CM, R (on the Application of) v Kingston-Upon-Thames County Court & Anor

I have heard this application today in public and this is, of course, a public judgment. However, no report of this case in the media or elsewhere may name or indentify the child concerned nor either of her parents, nor identify the address at which she lives or any school which she attends.

This is a renewed application for permission to apply for judicial review after refusal on paper by the single judge, Stewart J, on 2 July 2014. The underlying subject matter is direct contact between a father and his daughter, now aged about four and a half.

The essential factual background is that there was a relationship between the two parents who, at one stage, lived together although they never married each other. From their relationship they have the one child, who was born during the spring 2010. Unfortunately the relationship between the parents broke down and there was a final separation between them in late 2011.

Initially, following the separation, there was some direct contact between the father and his daughter, and in particular there were three occasions of observed contact in late January and February 2012. As I understand it, those who had observed that contact made no negative reports of the actual occasions of contact themselves. There has, however, been no direct contact at all between the father and his daughter since February 2012, now about two years and eight months ago. At the time of the last direct contact she was about 22 months old.

At an early stage following the separation, the mother made serious allegations of aggressive behaviour against the father. There was in due course a fact finding hearing before a judge, District Judge John Smart in the Kingston-upon-Thames county court. In his later judgment, specifically in relation to contact, District Judge John Smart conveniently summarised the findings of fact that he had made in his earlier judgment, and said in overall summary that he regarded the matters which he had found proved as "serious".

Following the three occasions of observed contact in early 2012, that contact was brought to an abrupt end by the decision and order of another district judge. Her decision at that point, at an interim hearing, appears to have been based upon the proposition that the child had been referred to the Child and Adolescent Mental Health Services because of behavioural or emotional difficulties following that contact. It later appears that any such referral had not materialised in any actual involvement or engagement by CAMHS.

The father, as he was of course fully entitled to do, issued an application for direct contact and the mother applied for residence. All these issues finally came before District Judge John Smart in early August 2013. After a two day hearing, during which he heard from both parents and an adult psychologist (who had investigated the father's propensity to outbursts of anger) and also the CAFCASS officer, District Judge John Smart handed down a very full written judgment on 10 October 2013. It is appropriate that I pay a tribute to District Judge John Smart for the obvious labour and care which he must have taken over the preparation of that judgment, which extends to about 20 closely typed pages and most certainly does not lack thoroughness nor careful analysis of the evidence and issues.

The decision of District Judge Smart was to decline to make any order for direct contact between the father and his daughter, although he made provision for indirect contact by way of cards and gifts and the sending of reports and other information by the mother to the father about their daughter. I mention that the formal order made by District Judge Smart in October 2013 does not in any way say that there shall not be direct contact between the father and the daughter, but it does not make any actual provision for such contact.

Being aggrieved by that outcome, the father applied to a circuit judge for permission to appeal from the decision and order of District Judge Smart. That came before HHJ Williams in the Kingston-upon-Thames County Court on 9 April 2014. I have read her judgment. Although, as one would expect (because it was not a fact finding hearing), it is much shorter, it is nevertheless also a thorough and careful one. HHJ Williams clearly reviewed the history of the case and the proceedings. She considered several grounds of appeal being advanced on behalf of the father. She said in the last paragraph of her judgment:

So the final decision of HHJ Williams and outcome was that she refused permission to appeal. In reality, she had effectively heard the substantive appeal, and she might just as appropriately have expressed the outcome of her consideration as being to grant permission to appeal but then to refuse to allow the appeal.

Parliament has enacted that in situations such as this there can be only one appeal. So, effectively, that was the end of the road so far as the father's then current application for direct contact was concerned. The only very limited remedy that might conceivably have been open to him was to apply for judicial review of that decision of HHJ Williams to refuse permission to appeal. That is what he did by an application issued in the Administrative Court on 9 May 2014, so he certainly acted with promptitude. The claim form identifies the decision to be judicially reviewed as "permission to appeal denied" and the date as 9 April 2014. The first limb of the remedy sought is:

The nominal defendant to the claim is, of course, the county court; but the effective respondent to the claim is the mother, who has been joined as an interested party. It is quite clear that, so far as concerns the father personally, the end result that he seeks from all of this litigation is direct, face to face contact with his daughter. That is, of course, an eminently understandable and normally highly desirable situation, and it is to that that the first limb of the remedy sought is directed.

The claim form did continue by seeking another remedy:

It would not, in fact, be open to this court to quash that rule, unless it was ultra vires which has not been suggested. The most the court might do might be to make some finding or declaration of incompatibility.

When he considered the case on paper, Stewart J refused permission and gave his reasons as follows:

As he was entitled to do, the father then renewed his application for permission to apply for judicial review for an oral hearing. Unfortunately there were two adjournments of that hearing for reasons which it is no longer necessary to describe, and it has only finally come on before me today.

At an earlier stage, the father instructed not only junior but leading counsel; and during my reading of this case yesterday I had before me an "Amended skeleton argument on behalf of the claimant" dated 25 September 2014, signed by Janet Bazley QC and James Dove.

