A v R & Anor

In this matter the father appeals against the order of His Honour Judge Scarratt dated 28 November 2017 made in respect of his daughter, T, who is now aged 13. On 6 March 2018, I allowed the appeal against certain parts of the learned judge’s order and gave directions for the further hearing of this matter. I now set out my reasons for doing so.

The first respondent to the appeal is the mother of T. The mother is represented by Mr Matthew Persson of counsel, who appeared below. T is a party to the substantive proceedings and accordingly is the second respondent to this appeal. T is represented through her Children’s Guardian, Mr Dan Gaye, by Ms Caroline Topping of counsel, who also appeared below. The appellant father appears before the court in person with the assistance of the Personal Support Unit of the RCJ.

The father’s Appellant’s Notice was issued on 18 December 2018. Cohen J listed the matter for an oral permission hearing before Parker J on 29 January 2018. On that date, Parker J granted the father permission to appeal and listed the appeal hearing before me today with a time estimate of one day.

In determining the father’s application, I have had the benefit of the father’s detailed grounds of appeal together with amended grounds of appeal that are expressed in the manner of a Skeleton Argument. Both Mr Persson and Ms Topping have prepared comprehensive Skeleton Arguments. I have also had the benefit of a chronology prepared by the father and a chronology prepared by the solicitor for the child. With respect to the hearing on 28 November 2017, I have the benefit of a complete transcript of the hearing and a transcript of the learned judge’s judgment. I also have the benefit of a transcript of the hearing on 15 September 2017, at which hearing a number of decisions were taken relevant to the hearing listed on 28 November 2017. I have heard oral submissions from the father, from Mr Persson and Ms Topping.

The background to this matter spans, regrettably, over ten years of litigation in respect of T, beginning with an application by the father for a prohibited steps order in relation to T’s schooling. A final order in those proceedings was made in September 2008. In March 2010 children’s services undertook an investigation following allegations of inappropriate behaviour towards T by the mother’s partner. The case was closed following an investigation pursuant to s 47 of the Children Act 1989. Further allegations were made in December 2011 of inappropriate behaviour by the mother. Once again, following investigation by children’s services, this time by a different local authority, the case was closed in February 2012 following a Core Assessment being undertaken.

In December 2012 the father made an application for sole residence. In February 2013 the mother applied for residence, contact and prohibited steps orders. On 5 March 2013 the learned judge made a shared residence order, which order was affirmed by final order made by the District Judge on 4 March 2014. In November 2015 a further assessment of T was undertaken by Children’s Services following allegations of inappropriate behaviour made by the mother with respect to a member of the paternal family. That case was, ultimately, also closed.

In December 2015 the father made a further application with respect to the child arrangements for T. In January 2016 the learned Judge made an order re-introducing contact (the father complaining that there had been a gap in contact) and affirming the shared residence order. On 11 March 2016 the father applied for permission to temporarily remove T from the jurisdiction to take her to Hungary from 22 March to 6 April 2016 to visit members of the paternal family. On 17 March 2016 the learned Judge refused that application. In November 2016 the father made a further application seeking restoration of contact, a greater period of time with T and for the mother to pay his costs.

This short summary, taken from the chronology provided by the father, and that prepared by Ms Topping, gives some flavour of the burden of litigation that T has had to bear over a considerable period of time. Interwoven within this litigation have been cross allegations of abusive behaviour towards T by maternal and paternal family members and others, resulting in T being interviewed by both Police officers and social workers on more than one occasion, and the involvement of doctors by the mother concerning an alleged eating disorder and signs of stress in T.

As the history of this matter moves towards the end of 2016, it is necessary to consider the background in a little more detail having regard to the issues raised in this appeal. In December 2016 the father applied for permission to instruct an expert child and adolescent psychiatrist to assess T’s wishes and feelings and whether she was the subject of adverse maternal influence. On 19 December 2016 the learned Judge joined T as a party to the proceedings and gave permission for Dr Berelowitz to be instructed to undertake an assessment of T. I am told by the parties that that instruction did not proceed because the parents accepted the recommendation of the Children’s Guardian that they should attempt mediation. Within his report recommending mediation, the Children’s Guardian also recommended that the proceedings should be concluded with indirect contact to the father and an order under s 91(14) for 12 months.

Sadly, the mediation, whilst undertaken, did not lead to a resolution. Within this context, at a hearing on 7 July 2017 the parties agreed, and the learned Judge endorsed, a direction for a psychologist, Mr Clowry, to report on a plan of clinical work to assist the parents with facilitating the progress of contact between the father and T. There is no copy of that order in the appeal bundle but Ms Topping’s chronology makes clear that the order provided that there was no permission for the psychologist to see T for the purpose of preparing the report. On 14 September 2017 the father applied to expand the remit of the psychologist to include consideration of T’s wishes and feelings and the question of parental influence.

On 15 September 2017 the matter came before the learned judge for a further hearing. At that hearing the Children’s Guardian was continuing to press for the proceedings to be brought to an end. The court has a copy of the order made on that date. In so far as is relevant to this appeal it provides as follows:

The order goes on to provide for the mother and the father to “file and serve” Position Statements by 23 November 2017 “setting out their response to the report of Mr Clowry and their proposals for T spending time with her father going forward” and for the Children’s Guardian to “file and serve” a Position Statement by noon on 27 November 2017 “setting out his response to the report of Mr Clowry and his recommendations in light thereof”. No directions were made for sworn statements of evidence, or for a final report from the Children’s Guardian to inform the final hearing. Finally, the order of 15 September 2017 listed this matter for final hearing on 28 November 2017 reserved to the learned Judge with a time estimate of three hours. Mr Clowry was directed to attend the hearing on 28 November 2017.

The court has had the benefit of seeing a transcript of the hearing before the learned Judge on 15 September 2017. A number of points fall to be noted.

