Re A (A Child) (supervised contact) (s91(14) Children Act 1989 orders)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Arnold,Lord Justice Newey,Lady Justice King |
| Judgment Date | 23 November 2021 |
| Neutral Citation | [2021] EWCA Civ 1749 |
| Docket Number | Case No: B4/2021/1398 |
| Court | Court of Appeal (Civil Division) |
[2021] EWCA Civ 1749
Lady Justice King
Lord Justice Newey
and
Lord Justice Arnold
Case No: B4/2021/1398
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CHELMSFORD COUNTY COURT AND FAMILY COURT
Her Honour Judge Dawson
CM18P02988
Royal Courts of Justice
Strand, London, WC2A 2LL
Maria Scotland (instructed by The Family Law Company) for the Appellant
1 st Respondent appeared in person
Andrew Bagchi QC and Matthew Fletcher (instructed by David Wilson Solicitors) for the 2 nd Respondent, the Children's Guardian
Hearing date: 12 October 2021
Approved Judgment
This is an appeal by the mother against orders made by HHJ Dawson in private law proceedings in relation to her daughter, A, who is rising 7 years of age. The orders now challenged were made on 20 May 2021 and:
i) Provided that A should live with her father by the final confirmation of an existing interim order made in August 2019;
ii) Provided for ongoing contact by A to her mother on a professionally supervised basis every fortnight for up to 6 hours;
iii) Prohibited any further application under the Children Act 1989 being made in relation to A for a period of 2 years without the permission of the court pursuant to section 91(14) of the Children Act 1989 (‘s91(14)’).
By an application notice filed on 15 June 2021, the mother applied for permission to appeal against each of the orders made including the refusal to grant an adjournment. Because the application was made from orders made by a Tier 2 Circuit Judge in private law proceedings, the avenue of appeal was to a judge of the High Court under Part 30(8) of the Family Procedure Rules 2000 (‘FPR’).
On 9 August 2021, Cohen J granted limited permission to appeal, restricting the appeal to the question of contact and the making of the s91(14) order. He refused permission to appeal against the order confirming that A should live with the father or the refusal by the court of the mother's application for an adjournment. Pursuant to FPR r 30.13(1)(a), the appeal was transferred to the Court of Appeal, Cohen J having considered that the appeal raised an important point of principle or practice.
The mother subsequently applied to renew her application for permission to appeal based on the rejected grounds at an oral hearing. The hearing took place on 5 October 2021 at which Cohen J refused the application.
The issues before this court are whether the judge was:
i) wrong to make a supervised contact order without specific provision for that contact to progress to unsupervised contact and if not;
ii) whether, in any event, the making of an order under s91(14) coupled with a supervised contact order placed an impermissible fetter on movement towards unsupervised contact and to the development of a more natural relationship between mother and child.
Background
The mother is originally from Hungary. She is a medical doctor and intermittently works in hospitals on locum contracts in various parts of the country. The mother has three children from earlier relationships.
The mother and father formed a relationship in 2013 and A was born in 2015. In April 2017, the mother returned to Hungary leaving the four children in the care of the father. Six months later, she returned to this country and announced her intention to relocate to Hungary taking all of the children with her. The father immediately applied for a prohibited steps order to prevent this but it would appear that the parties reconciled before an order was made.
In May 2018, the father agreed to the mother taking A to Hungary for two weeks for the purpose of A undergoing medical treatment. The other children remained in England with the father. A was not returned in accordance with the agreement. In August 2018 the mother told the father that their relationship was over and in October 2018, A not having been returned to this country, the father issued child abduction proceedings for the return of A to this jurisdiction. In fact, unbeknownst to the father, the mother had already returned to this country and in October 2018 she made an application for a child arrangements order and offered the father one hour's contact each week to be supervised by her. The mother's unsettled lifestyle continued, she moved to Hastings without informing the father and then in June 2019, she moved to Northern Ireland. The father first became aware of the mother's relocation when a Northern Irish contact centre contacted him to inform him that contact would now take place in their premises in Northern Ireland. The mother subsequently failed to comply with a court order to return A to England and to surrender A's passport.
