (should he or she deem it appropriate) not to be bound by the findings made by the judge. Indeed, it will be essential, if the matter proceeds to a fresh hearing, for the judge who conducts it to form his or her own view of the parties.
In addition to what I have already recorded, there are other points (by no means an exhaustive list) which lead me to this conclusion. I have already referred to the significance of the assault with a shoe, a point which the judge did not address. At one point in the January 2005 hearing the judge goes so far as to say that the mother was “principally responsible” for the father’s “wholly exceptional” loss of control. In the judge’s mind the father becomes a victim, and one who has been treated in “an almost inhuman way”. Making every allowance for the fact that it was the judge who saw and heard the parties once in July 2003, I find it hard to reconcile these observations which the evidence of Dr Ali and Mrs. Kilner.
There is another particular point which troubles me in relation to the judge’s findings about the mother. In the June 2003 judgment, in a passage I have not previously cited, the judge contrasts the parents, using the following language:
“One only needs to look at the two today to see the chasm in their culture and their background: mother with black leather trousers, a sophisticated liberated young woman, and father a peasant, unable to communicate even now in English, needing the help of an interpreter. He cuts a dejected figure.”
The judge also commented that the mother had not taken the oath on the Koran before giving evidence. Mrs. Kilner comments in her second report: -
“I discussed the Judgment with (the mother). She was upset that the fact she affirmed rather than took an oath on the Koran was interpreted as her being less devout than she describes. She was, in fact, menstruating on the day of the Hearing and was prevented from touching the Koran for that reason.
I was puzzled by the fact that the judgment referred to (the mother) wearing leather trousers, which does accord with my experience of her. She states that she was, in fact, wearing a traditional Shalwar Kameez that has black satin trousers and that she does not possess leather trousers, not would she see it as appropriate to wear them.”
The judge did not have evidence from the mother about why she had affirmed, or about her clothing. It is, however, in my judgment, likely that the judge was wrong on both points. It is always, in my view, ill-advised of a judge to comment on such matters, unless he is very sure of his ground. Here the judge plainly was not. The judge is also impliedly critical of the mother in his first judgment for breaking the promise which the father made her swear on the Koran not to tell anybody about the assault on 13 June 2001. I have set out the passage from paragraph 31 of the judgment in paragraph 30 above. To imply that a victim of such an assault is bound by any such promise is, in my judgment, plainly wrong, and to suggest that in telling her family about the assault the mother “put her own position above her religious duty” is unjust.
Furthermore, the judge had no evidence to lead him to the view that the mother was inculcating into H false memories of her father. The professional evidence was directly to the contrary, but the judge chose to ignore it because it did not fit with his perception of the mother. If the judge was wrong about the mother, he has done her a severe injustice. In my judgment, therefore, any judge on a re-hearing should feel free to re-investigate where necessary of appropriate.
The evidence of Dr Ali
I will deal with the incompetent manner in which Dr. Ali came to be instructed when I address the chronology of the case. She had not, of course, received the transcript of the judgment given on 24 June 2003 and she had not been able to interview the father, despite her attempts to do so. She had, accordingly, taken a history form the mother which, of course, included matters which the judge had rejected. These two factors plainly limited the value of her evidence.
As I commented earlier, a judge is entitled to reject an expert’s evidence, provided he has a sound basis for doing so. On the face of it, therefore, the judge was entitled to discount Dr. Ali’s evidence on the basis that she relied on incidents recounted by the mother (notably the incident in which the mother said the father shut H in the bathroom) which the judge had found did not occur. The judge had also found that, in relation to the assault on 13 June 2001, “there is no reason to suppose that mother was in fear of her life or anything like that”, and he rejected the mother’s evidence that the father had made any threats to kill.
There seems to me, however, to be a proper distinction between a judge’s objective finding that the mother’s life was not put as risk by an assault, and the mother’s subjective belief during the assault that her life was in danger. This distinction was picked up by Dr. Ali. By the time she came to give oral evidence, Dr. Ali had read the judge’s findings. She was asked by the judge whether they altered her views in any way. Her answer, and the consequential exchange with the judge (the latter appearing at paragraphs 36-37 above) are illuminating: -
“A. Where the clinical aspects are concerned it has not altered my view in the presentation that she gave. All the symptoms that I have outlined in my report, I do not think that that would really have changed by reading the report, because I was, as I say, trying to identify what the clinical issues were rather than what the reality of the situation was. It was how she was experiencing or perceiving her experiences, how she was sort of reacting to her experiences, whether they be, you know, in the way you have outlined them or with the way she is describing them, it really is an individual situation where a person, how they react to various circumstances and how they therefore develop clinical symptoms according from that circumstance.”
