J (DV Facts)

This is an appeal from a decision of His Honour Allweis, sitting in the Manchester Family Court at the conclusion of contested proceedings under the Children Act 1989, s.8. The outcome of the proceedings was that no order for contact was made with respect to the eldest child, a boy, ‘B’, now aged 16, and only limited provision was made for indirect contact to the youngest child, a girl, ‘C’, now aged 11. The children were born to a married couple who separated in September 2014. It is a striking fact that since the day he left the family home the father has had absolutely no contact whatsoever, either direct or indirect, with these two children, or, indeed, their older brother, ‘A’, who is now aged 18.

In bringing his appeal, for which I granted limited permission in March 2017, the father seeks to challenge a number of the key procedural steps undertaken within the proceedings which, individually and together, he submits amounts to a failure on the part of the court to deploy its powers to the best ability to maximise the prospect of reinstating some form of contact with at least some of his children.

The children’s mother has taken no step to engage in the appeal process. It is said on her behalf that she lacks the funds to instruct lawyers and her health prevents her from taking part in the appeal process as a litigant in person. The two children, who were parties to the proceedings and represented by a social worker appointed by NYAS as their children’s guardian, have also played no part in this appeal. Legal aid was only granted for the guardian in the appeal effectively on the eve of the oral hearing before this court. NYAS did not prosecute an application for an adjournment and the court did not consider that it was necessary to adjourn the proceedings to enable them to play a more active part.

The parents were married in September 1995 and, as I have indicated, have three children now aged between 11 years and 18 years. Separation occurred in September 2014 when the father left the family home.

Proceedings before the Family Court commenced on 22 December 2014 when the mother applied, without notice to the father, for a non-molestation order under Family Law Act 1996, Part 4. Her application was supported by an extensive list of allegations of physical violence, drunken and controlling behaviour on the part of the father, including a serious and detailed allegation of marital rape on 21^st January 2014.

At the first hearing District Judge Mornington granted a without notice non-molestation injunction, but made provision for an on notice hearing before her early in January. In addition to standard terms prohibiting the use or threat of violence, the father was expressly required not to:

Upon receiving notice of the proceedings the father denied the allegations made by the mother and, instead, asserted that it was the mother who had been guilty of abusive and controlling behaviour within their relationship. The father also issued an application for a child arrangements order with respect to all three children with the aim of maintaining a full relationship with each child on the basis that they would reside with him.

At a key directions hearing on 17 February 2015, the Family Law Act and Children Act proceedings were consolidated. It was directed that the mother would be the applicant in the consolidated proceedings and that her solicitors would have responsibility for processing an outstanding application to the Greater Manchester Police for disclosure of any relevant material. The order from that hearing records that District Judge Mornington determined that a finding of fact hearing was “necessary” in these proceedings.

At a further directions hearing on 23 April 2015, directions were given as to the material that had, apparently, been disclosed by the police and included a provision for transcribing DVD evidence, with the father being responsible for paying half of the costs. The mother’s solicitors were to make further enquiries of the police in relation to material that possibly remained undisclosed.

It is plain that District Judge Mornington was fully alive to the potential difficulty of conducting a fact-finding process with the father as a litigant in person in a case where it may be necessary for the mother, and, indeed, the eldest child A, to be cross-examined as to the allegations of violence and rape that she had made. The judge therefore directed that the potential for an order requiring HMCTS to fund the father’s representation, which was, on the case law at that time, a potential option at that stage, be transferred for consideration and allocation by the local Designated Family Judge or the Family Division Liaison Judge for the circuit.

As a result of the referral to more senior judiciary the case was allocated to His Honour Judge Allweis and listed before him for the first time on 2 July 2015. On that occasion there was an issue as to the role that the father’s Mackenzie Friend would take in the proceedings generally, and, more specifically, whether or not he might undertake the cross-examination of the mother and the eldest boy. The court order for that day records that

“having considered the documents, received the representations of the parties, and the safeguarding report, the court is currently of the view that a fact-finding hearing is necessary in this case; however, the court will consider this again at the next hearing.”

There was no objection to the father having the assistance of a Mackenzie Friend and no objection to the identity of the particular Mackenzie Friend involved who, indeed, the judge described as “obviously a very experienced Mackenzie Friend”. The issue related to what, if any, rights of audience the Mackenzie Friend might be afforded.

It is now well known that difficulties exist where challenge is made by a litigant in person, who is identified as the perpetrator of serious abuse, and that challenge falls to be put in cross-examination to the key witnesses who support those allegations. The case law on this topic was developing during the currency of the present proceedings and, by July 2015, this court had given judgment in the case of Re K and H (Children) [2015] EWCA Civ 543 which rejected the suggestion that there was jurisdiction in the court to direct that HMCTS, or indeed any other agency, should provide public funding for limited legal representation. HHJ Allweis noted that decision and rehearsed the key details of it in his short judgment. He noted that ‘the case is a difficult one in which, in extremely broad terms, the parents make serious allegations against each other’. He focused upon the application for rights of audience for his McKenzie Friend made by this father in these proceedings at paragraph 15 of that judgment in these terms:

“15.

