V (A Child), Re

LORD JUSTICE MCFARLANE: This is an appeal from a determination made by His Honour Judge Wulwik sitting in the Family Court at Romford on 13 May 2014 in the course of private law proceedings between the parents of a young child, a boy, T, born on 13 December 2009 and therefore now just over the age of 5 years.

The agenda for the hearing conducted by the judge was to consider a range of factual allegations made by T's mother against the father relating to the earlier stages of their relationship. The judge conducted that hearing and he delivered himself of an ex tempore judgment which recites the evidence that he heard in some detail and states his conclusions.

The reason that the father brings this appeal is that there is a missing link in the process that I have described, namely the lack of reasons, it is submitted, that is evident throughout the judge's judgment. The appeal is in attractively short terms and it is to the effect that the judge has simply announced his conclusions having recited the evidence and without allowing the hearer of the judgment or the reader of the transcript to be privy to the reasons that led the judge to come to those conclusions.

The case came initially as a matter of permission to appeal before Black LJ, who having read the papers saw the point that was being made and in accordance with the well-known practice indicated it was incumbent upon the applicant to return to the judge to seek further clarification of the judge's reasons. That was undertaken and His Honour Judge Wulwik prepared a short further statement of reasons which runs to less than one side of A4 and is dated 1 September 2014.

When the papers were resubmitted together with that addendum to Black LJ she concluded on 30 September that permission to appeal should be granted because she was concerned as to the apparent lack of any statement of reasons in the judge's judgment and she was concerned that the addendum provided by the judge added little to the sum of information available.

This morning we have heard the father's appeal and I propose to deal with that first of all before moving on to make some, hopefully short, more general comments.

The background to the case is not unfamiliar or in any way extraordinary in the context of private law disputes. T's parents met when they were comparatively young, in their mid to late teens, and their relationship, off and on as it may have been, lasted for some two and a half or more years. T, as I have indicated, was born on 31 December 2009. There is apparently a dispute between the parents as to when after that date they separated. The father says it was in the summer of 2011; the judge records the mother as saying that the relationship "ended somewhat earlier than that", and we are told by Ms Huda, counsel for the mother, who appeared before the judge and appears before us today, that in fact the mother is asserting that the relationship ended a whole year earlier, when T was only some 6 months of age.

Thereafter the father enjoyed contact with T. Again there is a dispute between the parents of a fairly striking level as to quite what that contact entailed. The father's case before the judge was that until contact terminated in July or August 2012 he was having T to stay with him every week from Thursday until Sunday. The mother's case is that whilst there was staying contact, this was much less frequent than the father indicated, it lasted for a shorter period of time and was typically Friday until Sunday and it was punctuated by periods when no contact took place, particularly after one or more of the instances of aggression that she complained about.

Unfortunately for this court, and I would suggest for any judge at first instance dealing with the welfare aspect of the case, the judge's judgment does not grapple with those seemingly important distinctions between the parents' case. There is no finding as to when they separated. That is important not simply because it will indicate the quality and length of the day-to-day relationship the father had with T before the separation but it is also important because many of the dates that are set out in the allegations of fact that the judge was determining traverse the period that is in dispute. If the father is right, most, if not all, of the allegations relate to a period when the couple were still together in some form of relationship. If the mother is right, a good deal of the allegations occurred after the separation.

Secondly, it is unfortunate that there are no findings of fact as to the quality, frequency and level of contact that T enjoyed with the father. That would seem to be bedrock information that any court deciding on T's future welfare would need to have. But it was not on the agenda before the judge and he did not make any findings about it. What was on the agenda was, as I have indicated, a list of allegations of domestic abuse in the sense of aggressive and argumentative behaviour and at times physical violence shown by the father to the mother or to her friends. The original schedule of 18 allegations was reduced to 14 before the start of the hearing and in the event some 11 were proved, including one which rolled together three hitherto separate allegations. Four or five of them related to occasions when it was found that the father had physically assaulted the mother. Two related to instances of criminal damage. One of those included an occasion when the father got hold of the mother's mobile phone and smashed it, and he accepts that he pleaded guilty in the criminal court to an offence of criminal damage in respect of that incident. One of the allegations describes an occasion when the mother was holding T and the father went to hit the mother, missed and caused an accidental glancing impact to the child. Finally, one of the allegations includes an account by the mother, accepted by the judge, of an altercation out in the street during which the father took hold of T and attempted to run off with him down the road.

