D (Appeal : Failure of Case Management)

This is an appeal from a case management decision made on 11 May 2017 by Her Honour Lindsey Kushner QC, sitting as a deputy circuit judge. Permission and a stay were granted by Baker J on 25 May and the appeal hearing took place before me on 7 July. Having heard from counsel for the appellant mother (Ms Warters), the father in person, and the solicitor for the child (Ms Early), I allowed the appeal and directed that the underlying proceedings be heard afresh by a different judge. I gave brief reasons, now amplified in this judgment.

The case raises issues about judicial case management and, in particular, the court’s approach to the cross-examination of an alleged victim by an alleged abuser.

The Family Court manages its work in accordance with the Family Procedure Rules 2010. The first rule contains the court’s core philosophy: to deal with cases justly, having regard to welfare. It must act fairly, put the parties on an equal footing and devote appropriate time to the case, having regard to the needs of other cases. By Rule 1.4, the court has a duty “to manage the case actively” , including by setting timetables, deciding on procedure and giving directions to ensure that the case runs quickly and efficiently. All this serves the statutory obligation, found in the first section of the Children Act 1989, to decide cases in accordance with children’s best interests and protect them from the detrimental consequences of delay.

These fundamental principles are mandatory, not advisory, and every participant in the process is required to observe them.

By FPR 30.12, an appeal can only be allowed where a decision is (a) wrong, or (b) unjust because of a serious procedural or other irregularity. Normally, case management is very much a matter for the allocated judge, and an appeal court will be slow to interfere with a case management decision. But even that principle must have its limits.

The court’s approach is set out in Practice Direction 12J: Child Arrangements and Contact Order: Domestic Violence and Harm. This includes the following provisions:

A definition of domestic violence that includes controlling, coercive or threatening behaviour, violence, or abuse, including psychological, physical, sexual, financial, or emotional abuse (paragraph 3)

Approval for the court to question witnesses itself in order to protect alleged victims (paragraph 28):

Each party can be asked to identify what questions they wish to ask of the other party, and to set out or confirm in sworn evidence their version of the disputed key facts.

The judge or lay justices should be prepared where necessary and appropriate to conduct the questioning of the witnesses on behalf of the parties, focusing on the key issues in the case.

Where questioning by the court is for some reason not possible, the situation of the alleged victim may be entirely unsatisfactory: see for example the recent observations of Hayden J in Re A (a minor) (fact finding; unrepresented party) [2017] EWHC 1195 (Fam) at paragraphs 57-63

This is a private law case concerning one child, where the real issue is whether or not the father should have contact. The proceedings began with cross-applications by the parents in January 2013, when the child was aged three. The child and father have not seen each other since then. The mother opposes any contact, alleging that she suffered very serious abuse at the father’s hands. The family proceedings remained in abeyance until May 2015, when the father was acquitted by the criminal court of all charges arising from the mother’s allegations. The family proceedings were then promptly resumed, with detailed, appropriate directions being given by a Deputy District Judge with specific reference to Practice Direction 12J, requiring the father, who has throughout been unrepresented, to write down any questions that he wished to put to the mother, so that they could be put to her by the court.

In August 2015, the matter was allocated to HHJ Kushner QC. Her first task was to conduct a fact-finding hearing, it being obvious that the allegations made by the mother would have a strong effect on the welfare decision, depending upon whether they were proved or not.

A broad survey of the events over the past two years makes very concerning reading. It would be no exaggeration to say that practically no progress has yet been made. Instead:

The case was listed for a fact-finding hearing with a time estimate of several days on no fewer than eight occasions: August 2015, October 2015, November 2015, April 2016, May 2016, June 2016, October 2016 and March 2017. On at least four of these occasions the hearing was cancelled ahead of time, initially because of difficulties in obtaining transcripts of the criminal trial.

Over this period, the judge made repeated orders (five in all) requiring the father to put his questions in writing, as the deputy district judge had already directed. Despite the father’s non-compliance, no sanctions were applied, and it was not until 7 March 2017 (Day 2 of the hearing), that he eventually produced a list of questions.