The idea of a McKenzie Friend, however articulate and experienced, either cross-examining a parent accusing a partner of serious sexual violence or indeed serious physical violence, or even of cross-examining the parties’ 16 year old child if in due course X gives evidence against his father, is highly unpalatable and this court would be very disturbed by that prospect. [The McKenzie Friend] has suggested that he has been given rights of audience frequently by judges and I pressed him as to whether this had ever happened in Greater Manchester. In effect he said that it had not and that there may be geographical differences. I told him in no uncertain terms that I have never come across it in Greater Manchester and this court, of course, is one of the busiest, if not the busiest, family court in the country.”

The judge then reminded himself of the relevant practice guidance on McKenzie Friends ([2010] 2 FLR 962), in which the President, at paragraph 4, states that McKenzie Friends may not, inter alia, “address the court, make oral submissions or examine witnesses”.

The judge refused the application saying:

“19.

At the end of the day, for the reasons I have given, the application is refused. I contemplate with profound disquiet, and that is putting it pretty mildly if I may say so, the prospect of a McKenzie Friend, in effect with rights of audience, cross-examining a mother in relation to serious and complex allegations, let alone a teenage child of the parties if and when X gives evidence so the application is refused.”

The case came back before the judge on 17 July 2015. The order made on that occasion records that the case is being adjourned ‘to allow for NYAS to undertake their enquiries and report by 10/9/15’. Under the heading ‘Finding of Fact Hearing’, the order states that ‘the Court will consider the necessity of such at the next hearing.’

The case next came before Judge Allweis on 17 September 2015 by which time the judge had received an extensive report from the NYAS worker which recorded trenchant and highly negative views expressed by all three children with respect to their father and with none of the children being able to contemplate the prospect of any form of contact with him. The hearing on 17 September 2015 is important in the context of this appeal. We do not have a transcript of the hearing or of any judgment given but, fortunately, a full order records the outcome. Firstly, the order states that

“Today’s hearing is listed for directions to consider whether there needs to be a fact-finding hearing in this case.”

At paragraph 9 the court order records ‘the issues that the parties are agreed about’ and, under that heading, includes ‘(iii) given the wishes and feelings expressed by all children, a fact-finding hearing is unlikely to assist the parties in resolving the issue of contact.’

The father, as a litigant in person, had the assistance of the same McKenzie Friend at that hearing although, as we were told, in accordance with the judge’s earlier ruling, the McKenzie Friend was not permitted to address the court. At a later hearing the judge stated that the decision not to hold a fact-finding hearing was made with the agreement of each of the parties, including the father. It is of note, however, that such an agreement is not recorded on the face of the order. What is, however, recorded is agreement as to modest arrangements for some indirect contact on a three-weekly basis between the father and the youngest child. The case was adjourned for a further directions or review hearing to 11 January 2016.

When the case returned to court at that next hearing there had, apparently, been no attempt by the father to take up any of the indirect contact for which provision had been made. Such reasons as the father offered, which are of no relevance to the present appeal, were not accepted by the judge who was highly critical of him. The court therefore, effectively, repeated its previous order in the hope that indirect contact would then start.

Following a further review hearing in May, the matter came on for a final hearing on 12 and 13 July 2016 and it is against the outcome of that hearing that the father primarily targets this appeal.

At the conclusion of the July 2016 hearing the judge gave an extensive judgment. In it he recorded the children’s wholesale opposition to any form of contact and the position of the mother and NYAS which was to oppose the making of any direct contact order. The judge rehearsed the history of the litigation and, at an early stage, recorded that “it has not been necessary for me to make findings of fact”.

The judge provided an extensive summary of the NYAS worker’s report which recorded that the children were “extremely loyal to their mother” and adamantly against contact. So far as A is concerned the judge said:

The judge’s detailed summary of the children’s wishes and feelings, as described by the NYAS worker, continued by setting out B’s wishes, which were in line with his older brother. The youngest child, C, was also ‘clear that she did not want to see’ her father. The judge’s account of her wishes includes the following:

The NYAS worker advised that “any order made against [the children’s] wishes will be futile and it is impossible to force them into spending time or living with their father.”

The judge then referred to the decision in September 2015 to abort the plan for a fact-finding hearing, heavily stressing that that approach was agreed by all parties:

The judge dealt briefly with the non-molestation injunction, which had remained in force for over 18 months, from December 2014, without any substantive inter-partes hearing, and in relation to which the parties were by July 2016 in agreement that it should end:

During his analysis of the legal context the judge returned to the lack of a fact-finding hearing (at paragraph 38) as follows:

“38.

An unusual feature of this case is that absent the finding of fact hearing or evidence about bitterly contested matters, the factual matrix does not include adverse findings against the father or in relation to his past behaviour. So, in essence, we have a mother reporting that she and the children have been traumatised by the father’s violent, aggressive and uncaring approach and behaviour and the father claiming he has been a victim of the mother’s malevolence, false allegations and unjustified poisoning of the children’s minds and an absence of judicial determination. Does that matter? Usually, of course, it matters because the mother’s implacable hostility to contact, particularly if based on a child’s opposition to contact, or a child’s wishes and feelings, must be genuine and based on good grounds or objectively good grounds. In my judgment it was and it is not necessary for there to be findings against the father provided that the court’s decision to refuse direct contact is founded on the proper application of established principles.”