All of the allegations that I have described took place in the period 2009, therefore prior to T's birth, 2010 or 2011, save for one allegation of an occasion in the street in 2013 where the judge found that the father stopped his car having seen the mother and T and was abusive to her. Then a more generalised allegation of general abusive behaviour by the father and members of his family.

It is against those findings that the father now appeals. He does so with the assistance of Mr Von Berg's submissions, he being counsel before the judge and also before us today, and I for my part have been assisted by the clear exposition that Mr Von Berg has given to the legal context within which the appeal falls and also by his submission of a detailed schedule setting out the allegations and the differences within the evidence that was before the judge.

It is not necessary to spend any significant time describing the legal context; it is well known. Two cases are, however, worthy of mention. The first is Flannery v Halifax Estate Agencies Ltd (t/a Colleys Professional Services) [2000] 1 WLR 377, and within the judgment of Henry LJ in that case the following appears at page 382C:

In simple terms, what the law requires is that the losing party needs to know why he or she has lost on any particular point. This court rightly affords a great deal of respect to trial judges who sit in a courtroom for a number of days immersed in the evidence in the case, be it written or oral, and, most importantly, seeing the demeanour of the key players in the courtroom, particularly when they come to give evidence. What I say in this judgment in this case is not, and I repeat not, intended to raise the bar, alter the law or otherwise cause 99.9 per cent of the judges who undertake this work to depart from their current practice. If indeed there is a general move to encourage judges to change their approach in these cases, it is a move towards giving shorter judgments, rather than longer judgments.

In a straightforward fact-finding exercise such as this, there is no need for an elaborate distillation of each and every point. A straightforward case merely demands a straightforward explanation of the key factors that the judge has taken into account and his or her reasons for preferring one part of the evidence over another. Where oral evidence has been given by the key players it will often, if not always, be important to give a short appraisal of the witness' credibility and, where the testimony of one is preferred over another, a short statement of the reasons why that is so. The trial judge has had the privileged position of seeing the protagonists and using that privileged perspective to inform a conclusion on credibility. For the judge not then to go on in his judgment to offer a brief description of what he has observed and as to how, as a result, he has approached credibility robs any recipient of the judgment of knowledge of that important aspect and, in particular, makes it harder for this court to afford the usual weight that is rightly to be given to the fact that the judge has had a ringside seat at the trial.

In summary, the well-established approach of an appellate court in cases such as this is that a basic, short but clear description of the factors considered and the reasoning that underpins any conclusion is all that is required. But it is nevertheless required, and the question in this appeal is whether the judicial analysis offered by Judge Wulwik in his judgment falls short of that requirement.

I therefore turn to describe the judge's approach in slightly more detail than I have done so far; although the point shortly put by Mr Von Berg does not really need any elaboration, it simply needs evaluation by this court to see whether or not it is a true bill. An example of what is submitted can be given by allegation 4. It is said that in January 2010, the father entered the mother's new property and was banging on the door and when the door was opened he started to hit and punch and kick everyone who was present, namely the mother, her friend A and her friend A's mother, TJ.

Mr Von Berg in the course of his analysis points to the fact that the mother and A gave different evidence about this incident, in particular as to where it took place. In the course of her oral evidence, the mother agreed that the event did not take place at her home but at her friend A's home. She also agreed that it did not happen inside the property but outside. Mr Von Berg submits that these are two striking differences between the mother's original account, reproduced as it was in the schedule for the judge.

