H (A Child)
| Jurisdiction | England & Wales |
| Judge | Lady Justice Black,Lord Justice Elias,Lady Justice Arden,and |
| Judgment Date | 13 February 2013 |
| Neutral Citation | [2013] EWCA Civ 72 |
| Docket Number | Case No: B4/2012/2952 |
| Court | Court of Appeal (Civil Division) |
| Date | 13 February 2013 |
[2013] EWCA Civ 72
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BRENTFORD COUNTY COURT
HIS HONOUR JUDGE POWLES QC
BF11P00635
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Arden
Lord Justice Elias
and
Lady Justice Black
Case No: B4/2012/2952
Mr Nick Goodwin (instructed by Hodge Jones & Allen Llp) for the Appellant
Ms Sally Gore for the Respondent
Hearing date: Tuesday 29th January 2013
This is an appeal against an order made by Judge Powles on 29 October 2012. The order concerns contact between H, who is 8, and his father (F). The appellant is H's mother (M) with whom H lives.
H's parents physically separated in May 2011 although it seems the relationship had come to an end in fact before then. Proceedings between them began soon afterwards with an ex parte application by M which resulted in a non-molestation order and an order prohibiting F from removing H from M's care or from the jurisdiction.
It was rapidly apparent that there were factual disputes between the parents as to how F had behaved during the relationship and that there was dispute also as to what the arrangements should be for F to see H. In particular, M objected to F seeing H in his new home.
To understand the issues in this appeal, it is necessary to understand the evolution of the court's orders in relation to H. I will therefore go through the chronology of events, much assisted by the written chronology provided by M's counsel. It would be enormously helpful if such chronologies were provided in all family appeals as they are for most first instance hearings.
The procedural history until July 2012
On 29 September 2011, the court made an order for contact every Saturday morning and otherwise as agreed in writing. The order includes various recitals, amongst them the following:
"Upon it being recorded that the mother does not consent to contact at the father's home".
In November 2011, a fact finding hearing took place before District Judge Allen. She carefully examined a number of allegations made by M, which included allegations that F had been violent to her, for example by punching her in the chest with both fists, grabbing her neck and pinning her against the wall.
The district judge found that the relationship was "clearly a volatile relationship" and that both parties could lose their temper and scream and shout in the course of incidents. She found that H had been present in the course of "mutually loud and violent argument between the two people he loves most in the world" which was very distressing for him and that the main risk in the proceedings was that the mutual antipathy, if unresolved, could be harmful to him.
The district judge did not find the direct physical or verbal abuse alleged by M proved. She thought that on occasions F demonstrated controlling and apparently somewhat domineering behaviour towards M and that he had a loud voice and could appear aggressive. However, it appears that she did not think he meant to be aggressive as she found that such physical contact as there was with M was not intentional and that he did not intend any physical harm by any of his actions "even where they appear controlling or to a degree aggressive". She summarised that "really my only finding is that the respondent can appear to be aggressive and controlling on occasions."
The order that was made after the fact finding hearing has the following recital encapsulating the position:
"Upon the Court finding the specific allegations not proven and making no findings save that the respondent could give the appearance of being controlling and aggressive on occasion" (minor correction mine)
There is also a recital recording that F gave certain undertakings. These must, I think, be those which feature on the form at page 106 of the bundle, that is not to communicate with M except by texts for the purpose of arranging contact and not to go into the street where M lives. The undertaking form records that the earlier non-molestation order was discharged.
The body of the 28 November order provides for the contact order of 29 September to continue, with additional Christmas contact. Two further recitals are also relevant to contact, namely:
and"Upon the deletion of the recital of 29 September 2011 that M does not consent to contact taking place at F's flat"
"Upon the Court considering that Saturday contact should be extended and inviting the parties to reach agreement on this"
CAFCASS were invited to provide a report about the child's wishes and feelings in relation to contact and staying contact in January 2012 when there would be a directions hearing.
Things did not, however, proceed as anticipated. It is M's case that on 23 November 2011, shortly before District Judge Allen's decision, H had alleged to her that F had assaulted him. We are told by her counsel (who did not appear below although F's counsel, Ms Gore, did) that M told counsel who was then representing her about this but counsel decided not to inform the District Judge.
On 12 December 2011, an "Independent Domestic Violence Advocate" with whom M had been in contact referred the case to social services.
On 16 December 2011, Mr Chikoore, a social worker from the relevant local authority, met M and H in order to make an initial assessment to establish whether there were any risks to H from his father. From his discussion with M emerged a number of allegations which M said H had made about F's violent behaviour towards him. The specific incidents alleged were that F threw H across a table hurting his back and hitting his head against a wall in March 2011, that F had dragged him across the room by his arm during contact on 12 November 2011, and that F had hit him across the chest whilst he was playing with the Xbox at his house during contact. M also made some more general allegations about F's conduct affecting H, including that he used to lock H in the downstairs toilet by way of punishment.
Mr Chikoore spoke to H. H did make some allegations to Mr Chikoore. The social worker noted that when H was describing alleged incidents of physical abuse by his father he spoke loudly enough for his mother to hear whereas when he talked about the positive aspects of contact, he lowered his voice. H told the social worker he enjoys contact with F and was looking forward to seeing him the following day. At no point did he indicate that he was scared of F or did not want to see him. The social worker thought that H's opinion of the alleged incidents may have been influenced by M. He concluded that it was appropriate for H to continue to have contact with F. He said so in his report which he circulated on 12 January 2012.
It is now known that M had taped both her own and H's conversation with the social worker, unknown to Mr Chikoore; a transcript has been prepared. In due course, M complained to the local authority about Mr Chikoore's conduct. It has reached stage 2 of the local authority's internal procedure and a response is awaited by her.
Meanwhile, M had applied on 20 December 2011 to suspend or vary the existing contact provisions on the basis that H had told the social worker that F had been violent towards him and he had witnessed violence by F against M. Giving directions that day, the district judge essentially adjourned the matter to the end of January 2012 to await a report from Mr Chikoore, providing that contact was to be supervised by a named third party until further order.
On 27 January 2012, both parties appeared before a district judge who discharged the provision for supervision by the third party and substituted a requirement that all contact take place in a public place and not at F's home until further order. Provision was made for Mr Chikoore to file and serve his Initial Assessment (a different document from his first report) by early February and for CAFCASS to provide a full welfare report by mid May.
The core of Mr Chikoore's Initial Assessment is much the same as his first report although he added to it as well. He gave the opinion that there were no immediate child protection concerns, that there was no evidence to suggest that H was at immediate risk from his father and that "on the contrary, he has talked positively about contact with him and this should be promoted wherever possible".
The district judge considered the matter again on 20 February 2012. He ordered that contact be extended so that it would be for a longer time on Saturdays and also from after school until 5.30 p.m. on Tuesdays, with F's undertaking relaxed so that he could take H back to the boundary of his M's home at the end of contact. It will be noted that contact still had to take place in a public place.
Towards the end of May 2012, the CAFCASS officer provided her report. She met H and the parents and also observed H with his father. M said to the CAFCASS officer that there should be no extension of contact because she saw H's safety as paramount although, the officer records, she accepted that H loved his father and, according to CAFCASS officer, said he would probably want more contact (as indeed H, in due course, told the CAFCASS officer that he would, including going to his father's house). M apparently remained convinced that H was scared of F. However, when the CAFCASS officer saw H's reaction when his father arrived for contact, it was noticeable excitement and delight. There was an obvious well-developed bond between them with H showing no signs of anxiety or unease. When the CAFCASS officer later asked...
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