First, in respect of the issue of moving contact forward, the learned Judge expressed the view that a 13-year-old child should be told what they are going to do, that “pandering” should be avoided, that T was being “allowed to rule the roost” and that sometimes children must be told “this is what the court has ordered”. Second, and within the context of both Mr Persson and Ms Topping telling me that the learned Judge expressed his decision to give permission to instruct Mr Clowry as being a decision that was “finely balanced”, the learned Judge concluded as follows in a short ex tempore judgment with respect to the question of whether a report from Mr Clowry was necessary to resolve the proceedings justly:

The letter of instruction to Mr Clowry is contained in the appeal bundle before me, dated 18 September 2017, which letter provides as follows with respect to the instructions to Mr Clowry:

Leaving aside the rather peculiar terms in which the instruction is couched (parties to proceedings would hardly wish a report that was not robust, clinically legitimate and reputable), the term “Pursuant to the order of His Honour Judge Scarratt” at the beginning of the instructions to Mr Clowry is a potential cause of confusion. Whilst the letter of instruction limits the instructions to Mr Clowry to the preparation of a “robust, clinically legitimate and reputable plan of clinical work”, the permission given in the order of the learned Judge is in somewhat wider terms, namely “to prepare a report in respect of the time that T should spend with her father.”

Whilst the report of Mr Clowry was due to be filed by 31 October 2017, it is accepted by all parties that the document prepared by Mr Clowry only became available on the evening before the hearing on 28 November 2017. A copy of the report is before this court. All parties agreed before the learned Judge on 28 November 2017, and agree before this court, that that report is deficient in that it failed to comply with the instructions provided to Mr Clowry in the letter of instruction. In these circumstances, it is not necessary to descend into detail with respect to precisely how it is said that the report was deficient having regard to the terms of the letter of instruction. I do however, note that whilst the document produced by Mr Clowry is inconsistent with the ambit of the instructions contained in the letter of instruction, it is perhaps less inconsistent with ambit of the terms of the order of 15 September 2017.

One final set of documents requires to be considered. On 1 October 2017, T emailed her solicitor in the following terms regarding the order made by the learned Judge on 15 September 2017:

On 4 October 2017, the Children’s Guardian replied to T’s email, expressing sympathy with her view, emphasising that it was the court’s decision and suggesting T should give some thought to co-operating. In particular, the Children’s Guardian informed T that “There will be a psych report whether or not you co-operate, so it’s just far more helpful if you’ve had input.” There is no reply from T before the court, although the learned Judge was informed by the Children’s Guardian that T remained opposed to meeting with any expert, notwithstanding the encouragement of the Children’s Guardian.

The email from the Children’s Guardian of 4 October 2017 is, in many respects, carefully drafted. It is of concern however, that the Children’s Guardian also informed T in that email that the learned Judge had “promised” that the proceedings would end on the next occasion. This is not an accurate reflection of what the learned Judge had said and, in any event, is not a promise he could have made, not least having regard to the right of a party to appeal. The email from T of 1 October 2017 appears to have been disclosed to the father’s legal team some time after it was sent, even though it was plainly relevant to the question of expert evidence.

When the final hearing came before the court on 28 November 2017, it did so initially before a District Judge, for reasons I will come to, before latterly being placed before the learned Judge. As noted above, the order of 15 September 2017 made no provision for statements of evidence to be filed and served for the final hearing on 28 November 2017, nor for the filing and serving of a final report from the Children’s Guardian. In the circumstances, on 28 November 2017, the court was without up to date sworn evidence from the parents or a report from the Children’s Guardian on the issues that fell to be considered at the final hearing. For the reasons I have already set out, the expert report that had been produced the evening before the final hearing to inform the same was deficient by reference to the terms of the letter of instruction.

At the hearing the Mother and the Children’s Guardian argued that the proceedings should be concluded. Both sought an outcome that provided for no order to be made with respect to the time the father spent with T. The Guardian’s Position Statement also urged the court to make an order pursuant to s 91(14) of the Children Act 1989 in respect of the father for a period of 12 months. However, no application had been issued. The father sought permission to instruct a replacement expert or an adjournment of the final hearing to permit him time to make a properly constituted application under FPR 2010 Part 25 for permission to instruct a replacement, with a view to him pursuing his argument for a far greater level of contact at an adjourned final hearing. In any event, the father sought a final child arrangements order that provided for a much greater level of time spent with T than was then taking place. The final hearing was, therefore, contested.

Within this context, the learned judge proceeded, following submissions by counsel initially in front of the District Judge and then before the learned Judge, and contrary to the arguments of the father, to refuse the father’s application for permission to instruct a replacement expert or for an adjournment to allow the preparation of such an application. Further, and contrary to the varied positions of the mother, the father and of the child, the learned Judge proceeded to make a final child arrangements order. The final order made by the learned Judge in respect of the time the father would spend with T reflected the level of contact that was then said to be taking place. Accordingly, the order provided for the father to spend time with T for at least 2 hours once per month, with an additional 2-hour periods during the holidays, together with indirect contact.

As I have noted, the father’s Appellant’s Notice was issued on 18 December 2017. The father is no longer represented and completed the Appellant’s Notice himself. The grounds of appeal drafted by the father and appended to that Notice are extensive, as are the amended grounds of appeal prepared for the permission hearing before Parker J. At the outset of this hearing, the father agreed with this court that his extensive grounds of appeal could be distilled into the following five key grounds, which grounds the father contends demonstrate that the learned Judge was wrong to make the orders he did or that he was guilty of serious procedural or other irregularity when doing so:

The learned judge had not prepared adequately to hear with the matter on 28 November 2017, did not allow the matter sufficient court time and proceeded to make final orders without any proper consideration of the arguments being advanced by the parties.

The orders made by the learned Judge on 28 November 2017 were inconsistent with orders he had made earlier in the case, and in particular on 15 September 2017.

The learned Judge was wrong not to persist with securing expert evidence in circumstances where the expert appointed by the court had failed to fulfil his duties as an expert.

The learned judge placed too much weight on T’s wishes and feelings when reaching his decisions on 28 November 2017.

The learned judge was wrong in the circumstances, to decide that it was in T’s best interests for the case to be concluded summarily and on the terms of the final child arrangements order made by the learned Judge.

Before dealing with the contents of the learned judge’s short ex tempore judgment, having regard in particular to the father’s first ground of appeal it is important to consider the transcript of the hearing of 28 November 2017. Counsel confirmed to me at this hearing that the transcript sets out the contents of the hearing on 28 November 2017 in full.