The judge, with admirable clarity rehearses the evidence that he heard but then at the conclusion of six paragraphs of summary simply offers this as his analysis at paragraph 25:

A further example is provided by three allegations which were given numbers 5, 8 and 9 in the schedule. Each of those does relate to abusive conduct alleged by the father against the mother taking place at her property. But they were split into three separate allegations by her. In the first, number 5, the allegation was that he had attended and shouted and sworn at her. In the course of her evidence, she said on that occasion that he pushed her and she fell and hit her head on a metal radiator.

In the second allegation, number 8, she alleges that the father was kicking and also that he stamped on her head and that he damaged the property by breaking a hole in the wall. No account of stamping was pursued in the oral evidence. The police report for that occasion was produced and there is no reference to any kicking or stamping on the head or breaking a hole in the wall of the property.

Number 9 is a more general description of an argument which then developed into an allegation of the father physically assaulting the mother in the street in front of the police officers. Again the point made by Mr Von Berg is that there is no reference in the associated police report to the father assaulting the mother in front of the police.

The judge concluded during the course of the hearing that all three of these incidents in fact related to just one event and he therefore rolled them up into a global finding which he came to record at paragraph 33 of his judgment. Before coming to that point he summarises the evidence in relation to all three of the instances in some seven paragraphs. Then at paragraph 33 he simply says this in conclusion:

It is unnecessary, in my view, to go on and deal with further incidents, save to mention one or two points. A striking feature of paragraph 34, which deals with allegation 6, is that the judge records the mother stating in cross-examination that "her jaw was broken" and yet that description of an injury does not appear anywhere in the papers and is not referred to again by the judge in his judgment. My Lord, Elias LJ, suggested that this might be a typographical error and that the word jaw may simply be a reference to "door", which does feature in this allegation, and for my part I agree, I do not now think anything turns on an otherwise seemingly important point.

So far as allegation number 12 is concerned, it is important to refer to that. The allegation was that the father, after the separation and during the period when contact was taking place, would bombard the mother with threatening text messages, telephone calls and Facebook communications and that he would threaten the mother that he would take T away from her, and would call her offensive names and swear at her.

The judge's conclusion on this point was to find the allegation not proved. He did so on the basis that the onus of proof was on the mother and she had simply failed to provide any evidence of the relevant text messages or Facebook communications. That is the judge's conclusion and obviously Mr Von Berg does not seek to overturn that. But it is an important conclusion because it is the one aspect of the schedule of allegations which directly relates to the time when the father was having contact with T.

Returning to the general basis of the appeal, the judge's judgment, as we have it in transcript, contains absolutely no appraisal of the relevant credibility of the various witnesses, in particular the mother and the father. In each case all he does is summarise the evidence and state his conclusions. It was no doubt the expectation of Black LJ in inviting the judge to give further reasons that more light would be shed upon that aspect of the case. But in his further reasons, the judge simply says this:

With respect to the judge, what is said in that document is really no more than a further statement of his conclusions. It is apparent from the main judgment that he must have preferred the evidence of mother to that of the father, what is missing is any explanation as to why that should be the case. Again in passing in that note the judge, as he does in the judgment, makes reference to the information given to him that the mother unfortunately has the difficulty of being a sufferer from dyslexia. The judge takes that into account in his background summary of matters. But it is not clear again in the judgment how he deployed that information in his analysis of quite where the truth or otherwise of the various allegations lay.

For my part, I have a deal of sympathy for anyone who suffers from dyslexic and a deal of admiration for their ability to go through life despite that difficulty. That said, many of the discrepancies that Mr Von Berg has been able to flag up between the allegations made and the evidence given do not seem to be prone to interference from dyslexia. For example, whether the event took place at the mother's house or at her friend's house; whether it was inside the property or outside the property, would not, in my view, be prone to any ambiguity arising from dyslexia. The judge may have taken a different view but we simply do not know, he did not tell us how he brought the dyslexic element of the case into the equation.

