D (A Child), Re

This is an application by Mr Howard J D for permission to appeal against an order made on 10th March of this year by Miss Recorder O'Farrell QC sitting in the Barnet County Court.

The case concerns a little boy called David D, who was born on [a date in] 2005 and who will be five shortly. The order made by the Recorder was to give David's mother, who has remarried, permission to remove David permanently from the jurisdiction of England and Wales to Australia. That removal was not to take place before 14th April and, if the father appealed that decision or sought permission to appeal that decision, the removal was to be delayed until such time as this court had ruled on the application. The Recorder also made an order for contact between David and his father, which is set out in the terms of the order itself.

The background is that David's parents were married for a relatively short period. It was clearly a difficult and tempestuous relationship. It has come to an end through divorce and David is effectively the only connection now between the couple. As I indicated, David's mother has remarried. Her husband is a hospital doctor in Australia and quite naturally she wishes to go and live with her husband (whom she has married recently) in Australia and his children by his former marriage, who all live in the same facility, and naturally she wishes to take David with her.

These cases are always fraught and very unhappy and there is a powerful body of opinion which takes the view that the traditional English way of dealing with them (recently set out by this court in the case of Payne v Payne[2001] EWCA Civ 166) pays too little attention to the damage caused to the child by the loss of the relationship which the child has with the left-behind parent and too much attention to the views of the departing parent, who inevitably tells the court that she (and it is usually she) will be devastated if she is not allowed to go.

For the father in this case Ms Brereton takes essentially three points. That, which I have just mentioned, is her second point and, speaking for myself, it does not get her very far because until such time as Payne v Payne is either overtaken by legislation, which is unlikely to happen in the foreseeable future, or goes to the Supreme Court in one guise or another, both the Recorder and this judge are bound by it. And, in my judgment, the Recorder has ticked all the right boxes. She has gone through Payne v Payne carefully and she has come to the conclusion that it is in the interests of the little boy to accompany his mother. So Ms Brereton's second ground of appeal, with great respect, does not in my view get her very far.

What is more troubling is her first point, which relates to the fact that the judge did not have the benefit of a full and up-to-date Cafcass report, and in this respect the case, I feel bound to comment, has a number of very unsatisfactory features. The first is that at the hearing before the Recorder Mr D was in person. He was not represented by lawyers. Had he been, I think my view of his position would be much less sympathetic because his lawyers would have taken the point which I am about to discuss, but he was in person and David's mother was represented. The position today is reversed: Mr D appears with counsel; David's mother is in person.

What appears to have happened is that way back in September 2009 HHJ Levy, sitting in the Barnet County Court, gave directions for the hearing of the application for removal of David out of the jurisdiction. She directed that the parents were to file their evidence by the end of October 2009 and she directed:

That I repeat is an order made, according to the documentation before us, on 4th September 2009. And yet, come the hearing before the judge, the Cafcass report was not ready. Miss Brereton, with the realism which is symptomatic of the Bar, says, "Well, that's life. We have to wait ages for Cafcass reports. It is par for the course that we should be so delayed and, even if the judge at the pre-trial review extends the time for Cafcass to file its report, it comes as no surprise to me", says Miss Brereton, "that Cafcass is not ready for the hearing before the judge."

On the other side, Mrs G, the mother, says, "Well, Cafcass has had plenty of time to get its act together and file its report, and I am not to be prejudiced and, more importantly, David is not to be prejudiced by the fact that Cafcass can't get its act together in time."

I simply pause to comment that it is a very sad reflection on the family justice system as it operates in this country at the moment that directions for a report given in September do not result in a full and proper report being before the court for a hearing which results in a judgment on 10th March. Such a situation is quite unacceptable.

That itself might not matter quite so much had Mr D been represented and had the judge in her judgment dealt fully with the Cafcass point. We do not, unfortunately, have a transcript of the hearing before the judge. What we have is a note, no doubt conscientiously taken, by a clerk or possibly a solicitor acting on the mother’s behalf. It seems that the Cafcass officer was involved in some sort of motor accident and did not appear on the first day. He sought an adjournment so that he could complete his report. The judge initially indicated sympathy with the view that she should have a full report and then after hearing evidence appears to have changed her mind and told the parties that she did not need a full report after all, that she had enough information. And yet the very last remark we have on the note is the judge recorded as saying that "Cafcass evidence is the only outstanding issue".

What is said on the father's behalf is that “because the report was not complete, because the judge did not have the report and because I [the father] thought the judge was going to order a report I did not cross-examine the Cafcass officer at any length. I did not put to him the points I wanted to put to him because I thought there was going to be a full report and I would have the opportunity to do so on another occasion” and, therefore, says Mr D, “the hearing was unfair and I have been deprived of the opportunity to put to the Cafcass officer what I wanted to put and the Cafcass officer has been deprived of the opportunity on David's behalf to put to the court David's views and David's position in relation to going to Australia with his mother.”

Once again, although that will be serious and it is an Article 6 point, a fairness point, it might not matter if the judge in her judgment had dealt fully with the issue, but as, in my view, Miss Brereton is entitled to and she does say with some force, the judge does not deal with the question of the Cafcass report. It may be that the judge goes through the Payne v Payne exercise, but she does not comment adequately or at all on the disadvantage under which she was labouring, namely that she did not have the benefit of a full and proper report from Cafcass. All she says in recording the evidence that she has heard is that she has heard from Cafcass. Unfortunately Mr Kent, the Cafcass officer, was unable "to complete his report or give any firm recommendation in the report, but I have the benefit of the earlier section 7 reports and two addenda", none of which it seems Mr Kent had seen.

