T (A Child)

On 17 August 2016 His Honour Judge Bellamy, sitting as a Judge of the High Court, made orders about a 7 year old boy who is the subject of contested private law proceedings between his parents in the Family Division of the High Court sitting at Leicester. I shall call the child AB as that is the way he has been referred to in the proceedings which bring the case to this court.

The relevant clauses of the order which is appealed are as follows:

“2.

The mother shall return the child to the United Kingdom , or in the alternative shall ensure that the child is returned to the United Kingdom in the care of her husband (who is known to be returning to the United Kingdom on 23 August), by 4:00pm on Tuesday 23 August 2016.

[…]

The judge made the order on 17 August 2016 and delivered a reserved judgment on 23 August 2016 which is reported as Re AB (A Child) [2016] EWHC 3115 (Fam). The history of and background to the proceedings can be read in the judgment. All that in summary needs to be said is that on 29 April 2013 the child’s father, who is Polish, made an application for contact with his son. The child’s mother, who is also Polish, did not agree to the same and the father’s application remains outstanding. It is common ground that the delay is inordinate and unacceptable. The reasons for the delay are set out in Judge Bellamy’s judgment.

The mother’s position is that she alleges sexual, physical and emotional abuse perpetrated against her by the father from the age of 12 to 18 when they lived together at the same address in Poland and before she became an adult and subsequently married him. As a consequence and in any event she does not wish the father to have unsupervised contact with their son.

The allegations were initially made to the Polish authorities in the context of possible criminal proceedings that have not materialised and were settled in a schedule of allegations in these proceedings in January 2014. The mother is now in a relationship with another man with whom she is about to have a child. She wishes to relocate to Poland with AB.

The father’s position is that he denies the allegations and wishes to have unsupervised contact in England. The children’s guardian supports direct contact for the father which she has observed to be of high quality in a supervised setting. Given that the child’s mother says that she does not oppose contact in principle, the question for the guardian’s advice and for the court’s determination is on what terms should that contact take place.

The allegations made by the mother which were settled for determination at a fact finding hearing are as follows:

During the proceedings AB was made a ward of court. There have been repeated case management directions providing for a finding of fact hearing to resolve the allegations made by the mother. Latterly, Judge Bellamy became the allocated judge. The parents and the child are represented, exceptional legal aid having been granted. At no less than six listed hearings the court has intended that the factual issues be determined but as the judge describes that has not occurred.

On 15 to 17 August 2016 there was the latest of the attempts to have a finding of fact hearing. The mother did not attend because both she and the child were in Poland. The child had originally gone to Poland for a holiday with his mother and the court’s permission had been obtained for that visit. The holiday was extended beyond its intended end by complications that had arisen during the mother’s latest pregnancy with her new partner. The child was also reported to be ill with shingles.

The judge decided to direct that the child be returned from Poland to the jurisdiction of England and Wales. In addition he decided to abandon the finding of fact hearing and the necessity for making findings of fact so that the next hearing of the court was intended to be a determination of the welfare issues between the child’s parents.

The court’s intention was frustrated by the fact that AB did not return to this jurisdiction, primarily because his mother is said not to have been able to travel, a circumstance that it is said will likely persist until a little while after her confinement and the birth of the new child, and also because the only other adult with whom the child could travel is his step father who is now back in Poland. In addition, it is now reported that AB has become aware of the possibility that he will be separated from his mother’s care if he is returned to this jurisdiction during her pregnancy and that he is distressed about that possibility and resistant to it. In that context, it should be recollected that the judge in deciding to order AB’s return specifically canvassed the possibility that he would have to be placed in foster care in this jurisdiction if no adult returned or remained with him and that although no decision about that was made on the merits, the decision was due to be made at a hearing listed to take place on 23 August 2016.

The judge’s general approach to dispensing with the need for a finding of fact hearing cannot be criticised. He acknowledged the empirical basis for what is now Family Procedure Rules [FPR] Practice Direction 12J and he described the principles and the guidance to be found in it, in particular at paragraph 17 in relation to whether to order such a hearing. He described the overriding objective in FPR rule 1.1 and the duty to actively manage cases in rule 1.4. He brought together the time imperative in rule 1.4(2)(m) with the duty in section 1(2) of the Children Act 1989 so as to emphasise the need for expedition and to avoid harmful delay.

The core of the judge’s reasoning is to be found at paragraphs 78 to 81 of his judgment. He identified three issues: whether it is necessary, proportionate or fair to have a finding of fact hearing. As to the first issue he failed to consider why the court had previously thought it necessary on more than one occasion to order such a hearing. The patent factors that were in play include (without prejudice to whether other reasoning exists which is not detectable on the papers this court has seen): whether the mother’s allegations were the basis for her position as respect’s the father’s contact; whether the mother’s position as to contact was genuine (ie was she saying she would agree in principle to it while demonstrating that she would not do so, in part or in whole because of the truth or otherwise of the allegations); and whether any one or more of the allegations if found to be true would represent the existence of a direct risk to the child or an indirect risk arising out of the impact on the mother’s care of the child of any continuing contact between father and son. In his own analysis of the key issues in the case which can be found in an earlier case management order of the court, Judge Bellamy recorded that the key issues included whether AB could safely spend time with his father and, if so, under what conditions and whether, if the father had behaved as alleged, he posed a risk to AB. The underlying welfare analysis accordingly necessitated determination of the truth of the allegations in order to draw appropriate inferences from the same.