The fact-finding process did not even start until the hearing in March 2017. I have read the transcripts. During those five days, the mother sat behind a screen. She gave evidence in chief on three days in response to questions from counsel, with many interventions from the judge. By the end of the week, astonishingly, her examination in chief had not concluded. The time had instead been largely spent in repeated inconclusive debates between the judge and Ms Warters while the mother sat silently in the witness box and the father looked on.

Those debates usually concerned the question of how the father’s case was to be put to the mother. Although the issue had been settled as far back as May 2015, the judge progressively resiled from that position, saying that she doubted her ability to fairly put the father’s case. For her part, Ms Warters tenaciously sought to uphold the arrangements that had been made for her client’s protection, going so far as to suggest that the judge ought to recuse herself. The father was for the most part a silent spectator, though on one occasion he lost self-control and (as the judge put it) “erupted” , which put further pressure on everyone.

During the course of the week, the Cafcass officer was also called, but after a few minutes it became apparent that her enquiries were considered to be inadequate, and a Children’s Guardian was appointed.

The net result of this week of hearing in March 2017 is that the mother gave no more than half a day or a day’s evidence in total, continually interrupted by debates about case management. The Friday of that week was the judge’s last day of sitting as a full-time circuit judge before retirement, and the case was adjourned for four more hearing days, beginning on 23 May.

Before the hearing could be resumed, the judge, now sitting as a deputy judge, brought the matter back no fewer than three times in an attempt to find a different way of dealing with the mother’s cross-examination. On 7 April, the court considered ways in which the father might obtain representation. The order made that day also states: “The court has reflected that it feels that robust cross examination of the Applicant Mother should take place by the child’s solicitor. The child’s solicitor raised concerns about this and whether such a role was appropriate.” On 4 May, the judge continued to explore means by which the father might become represented and to press the child’s solicitor to take on the role of cross-examination. On 11 May, the judge renewed this request, despite the clearly-stated opposition that she had encountered.

It is noteworthy that on 10 May, the father wrote to the court saying that he was willing to forego cross-examination of the mother altogether if that allowed the case to move forward.

Despite this, at the hearing on 11 May the judge delivered a short ruling, set out in full below, provoking the present appeal.

The 23 May hearing was aborted due to this appeal, and the case listed for a further five days beginning on Monday 10 July, the working day after the appeal hearing. Even then, as I discovered when I asked the parties on Friday 7 July, no timetable had been set to regulate the use of such a lavish amount of court time so that the parties could reasonably expect a decision at the end of that further week.

This was given at the hearing on 11 May. I set it out in full:

I am not going to interfere with Mr D’s right cross examine Miss H on matters which are not sexual. In fact, he has a right to cross-examine her on matters sexual as well. It is just that I have exercised a discretion and conducted this hearing in such a way that he has accepted that he will not cross-examine her on sexual matters and that is in accordance with how we have recently been trained to deal with matters such as this, but that does not necessarily extend or should extend to matters which are not of a sexual nature.

I appreciate that things may be in the pipeline to try and resolve these issues, but it is a matter and they are matters which can only be resolved by statute, as they have been in the criminal jurisdiction and in the criminal jurisdiction, not only did it need statute, primary legislation, as I understand it, to in fact withdraw the right of the party to cross-examine his or her accuser, but there was corresponding facility whereby representation was funded for such a person in that position. There is no equivalent legislation in the family jurisdiction and nor is there the equivalent provision of representation to take over somebody who is unrepresented in such cross-examination.

Whereas I was ready, willing and able to follow the criminal line, if I can put it that way, in relation to sexual matters, I am not prepared to go any further in relation to other matters, such as economic duress, which has been levelled at Mr D and the matters of domestic violence. He will have to deal with that himself. Miss H will be granted any special measures she wants to be able to cope with the situation. She can be behind screens, as she has been up to now and/or she can take advantage of the suite we have in this building whereby she can be in another part of the building and be cross-examined from a significant distance.

In addition to that, of course, she has her own representative who can fight her corner for her as is necessary, and over all that, of course, I am not without capability myself to make sure the questions are not oppressive or inappropriate. That is part of my day-to-day bread and butter job as a judge in matters such as this.