After a reference to the judgment of this court in Re W (A Child) [2012] EWCA Civ 999, the judge referred to Family Procedure Rules 2010, Practice Direction 12J (as it was drawn prior to amendment in 2017) with respect to “Child Arrangements and Contact Order: Domestic Violence and Harm” as follows:

“… in particular paragraph 4, the presumption that the involvement of a parent in a child’s life will further the child’s welfare so long as the parent can be involved in a way that does not put the child or other parent at risk of suffering harm. Also, paragraph 17 on the question of determining whether it is necessary, and I underline that word, to conduct a fact-finding hearing. I note in particular some of the relevant factors:

“(a)

the views of the parties and of CAFCASS [here NYAS] …

(e)

whether the factors set out in paragraphs 36 and 37 can be determined without a fact-finding hearing … (g) whether the nature and extent of the allegations, if proved, would be relevant to the issue before the court.”

The judge then went on in the following paragraph to say:

“42.

I remind myself of the agreement of 17^th September 2015 that a fact-finding hearing was unlikely to assist the parties in resolving the issue of contact. The issue here is contact and the father’s future relationship with one or more of the children. It is not and it is no longer the non-molestation order application. I recognise that I could not continue a non-molestation order without findings but in any event the decision about contact in the future and contact-related questions is what needs to be the focus. “(h) Whether a separate finding of fact hearing would be necessary and proportionate in all the circumstances of the case”. Paragraph 36 actually is part of a section headed “Factors to be taken into account when determining whether to make child arrangement orders in all cases where domestic violence or abuse has occurred”. I stress of course that here no findings have been made.”

The judge moved on to reject the suggestion of a further adjournment for a psychological or psychiatric assessment and rejected a change of residence, which was the father’s case. The judge then considered the young people’s wishes and feelings in the context of the decision in relation to a finding of fact hearing at paragraph 51:

“51.

If I can interweave the question of a child’s wishes and feelings and finding of fact hearing, I would say this:

Finally, at paragraph 58 the judge drew together his conclusions saying:

“I am satisfied that all necessary steps have been taken since the institution of the father’s application to facilitate contact and I conclude that there is no reasonable prospect whatsoever of observed contact, let alone unsupervised direct contact, being possible.”

The judge went on to rule out any form of contact to the elder of the two children but made provision for some limited indirect contact to the younger girl.

The Grounds of Appeal on which the father was granted permission to appeal raise the following principal issues:

The appeal was advanced on behalf of the father by his McKenzie Friend, to whom we afforded rights of audience for that purpose. At the core of the appeal is the father’s assertion that the court should have conducted a fact-finding hearing very promptly after the need for one was identified by DJ Mornington in February 2015; that it did not do so was, submitted his McKenzie Friend, because the judges went into ‘a tail-spin’ over the question of how the mother and A would be cross-examined given the father’s status as a litigant in person. It is said that the proceedings limped on a ‘step and stall’ basis from one directions hearing to another without the court ever getting hold of the case and grasping the fact-finding nettle. More generally, the father asserts that, despite the fact that the proceedings were before the court for nearly two years, his case was never heard.

The father’s case is that cross-examination by his McKenzie Friend should not have been ruled out on grounds of principle, either because of a local practice in Manchester or because the President’s Guidance does not allow for it. So far as the latter is concerned, it was submitted that the Guidance may need to be updated. This court was told that, irrespective of the specific issue relating to cross-examination, the father’s McKenzie Friend was not permitted to address the court at any of the directions hearings, save for being allowed to ask some questions of the NYAS worker at the final hearing.

With respect to the recorded ‘consent’ of the father at the 17 September 2015 hearing to the decision not to hold a fact-finding hearing, we were told that the father was offered a direct choice between adjourning the case for a factual hearing or attempting to re-start indirect contact with C. Of those alternatives, the father chose the option of contact.

With respect to the ground summarised at D(i) above, reference is made to the NYAS report where, when referring to the welfare checklist in CA 1989, s 1(3) with respect to ‘harm’, the NYAS reporter stated:

Given the absence of any other party, and the clarity with which the father’s case was presented, the oral hearing of the appeal was correspondingly short. At the conclusion of the hearing we reserved our judgments. I regret that the preparation of this judgment has been delayed due to the pressure of unrelated matters and I apologise to the parties and to the children for this unwelcome delay.

In 2000 a wake-up call was delivered in no uncertain terms to the family courts with respect to the potential harm to children that may arise from domestic abuse within a family, whether or not the children are directly involved in any particular episode of such abuse, and whether the abuse is physical or of a more subtle form (Re L; Re V; Re M; Re H (Contact: Domestic Violence) [2000] 2 FLR 334). In the nearly two decades that have followed, through guidance, authority, judicial training and from expert evidence delivered case by case, the need to be aware of and afford priority to the impact of alleged domestic abuse on children has become embedded into the family justice system.

