Re M-A (A Child)

This appeal concerns C, a three-year-old boy. On 12 January 2018, HHJ Jordan, sitting as a Deputy High Court Judge, ordered that he should live with his father, who lives in Canada, and spend holidays with his mother, who lives in England. This was a change from the existing arrangements, under which C had been dividing his time between his parents, the balance favouring the mother. She now appeals.

At the end of the hearing on 18 April, we informed the parties that the appeal would be dismissed and we made an updated order to govern the situation as it now stands. This judgment contains my reasons for joining in that decision.

The background is that the mother is British and the father American. They had the briefest of relationships while the father was working in this country and as a result C was born in 2014. In early 2015, the father moved to work in Canada. Unfortunately, there has been almost continual parental strife throughout C’s life. There have been two substantial sets of proceedings about him, plus applications by both parents for injunctions and enforcement, and parallel proceedings about financial support.

The first set of proceedings under the Children Act 1989 began with an application in September 2015 by the father for parental responsibility, for a change of surname, and for orders governing his time with C. That litigation ended in April 2016, when Judge Jordan himself approved a detailed consent order, arrived at after lengthy negotiations. The judge had first had contact with the case shortly after it started and by the time he came to make the orders now under appeal it had been before him not less than a dozen times. The 2016 consent order had the unusual feature that the of care of C was to alternate not only between the parents but also between countries, with him spending 8 weeks at a time with his mother and 4, rising to 6, weeks with his father. These arrangements were negotiated in the knowledge that C has special characteristics and in October 2017 a formal diagnosis of autistic spectrum disorder was confirmed. In order to achieve his potential, he needs a professionally-led support package and it was intended that the father’s time would rise to 6 weeks at a time once this was in place in Canada as it is in England. In the light of the parental conflict, the judge also made a family assistance order to the Cafcass officer.

Whether or not these arrangements were ever likely to work, the fact is that they did not. The very poor level of trust between the parents meant that there was constant attrition, and in January 2017, the Cafcass officer restored the matter on the basis that she had found it impossible to work with the parties. There then followed a series of hearings, as set out in the chronology.

No purpose would be served by rehearsing the unhappy details of the evidence that was before the judge. Both parties complained about the other’s behaviour. In addition, the relationship between the mother and the father’s parents was difficult. Particular concern arose from the events in March 2017, when the mother made a hostile call to the grandparents that was recorded and admitted in evidence. She also contacted the father’s employers and others, and made social media postings that were calculated to cause difficulty for him. As a result, the judge directed the mother to undergo a psychological assessment. This became available in July; it highlighted the mother’s poor regulation of her negative emotions concerning the father and made recommendations for therapy to support enduring positive change.

To her credit, by the time the matter finally came on for hearing in December, the mother had completed two courses of therapy. At that hearing, which ran for four days, the judge heard evidence from both parents, the paternal grandparents and the Children’s Guardian. She had filed three reports, and her final advice was that C should move to live with his father.

The judge gave a reserved judgment. In it, he summarised the issues and the history and directed himself on the law. He recorded the positions of the parties, which included that they both agreed that they could no longer actively co-parent C and that one of them should be predominantly responsible for arranging his healthcare. The judge then referred to the five files of evidence, and summarised the substantial psychologist’s report in some detail. He recited the oral evidence extensively, giving his assessment of the witnesses; he then recorded the submissions of the parties before coming to his findings of fact, his consideration of the welfare checklist, and his decision.

The prominent features of this material are as follows:

At this hearing, we were invited to admit fresh evidence in the form of a statement by the mother concerning C’s recent visit to his father in February/March. Having read the statement, my view is that it should not formally be admitted. It does not contain information that would be likely to have an important influence on the result of the case and its contents are doubtless contentious. Even if it was admitted, it could make no difference to the outcome of the appeal.

On behalf of the mother, Ms Grocott QC and Ms Deas pursue two grounds of appeal, with permission granted by Moylan LJ. Firstly, they argue that the judge had been wrong to find that the mother had not changed and consequently that she was unable to meet the child’s emotional needs. Secondly, the judge was wrong to state that the child living in a “conflicted household” throughout his life, that he had suffered harm, and that the mother’s behaviour fell within the definition of domestic abuse.

The first ground of appeal challenges the judge’s evaluation of a witness in relation to one of the key issues in the case. A challenge of this kind is extremely difficult to sustain because the conclusion is quintessentially based on the judge’s direct exposure to the individuals themselves. In the present case, a reader of the bare facts about matters such as the mother’s phone call to the grandparents, her social media activity, her contacting the father’s employer and her response to the diagnosis, could not know whether they were isolated aberrations or whether they represented a more deep-seated ongoing problem. Likewise, a reader of the mother’s statements could not know whether therapy had brought about genuine change or merely outward compliance. The whole purpose of the trial was to establish which of these different possibilities was more likely. That was done by means of the Guardian’s investigation and by the testing of the evidence in court.