As I have noted, the final hearing on 28 November 2017 did not initially commence in front of the learned judge on 28 November 2017, but rather in front of District Judge Abigail Smith. The reason for this appears to have been that, whilst the learned Judge had reserved the matter to himself, he was very heavily listed on the day in question and the matter had therefore been placed in District Judge Smith’s list. The matter remained before the District Judge for approximately half an hour. During that time the parties made substantive submissions on the adequacy of Mr Clowry’s report and the proper course of action in respect of the report. The District Judge having expressed “severe concerns” regarding the report of Mr Clowry, counsel for the father, Ms Sarah Cooper, proceeded to make submissions in support of the continued need for expert evidence, a course opposed on behalf of the mother by Mr Persson and on behalf of T by Ms Topping.

It is a noteworthy feature of the transcript of the hearing before the District Judge that, as was to become a feature of the transcript of the hearing before the learned Judge, counsel constantly interrupted each other. Ms Cooper’s submissions on the fate of Mr Clowry’s report were interrupted by Mr Persson, without demur from the District Judge. Mr Persson was in turn interrupted by Ms Topping, again without judicial demur. Indeed, at times the transcript appears to show simply an argument between counsel with no input from the District Judge. This conduct continued until the District Judge decided that enquiries should be made as to whether the learned Judge could take the case. The net result of the way this part of the hearing was conducted meant that no party ever got to the point of concluding a complete, focused and structured submission on any issue.

The learned Judge agreed to take the matter and proceeded to hear the case, which had been given a three-hour time estimate, at 2.20pm. As I have noted, in summary the father’s first ground of appeal includes the complaint that the learned Judge had not properly prepared for the hearing. The father also complained before me that the Judge appeared, from his initial comments, to have reached a settled judgment from the outset. The opening statements of the learned Judge, who had had long involvement with this case, form the basis of the father’s contentions in this regard:

Following this opening exchange, the learned Judge went on to conduct a hearing over the course of the next hour and a half. As I have noted, in his first ground of appeal, the father also contends that during this hearing the learned Judge proceeded to make final orders without any proper consideration of the arguments being advanced by the parties with respect to that issue. Within this context, the father also complains before me in support of his grounds of appeal that the hearing descended into what the father termed a “shouting match”. The genesis of these complaints by the father is apparent from the transcript.

Miss Cooper commenced, on behalf of the father, by seeking permission from the learned Judge for a replacement expert to prepare a report and, in default, for a short adjournment to permit the preparation of a properly constituted Part 25 application to that end. Ms Cooper sought to advance her argument in circumstances where the default on the part of Mr Clowry was not known to the parties until the evening before the hearing and was not the father’s fault, or indeed the fault of any party. Ms Cooper did not get to conclude that submission because she was again interrupted, by Mr Persson. Whilst Ms Cooper managed briefly to reclaim the floor, she was then interrupted by Ms Topping, followed by a period during which all counsel appeared to be making submissions in an unstructured and unfocused fashion. Indeed, as had occurred before the District Judge, the majority of the hearing before the learned Judge was characterised by counsel interrupting each other and speaking over each other, again without apparent judicial demur.

During the course of the unstructured and unfocused submissions regarding expert evidence, at times the Judge appeared to be dismissing the question of a further expert out of hand. At other times, the learned Judge appeared to indicate it was an issue he was prepared to decide. The precise ambit of the issue the parties are addressing in respect of expert evidence is only belatedly defined and no party ever got to the point of concluding their submissions on the question of further expert evidence, although Ms Cooper made a valiant effort to conclude organised submissions to the Judge in support of permission for a further expert or a short adjournment to allow the preparation of a properly constituted Part 25 application.

Matters then moved on to the question of whether the learned Judge should conclude the proceedings at the hearing. In respect of this issue, the learned Judge initially gave a clear indication that he considered it inappropriate to determine the matter by way of final orders at the hearing in circumstances where the matter remained fully contested by the father:

However, both Mr Persson and Ms Topping made concerted and strenuous submissions to persuade the Judge that the matter should be dealt with on summary basis and the proceedings concluded in the time remaining that afternoon. Having heard those submissions, and notwithstanding his initial view that this would not be appropriate, the learned Judge ultimately stated to Ms Cooper that he would be deciding “whether to end these proceedings today”.

Ms Cooper then proceeded to attempt to make submissions, persistently interrupted by Ms Topping, that the matter should not be finalised in order to allow the preparation of a proper Part 25 application in light of what all agreed was Mr Clowry’s default and, more importantly, because the father wished to contest the final hearing and seek a “much wider order in relation to contact” (the learned Judge by this point already having indicated his preference for an order that reflected broadly the current, limited contact taking place between father and daughter). In response to the latter submission, the learned Judge commented as follows:

At this point, discipline in the hearing appears to have broken down entirely. The father himself begins to make submissions to the learned Judge, Miss Cooper, Mr Persson and Ms Topping continue to make points with little order, structure or focus, and even Mr Gaye enters the arena at one point. All this occurred as the learned Judge continued to propound his view that a final order should be made at the hearing, reflecting the then current level of contact, and sought repeatedly to press the parties to agree to that course of action.

Within the foregoing context, it is of particular note from the transcript that no party was ever able during the hearing to get to the stage of making submissions on the key issue before the court, namely the question of whether, if the court decided to proceed to conclude the proceedings, a final child arrangements order should be made and, if so, the nature and extent of the contact in any final child arrangements order. Whilst counsel were able, up to a point, to make submissions on the question of whether the learned Judge should proceed with the final hearing or adjourn it, the increasingly unstructured nature of the hearing meant that, as conceded by Ms Topping and Mr Persson before me, no party ever reached the stage of making submissions, nor did the learned Judge invite submissions, on what outcome with respect to contact was in T’s best interests if the learned Judge determined, against his initial instinct, that it was right conclude the proceedings then and there. This was the case even though Miss Cooper had made clear on behalf of the father that the matter was contested, and that the father would be seeking more extensive contact in any final order than that then taking place, and even though Ms Topping’s instructions from the Children’s Guardian remained that there should be no order as to contact and an order pursuant to s 91(14) of the Children Act 1989 with respect to the father for a period of 12 months.