Through a series of Practice Directions, the most recent of which is the version of Family Procedure Rules 2010, PD12J (‘Child Arrangements and Contact Orders: Domestic Abuse and Harm’) which was issued in October 2017, courts are required, at an early stage in proceedings, to identify whether there are issues of domestic abuse and, if so, apply the requirements of PD12J to their management of the case. Although it was the previous version of PD12J that was in force when the present proceedings were before the Family Court, to avoid confusion, I propose the refer to certain key passages in the current text of the PD12J direction.

Under PD12J, ‘domestic abuse’ is defined as including:

By paragraph 5:

By paragraph 7

By paragraphs 16 and 17

Paragraph 19, which includes a substantial list of considerations to which the court must have regard when a fact-finding hearing is considered necessary, has, as an overarching requirement the need to the proceedings to be ‘conducted to ensure that the matters in issue are determined as soon as possible, fairly and proportionately, and within the capabilities of the parties.’ (emphasis added).

Paragraph 22, which is within a section dealing with welfare ‘reports under section 7’, indicates that such a report will not usually be requested until after any fact-finding hearing.

It should be stressed that the passages to which I have made reference in the 2017 version of PD12J are, in some places, significantly different from the shorter and less specific provisions which were in place at the time that the present case was before the Family Court.

Be that as it may, key principles such as the need to avoid delay, or the presumption in favour of a child maintaining contact with his or her parent, have long been part of the bedrock of family law. CA 1989, s 1(2) has, for 25 years, provided that:

Pausing there, and applying the regime in CA 1989, s 1(2A) and 1(6) to the present case, the statutory default position established by s 1(6) is that a parent is not to be treated as a risk of harm to a child unless there is some evidence of risk ‘before the court’. In the present case there was evidence of risk of harm before the court in relation to both parents. On the mother’s case, the father had a significant history of abusive behaviour towards her and that this had had a wholly negative impact upon the children. On the father’s case, the mother had fabricated the allegations against him, had drawn the children into the adult dispute and had, thereby, alienated them against him to the extent that they now no longer wished to have anything to do with him. The NYAS guardian had advised that the parental dispute had caused the children significant harm and that, amongst other factors, it could cause significant emotional harm for a child to grow up believing that one of their parents does not love them.

Although as a non-lawyer it was not put this way by him, the father’s case on appeal directly questions how the court in the present case could be said to have complied with the requirements of s 1(2A) and s 1(6) when, without investigating the evidence before the court, the court order left the children in the care of the mother who represented, on one view of the evidence, a clear risk of continuing significant emotional harm to them.

It is to be noted that, at the same time as this court has been considering the present appeal, two separate reported decisions by High Court judge’s sitting in the Family Court or in the Family Division have highlighted the need for courts to adhere closely to the requirements of PD12J. Each of the cases is based upon specific and necessarily complicated facts. It is not necessary to read those facts into this judgment. Equally, and most unfortunately, each of the cases demonstrates a very significant failure by the courts to follow the clear requirements of PD12J (in its earlier formulation). The cases are:

It is only necessary to refer to certain of the observations made by the judges in each of these three cases. In doing so, I would wish to associate myself with and endorse what is said in each of these extracts. The case before Cobb J in Re CB differed from the present case in that the father had been convicted of harassing the mother and it was established that his behaviour, unless checked, would be likely to cause the child continued physical, psychological and/or emotional harm. Nevertheless Cobb J afforded significant priority to the goal of achieving some form of re-connection between father and daughter. At paragraphs 66 to 68 of his judgment he said:

In Re D, Peter Jackson J (as he then was) was, on appeal, reviewing the progress of a contested CA 1989, s 8 application with a history which is not wholly dissimilar to the present case. The proceedings began in 2013 with cross applications by each parent, at the centre of which were serious allegations of domestic abuse made by the mother against the father. Following the father’s acquittal in the criminal court in 2015, the need for a fact-finding hearing was accepted by the Family Court. The fact-finding hearing was listed no less than eight times over the course of 18 months before it eventually commenced, only to be, as Jackson J held, wholly mismanaged at the final hearing. One of the central reasons which had caused delay had been the court’s inability to determine and then hold to a case management decision as to the manner in which the father, as a litigant in person, was to cross examine the mother in the proceedings.

When setting out his conclusion, Jackson J said [at paragraph 19]:

In Re M this court (Sir James Munby P, Arden and Singh LJJ) considered the approach to an application by a transgender father, who had been a member of the ultra-orthodox Jewish community in which the children and their mother still lived. In the course of the court’s judgment consideration was given to the approach that a family court must adopt to the issue of continued contact in difficult circumstances. The judgment of the court (delivered by the President) stated (at paragraphs 56 and 57):

Shortly thereafter, the court re-emphasised the importance of the duty to strive to achieve contact at paragraph 61:

In terms of the need for a fact-finding hearing, it is important not to lose sight of the fact that a non-molestation injunction had been made against the father at a without-notice hearing in December 2014 for a period of two years and that the order explicitly prevented him from communicating with his children by any means. The father contested the factual allegations upon which the injunction application was made and attended the return date indicating his intention to contest the injunction in January 2015. The injunction was, however, never the subject of any contested hearing and was eventually discharged in September 2016, only some four months before it was due to expire.