It was, in fact, a matter of considerable surprise to me as I walked into the courtroom this morning to find the father appearing in person. I knew that the mother would appear in person, and I had already also read her thorough document headed "Response from Interested Party" dated 16 September 2014; but I was fully expecting to see Janet Bazley QC and/or James Dove present. The father has explained that he is no longer legally aided, being financially ineligible, and that he has run out of money with which to pay lawyers.

The skeleton argument of Janet Bazley QC and James Dove is quite wide ranging. It raises some questions with regard to the interrelation between the High Court in judicial review and the Single Family Court which came into existence in late April 2014. Those questions, however, are completely irrelevant to the present case since, as I have said, the decision and order which is the subject of the present claim for judicial review was dated 9 April 2014, before the statutory Single Family Court came into existence; and, frankly, all the arguments directed to the Single Family Court are simply not in point in the present case.

As is very well established, on an application for judicial review of a decision of a judge in the county court, the principles to be applied are those originally described in the case of Sivasubramanian v Wandsworth County Court [2003] 1 WLR 475, as discussed and elaborated in a number of later decisions, all of which are set out in the skeleton argument of counsel.

It was those principles that Stewart J clearly had in mind when he gave as his reason that the grounds in this case:

The thrust of the written argument of counsel in their skeleton argument is that, at any rate in cases concerning denial of an order for direct contact between a parent and a child, there should be a different approach. They elaborate their argument by reference to a number of extremely well-known authorities, all to the effect that it is a very grave matter for a court not to make some provision for direct contact between a parent and a child. They suggest, therefore, that even although there must be something "exceptional" before this court in judicial review can interfere with the decision of a circuit judge, the approach should not be so tightly circumscribed as it is by the Sivasubramanian principles.

I wish to make quite clear that I am far from saying that I disagree in any way at all with the reasons and reasoning described by Stewart J. For my part, however, there is a different, and ultimately more cogent, reason for refusing permission to apply for judicial review today. That is, frankly, the pointlessness of the proposed judicial review in the circumstances of the present case.

I readily accept that the investigation of the father's claim for contact in 2012 and 2013 has some worrying features. The CAFCASS officer who was appointed at that time spent just 43 minutes in interview with the father. She spent two hours in interview with the mother. That must have been prior to 7 June 2013, the date of her report. She never at any stage saw the child at all, let alone made any attempt to observe any interaction between the child and her father.

On that very sketchy acquaintance with this case, the officer prepared a report and indeed later gave oral evidence of a trenchant kind. As she was entitled and obliged to do, she took as a starting point the findings that the district judge had made at the fact finding hearing as to the angry and aggressive behaviour of the father. But, based on that, she expressed a point of view which effectively precluded any direct contact at all, even supervised, between the child and the father. District Judge John Smart was careful to say in his judgment that he was in no way bound by, or required to follow, the view of the CAFCASS officer; but he did, towards the end of his judgment, say that he accepted it.

However, this, frankly, is now very much in the past and there is little point in trawling over it. As I have said, there has been no direct contact between this child and her father now for about two years and nine months. Suppose that I did grant permission to apply for judicial review. Suppose that at the hearing of that judicial review (whether I proceeded at once to hear it today, or it was heard on some other occasion) the court set aside the existing decision of HHJ Williams to refuse permission to appeal from the decision and order of District Judge Smart, which is the extent of the case-specific relief sought within these proceedings for judicial review. The case would then return to HHJ Williams or some other circuit judge. By then, it would be extremely stale. There would have been no contact for probably three years, and no further investigation for at least 18 months. No court could wisely or sensibly, at that point, consider this as an abstract appeal without requiring, and making provision for, fresh and further investigation. The passage of time, in relation to the age of the child, is for too long.

In this case, there is no direction under section 91(14) of the Children Act 1989 in any way restricting the right of the father to issue an application for contact, nor could any such direction have conceivably been justified on the facts and litigation history of this case. So, as I said to the father at an early stage this morning, there is absolutely nothing at all standing in the way of his going straight from here to the registry of the Central Family Court, paying the appropriate fee, and issuing a fresh, freestanding application for direct contact with his daughter.

If he does so, there would, of course, have to be a directions hearing. Consideration would have to be given to a range of issues. These might include (non-exhaustively) whether there is yet any scope for mediation in this case. They would certainly include provision for the appointment of an officer of CAFCASS to investigate this case; and due to the observations I have just made in this judgment it would not be appropriate for the same officer who investigated and reported in 2013 to be reappointed. The father says that an officer of CAFCASS should be appointed from outside the county in which the mother herself worked until recently in connection with the provision of children's services. I say nothing about that, for it would require appropriate consideration of whether or not there is any objective reason to suppose that the mother's previous employment in some way interrelated with, or may have influenced, CAFCASS.

