F-K (A Child), Re [2005] EWCA Civ 155

[2005] EWCA Civ 155Case No B4/2004/2739
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
Venue ON APPEAL FROM CARDIFF DISTRICT REGISTRY
HIS HONOUR JUDGE MASTERMAN
CF04PO5044
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Thursday 24 February 2005
Before
LORD JUSTICE POTTERLORD JUSTICE WALL
F-K (A Child)
Mr Clive Newton QC (instructed by Sinclairs Solicitors (Vale of Glamorgan)) for the Appellant
Venue Mr Nicholas Francis QC (instructed by Wendy Hopkins & Co (Cardiff)) for the RespondentHearing Hearing date: 8th February 2005
Mr Peter Horrocks (instructed by CAFCASS Legal) for the Guardian Ad Litem
Judgment

Introduction

[1]On 10 December 2004, His Honour 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 10.00am 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 10. 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. In the event, I do not feel that any party has been actually disadvantaged by the speed with which the matter has been heard.[4]At the outset of the argument, we made it clear that we were minded to grant permission on the five substantive grounds of appeal advanced by Mr. Clive Newton QC for the mother, but to refuse permission on the sixth, which was procedural. At the conclusion of the argument, we reserved judgment.

Overview

[5]This is what has become known as an intractable contact dispute. It is, moreover, one, which has, procedurally, gone badly wrong. As the judge commented, the “battle” over H (a word he said he used advisedly, for that was how the parents perceived it) was no nearer resolution in October 2004 than it was when it began in October 1996, shortly after the parents’ separation. This is, moreover, the third occasion in which the question of the father’s contact with H has reached this court.[6]Nobody should pretend that an intractable contact case is easy either to case manage or to resolve. It is, however, apparent to me that the case manifests many of the characteristics for which the family justice system has recently been criticised. I calculate that the hearing before Judge Masterman was (if I include the appeals to this court) at least the twenty-second between these parties in relation to H. There has been a marked lack of judicial continuity. When the case was being opened to him, the judge commented that apparently he had made a consent order back in 1998, of which (unsurprisingly) he had no recollection.[7]Although the question of H’s residence has periodically been raised (and was before Judge Masterman) the predominant issue throughout has been the extent and nature of the father’s contact with H. The picture has not been entirely negative. There have been some extended periods during the past nine years when contact has successfully taken place. The position with which this court is now faced, however, is starkly polarised. The father, unsurprisingly, seeks to hold the judge’s order. The mother’s case is that she is suffering from Post Traumatic Stress Disorder (PTSD) as a consequence of the father’s violence towards her during and at the conclusion of their relationship, and as a consequence finds contact between H and her father insupportable. She invites us to set aside the judge’s order, and to substitute the following: -(1) An order that there be no direct contact between H and her father until further order;(2) An order for indirect contact between H and her father;(3) An order prohibiting the father from making any application for the residence of H without limitation of time without the permission of the Court;(4) An order prohibiting the father from making any application in respect of contact to H for 5 years without the permission of the Court;(5) An order that CAFCASS in June 2007 do commence the preparation of a report dealing fully with the issue of future direct contact by the father to H with input from Dr. Gay and/or Dr. Gallwey if considered necessary and do file and serve such report on or before 30th September 2007.” Dr Gay and Dr Gallwey are, respectively, the child and the adult psychiatrists instructed by the guardian who gave evidence before the judge, and whose evidence I will need to discuss in some detail later in this judgment.[8]The two principal issues raised by the appeal are:(1) in what circumstances is it (a) permissible and (b) appropriate for a judge to re-open findings of fact made by a previous tribunal in the same proceedings?(2) In what circumstances is it (a) permissible and (b) appropriate for a judge to reject unanimous expert evidence? To understand how these issues arise, it will be necessary to set out both the facts and the procedural history of the case in some detail.

