S (A Child)

This is an appeal from a judgment and order given and made by HHJ Yelton in the Southend County Court on 14 November 2006. He had before him a father’s application for contact to the child, O, who was born on 16 December 2001. In the event he dismissed the father’s application; hence the father’s appeal to this court. Permission to appeal was given by Scott Baker LJ on 31 January 2007.

In the light of the way in which this appeal has progressed I can be comparatively brief. There was a fact-finding hearing before the same judge on 28 October 2005 when the judge had to make findings in relation to an incident which, if it took place at all, did so in May 2004. While making it completely clear that he was not finding that nothing happened he was unable to satisfy himself according to the relevant standard of proof that the incident alleged by the mother had taken place. He made explicit findings that the allegation was not made by the mother maliciously and indeed that it was a perfectly proper one for the mother to have brought. The mother, as is apparent from subsequent documents, remains convinced in her own mind that the incident did in fact take place as she alleged. The case was therefore a more than usually difficult one for the circuit judge. He had the benefit of a report dated 6 January 2006 from an experienced CAFCASS officer which, while giving no definitive recommendation and identifying the difficulties and complexities in the case, might be read as being somewhat lukewarm at best towards the father’s application.

The final hearing had been due to take place before the same judge on 21 March 2006. On that occasion the hearing was adjourned, as I understand it essentially on the mother’s application, with a view to the parties jointly instructing, as in the event they did, Dr Juliette Butler, a consultant child and adolescent psychiatrist, to advise on the matter.

Dr Butler saw the mother on two occasions, saw O as well, saw the father and on 3 July 2006 produced a very detailed and comprehensive report. Her recommendation was that O should have contact with her father re-established. Following that there was one occasion of supervised contact on 29 September 2006 in relation to which the CAFCASS officer reported to the court by letter dated 5 October 2006. His recommendations were less supportive of the father’s position than had been Dr Butler’s. Most unhappily, as it seems to me, Dr Butler was not invited by either party to attend the hearing. The father had no particular interest in questioning Dr Butler, who was in substance supportive of his application, and he was entirely content to follow her recommendations.

The mother’s position, certainly as it developed during the hearing, was rejective of Dr Butler’s recommendations. The judge, as is clear from his judgment, paid careful regard not merely to the two reports of the CAFCASS officer but also to Dr Butler’s report, just as he paid careful regard to the oral evidence he had heard from both the father and the mother. But his decision at the end of the day, as he recognised, involved his rejection of Dr Butler’s views and her recommendations. In paragraph 23 of his judgment, having referred to matters which the CAFCASS officer had, as he put it, chalked up as early as in his first report, the judge continued:

Miss Dines on behalf of the father criticises the fact that for whatever reason the judge gave judgment without having had the opportunity of hearing Dr Butler give oral evidence. Mr Inglis on behalf of the mother has sought to characterise the appeal as being in effect no more than an attempt on the part of the father, unsuccessful as he would have it, to argue in accordance with G v G that the trial judge was plainly wrong. That is not the way in which I would characterise the essential complaint which Miss Dines makes.

This was a decision of fundamental, and it seems to me long term, importance for both the father and indeed the mother, but most particularly of course for O. The judge, on one view, did not really grapple with the full implications of the decision he was making because he expressed the view that he was “not shutting the door forever” and expressed his decision as being merely that:

In common with Scott Baker LJ, I have some difficulty with that characterisation of the significance of the decision the judge was making. The reality, as it seems to me, given the background, given the basis upon which the judge was making his decision, is that he was in fact shutting the door if not forever then for a very long time indeed.

That being the significance of the matter which he had to decide it seemed to me while this appeal was being opened before us by Miss Dines, that there was considerable substance in her complaint that the judge proceeded to give judgment critical of Dr Butler, and indeed rejecting her recommendations, without having had the benefit of hearing her evidence, and without Dr Butler having had the opportunity of giving such response as she might have wished to make to the prospective criticisms being articulated by the judge. Mr Inglis having heard the observations from the bench took instructions and indicated that in the circumstances he was instructed not to resist the making of an order which would provide for the rehearing of this matter before a different judge on which occasion Dr Butler could attend and be cross-examined.

At one point while explaining, in answer to the questions of my Lord, Lord Justice Thorpe, how it came about that Dr Butler had not been called by the mother to give evidence, Mr Inglis referred to the undoubted fact that Dr Butler had been instructed jointly by the parties and suggested that in those circumstances it would not have been open to the mother as one of the commissioning litigants to cross-examine Dr Butler. That is not, with respect to Mr Inglis, a correct view of the matter. It is not infrequent in family cases, which are of course essentially inquisitorial rather than adversarial in character, that an expert who has been jointly instructed produces a report in relation to which the instructing parties may appropriately wish to ask questions of an adversarial nature by way of cross-examination; and current practice in the Family Division, so far as I am aware, is always to permit anybody who wishes to cross-examine such an expert to do so if proper ground for doing so is established. I wish to make it clear, therefore, that when this matter goes back for the rehearing which Mr Inglis has conceded is appropriate there will be no limitation on the ability of either party to ask questions of Dr Butler and neither party need feel inhibited from cross-examining Dr Butler merely because she was the jointly commissioned expert.

The imperative from the point of view not merely of the parents but also of O is that this matter be heard as soon as possible. The mother needs to have the uncertainty of these proceedings removed from her. Delay is plainly inimical to the interests of the child. And delay is also prejudicial to the father, who has not seen O, save for one occasion, for what is now a period of little short of three years. On the other hand the mother has explained to us her unwillingness -- as it seems to me, a justified unwillingness -- that the hearing should take place in circumstances where she might be called into court at very short notice.

It seems to me that the most important point is that the hearing should take place as soon as possible but on a date to be fixed. That is more important than the precise venue. It may well be that the only way of achieving these desirable objectives is that the parties will have to travel. It may be to Chelmsford or Colchester, it may be to London, but the disadvantages to the parties of having to travel some distance from their home court are in my judgment more than outweighed by the advantages which will be obtained from the earliest possible fixed hearing date. I propose therefore that the appeal be allowed; that the matter be remitted for a hearing before a fresh judge (a hearing at which Dr Butler will be called to give evidence, a hearing at which of course both the mother and the father will be able to give oral evidence if they wish); and for that hearing to be fixed with the assistance of the Family Division Liaison Judge for that part of the South Eastern Circuit in such a way as to give the parties the earliest possible fixed hearing date.

I agree but this is not to say of course that another judge may not come to the same conclusion after hearing Dr Butler.

I also agree.