It is plain that Dr. Ali made a clinical judgment that the mother was suffering from PTSD. Mrs. Kilner lacked the qualifications to make the same clinical judgment, but her assessment of the mother was the same as Dr. Ali’s. In these circumstances, in my judgment, the judge should have thought twice before rejecting Dr. Ali’s evidence out of hand and taking the view that Mrs. Kilner’s perception of the mother was also plainly wrong.
I have also to say that I deprecate the judge’s use of the word “experiment” (which he uses several times) to describe an order for supervised contact. Such a criticism is not political correctness. By using it the judge runs the risk of being accused of subordinating the welfare of the child to an adult perception that contact is nearly always in the interests of the child, irrespective of the particular facts of the case. Indeed, in my judgment, that is precisely what the order of 5 July 2005 does.
Making an order on a one hour review
Of course, an experienced judge can cut corners and make substantive orders on short appointments. But if a judge is to take that course, he must be very sure of his ground, and demonstrate clearly that he has taken all relevant considerations into account. This the judge plainly failed to do. It therefore seems to me that Miss Nelson is once again on strong ground when repeats the point that the judge made the order on 9 May 2005 on the basis of his own imperfect recollection of his conclusions which, in turn, flawed his subsequent and consequent reasoning; and adds to it a submission that -
“it was plainly wrong to make such an order at the listing of a review hearing where there were before the court reports from the CRO and from Dr Ali, both of which recommended no contact. The judge should not have departed from their views and made an order without hearing evidence from the CRO and from the parties. By making the order in these circumstances the judge failed to indicated properly why he did so, and also failed to afford the representative of the mother sufficient time to put the authorities he appeared to be ignoring before him.”
The case for the father
Mr. Ian Miller, for the father, faced an impossible task in attempting to defend the judge’s judgment. However, he sought manfully to do so. He submitted that the judge’s order was within the wide ambit of discretion open to a judge in proceedings under the Children Act 1989. He relied on the judge’s findings of fact, which had not been appealed. He was critical of Dr. Ali, and pointed out that the order made by the judge on 27 January 2005, which had been made after Dr. Ali had given evidence and the judge had expressed his view about her, had also not been challenged on appeal. The hearing on 9 May 2005 was not a directions hearing: it was simply a further hearing. All the relevant evidence was before the court.
Mr. Miller disputed the proposition that the judge had misdirected himself in relation to his previous findings. The judge had been of the view that all that had read his judgment of 24 June 2003 had misunderstood it, the parties included. He was firmly of the view that the violence experienced by the mother was not typical of the father. Neither was the violence the cause of the breakdown of the marriage. He was also of the view that the one incident of serious violence four years previously should not prevent the ordinary course of events from proceeding. He was plainly not satisfied that the commencement of contact in a protected environment was going to be detrimental to the mother in such a way as to be harmful to the child. He acknowledged that no contact orders were exceptional and was not persuaded on the evidence that this was such a case.
Finally, Mr. Miller submitted that the judge’s failure to direct himself as the principles laid down in Re L (which had not been put to him on the day) was not fatal to his reasoning. The judge’s decision on the evidence had been open to him, and was not plainly wrong. The appeal should therefore be dismissed.
For the reasons I have given, I am unable to accept those arguments, skilfully and forcefully as they were advanced. In my judgment, and for the reasons I have given, the judge’s decision is deeply flawed and plainly wrong. In my judgment, therefore, the appeal must be allowed, the judge’s order must be set aside and the case must be reconsidered by a different circuit judge to be allocated it to it by Judge Hunt.
The management of the case
What I have said so far is sufficient to dispose of the appeal. I cannot, however, leave the case without commenting on the management of the case which, it seems to me, is a paradigm of how a difficult and sensitive contact dispute should not be handled. In what follows, there will be an element of repetition, which I will attempt to minimise.