The history

[9]I take the history in large measure from Mr. Francis’ helpful chronology. The mother is 36 and the father 40. They began to live together in 1992. They did not marry. The mother’s case is that the father was both jealously possessive of her and violent towards her. The judge’s findings on the issue of the father’s violence are at the heart of this appeal, and I will need to examine particular allegations later in this judgment.[10]H was born on 15 November 1994, and the parties separated in October 1996, a month before her second birthday. The mother’s case is that the separation followed a serious assault on her by the father with a baseball bat on 5 October 1996 in which she says she feared for her life. I will henceforth refer to this as “the baseball bat incident”.[11]H has always lived with her mother. On 17 October 1996, the father issued proceedings in the Cardiff County Court seeking contact with H. On the same day the mother swore an affidavit dealing with the incident on 5 October 1996. On the following day the father added an application for residence order.[12]On 25 November 1996, there was a consent order in the County Court that H reside with her mother. On 28 January 1997, there was an order that the father was to have supervised contact with H. In February 1997, the father applied for parental responsibility and a specific issue order in respect of H’s surname. On the same day, the court found that contact had been satisfactory and ordered further supervised contact.[13]On 17 March 1997, the court welfare officer, Mrs. Atherton observed that H and her father enjoyed a good relationship and enjoyed seeing each other. She commented, however, that the dispute between the parents did not augur well for future contact.[14]On 25 July 1997, His Honour Judge Curran made an order that direct contact between the father and H was to take place at the home of the paternal grandparents every Saturday afternoon. That contact was extended on 13 October 1997 by Mrs Recorder Crowley. On 6 January 1998, His Honour Judge Gaskell extended the father’s contact with H to Thursdays and Saturdays.[15]On 16 March 1998 a different court welfare officer, Mrs. Smith, reported that:(1) there was no evidence to suggest that the father’s contact with H would be harmful;(2) she was confident of H’s safety;(3) she thought staying contact should be introduced gradually; and(4) the father should be granted parental responsibility for H.[16]On 7 April 1998 a consent order was made by His Honour Judge Masterman. This provided that(1) the father was to have contact with H on Thursdays, alternate Saturdays and overnight staying contact one weekend in four at the paternal grandparents’ home; and(2) the father was granted parental responsibility.[17]On 24 August 1998, the father applied for a penal notice to be attached to the order made on 7 April 1998. On the same day, a consent order was made:(1) directing overnight staying contact to take place at the father’s home; and(2) changing H’s surname to a hyphenation of the parents’ respective surnames.[18]In July 1999, the mother terminated all forms of contact. This led to the father issuing an application for defined contact order on 23 July 1999. On 9 August 1999 the mother issued an application for an order terminating all future contact. She claimed that contact has been problematic, with the father being abusive towards H and assaulting her on occasions. She also alleged that H no longer wished to see her father. She filed a statement in support of that application on 24 August 1999.[19]Contact took place on 26 August 1999, but did not resume thereafter. The mother alleged that the father took drugs in front of H; that he was violent and that he had threatened to kill the mother.[20]On 27 September 1999, the CAFCASS officer, Mrs. Jean Smith (who had prepared reports in December 1997 and March 1998) recommended a period of observed contact at her office as an opportunity for the officer to assess H’s responses, but the mother was “not prepared to put H through any more” and declared her determination to pursue her application to terminate contact before the court.[21]On 7 October 1999, District Judge North made an order for supervised contact, and ordered that a paediatrician report on H’s behaviour and whether her behaviour, if abnormal, could be explained and if so, the treatment required. On 18 October 1999, Dr. Polya, a community paediatrician, reported. H was found to have no abnormalities, and there were no indicators that the contact visits were doing her long-term damage.[22]On 9 November 1999, Mrs. Smith, the CAFCASS Reporting Officer (CRO) reported again. She had observed three contact sessions in her offices. Her conclusions were that:(1) H’s difficulties stemmed from the mother’s and the father’s hostility;(2) contact would continue to present a problem for H whilst the relationship between her parents remained so poor and there was no communication between them;(3) the parents’ attitudes were unlikely to change, and contact would continue to cause some distress to H. Unfortunately, termination of contact would also have consequences for H’s emotional development in that she would be denied a potentially beneficial relationship with her father and her extended family; and(4) CAFCASS was unable to make specific recommendations as most avenues to facilitate contact had been explored previously.[23]On 24 November 1999 the mother swore an affidavit in support of her assertion that contact should be terminated. She placed particular reliance in this affidavit on an incident in 1993 in which she says the father struck her in the face with a telephone, thereby causing her (she asserted) nearly to lose the sight on her right eye. I will call this “the telephone incident”. Mr. Francis makes the point (as did the judge) that she fails to mention the baseball bat incident, which, on her case, was a far more serious incident, and which formed the basis for the subsequent diagnosis of PTSD.[24]On 1 December 1999, Dr. Jawad, a consultant adult psychiatrist, reported on the mother’s mental health. He interviewed the mother on the day of his report. She told him about both the telephone incident and the baseball bat incident. Dr Jawad recorded the mother as saying: - “(She) told me that on the day her left her ex-partner she was hit by a baseball bat. She told me that the experience was extremely threatening and she felt that she was about to be killed. The memories of this experience keep coming back to her mind in intrusive thoughts that last 5-10 minutes.” His conclusion was that the issues central to the case were the mental health of the mother, H and the father. He was only able to comment on the former. He did not think her account exaggerated. He was impressed by the fact that she had denied being sexually abused by the father, and had given him “a very clear account of two episodes of violence that keep recurring in form of intrusive thoughts on a regular basis”. Her symptoms as described suggested a diagnosis of chronic PTSD. Ongoing contact between the father and H served “as a continued reminder of past episodes and operating through conscious and unconscious processes to demoralise (the mother)”. His recommendation was that if contact ceased for a period of two to three years that might give the mother the chance to “reintegrate socially”. It would then be up to H and to the court to determine whether contact should be resumed.[25]On 2 December 1999, the mother’s lawyers made an application to District Judge Wyn Rees for permission to adduce Dr. Jawad’s report in evidence at the hearing of her application to terminate contact, which was listed to commence before the District Judge on the following day, and in relation to which he had given directions for trial on 15 November 1999. The application was refused on the grounds that the District Judge had directed all evidence to be filed by 26November and the report was thus out of time; that permission had already been given for a report from the mother’s general practitioner, and that Dr. Jawad’s report was of an entirely different nature. The District Judge asked himself the question why, if the situation was so grave, no application had been made earlier, and why the question had not been raised on 15 November. The late filing also prevented the father seeking permission to file an expert’s report in reply.[26]We have a transcript of what must be the reserved judgement given by the District Judge on 21 December 1999 following the conclusion of the hearing. His findings were that:(1) contact had been terminated by the mother in July 1999 as a consequence of the father’s request for staying contact at the home of his new partner;(2) there was no evidence of physical abuse of H by her father and H was not frightened of her father;(3) the father had made threats to and was abusive of the mother, but these were on occasions when contact had been denied;(4) there were no rational grounds for the mother’s hostility to contact; and(5) contact should be restored along the same lines as had pertained until its collapse in mid 1998. The District Judge attached a penal notice to his order.[27]Although the judgment of the District Judge reviews the history of the litigation, he does not appear to have conducted any investigation of the pre-separation allegations of violence against the father, and certainly makes no findings about them. All he says is:
“The mother has also raised issues in terms of violence against her. Those to which reference have been made relate to allegations prior to and in the aftermath of the separation”
. He said there had been no allegations of actual violence post April 1998 when the order for staying contact was made.[28]The District Judge does refer to the mother’s state of health by reference to a letter from her general practitioner dated 29 November 1999, which did not refer to any complaints of depression or PTSD, but did refer to asthma. In short, therefore, the District Judge saw no reason why contact should not resume, nor any reason why the mother should not cooperate in its resumption. There was no risk to H from her father.[29]Despite the order of the District Judge, the mother terminated all contact in early 2000, with the result that on 11 January 2000, the father applied for her committal. On 18 January 2000, His Honour Judge Price gave the mother permission to appeal against the District Judge’s order of 21 December 1999 but warned the mother that H was likely to have to move to the father if matters continued as they had been. It also appears that at later stage, Judge Price granted an application by the mother for permission to rely on the evidence of Dr. Jawad.[30]On 28 March 2000, Mrs. Smith, the CAFCASS CRO reported. Her conclusions were:(1) that H may be exhibiting behavioural problems as a result of the bad relationship between M and F;(2) that the mother and the father impressed as volatile individuals who disliked each other intensely, but who individually were affectionate, caring parents;(3) that H should remain with her mother but have good contact with her father;(4) that family therapy, which the father would welcome but the mother would not, would be beneficial. On 25 May 2000, Mrs. Smith reported again. She had nothing to add to the report of 28 March 2000 except to note that there had still been no contact and that the father had become increasingly frustrated and upset by his inability to see H.[31]On 25 July 2000 there was a hearing before Mr Recorder Malcolm Bishop QC. There appear to have been three applications before the court;(1) by the father to commit the mother to prison for contempt of court for breaching the contact order;(2) the father’s application for residence of H; and(3) a review of contact, in relation to which the mother was seeking to call expert evidence from Dr Hasan, a child and adolescent psychiatrist who had seen H, and also from Dr. Jawad. There also appears to have been some confusion about whether or not the mother was pursuing her appeal against District Judge Wyn Rees’ order of 21 December 1999.[32]The Recorder focused on the first of these applications, and made it quite clear that he was minded to send the mother to prison for contempt. He did not give a judgment. We have a transcript of the exchanges which took place between the Recorder and counsel, which does not make altogether happy reading, and the consequence of which was that the parties came to terms. The Recorder ordered that contact should recommence; he attached a penal notice to the order and made a Family Assistance Order under section 16 of the Children Act 1989 for six months.[33]On 15 August 2000, this court heard an application by the mother for permission to appeal against the Recorder’s order. Her case was that the Recorder’s conduct had been so oppressive to her that she had been left with no option but to consent to an order that was contrary to H’s best interests. This court (Thorpe and Mummery LJJ) refused permission. The leading judgment was given by Thorpe LJ. Having unravelled the history, Thorpe LJ concluded that the judge had been entitled to make the order he did, having been told by counsel that the compromise had been reached following a careful reconsideration by the mother of her litigation position, during the course of which she had received advice from both Dr. Hasan and Dr. Jawad.[34]Thorpe LJ concluded this judgment with the following observations: - The only aspect of the mother’s case upon which I have not touched is the aspect of domestic violence. It is perfectly true that at the date the primary judgment was given by the District Judge, there was not available to him the report of the Children Act Sub-Committee of the Lord Chancellor’s Advisory Board, nor the judgments of this court in the four linked contact / domestic violence cases (In re L (a Child) (Contact: Domestic Violence); In re V, M and H (Children) [2001] Fam 260) But that deficiency is in my opinion offset by the fact that the deplorable incidents of physical violence experienced by the mother were all limited to the period of cohabitation. There was a history of contact, almost always ordered by consent, having its inception in the immediate aftermath of separation and gradually extending over the ensuing months and years, culminating in a period of 18 months in which staying contact was enjoyed by both father and H, without any seeming disturbance, as was found by the District Judge. So, although the factor of domestic violence is to be recognised and is certainly not to be diminished in the light of the preliminary views of Dr. Jawad – nonetheless it has to be seen in this case, as in all cases, in its overall context and certainly it would not at this stage justify intervention by the court.[35]On 17 August 2000, the mother sought to re-open her appeal against the order made by Direct Judge Wyn Rees. On 16 October 2000, Mrs. Smith reported for the fifth time. She had been the officer charged with the implementation of the Family Assistance Order made by Recorder Bishop. She reported that her professional relationship with the mother had broken down; that the mother had told her she was only abiding by the contact order because of the threat of prison; and that the mother was making further allegations of harm to H as a result of contact with the father. On the other side of the coin she reported positively about the father’s and paternal grandparents’ contact with H. Overall, however, her view was that the Court Welfare Unit could offer only limited assistance to the mother and the father in the light of their entrenched views.[36]On 26 January 2001, there was a review of the contact arrangements before Mrs. Recorder Parry. She took the view that the time had not come to make a final order, and directed a further review in May 2001. She noted that the order made on 25 July 2000 had been complied with, and commented that this may have been related to the existence of the penal notice, which she continued. She gave the father permission to withdraw his application for residence order, and dismissed the mother’s application to re-open her appeal from the order of District Judge Wynn Rees. She was satisfied that a modest increase in the father’s contact was appropriate, and ordered that contact was to continue with additional staying contact at half term and Easter holidays. She made a finding that H enjoyed contact and that it was in her best interests for it to continue. She did not think that further involvement of CAFCASS or Dr. Hasan and Dr. Jarwad was appropriate.[37]On 7 March 2001, Dr Jamil, a forensic consultant psychiatrist, reported on the mother’s condition. She had interviewed the mother on 1 March 2001. Her conclusions were the same as Dr. Jawad, namely that the mother suffered from chronic PTSD. She was also of the opinion that the mother was suffering from a moderate depressive episode. Her prognosis was guarded. However, she was of the opinion that contact should cease for the time being to enable the mother to seek help and treatment, a process which, in her opinion, could take up to one or two years of weekly therapy.[38]In March 2001, the mother once again terminated all forms of contact, and on 23 March 2001 she issued an application to discharge the contact order made by Mrs. Recorder Parry. On 2 May 2001, Dr Jamil wrote an addendum to her report of 7 March 2001, in which, from the available documentation she extracted a substantial number of occasions on which the mother had been subjected to violence by the father. She was unable to find evidence that H’s psychological and physical well being had been affected by the ongoing conflicts between her parents, but remained of the view that the mother was suffering from chronic PTSD, and that she was an emotionally damaged individual. The ongoing proceedings and contact were acting as triggers for traumatic memories for the mother and aggravating her state of anxiety.[39]On 25 May 2001 the father applied for interim and full residence orders, asserting that this was the only way that H could enjoy a proper relationship with both of her parents.[40]On 27 June 2001, Dr Jamil reported for third time. She reproduced much of what is in her addendum of 7 March 2001. She added, however, that the threat of committal proceedings was having a detrimental effect on the mother’s health and exacerbating her PTSD and depression. Imprisonment, she advised, would lead to a further deterioration in the mother’s mental and physical health with a real danger of suicide. Dr Jamil was also of the opinion that removing H from her mother’s care would have a detrimental effect on H’s psychological well-being.[41]On 19 July 2001, the matter came before Her Honour Judge Case. The father was given leave to withdraw his application to commit the mother to prison. The judge directed that the father’s application for a residence order and the mother’s application to suspend contact should be heard together in January 2002. She directed that H be separately represented by CAFCASS Legal, and gave permission for the instruction of a child psychiatrist (Dr Martyn Gay) to examine H. Permission was also given for the disclosure of the court papers to a psychiatrist, Professor Peter Maguire, professor of psychiatric oncology at the University of Manchester, to examine the mother. The judge suspended the order for contact made on 26 January 2001 pending the outcome of the hearing.[42]On 6 December 2001, Professor Maguire reported. His diagnosis was expressed in the following terms: - “I think she has suffered from PTSD. This was of moderate severity in the first year or so after leaving her cohabitee. Her disorder has been characterised by the main features of post-traumatic stress disorder including exposure to a threatening event, reliving of the experience through nightmares, and increased arousal. She fulfils the criteria laid down by the DSM IV classification for this psychiatric disorder.” The disorder is now much better. It is only triggered by the threat of actual contact or by triggers that remind her of abuse. In the interim she has been able to function well apart from her agoraphobia where she is frightened of leaving the house on her own. Psychological treatments together with drug therapy are usually more effective. She had already started counselling which she found helpful. More specific methods like cognitive behaviour interventions followed by drug treatment are usually helpful. She seems to have been able to care for her daughter to a high standard despite these lingering effects of the abuse. Her reaction to contact represent a conditioned response. Any mention of contact or any stimulus that reminds her of possible contact triggers anxiety, distress and her memories of the abuse. Consequently, she has been extremely reluctant to permit contact with the natural father. She genuinely believes that H is at risk of being abused. In relation to her prognosis, she has shown considerable improvement apart from the conditioned responses and residual symptoms of PTSD. She should make a good recovery if she has sufficient psychological help and more regular treatment.[43]On 12 December 2001, Dr Martyn Gay, a consultant child and adolescent psychiatrist reported on H. Dr Gay described the father as:
“a man who is very troubled by the absence of contact with his daughter and that his sense of distress produces at times a very strong emotional reaction from him which significantly influences his presentation to the point at which he can be very pressurising and garrulous, and also evidently distraught and overwhelmed by his feelings.”
Dr Gay reported the father’s perception as being that the mother was “just being bloody-minded” and “doing it to hurt me”. The father thought the maternal family had a considerable element of hatred towards him which he feared may spill over onto H. The father, who has convictions for violence and had abused drugs saw his past pattern of behaviour as being irrelevant. His last arrest had been some five years ago; he was relatively controlled in his alcohol consumption, and he told Dr Gay that he had ceased taking amphetamines some seven years previously. One of the factors which motivated him was that he himself had been adopted. H was his only blood relative. In his quieter moments, Dr Gay reported, the father was impressive in the way he presented the strength of his feelings.[44]In Dr Gay’s interview with the mother, she described her difficulties over going to Manchester to see Professor Maguire. Dr Gay commented that: - “It clearly would be quite apparent that H would pick up such distress and react to mother’s distress with a high level of personal anxiety which would then fuel mother’s anxiety and cause a circular pattern of difficulties for both mother and daughter.” Dr Gay reported the mother’s perception as being that H had never really wanted to go for contact with her father and she had tended to play up. The mother’s perception of the father was that he was always attempting to threaten her and run her down.[45]In his interview with H, the latter was able to talk very openly about herself and her life with her mother. Dr Gay picked up that staying a number of night with her father was more than she could manage. To a certain extent she was reflecting the same views that her mother held, but perhaps now went further to the point of recognising that she would be prepared to acknowledge some contact, albeit that it would have to be limited, and that appropriate levels of support would have to be in place.[46]In the opinion section of his report, Dr Gay rightly refused to be drawn into the diagnosis of PTSD, which was for Professor Maguire. The only area in the mother’s care of H which concerned Dr. Gay was her ability to promote a relationship between H and her father, and her capacity to enable H to separate from her effectively in order to develop a proper relationship with her father, in which H could develop “a more realistic and open view about her father”. The one area in which the father clearly had difficulties was in terms of his own presentation. On residence, Dr. Gay’s view was that as long as the mother could manage to sustain a realistic attitude towards the development of contact between H and her father, H’s welfare was clearly best served by remaining with her mother. Dr Gay was quite clear that H should have the opportunity to have contact with her father if she remained living with her mother. Thus H should be given the opportunity to re-establish contact with her father on a daytime basis with the clear expectation that this would move to an overnight saying basis on a one night per contact basis with carefully phased increases thereafter.[47]The hearing before Judge Case is of great importance in the history, and I will need to return to it in order to examine it in some detail. For present purpose, however, it is sufficient to record that, although she 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. These included accepting the mother’s accounts of both the telephone and the baseball bat incidents. She accepted the psychiatric evidence that the mother was suffering from PTSD. In the light of these findings, on 5 February 2002 she made the following orders: -(1) the father’s application for a residence order was refused;(2) the father’s application for direct contact was suspended for 18 months from 5 February 2002 or from the date of determination of any unsuccessful appeal; and(3) the father’s indirect contact was to continue at a reasonable level. She refused permission to appeal, and reserved the case to herself.[48]The father sought and obtained permission to appeal Judge Case’s order, and on 21 May 2002, this court (Thorpe, Waller and Buxton LJJ) gave permission and allowed the father’s appeal. It directed that the father’s contact with H should resume at the frequency of once per month, but that contact should not resume until the mother had commenced treatment for PTSD. The case was also transferred to the High Court. The mother was directed to file and serve, within 28 days, a statement detailing all of the treatment that she had received.[49]On 30 July 2002, the father’s application for contact came before Hedley J. He ordered that the mother was to make H available for contact between 10am and 6pm on 07 September 2002, 28 September 2002, 26 October 2002 and 16 November 2002. Collection and return was to be by H’s paternal grandparents from maternal grandparent’s house. He directed a further hearing before Singer J in Cardiff on 5 December 2002.[50]On 2 December 2002, Dr. Jamil filed a further report on the mother, who had told her that she had begun to feel better after contact had been suspended by Judge Case, but that after contact had been reinstated in September she had been feeling low and tearful. She had been attending group therapy but had been unable to benefit from it, as her concentration was so poor. Dr Jamil concluded that the mother had not benefited from the treatment she had received, and her symptoms were in fact worse, necessitating further medication. She concluded: - “I cannot foresee an improvement whilst contact continues as it is clearly evident that (the mother’s) mental health suffers through intermittent reinforcement of her fears without a consistent solid break to give her time and space for recovery, as I outlined in my previous report….”[51]On 5 December 2002, Singer J. made a detailed order that contact should gradually increase until 18 October 2003 when the mother was to make H available for contact between 10am on Saturdays until 6pm Sundays on alternate weekends. Once again, collection and return was to be by the paternal grandparents from the maternal grandparent’s house.[52]The last contact between the father and H pursuant to Singer J’s order took place on 27 July 2003. From that point onwards, the mother refused to allow contact between the father and H.[53]On 11 December 2003, the mother issued an application to discharge Singer J’s order of 5 December 2002 on the basis that H was reacting adversely to contact. On 13 January 2004 the father countered with a further application for a residence order.[54]On 1 April 2004, Hedley J gave directions in the respective applications. He made a number of detailed directions for the filing of evidence, the most relevant of which, for present purposes, were the following:(1) a direction that there should be reports from three psychiatrists, Dr Bisson (the mother’s treating psychiatrist), Dr Halford (the child and adolescent psychiatrist to whom H had been referred) and Dr Bulger (the mother’s general practitioner);(2) that there should be a statement from H’s maternal grandmother;(3) that the Guardian should instruct a child psychiatrist to report on H;(4) that the Guardian should obtain a psychiatric report on the mother and(5) that the Guardian should file her report by 5 July 2004. He listed the matter before himself for a final directions hearing on 12 July 2004 and for final hearing on 27 July 2004. These were all clear and sensible directions. Hedley J reserved the matter to himself.[55]The psychiatrist chosen to report on the mother was Dr. P Gallwey. Unfortunately, when the case came back to Hedley J on 12 July 2004, Dr Gallwey’s report had not been filed. This was to have most unfortunate repercussions. The case could not be heard on 27 July 2004, and the fixture had to be vacated. The judge extended the time for delivery of Dr Gallwey’s report, listed the case for 19 October 2004, and released it to Judge Masterman for trial.[56]We were not told why Hedley J released the case to a circuit judge. I anticipate, however, that for the next available fixture (19 October 2004) Hedley J was not available, and the desire to have the case heard swiftly prevailed over desirability of it being heard by a High Court Judge.[57]The late delivery of Dr. Gallwey’s report, however, did not only effect the listing of the case. It had a serious effect on its case management, as subsequent event will demonstrate. The report was filed on 16 July 2004. It came unequivocally to the conclusion that the mother was indeed suffering from PTSD.[58]On 19 October 2004, the hearing began before Judge Masterman. On that day, counsel for the father, as Mr. Newton described it, dropped his bombshell. In the light of the mother’s reliance on Dr. Gallwey’s report, his diagnosis of PTSD and his acceptance of the mother’s self-reporting of the father’s violence to her, Mr. Furness invited the judge to re-open the findings of fact made by Judge Case. The judge acceded to that application, giving a short extempore judgment setting out his reasons. Judge Masterman’s decision to re-open judge Case’s findings provides the first ground of the mother’s appeal, and I will return to it shortly.[59]To conclude the chronology, Judge Masterman, at the conclusion of the evidence (which had overrun its allotted span) invited submissions in writing and adjourned to 10 December 2004, when he gave judgment. I have set out the order he made in paragraph 1 of this judgment.[60]I shall need to examine Judge Masterman’s findings in greater detail later in this judgment. In summary, however, he held that(1) he was not bound by Judge Case’s findings due to the fact that before Judge Case the mother gave her evidence in writing and was not subject to cross examination and because her order had, in any event, been successfully appealed;(2) the mother had failed to prove that she was suffering from PTSD;(3) the mother’s oral evidence contained inconsistencies;(4) the father’s commitment to H was unwavering;(5) the mother had exaggerated some of her evidence and her claims against the father;(6) this was clearly not a case where H was genuinely unwilling to see her father.[61]On 17 December 2004, the judge directed that the initial contact between the father and H be postponed until 1 January 2005. He put the review back to 27 May 2005 and extended the time for CAFCASS to report until 15 April 2005. On 11 January 2005 he made orders for further postponements which, in the event, were overtaken by my directions on 13 January 2005 listing the permission applications for oral hearing on notice with appeal to follow if permission was granted and, in the interim, staying Judge Masterman’s contact order.

