JC v KH
| Jurisdiction | England & Wales |
| Judge | Lord Justice Ryder,Lady Justice Macur,Lord Justice Sullivan |
| Judgment Date | 21 November 2013 |
| Neutral Citation | [2013] EWCA Civ 1412 |
| Docket Number | B4/13/0817 |
| Court | Court of Appeal (Civil Division) |
In the matter of C (A Child)
[2013] EWCA Civ 1412
Lord Justice Sullivan
Lord Justice Ryder
and
Lady Justice Macur
B4/13/0817
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM a County Court
Royal Courts of Justice
Strand, London, WC2A 2LL
Ms Deidre Fottrell (instructed by Hopkin Murray Beskine) for the Appellant
Ms Madeleine Reardon (instructed by Cafcass Legal) for Cafcass
The Respondent did not appear and was not represented
Approved Judgment
Hearing date: 8 October 2013
The appellant is the father of a young boy who was born on 1 April 2008 who I shall call C. The respondent is C's mother. There is evidence before the court that both parents were involved in the care of C during their relationship and that for a period of time C's father was his primary carer. C's parents were in a relationship for ten years. They separated in January 2012, since when mother has been in a relationship with a new partner with whom she has had another child. It appears that father's circumstances were not so fortunate. He found the ending of the relationship emotionally distressing, he had financial difficulties, he had no accommodation as a consequence of being asked to leave the former matrimonial home when the relationship ended and he was declared bankrupt. He is a former soldier and on his own account has had some mental health difficulties relating to his military service. He moved from the North West of England to stay in the South East with extended family members.
The order complained of was made in the county court on 6 March 2013 in Children Act 1989 proceedings issued by mother in March 2012. The order prohibited father from removing his son from the care of mother or from his primary school and provided for indirect contact between father and son in the form of letters, cards and small gifts. It follows that direct contact was refused. In circumstances which I shall describe the order was the culmination of a series of serious procedural irregularities which caused the decision to be unjust. The order was also wrong given that one of the irregularities gave rise to an assumption of alleged facts against father when the court had not conducted a finding of fact hearing and accordingly the judge's welfare evaluation was based on what is said to be a false premise.
It needs to be understood that the allegations made against father are serious. The most serious of the allegations and the assertions of risk were not made by mother but by the Cafcass practitioner who was the family court advisor. The allegations have not been decided and nothing which follows in this judgment should be taken to minimise the risk that might exist if the allegations are true. Equally, if the allegations are not proved or the risk assessment is as a consequence or otherwise wrong, the child who is the subject of these proceedings and his father have been seriously failed.
I have not identified anyone in this judgment because it has not been possible to ascertain how the failures of due process that I shall describe have occurred. It is as likely as not that it was because at various significant points in the proceedings both parties were litigants in person. There was no effective judicial continuity. It is not helpful for this court to attribute blame and in any event it would be inappropriate given that this court is not in full possession of all of the information that relates to the proceedings. That said the case presents a salutary lesson to us all to put in place procedures and practices which can accommodate litigants in person who do not know the rules and practice directions of the court. Since the commencement of the relevant provisions of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO 2012) on 1 April 2013 the majority of parents in private law children disputes are litigants in person and the obligation upon the court to identify and implement due process should not be underestimated. That will take time and that means a greater share of the court's limited resources.
I propose to deal with the litigation history from the perspective of the litigant in person, that is from the scant papers that were filed and by reference to any formal record of matters that were raised orally. In fairness to the judges involved, the same paper record is all that they will have had to inform them from hearing to hearing. Where there is no record of something of significance that was said orally I shall say so. This court has had very considerable assistance from a legal team instructed for these proceedings by father who received legal aid after the permission hearing in this court. His solicitor (Ms Hopkin) undertook the permission hearing and the preparatory work that preceded it pro bono. I am also grateful to Cafcass Legal for their helpful assistance. Mother decided that she did not wish to attend this hearing or to be represented at it. Her representatives filed a helpful skeleton argument opposing the appeal.
The circumstances that led to family proceedings in the county court are as follows. Subsequent to the parents' separation and between 6 January and 29 March 2012, father was seeking direct contact with his son without success. The parties were by then living at opposite ends of the country and were apparently unable to communicate civilly with each other. On 29 March 2012 mother made a without notice application to the court for prohibited steps and residence orders. An order was made on the same day by a deputy District Judge without notice to the father prohibiting father from "removing the child from the care of the Applicant or from [the nursery]". A return date of 5 April 2012 was ordered for a hearing between the parties limited to 30 minutes, the time for service was abridged to three days and father was given liberty to apply on 24 hours notice.
The written material before the court at the without notice hearing was mother's application notice (the C100) and a supplemental information form for use in cases where allegations of harm and domestic violence are raised (the C1A). Mother was a litigant in person at the time the documents were issued. Although in error mother struck through the statement of truth on the information form, I shall take it for the purposes of this judgment that she intended to make the statements contained in the documents knowing that proceedings for contempt may be brought against a person who makes a false statement which is verified by a statement of truth. I make that comment because when a document which purported to be a statement of evidence was eventually filed by mother in these proceedings it did not give particulars of all of the allegations made, for example as to any alleged facts which substantiated a risk of abduction from the mother's care at the relevant time. It likewise did not give anything like the detail of the allegations subsequently relied upon by the Cafcass practitioner.
The documents taken together demonstrate that mother was applying for residence and prohibited steps orders. The application notice was unfortunately silent as to that fact. The facts alleged against father were as follows:
a. He was returning to (the area of the child's nursery and home) on 20 March 2012.
b. He was intending to see his son without mother's consent.
c. He had "threatened on more than one occasion that he had a right to see his son".
d. He had been threatening and abusive towards mother.
e. In that context, "he may take him (the son) without consent".
f. There were concerns about his mental health and lack of (local) accommodation.
Mother characterised her application as being based in a belief in a risk of abduction (by ticking the box that identified that risk) without giving any particulars other than (b), (c) and (e) above which related to having contact without her consent. She likewise characterised her application as being unrelated to any risk to the child from domestic abuse or violence. Despite that she particularised the domestic abuse she relied upon as threatening and abusive conversations and a specific request from father that he be allowed to pick up his son from nursery.
Without hearing more from mother about her fear of abduction, this was an application which on its face was about contact which mother did not want to provide for father. Without in any way excusing father for what he might have said in the past (which at that stage had not been particularised or proved) or for any threat to exercise his parental responsibility unilaterally (which might have been unwise or wrong in the sense that a dispute in front of the child at nursery or a removal from nursery without agreement would likely be harmful to the child), the case as presented on paper was a dispute about contact with low key allegations which screamed out for a rapid decision. If a prohibited steps order was to be made at all the risk needed to be substantiated in evidence and the proportionality of the consequence needed to be considered.
Due process in court proceedings must involve scrutiny of the detail of that which is alleged and asked for. The need for that is demonstrated on the facts of this case by the inconsistency of the case presented against father which is a sad and usual consequence of a party being unrepresented. It has to be said that the problem was heightened by the leading nature of the enquiries on the application notice and supplemental information form which invite an inference of abduction. To be clear, where a 'tick box' formula is...
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