Finally, in the context of the District Judge having expressed “severe concerns” regarding the report of Mr Clowry, and the learned Judge having stated that his report was “nonsense”, that Mr Clowry had “gone off piste”, that he had “thoroughly blotted his copy book” and that the learned Judge would be putting the report aside, and despite strenuous objection from Ms Topping, the learned Judge decided to hear from Mr Clowry, who was invited into the courtroom. His opening gambit to Mr Clowry was as follows:

Notwithstanding the views expressed by the learned Judge during the course of the hearing, and his level disappointment stated directly to Mr Clowry, the learned Judge then proceeded to enquire of Mr Clowry when the work he had been instructed to undertake could be completed if his instruction was continued. Mr Clowry having stated his work would not be possible if T would not agree to see him, the learned Judge also put to Mr Clowry that forcing T to see a psychologist would not work, in respect of which Mr Clowry responded as follows:

Whilst having heard from Mr Clowry the learned Judge told him that he was “released”, this appears to be a term of art as there is no indication that Mr Clowry was sworn, and no party was permitted to cross examine him. The status of the information Mr Clowry provided to the court is, accordingly, unclear. He did not give evidence and his report was, by common acclaim, considered deficient by all parties. However, at one point during the hearing, and despite the criticisms levelled at the report of Mr Clowry by the Children’s Guardian, Ms Topping was permitted to rely in her submissions on that self-same report as evidence that the father had not reflected on his behaviours, whilst almost in the same breath stating the report was deficient and could not be relied on.

Within this context, it is also unclear what status the learned Judge attached to the report, and to the contribution of Mr Clowry at the hearing when considering his decisions with respect to the instruction of a further expert and with respect to whether to conclude the proceedings. However, immediately before giving judgment the learned Judge said:

In a compact final judgment spanning twenty-five paragraphs, the learned Judge set out briefly the history of the matter, noting that litigation had been continuing for almost a decade and recalling in broad outline the procedural stages that preceded the hearing on 28 November 2018, in particular the instruction of Mr Clowry.

The learned Judge recalled that Mr Clowry had “not given evidence” but that the learned Judge had asked him about his ability to prepare a report. The learned Judge then dealt with T’s stated view that she would not see any psychologist, the efforts of the Children’s Guardian to encourage her to do so and Mr Clowry’s statement that he could not complete his work if T would not see him. Within this context, the learned Judge then expressed himself unwilling to deal with the father’s application under FPR Part 25 for an alternative expert “on the hoof”, notwithstanding his sympathy for the father that he was unaware until immediately prior to the hearing of Mr Clowry’s default.

The learned Judge then went on to deal in a little more detail with the history of the matter, and in particular the progress, or lack thereof, of contact. He noted that “a decade of litigation hangs over” T and stated that T has told the Children’s Guardian she has “had enough”. Within the context of noting the Children’s Guardian’s view that “if the pressure is off, the child will organise contact of her own accord”, the learned Judge noted that he had previously made orders for monthly contact and that, whilst the learned Judge had hoped those orders would “kick start the contact”, they had not done so, albeit that, importantly, some short contact had gone ahead.

The learned Judge then moved on to deal with the respective positions of the parties. Whilst learned Judge states at [12] that “The parties have agreed that I should deal with the issues today by way of submissions”, it is not at all apparent from the transcript that this agreement had, in fact, ever been forthcoming from any or all of the parties. In any event, in circumstances where no party was able during the hearing to get to the stage of making submissions on what outcome with respect to child arrangements was in T’s best interests if the learned Judge determined to conclude the proceedings, the learned Judge’s summary of the parties’ positions in that regard was necessarily broad.

Within this context the learned judge then made two substantive decisions. The first was to dismiss the application of the father for permission to instruct a replacement expert or for an adjournment to allow him to prepare such an application. The second was to grant a final child arrangements order providing as follows:

With respect to each decision, the following reasons can be deduced from the judgment.

As regards the father’s application for a replacement expert or a short adjournment to permit the preparation of a Part 25 application, the learned Judge appears to have refused that application because T had indicated in the email of 1 October 2017 that she would not meet with an expert, and her wishes and feelings had to be balanced against the question of necessity, that such a course of action was “vehemently” opposed by the mother and the Children’s Guardian, that Mr Clowry had said that “a psychologist would have to see a child before he or she could reach a conclusion” (it is clear from the passage from transcript that I have set out above that this is not a complete summation of what Mr Clowry had, in fact, said) and that it would be “a complete waste of time to expend monies” on another expert.

With respect to the decision to make a final child arrangements order in the face of objection by the father, and indeed by the Children’s Guardian, the learned Judge noted during his judgment that T’s best interests were his paramount consideration and that he had to have regard to the ‘welfare checklist’ in s 1(3) of the Children Act 1989. He stated he placed “great weight” on T’s wishes and feelings. By way of explaining his reasons for making a final child arrangements order in the face of the father’s objections in the terms he did, the learned Judge said as follows at [19] and [20]:

The father made moderate and considered submissions on the five broad grounds distilled with the assistance of the court from his Grounds of Appeal and amended Grounds of Appeal at the outset of the hearing. His submissions mirrored those grounds and he expanded on each in turn when invited by the court to do so.

With respect to his first ground, in summary, the father submitted that the fact that the judge said he had not looked at the bundles and had read the expert report over a sandwich demonstrates he had not prepared for the hearing adequately. He submitted that, in circumstances where the hearing was not moved to the learned Judge until 2.20pm and that the learned Judge had to attend a meeting at 4.00pm demonstrated that the learned Judge did not accord the final hearing, listed for three hours, sufficient time. The father further argued that the transcript of the hearing plainly showed that the learned Judge did not give proper consideration, or indeed any consideration, to the arguments on the central issue before the court at the final hearing, namely the nature and extent of any final child arrangements order. As I have noted, the father complained that the fact that the hearing before the learned Judge descended into a “shouting match” further prevented the learned Judge from giving proper consideration to the arguments before him. As I have noted, before me, the father also argued that it was apparent from the transcript that the learned Judge had pre-judged the case when he came into court.