Taking stock on the history of the case

[62]Whilst I am confident that all of the many judges who have heard this case over the years were doing their conscientious best to promote the welfare of H in very difficult circumstances, a number of unfortunate features stand out from the history I have related. The first, of course, is the lack of judicial continuity. Whilst there was a discernable overall strategy, I am in no doubt that the case would have benefited immeasurably from management by one, or at the most two judges.[63]The second point is that where allegations of violence are going to form either the basis of, or play a material part in parental objections to contact, it is essential(a) that those allegations are clearly enunciated at the very outset of the proceedings; and(b) that they are resolved one way or the other by judicial findings as swiftly as possible. As Thorpe LJ observed in his judgment given on 15 August 2000, a number of the critical hearings in this case pre-date the decision of this court in Re L, V M and H (supra). The mother made her allegations in an affidavit sworn on 17 October 1996 in injunction proceedings brought against the father. They do not, however, appear immediately to have formed the forensic basis of her objections to contact, which continued for some considerable time before the allegations became central to her case for contact to cease. Thus they were not judicially investigated until the hearing before Judge Case in January 2002.[64]It is a vital part of proper case management that the issues in the case are clearly defined and addressed at the earliest possible moment. At the same time, of course, judges can only address issues which are raised before them. The result in this case is that more than eight years after the critical events occurred, the court is faced with starkly divergent findings of fact. Judge Case, without hearing the mother give oral evidence, has found the 1996 and pre 1996 violence established, and has also found that the mother suffers for PTSD. Judge Masterman, having attempted to hear the oral evidence of the mother, has found that she has not made out her case, either on the allegations of violence or on the diagnosis of PTSD. If Judge Masterman’s findings are unsound and have to be set aside, the court is faced with an acutely difficult dilemma about how to make progress in promoting H’s welfare. This, in my judgment, has been brought about in large measure by the fact that the proceedings have not been consistently and coherently case managed.

The hearing before Judge Case

[65]In order to understand the current appeal, I must revisit Judge Case’s decision and events subsequent to it. I will do so as shortly as possible. As I have already stated, the mother did not give oral evidence before Judge Case, who accepted Dr. Jamil’s advice that she was quite unfit to do so, advice which accorded with the judge’s observations of the mother in court. The judge plainly formed a poor impression of the father, whom she did not believe. Her assessment of him was in the following terms: - “Well, the father gave evidence next. He maintained his denials of any violence to the mother since 1992. He was, in my opinion, very agitated throughout his evidence and his manner in the witness box was very overbearing. I frankly did not believe him. On the issues of violence, I did not accept his evidence. He said such things that of course the Court knew all about his previous convictions because the Court had been informed long since whereas, in fact, it was only shortly before this hearing that his full previous convictions actually became available to the Court. His accounts of the various incidents of violence were frankly unbelievable at times. He said that the mother caused her injuries to herself before reporting to Casualty and implicating him, and his suggestion that the facial bites could have been inflicted by herself was frankly absurd. I find as a fact that the father is, and has been, intimidating and overbearing towards the mother, just as he was in the witness box before me.”[66]The judge went on to make clear findings that the father had assaulted the mother on four specific occasions:(1) he had fractured her wrist on 19 November 1992;(2) on 22 March 1993 he had inflicted multiple blows and bites to her face and body, and had struck her with a telephone on the side of her head (the telephone incident):(3) on 29 March 1996 he had punched her on the nose, twisted her right wrist and kicked her in the abdomen; and, most significantly(4) she accepted the account given by the mother in relation to“the baseball bat incident” to which the mother had deposed on 17 October 1996, some 12 days after the incident itself. Judge Case cites the relevant passage from the mother’s affidavit, which for ease of reference I will set out at this point At this point the respondent completely lost his temper. He grabbed me by the hair. The respondent dragged me by my hair out onto the landing and threw me downstairs. When I had fallen down the flight of stairs, I then heard the respondent go into our daughter’s room. I then saw the respondent at the top of the stairs and the next thing I knew, H was falling down the stairs. Luckily I managed to catch her. I cannot remember if I ran up a few stairs to catch H as it all happened so quickly. The respondent then came running down the stairs carrying a wooden baseball bat. He struck me across the top of my head either once or probably twice. At this point, I was holding H in my arms and trying to protect her from the blows. The respondent was screaming at me, shouting:
‘You’re not taking her, she’s my baby.’
[67]Judge Case did not find that the father threw H down the stairs. Although she did not hear the mother, she accepted Dr. Maguire’s evidence that, when relating the incident to him, the mother’s demeanour had persuaded him that the account was genuine.[68]Judge Case’s conclusion on this part of the case is contained in the following paragraph from her judgment: - “So this is a case where there has been very serious domestic violence of all kinds, both physical violence and threats of intimidation, and a wide range of unacceptable behaviour within a family and, in my judgment, that behaviour is of great relevance in this case. It is in fact the key to mother’s post traumatic stress disorder.”[69]Judge Case placed substantial reliance on Re L, V M and H and on the cases cited in that judgment. She was critical of the behaviour of Recorder Bishop and of District Judge Wyn Rees’ refusal to admit the report of Dr. Jawad into evidence, because, she said, therein lay the explanation of what he had referred to as the mother’s irrationality in her hostility to contact.[70]As I have already indicated, Judge Case accepted the psychiatric evidence that the mother was suffering from PTSD. However, in reaching her conclusion that contact should be suspended for 18 months, the judge preferred the views of Dr. Jamil to those of Professor Maguire and Dr Gay, neither of whom was advocating a suspension of contact.

The appeal to this court from Judge Case’s decision

[71]The father’s application for permission to appeal was listed in this court on 21 May 2002 for oral hearing with appeal to follow with a time estimate of one day. It is apparent from the leading judgment of Thorpe LJ that the time estimate was barely adequate, and that the court sat late in order to dispose of the appeal. The consequence was that this court did not deal with all of the father’s grounds of appeal, notably his attack on Judge Case’s findings of fact, and the fact that she had reached them without hearing the mother give oral evidence. This court recited, but did not expressly make any findings on the father’s submission that he had not had a fair trial before the judge. It concentrated on the manner in which the judge had dealt with the expert evidence. The following extracts from Thorpe LJ’s judgment will, we think, explain how this court approached the appeal. “12 This has not been a particularly easy case for this court since there are a mass of documents compiled from a long litigation history, not all of which have been copied for each member of the court. We have also struggled to understand what precisely was the role of Dr Jamil in this case. Was she simply another forensic expert, or was she in a patient relationship with the mother? We have also struggled to understand what has been going on medically: what treatment has the mother received over the course of the last 12 months; from whom; and why is it that she has not received the treatment that was apparently identified as necessary at the January hearing? We have been told by Mr Levy today that only yesterday did she eventually see the cognitive behavioural psychotherapist who had been identified during the course of the hearing as being the relevant local professional. He is Mr Neil Kitchener of the University Hospital of Wales. We are told by Mr Levy that, as a result of his assessment yesterday, he has accepted the mother as a suitable patient, but has said that she will not commence her treatment for three or maybe even six months. We do not know who referred the mother; we do not know when the letter of referral was written; we do not know why it has taken some three and a half months for the mother even to be assessed. So all that is very unsatisfactory.”[72]At paragraph 34, Thorpe LJ expressed his view that the judge had not sufficiently reflected the views of Professor Maguire in her analysis of the evidence. He cites passages from the oral evidence of Dr Jamil, and comments that the latter had not appreciated Professor Maguire’s view that the mother’s improvement after 1998 may well have been in part contributed to by the regular contact then in place. At paragraphs 40 to 46, Thorpe LJ expressed his conclusions: - .40 Equally, I am satisfied that Mr Jenkins makes good his complaint that the judge has not properly understood or, alternatively, has not properly recorded the essential theme of Dr Gay's evidence, which was that the realistic, if harsh, future management was to start at the bottom again and build up slowly, allowing H to take the major steps. 41. Of course, the judge was inevitably influenced by Dr Gay's view that a harsh judgment could have a beneficial therapeutic effect on somebody who had been guilty of quite unacceptable and unacknowledged past violence. But the judge's management, namely to follow judgment with a period of 18 months of nothing, hardly allowed much room for that therapeutic possibility to take effect. I do not think the judge sufficiently understood or reflected the facts that this father had both been bereft of contact and reasonably pursuing his litigation remedies since February 2001. To add to the 12 months that had already run a further period of 18 months was to import the risk that at the end of that period there would be so little left of the relationship between father and child as to make regeneration difficult or impossible. 42 I have some misgivings about the judge's further direction that, if the father exercised his right to apply to this court, the period of suspension should run from the determination of the appellate proceedings. Although I understand the judicial rationale, it seems to me that it gives to the recipient the impression that he is being induced not to pursue his remedy.43. So for all those reasons, and coming to a conclusion, I think that the judge was wrong to arrive at the discretionary conclusion that she did and I do not think the error can be rescued by Mr Levy's submissions. There is such a stark contrast between the judicial approach throughout the period this case was litigated in the Cardiff County Court and the judicial approach once it was transferred to Newport that it inevitably raises questions, certainly in the mind of the applicant father, as to whether he has received consistent and fair judicial determination.44. With the advantage of hindsight it is possible to read all sorts of lessons from this case. There has been an absence of judicial continuity even when the case was in the Cardiff County Court, although seemingly the various individual judges adopted a very consistent approach. There has been unfortunate and, in my view, unacceptable delay in the determination of the issues that arose following the mother's withdrawal of contact in February 2001. There has been a failure to bring the experts in the case together well in advance of the fixture to ensure that they discussed thoroughly their respective opinions and endeavoured to arrive at some consensus. It can, of course, be said that the fundamental landscape changed with the decision of this court in June 2000 in Re L, V, M and H. But that shift in the landscape came well before the final contested hearing in the Cardiff County Court conducted by Mrs Recorder Parry.45. Of course it was open to this judge to take her independent line and to elevate to a position of primary importance medical issues that at earlier hearings had been regarded as of secondary importance. Of course it was incumbent upon this judge to give full reflection to expert opinion, particularly from Professor Maguire and Dr Gay, that was not available to judges sitting in the Cardiff County Court. But nonetheless, it seems to me that there was some obligation on this judge to have greater regard to the extent to which this father had pursued his legitimate rights without ever seeming to seize his own remedies. It was incumbent upon her to have some regard to the fact that the consistent judicial management in the Cardiff County Court had been to promote, albeit by slow and possibly painful stages, the development of a relationship between father and child; and it was incumbent upon her to have some regard to the fact that that consistent judicial management had been, at least superficially, successful. Of course Mr Levy emphasises that it may be at great price to his client's continuing psychiatric condition. But nonetheless, all these were factors of relevance and they do not seem to achieve any reference in the judgment below.46. Having reached that fundamental conclusion, in my view the judge erred in making the order she did. The question is what we should order in its place. Reverting to the order as drawn, I would delete paragraphs 2 and 3 and, in their stead, write a provision that the father do have direct contact to H for one day a month, such contact not to commence until the inception of the mother's psychotherapeutic treatment with Mr Neil Kitchener. I would further delete the reservation of the case to Judge Case in paragraph 9 and write instead that the case be transferred to the Family Division, to be listed before a judge of the Division. I would further direct that the parties forthwith make application for a date for a hearing before the judge, at least to enable him to give directions as to future management. I would also direct the mother to file within 28 days a full statement recording precisely what treatment she has received over the course of the last 12 months and to explain what steps have been taken to initiate the therapeutic relationship with Mr Kitchener, and to substantiate that statement with the relevant medical records. I would express the hope that the attention of the Department of Psychiatry at the University Hospital could be drawn to this judgment, and I would request Mr Kitchener to see whether he could possibly prioritise the mother's treatment, if that can be achieved without prejudice to others who may be equally urgently in need of treatment. It is a matter of real concern that the restoration of the relationship between father and child seems to be at the mercy of delays in psychiatric services in the National Health Service. That is the order I would propose.[73]In a short concurring judgment, Waller LJ pointed out that H had not had contact with her father since February 2001 and that it must be resumed as soon as possible. He added the caveat, however, that this should be “only when treatment of the mother has commenced”. Waller LJ was concerned about the delay in treating the mother, and said in terms: - “The mother is suffering from PTSD. Court proceedings exacerbate that condition. It is clear that the proceedings in this court, including this judgment, may exacerbate that condition. It must be very urgent, in the mother’s own interests, that she receives treatment as soon as humanly possible. Furthermore, as my Lord has pointed out, it must also be in the interests of H, who resides with her mother, that the mother is treated expeditiously. Since contact cannot start until treatment has started, that treatment is urgent, so that the gap in contact between H and her father is no longer than necessary. I echo my Lord’s feelings that these judgment should be drawn to the attention of those having control over the mother’s treatment.” It is, I think, important for the purposes of the present appeal to note that this court proceeded on 21 May 2002 on the basis that the diagnosis of PTSD was correct, and that the mother was indeed suffering from PTSD. Waller LJ says so in terms, and this court’s order was predicated on the proposition that contact should not start until the mother had commenced psychotherapeutic treatment for her condition.