The need for a parent to have a timely and immediate hearing to contest an injunction which prevents him from communicating with his children, and which was made in his absence and without notice to him, hardly requires explanation. The approach to without-notice non-molestation or occupation orders had, however, been the subject of bespoke guidance issued by The President on 14^th October 2014. The guidance advised that any without notice order should not normally exceed 14 days and that if a respondent applied to set aside or vary the order, the court must list the case ‘as a matter of urgency’.

More recently, and after the conclusion of the present case in the Family Court, the Practice Guidance was re-issued by The President on 18 January 2017 (Practice Guidance: Family Courts – Duration of Ex Parte (Without Notice) Orders [2017] Fam Law 332; Family Court Practice 2017 (‘The Red Book’) p 2721). Those parts of the 2017 Guidance which have particular relevance to the present case are:

The detailed guidance on McKenzie Friends issued by the then Master of the Rolls and President of the Family Division in July 2010 remains in force and is to be applied in cases in the Family Court (Practice Guidance: McKenzie Friends (Civil and Family Courts) – [2010] 2 FLR 962). Regarding ‘rights of audience’, the Guidance is clear (at paragraph 4(iii)) where it provides that ‘McKenzie Friends may not … (iii) address the court, make oral submissions or examine witnesses’. Later, in a section headed ‘Rights of Audience and Rights to Conduct Litigation’, the Guidance does contemplate that a court may grant a right of audience to a McKenzie Friend, but advises that ‘courts should be slow to do so’ (paragraph 18). Thereafter at paragraphs 19 to 26 detailed advice is given as to the approach to be taken where an application for rights of audience is made. As it is not the purpose of this judgment to seek to amend or interpret these specific provisions, it is not necessary to set them out here.

As the guidance makes clear, at all times the question of what role, if any, in terms of advocacy a McKenzie Friend may take is a matter for the trial judge albeit that that is set against the default position of being slow to grant rights of audience and only doing so where the question has been ‘considered very carefully’.

For some time now the Court of Appeal has normally granted rights of audience to a bona fide McKenzie Friend. The experience of doing so has been very largely positive in that those McKenzie Friends who have taken on the role of advocate have done so in a manner which has assisted both the court and the individual litigant, as, indeed, was the case in the present appeal. Although it may have become the norm at this appellate level to grant rights of audience, that should not greatly impact upon the altogether different issue of rights of audience at first instance, particularly in a fully contested hearing. Assisting a litigant to marshal and present arguments on appeal is a wholly different task from acting in the role of counsel in a trial.

The appellant father is able to point to the one or two occasions in which HHJ Allweis indicated that, from his experience, he was unaware of any McKenzie Friend being granted a right of audience in the Family Courts in Manchester. No reference is made to any formal policy, and it does not appear that one exists. It is also of note that the judge did in fact allow the father’s McKenzie Friend to ask questions of the NYAS worker at the final hearing.

There is, as I have already indicated, a stark distinction between a McKenzie Friend assisting by making an oral contribution at, for example, a case management hearing, on the one hand, and cross examining key factual witnesses in a trial, on the other. I would be surprised if the courts in Manchester, or indeed any other location, were adopting a blanket policy of never allowing any McKenzie Friend to address the court in any circumstances. To do so would not be in accordance with the Practice Guidance, which permits the grant of rights of audience if, after careful consideration, the court considers that is justified to do so. It would not, however, be surprising if there were to be only very, very limited, or no, experience at a court centre of a McKenzie Friend being granted full rights of audience to undertake cross examination of key factual witnesses at a contested hearing. It is this latter point which is at the centre of the father’s case, and is part of the wider point relating to the court’s failure to grasp the nettle and establish a timely fact-finding hearing at which the father’s case could, in some manner, be put in questioning to the mother and, if called, A. It is therefore to that key aspect that I now turn.

The very substantial difficulty engendered by a litigant in person whose case needs to be ‘put’ to a key factual witness, where the allegations that that witness makes need to be challenged and are of the most intimate and serious nature, and where the litigant and the witness are themselves the accused and accuser, has long been recognised by the family courts. The frequency with which this problem arises inevitably increased when the availability of Legal Aid funding for private law children proceedings was withdrawn as from April 2013, following implementation of the Legal Aid, Sentencing and Punishment of Offenders Act 2012.