The final separation between the parties took place in June 2001. For reasons which are not at all clear, the father did not issue his application for contact until over a year later, on 8 July 2002. It was issued in the Bradford County Court. The first appointment in the contact proceedings took place on 19 August 2002. The notice of proceedings sent out by the court required the parties to attend at 09:20 “before the CAFCASS (sic) and thereafter at 10:30am before the District Judge with a hearing time of 10 minutes”. Solicitors were present for both parties, but the only order made was that the CAFCASS prepare a report within 12 weeks. The matter was then to be listed for further directions on 29 November 2002 in Bradford with a time estimate of 10 minutes.
The CRO reported on 15 November 2002. In the light of her statement that “it would be helpful if there were findings of fact in this case”, Deputy District Judge Ashton ordered on 29 November 2002 that the father and his witnesses should file statements within 35 days, and that the mother and her witnesses should file statements with 35 days thereafter. The matter was then listed for hearing on Friday 21 February 2003 with a time estimate of one day and a half, a date and time-estimate both amended on 23 January 2003 under the slip rule to Monday 10 March 2003 for one day.
In the event, the case was not heard on 10 March because on 4 February District Judge Lawton “ex parte” ordered that the matter be vacated and re-listed on 23 April 2003 (time estimate one day). However, on 17 April 2003, the court again re-listed the case for 23 June 2003, with a time estimate of two days.
The papers before us do not reveal how these various changes of date and time came about. As this chronology shows, however, they were not isolated events.
On 24 June 2003, the finding of fact hearing: took place before Judge Cockroft. This was, of course, two years after the final incident in the marriage, and just under a year after the father instituted his proceedings.
Following the findings made by the judge, the judge directed a transcript to be prepared at public expense. That was plainly correct. He also gave permission to the parties to instruct Dr. Ali to prepare her report, which was to be filed by 30 September. Permission was given to disclose the case papers to Dr. Ali in connection with her report. The case was to be listed before the judge on 6 October 2003 in Halifax for further directions with a time estimate of 30 minutes.
There is no evidence that the hearing listed on 6 October 2003 took place. On 12 December 2003 a notice was issued by the court directing that the matter be listed for a review hearing on 22 January 2004 at 10.00am at Keighley County Court before Judge Cockroft with a time estimate of 30 minutes.
Dr Ali reported on 20 January 2004. On 22 January 2004, the judge “upon reading a letter from Reiss solicitors” for the father, adjourned the hearing of the review, directed Dr. Ali “to prepare a medical report to be filed by 30 January 2004”, ordered a transcript (previously requested in June 2003) and directed a report from the CRO “to be prepared when the transcript is obtained and approved”.
On an unknown date, the court issued a notice stating that the father’s application for contact was to be heard on 21 June 2004 at Halifax with a time estimate of 30 minutes. On 21 May 2004, the father’s solicitors issued a notice of application seeking further directions on the ground that Dr Ali felt it inappropriate to write a report on the father. On 21 June 2004, HH Judge Cockroft ordered further statements to be filed by both parties by 19 July 2004, and listed the matter for a contested hearing on 27 July 2004 at Bradford with a time estimate of one day. On 15 July 2004, the CRO filed her second report.
The hearing did not, however, take place on 27 July 2004. On 6 July 2004, District Judge Lawton “upon reading letter from CAFCASS” vacated the hearing and re-fixed it for 7 September 2004 at Dewsbury, with a time estimate of one day. Quite what happened on 7 September is a matter for conjecture, but on 21 September 2004, again apparently of its own motion, the court ordered the matter be listed on 23 November 2004 at Skipton with a time estimate of one day, to be heard by HH Judge Cockroft.
On 23 November 2004, there was a hearing before Judge Cockroft, in Skipton, although the order is headed “In the Bradford County Court”. He adjourned the matter to 27 January 2005 at Halifax with a time estimate of one day. He directed Dr. Ali and the CRO to attend the hearing and gave notice to the father’s solicitors to show cause why they should not pay the costs incurred on 23 November. Neither counsel was able to enlighten us about the reason for the judge making the latter order.
On 27 January 2005, in Halifax, there was, finally, a hearing, at which the judge heard the evidence of Dr Ali and the CRO and ordered the CRO to file a further report by 4 May 2005 dealing with the outcome of work she was to carry out with the parents and with H and her recommendations arising therefore as to what form contact should take, if it was at all feasible. The application was adjourned to 9 May 2005 at Pontefract, where it was to be listed for review with a time estimate of one hour. The CRO duly filed her report on 28 April 2005, and it was, of course, on the review on 9 May 2005 that the judge made the order under appeal.