Ms Huda, on behalf of the mother, has sought to support the judge's conclusions and she does so in part by submitting a respondent's notice which describes the thought process which the judge might have had on the evidence in this case in order to come to the conclusions that the judge reached. In doing so, she provides an exemplary description of a possible judicial process but as my Lord, McCombe LJ, has observed, in doing so Ms Huda in fact highlights the deficiencies in the judge's judgment. The Respondent’s Notice is Ms Huda's version of what the judgment might have been. We have to evaluate the process in this case on the basis of the judgment that the judge gave together with such additional information as he was able to provide in his addendum. Again in her oral submissions, carefully and attractively made to the court, Ms Huda has sought to submit that this seasoned and experienced judge must have made the conclusions that he did as to credibility having seen the witnesses and we should respect that and that the discrepancies, such as they are, are explicable and were acceptable to the judge.

Again Ms Huda might be right that this was what was going on in the judge's mind. But for my part the process has to be transparent. It should not be a matter of conjecture between counsel as to what the judge did or did not conclude and why he made that conclusion. The parties to a case like this need to know why the judge preferred the evidence of one against the other. That is important not simply as a matter of justice and a matter of having a fair trial which comes to a clear and transparent conclusion but where, as here in this family case, the father is expected now to undertake some form of counselling or therapy on the basis of the findings that have been made, he needs to understand that the process has been a proper process and that these findings are based upon a clear analysis of the evidence.

For my part, I cannot see how the father can be in that position. The absence of reasons creates an unnecessary and unwelcome fault-line in the progress of the case from the fact finding onto achieving an outcome in this child's best interests. Indeed the case has stalled; a Catch 22, again not unusual in these cases, has developed. The father sticks to his denials of the allegations, he is critical of the judge's process, the court however expects him to undertake counselling at a domestic violence intervention project, he will not go to that project because he does not accept the findings and, because he has not been to the project, the CAFCASS advice is that there should be no face-to-face contact with his son. He last saw his son in the summer of 2012 and, unless a different course is to be taken, the Catch 22 that I have described may well result in court orders which continue to keep the two apart in terms of face-to-face contact.

So, with a heavy heart, because much time and effort has been invested in the fact-finding exercise, I am very clear that it was not an adequate process in terms of the judicial evaluation that arose from it. The appeal therefore needs to be allowed and the matter remitted for some form of rehearing.

The question of what form the rehearing should take raises the second aspect that I wish to address in this judgment and it is necessary in looking at that to step back. There is a danger, I fear, that in any case where the label "domestic abuse" or "domestic violence" is used, that there is a semi-automatic reaction generated in the minds of CAFCASS officers and other professionals in the court proceedings to think that inevitably all such allegations need to be thoroughly investigated no matter how old or disconnected to the child they may be and, more worryingly, that all such allegations, if found proved, indicate that there should be no direct contact between the abusive parent and the child.

It is necessary therefore to remind oneself of basic principles. Those are to be found in the well-known authority of this court in the case of Re: L, Re: V, Re: M, Re: H [2000] 2 FLR 334. I am not going to read into my judgment now what is so carefully set out, in particular by Dame Elizabeth Butler-Sloss, the then President, in her judgment but I do make one or two observations. The first is this: that the case was not a narrow case which simply looked at domestic violence and then considered the negative consequences of that upon children; a much more sophisticated evaluation is described in the pages of the judgment and there is a further distinction to be made within that. The first third of the then President's judgment is spent describing the important advice that the court had from Dr Claire Sturge and Dr Danya Glaser, both consultant child psychiatrists, on the issue of domestic violence and contact. Even those well-seasoned in family law would benefit from going back to this decision now in 2015 and re-reading. There the reader finds a balanced description of the benefits and potential detriments to a child where domestic abuse of some form is alleged. It does not recommend an automatic provision of a solution but it describes a sophisticated weighing of the checks and balances of the benefits and detriments of contact.

The second point to make is this: that the description of the psychiatrists' advice, endorsed though it was in general terms by the President, is not the President’s judgment. That follows from page 341 of the law report under the heading "General Comments", and whilst the President is undoubtedly totally in tune with what the psychiatrists advise, the legal impact of that is what she says after that heading and in particular what she says in relation to the extant case law, including the decision of the then Master of the Rolls Sir Thomas Bingham in the case of Re:O [1995] 2 FLR 124. The President goes on to describe a process of evaluation that has to be undertaken by the court in accordance with its duty to come eventually to a decision which is in the best interests of the child by applying section 1 of the Children Act 1989.