The hearing before Singer J

[74]It is also, I think, important to note that Singer J’s judgment of 5 December 2002 proceeded on the same basis. He rejected the submission that he should suspend the contact ordered by the Court of Appeal on the basis that that was to do precisely what Judge Case had been criticised by this court for doing. In paragraph 4 of his judgment, he said: - “Contact had broken down at the point when Judge Case was dealing with the matter. She had expert evidence that the mother suffers a degree of PTSD as a result of experiences that she suffered during the relationship with the father. The evidence was to the effect that whether the degree of her anxieties can rationally be justified, her belief system – that is how it was put – was genuine. That is a matter which the father finds very hard to accept, but it is the basis upon which I proceed today……” The judge described the approach as “stick and carrot”. The hearing before Judge Masterman (1). The application to re-open Judge Case’s findings of fact[75]As I have already indicated, the hearing began with an application by leading counsel for the father asking the judge to rule on whether the findings of fact which were made by Judge Case on 5 February 2002 stood and were to be accepted as findings of fact in the current hearing in relation to the issue of contact. The judge summarised the argument in paragraph 2 of the extempore judgment he gave on the point: - “The basis on which I am asked to adjudicate in this, of course, that there is very heavy reliance placed by Dr Gallwey on mother’s reporting to him of her history of domestic violence. Dr Gallwey has emphasised that in coming to his conclusions about post traumatic stress disorder the reported violence on the mother is the basis on which he finds that the particular condition is made out according to well known criteria. Therefore Mr Newton seeks to rely on those findings that were made backing 2002 as being properly relied upon by Dr Gallwey. Mr Furness says that that is a dangerous course to follow because of the particular circumstances under which those findings came to be made. In particular, he draws attention to the approach taken by the Court of Appeal when Judge case’s decision was put before them for permission to appeal and subsequent appeal itself, in which it is apparent from what they say, perhaps in particular para. 45 of the judgment, that they overturned her decision on the basis of unfairness to the father in the way in which she had approached in particular the expert evidence.”[76]The judge commented that this court had not dealt with the issue on the appeal from Judge Case’s order, and expressed his conclusion in the following paragraphs of his judgment.: - Nevertheless, I think I have come to the conclusion that if I were to rely on those findings of fact in the present proceedings, I would be uneasy, and I think the reason for this. Firstly, the Court of Appeal did overturn Judge Case’s decision. They do appear to have overturned it on the basis of a measure of unfairness, as they saw it, to (the father), and it could well be that the degree of unfairness as they say it vitiated the findings of fact as well on the basis that the judge approached this case in the wrong way and perhaps favouring the mother’s side. I think that what troubles me even more than that is that the judge made findings of fact without the advantage, and it is an advantage, of hearing the mother give her evidence in person, because she was apparently not there, and certainly without the advantage of cross-examination. When one has to sum up evidence of a witness based on the totality of that witness’s evidence and what is said both in-chief and in re-examination may be just as important as what is said in cross-examination. The fact that the judge only heard (the father’s) evidence, even though she rejected it practically out of hand as being, in one or two cases, plainly untrue or absurd, nevertheless she did not have the full picture. Faced as I am with a case which turns so fundamentally upon the degree of violence to which the mother was subjected to back in 1996 and prior to that, I do not think I can go ahead just blandly accepting those findings of fact, and therefore I think that there is sufficient here to justify me in saying that I am going to have to hear those matters again. It will be apparent that this is a decision I make contrary to the interests of proceeding with this case as swiftly as possible, given the limited amount of time, and it will involve all of us in additional work and no doubt additional stress and anxiety for which I can only apologise. I think in the circumstances I am going to feel uneasy if I proceed without, as I say, having been able to revisit those areas with a proper examination of the events seen from both sides with the opportunity of cross-examination. (2). The manner in which the application to reopen Judge Case’s findings was made[77]I will, of course, consider later in this judgment whether or not the judge was right to re-open Judge Case’s findings. At this point, I wish only to deprecate in the strongest terms the way in which the issue was brought before the judge. Dr. Gallwey’s report, as I have already noted, was late, and thus could not be considered by Hedley J at the directions appointment over which he presided on 12 July 2004. However, the report came in a few days later on 16 July 2004. Proper case management of family cases demands that the issues are clearly identified in advance of substantive hearings, and the evidence geared to address those issues. There was ample time for the father’s advisers to consider their position and decide upon their strategy between 16 July 2004 and 19 October 2004 when the hearing before Judge Masterman began.[78]It was, in my judgment, unacceptable for the application to re-open a critical part of the case to be made on the first morning of the hearing. Not only did it put the judge in an extremely difficult position, for which I have considerable sympathy, but it potentially sowed the seeds for unfairness. Dr. Gallwey’s was not the only psychiatric evidence that the mother was suffering from PTSD. The case already had a very tight time frame if it was to be completed in the limited amount of time allowed for it. Had the father’s advisers flagged up at a much earlier stage what they intended to do, as they plainly should have done, the court could have addressed the issue in a properly considered fashion in advance of the hearing, and if it decided that the facts should be re-opened, it could have addressed the question of the evidence required to enable it to do so. This would, in my judgment, almost certainly have resulted in the mother being allowed to call one or more of the other doctors – probably her treating psychiatrist Dr. Bisson. As it was, the judge heard only from Dr. Gallwey. (3). The evidence of the mother[79]Since part of the rationale for re-opening Judge Case’s factual findings was that she had not heard the mother, efforts were made to obtain the mother’s oral evidence. Due to her palpable distress (I deliberately use a neutral word) which the judge accepted was genuine, this involved elaborate arrangements whereby she gave evidence over a video link. We have a transcript of her evidence. Mr. Newton was able, with difficulty, to point her to various parts of her written evidence in which the allegations of violence on which she relied were made. She affirmed their truth, but little more. Cross-examination proved impossible. The transcript is littered with breaks in which the judge turns off the camera. The judge on a number of occasions properly questions the value and purpose of the exercise. As he put it on an early occasion: - “I will give her a couple of minutes and then I will see if she can go on. But it is quite apart from whether she feels she can or not, it is a question of whether the evidence given in this way is really going to be of any value.” “I think this is something that could be raised in argument because it is frankly too much for her. This lady is in a terrible state. I know from what Mr. Newton tells me that she has been in this state ever since she arrived at court yesterday morning. He has had great difficulty getting instructions and I can graphically see why. This is no criticism of you whatsoever, you could not have approached the matter more gently, but I really question whether any further evidence you may elicit is going to carry any weight.” (4). The report and evidence of Dr Gallwey[80]Dr Gallwey took a long history from the mother. He reviewed the previous psychiatric evidence, including the evidence of Dr. Gay. He expressed the clear opinion that the mother was suffering from PTSD, “as consistently diagnosed by all psychiatrists who have seen her”. Her condition fulfilled the DSMIV criteria, in particular criteria A. This is how he expressed it in his report: - “Criteria A: exposure to a traumatic event in which i) the person experienced an event which involved actual or threatened death or serious injury or a threat to the integrity of themselves or others. (the mother) describes an escalating situation of violence from her ex-husband which culminated in an assault in which she experienced injury and felt a threat to her own life and the safety of her child; ii) the person’s response involved intense fear, helplessness or horror. She experienced all three.”[81]Dr Gallwey was of the opinion that the mother’s depression was not a separate disorder but is directly related to her PTSD and the continuing exacerbation of it by the on-going court procedures. On prognosis, Dr. Galley said: - “The prognosis depends very much on what happens in relation to the contact arrangements with her ex-partner, (the father). If contact is enforced and continues, then her PTSD will continue to be exacerbated and will not settle. There is a danger that in the long run she will never recover from PTSD which will become a chronic, lifelong condition with the danger of eventual personality deterioration. The prognosis will be much improved if the reason for its continual exacerbation and consequent prolongation were removed. In other words contact between H and her father cease and (the father) not be allowed to bring the case back to court for at least five years. H is now nine and in five years time she will be 14 and much more able to express her views and form judgments than she is now. Also, (the mother) would stand a chance with permanent help with her PTSD if she were given freedom from the court proceedings and contacts she has endured for the last seven to eight years. Dr Jamil recommended, in 2001, that she should have two years freedom from re-experiencing the trauma so the treatment could be instituted. The court chose not to follow his advice with the consequence that (the mother) is now that much worse and the prognosis much less hopeful.”[82]As to treatment, Dr. Gallwey was asked the question: - “Could you suggest any other form of medical intervention, therapy, medication etc that would be likely to help the mother manage her condition more effectively?” “H replied:: -” No. She is having adequate treatment from Dr Bisson and the Traumatic Stress Clinic. It is clear that their Lordships misunderstood the requirements of therapy in this case. It is not possible to treat a person successfully for PTSD if they are being continually exposed to a situation in which they re-experience the trauma. I feel the need to point out to the court that the effect of violence on women by their partners correlates with very high levels of chronic psychiatric morbidity, including depression, personality change, PTSD, phobic anxiety, self-harm and suicide. It is a commonly held belief that people recover from assaults quite quickly or if they have PTSD it can be easily and quickly treated. This is not the case. Not everyone is vulnerable PTSD but some 30% of women are. (The mother) was vulnerable because of her childhood experience of her father's violence. The condition is not easily treated but can remit naturally after two or three years provided there is freedom from re-exposure. This time can be reduced with treatment. In (the mother’s) case she has not been able to secure freedom re-exposure, having been continually brought back to court. Her attempts to stop contact have failed. She has been threatened with imprisonment and according to her history has felt very much worse as a result. Contact should be terminated in the interests of the child's emotional development because of her need for her mother's continuing care which relies upon (the mother) having effective treatment. This is impossible while contact continues. If (the father) were able to see that by forgoing contact with his daughter until she is older and freer to choose then he would, by helping his ex-partner recovery from the violence he perpetrated against her, be positively contributing to his daughter’s personality, growth and development. I see no reason why indirect contact should not be maintained so that she is aware of her father’s interest in her and would be able to form a much more loving and appreciative view of him than she will by his insistence that her mother’s health is destroyed.[83]We have a transcript of Dr. Gallwey’s oral evidence. He was, of course, cross- examined about the history he had taken from the mother, and acknowledged that in many matters recorded in his report he was wholly reliant on the mother’s truthfulness. A number of inconsistencies in the mother’s accounts were pointed out to him, She had not, for example, told him about the telephone incident The thrust of his evidence was that whilst he would have expected the mother to give him an account of events which gave rise to intrusive thoughts, inconsistencies and omissions did not particularly trouble him because there had been, on her account, a great deal of violence, It was put to him that the mother was either wholly inconsistent or lying. He accepted that there was a degree of inconsistency, but that there would always be discrepancies. It was a matter of judgment as to whether or not the person is obviously lying or whether they are making mistakes. Discrepancies were a feature of the histories people gave. He accepted, however, that her hatred for the father could be a reason for the mother lying.[84]Dr Gallwey agreed with the judge that there was a startling inconsistency between the mother telling the guardian that her PTSD made it impossible for her even to think of holidays in unfamiliar places, whereas she had been to Tunisia in 1999. He made clear his disagreement with Professor Maguire’s opinion that some continuing contact would be beneficial for the mother, and acknowledged that he may have inaccurately criticised the response of this court to that evidence. He agreed that the need for a moratorium on contact depended on his diagnosis that the mother was suffering from PTSD and to some extent on the severity of her condition. He also accepted that if she was exaggerating her symptoms for her own purposes, that might be a situation where either it was not necessary to stop contact or not necessary to stop it for as long a period. However, he was satisfied that her PTSD was genuine, whilst also accepting that there was no guarantees that the mother would improve. His position, he said, was very simple: “For me this is a woman with a substantial PTSD who, if she is going to be treated, needs to be given freedom from re-exposure. It is as simple as that. If the court feels she should be treated, for her sake and for the child’s sake, then contact needs to be ceased for a sufficient length of time for her to get help. That is really the substance of my evidence.” (5). The evidence of Dr. Gay[85]Dr Gay had, of course, reported in 2001 and given evidence to Judge Case. His assessment of H in July 2004 was: - “What was most striking was just how much H has grown up both physically and emotionally since I saw her last. She is a very much more independent-minded young lady than she was and less under the total influence of her mother, although at times of pressure and stress she did show some elements of regression in her behaviour as she retreated back to her mother for support, which was readily provided by mother” Of the mother, Dr. Gay reported: - “In summary, mother remains very much as she was – a very anxious and apprehensive individual who is very much trying to keep this situation under control whilst H is beginning, now that she is entering puberty, to show signs of becoming a little more independent and certainly more insightful and aware of what is going on. The difficulty is that she is very closely entwined and almost totally locked on to her mother and it makes it very difficult for her to express her own totally independent views without constantly thinking of the potential impact of these upon not only her mother but also her (grandmother)”[86]Dr Gay records an incident related to him by the father, in which he had been arrested and charged following a dispute with neighbours, which had caused him to move house. He said he had “gone screaming and shouting to them” armed with a hammer. He said:
“It’s a fact of life in the Ely neighbourhood that one has to go armed”
. In answer to a question about direct contact between H and her father, Dr Gay reported:
“I have no doubt at all that in principle direct contact between H and her father would be of benefit to her. Not only has she missed a consistent relationship with her father, who is important to her, but also with the paternal family and they clearly have had a good relationship with her in the past and have missed out recently as a result of the cessation of direct contact which is primarily projected onto the problems that have occurred between H’s father and maternal grandmother”
[87]Sensibly, Dr Gay reserved his position until he had seen Dr. Gallwey’s report. In his oral evidence, which was given before Dr Gallwey had given his evidence, Dr Gay expressed the firm opinion that there should not be a change of residence. Having had the opportunity to read Dr. Gallwey’s report, Dr Gay expressed his opinion on contact in the following way: - “I know Dr Gallwey, and professionally we have operated in the same clinical area for many, many years. My view now, having read that report, is that there is now I think a fine balance of need for some form of contact for this child versus the impact of contact upon H from her mother’s response, and I would add from the extended maternal family’s response. I think as a child psychiatrist commenting o the adult report I clearly cannot make any specific comments. As a child psychiatrist looking at the needs of this particular nine year old child now in puberty I would say that it is important for the court to realistically recognise that her inquisitiveness, her need for information, knowledge, the opportunity to test out information is vitally important to her now she moves through puberty to adolescence. If a framework for that is not created, my fear would-be that her natural inquisitiveness is going to seek a resolution anyway, and it may be a traumatic one in the sense that her desire, her need to answer some of these questions like:
“Why are you standing there, why don’t you talk to me?” “Why haven’t you contributed to this, that and the other important events of my life?” which is extremely difficult for a father who is absent from a child to deal with, to be able to give an answer, and when she asks the question of course she gets the maternal family’s view of the situation. She is not far off beginning to say ”
I want to find out for myself. I want to find answers myself”. So I would say, for me, that is the strongest argument for a serious consideration at this stage for a good programme of indirect contact, however much distress this may appear to create, I think it is very important for identify purposes, development of personality, to enable her to deal with her past successfully as she is moving into adolescence, it is really crucial and critical that that aspect of this issue is dealt with. The second point:
“Does that also include face to face contact?”
I defer to my adult colleagues to a certain extent. I understand Dr. Gallwey’s report. I recognise the tangible level of anxiety, tension, that mother experiences, and I think at this stage to impose a pattern of contact might well be counter productive. So in a sense I have used the psychiatric report to reinforce my clinical impression of a need for contact in principle, to in a sense in my own mind focus upon the need for a good pattern of indirect contact and recognise the considerable problems that would ensure in terms of a pattern of direct contact. ” For reasons which will become apparent, I regard this passage of Dr. Gay’s evidence as being of considerable importance.