Commentary
This chronology is wholly unacceptable. There is enormous delay. Hearings are vacated and moved apparently without any explanation. There is a complete lack of structured planning and judicial case management. All of the parties and the child concerned have been badly served.
The first obvious point is that it should not have taken from 19 August 2002 to 24 June 2003 to achieve a finding of fact hearing, nor should it have required a formal report from the CRO to point out the need for it. The Guidelines make it clear that in every case in which domestic violence is put forward as a reason for refusing or limiting contact the court should at the earliest opportunity consider the allegations made (and any answer to them) and decide whether the nature and effect of the violence alleged by the complainant (or admitted by the respondent) is such as to make it likely that the order of the court for contact will be affected if the allegations are proved.
The “earliest opportunity” is the first appointment – in this case the hearing on 19 August 2002. It must have been apparent on that occasion that the mother was making serious allegations of violence which were denied by the father. Directions for a finding of fact hearing should have been given on 19 August.
The Guidelines identify the steps which are to be taken where the court forms the view that its order is likely to be affected if allegations of domestic violence are proved. The court must consider what evidence will be required to make findings of fact; it must make appropriate directions under section 11(1) of the Children Act 1989 at an early stage in the application to enable the matters in issue to be heard as speedily as possible, including whether or not a finding of fact hearing is required; the court should also consider the question of interim contact; it should seek a report from the CRO unless satisfied that it is not necessary to do so in order the safeguard the child’s interests; and subject to the seriousness of the allegations it should consider the separate representation of the child.
None of this was done in the instant case. It took the CRO to alert the court to the need for a finding of fact hearing, with the result that the appropriate directions were not given until 29 November 2002, nearly 5 months after the application had been issued. Even then, the district judge allowed each party 35 days to file their evidence. Even allowing for the father’s language difficulties, this in my judgment is excessive, and meant that the finding of fact hearing could not take place before mid February 2004. In fact, of course, the hearing did not take place then, but was put back three times. It was moved from 21 February 2003 to 10 March 2003 under the “slip” rule; then to 23 April 2003 (“ex parte”) and then to 23 June 2003 (unexplained).
All these changes appear to have taken place without either a hearing, or reasons being given. This is simply unacceptable. The emphasis in the Guidelines is on speed. Directions are to be given at an early stage in the application to enable the matters in issue to be heard as speedily as possible.
There are several references at the 24 June 2003 hearing about the length of time the matter has taken to come on for hearing. Everybody says it is regrettable. Nobody, and in particular the judge, shoulders responsibility and the judge, in particular, does not appear to have taken any active steps to ensure that the delay was not repeated.
Two of the outcomes of the hearing on 24 June 2003 were; (1) the order for a transcript of the judge’s judgment; (2) and the direction for the instruction of Dr. Ali. It is not clear when the transcript actually became available: certainly it was not available to Dr. Ali to read before she wrote her report on 20 January 2004 and on 22 January 2004 the judge had to repeat his direction that a transcript be prepared.
Once again, the failure to produce a transcript of a judge’s judgment pursuant to the order of the judge who has delivered the judgment is incomprehensible. Why did nobody chase it up? It must have been self-evident to the parties and the judge that no progress could be made until the transcript was available.
The instruction of Dr. Ali is no less than chaotic. Neither side before us could produce the letter of instruction to Dr. Ali. Dr Ali herself appeared to be confused about what her instructions actually were. The failure to produce the transcript, the failure of any of the parties to chase up the transcript, and the failure on the part of the father’s solicitors to ensure that the father attended for assessment by her combined to produce a diagnosis from Dr. Ali of PTSD which the judge rejected out of hand because it was based on what he perceived to be a false factual premise. In short, a potentially valuable expert resource was wasted, no doubt at considerable expense to the public purse. Furthermore, as I have made clear, the already unacceptable delays were extended even further. The whole episode is lamentable.
The failure to produce the transcript had important ramifications beyond the fact that it served to vitiate the report of Dr. Ali (and to some extent the work of Mrs. Kilner) in the eyes of the judge. It was responsible for another bout of unacceptable delay, since the full hearing following the judge’s findings of fact was initially listed for 6 October 2003, but did not in fact take place until 27 January 2005, more than 15 months later. Between October 2003 and January 2005 the case was vacated and listed no fewer than nine times. This is more than unacceptable: it is also shocking.
