A (children), Re

LORD JUSTICE WALL: This is an application for permission to appeal, with the appeal to follow if permission is granted by the mother of two children, a girl (S) who is now ten and a boy (J) now aged two and a half. The application arises out of an order made by HHJ Richards sitting in the Chelmsford County Court on 28 September 2006. The judge’s order required the mother to make the children available for visiting contact with their father, who is the respondent to this appeal, and I will from now on use the words “mother” and “father” to refer to the parents.

The children’s contact with their father is described in the order as “interim”. That is because the judge has ordered a review on 13 December, when the question of staying contact is to be considered -- assuming the visiting contact has proved successful. The order made by the judge provides for fortnightly supervised contact on 30 September and 14 October from 10.00am to 5.00pm, the contact to be supervised by one of two identified people, whom I understand to be respectively the children’s maternal aunt and their maternal grandmother.

I would like to add, in parenthesis as it were, that it is to my mind one of the happier features of this case that the children’s mother appears to have maintained a good relationship with the members of the father’s family and is clearly able to trust and talk to them. That is of particular importance in this case because the children are of mixed race and it is vitally important that they should have as much contact as possible with both sides of their heritage.

However, the order goes on -- and this is the complaint -- to direct unsupervised contact on 28 October and 11 November for the same hours (10.00am to 5.00pm) and then from 25 November it is to be from 10.00am to 6.00pm, also unsupervised, and the same on 9 December 2006 prior to the review on 13 December. The local authority, which had previously filed a Section 7 report, is directed to file an addendum report for the review hearing on the progress of contact and proposals for staying contact, taking account of the elder child S’s wishes and feelings.

The mother’s application for permission to appeal was placed before me on paper on 25 October. I took the view that, particularly given the ongoing progress of the case, the best way to deal with it was to arrange for it to be listed swiftly as permission to appeal with the appeal to follow if permission was granted today. As there was only one period of unsupervised contact legislated for in the judge’s order between 25 and 31 October, I directed that it should take place but that it should be supervised as the previous contact had been. The matter would then be considered by this court before the next period of unsupervised contact was due to take place.

The mother invites this court to say that the judge was plainly wrong to order unsupervised contact at this stage. The principal argument that she advances is that the hearing before the judge was procedurally flawed because the judge declined to conduct an investigation into what he thought were historical and largely irrelevant allegations of domestic violence by the father, but which the mother sought to argue were directly related to the contact issue.

I will, in a moment, go back to deal very briefly with the history of the matter, but in my judgment there are two formidable and, indeed, insuperable obstacles in the mother’s way in advancing that argument to this court. The first is that the judge’s order and the hearing before the judge did not take place in a procedural vacuum. The decision that the court was not going to investigate, what I will call the historical allegations of domestic violence, was taken by a District Judge on 28 March 2006, when he directed that the father was to file in court and serve on the mother a statement by 25 April restricted to post-March 2004 issues relevant to contact with the children and any allegations of violence, and that the mother was to file in court and serve on the father a statement by 25 April, again restricted to post March 2004 issues relevant to contact with the children and any allegations of violence. There was to be a Section 7 report filed by 27 June and contact was agreed as follows, that is every Saturday from 12.00pm to 5.00pm supervised by the father’s sister at her home or outside under her supervision, and other supervised contact was to be agreed between the parties, again supervised, during the school holidays, and the matter was then listed for further directions once the Section 7 report was available.

The Section 7 report was available by the time the matter came before a different District Judge on 5 July 2006. It was not a report which was satisfactory to the mother, and in particular it did not deal with the historical allegations. The court ordered that the author of the report should attend the hearing for the purposes of cross-examination and to clarify in particular the issue as to whether contact should be supervised or unsupervised, and if unsupervised how that was to be achieved, and to clarify the extent of the discussions which the officer had had with the elder child, in which she had made clear that she was extremely fond of her father and found it very difficult to chose between her parents, although she loved them both equally.

The officer had also reported that S would like to have contact with her father every other Saturday, as there were times she would like to spend with her mother and with friends. She had found it difficult to explain that to her father as she felt he would not understand and she also expressed her wish that her younger brother should have contact with his father at the same time, that she did not feel she was spending less time with him. The officer reported that the boy, J, was at an age when he was unable to express his wishes and feelings; however having observed a period of contact with the father it was clear that he identified with him as his father and shared a positive bond with him. J was described as a delightful and friendly child and appeared to be very content at contact with his father. He enjoyed the attention that was bestowed upon him and able openly to show his father affection by running to him and hugging him and engaging positively with him.

The obvious point which arises from those two orders and the report of the local authority officer is that the court at an early stage had taken a decision that the interests of the children, in the context of contact, did not require a wholesale historical investigation of earlier allegations of domestic violence made by the mother. That was the strategy set by the court in March. In the subsequent order in July, that strategy was maintained. Although the Section 7 Officer was ordered to bring with her to the hearing all relevant Social Services records, there was no direction to the father that he should file any further statement dealing with historical matters, and indeed at that point he was unrepresented.