With respect to his second and third grounds, the father submitted that the learned Judge’s decision not to allow the application for an alternative expert, or an adjournment to allow the preparation of a properly constituted Part 25 application was contradictory in circumstances where the learned Judge had been satisfied on 15 September 2017 that such evidence was necessary to resolve the proceedings justly. The father argued that this was further evidence of the learned Judge having failed properly to prepare for the hearing. The father further argued that,in circumstances where the fact that the expert evidence the court had considered necessary was not before the court due to the default of Mr Clowry and not a change of circumstances that affected the conclusion on necessity, the learned Judge should have at least allowed a short adjournment to permit him to issue a properly prepared Part 25 application in circumstances where he had only received the deficient report of Mr Clowry the evening before the final hearing and where, on the father’s submission, expert evidence remained necessary.

With respect to his fourth ground, the father submitted that, having regard to the learned Judge’s comments on 15 September 2017 expressing the view that a 13-year-old child should be told what they are going to do, that “pandering” should be avoided, that T was being “allowed to rule the roost” and that sometimes children must be told “this is what the court has ordered”, the learned Judge’s decision to place determinative weight on T’s stated position that she would not see any experts was again contradictory and, within this context, unjustified on the basis of a single email, disclosed late to the father, with no further cogent evidence of how T’s views had evolved following the email sent by the Children’s Guardian on 4 October 2017.

Within the foregoing context, the father submitted that the learned Judge unfairly truncated the final hearing in circumstances where expert had not done his job and decided case without hearing properly from the parties. The father submitted that the learned judge was wrong to decide that it was in T’s best interests for the case to be concluded summarily and on the terms of the final child arrangements order made by the learned Judge, in circumstances where the learned Judge had considered no substantive submissions on the nature and extent of any final order. In particular, the father submitted that the learned Judge was wrong to decide the case based on his conclusion that contact would develop under the auspices of the final order he made if T was left to her own devices, the father submitting that all of the evidence before the court pointed precisely to the contrary.

On behalf of the mother, Mr Persson mounted a strenuous defence of the learned Judge’s orders in his comprehensive Skeleton Argument, supplemented by his oral submissions to this court.

With respect to the refusal by the learned Judge to countenance a replacement expert or to permit an adjournment for a properly constituted application to be prepared, in summary, Mr Persson submitted that the original decision of the learned Judge to permit a report from Mr Clowry had been a finely balanced decision (as is apparent from the transcript, this is not an accurate reflection of the learned Judge’s reasons as given on 15 September 2017) and that the instruction of Mr Clowry was an “expressly time sensitive instruction”. Within this context, and in the context of T’s expressed views about seeing an expert and the length of time the proceedings had been on foot, Mr Persson submitted the decision of the learned Judge to refuse further expert evidence or a short adjournment fell well within the ambit of his discretion.

With respect to the decision of the learned Judge to make a final child arrangements order and conclude proceedings summarily as Mr Persson had urged him to do, in summary, Mr Persson pointed out that the learned Judge articulated the paramountcy principle and made reference to the existence of the ‘welfare checklist’ in s 1(3) of the Children Act 1989. Mr Persson further pointed to the fact that the learned Judge had long experience of the case and that his decision to make a final order and conclude proceedings was based on “a complex matrix of fact, opinion and allegation”. Mr Persson argued that the primary issue in the case was whether Mr Clowry should continue his work and, if the conclusion was no, whether the proceedings should be brought to a close and with what order. In seeking to defend the learned Judge’s making of a final child arrangements order, Mr Persson submitted that contact “had been working at the rate previously arranged” without an order (a point disputed by the father), that proceedings were by then over a year old and litigation had been continuing and on and off for nearly eleven years, that Guardian’s position had been “unequivocal” and that further proceedings would be counterproductive. Mr Persson concluded his written submissions by contending that the appeal should be dismissed as being “contrary to the interests of T”.

Mr Persson did not engage in his written argument with the Appellant’s key submission that, on the face of the transcript and the judgment, the learned Judge had moved to make a final child arrangements order in a case that remained contested without hearing or properly considering arguments from the parties on the issue of whether a final order should be made and, if so, the nature and extent of contact. In his oral submissions however, Mr Persson conceded that, within the context of manner in which the hearing progressed, no party was able to make substantive submissions as to the merits in respect of a final order or contact before the learned Judge made a decision in respect of those issues. Mr Persson likewise conceded that the court did not have before it statements of evidence or a final report from the Children’s Guardian. Mr Persson however resisted the suggestion that the learned Judge had pre-judged matters, characterising the learned Judge’s statements as perfectly permissible robust indications at a final hearing, and likewise resisted the suggestion that the learned Judge was not adequately prepared for the hearing, pointing out that the learned Judge had long been involved with the matter over a number of hearings.

On behalf of T, Ms Topping also mounted a forceful defence of the learned Judge’s orders in her Skeleton Argument and oral submissions. Overall, the tenor of Ms Toppings submission was that T had spoken, that she had been “promised” that the proceedings would be concluded by a certain point and that, therefore, the Judge had acted appropriately in bringing the proceedings to an end summarily, in the manner that he did.

With respect to the decision of the learned Judge not to countenance a replacement expert or to permit an adjournment, in summary, Ms Topping submitted that the fact that Mr Clowry had not fulfilled his instructions was really neither here nor there in circumstances where the time for instructing an expert had “run out”, having regard to the Judge’s stated intention that the proceedings would be concluded before Christmas. Indeed, Ms Topping submitted that the fact that the Children’s Guardian had “promised” T that the proceedings would be concluded by Christmas 2017, and that accordingly the time for instructing an expert had “run out”, was a complete answer to all points concerning Mr Clowry’s default, and one which brooked of no exception, particularly in circumstances where T had indicated her objection to seeing an expert. Within this context, and relying on an assertion that the learned Judge had characterised his decision to permit the instruction of Mr Clowry as finely balanced (again, an incomplete description of the learned Judge’s characterisation of his decision) as justification for the learned Judge’s view that expert evidence should no longer be pursued notwithstanding the decision on 15 September 2017 that the same was necessary to resolve the proceedings justly, Ms Topping submitted that the learned Judge was not wrong to reject the father’s case on replacement expert evidence in circumstances where the proceedings had been ongoing for a decade and it was not being suggested that T should live anywhere than with her mother.