I can do no better than reproduce a recent short extract from the judgment of Hayden J in Re A (A Minor: Fact-finding: Unrepresented Party) [2017] EWHC 1195 (Fam); [2017] 3 FCR 494 (paragraphs 61 and 62), setting out with clarity the high level of concern felt by judges who have to manage this issue in the family courts on a regular basis:

Various strategies to meet this problem have been contemplated and attempted in recent times. One such, which no doubt had some impact on the progress of the present appeal, was the proposition that, where there was no other alternative source of funding for the representation of an alleged perpetrator of abuse for the purposes of cross examining his abuser, the Family Court could direct that funding be provided by HM Courts and Tribunal Service [‘HMCTS’]. The proposition was held to be sound by Sir James Munby P in Q v Q; Re B; Re C [2014] EWFC 31 in a judgment delivered on 14 October 2014. The judgment in Q v Q no doubt influenced DJ Mornington’s decision in April 2015 to transfer this case up for consideration at a more senior level of judiciary. By that time, in another case (Re K and H), HHJ Bellamy had, on 5 January 2015, made an order directing HMCTS to fund representation to enable cross examination on behalf of an alleged abusing father to be put to his former partner. Judge Bellamy’s order was the subject of appeal and, on 22 May 2015, this court (Lord Dyson MR, Black and McFarlane LJJ) held that a judge in family proceedings lacked the power to make such an order [[2015] EWCA Civ 543]. Thus, by the time that the present case came before HHJ Allweis for the first time, the prospect of directing that HMCTS should fund representation for this father had ceased to be a tenable option.

The present appeal neither provides an opportunity for, nor requires, this court to set out definitive guidance to trial judges on how this most important and difficult issue is to be resolved when it arises before them. Some guidance is to be found in PD12J (as set out in paragraph 71 below), but the reality is that the options available to a judge are likely to be stark. Either the alleged abuser conducts the cross examination himself (possibly with the assistance of a McKenzie Friend) or questions are put on his behalf to the witness by the judge.

Direct questioning of an alleged victim by the alleged perpetrator has long been considered to be a highly undesirable prospect by family judges. It was contemplation of that process which led Roderic Wood J to flag the problem up in the first place in H v L & R. In Q v Q and in Re K and H, the need to look for alternative acceptable means for cross examination led to the court sanctioning orders against HMCTS. It is clear that the experience of those judges who have felt forced to permit direct questioning from an alleged abuser is extremely negative. In very recent times Hayden J, in Re A (above) has concluded that, following his experience in that case, he is not prepared to contemplate repeating the process in any subsequent case. Hayden J’s clear and eloquent observations deserve wide publication:

Hayden J’s words demand respect, both because they come for a highly experienced family lawyer and judge, but also because of the force with which they were expressed following immediately upon first-hand experience of observing an alleged victim being directly cross examined by her alleged perpetrator and despite the significant degree of protection the court had sought to provide for her.

The guidance in PD12J as to the conduct of a fact-finding hearing is extensive and requires consideration in full in every case to which it applies. For the purposes of concentrating upon the cross examination process alone, I would draw attention to the following extracts. Paragraph 19 lists various matters which a court should consider when making case management directions prior to a fact-finding hearing:

Paragraph 28 deals with the fact-finding hearing itself:

In between the option of direct questioning from the alleged abuser and the alternative of questioning by the judge sits the possibility of affording rights of audience to an alleged abuser’s McKenzie Friend so that he or she may conduct the necessary cross examination. The possibility of a McKenzie Friend acting as an advocate is not referred to in PD12J and, as has already been noted, the guidance on McKenzie Friends advises that, generally, courts should be slow to afford rights of audience. For my part, in terms of the spectrum of tasks that may be undertaken by an advocate, cross examination of a witness in the circumstances upon which this judgment is focussed must be at the top end in terms of sensitivity and importance; it is a forensic process which requires both skill and experience of a high order. Whilst it will be a matter for individual judges in particular cases to determine an application by a McKenzie Friend for rights of audience in order to cross examine in these circumstances, I anticipate that it will be extremely rare for such an application to be granted.

It follows from this brief review that, where an alleged perpetrator is unrepresented, the court has a very limited range of options available in order to meet the twin, but often conflicting, needs of supporting the witness to enable her evidence to be heard and, at the same time, affording the alleged perpetrator a sufficient opportunity to have his case fairly put to her. Of the options currently available, the least worst is likely to be that of the judge assuming the role of questioner.

Finally, in this regard, it is of note that proposals to address the problem of a litigant in person who wishes or needs to cross examine a witness were contained in clause 47 of the Prison and Courts Bill which, in the event, fell when Parliament was dissolved prior to the General Election in 2017. Without expressly endorsing any of the detailed proposals in the Bill, which are of course a matter for Parliament, it is to be hoped that the issue may once again be brought forward for consideration sooner rather than later.

It is now necessary to draw these various threads together within the context of the father’s present appeal.

The father’s complaint, at Ground ‘C’, that no findings of fact were made is at the heart of this case. From the very first time that both of these parties were before the court, it must have been entirely plain that a fact-finding hearing was necessary. The mother had made a substantial number of serious and specific factual allegations, including a detailed allegation of marital rape. The father denied each of the allegations and, moreover, asserted that he was the parent who had the closer relationship with the children. The NYAS report later recorded that the father ‘is adamant that he had an excellent relationship with his children up until this separation from [the mother]. He has advised me that C and especially B would have been closer to him than their mother. He believes that the children have been poisoned against him and have been told malicious lies and that is emotional child abuse.’