The judgment of Judge Masterman

[88]Having related the history, the judge recorded that “contact, including staying contact, has taken place from time to time and over sustained periods of time. Disinterested reports of it have been positive” Contact had been stopped by the mother when changes in the arrangements allowed for increases or overnight stays.[89]The judge then records the quite exceptional difficulties in obtaining the mother’s evidence. He describes extended periods during which the mother buried her head in her hands, sweating, shaking and crying. There was no doubt in the judge’s mind that she was not feigning distress, although he said that the cause of the distress was very much in issue. Despite this, and despite his observations during the course of the evidence that he doubted its value, the judge records a substantial amount of what the mother did say, notably on H’s attitude to contact, much of which he found self-contradictory..[90]The judge described the mother’s evidence in relation to the incidents of violence as “so disjointed that it was extremely difficult to obtain coherent answers”. He added:
“If Dr Gallway is right when he says that re-living the original trauma is what triggers a response of distress then this was the clearest of illustrations. The allegations, as she well knows, are at the very centre of her objections to contact. However, the response made it virtually impossible to evaluate her answers because the distress was so intrusive it may have made her answers unreliable. I could not be sure she was concentrating on the question and giving a considered answer. At times she gave the impression that the opposite was the case. This implies no criticism of Mr. Furness QC who approached his task of cross-examination in a perfectly fair and sensitive manner. I have heard some evidence from (the mother) but on the vital issue of alleged domestic violence Mr. Furness was only able to achieve a small part of his cross-examination and such answers as she gave were when in a state of extreme emotion. It leaves me little further forward than was Judge Case in 2002…. ”
It leaves me little further forward than was Judge Case in 2002…. ”[91]The judge then carefully summarised Dr. Gay’s evidence and his assessment of the parents and child over abut a page and a half of the transcript. He recorded Dr. Gay’s view that a residence order in the father’s favour would be doomed to failure. He also recorded Dr. Gay’s view that whilst H would benefit from direct contact, it would take place against a background of adult conflict and that the most which could be achieved at present was indirect contact.[92]The judge then dealt in detail with the evidence of Dr. Gallwey in the following paragraphs from the judgment:
“28 In cross-examination Dr Gallwey accepted that he has had to rely for his diagnosis on the mother's truthfulness. She gave him a history of no prior depressive episodes. He was surprised to learn that she had a record of post-natal depression for four months in 1995. As the onset of PTSD depends on actual or threatened death or injury to oneself or to a loved one, he had worked on the assumption that her account of serious violence had already been accepted by the court. He accepted that he had misconstrued what the Court of Appeal had to say about this in August 2000 as well as what the Court said about the requirements of therapy in its judgment in 2002. He had also taken her word about subjective symptoms such as nightmares. He stated that in PTSD cases there is almost always and immediate reaction with anxiety and dissociative symptoms although it can be delayed by three to six months. He accepted that there was no mention of nightmares in the mother's affidavit in October 1996, nor in her statements in 1999, whereas (the mother) told him that she started to have nightmares soon after the initial trauma. He was referred to the history taken by Dr Jawad in 1999 who recorded that (the mother’s) nightmares about the incidents of violence ‘stopped bothering her a year after she left (the father)’. 29. Further, he would have expected (the mother) to have related to him or to previous psychiatrists the particularly frightening precipitating events. She did not mention to him the ‘telephone’ incident (one of three singled out by (the mother) in evidence before me as of particular significance and which I will come to) although she had emphasised it to Dr Jawad. She related to Dr Gallwey an incident when H was 10 months old when (the father) kicked her in the stomach and she suffered a miscarriage. Dr Gallwey was persuaded in cross-examination by records that she was not in fact pregnant at the time. He agreed that (the mother) telling the Guardian that ‘it was impossible for her to even think of holidays in unfamiliar places’ was inconsistent with (the mother) K going to Tunisia in January 1999 and to Ireland in the last two years. He agreed there was no record of any complaint to a GP or medication referable to PTSD until 1999 but that, as a clinician, did not surprise him. He recognised the degree of inconsistency in what she had told him but considered that not unusual with his patients. He had not of course been aware of these inconsistencies when he wrote his report. 30.. He concluded that she had a cluster of symptoms, all subjective except Criterion A, that confirmed a PTSD. He agreed that if in fact (the mother) is exaggerating her symptoms there would be less or no need to stop contact or at any rate not for so long a period. Dr Gallwey summarised his view about treatment by saying “it’s as simple as this. If she needs to be treated then contact needs to cease for a substantial length of time”
. He accepted that he had been concerned exclusively with (the mother’s) mental health, not the child’s welfare. 31. In summary Dr Gallwey accepted that he had perhaps not been given by (the mother) a full an accurate history, which he did not find unusual, but there was nothing inconsistent with PTSD in what he had read. Her evident anxiety made him feel it was an active condition and there was nothing to suggest to him that she was making it up, although there could be a degree of exaggeration. He did however concede to Mr Furness QC that of the criteria required to fulfil DSM IV, all are subjective except criterion A which requires “exposure to a traumatic event which involved actual or threatened death or injury to herself”. It follows that there may be objective means of establishing the reliability or otherwise of her allegations of precipitating violence. 43. Before coming to that I must record that when evidence was part heard in October Dr Gallwey too the opportunity to return to see (the mother) and discuss the potential for direct contact between H and her paternal grandparents with whom she is reported to have a good relationship. These are the grandparents of whom no complaint in the past has been made by (the mother) and who have been instrumental in promoting contact arrangements. Indeed the maternal grandmother, agreed in her evidence that she is able to deal civilly with (the paternal grandmother) when making contact arrangements over many months after September 2002. (the mother’s) strong opposition to the idea of such contact led Dr Gallwey to advise against such direct contact on the basis (the mother’s) fears that it would result in H seeing her father would merely serve to restimulate her PTSD”. . In relation to the father,

the judge said:

“43. (The father) acknowledges that he has a history of violence. He was addicted to amphetamine until the end of 1992 and I think he accepted that was a contributory factor. He agreed that he expresses himself forcefully at times, but pointed out that although he has previous convictions for violence none are for violence to (the mother), nor have there been any allegations of violence to his partner NI with whom he has lived for several years. His convictions include one for Robbery in 1988 where he claimed to be an accomplice who offered no evidence. In 1990 he was convicted of Actual Bodily Harm on a man and in 1993 of criminal damage and burglary (in 1992). On both occasions he was found to be in possession of a Stanley blade which he said was to cut up amphetamine and to make ‘lines’. In 1994 and 1997 he was convicted of assault on a police office and on the same occasion in 1994 and in 1995 of threatening behaviour. In 1995 he was convicted of possession of cannabis which he said he was returning to a friend. Another offence of criminal damage occurred in 1997. More recently in 2004 he was convicted of Affray when he took a hammer with him to confront a neighbour who he said had been persecuting his family. He believes that he pleaded guilty to all these offences. His case is that until he pulled himself together and gave up amphetamine at the end of 1992 he and (the mother) “were violent to each other” including (the mother) hitting him. Such a history inevitably undermines his denials of violence in his relations with (the mother).”
[93]Having found the earlier incidents of violence alleged by the mother not made out, the judge turned to the baseball bat incident. He said: - “46. The baseball bat incident is of a different character. I do not accept the father’s account that he was the hapless victim in all this. If he is right the mother had decided to leave him, had packed bags for H and herself including packing her jewellery and then attacked him unexpectedly when he attempted to be conciliatory. I think the clear inference is that they quarrelled and fought, during which The mother hit The father in the face with a glass object. If as she says she was forcefully attacked with a baseball bat as she cowered trying to protect herself and H then I have to doubt it. The father would not have put his daughter at risk. If he attacked the mother alone then her description of the violence is not borne out by the objective medical evidence next day. I would have expected more serious bruising to her head and linear marks to her back. Some of the bruising and tenderness seen on examination in hospital could have been caused when she fell downstairs. By the same token the father’s account that the bruising is accounted for by pushing the mother back against the doorframe is difficult to accept.47. With all this in mind I was surprised to read in a statement provided by the mother on 24 November 1999 to support an application to terminate contact that she singled out the ‘telephone’ incident to illustrate the violence she claimed to have suffered throughout her relationship with the father but makes no mention at all of the baseball bat incident. In paragraph 4 she says “The Court will be aware that the relationship ended in October 1996 when I discovered the father was taking drugs and heavily reliant on alcohol. I eventually built up enough courage to actually leave him…” The omission of any reference to the incident which The mother now says precipitated her departure must throw doubt on the true significance of that incident.48. I have therefore come to the conclusion that in retrospect the mother has invested a further incident of domestic violence with more significance that it had at the time. With the passage of years during which her plain an obvious attempts to prevent contact between father and daughter have not rid her of the father she has elevated the baseball bat incident into a new means to be rid of him. If I am being unfair in arriving at this finding or have failed in the mother’s eyes to give due weight to her account then I have to say that she has herself to blame. Her manifest bias, her inconsistencies and her confessed desire to see contact at an end have all detracted from her credibility”. This approach led the judge to the following conclusion: - “50. It means that Dr Gallwey’s diagnosis is thrown into doubt. In my judgment on the evidence presented to me I have concluded that he has been unwittingly misled into thinking that the three highlighted incidents of violence satisfy, or at least the baseball bat incident satisfies Criterion A. I have to say that Dr Gallwey seems to have taken a great deal on trust and did not have the opportunity that I have had to examine the history in great detail. I was a little uncomfortable at the way he dismissed inconsistencies in the mother’s story as only to be expected and I believe he has looked at this case exclusively from the patient’s point of view, which is understandable. This may well have led to him approaching the case from a somewhat narrow viewpoint, emphasised perhaps by his acceptance of the mother’s attitude to grandparental contact. I do not for the moment cast any doubt on Dr Gallwey’ sincerity but I believe that I have to take a broader view of the evidence. Mr Newton suggests that if I reject Dr Gallwey’s diagnosis as unreliable then I should adjourn to obtain a diagnosis that I can rely on. That would simply create more delay and confusion and is unnecessary where I am able to come to a clear conclusion on the evidence as it is.”[94]Having found that the mother had not established that she was suffering from PTSD, the judge took the view that the balance shifted in favour of a resumption of contact. Having identified a number of authorities on the point, the judge concluded that this was not a case where H was genuinely unwilling to see her father, but was a case in which he had to put H’s interests above the mother’s wishes. He accordingly made the order set out in paragraph 1 of this judgment.

The grounds of appeal

[95]Mr. Newton advanced six grounds of appeal. I propose to take each in turn, setting out the arguments which were advanced to us, and giving the conclusions I have reached in relation to each. Ground One The learned Judge was plainly wrong to embark on a re-hearing of allegations of violence made by the mother against the father when in February 2003 in the same protracted contact proceedings between the same parties her Honour Judge Case had made findings in respect of the same allegations which had not been set aside by the Court of Appeal Mr. Newton took us through the cases on issue estoppel in family proceedings, with particular reference to the comprehensive analysis conducted by Hale J (as she then was) in Re B (Children Act Proceedings) (Issue Estoppel) [1997] 1 FLR 285. Whilst Mr. Newton acknowledged that there was no strict rule of issue estoppel binding on any of the parties in cases concerning children, his submission was that in the circumstances of this case, which I have set out at length during the course of this judgment, the judge was plainly wrong to embark on a re-hearing of the allegations of violence in a case where:(1) all the classic components of issue estoppel identified by Lord Brandon in The Sennar (No 2) [1985] 1 WLR 490, 499A applied (namely identical parties and identical issues finally decided on their merits by a court of competent jurisdiction in the same proceedings); and(2) 2 ¾ years had elapsed since the findings had been originally made and 2 ½ years had elapsed since the Court of Appeal had apparently accepted those findings.[96]On this point, Mr. Newton has the support of the guardian, who argued that whilst it was difficult to separate this point from consideration of the manner in which Judge Masterman had conducted the investigation, it had to be viewed against the background that the father, in 2002, wanted the Court of Appeal to set aside the factual findings of Judge Case. However, the decision of the Court of Appeal in May 2002 did not consider or set aside Judge Case’s factual findings. Thorpe LJ had criticised the “discretionary conclusion” which Judge Case had reached; that is to say the decision she had reached about contact on the basis of the facts as she had found them to be. Waller LJ had specifically referred to the mother as suffering from PTSD, and this court’s order had been predicated on that basis.[97]For the father, the following points were taken:(1) the findings of Judge Case were made without hearing the evidence of the mother, and the whole approach of the judge had been challenged in the Court of Appeal as being unfair;(2) in the instant case it was hoped that the mother would be able to give evidence (and did so to a certain extent). Therefore it was anticipated that the evidence before Judge Masterman would be fuller than in front of Judge Case. The latter was clearly going to be a better position to adjudicate upon these crucial allegations and was correct to re-hear them(3) The overall fairness of the trial and the findings of fact made by Judge Case had been challenged by an appeal to the Court of Appeal by the father. The hearing in the Court of Appeal commenced with the court choosing particular grounds that it wanted argued, the appeal subsequently being allowed on those grounds. Thus the Court of Appeal never adjudicated upon the father’s appeal against the findings of fact because it allowed the appeal on other grounds. Mr. Furness in his skeleton argument for this appeal set out a number of the grounds of appeal in the appellant’s notice against Judge Case’s decision (which I need not reproduce) but which made it clear that her findings of fact had been the subject of challenge. Against that background, Mr. Francis argued that Judge Masterman was entitled to consider the allegations afresh, with the benefit of evidence from the mother, rather than rely on findings made by a judge who had not heard any such evidence in a course of a hearing subsequently found to have been flawed.

Discussion and conclusion on ground one

[98]Although I regard the matter as quite finely balanced, and much as I deprecate the manner in which the application to reopen Judge Case’s findings of fact came to be made, I do not think Judge Masterman can 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 seem to me a sufficient number of unusual factors in the instant case to make the course the judge took acceptable. It is, I think, important not to look at this issue with hindsight. At the point at which he was called upon to make his decision, it was reasonable for the judge to anticipate that he might be in a position to make a judicial assessment of the mother’s credibility in the witness box. Judge Case’s findings had been made without oral evidence from the mother. Her decision had been reversed by this court, and her findings had been challenged, even though that challenge had not been adjudicated upon. The judge, in his extempore judgment said that he was going to feel “uneasy” if he had to proceed without having been able to revisit the allegations of violence “with a proper examination of the events seen from both sides with the opportunity of cross-examination”. In addition, of course, the issue of violence went to the root of Dr. Gallwey’s evidence.[99]In my judgment, these factors in combination justify the judge’s decision on this point. It was, at bottom, a matter of discretion, and there was adequate material upon which the discretion could be exercised. I would therefore reject the mother’s case in relation to ground one of the appellant’s notice. Ground Two In the alternative to ground 1 above, if the learned Judge was not plainly wrong to embark on such a re-hearing in the first place, having concluded at the end of the evidence that he was left little further forward than Judge Case in 2002, he was plainly wrong then to go and make new findings or alternatively was plainly wrong to go on and make new findings without reference to or consideration of the reasoning of Her Honour Judge Case Ground Three In reaching his conclusions about the mother’s allegations of violence and of their significance to her, the learned Judge misinterpreted contemporaneous medical records, failed to take into account evidence that he should have taken into account, or failed to give such evidence its proper weight, and drew inferences from the evidence that could not be reasonably drawn, with the result that the learned Judge’s findings of fact in relation to the mother=s allegations of violence and in respect of the diagnosis of post traumatic stress disorder are seriously flawed, unsustainable and should be set aside

Ground Three

[100]It is, I think, convenient to take these two grounds of appeal together, since they represent the mother’s attack both on the judge’s methodology and on his actual findings, in relation to which there is an inevitable degree of overlap.[101]Specifically in relation to ground 2, Mr. Newton argued that the judge had heard the mother give evidence in a distressed and disjointed manner. His conclusion on her evidence had been that it left him little further forward than was Judge Case in 2002 (see paragraph 15 of the judgment). In these circumstances, Mr. Newton argued, the judge was plainly wrong to go on and make new findings of his own; alternatively, he was plainly wrong to go on and make new findings of his own without any reference to the judgment of Judge Case and without any explanation as to why he had come to a different conclusion from Judge Case.[102]Mr. Newton argued that the judge’s approach had led to the very unsatisfactory result that on similar evidence two different judges had made diametrically opposed findings. The three principal examples he gave were(1) the telephone incident on 22 March 1993;(2) the incident on 29 April 1996 when the mother said she had been kicked in the abdomen; and(3) the critical baseball bat incident on 5 October 1996. The judge had rejected the mother’s account of each incident.[103]Mr. Newton went on to make a number of criticisms of the manner in which the judge had gone about reaching his findings. He began with the incident on 22 March 1993. He submitted that the judge had failed to take into account or give proper weight to a number of important consideration. The first was the evidence given previously by the father about this incident. Mr. Newton pointed out that in his statement of the 15 January 2002 the father said he had no recollection of it. The second was the father’s proven history of violence and drug taking. Although the judge had said in paragraph 42 of the judgment that the father “acknowledges that he has a history of violence. He was addicted to amphetamine until the end of 1992 and I think he accepted that was a contributory factor”, he had not referred to the fact that the father had in evidence before Judge Case stated that he had continued taking cannabis for a few months after December 1992 (and therefore probably up until the time of this incident). Equally, the judge had also failed to take into account or give adequate weight to other statements made by the father before Judge Case to the effect that at least until 1992 he had been “acting like a lunatic most of the time”; that he had been living in “a sort of drug fuelled haze”; and was often “probably completely out of my mind”. The judge, Mr. Newton submitted had also failed to take into account or give proper weight to the effects of taking drugs and/or withdrawal from drug taking which were likely to have been influencing the father at the time of the incident.[104]Mr. Newton submitted that the judge had failed to take into account or give proper weight to the fact that on his own evidence to Judge Case, the father had accepted that in relation to this incident he was the aggressor and had assaulted the mother. He had said:
“My father had not long been released from hospital from a suspected heart attack and (the mother) wanted to phone him to get involved in our argument and I was not letting her. And we were struggling over the phone. I was trying to pull the phone from her. She was trying to pull it from me. She had hold of the phone and I was trying to pull it from her and were struggling over the phone and it came out of my grasp and as she was pulling it, it sprang back and hit her in the side of the head”
. The Judge had not commented on the credibility of that account.[105]In respect of the incident of the 29 April 1996, the judge rejected the mother’s account of being kicked in the abdomen because “her contemporary complaint was only of punches”. This was simply wrong. The hospital triage notes included a complaint of being kicked in the abdomen. This was a matter to which Judge Case had referred and on which she had in part properly based her conclusion. The judge had not explained the basis for his conclusion that the mother had “knowingly exaggerated” this incident.[106]Mr. Newton submitted that the judge had not considered the allegation that the father was pathologically jealous and that his violence to the mother had in part derived from this. He pointed out that the father’s evidence that, at the time of the incident on 29 April 1996, sexual relations were virtually non-existent, and that the mother was “having another relationship at the time” was undermined by the suggestion that the mother was pregnant at the time as recorded in the notes, and also by the fact that when the mother was admitted to hospital on 11 May 1996 complaining of “abdo pain and PB bleed” the notes record “partner present”. Mr. Francis’ suggestion, on instructions, that this was probably a different man with whom the mother was having an affair was, Mr. Newton submitted, supportive of the mother’s case.[107]In reaching a conclusion about the significance of the “baseball bat” incident on 5October 1996 to the mother, and in evaluating the mother’s oral evidence before him relating to that incident, Mr. Newton submitted that the judge had failed to take into account or give proper weight to important aspects of the evidence. The judge had expressed surprise that in a statement provided by the mother on 24 November 1999 to support an application to terminate contact, she singled out the telephone incident to illustrate the violence she claimed to have suffered throughout her relationship with the father, but had made no mention at all of the baseball bat incident. He recited paragraph 4 of that statement in which she had said: “The Court will be aware that the relationship ended in October 1996 when I discovered (the father) was taking drugs and heavily reliant on alcohol. I eventually built up enough courage to actually leave him….”.[108]The judge concluded that the omission of any reference to the baseball bat incident must throw doubt on the true significance of that incident. This formed the basis of his conclusion in paragraph 48 of the judgment that: - … in retrospect (the mother) has invested a further incident of domestic violence with more significance than it had at the time. With the passage of years during which her plain and obvious attempts to prevent contact between father and daughter have not rid her of (the father) she has elevated the baseball bat incident into a new means to be rid of him. .[109]Mr. Newton submitted that these conclusions were plainly wrong and unsustainable in view of the fact that the mother had sworn an affidavit on 17 October 1996 dealing in great detail with the incident on the 5 October 1996 and further, that in her statement of 24 November 1999 she had said in a passage immediately before that quoted by the judge: - “I believe that the Court cannot just simply look at the present application in isolation but it really must consider the full background and the statement that I have made previously regarding the dreadful problems that I suffered under the Respondent’s hands. Indeed I would also refer the Court to an undertaking that was signed by (the father) on 25 October 1996 where he promised not to use any further violence against me” Mr. Newton also pointed out that in paragraph 6 of the same statement she said:
“…. the Court will see from my previous statements that I have on a number of occasions been very violently assaulted by the Respondent and have been hospitalised. These have not been isolated incidents and I hope the Court will appreciate that I have always held a very genuine fear of the Respondent ever since”.”
[110]Mr. Newton further submitted that the judge failed to take into account or give proper weight to his own findings relating to the mother’s reaction to being cross-examined about the baseball bat incident (the only incident of violence upon which she was cross-examined). The importance of this point, Mr. Newton submitted, was stressed by Dr. Gallwey in his oral evidence, which the judge had failed properly to take into account. The judge had also failed to take into account or give proper weight to the mother’s symptoms (nightmares and flash backs) which satisfied criteria referred to by Dr. Gallwey in his report.[111]Further, Mr. Newton submitted that in reaching his conclusions about the mother’s allegations of violence generally, the judge failed to take into account or give proper weight to the following factors(1) Dr. Gallwey’s oral evidence that a significant pointer to the reliability of the mother’s account were the fact that she had denied being sexually abused by the father (something she had also said to Dr. Jawad);(2) the fact of her history that initially the symptoms decreased and(3) the evidence before and the reasoning of Judge Case.