The only contrary reasoning given by the judge on the necessity issue is a) the passage of time, b) the lack of complaint about the father’s behaviour to the mother since their separation and c) the fact that significant progress had been made in re-establishing a relationship between AB and his father. The judge ignored the fact that it was common ground that the passage of time had not dimmed the mother’s perception of the importance of the allegations (ie their effect upon her) and the lack of recent complaint is an element but not necessarily a decisive element in the assessment of the mother’s position for the future and the risk, if any, that contact might entail. It should be noted that the alleged impact of the abuse upon the mother was such that the court had already given directions for special measures to be put in place in order to hear the mother’s oral evidence. The judge purported to rely upon the children’s guardian who had recommended an increase in contact for the father as support for his conclusion on necessity. What the judge misunderstood is that the guardian had explicitly advised that her position as to the nature and extent of that contact was dependent on the findings that the court had yet to make in particular as respects whether the father should have unsupervised contact.

Accordingly, the judge’s analysis failed to engage with the necessity to have a finding of fact hearing by reference to the factors known to be at large on the facts of this case having regard to the guidance given in PD 12J.

The judge then went on to consider proportionality. He concluded that the delay in the case was extreme and that as a consequence it was disproportionate to re-list the finding of fact hearing in the hope that it would be successful. With respect to the judge, that failed to engage with the options available to the court. On any basis the judge was adjourning the application to another hearing. He intended it to be a decisive hearing as respects welfare. The mother would need to be present at that hearing to give evidence about her position, the reasons behind it and the welfare options available to the court. If she chose not to attend, the judge would be faced with making inferences in undertaking his welfare evaluation. There is little difference between the reality of that position and that which faced him in relation to whether findings of fact should be made. As the judge commented, there was little or no circumstantial or contextual material, the evidence would be the ipse dixit of the parties with the possibility of some evidence from the maternal grandmother. If the mother failed to attend the judge would be faced with the same judgment as to whether to draw inferences from her absence in relation to the facts in issue.

I question whether that would have added materially to the time estimate of the welfare hearing and also whether it was necessary to split the finding of fact hearing from the welfare hearing. An option open to the judge would have been to maintain the listing of the finding of fact concurrently with the welfare issues or with welfare to follow on shortly thereafter. The mother could have been warned on the face of the adjournment order that the finding of fact hearing (and the welfare hearing) would not be adjourned again and that inferences might be drawn from her failure to attend.

In summary, a more proportionate and fairer way of dealing with the case management issue that had arisen would have been to adjourn the finding of fact hearing to the new date when welfare disposal could also have been undertaken. I am wholly unimpressed by the submission that an experienced guardian would need extended time to consider the mother’s evidence or the judge’s findings in order to advise about welfare. That could and should be within her expertise. Furthermore, this is not one of those cases where an adjournment between the finding of fact hearing and the welfare hearing is useful to allow the party who has not proved their case or against who findings are made to re-assess their position. Retaining the finding of fact direction and making effective orders for the final hearing would not have delayed the case any longer than any appropriate hearing which permitted the mother to participate in the welfare determination.

Although it may not have been determinative in this case, I note that the judge’s consideration of proportionality failed to deal with both collective and individual proportionality. The former is about the effective and efficient administration of justice ie all of those cases waiting to be heard in the justice system whereas the latter is about justice in the individual case. There was no consideration of estimated lengths of hearing, waiting times or options for more effective disposal of the case for example by video hearing. A judge is entitled to be informed by these among other matters when considering the overriding objective in FPR rule 1.1.

The judge did not give a reason about why it would be fair to dispense with the finding of fact hearing. One can deduce that it was because he had earlier in judgment and rightly analysed the unfairness to the father and the child of delaying a decision on contact any further. For the reasons I have explained, a fairer process would have been one where the mother would have been placed on notice that her allegations would be considered in her absence on a date when she could attend so that inferences might be drawn from her absence. That would have ensured substantive and procedural fairness.

For all these reasons I came to the conclusion at the end of the appeal hearing before this court that exceptionally this court should intervene in a case management decision on the basis that it was plainly wrong in principle (as to which, see for example the summary of the President in Re TG (A Child) [2013] EWCA Civ 5). Accordingly, with my Lord’s agreement the appeal was allowed and new case management directions were made for a hearing before a different judge.

It was not necessary to deal with the second clause of the order relating to the return of the child other than to make new directions that provided for the same. AB’s father agreed to that clause of the order being set aside by consent with new directions being made by this court given the changed circumstances. I make it clear that although only part of the order in question was appealed and part was conceded in light of the changed circumstances, the judgment of Judge Bellamy cannot be relied upon in relation to any future case management or as to the substantive merits because it contains observations about the parties that have not yet been tested by considering the evidence.

I agree and we give permission for the judgment to be published.