The judge was invited by Ms Warters to give fuller reasons, but she declined to do so and refused permission to appeal. At the same time, in the resulting order, it was stated that “The Judge would welcome assistance from a senior court to provide guidance.”

These can be summarised as follows:

The Judge was wrong to allow any direct cross-examination of the mother by the father.

The Judge was overly lenient to the father in the face of his non-compliance with the orders.

The Judge was wrong to put pressure on the child’s solicitor to cross-examine the mother.

The Judge should have given further reasons when asked.

The Judge herself invited guidance from a higher court.

During the course of the hearing, with permission of the court, the appellant advanced an additional ground of appeal, based upon the general failure of case management.

Ms Warters argued that the proceedings had been thwarted by uncertainty about the way in which the mother’s evidence was to be given, and by a general lack of steering on the part of the court.

The father invited me to dismiss the appeal and allow the following week’s hearing to go forward. From as long ago as May 2015, as recorded in the order then made, he has been expressing his frustration at the length of the family proceedings. Now, he was concerned at the prospect of the Judge’s extensive knowledge of the case being lost, describing it as a huge step backwards. He was also understandably concerned at further delay being caused by the case beginning again in front of a different judge. As against that, he was unable in the light of experience to be confident that the case would in fact conclude the following week.

On behalf of the child, Ms Early reaffirmed her opposition to the idea that it was the Guardian’s role to conduct cross-examination. If Judge Kushner was to continue the case, this court should give clear directions as to how questioning should be conducted. If the appeal was allowed, the proceedings should be heard as quickly as possible.

Making all allowances for the difficult position of the court when an alleged abuser is unrepresented, this appeal succeeds on all grounds.

Dealing with the last ground first, the history shows a chronic failure of judicial case management. The repeated inability of the court to hold a fact-finding hearing has led to prolonged and indefensible delay in making an important decision for this young child. When the court finally and belatedly began its task, it made no attempt to timetable the hearing to a conclusion. Instead, the judge’s approach was, in her own words at the end of Day 2, “I will finish it when it finishes… It is no good charging along with this case as if we can finish it quickly.” (transcript 8 March p.46).

The result is that the parties can have had no confidence that the hearing fixed for the following week would have led to an efficient outcome to the vital fact-finding exercise. Rather, there was still no end in sight. I would allow the appeal on this ground alone.

It was against this same background that the judge’s decision about cross-examination was reached. Treating the remaining grounds of appeal globally, I believe that she fell into error in the following ways:

Firstly, she did not appreciate her powers under PD12J, instead assuming that the father had the right to cross-examine the mother.

Secondly, the decision about how the mother was to be cross-examined had effectively been taken by the court two years earlier, and there was no proper basis for revisiting that plan, particularly as the father himself was not complaining about it.

Thirdly, having decided to revisit the issue, the judge did not deal with it effectively but instead havered over it throughout the mother’s evidence in a way that made the hearing unproductive and unfair to the mother, who was entitled to know how her evidence was to be treated before she entered the witness box, and entitled to expect that she would leave it within some reasonable period.

Fourth, the decision the judge came to (that the father could cross-examine on some issues but not others) was unprincipled. The basis for taking special measures in these cases is the nature of the relationship between the parties, not the nature of the questions themselves. The decision was also unworkable, in expecting the court and the father to divide up questions depending on whether they were “sexual” or not.

Fifth, the reasons given by the judge were inadequate to justify her conclusions and, having been asked to do so, she should have addressed the substantial issues more fully.

Finally, the judge’s attempt to delegate the questioning to the child’s solicitor was entirely inappropriate and was rightly rebuffed. Where a child is represented, the approach to questioning is a matter for the advocate’s professional judgment. Often questions will be asked not only to advance the child’s case, but also to fill any gaps in the evidence in a way that the court will find helpful. But it is wrong in principle for the court to expect the child’s lawyer to cross-examine the child’s own parent, “robustly” or otherwise, as a way of escaping the court’s responsibility to do this itself.

For the reasons now stated above, I allowed the appeal and remitted the matter for hearing afresh by HH Judge Newton, Designated Family Judge for Manchester, over five days in early September. Those parts of the mother’s evidence in chief that have already been received will be extracted from the transcripts and made available to that judge as part of the overall evidence.