Like Mr Persson, Ms Topping did not engage in terms in her written submissions with the Appellant’s key submission that the learned judge had concluded the proceedings with a final child arrangements order (which was an outcome opposed by the Children’s Guardian) without properly considering arguments from the parties on the question on the need for a final order and, if an order were made, on the nature and extent of contact. In her oral submissions however, like Mr Persson, Ms Topping conceded that, within the context of an increasingly unstructured and fractious hearing, no party ever came to make substantive submissions as to the merits in respect of any final order. Ms Topping likewise conceded that the court did indeed not have before it, statements of evidence from the parties or a final report from the Children’s Guardian when considering whether to make a final child arrangements order and, if so, in what terms. Like Mr Persson, Ms Topping also however, resisted the suggestion that the learned Judge had pre-judged matters, characterising the learned Judge’s statements as perfectly permissible robust indications of the type regularly seen at final hearings in cases of this nature. Ms Topping also resisted the suggestion that the learned Judge was not adequately prepared for the hearing, also pointing out that the learned Judge had long been involved with the matter.

Pursuant to FPR r 30.12(3) this court may allow an appeal where it considers that the decision of the court below was wrong or unjust because of serious procedural irregularity or other irregularity in the proceedings before the lower court. On behalf of the mother, Mr Persson also urges upon me the dicta of Lord Wilson in Re B[2013] UKSC 33 at [38] to [41], which paragraphs consider the well-known authorities of G v G [1985] 1 WLR 647 and Piglowska v Piglowska[1999] 1 WLR 1360.

The father has referred me to a large number of authorities concerning the duty of the court to promote contact between a child and his or her non-resident parent in cases of intractable hostility by one parent towards contact. Given the basis on which I am satisfied that the father’s appeal should be allowed, it is not necessary for me to consider these authorities within this judgment. However, it is important to look in a little detail at the authorities that deal with the spectrum of procedure that a court may adopt when dealing with a final hearing in proceedings involving children, and the authorities dealing with the boundaries that circumscribe judicial indications during the course of a hearing.

With respect to the spectrum of procedure at a final hearing, in the well-known case of In Re B [1994] 2 FLR 1 Butler Sloss P considered the circumstances in which courts could make final orders in private law matters without a full hearing:

In Re C (Family Proceedings: Case Management)[2012] EWCA Civ 1489, [2013] 1 FLR 1089, the President observed as follows:

Within the foregoing context, in Re Q (A Child) [2015] EWCA 991 the Court of Appeal again affirmed the principle that a judge may, in appropriate circumstances, deal with the matter summarily and make final orders at a short hearing without hearing evidence. However, when adopting this course of action, the Court of appeal has also made clear that great care is required on the part of the court. In Re H (Contact: Domestic Violence)[2005] EWCA Civ 1404, [2006] 1 FLR 943 at [106], Wall LJ noted as follows with respect to the proper approach:

With respect to the boundaries circumscribing judicial indications during the course of a hearing, I note the observations of McFarlane LJ in Re Q (Children)[2014] EWCA Civ 918. In Re Q, McFarlane LJ observed, albeit in the context of interim case management hearings, as follows with respect to the boundary between robust case management and premature adjudication:

Having listened to the submissions of the parties and considered the documents contained in the appeal bundle, I am satisfied that the appeal must be allowed. My reasons for so deciding are as follows.

I am not satisfied that the father has made out his complaint that the learned judge had not prepared adequately to deal with the matter on 28 November 2017, nor am I satisfied that the father has made out his complaint that the learned Judge pre-judged the matter.

As is clear from passages quoted above, it can perhaps be seen why the father, as a lay person, drew these conclusions from the statements made by the learned Judge at the outset of the hearing. However, with respect to the issue of preparation, whilst the learned Judge indicated he had not looked at the bundles, he had long experience of this matter, having dealt with it on numerous occasions previously. He was therefore well versed in the key issues before the court. Whilst the learned Judge’s announcement that he had read Mr Clowry’s expert report over his sandwich at lunchtime may suggest to a lay party a certain informality of approach, the need for judges to work through lunch in order to get through the work in their extremely heavy lists is the modern reality for judges up and down the country. Within this context, the fact that the learned Judge combined eating and reading is not an indication of a lack of diligence or preparation. Rather, it is quite the opposite. The learned Judge worked assiduously through his lunch break to ensure he had considered the material relevant to the hearing he was about to conduct.

In relation to the father’s complaint that the learned judge had pre-judged the matter, the learned Judge did say at the outset that “I think it can be finished quite, I think your client’s got to accept that contact should continue as organised between the parents”. After asking Ms Cooper whether the father agreed with this analysis, and being told he did not, the learned Judge did respond, “Well, I’m not having a final hearing with this little girl dragged in now”. It is clear from the transcript that the learned Judge also continued, throughout the hearing, to press the then current contact regime as the appropriate outcome.

Within this context, it is the case that the learned Judge expressed himself in robust terms early on during the hearing and I can understand why the father raises this issue before me. However, I also bear in mind that the matter was listed on 28 November 2017 for a final hearing rather than a preliminary case management hearing, at which final hearing the learned Judge was required to adopt an essentially inquisitorial role in pursuance of his duty to further the welfare of the child as his paramount consideration. Within this context, at least on one reading, the learned Judge was simply exploring at the outset of the final hearing the extent of the issues between the parties at the final hearing and inviting the father to consider a reasonable view on the information available to the court. Finally, as Mr Persson points out, upon being told that the matter was contested by the father, the learned Judge did go on to conduct a hearing and to listen to certain submissions from the parties.

