W (Children)
| Jurisdiction | England & Wales |
| Judge | Lady Justice Black,SIR JOHN CHADWICK,LORD JUSTICE THORPE |
| Judgment Date | 02 February 2012 |
| Neutral Citation | [2012] EWCA Civ 528 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B4/2011/2294 & 2295 |
| Date | 02 February 2012 |
[2012] EWCA Civ 528
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CAMBRIDGE COUNTY COURT
(HIS HONOUR JUDGE YELTON)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Thorpe
Lady Justice Black
and
Sir John Chadwick
Case No: B4/2011/2294 & 2295
Mr Gribbin (instructed by Wilkinson & Butler Solicitors) appeared on behalf of the Appellant Mother.
Mr Tom Urwin (instructed by Wilkins Solicitors) appeared on behalf of the Respondent Father.
We have before us two joined appeals. They relate to inter-dependent decisions made by HHJ Yelton on 3 and 5 August 2011 in relation to two children, A, aged four, and S, aged two. They are the children of the appellant mother and respondent father who I call simply "the father" and "the mother" in this judgment. The application that HHJ Yelton had before him was the father's application for a variation of an interim contact order made in November 2010. The original order provided for the father to have contact with the children at a contact centre on the first and third Saturday of each month for two hours and the father wished to be able to have more contact and for that to be away from the contact centre. He sought an increase gradually to three hours and then to four hours unsupervised contact.
The judge had first to make findings of fact about allegations that the mother had made of unpleasant behaviour against her on the part of the father. He did so in a judgment on Wednesday 3 August 2011 at the end of three days of evidence. There is no appeal against the findings of fact made by the judge on that occasion. By the time judgment was given it was late and the mother had left court to collect the children from nursery, so the judge adjourned the question of what order should be made in relation to contact in the light of his findings until the Friday, 5 August. However, before doing so he heard and refused an application on behalf of the mother for a Section 7 welfare report by a Cafcass officer and/or a psychological assessment of the father. The judge did not give a judgment as such on that application. One can glean his reasons from the argument which has been transcribed. The father did not in fact oppose a psychological assessment of himself. However, the judge did not think it was necessary because, as he said in argument, "I am perfectly satisfied he was ill and he is now a great deal better." As to the Cafcass report, the judge thought that Cafcass may be able to assist but that it was going to take a long time; we have been told now it would be likely to take in the region of 14 to 16 weeks. His attention was drawn by counsel for the mother to the well-known case of Re L to which I shall come later and the considerations that the court has to have in mind in deciding whether to order contact following domestic violence. He did not rule out asking for a Cafcass report later on but he thought in the first instance he should decide on how contact would move forward at a relatively short hearing without expert evidence and without further evidence from the parties themselves. That short hearing was scheduled to take place on 5 August.
Unfortunately it was not possible for the same counsel to be present when the case came back to court on 5 August although those who appeared were well informed. Counsel for the mother attempted to persuade the judge to re-open his determination about whether there should be a further psychiatric report or psychological report or any other further investigations before a determination was made about contact. The judge declined to re-consider the matter and went on to order that from November, the father was to be permitted to take the children out from the contact centre during his contact visits. This was to be an interim order and the judge provided for a review to take place on 6 December 2011. The effect of this appeal has been to halt any further progress on the case either by the development of contact so that some of it took place outside the contact centre or by a further review.
Counsel for the appellant submits to us that the judge was wrong to refuse a welfare report and/or a psychological assessment and that he thereby deprived himself of evidence that was necessary in order to determine what was in the children's best interests. He also submits that the judge erred in failing to give the mother a fair opportunity to explain the effect of the father's conduct on her and the children. Further it is submitted that in dealing with the material that he did have, the judge failed to conduct a proper balancing exercise, identifying and considering any positive factors and weighing them up with the negative implications of the father's conduct. The judge's approach, it is submitted, was not in accordance with best practice as set out in the Practice Direction 12J to the 2010 Family Procedure Rules entitled Residence and Contact Orders: Domestic Violence and Harm and it resulted in him prematurely granting the father's variation application.
I do not propose to set out here a detailed catalogue of the findings that the judge made in relation to the father's conduct towards the mother. The fact finding judgment concentrates on matters which occurred from September 2005 which is when the parties were married. For the most part the judge accepted the mother's account of events. He provided a pithy summary of the position in argument on 5 August when he said "he has made your client's life a misery for a very long time". In his judgment that day he summarised the later history between the parties in this way:
"…during the 12 months or 15 months from the autumn of 2009 until the end of 2010 the father behaved in a very hostile and harassing way towards the mother."
In the course of his fact finding, the judge reached a number of conclusions about the sort of man the father is. He found that "certainly last year" (presumably therefore 2010) the father was extremely depressed and in "what might be described as a fragile mental state". He said that the father was "an impetuous man, he acts on the spur of the moment, and I accept that he was ill at various times during this dispute, but it is clear that he has an absolute belief that what he does is right, and what the mother does, does not really matter very much". He found that the father was a very difficult person with whom to live and that life was so intolerable for the mother that she eventually left and went to live in a women's refuge for a period.
The judge made findings of actual violence by the father towards the mother; I will mention only examples. The first incident of violence that the judge found proved was in December 2007 when the father lost his temper and hit the mother and pushed her. This was at a time when the parents were living together, the final separation coming some time in the latter part of 2009. In March 2010, the father pushed the mother over in the presence of his own father and of A. Thereafter the mother obtained an ex parte non-molestation order but in September 2010, the father spat at the mother and assaulted her during an unpleasant serious argument in A's presence. This was at a time when the mother had had A circumcised in Morocco without asking the father or telling him, which the judge found to have been not "terribly sensible" of her but not justifying the father's behaviour which the judge found to be a gross over-reaction.
The judge also found that the father did not want the mother to work outside the home as she began to do part time in early 2009, or to go to university as she began to do full time in the autumn of 2010. These things "wound him up" the judge found. In 2011 the judge found that the father had sabotaged an opportunity that the mother had to get part time employment in a hotel. He also found that the father had begun a campaign of verbal and written aggression against the mother in the autumn of 2009, shortly after S was born. It included a "great barrage of text messages" to the mother because he wanted contact over Christmas 2009. The terms of the texts were abusive and unpleasant and the judge found that the father had "behaved very badly over that period of time". In 2010 the father telephoned on occasions 20 times a...
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