So at the end of it all I am left, I have to say, with a sense of unease. Of course the judge decides. Cafcass recommends, Cafcass advises; but the judge decides and this judge has decided. But the question which nags and remains is, has the judge made her decision with all relevant factors fully in her mind? Has she, in particular, had the benefit which she would have had had she received a full report from Cafcass? If she agreed with it, if it had recommended, for example, that David should go, so well and good. If she had disagreed with it and if it had recommended that David should remain, she would have had to explain herself: why did she disagree with the Cafcass recommendation?

So I am left to weigh up two competing considerations. The first is that the judge does make the decision. She is entitled to decide. And into that equation on that side of it, I put the powerful submission made by David's mother that really she is not to be prejudiced and David is not to be prejudiced by the inadequacies of Cafcass and the fact that Cafcass cannot get its act sufficiently together to produce a report within a reasonable time frame.

On the other side of the equation, I put these considerations. Mr D was in person. He is not to be criticised for the absence of a Cafcass report either. The judge has not dealt with the evidence of the Cafcass officer. The judge has not considered a full recommendation one way or the other by the Cafcass officer because the judge has been deprived of the opportunity to have it. We have a report from Cafcass and it is right to say that on the face of the Cafcass report itself, although it is very carelessly misdated on the front page, there is no real sense that I read from it that Mr Kent himself felt at a disadvantage, although Miss Brereton rightly points to paragraph 57 of that report in which he says:

Of course it can be said in that context that the judge did have that information. She had the previous reports. She saw the parties. She made up her mind, having heard all the evidence. But had she heard all the evidence? I am afraid, frustrating as the mother may find it, I have come to the conclusion that I am sufficiently concerned that justice may not be seen to have been done in relation to the little boy. There is going to have to be a further delay. I am very sorry about it, but there is going to have to be a further delay. Mr Kent is going to have to report. He is going to be put under very strict time constraints about when he is reporting and if there is any difficulty about it Cafcass will have to come to this court to explain to my Lord and myself, or to one of us, why it cannot be done. But Mr Kent is going to have to report fully and the judge is going to have to reconsider in the light of Mr Kent's report. It may be that she will come to exactly the same conclusion. It may be that she will not. I do not know, that is a matter for her, but she must do that swiftly and the result must be made known to the parties with equal swiftness.

So, speaking for myself, this case, having been put into our list as a matter of urgency because the mother wishes to go on the 14th and even now would be anxious to go as soon as possible, I would give permission to appeal. I would allow the appeal. I would set aside the judge's order. I would direct that Mr Kent report within 21 days of today to the Recorder and that, as soon as practicable thereafter, the Recorder is to convene a hearing at which Mr Kent is to be present for the purpose of cross-examination if either party wishes him to be present for cross-examination and that the Recorder must thereafter, as soon as practicable, reconsider her decision. She will either re-issue her whole order or she will make a different order, and the parties will then have to consider their positions in relation to whatever order she seeks to make. So, Mr Kent to report within 21 days. The matter to be listed as soon as practicable thereafter for a further hearing, for the judge to reconsider the matter in the light of Mr Kent's report. Mr Kent to attend if necessary, if called upon to do so. And for the judge to then give her decision in the light of Mr Kent's report.

I am very sorry for the parties, both of them, because there is a further delay. There is a further period of uncertainty and there is a period of tension, but this decision is one of the utmost importance for this little boy and I am satisfied that it needs to be made on full evidence.

There is one further point which needs to be made and it is this. If the judge, having considered Mr Kent's report, comes to the same conclusion, I would myself invite her in argument, or following argument, to reconsider the question of what contact Mr D should have to the boy after he has been removed to Australia. The order which the judge has made provides for two periods of contact in this country, with the mother and her husband bringing the little boy to England twice a year so that he should see his father. The order made by the judge provides for a two-week holiday period during the December/January period, which is as I understand it the main Australian holiday of the year, and a two-week period in June, so twice a year for two weeks each time. I would invite the Recorder to consider whether, if David goes, that is sufficient and whether or not it should be extended. So both parties should be prepared to attend before the Recorder with their respective arguments as to whether or not the period of contact should be extended beyond two weeks on each occasion.

As I say, I feel a sense of profound regret that these parties who have come to the court shall been badly served by the family justice system and by Cafcass in particular. I can only offer them my apologies and I do so. But in the interests of this child and his future, I am satisfied that justice must not only be done but it must be seen to be done and that there has not been the full swift surgical investigation there should have been and that this court can put it right in the way that I have proposed. To that extent, therefore, I would give permission and allow this appeal.

I agree with the judgment of my Lord and the order that he proposes. I do wish to associate myself with my Lord's remarks about the unsatisfactory situation regarding the failure of Cafcass to produce an up-to-date report on time for the hearing before the judge in this case. If that failure is symptomatic of the general position with regard to the production of Cafcass reports to the court, then that would indeed be a lamentable state of affairs for family justice in England and Wales. I hope that it is not.