In the foregoing circumstances, I am satisfied that it cannot be said that the learned Judge failed to properly prepare himself to conduct the hearing. I am also satisfied that, whilst perhaps falling somewhat closer to the line marking the boundary between a robust, inquisitorial approach and premature adjudication (to adopt the phrase utilised by McFarlane LJ in Re Q) than is often the case, within the context of the case being listed for final hearing, the learned Judge was not guilty of pre-judging matters.

However, I am satisfied that there is merit to the remaining complaint in the father’s first ground, namely that, once he commenced the final hearing, the learned Judge did not sufficiently consider the parties’ competing arguments on the merits before proceeding on a summary basis to make a final child arrangements order.

As I have set out above, the transcript of the hearing makes plain that, notwithstanding that the hearing was contested on the central issue of whether a child arrangements order was appropriate and, if so, what arrangements for contact were in T’s best interests, no party ever got, during the hearing, to the stage of making submissions on those key issues before the court. The increasingly formless and fractious nature of the hearing meant that no party made submissions on the need for an order or the appropriate level of contact before the learned Judge gave his judgment on those central issues, nor did the learned Judge invite such submissions. The substantive submissions made by counsel were limited to the procedural question of whether the learned Judge should deal with the final hearing or adjourn it.

In the circumstances, and as conceded by Mr Persson and Ms Topping before this court, the learned Judge heard submissions on the issue of whether to proceed to determine whether to make a final child arrangements order but not on the issue of the merits of a final child arrangements order. Notwithstanding this, in his judgment the learned Judge determined both issues. Accordingly, even if one accepts that the learned Judge was operating within the wide ambit of his procedural discretion in dealing with the final hearing summarily on submissions, he dealt with the matter without hearing submissions on the merits. Even though Ms Cooper had made clear on behalf of the father that the matter was fully contested with respect to child arrangements, and that the father would be seeking more extensive contact in any final order than that then taking place, the father never got to argue that case at the final hearing, whether on submissions or otherwise, before the final order was made.

The consequences of this situation are clear from the learned Judge’s judgment. In examining the judgment delivered by the learned Judge I have, of course, taken into account that it was delivered ex tempore at the end of an extremely busy list and in the context of the considerable burden of other responsibilities that routinely fall to be discharged by a Designated Family Judge at the end of the court day. I note that the learned Judge expressly states in the final paragraph of his judgment that, at “the end of a long and hard day”, he would have wanted to have time to hand down a judgment but that he felt it was important for the parties to know the outcome. One can only have sympathy with that view. Within this context, it is not the job of this court, with the greater time available to it, to undertake an overly fine textual analysis of the learned Judge’s ex tempore judgment.

However, reading the transcript of the hearing and the judgment together, it is clear that the learned Judge was not able to rehearse the father’s substantive arguments on the merits for a greater level of contact in any final order, or indeed the substantive arguments of the Children’s Guardian that there should be no order for contact and an order pursuant to s 91(14) of the Children Act 1989, or the mother’s substantive arguments with respect to the nature and extent of contact moving forward, as he had not heard any of those arguments.

In the foregoing circumstances, I am satisfied that there is force in the father’s complaint that the learned Judge proceeded to make a final child arrangements order without proper consideration of the arguments. Indeed, I am satisfied that, as is clear from the transcript and as conceded by Mr Persson and Ms Topping before this court, the learned Judge heard no substantive submissions on the merits of the father’s case, or indeed the case of the mother or the Children’s Guardian before making final orders. Within this context, the learned Judge moved to make a final child arrangements order in a case that remained contested without hearing submissions on the issues at the heart of the case.

I accept that, in line with the judgment of the Court of Appeal in Re C (Family Proceedings: Case Management), a judge is fully entitled to deal summarily with a final hearing in an appropriate case. However, even where the court determines that it is appropriate to deal with the case in this manner, it is equally clear that in doing so, each party must first have a fair opportunity to put their case to the court before the court moves to make final orders. Within this context, even if he or she elects to determine the final hearing summarily following oral submissions, the judge must be careful to ensure, with the assistance of the advocates, that each party has had a fair opportunity to make their respective cases by way of submission on the issues that the court is required, albeit summarily, finally to decide. Issues that may often include, as in this case, whether to make a final order and if so, which order in the best interests of the child. In this case, such an approach was even more important where, as I have noted, the learned Judge did not have the benefit at the final hearing of final witness statements from the parties, nor a final report from the Children’s Guardian, and in circumstances where the expert report that had been considered by the court prior to the final hearing to be necessary to resolve the proceedings justly was deficient having regard to the terms of the letter of instruction.

Within the foregoing context, I am satisfied that the fact that the father, and indeed the other parties, did not have a proper opportunity to put their case to the court by way of submissions on the question of whether a final child arrangements order should be made and if so, what order was in the best interests of the T, before the court moved to make a final child arrangements order, amounted to a serious procedural irregularity. In the circumstances, I am satisfied that the appeal must be allowed on that ground alone.

The forgoing conclusions are sufficient to dispose of the appeal. However, I propose also to deal, briefly, with the father’s second and third grounds concerning the learned Judge’s treatment of the father’s application for a short adjournment to prepare an application pursuant to FPR 2010 Part 25 for permission to instruct a replacement expert in the face of Mr Clowry’s default. In my judgment, the learned Judge was wrong not to permit a short adjournment to allow a properly constituted application to be made.

On 15 September 2017 the learned Judge determined that a report from an expert psychologist, in the terms provided for in the letter of instruction, was necessary to deal with the proceedings justly. That decision echoed a determination that the learned Judge had first reached as early as 19 December 2016 when the learned Judge gave permission for the instruction of Dr Berelowitz. In the circumstances, all parties and the court proceeded on the basis that the final hearing on 28 November 2017 would be informed by expert evidence that the court had determined was necessary to resolve the proceedings justly, specifically a plan of clinical work for advancing contact between T and her father.

The report that resulted was one which all parties, and the court, considered not to be fit for purpose having regard to the terms of the letter of instruction. Within this context, the application advanced by the father for an adjournment to prepare a further application pursuant to FPR Part 25 was based not on any dissatisfaction with the conclusions and recommendations of the report, but rather because the expert report that the court considered necessary to resolve the proceedings justly, and which all parties were expecting, was deficient. This was not therefore a case in which the court was faced with an application by a parent for an adjournment to secure further expert evidence, but rather simply to secure the expert evidence that the court itself had already deemed necessary to resolve the proceedings justly, but which had not been provided as anticipated ahead of the final hearing.