Irrespective of the need for a fact-finding hearing within the context of contested cross-applications under CA 1989, s 8, the court had made a non-molestation injunction at a without notice hearing. That order, which was fixed to run for two years, prevented the father from having any contact with his children. The father made plain from the very first hearing that he wished to contest the injunction and that he wished to see his children. The applicable guidance at the time advised that, where a without notice injunction is subsequently contested, an on-notice hearing must be listed ‘as a matter of urgency’. Although it can play no direct part in his challenge to the final contact order, the father is entirely justified in complaining (in ground ‘A’) that the without notice injunction, which directly impacted upon his relationship with the children, was allowed to run for over 18 months without any determination of the relevant facts.

DJ Mornington was, therefore, correct in holding at the first full directions hearing in February 2015 that it was ‘necessary’ to hold a fact-finding hearing. Thereafter, given the possible development of the law to permit the court to direct HMCTS to fund representation for the father in these circumstances, it is entirely understandable that, on 23 April 2015, DJ Mornington directed that the case be referred to the DFJ and/or FDLJ for allocation to a more senior judge.

By the time the case first came before HHJ Allweis some ten weeks later, the potential for the court to look to HMCTS for funding had evaporated and, so far as representation at any fact-finding hearing was concerned, the court was left with the more basic options of the father undertaking the task himself or the judge taking on the role of questioner. Affording advocacy rights for the father’s McKenzie Friend to undertake the cross examination was not, for reasons to which I will turn, a tenable solution and was rightly reject by the judge.

The hearing on 2^nd July 2015 was, in hindsight, the turning point in these proceedings and, in my view, the moment when the management of the case fell into error. By July 2015, the father had not seen or communicated with his children at all since the day of separation in September 2014, some 10 months earlier. He had been subject to a without notice non-molestation injunction for over 6 months. The father had been a party before the court since January 2015 with a live application to see his children and, indeed, to have them living with him; he actively contested the continuation of the injunction. DJ Mornington had held that a fact-finding hearing was ‘necessary’ and the case had been transferred up to circuit judge level for that hearing to take place. At the July hearing HHJ Allweis himself expressly held that a fact-finding hearing was ‘necessary’, although the issue was to be re-considered at the next hearing which was fixed for 17^th July.

Doing the best one can, it would seem that the note of hesitation that can be detected in the 2^nd July order on the topic of fact-finding arose from the decision to join the children and instruct NYAS to act as their guardian and prepare a report. When the case returned on 17^th July, the report was timetabled and the issue of whether or not there should be a fact-finding hearing was adjourned to be considered in the light of the report at the next hearing in September.

Despite the high degree of respect that this court readily accords to HHJ Allweis, who is one of the most experienced Family judges in the country, I am of the clear view that in this case, given the issues as I have described them, there was an inescapable need for the underlying factual assertions made by each party to be resolved as far as that was possible. Notwithstanding the injunction proceedings which called for a full hearing in any event, it was plainly necessary for the polarised cases of each parent to be investigated before any informed determination could be made as to the children’s welfare. On the one hand, the mother’s case was one of sustained and significant domestic abuse which, she claimed, justified a wholesale refusal of contact. The father’s case was entirely to the contrary, asserting, as he did, that he had not been abusive and, instead, that his close relationship with the children had been perverted by the mother poisoning the children against him. This was, in short, an intractable contact dispute where the father was alleging that the mother had alienated the children against him.

As paragraph 22 of the current version of PD12J advises, it is not usual for a s 7 welfare report to be ordered prior to any fact-finding hearing being concluded. It is obvious that this should be so; where there is a polarised factual dispute, how can the report writer form an informed view on welfare. In the present case, at its extreme, the welfare reporter would need to know if the children had been exposed to a sustained pattern of domestic abuse emanating from their father, or, conversely, whether the mother had manipulated the children so as to alienate them from an otherwise loving parent.

The fact-finding hearing in this case ought to have taken place long before July 2015. By the time the case first came before HHJ Allweis the need to conduct that hearing was most pressing and the decision to adjourn the proceedings to await a welfare report was, as a matter of principle, wrong.

In the circumstance, I consider that Ground ‘C’ is made out.

For the reasons that were given earlier, if the complaint in Ground ‘B’ is that the McKenzie Friend should have been permitted rights of audience in order to cross examine the mother and A, I do not consider that the judge’s decision is open to challenge on any basis. Such an application should rarely, if ever, be granted. The material before us falls short of establishing that there was a blanket policy in place in Manchester prohibiting the grant of rights of audience to McKenzie Friends to cross examine key witnesses. If the judge’s observations are no more than a report that, from his knowledge, such an application had never been granted in Manchester, then, on the basis of the view that I have expressed, that would not be surprising.

If, on the other hand, the judge can be taken to have refused any rights of audience to the McKenzie Friend, on the basis that the local practice was never to grant any form of rights of audience, then, again for the reasons that I have given, the judge was in error. Each application for rights of audience should be determined on the basis of the specific factors that are in play in the individual case. Rights of audience may be granted for a particular hearing, or for a discrete part of a particular hearing, and a blanket policy of never granting such rights is not supported by the Practice Guidance or generally. Whilst it will be rare for full advocacy rights to be granted at a sensitive fact-finding trial, it may be an altogether different matter to permit a McKenzie Friend to address the court at a directions hearing.