That is Re: L, and although it is 15 years ago that that decision was handed down, it remains the bedrock of the approach to this topic. But matters move on and practice develops and the current practice is embodied in the Family Procedure Rules 2010, Practice Direction 12J, which in turn builds on predecessors, each of which dealing with the topic "Child Arrangements and Contact Order: Domestic Violence and Harm". Again, I am certainly not going to read all of that Practice Direction into this judgment but I quote the following:

In this context I would also draw attention to the section of the Practice Direction dealing with directions for any fact-finding hearing, where at paragraph 17 the following appears:

So in deciding that this appeal has to go back for the factual issues to be reconsidered by the court, I consider that the judge, and it has to be a judge other than Judge Wulwik, who is now to be charged with this task must actively consider whether any, and if so which, of the allegations on the current schedule do in fact need to be re-litigated. It is a matter for that judge but I certainly raise a question mark about that.

But also there are allegations in the case which are more relevant to the question of whether or not T could have contact with his father again. We have been taken by Ms Huda in the statements to assertions by the mother to the effect that at handover for contact there was abusive conduct by the father or members of his family. That may or may not be relevant but there is also a need to refer to something I mentioned at the start of this judgment: for the court simply to set down the bedrock dates as to when the couple separated and what contact the father did or did not have to T in the intervening period.

Also, subject to judicial evaluation, because it is a matter of importance, is the question of why the mother chose to stop contact in July or August 2012. She has given various accounts of this and, as is accepted by Ms Huda, her case changed. Initially she was not relying upon the domestic violence allegations, and again this brings into question whether it was necessary for the fact-finding process to be undertaken. At a hearing before District Judge Wright on 12 March 2013, the recital in the order records that contact has been suspended because "the mother believes [T] began to display a reluctance to attend contact". The next recital is in these terms:

What then seems to have happened is that in a subsequent report dated 24 April 2013 the CAFCASS officer has repeated her recommendation, which is that there should be no face-to-face contact between T and the father pending the father attending some form of domestic violence intervention.

The court at the hearing on 12 March 2013 had directed CAFCASS to observe two sessions of contact between that hearing and the filing of the report some 6 weeks later. The CAFCASS report shows that the CAFCASS officer decided not to arrange those observed contacts despite the clear wording of the court order because of her appraisal of "safeguarding" risks that I have described.

Thereafter, some 5 days after the CAFCASS report was filed, His Honour Judge Walwik conducted a hearing on 29 April, and again the recital to that order is on the basis that the CAFCASS officer should observe:

To my eyes, which necessarily have to peer through a number of filters to look into this case, and are therefore not a reliable source of valid judicial appraisal, that was a key moment in the case, less than 6 months after T had last seen his father, with both parents willing to see how he would react in controlled and safe circumstances to being with his father again, with both parents agreeing that domestic violence was not an issue for the consideration of future contact and with the father in effect saying "sorry" for his past behaviour. It was an attempt to draw a line and see how the case could move forward. Unfortunately, as the subsequent CAFCASS report shows, no such contact was arranged because the CAFCASS officer recommended that there needed to be a fact-finding process and by then the mother too accepted that the domestic violence was more prominent and that there was a need for the fact-finding hearing to take place. Then some 9 months were lost in setting the hearing up. Inevitably it was postponed because the mother was expecting the birth of twins, as they turned out to be, and the matter was not resolved until last May and here we now are in January 2015. Much time has been lost.

A new judge now needs to get hold of this case and to take ownership of it. The progress of the case is not to be dictated by a CAFCASS officer. The judge who takes this case needs to form his or her own evaluation of what needs to be decided, what needs to be evaluated and, if necessary, what contact needs to be attempted in controlled and safe circumstances. Seemingly, on my restricted knowledge of the case, that has not happened to date and for my part that is highly regrettable.

