Re F-K (A Child) (Contact: Departure From Evidence)
| Jurisdiction | England & Wales |
| Judgment Date | 2005 |
| Year | 2005 |
| Date | 2005 |
| Court | Court of Appeal (Civil Division) |
Family proceedings – Contact – Civil evidence – Expert evidence – Departure from evidence – Judge re-opening findings of fact – Whether judge in error.
The parents of a child born in 1994 separated in 1996. The mother contended that the separation had followed a serious assault on her by the father with a baseball bat in which she had feared for her life. Thereafter, the predominant issue between the parties had been the extent and nature of the father’s contact with the child. Whilst there had been some extended periods when contact had successfully taken place, the parties’ positions became starkly polarised with the mother opposing any contact with the father on the basis that she suffered from post traumatic stress disorder (PTSD) as a consequence of the father’s violence towards her during their relationship, and consequently found contact between the child and her father insupportable. In July 2001, the matter came before the judge (the first judge). Although the judge did not take oral evidence from the mother, she made a number of clear findings of fact about the father’s violence towards the mother, which included accepting the mother’s account of the baseball bat incident. She further accepted expert psychiatric evidence that the mother was suffering from PTSD, and in the light of those findings, ordered, inter alia, that the father’s application for direct contact be suspended for 18 months. The father sought and obtained permission to appeal against that order, and the Court of Appeal allowed the appeal (see [2002] All ER (D) 333 (May)) and directed that the father’s contact with the child should resume at the frequency of once per month once the mother had commenced treatment for PTSD. Following a number of other hearings, in October 2002 a hearing began before a second judge, and the father invited him to re-open the findings of fact made by the first judge. The second judge held that he was not bound by the first judge’s findings due to the fact that before her the mother had given her evidence in writing and had not been subject to cross-examination and because her order had, in any event, been successfully appealed against. He further concluded, having found that a report from a second expert, G, diagnosing PTSD, could not be relied on as the expert had based his opinion on the mother’s exaggerated account of the baseball incident, that the mother had failed to prove that she was suffering from PTSD. The second judge therefore ordered the mother to make the child available for contact with her father on a number of specific days, and thereafter on every third Saturday. The mother appealed against that decision. She contended, inter alia, that the second judge
had been wrong: (i) to embark on a re-hearing of allegations when the first judge had made findings of fact in respect of the same allegations which had not been set aside by the Court of Appeal; (ii) to go on and make new findings or make findings without reference to or consideration of the reasoning of the first judge; (iii) in failing to take into account, or in giving proper weight to, expert evidence in respect of the diagnosis of PTSD; and (iv) in failing to give proper weight to G’s evidence and in wrongly departing from the expert evidence.
Held – (1) The second judge could not be said to have been plainly wrong in embarking on a re-hearing of the mother’s allegations of violence against the father. Given the absence of any strict rule of issue estoppel in children’s cases, there were a sufficient number of unusual factors in the instant case to make the course the second judge had taken acceptable. It had, therefore, been reasonable for the second judge to anticipate that he might be in a position to make a judicial assessment of the mother’s credibility in the witness box, where the first judge’s findings had been made without oral evidence from the mother. The first judge’s decision had been reversed by the Court of Appeal, and her findings had been challenged, even though that challenge had not been adjudicated upon. In the circumstances, those factors in combination had justified the second judge’s decision on that point. It had, at the bottom, been a matter of discretion, and there was adequate material upon which the discretion could be exercised. That part of the mother’s challenge to the decision had, therefore, to be rejected.
(2) It was incumbent on a judge to exercise great care before rejecting a mother’s evidence of violence, particularly when the opposite conclusion had been reached by a colleague on what was to a large extent the same material. In the instant case, it was clear that the second judge had not felt that the mother’s oral evidence had been of any value: in other words, his decision had been largely dependent on the same written material as that of the first judge. In the circumstances, the second judge had given adequate weight in his considerations to the evidence of contemporaneous complaint, particularly in relation to the baseball bat incident. He had relied on the mother’s oral evidence in relation to that assault, despite his previous indications that it was of no value. He had discounted the contemporaneous account, but had not stated why. There had, therefore, been no proper basis for disbelieving the mother’s account, and his analysis had been faulty. The second judge’s findings on the question of violence could not, therefore, stand and had to be set aside.