Before leaving the question of the fact-finding hearing it is necessary to look at the fact that at the hearing on 17 September 2015 the father agreed that ‘a fact-finding hearing was unlikely to assist the parties in resolving the issue of contact’. For the reasons that I have already given, the court had already erred, as a matter of principle, in not holding a fact-finding hearing at an earlier stage. It is not, therefore, strictly relevant to consider whether the father, at a later date, may have compromised his position by agreeing with the stated proposition. By then, he had not seen his children for a whole year, and he was faced with a detailed exposition of their trenchant views against having any form of contact with him. If, as we were told, he was faced, as a litigant in person, with having to choose between making an attempt at the introduction of some contact at that stage, or adjourning the case yet again for a fact-finding hearing, it is understandable that he may have opted for the former. His position in doing so cannot alter the fact that a fact-finding hearing was indeed necessary.

Having found that the father’s central complaint as to the absence of a fact-finding hearing is made out, it is not necessary to dwell unduly upon the specific complaints made in Ground ‘C’ to the effect that the court failed to use its full powers in resolving the issues in this case. In part this is so because each of the specific matters he raises begs the question of what the underlying facts are; the father’s assertion being that the children are suffering significant emotional harm as a result of the mother’s actions in alienating the children.

The quotations that I have made from the recent judgments of Cobb J in Re CB and The President in Re M demonstrate that there is a positive duty upon a family court ‘to grapple with all available alternatives before abandoning hope of achieving some contact’.

In this case, as the court had failed to determine the underlying facts, it was not, in reality, in any informed position to decide what of the range of options that might be available would best meet the needs of the children. If, taking the father’s case at its highest, this mother had cynically and without justification poisoned the minds of her children so that they were now so wholly opposed to their father, then leaving them in her care with no prospect of future contact to him is unlikely to be in their long-term interests. If, on the contrary, the mother’s case on the facts was sound, an order for limited or no contact might have been justified given the trenchant views and the ages of the children.

If My Lady agrees, I would allow the appeal on Grounds A and C on the basis that a fact-finding hearing should have taken place in 2015.

That decision raises the altogether difficult question of what order, if any, this court should now make, in February 2018. In bald terms, the options are either to remit the case now for a fact-finding hearing in the Family Court prior to a re-evaluation of the children’s welfare in the light of whatever facts may be found, or to accept that, despite the significant material error that has been found in this appeal, it is now simply too late for this apparently intractable case to be re-opened.

The older of the two children, B, will fairly shortly be 17 years old. By CA 1989, s 9(6) and s 9(7), no court is to make a s 8 order ‘which is to have effect for a period which will end after the child has reached sixteen’ [s 9(6)] or make and order with respect to a child who has reached the age of sixteen [s 9(7)] in each case ‘unless it is satisfied that the circumstances of the case are exceptional’. Irrespective of these statutory provisions, courts are normally, for good reason, most reluctant to make orders requiring young people who are on the cusp of adulthood to engage in contact with a parent when they do not wish to do so.

If the case is remitted, the fact-finding process is unlikely to be concluded for a number of months and the working out of any consequent substantive orders is likely, even with a favourable wind, to take a significant further period thereafter.

In hearing this, appeal, and when preparing this judgment, I have been struck, as was HHJ Allweis, by the degree of negativity that was consistently expressed by each of A, B and C against their father. Although A is no longer a ‘child’ and his welfare is not relevant to the court proceedings, he is very much a member of this family group and, on the evidence before the judge, he holds a most damning view of his father, which he has stridently expressed in the most cogent of terms.

The judge relied upon the account of the children’s wishes and feelings as set out in the guardian’s report of September 2015 to which I have already made reference. The guardian recorded B as being plain in stating that he did not wish to see his father and had never felt that he had had a close relationship with him. C both said and wrote in similarly clear terms that she did not want to see her father ‘EVER’. The children were seen as being extremely loyal to their mother. The guardian advised that any order made against the wishes of the children would be futile. The subsequent attempt at indirect contact had produced a very negative response from the two children with C finding ‘the whole thing very upsetting’. The judge summarised his approach to the potential for making any form of contact order at paragraph 51 of his judgment (reproduced at paragraph 30 above). That was the position at the time of the judgment in July 2016. There has been no event that might have engendered a change of view by B or C in favour of their father in the ensuing 18 months and the children are now aged 16 and 11.

In those circumstances, and despite having a great deal of sympathy for the position of this father, who has, as he says, simply not had his case on the facts ‘heard’ by the court, I am driven to the conclusion that it is now simply too late, and contrary to welfare interests of either of these two children, to contemplate a re-hearing. I am also of the view that, given the strength of the children’s views, it cannot be said that HHJ Allweis was wrong in coming to the same conclusion in July 2016.

In the circumstances, I would allow the appeal. That determination then raises the question of what order this court should now make. Pursuant to CPR 1998, r 52.20(2) an appeal court has a wide and flexible range of powers including that of affirming any order of the lower court. For the reasons that I have given in paragraph 99, and despite holding that the appeal should be allowed, I consider that the proper order on the appeal is for this court to affirm the July 2016 order without any alteration.

I agree.