A (Children)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WALL,LORD JUSTICE CHADWICK |
| Judgment Date | 31 October 2006 |
| Neutral Citation | [2006] EWCA Civ 1609 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | B4/2006/2173 |
| Date | 31 October 2006 |
[2006] EWCA Civ 1609
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CHELMSFORD COUNTY COURT
(HIS HONOUR JUDGE RICHARDS)
Royal Courts of Justice
Strand
London, WC2
Lord Justice Chadwick
Lord Justice Wall
B4/2006/2173
MR G BAIN (instructed by Wrotley Redmayne Kershaw) appeared on behalf of the Appellant.
MR D PEARS (instructed by Hill & Abbott) appeared on behalf of the Respondent.
1. This is an application for permission to appeal, with the appeal to follow if permission is granted by the mother of two children, a girl (S) who is now ten and a boy (J) now aged two and a half. The application arises out of an order made by HHJ Richards sitting in the Chelmsford County Court on 28 September 2006. The judge's order required the mother to make the children available for visiting contact with their father, who is the respondent to this appeal, and I will from now on use the words "mother" and "father" to refer to the parents.
The children's contact with their father is described in the order as "interim". That is because the judge has ordered a review on 13 December, when the question of staying contact is to be considered — assuming the visiting contact has proved successful. The order made by the judge provides for fortnightly supervised contact on 30 September and 14 October from 10.00am to 5.00pm, the contact to be supervised by one of two identified people, whom I understand to be respectively the children's maternal aunt and their maternal grandmother.
I would like to add, in parenthesis as it were, that it is to my mind one of the happier features of this case that the children's mother appears to have maintained a good relationship with the members of the father's family and is clearly able to trust and talk to them. That is of particular importance in this case because the children are of mixed race and it is vitally important that they should have as much contact as possible with both sides of their heritage.
However, the order goes on — and this is the complaint — to direct unsupervised contact on 28 October and 11 November for the same hours (10.00am to 5.00pm) and then from 25 November it is to be from 10.00am to 6.00pm, also unsupervised, and the same on 9 December 2006 prior to the review on 13 December. The local authority, which had previously filed a Section 7 report, is directed to file an addendum report for the review hearing on the progress of contact and proposals for staying contact, taking account of the elder child S's wishes and feelings.
The mother's application for permission to appeal was placed before me on paper on 25 October. I took the view that, particularly given the ongoing progress of the case, the best way to deal with it was to arrange for it to be listed swiftly as permission to appeal with the appeal to follow if permission was granted today. As there was only one period of unsupervised contact legislated for in the judge's order between 25 and 31 October, I directed that it should take place but that it should be supervised as the previous contact had been. The matter would then be considered by this court before the next period of unsupervised contact was due to take place.
The mother invites this court to say that the judge was plainly wrong to order unsupervised contact at this stage. The principal argument that she advances is that the hearing before the judge was procedurally flawed because the judge declined to conduct an investigation into what he thought were historical and largely irrelevant allegations of domestic violence by the father, but which the mother sought to argue were directly related to the contact issue.
I will, in a moment, go back to deal very briefly with the history of the matter, but in my judgment there are two formidable and, indeed, insuperable obstacles in the mother's way in advancing that argument to this court. The first is that the judge's order and the hearing before the judge did not take place in a procedural vacuum. The decision that the court was not going to investigate, what I will call the historical allegations of domestic violence, was taken by a District Judge on 28 March 2006, when he directed that the father was to file in court and serve on the mother a statement by 25 April restricted to post-March 2004 issues relevant to contact with the children and any allegations of violence, and that the mother was to file in court and serve on the father a statement by 25 April, again restricted to post March 2004 issues relevant to contact with the children and any allegations of violence. There was to be a Section 7 report filed by 27 June and contact was agreed as follows, that is every Saturday from 12.00pm to 5.00pm supervised by the father's sister at her home or outside under her supervision, and other supervised contact was to be agreed between the parties, again supervised, during the school holidays, and the matter was then listed for further directions once the Section 7 report was available.
The Section 7 report was available by the time the matter came before a different District Judge on 5 July 2006. It was not a report which was satisfactory to the mother, and in particular it did not deal with the historical allegations. The court ordered that the author of the report should attend the hearing for the purposes of cross-examination and to clarify in particular the issue as to whether contact should be supervised or unsupervised, and if unsupervised how that was to be achieved, and to clarify the extent of the discussions which the officer had had with the elder child, in which she had made clear that she was extremely fond of her father and found it very difficult to chose between her parents, although she loved them both equally.
The officer had also reported that S would like to have contact with her father every other Saturday, as there were times she would like to spend with her mother and with friends. She had found it difficult to explain that to her father as she felt he would not understand and she also expressed her wish that her younger brother should have contact with his father at the same time, that she did not feel she was spending less time with him. The officer reported that the boy, J, was at an age when he was unable to express his wishes and feelings; however having observed a period of contact with the father it was clear that he identified with him as his father and shared a positive bond with him. J was described as a delightful and friendly child and appeared to be very content at contact with his father. He enjoyed the attention that was bestowed upon him and able openly to show his father affection by running to him and hugging him and engaging positively with him.
The obvious point which arises from those two orders and the report of the local authority officer is that the court at an early stage had taken a decision that the interests of the children, in the context of contact, did not require a wholesale historical investigation of earlier allegations of domestic violence made by the mother. That was the strategy set by the court in March. In the subsequent order in July, that strategy was maintained. Although the Section 7 Officer was ordered to bring with her to the hearing all relevant Social Services records, there was no direction to the father that he should file any further statement dealing with historical matters, and indeed at that point he was unrepresented.
Speaking for myself, therefore, I have some difficulty with the argument advanced by Mr Bain this morning in this court that the mother's decision not to appeal the order of the District Judge of 28 March 2006 was taken because she believed that pursuant to the order of the District Judge on 5 July she could nonetheless ensure that the relevant allegations were before the court by way of the local authority file. Such procedure, in my view, would be grossly unfair to both parents but particularly the father, who would not have been in a position to have filed evidence relating to those allegations, he being expressly forbidden to do so by the previous order of the District Judge.
So that in my view is the first obstacle that stands in the mother's way. She did not appeal the order of the 28 March, and the judge conducted the hearing on the basis that that was the strategy which was laid out for hearing.
The second obstacle which the mother faces is one which I fully accept is somewhat double edged but nonetheless important. The fact of the matter, and this will be more clear in the chronology when I come to it, is that although the Social Services department of the local authority was involved with the family up to and indeed after the birth of J, the names of the children were removed from the Child Protection Register in July 2004 after the parties' final separation and the father having left home. They were removed on the basis that the local authority would supervise contact and take an active part in so doing.
In the event, as the mother explains in her statement, the local authority did...
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