When the case was before him in January 2005 the judge commented that he had to pinch himself in order to realise how much time had elapsed. His recognition of the delay is welcome. He does not, however, appear to have taken any responsibility for it. I am in no doubt, however that the delay contributed in no small measure to the judge’s misperceptions, and served also to harden the impressions he had formed.
The judge did recognise at the January 2005 hearing that the court bore the responsibility for the fact that Dr. Ali had not been properly instructed. The point arose when counsel for the father was cross-examining Dr. Ali and asked her whether she was a child psychologist and could answer questions about the effect of contact on H. Counsel asked if the judge wanted the help of the judge in this area. In the course of his response, the judge said:
“…. I freely concede the error was ultimately the court’s if a clinical psychologist were to be involved at all appropriately in this case, in not giving her proper terms of reference. If we now ask for opinions which are not expert opinions and which are not foreshadowed in any written reports, who knows what might emerge, reliably or otherwise.”
Later, at the end of her evidence, the judge said to Dr. Ali: -
“…. Yes, thank you very much Dr Ali. I say again, you are not to be criticised by approaching this case on the basis of the terms of reference you were given. I think we have all learnt a lesson as to how important those terms of reference are and how important it is to tie-in the finding of fact hearing and the transcript from it with the expert assessments that follow.”
Given the abundance of good practice guidance which exists on the instruction of expert witnesses, I am deeply dispirited at the many errors committed by everybody concerned (apart from Mrs. Kilner) in the instruction of Dr. Ali. I hope the judge is right and that an important lesson has been learned.
It is, therefore, not just the CASC Guidelines which were plainly and wholly ignored in this case. There was inordinate delay, and what appears to have been a total lack of hands on judicial case management.
In November 2004, the President of the Family Division published the Private Law Programme, which is printed in full in the Family Court Practice for 2005. Under the heading Effective Court Control, the Private Law Programme states that the CPR overriding objective, modified to apply to proceedings relating to children is to be furthered by continuous and active case management of every case which shall include:
(1) Judicial availability : the identification of gatekeeper district judges to undertake early First Hearing dispute resolution appointments
(2) Judicial Continuity : the allocation to the case of private law family judiciary and the identification of dedicated court and CAFCASS practitioners
(3) Continuous case management by the allocated judiciary and identified court officers which shall include a listing scheme in each hearing centre that describes local listing arrangements to ensure judicial availability, continuity and access to the court for review and/or enforcement
(4) The avoidance of unnecessary delay by the early identification of issues and timetabling of the case from the outset
This is the good practice which now governs private law cases relating to children, and which courts and practitioners must follow.
As this appeal involves domestic violence, I have taken the opportunity to attach the CASC Guidelines to this judgment. Of course, not every paragraph applies in every case. The Guidelines were designed to be applied selectively and intelligently to the facts of the individual case. They represent good practice and they are to be used. It is bad practice to ignore them. I append them to this judgment in the hope that this court will not again be presented with a case such as the present, which not only ill-serves the parties and the child, but does the system discredit, and helps to devalue the valuable and conscientious work which courts up and down the country are undertaking in an attempt to tackle the scourge of domestic violence and to minimise the effect which it has on parties and children.
Lord Justice Dyson:
I agree.
Lord Justice Thorpe:
I also agree.
The first ground of appeal can easily be made good and is in itself sufficient to achieve the applicant’s objective, that is to say the setting aside of the order below coupled with a direction for a rehearing. It is fundamental that the facts as found at a preliminary hearing serve as an enduring foundation for the exercise of the judge’s discretion as he determines the future. If, as here, the judge forgets, confuses, mistakes or overlooks his previous findings then any discretionary judgment as to welfare and disposal is likely to be fatally flawed.
I also conclude that Ms Nelson made good her three other grounds of appeal. She argued her case skilfully yet with due sensitivity and moderation.
Equally, I wish to record the fortitude with which Mr Miller sought to uphold the judge. His was a difficult task and he approached it with an assured judgment of the boundary between the plausible and the implausible. These high standards of advocacy allowed the appeal to be tested and determined comfortably within its time estimate.