Consideration might also have to be given to whether in this anxious case a guardian should be appointed independently to represent the child. It may be (I stress, may) that in this case there is a need for a child psychiatrist to see the child and investigate and report as to whether the child really has the aversion to any contact with her father that the mother describes and alleges, and if so, how that might be addressed. It may be that a child’s guardian would be better placed than either parent (especially if they continue to act in person) to indentify, instruct, and fund an appropriate psychiatrist or similar expert.

These, however, are all matters which are way beyond the scope or power of this court sitting in judicial review. As I have said, the most this court could do in judicial review would be to require HHJ Williams to reconsider her refusal of permission to appeal. All of that would, frankly, now be completely pointless litigation. There is the direct route open to the father as I have described.

Earlier, I rose for a short while, after which the father has said that he does indeed intend to issue a fresh application. He said that he had it in mind formally to withdraw his application for judicial review. I would, in any event, refuse this renewed application for permission to apply for judicial review for the reasons that I have now described; but if, at this point of the hearing, he renews to me his application formally to withdraw it, I will permit him to do so.

MR JUSTICE HOLMAN: So what do you want to do? The judgment is there and can be transcribed.

THE APPLICANT FATHER: The judgment can be transcribed, my Lord?

MR JUSTICE HOLMAN: It can. But if you, as a conclusion to all of this, say that you would rather withdraw your application, I will permit you to do so.

THE APPLICANT FATHER: I would like to withdraw the application. The judgment would be available on Bailii?

MR JUSTICE HOLMAN: Yes, it will.

THE APPLICANT FATHER: Thank you, my Lord.

MR JUSTICE HOLMAN: Upon hearing the father in person and the mother in person, kindly supported by Ms SC, it is ordered that the father has permission to withdraw his application for judicial review of the decision and order of HHJ Williams dated 9 April 2014.

A transcript of the judgment given today shall be made at the expense of public funds and supplied to both parties free of charge.

Have you had legal expenditure, madam, in the course of this judicial review? I don't think you have.

THE MOTHER: No, just travel and childcare, that's all.

MR JUSTICE HOLMAN: I cannot help you with that.

THE MOTHER: I know you can't.

MR JUSTICE HOLMAN: So I am just going to say no order as to costs. No order as to the costs of either party of or incidental to the claim for judicial review.

I am just going to put “and it is recorded that the father has made clear that he intends to issue an application for direct contact in a suitable court which he is fully entitled to do.” I cannot do anything else today.

Has the court got addresses for service of each of you?

THE MOTHER: Yes, your Honour.

MR JUSTICE HOLMAN: Things from the court reach you all right, do they?

THE MOTHER: Yes, my Lord.

MR JUSTICE HOLMAN: Has it got one for you? Because you previously, presumably, had a solicitor.

THE APPLICANT FATHER: Stuff was sent to Pannone, my Lord, but they have got an address for me.

MR JUSTICE HOLMAN: I am really thinking about the order and indeed the transcript of the judgment. It will reach you via Pannone, will it?

THE APPLICANT FATHER: Yes, my Lord, if it is sent to Pannone.

MR JUSTICE HOLMAN: All right. If that's the address that the court at the moment has on record, that's what they will do.

Anything else? I can't think of anything.

THE APPLICANT FATHER: My Lord, in reality, when will the transcript be available?

MR JUSTICE HOLMAN: I don't know. It depends on how long it takes this lady to produce it. It may be that as she is now free she may be able to do it today. [Pause] She will do it today and if I have it tomorrow I will correct it tomorrow. So some time during the course of next week.

THE APPLICANT FATHER: I am still entitled to get the full transcript of the hearing itself anyway, aren't I?

MR JUSTICE HOLMAN: If you pay for it.

THE APPLICANT FATHER: Yes.

MR JUSTICE HOLMAN: That would be a waste of money. That would be a total waste of money. It's entirely up to you. Yes, you're entitled to have a full transcript but you will have to pay. I am only saying that the judgment will be transcribed at the expense of public funds.

THE APPLICANT FATHER: Yes, my Lord.

MR JUSTICE HOLMAN: If you wish to have a full transcript you can have one. It won't help you. You have got to go and issue your application now and start from scratch; bearing in mind that so much time has gone by that this needs reconsideration, frankly, from scratch; but, of course, taking into account the undeniable fact that this child has not seen you, now, for two years and nine months, and by the time everything is heard it will be way over three years. That is a fact. None of us can do anything about that, and that may have implications that will have to be assessed. Anything else?

THE APPLICANT FATHER: No, I am very grateful.

MR JUSTICE HOLMAN: Anything else?

THE MOTHER: No, thank you.

MR JUSTICE HOLMAN: I am sorry, of course, madam, that you face the prospect of a further round of litigation, but you knew you did anyway. You know that. The applicant father wishes to pursue this, and is going to pursue it; and at the moment he cannot be said to be pursuing it in an unreasonable way, so you cannot get a 91(14).

All right, well thank you all very much. It's very kind indeed of you to come and support your friend, Madam. Thank you very much indeed.