Re Z (Unsupervised contact: allegations of domestic violence)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Wall,Lord Justice Wilson |
| Judgment Date | 06 April 2009 |
| Neutral Citation | [2009] EWCA Civ 430 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B4/2009/0727 |
| Date | 06 April 2009 |
[2009] EWCA Civ 430
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE PRINCIPAL REGISTRY OF THE FAMILY DIVISION
(HIS HONOUR JUDGE COLLINS QC)
Before: Lord Justice Wall
and
Lord Justice Wilson
Case No: B4/2009/0727
Mrs Fleishmann (instructed by Messrs Duncan Lewis & Co) appeared on behalf of the Appellant.
Mr Date (instructed by Messrs Anthony Louca Solicitors) appeared on behalf of the Respondent.
Lord Justice Wall:
This is an application by the mother of three children for permission to appeal against an order for unsupervised contact by their father to the two youngest of the children. The order was made by HHJ Collins, CBE, sitting in the principal registry on 27 March 2009.
I say at once that we have imposed reporting restrictions in this case and nothing must be reported which in any way identifies the children concerned.
I saw the case on paper on 2 April 2009. I stayed the order for unsupervised contact, the first period of which was due to take place on 4 April 2009, and I directed that the mother's application for permission to appeal, with the appeal to follow if permission was granted, should be listed before my Lord, Wilson LJ and myself in the current week. That is how we come to be hearing the application today.
Given the overall view which I have formed of the case, I propose to say as little about the facts as is consistent with the outcome which I will propose. That outcome is as follows. Firstly, that we should grant permission to appeal; secondly, that we should allow the appeal; thirdly, that we should direct that the papers be referred forthwith to the Family Division Liaison Judge for Greater London, Hedley J, with a request that he allocate the father's application for contact forthwith to a circuit judge other than HHJ Collins, with a view to there being a speedy finding of fact hearing followed by a CAFCASS report and an early resolution of the father's claim for contact.
The background is as follows. There are three children; they are all boys: L, who is now six; S, who is three, and M who is two. Their parents were married in 2001. There is some controversy about the date of separation. There were certainly proceedings between them in 2007, but on any view they have not lived together since June 2008 which, we were told at the Bar, is the last occasion upon which the father saw the youngest of the children. In June 2008 the children were aged respectively six, two and one year and eight months, on my calculation. The father is 41 and is Algerian by nationality, although he has permanent leave to remain in this country. I do not know the mother's age. She has Belgian nationality, although I think she is Moroccan by origin.
According to the father's application for contact, which is in our papers, there were interlocutory proceedings in the County Court between the parties in October 2007 when, we are told, on a without notice basis a non-molestation order, a prohibited steps order and an occupation order against the father were all made. Although the application by the father states that these are attached to his application, they are not in my bundle and we have not seen either the orders themselves or the underlying evidence in relation to them.
The children live with their mother in Wembley and the father lives with another partner and her three children in North London. It is a feature of the case that the father is not only Algerian, but it is the mother's allegation that she has a fear that he may abduct the children to Algeria, that being of course a country which is not a signatory to the Hague Convention or any other child abduction international treaty.
The father issued his application for contact on 6 August 2008 and on 14 October Deputy District Judge Gill, sitting in the Principal Registry of the Family Division (which I shall henceforth call “the PRFD”), made the first of the orders in this case. That order was that there should be a CAFCASS report directed to the issue of contact to be available by 4 February this year. The mother was to serve and file a statement by 4 November, setting out any allegations of behaviour on the part of the father and the father was to file and serve a statement in reply by 18 November. The matter was to be listed for directions before a district judge in the PRFD on 27 November. On that date the father's application came before District Judge White sitting in the PRFD. He made a number of orders, including a continuation of the orders previously made (or some of them) in the County Court. He made an order for supervised contact in relation to all three children. He dealt with the cost of the supervised contact and the filing of the relevant notes. Paragraph 7 of his order reads:
“The matter be listed for a fact finding hearing on 9 th February 2009 at 10:30am before a Judge sitting at Gee Street Court House, London EC1V 3RE (time estimate one day).”
The mother was directed to file and serve a concise schedule of allegations (and any other evidence of violence or harm on which she relied) by 10 December 2008; the father was to file his evidence in reply by 23 December. Thirty minutes were to set aside after the fact finding hearing to consider the issue of progressing contact from a supervised to a supported setting (my emphasis) and the respondent mother was to file and serve a short statement setting out her efforts to enrol L at school. The time for filing the CAFCASS report was extended and both parties were directed to attend the hearing.
Most unfortunately, when the hearing came before HHJ Sleeman, sitting in the PRFD on 9 February 2009, the finding of fact hearing did not go ahead. We were told this was because a great deal of information had come in from the police which the court was unable to assess and assimilate during the course of the time set aside. The judge therefore ordered the police to make documentation (I assume further documentation) available. The judge continued the order for supervised contact; he made further directions about the mother's schedule of allegations, and he made an order at paragraph 7:
“The allocated CAFCASS Officer, Ms Freeman is requested to supervise two sessions of contact, including preferably the first contact session ordered at paragraph 3 above, in order to facilitate reintroduction between the children and the Father.”
The CAFCASS officer was ordered to produce an interim report as to her observation of contact and any other relevant matters by 16 March 2009 notwithstanding that findings of fact had not been made with regard to the mothers allegations of domestic violence, and the judge ordered a final report from CAFCASS for 25 April, that is after the finding of fact hearing – on the issues of residence, contact and prohibited steps. The judge repeated the direction that there should be a finding of fact hearing. He adjourned it to 26 and 27 March with a time estimate of two days before a circuit judge in the PRFD, and he directed the CAFCASS officer to attend on the second day of the hearing unless notified in writing that she was not required. The court would consider the question of interim contact at the end of that hearing.
The judge then listed the final hearing of the father's application for contact for 29 May with a time estimate of one day again, before a circuit judge, with a direction that the CAFCASS officer attend. He made an order that final directions be listed for 8 May 2009 with a time estimate of half an hour. He also made orders in relation to documentation and the filing of bundles.
I pause in my recitation of the facts simply to record what is obvious, namely that on two separate occasions—in fact three occasions and two judges—the court took the view that a finding of fact hearing was necessary and was directed; and the court also took the view that contact should be supervised. At that point, of course, there had been no report by CAFCASS.
We have in our papers a schedule of the mother's allegations and the father's stated responses to them. I do not propose to go through that schedule in any detail. Mr Date for the father asserts that although it reads starkly, the reality was somewhat different when the mother gave evidence. Be that as it may, it is for my purposes, I think, sufficient to say that in my judgment the allegations made by the mother are by no means trivial; indeed some are extremely serious, not least being the allegations of damage to property, threats to take the children to Algeria, assaults on the mother, and threats to kill her. In addition, she alleges breaches of the earlier non-molestation order and submits that much of what happened took place in the presence of the children. There is a specific incident which appears to have some force behind it. In September 2008, the father appears to have attempted to seize S and force him into the father's car. S was said to be extremely upset and crying. It is also clear that the police had been called on a number of occasions.
The CAFCASS officer, Mrs Freeman, filed her interim report on 16 March 2009. She records that HHJ Sleeman's order was intended to enable her to observe two periods of supervised contact but that she had been unable to do so because contact at the contact centre in question was not going to start until after the finding of fact hearing had taken place. However, she took the view that it might assist the court if, together with a colleague, she observed one short period of contact in one of the CAFCASS...
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