As time went on concerns about A's welfare were such that a Children's Guardian was appointed to represent A's interests in what was to prove to be long running and destructive private law, child arrangements proceedings. Eventually, sufficiently worried about A's welfare in the care of her mother, the Children's Guardian took the most unusual step of making an urgent application for the residence of A to be forthwith transferred to the father. The application was granted by the judge on 21 August 2019 and subsequently appealed by the mother. The mother's appeal against the transfer was dismissed by Cohen J and A has lived with her father ever since.
At a finding of fact hearing in October 2019, the judge held that the mother had deliberately placed barriers in the way of the father having a natural relationship with A by taking planned and covert steps to relocate some distance from the father.
Following the finding of fact hearing, a direction was given for a Dr McCartan to carry out a psychological assessment of the mother. In the meantime, as the mother was still in Northern Ireland, telephone contact was ordered to take place with A twice a week. In January 2020, the Children's Guardian was once again driven to make an urgent application to the court, this time to suspend the telephone contact following an incident during the mother's allocated phone call when A was questioned by a police officer from Northern Ireland about the mother's (wholly unfounded) allegations of sexual abuse of A by the father.
Supervised contact took place thereafter, but no telephone contact was allowed. By March 2020, the mother was expressing further concerns and making allegations about A's physical and mental health and her development to her GP and Social Services. The mother's focus was, and remains, that A is not putting on enough weight in the care of her father and that she is living in a sexually inappropriate environment. By way of example, the mother vehemently disagreed with a diagnosis of thrush made by A's GP, attributing it to her having been exposed to inappropriate sexual conduct whilst in the father's care. The mother's persistent complaints finally led to the GP referring A to a paediatrician, Dr Filby, who carried out a physical examination of A. At that examination, Dr Fliby found nothing untoward, either physically or developmentally. The court nevertheless agreed to appoint a further paediatrician, Dr Chawla an expert chosen by the mother, who in due course filed a report in the ongoing proceedings.
In her judgment, the judge summarised the endless applications and the deluge of email correspondence, which had been forthcoming largely from the mother, during the course of the proceedings. Emails making allegations against the father were sent to the court, the school, the GP, social services and to the police. In addition, the mother made formal complaints to the professional bodies of the psychologist Dr McCartan, the paediatrician Dr Filby, the solicitor representing the child and the Child's Guardian themselves. Informal complaints were also made towards counsel representing the child. By the time the matter came on for trial, the papers in what should have been a straightforward child arrangements dispute, ran to six lever arch files.
Dr Chawla gave evidence. She had not carried out a physical examination of A herself given the restrictive Covid-19 environment, but this did not present any difficulties given that A had only recently been seen by Dr Filby. Dr Chawla had had access to all the medical records and the benefit of Dr Filby's recent report. Dr Chawla was cross examined at length and her evidence, which was accepted by the judge, was that there was no concern with regard to A's weight, that her progress is now steady and it is in her genetic make up to be small. Dr Chawla had no other concerns and noted that when Dr Filby examined her, A had presented as ‘articulate, active and imaginative’. The judge, having heard the evidence of Dr Chawla, accepted that although A's weight had plateaued in the summer of 2019, it was not attributable to the father's care and noted that her weight now continues to grow in congruence with her height.
When cross examined about alleged sexualised behaviour, Dr Chawla was robust in her view. She said that an intimate examination of A, a year after she had had vaginal thrush was not warranted. Many children, she said, attend A & E with thrush and exhibiting symptoms of itching and scratching. She added that: ‘we do not refer a child for a sexual examination if there is no cause. It will traumatise the child’. The judge was equally clear and having set out the mother's allegations of either the sexual abuse or sexual exploitation of A by the father, concluded in robust terms that there was not a ‘shred of evidence’ that the father is a sexual risk to A.
The court also heard...
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