The father had notice of the fact that Mr Clowry had not properly discharged his instructions only hours before the commencement of the final hearing. Within this context, the father reached the final hearing having anticipated the court would have before it expert evidence setting out a plan of clinical work for advancing contact between himself and T, which evidence was central to the father’s case, only to find that such evidence was not available. In the circumstances, the father and his legal representatives had almost no time to investigate replacement experts to fill the evidential lacuna caused by Mr Clowry’s default and to mount a properly prepared application for a replacement. Whilst in her submissions to the learned Judge Ms Topping on behalf of the Children’s Guardian repeatedly criticised the father for trying to make an application for a replacement expert without having prepared a proper application under Part 25, the father had no other choice but to proceed in this manner in circumstances where he had had barely 12 hours notice that Mr Clowry’s report was deficient and a short adjournment was opposed by all other parties. Within this context, the criticism of the Children’s Guardian of the father’s approach at the hearing was, and remains, unfair.

In dealing with the father’s application for a short adjournment to prepare a further application, the learned Judge appears to have relied on the evidence that he himself had deemed, and had stated in terms, to be unreliable. When giving his reasons for refusing to permit the father to instruct a replacement expert, or to permit him a short adjournment to prepare a properly constituted application, the learned Judge referred expressly to what he characterised as Mr Clowry’s view that “a psychologist would have to see a child before he or she could reach a conclusion”. As I have already observed, it is clear from the transcript that this was not a complete summation of what Mr Clowry had, in fact, said. More fundamentally, in determining the father’s application, it is clear from the judgment that the learned Judge relied on information conveyed to the court by Mr Clowry, the status of which information was unclear in circumstances where Mr Clowry was not sworn, and which information no party was able to challenge.

In the circumstances, in dismissing the father’s application for a replacement expert or a short adjournment to prepare a further Part 25 application, the learned Judge relied on the expert who, earlier in the hearing, he had concluded had failed properly to discharge his instruction and was incapable of being relied upon. By contrast, the learned Judge did not explain in his judgment, and in the context of his comments on 15 September 2017 regarding her wishes and feelings, why T’s objection to seeing an expert was now to be considered determinative, nor why, given his orders in December 2016 and September 2017, he had moved from considering expert evidence to be necessary to being satisfied it was not.

Within the foregoing context, I am satisfied that, in the face of Mr Clowry’s default, the learned Judge erred in not permitting the father a short adjournment to prepare a properly constituted Part 25 application for permission pursuant to s 13 of the Children and Families Act 2014 to instruct a replacement expert. Whilst I accept that the fact that T had indicated in the email of 1 October 2017 that she would not meet with an expert, and the length of time proceedings had been on foot, fell to be balanced against the question of necessity, in my judgment, in the context of the matters I have set out above, the father should have been permitted to launch a properly prepared application for a replacement expert before that balancing exercise was undertaken. That properly constituted application might not have been successful but, again, in the context of the matters I have set out above, in my judgment a short adjournment to permit such an application should have been accorded to the father, particularly in circumstances where the matter remained fully contested, the deficiencies in the jointly instructed expert report were not the fault of the father and where the expert evidence that the court had already deemed necessary for the just resolution of the proceedings went to the heart of the father’s case.

With respect to the remaining grounds of appeal, I am satisfied that it is not necessary for me to deal with the father’s complaint that the learned Judge placed too much weight on T’s wishes and feelings when reaching his decisions on 28 November 2017 and that the learned Judge was wrong to decide that it was in T’s best interests for the case to be concluded summarily and on the terms of the final child arrangements order made by the learned Judge. The appropriate procedure for the final hearing, the appropriate weight to be attached to T’s wishes and feelings and the nature and extent of any final child arrangements order will be matters that fall to be considered by the trial judge at the re-listed final hearing.

For the reasons I have given, I am satisfied that father’s appeal must succeed. I intend to list the matter before a judge of the Family Division for further directions towards a final hearing, including consideration of a further Part 25 application.

In allowing the appeal, it is difficult not to have a good deal of sympathy for the learned Judge. He sought to assist the parties by taking the matter at short notice into an already busy list after the final hearing had already commenced before a different judge. Having done so, the learned Judge tried to further assist the parties by attempting to cut through a protracted dispute between two parents in what, on any estimation, was a long running case involving a young person with her own strongly held views about the way forward.

Within this context, I make one additional observation. As I have already pointed up, the transcript of the hearing demonstrates that the learned Judge was not assisted in his difficult task by the approach of the advocates in this case. Both the transcript of the hearing before the District Judge, and the transcript of the hearing before His Honour Judge Scarratt, record each of the advocates, although counsel for the father a good deal less so, regularly interrupting each other. The net effect of that approach was that, as I have observed, neither judge received properly structured submissions, in the proper order on the points that were in issue between the parties, and no issue was ever fully run to ground. It is quite clear from the transcript why the father chose to describe the hearing as having descended into a “shouting match”.

I am satisfied that this unfortunate situation before the learned Judge materially contributed to the primary reason this appeal has been successful, namely that, before making a final child arrangements order, the learned Judge did not hear submissions on the key issues before the court at the final hearing of the need for a final child arrangements order and the appropriate level of contact between father and daughter if such an order were made.

FPR r 12.21, deals with the order in which a court hears submissions or evidence at a hearing and confers on the court a discretion in that regard. FPR r 12.21 reflects the fact that properly sequenced submissions constitute a vital constituent of a fair hearing. The requirement for submissions to be made in a clearly defined order aims to ensure that each party has a fair opportunity to present their case on the issues that are before the court for determination. A failure by advocates to assist the court in adhering to this requirement is corrosive of that aim. In this case, the reception by the court of properly sequenced submissions was rendered extremely difficult by a concerning tendency on the part of the advocates simply to interrupt each other in an effort to advance their competing submissions. It should go without saying that this mode of advocacy does not assist the court and is to be deprecated.

That is my judgment.