So I would allow the appeal, I would set aside the findings of fact made by the judge and I would remit the case back to the Family Court in Essex. I understand that Romford is a hearing centre and the case should at first instance be sent to the designated family judge for this area, which I understand will be the designated family judge at Chelmsford, either for that judge to take on the conduct of these proceedings or to allocate the case to a fresh judge. I do not limit the scope of any further fact-finding process but I do hope that the judge who takes this case on will bear in mind the observations that I have made based, as they are, on Re: L and what is now required by Practice Direction 12J. That is my judgment.

LORD JUSTICE McCOMBE: I entirely agree and wish only to add one or two words on one aspect of the case and that is the two orders that my Lord has just recited towards the end of his judgment in which the court sought to set up supervised contact arrangements which appear not to have taken place. The order was never varied, yet nonetheless the contact never took place. Why that was is not satisfactorily explained, save we are given to understand that the CAFCASS officer disapproved, in the circumstances, of such contact taking place. She may or may not have had good reasons for it but it seems to me that if the order was not to be complied with, the judge had to be approached again to vary his order and to give consideration as to whether or not the contact that he had previously ordered should indeed take place or not.

LORD JUSTICE ELIAS: I agree for the reasons given by McFarlane LJ that the findings of fact of the judge cannot stand in the light of the inadequate reasoning. I also agree with the disposal of the appeal which he proposes. It seems to me there is no purpose in remitting all the original allegations to a new judge. I confess I do not really understand why it was thought necessary to make this particular fact-finding investigation into these allegations of domestic violence at all. The mother, initially at least, said that it was not concerns about domestic violence which caused her to oppose contact with the father, although she did later resile from that position. Rather, it was the aggression he displayed in front of [T] at the point of handover when contact occurred. There have been no findings about that and, perhaps more fundamentally, no-one has sought to discover why this child is unhappy to have contact with the father, as appears to be the case.

Re: L establishes that the effect of domestic violence on the children may be a highly relevant consideration when considering orders for contact and the form such orders such take. At the same time, it stresses that there is no presumption against contact simply because domestic violence is proved. It depends on the circumstances. The significance of domestic violence is that a young child witnessing the violence will frequently be emotionally damaged as a consequence. That is hardly likely in this case. Save for one incident in April 2013, after contact had already ceased, all these incidents, even if witnessed by [T] at all, occurred before the child was 14 months old and most of them before he was 6 months old. The child would have been too young to suffer any lasting trauma from these incidents. It has not been suggested that there was any physical abuse shown to the child himself.

For these reasons, it seems to me that even if the allegations of domestic violence which were the subject of the fact-finding inquiry had been satisfactorily proved, at best they could only be of marginal importance in determining the right of contact. Moreover, the mother was at the time happy to allow contact notwithstanding the fractious relationship. There is a dispute as to how regular that contact was but that there was direct and unsupervised contact after these alleged incidents had occurred is not in issue.

In these circumstances, I doubt whether the resolution of these particular issues was likely to be relevant in deciding whether to make the contact order; and it does not seem to me that it was a proportionate exercise. If that is right, there was no obligation under Practice Direction J12 to conduct the fact-finding investigation (see paragraphs 17 (g) and (h)). If follows that, in my judgment, there is strictly no obligation to remit the case under the Practice Direction for these issues to be reconsidered. I very much doubt whether it would now serve any useful purpose, and would likely be a disproportionate use of judicial time and cost, to investigate incidents which occurred 4 or more years ago when [T] was still a baby. But I would leave open the possibility that the judge dealing with the matter in the future might consider that there is a powerful justification for so doing, at least with respect to some of these matters, not immediately apparent to me.

I also do not understand why the father was suddenly denied any right even to supervised contact pending the fact-finding exercise and before any allegations of violence had been proved against him. It does leave me with the uneasy feeling that the focus may have been on punishing the father because of alleged domestic violence rather than focusing on the best interests of the child.

I also have some concerns about the role of the CAFCASS officer for the reasons explained by McCombe LJ. But it is right to say that they have not been represented in these proceedings and therefore it would be wrong to reach any concluded view as to their role.