The position of the guardian on grounds 2 and 3 of the appellant’s notice

[112]The mother received strong support from the guardian on grounds 2 and 3 of the appellant’s notice, in a carefully reasoned and persuasive skeleton argument prepared by Mr. Charles Geekie of counsel.[113]Mr. Horrocks pointed out first of all that none of the steps preparatory to the hearing before the judge in October 2004 had contemplated a re-hearing of the factual issues. Singer J had specifically stated that he was proceeding on the basis that the mother suffered from PTSD. No directions had at any stage been given geared towards such a re-hearing. The case summary prepared for the 19th October 2004 hearing by leading counsel for the father did not indicate that the court was to be invited to re-open the findings. Finally, the papers relevant to HHJ Case’s findings were not part of the bundle prepared for the 19 October hearing; and had to be assembled in haste in the course of that day.[114]Mr. Horrocks argued that this was not a satisfactory background to a fundamentally important review of key decisions in a case. Not least, he said, all the experts would have properly anticipated that they were to approach the case on the basis of HHJ Case’s findings.[115]Mr. Horrocks accepted that had the judge received intelligible evidence from the mother, this could have formed a sound basis for reviewing Judge Case’s findings, which had, of course, been made without oral evidence from the mother. However, the judge’s conclusion as to the quality of evidence he had received from the mother was contained in paragraphs 14 and 15 of his judgment. The judge acknowledged that he was “little further forward than was Judge Case in 2002”. This comment, Mr. Horrocks argued, should be considered alongside the comment later in paragraph 15 that the absence of oral evidence from the mother was part of the reason why the judge “was persuaded that the findings of fact in 2002 should not be binding upon me.” If the judge, by virtue of having heard from the mother, found himself “little further forward” than Judge Case, then receipt of the mother’s oral evidence became, Mr. Horrocks submitted, a slender reason to reverse the findings. Other reasons more capable of bearing weight must be found.[116]Mr. Horrocks submitted that the judge’s conclusions as to the facts were expressed only in terms of his appraisal of the mother’s credibility. He said: “I have come to the conclusion that I cannot place reliance on the mother’s evidence” (judgment paragraph 45). Whilst sufficient in many cases, Mr. Horrocks submitted that this analysis was insufficient in this case. The judge had put forward no other reasons for reversing the findings and Mr. Horrocks agreed with Mr. Newton that no analysis had been made of where, how and why the judge had felt able to diverge from the findings of Judge Case. Similarly, he argued, the judge had reached very different conclusions about the quality of evidence received from the father. Once again, there was no reasoning as to the basis upon which he departed from Judge Case’s assessment.[117]Further, Mr. Horrocks submitted, the judge did not sufficiently summarise or appraise the countervailing evidence against the father. Some of these matters were summarised by Mr. Newton in his skeleton argument. To these, however, should be added the guardian’s interview with the father as described in her report. Given the mother’s case that the father was pathologically jealous of her, his remark to the guardian: “what did she expect if she sleeps with my friends?” needed to be addressed, as did his suggestion that the mother had had a number of affairs, some with his friends. The father told the guardian that he was willing to overlook her one-night stands as mistakes, perhaps when she had had too much to drink. However, he could not accept her sleeping around. He had gone on, the guardian reported, to call the mother derogatory names such as “old slapper” and “tart”.[118]The judge had not commented on the fact that the father appeared neither to take any responsibility for, or feel any remorse about, taking a hammer with him in 2004 to confront a neighbour who he said had been persecuting his family – an episode which resulted in a conviction for affray. In addition, whilst the judge listed the father’s convictions, he did not comment any further as to how the father’s accepted history of violence should or should not impinge upon the issues.[119]In summary, therefore, Mr. Horrocks submitted that(1) Having embarked upon the re-investigation, the judge’s judgment did not show sufficient reason for departing from the findings of Judge Case;(2) As a result there was now room for doubt and debate as to the exact status of the two sets of court findings in relation to the allegations of violence. The net effect of the above, the guardian submitted, was to create a highly unsatisfactory position for H and those who offer advice or have to make decisions about her welfare. The findings of the judge should be set aside.

The case for the father on grounds two and three of the appellant’s notice

[120]In relation to ground two, Mr. Furness and Mr. Francis submitted that if the judge was correct or not plainly wrong to have a re-hearing, then it must be just that, a re-hearing. He must reach his own conclusions on the evidence before him, which does include some evidence of the mother, which he found to be unconvincing.[121]Counsel submitted that the judge was not exercising an appellate jurisdiction; he was hearing the evidence about the allegations as a judge of first instance. He was not bound to make similar findings to those of Judge Case. The overall evidence was not the same. The impression that he, approaching the case impartially, may have got of the father might well not be the same as that of Judge Case. The judge had had more opportunity to see and hear the mother and listen to her explanations when even gently cross examined. The mother’s explanations had changed again. The mother was again in breach of yet another order, claiming to rely on H’s presentation rather than her own.[122]Counsel acknowledged that it was unsatisfactory for judges reach different decisions, but Judge Masterman had evidence from the mother; Judge Case did not. He had additional evidence. If he was right (or not plainly wrong) to hear the evidence about the allegations afresh then he could not be bound by her findings. If he was, then the whole process would merely have been a charade. It was not argued before Judge Masterman that he was required to make findings in accordance with those of Judge Case. To hold that he was would in effect be determining that the whole re-hearing was a charade.[123]Counsel described ground three as “a full frontal attack on the judicial discretion to make appropriate findings of fact” They pointed out that very full and detailed written final submissions had been prepared on behalf of the father. A copy was provided to us. Counsel submitted that even a cursory glance at the document would highlight to the court the impossible task of overruling the findings that the Judge made. This is exactly the discretionary task that a judge is best equipped to deal with. The matters raised on appeal on behalf of the mother were also matters that were made in writing to the judge in final submissions on her behalf. The judge cannot not be expected to deal in detail with every point. As it is the judgment runs to 16 pages of A4.[124]Counsel argued that a judge is entitled to assess a witness. The judge stated plainly that he could not place reliance on the mother’s evidence. He found it was biased, at times exaggerated and out of step with objective facts. He was entitled to conclude that “her manifest bias, her inconsistencies and her confessed desire to see contact at an end have all detracted from her credibility” (see paragraph 48 of the judgment). He was entitled to conclude that “the history of the proceedings shows with some clarity that the recurring difficulties with contact stem from [her] hostility to the idea rather than a psychiatric condition”. He was entitled to find that the mother, encouraged by her own mother, was pursuing her own agenda (see paragraph 49). The judge’s findings about the maternal grandmother were equally adverse.[125]Quite apart from the usual burden on an appellant: see G v G (Minors: Custody Appeal)[1985] 1 WLR 647, counsel relied on the proposition that the burden on a party seeking to overturn a finding of fact on appeal is significant: seeRe S (Abduction: Custody rights) [2002] 2 FLR 815 @ paragraph 25.

Discussion and conclusions on grounds 2 and 3

[126]I am in no doubt at all that these two grounds of appeal are made out. Whilst Mr. Newton’s individual submissions are of varying strength, their totality, combined with the arguments advanced on behalf of the guardian, is compelling.[127]In the transcript of the hearing, it is plain from the judge’s comments that he did not feel that the mother’s oral evidence was of any value. The judge was clear that her distress was genuine: she was not feigning. He thus recognized that he was “little further forward than Judge Case in 2002”. In other words, he was largely dependent on the written material. Against that background, it seems to me that it was incumbent on the judge to exercise great care before rejecting the 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. At the very least, it seems to me, it was incumbent on the judge to examine Judge Case’s findings , if only as a cross-check to explain his own conclusions.[128]It also seems to me, I have to say, that the judge gave inadequate weight in his considerations to the evidence of contemporaneous complaint, particularly in relation to the baseball bat incident. The hospital notes, which are contemporaneous, contain a clear description, as does the affidavit which she swore twelve days later. In that account, she does not say that the father threw H down the stairs (a point on which the judge placed, it seems to me particular reliance in rejecting the mother’s account). She says that she saw the father go into H’s room : she then saw him at the top of the stairs “and the next thing I knew, H was falling down the stairs. Luckily I managed to catch her. I cannot remember if I ran up a few stairs to catch H, as it happened so quickly”. She then describes being beaten by the baseball bat across the top of her head, either once or probably twice whilst she was holding H and trying to protect her from the blows. The father was screaming: “You’re not taking her. She’s my baby”.[129]The judge appears to have relied on the mother’s oral evidence in relation to this assault, despite his previous indications that it was of no value. He discounts the contemporaneous account, but does not say why. He appears to place considerable weight on the unlikelihood of the allegation that the father threw H down the stairs, although this is not what the mother said in her near contemporaneous affidavit of 17 October. I have to say I also think it unwise of the judge to extract from the hospital notes (what he describes as “the objective medial evidence next day”) a supposition, as he puts it that:
“I would have expected more serious bruising to the head and linear marks to her back”
. The mother’s account was that she had been struck twice about the head with the baseball bat, an account which is consistent with her affidavit of 17 October. I find it difficult to see the basis upon which the judge makes his supposition, and do not agree with him that it is a proper basis for disbelieving the mother’s account, particularly when the judge does not give any weight to the contemporaneous account in her affidavit.[130]Furthermore, the fact that the mother does not rely specifically on the baseball bat incident in her statement of 24 November 1999 does not mean that it did not happen, nor, in my judgment does it warrant the judge’s conclusion in paragraph 48 that she has elevated the baseball bat incident into a new means to be rid of the father.[131]I have to say also that I was particularly struck by the father’s interview with the guardian, and the former’s comment in relation to violence:
“what did she expect if she sleeps with my friends?”
Whilst it is, of course, always unwise to give excessive weight to one comment, this remark, on its face, provides strong support for the mother’s case both in relation to the father’s morbid jealousy and his violence, and at the very least if should, in my judgment, have been taken into account and weighed by the judge. I also find unsatisfactory the judge’s recording the father’s history of violence and attitude to carrying and using a hammer in a neighbours’ dispute without any particular comment or analysis.[132]That fact that the father presented the judge with detailed written submissions does not affect my conclusion. If the judge’s analysis is faulty, the fact that arguments may have been addressed to him which he should have followed does not correct the fault.[133]I am therefore wholly satisfied that the judge’s findings on the question of violence cannot stand and must be said aside.[134]My analysis that the appellant succeeds on grounds two and three of her appellant’s notice is, of course, sufficient to dispose o the appeal, since it follows, if I am right, that the appeal must be allowed. It is, however, I think important for the future management of the case to consider grounds four and five, not least because ground four raises the question of the circumstances in which it is properly open to a judge to reject expert evidence. Ground four (a). in that he failed to consider whether the violence that the learned Judge did find the mother had suffered in the baseball bat incident was sufficient to satisfy the relevant criterion for post traumatic stress disorder; and/or (b). in that he failed to take into account or give proper weight to Dr Gallwey’s oral evidence that absent the baseball incident there must have been another trauma which the mother was keeping secret; and /or c). in that such a conclusion could not properly be reached without obtaining Dr Gallwey’s opinion as to the impact on his diagnosis of the learned Judge’s findings The argument t for the guardian on