Speaking for myself, therefore, I have some difficulty with the argument advanced by Mr Bain this morning in this court that the mother’s decision not to appeal the order of the District Judge of 28 March 2006 was taken because she believed that pursuant to the order of the District Judge on 5 July she could nonetheless ensure that the relevant allegations were before the court by way of the local authority file. Such procedure, in my view, would be grossly unfair to both parents but particularly the father, who would not have been in a position to have filed evidence relating to those allegations, he being expressly forbidden to do so by the previous order of the District Judge.

So that in my view is the first obstacle that stands in the mother’s way. She did not appeal the order of the 28 March, and the judge conducted the hearing on the basis that that was the strategy which was laid out for hearing.

The second obstacle which the mother faces is one which I fully accept is somewhat double edged but nonetheless important. The fact of the matter, and this will be more clear in the chronology when I come to it, is that although the Social Services department of the local authority was involved with the family up to and indeed after the birth of J, the names of the children were removed from the Child Protection Register in July 2004 after the parties’ final separation and the father having left home. They were removed on the basis that the local authority would supervise contact and take an active part in so doing.

In the event, as the mother explains in her statement, the local authority did nothing of the kind. She never saw the social worker again and as a consequence, what she did do was to arrange for the children to have unsupervised contact with their father over a substantial period from some time in the early summer of 2004 to January 2006 when there was an incident between the parents which did not involve violence, but in which the mother refused to allow the children to attend on contact, they, she said, being upset. The father had said that he would see her in court and subsequently issued the proceedings. So there was a substantial period over which the father was seeing the children on an unsupervised basis and without any reference to the local authority or indeed to the court.

The mother’s statement in this respect is, I think, instructive. She says this at page G8 in our bundle:

There is no real suggestion in the mother’s statement that any harm came to the children over that period of staying contact, and later in her statement the mother helpfully acknowledges that both children in her words, and S in particular, “love him to bits”. The mother recognised that the father is very important to S, but she reports that S has from time to time expressed fears of her father and the mother remains herself anxious about the father’s attitude to her. She says that she wants her children to know their father, to have a relationship with him but at the same time she wants to keep them safe.

In my judgment, it is very plain therefore that despite the mother’s complaint about the relationship with the father prior to March 2004, she plainly on her own case had allowed the children to have unsupervised contact with him overnight, and of course whilst that contact is not to be criticised, and I do not criticise it, it does lay her open to the suggestion that her anxieties about the father’s violence did not prevent her arranging that contact, and that indeed the children appear to have benefited from it. Certainly it cannot be said that they came to any harm.

So those two factors in my mind which I have identified at the outset mean to me that the decision by the court not to investigate historical allegations has some force and validity behind it, and I check it against the history of the case which emerges from the papers in a very helpful chronology which was before the judge and to which he specifically referred. The parties had begun to live together shortly before S’s birth in January 1996. In September or October 1997 there was an assault by the father on the mother for which he was convicted before the Justices and given a 12-month conditional discharge. That plainly is a matter of record. That incident led to the first involvement of Social Services and to the first, I think, of the parties’ many separations.

However, they were reconciled. They married in August 1998 and between that date and the decree absolute of divorce pronounced between them in June 2002, the mother recalls a number of incidents of violence on the father’s part both relating to the mother’s older children and indeed to herself. On at least one occasion the record shows that the police attended at the home. On 3 November 2001 she makes an allegation that the father attacked her whilst she was holding S, and between April 1999 and February 2003 there were several separations and subsequent reconciliations, the most recent being the latter date in February 2003, after which of course J was conceived. The parents finally separated in May 2004.

During the period between February 2003 and May 2004, the father underwent a partial risk assessment by the Domestic Violence Intervention Project. He appears to have declined an invitation or a recommendation that his suitability for their Violence Prevention Programme should be assessed, and the conclusion of the officer conducting the assessment in October 2003, which of course is prior to the birth of J, was that the father presented a substantial risk of physical and emotional harm to the mother, a moderate risk to her older children and a low risk of physical harm to the other children, although in the overall context of the family the risk to the children generally viewed collectively was a moderate one, and there were also on the papers allegations of some emotional views by the father against the mother, S and one of her older children, and a further allegation of violence against a different child prior to the final separation.

As I indicated earlier, the children’s names were removed from the register in July 2004, and although the plan proposed by Social Services was for contact to be supervised by them that plan was not put into operation, leading to the unsupervised contact by agreement which I have already described.

That I hope is a not unfair summary of the background of the case and the mother’s assertion that the court should conduct an investigation of the allegations of domestic violence and a full assessment of the father before unsupervised contact could take place. It is clear from the papers, and it is very much a matter of credit to the mother, that she is not opposed to contact in principle or as such. Her anxieties relate to her perception of the father’s violence towards her, and her consequential anxiety about the safety of the two children if contact was not supervised.

In paragraphs 12 to 15 of her statement she details occasions when the children were upset and reluctant to go to contact with their father, leading up to the incident I have already briefly mentioned when she declined to allow him to have contact, and the father made an application to the court.