(3) It was axiomatic that if a judge was going to reject an expert’s evidence on the basis that the expert’s opinion was predicated on inaccurate information, the findings of fact which the judge made had themselves to be sound. In the instant case, the second judge’s judgment had not addressed the unanimous psychiatric view that the mother was indeed suffering from PTSD, and the findings of fact which he had himself made had not been sound. It followed that the second judge’s rejection of G’s evidence was likewise unsound. The order for contact could not, therefore, stand and would be set aside. The father’s
application for contact would, accordingly, be remitted to be further considered by a High Court judge and, at any early hearing, directions should be given for the future conduct of the proceedings.
Accordingly, the appeal would be allowed.
Cases referred to in judgmentsB (a child) (split hearings: jurisdiction), Re[2000] 1 FCR 297, [2000] 1 WLR 790, [2000] 1 FLR 334, CA.
B (a minor) (rejection of expert evidence), Re[1996] 3 FCR 272, [1996] 1 FLR 667, CA.
B (minors) (issue estoppel), Re[1997] 1 FCR 477, [1997] 2 All ER 29, [1997] Fam 117, [1997] 3 WLR 1, [1997] 1 FLR 285.
DSV Silo-und Verwaltungsgesellschaft mbH v Sennar (owners), The Sennar (No 2) [1985] 2 All ER 104, [1985] 1 WLR 490, HL.
G v G [1985] 2 All ER 225, [1985] 1 WLR 647, HL.
L (a child) (contact: domestic violence), Re; Re V (a child) (contact: domestic violence); Re M (a child) (contact: domestic violence); Re H (a child) (contact: domestic violence) [2000] 2 FCR 404, [2000] 4 All ER 609, [2001] Fam 260, [2001] 2 WLR 339, [2000] 2 FLR 334, CA.
S (a child) (abduction: grave risk of harm), Re[2002] EWCA Civ 908, [2002] 3 FCR 43, [2002] 2 FLR 815.
AppealThe mother appealed against the decision of Judge Masterman, sitting as a judge of the Family Division at the Cardiff District Registry, whereby he ordered that the mother make her child available for contact with the father and that a review of the progress of contact should be made. The facts are set out in the judgment of Wall LJ.
Clive Newton QC for the appellant.
Nicholas Francis QC for the respondent.
Peter Horrocks for the guardian.
WALL LJ.INTRODUCTION[1] On 10 December 2004, Judge Masterman, sitting as a judge of the Family Division of the High Court, made an order under the Children Act 1989 which, on its face, appears unexceptional. He ordered that the mother of a ten-year old girl (H) was to make H available for contact with her father from 10 am on 23 December 2004, 13 January 2005 and thereafter every third Saturday, collection and return to be by H’s paternal grandparents from her maternal grandparents’ house. The judge directed a review of the progress of contact on 13 April 2005, for which H’s guardian in the proceedings, the legal department of the Children and Families Court Advisory and Support Service
(CAFCASS) was to provide a short report dealing with the progress of contact and H’s response. The judge refused permission to appeal.
[2] H was born on 15 November 1994, so she is ten. She is the only child of her parents whom, henceforth, I will call, respectively, ‘the mother’ and ‘the father’. By an appellant’s notice filed on 23 December 2004, the mother sought permission to appeal against the judge’s order, and on 13 January 2005, I directed that the mother’s application for permission to appeal should be listed for oral hearing on notice to both the father and H’s guardian, with appeal to follow if permission granted. I stayed the judge’s order for contact pending determination of the application, and directed expedition.
[3] The result of these directions was that the application came into the list on 8 February 2005. I appreciate that the speed of the listing, which did not take the convenience of counsel into account, has caused difficulties for the parties. In particular the father was deprived of the benefit of representation by Mr J Furness QC who had appeared for him before the judge. I am also conscious of the fact that my estimate of one half day for the hearing was insufficient, although in the event the best part of the day was available. I am, accordingly, grateful to counsel for the clarity and economy with which the case was argued. I am particularly grateful to Mr Nicholas Francis QC who took over Mr Furness’ brief. Mr Francis not only produced a most helpful chronology, but argued the father’s case forcefully, and with what was manifestly a detailed mastery of his brief...
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