Ms Grocott realistically accepted that in order to succeed, she had to establish that the judge was bound to find that the mother had changed on the basis of the evidence before him. In my view, that submission cannot succeed. The arguments that were addressed to this court were the same as those rejected by the judge, who was uniquely well-placed to know where the truth lay. The difficulty for the mother in challenging his assessment is only multiplied by the fact that the Guardian saw matters in the same way. The finding that the mother had not changed sufficiently to meet C’s emotional needs is one that was clearly open to the judge.

In relation to the second ground, Ms Grocott rightly points out that the concerns about C’s needs had to be assessed against a background in which he was happy in his mother’s care and where she had shown herself a capable mother in other respects. The judge’s findings that the child had suffered harm as a result of his mother’s actions were unfair, with exaggeration of her shortcomings and a marked lack of a similar critique of the father’s behaviour, such as his non-attendance at the original final hearing in November. Repeated references in the judgment to the shortness of the relationship and the characterisation of the mother as a financial opportunist were unacceptable. In support of this submission, Ms Grocott drew attention to a number of places in the judgment where the judge castigated the mother alone about matters for which the father bore at least a share of responsibility.

In a case in which the Guardian had assessed both parents as bearing responsibility for the state of their relationship, I consider that there is some substance to Ms Grocott’s submissions in this respect. A more nuanced overall assessment might have made explicit reference to balancing factors in relation to the mother’s strengths and the father’s shortcomings. However, this does not in my view come close to upsetting the judge’s overall determination. He was faced with a most unsatisfactory history which, by common consent, could not continue. His finding that C had already suffered harm as a result of the parental conflict was one that was open to him; there was certainly a risk of harm for the future. He also had ample evidence before him in the shape of the assessment of the Guardian and his own assessment of the witnesses to show that the father offered the prospect of a more stable future for C than the mother. Moreover, although it was not a feature of the decision, it is obvious that the existing transatlantic schedule could not survive the time when C starts at school. He is a child who needs a stable home environment and a directing hand in relation to his treatment. Against this wider background, the judge’s ultimate decision is not undermined by the criticisms that we have heard.

I also understand the complaint made in relation to the deployment of PD12J and the concept of domestic abuse. The issue had not been raised in this form by the parties at any stage in the lengthy litigation, but was introduced by the judge himself in questions at the end of the Guardian’s evidence. The judge was not wrong to note that the definition of domestic abuse in paragraph 3 of the Practice Direction includes coercive behaviour, defined as including a pattern of abuse that is used to harm, punish or frighten the victim. This can clearly include malicious social media campaigns and attempts to cause damage by contacting employers. However, I doubt whether this analysis added anything of any significance in the present case, where the focus was not so much on the impact of the mother’s behaviour on the father but on the consequences for C. The judge’s overall conclusions did not depend upon it to any great degree and there was no question of the mother’s time with C being curtailed as a result: on the contrary, the court’s objective was that he should spend as much time as possible with her, consistent with the main decision about where he was to live. So again, this issue does not on examination call the judge’s conclusion in question.

For those reasons, I would dismiss this appeal, and substitute an updated order in the terms that were very largely agreed between the parties following the decision on the appeal.

It only remains to comment on two other matters.

During the course of the hearing, attention focused briefly on an order that the judge made under s.91(14) CA 1989. This was something that had originally been suggested by the Guardian and appears in the order as a five-year restriction on the mother’s ability to make applications without the court’s permission. In the end, the judge determined that the order should last for six months only. Now that this court is making a fresh order, the parties are in agreement that an order under s.91(14) is unnecessary. It is very much to be hoped that C will not have to suffer any more litigation, but any future dispute would likely come before the courts of his country of habitual residence. If that was to happen, the fact that an order of this kind had been considered at all is a sign of the concern felt by the English courts about this litigation history.

Finally, I note the circumstances that led to this appeal coming before this court rather than before a judge of the Family Division. It was only when the judgment was handed down that the parties became aware that the judge had constituted himself as a Deputy High Court Judge. There is no indication that he had followed the relevant guidance, which I referred to in similar circumstances in Re M (A Child)[2017] EWCA Civ 2356 at [32]:

“Since October 2016, the question of whether a judge is sitting as a Deputy High Court Judge has important consequences of route of appeal. Appeals from decisions taken at circuit judge level are now heard in the High Court, while appeals from judges sitting at High Court level come to this court. This case, rightly in my view, was allocated at the gatekeeping stage to circuit judge level. There was no order reallocating it to be heard at High Court level. That could only happen as a result of compliance with the guidance given by the president in December 2016: "Allocation of Work to Section 9 Judges". Paragraph 6 of that guidance reads as follows:

"If at any time a judge who is conducting proceedings considers they should be reallocated to High Court level for hearing by a High Court judge or a section 9 judge, the judge shall, before reallocating the case, discuss the matter with the DFJ, who shall, if necessary, consult the FDLJ."

To this I would add that a judge who is considering the possibility of reallocating a case to High Court level should also, in the normal way of things, inform the parties of the possibility before reaching a decision about it. This will allow the parties to express their views about the appropriateness of the reallocation and its consequences, including for the destination of any appeal.

I agree.