That, therefore, was the background against which the judge had to approach the matter and it is important, I think, to see how he did so. Most unfortunately, we do not have a transcript of the judgment. We have a note produced by counsel and I bear that fact in mind when looking at what the judge did.

It was made clear to him at the outset that the mother wished to visit the historical allegations of domestic violence and the judge made it clear that in his view, having looked at the chronology and having looked at the history as I have outlined it, that the decision of the court not to investigate those matters taken by the District Judge was a suitable one and one which he was going to uphold. He pointed out, as I have already done, that the mother could identify no harm that the children had in fact suffered or indeed were at risk of suffering, and even in the face of the report from the Section 7 officer took the view that contact should nonetheless continue to be supervised. The father’s evidence was that contact had gone well since the court made its order for supervised contact to which I have already referred but he stated that, as is so common in these cases, the question of communication between himself and the mother had broken down or proved to be impossible. He made a number of admissions about his previous contact conduct and the judge looked at the incidents which the mother did rely on post-2004 and came to the conclusion, having made findings about them, that they were not matters which in his view would prevent contact taking place. Indeed, he found as a fact that the father had not smacked J, as it was alleged that he had done.

The judge therefore decided in those circumstances, having seen both parties in the witness box, that contact could be attempted on an unsupervised basis. The note of this judgment reads in the material point as follows:

One is immediately therefore faced with an exercise of discretion by the judge based on a previous order by the District Judge not to investigate historical matters, an assessment by the judge of both parents, a recognition of the mother’s feelings in relation to the question of contact and a decision that contact could be moved forward in slow degrees along the lines suggested with a review in December.

The Appellant’s Notice is largely, if not exclusively, based on the judge’s refusal to admit into evidence events occurring prior to 2004. That, it was said, affected his own assessment. He was wrong to find that the risks were effectively non-existent. He had ignored the guidelines laid down by this court in Re L, he had given too much weight to the inadequate Section 7 report, he was plainly wrong to diminish the risk posed by the father to the mother’s other children as well as to his own, he had not fully considered the checklist and the hearing had been unfair. Fortunately, during the course of argument it emerged that the essential allegation of unfairness or Article 6 related not to any behaviour on the part of the judge, but to the fact that he refused to admit the earlier events into evidence.

I have come to the very clear conclusion that the judge was entitled to take the course that he did; and that he was fully entitled to fulfil and honour the decision initially made by the District Judge not to admit earlier evidence. I reject the argument that this was effectively a breach of the guidelines. I would like to make it as clear as I can that I am amongst the forefront of those who take the view that the issues of domestic violence and contact are often inextricably linked and that allegations of violence often need to be carefully examined by the court in the context of applications for contact. But one of the guidelines which was laid down and accepted in Re L, which is the leading case on the subject, is this:

In my judgment that was what the District Judge was doing in March, and it was a perfectly proper exercise of his discretion to do so. The mother did not appeal that order and, as I have already pointed out, her wish to seek to introduce the material which was otherwise excluded by means of the Social Services file pursuant to the order of 7 July was in my view misplaced and inappropriate. In short, therefore, the judge in my view has considered all material aspects. He was entitled to proceed as he did. He was entitled to make the assessments of the parents that he did. He was entitled not to introduce the historical evidence and he has sought to move forward in a way which is careful and sensitive.

In my judgment, if the contact for any reason does not work it will not only be open to the judge to review his decision when the review takes place in December, it will be his positive duty to do so. He will need, if it is not working, to reflect on his previous conduct of the case and decide whether or not further evidence is required. I do not accept Mr Bain’s submission that the judge has already made up his mind to the extent that the evidence will be excluded and that it is excluded for all time. To say that is not of course an invitation to the mother to renew her application to use the evidence; this family needs to move forward. The father must recognise that his conduct in the past has had a profound effect on the children’s mother and that if he wishes to enjoy a fruitful relationship with his two children by her, he must behave immaculately and appropriately and demonstrate that he is not a risk to either her or the children.

Frequently, as happens in this case, communication between the parents is difficult if not impossible, but the father can show, I think, by giving the children happy periods of contact, that he is not a risk to the children and that the children are safe with him.

I do not believe the judge would have ordered the contact he did had he had any doubt about the children being safe. I do not think it was necessary for him to investigate historical events to reach that conclusion and I do not think it was necessary for him at that stage to order a further report on the father. What happens in December, however, is entirely a matter for the judge.

This court is not concerned with the order made by the District Judge in March. Had the mother sought to appeal that, she would have appealed it to the judge and any further evidential issues or issues relating to the future progress of the case are a matter for the judge and not for this court.

In my view, therefore, this case raises no point of principle on the guidelines and has simply resulted in an exercise of discretion by a judge with which this court could not possibly interfere. It is for those reasons, I fear somewhat expressed at undue length, that I would refuse this application for permission to appeal.

LORD JUSTICE CHADWICK: I agree.