Ground four

[135]I propose to begin this section of my judgment by setting out the argument of the guardian in relation to ground four, which I found particularly helpful. In discussing the quality of decision making by the judge in relation to the issue of the mother’s state of mental health., Mr. Horrocks accepted that a judge is entitled to depart from the evidence of an expert. However, he must give reasons for doing so. Furthermore, Mr. Horrocks acknowledged, a judge may decline to follow the combined evidence of a number of experts, so long as there is other available evidence upon which the judge may properly rely. Mr. Horrocks cited the decision of this court in Re B (Care: Expert Witness)[1996] 1 FLR 667, and the judgment of Ward LJ at p.670 C-E:

The argument t for the guardian on ground four

“The court invariably needs and invariably depends upon the help it receives from experts in this field. The court has no expertise of its own, other than legal expertise… By their special allocation to this work, they [i.e. Judges] acquire a body of knowledge which, strictly speaking, cannot be substituted for the evidence received, but which can be deployed to spot any weakness in the expert evidence. That is the judicial task. The expert advises, but the judge decides. The judge decides on the evidence. If there is nothing before the court, no facts or no circumstances shown to the court which throw doubt on the expert evidence, then, if that is all with which the court is left, the court must accept it. There is, however, no rule that the judge suspends judicial belief simply because the evidence is given by an expert.”
Mr. Horrocks also pointed out that in the same case Butler Sloss L.J.(as she then was)had 146. said at p.674 F:
“Family judges deal with increasingly difficult child cases and are much assisted in their decision-making process by professionals from other disciplines: medical, wider mental health and social work among others. The courts pay particular attention to the valuable contribution from paediatricians and child psychiatrists as well as others, but it is important to remember that the decision is that of the judge and not of the professional expert. Judges are well accustomed to assessing the conflicting evidence of experts. As Ward, LJ said, Judges are not expected to suspend judicial belief simply because the evidence is given by an expert. An expert is not in any special position and there is no presumption of belief in a doctor however distinguished he or she may be. It is, however, necessary for a Judge to give reasons for disagreeing with experts' conclusions or recommendations. That, this Judge did. A Judge cannot substitute his views for the views of the experts without some evidence to support what it is he concludes.”
[136]Mr. Horrocks also referred us to Re B (Split Hearing) [2000] 1 FLR 334 in which Dame Elizabeth Butler-Sloss P had further considered the position where a judge is faced with unanimous medical advice. At p.339H-340B she said:
“In a case such as this where the expert evidence, and here the expert evidence of the radiologist was all one way, the judge is certainly entitled, if he has evidence that he can rely upon to the contrary, not to accept that evidence. In my view he did not have that evidence in this case. He did not, in particular, have evidence that made the uncontroverted medical evidence logically unsupportable. The judge failed to analyse the evidence and give any reasons. The credibility or otherwise of the lay witnesses of facts of this case, in my view cannot stand so high as to make the evidence of the two consultant radiologists of no effect.”
In the instant case, Mr Horrocks submitted that the judge had proceeded as if his rejection of a finding of PTSD rendered the whole of the unanimous psychiatric evidence as of no effect. Having rejected the factual basis for PTSD as a diagnosis he ought, Mr. Horrocks, to have gone on to consider the effect of his finding upon a powerful body of unanimous and (medically) uncontradicted psychiatric evidence.[137]Mr. Horrocks argued that, the founding acts of violence having been found not to have occurred, it was almost inevitable that the diagnosis of PTSD would also fall. However, having reached this stage, the judge insufficiently analysed the consequences for his decision making about H. Mr. Horrocks submitted that the following background matters were relevant.(1) The mother has consistently, and without psychiatric dissent, been diagnosed as suffering from PTSD (Dr Jawad, Dr Jamil, Professor Maguire, Dr Bisson, Dr Gallwey).(2) The judge in a number of instances recorded the disturbed presentation of the mother(3) The judge also had written evidence from the mother’s treating psychiatrist, Dr Bisson, that her situation was having a “major adverse affect on her mental state” and that further contact would “result in her mental state deteriorating again quite significantly”(4) The judge had noted that his decision in relation to PTSD is made solely upon the evidence of Dr Gallwey. This position arose as an inevitable consequence of the lack of case management directions preparing the way for a re-opening of the fact finding exercise. Mr. Horrocks submitted that the judge’s reversal of the factual substructure of the case created such a fundamental change that he was obliged to ensure that appropriate psychiatric comment was received in relation to the changed position. This point appears to have been raised in argument, but rejected by the judge, who said: “Mr. Newton suggests that if I reject Dr Gallwey’s diagnosis as unreliable then I should adjourn to obtain a diagnosis I can rely on.” (Judgment paragraph 50)(5) The judge’s dismissal of PTSD has left a large and highly significant gap in the evidence. There is every appearance and uniform psychiatric evidence that the mother is very unwell. If she is not suffering from PTSD, there is no assessment and no evidence as to what her condition is. The mother is H’s primary carer and naturally, the mother’s health is a matter of primary importance to H.(6) The judge’s judgment does not refer to Dr Bisson’s evidence and does not assess in any detail the consequences of the dismissal of PTSD. The single reference to the topic is at paragraph 61 of the judgment: “Nevertheless the mother’s reaction to contact cannot be ignored in deciding how contact can best move forward. Mr. Horrocks submitted that the judge’s approach was highly unsatisfactory and taking a high risk with the mother’s, and consequently H’s, welfare. The judge should not have concluded the proceedings in the absence of psychiatric evidence as to the mother’s condition on the basis of the findings as made. The conclusion that PTSD was not proved with no other psychiatric analysis or diagnosis should be set aside.

The case for the mother on ground four

[138]I mean no disrespect for Mr. Newton when I say that, in my judgment, the mother’s arguments are subsumed in those advanced by the guardian, and to set them out would be repetition.

The case for the father on ground four

[139]In seeking to uphold the judge’s findings on the PTSD issue, counsel for the father submitted that the diagnosis of PTSD had been challenged before Judge Case. She had made findings in an unfair hearing. The Court of Appeal had ordered that contact should recommence and subsequent orders were made to that effect. The father was content with these orders, which were made without the calling of evidence or any factual issue being addressed. There was no subsequent substantive hearing until the hearing before Judge Masterman.[140]The Judge had found that he could not rely on the mother’s evidence at all. He did not believe that she had been attacked with H in her arms as she alleged or that the violence was as she alleged. He found that she had invested a further incident of domestic violence with more significance that it had at the time, and that she had elevated the incident into a new means to be rid of the father. The judge had therefore concluded that Dr Gallwey had been misled into thinking that the three highlighted incidents of violence satisfied (or at least the baseball incident satisfied) Criterion A (the traumatic event or events). He, the judge, had to take a broader view of the evidence, and found that the incidents were not sufficient to satisfy the criterion.[141]Counsel argued that Dr Gallwey did not say that absent the baseball bat incident there must have been another trauma which the mother was keeping secret. He had indicated that if her distress was genuine then there may be another criterion A, although he added that if that was the case she would be shown to have an agenda against the father. The court, they argued, cannot act on the basis that the mother may satisfy criterion A in some way that she had been unable to disclose to anyone (despite many opportunities and many changes / inconsistencies in what she was saying). Any secret reason may or may not involve the father, and if it did not there would be no reason to prevent contact.[142]When Dr Gallwey was cross examined it was made absolutely plain to him that the diagnosis was not accepted and the factual matrix on which he had made his diagnosis was challenged. He was challenged about a number of aspects of his report, and in particular his failure to analyse the changing and inconsistent reporting of the mother. The judge found that Dr Gallwey had taken too narrow a view, had taken a great deal on trust and had not had the benefit of examining the history in detail .

Discussion and conclusions on ground four

[143]On this issue, I am wholly persuaded by the argument advanced on behalf of the guardian which I am content to adopt in its entirety. There are, of course, cases in which a judicial analysis of their factual sub-stratum is determinative of a medical or psychiatric issue. But in my judgment it is simplistic in a case of this complexity to take the view that individual findings of fact contradict and exclude a finding of PTSD. Indeed, the judge does not go so far, but his conclusion, in my judgment, leaves us in the worst of possible worlds. When pressed by Mr. Newton post judgment, he does not say that he has found that the mother is not suffering from PTSD. He is saying that he is not satisfied that she is. In conventional civil litigation, a judge’s finding that he is not satisfied on the balance of probabilities that an event has occurred, means that, for the purposes of the proceedings, it has not. For the reasons the guardian gives, this is highly unsatisfactory in a case where the issue is a child’s contact with her father, and the judge’s findings provide the basis for contact to be resumed.[144]Furthermore, the judgment manifestly does not address the unanimous psychiatric view that the mother was indeed suffering from PTSD. And because of the way in which the finding of fact issue was introduced (an application made on the first morning of the hearing) the unfairness about which the father complained in relation to Judge Case seems to me to shift to a legitimate complaint by the mother that she was denied the opportunity to call additional evidence on the PTSD issue.[145]The father’s argument falls to the ground once it is acknowledged that the judge’s findings of fact are flawed. It is axiomatic that if a judge is going to reject an expert’s evidence on the basis that the expert’s opinion is predicated on inaccurate information, the findings of fact which the judge makes must themselves be sound. Here, they are not and it follows that the judge’s rejection of Dr. Gallwey’s evidence is likewise unsound. Ground five 157. The learned Judge erred in failing adequately to evaluate or balance against the benefits of direct contact by the father to H the likely effect on the mother of the making of an order for direct contact by the father to H and the likely consequential impact on H deriving from the stress, anxiety, distress and genuine fear from which the learned Judge held that the mother was suffering or from which he ought to have held she was suffering.[146]I am quite clear that in the light of my findings in relation to grounds two to four of the appellant’s notice the judge’s order for contact cannot stand. Mr Newton encapsulates his case on this point in one sentence: He submits that; “having found and identified the feelings to which the mother was prone the judge was plainly wrong in failing to assess the risks to H from the mother’s proneness to those feelings and in failing to carry out a proper balancing exercise”.[147]With equal brevity, the guardian submits that the written evidence from Dr Halford stated that “forcing H to see her father in her current state is likely to cause significant emotional harm”. On numerous occasions leading up to the October 2004 hearing H had expressed herself as unwilling to see her father, although the guardian accepted that H’s expressed wishes must be approached with caution. The guardian submitted that it would have been more satisfactory if the judge had specifically reflected the above matters in his judgment.[148]Mr. Furness in his skeleton argument argued as follows. The judge had found that the mother had been pursuing her own agenda.. He had found that H had a strong relationship with her father and he has a strong love for her. Mother’s fears were entirely without foundation. He pointed out that the guardian had advised the judge that if the diagnosis of PTSD failed (and she remained neutral throughout as to the veracity of the diagnosis) then contact should resume. Her position had been that the stress to the mother might guide the frequency of contact and it should start monthly with a periodic review (the order the Judge eventually made).[149]Mr. Furness argued that Dr Gay had already concluded that he had no doubt at all that in principle direct contact between H and her father would be of benefit to her. The difficulty for H was that she needs permission to have a relationship with her father and that permission was not forthcoming. This was the dilemma which the judge had recognised. The judge had clearly considered the welfare checklist and was child focussed, treating H’s interests as paramount. He concluded that H was willing to see her father but was constrained from expressing those feelings. He adopted the proposal of the guardian as to how contact should recommence. Discussion and analysis on

Ground five

[150]I have already expressed my view that in the light of my findings on grounds two to four of the appellant’s notice, the judge’s order for contact cannot stand. There is much in Mr. Furness’ submission on this point with which I agree, and in another case, the judge’s exhortation to the mother on the importance of contact would have been well judged and appropriate. Indeed, that was my instinctive reaction when listing the permission application for an oral hearing on notice. However, in what is a highly fraught and complex situation, and on the basis of the flawed findings made by the judge, his order for contact, which is dependent on those findings, simply cannot stand.

Disposal

[151]This leads to what in my judgment is the most difficult part of the case. Plainly, the appeal must be allowed. Plainly, the judge’s order must be set aside. But what to put in its place? This, to my mind, is an extremely difficult question. Were this commercial or other conventional civil litigation I have no doubt at all about what would happen. The court would send the proceedings back, and direct that they be reheard in their entirety by a different judge. That, of course, is an option. A second option is to direct that Judge Case’s findings of fact stand, and to adopt the proposal put forward by Mr. Newton on behalf of the mother. A third option is to remit the case to a High Court Judge of the Division for him to reconsider the contact issue on the basis that Judge Case’s findings remain in place and are not to be re-opened.[152]In my judgment, it is important for this court to keep in the forefront of its mind the fact that this is a case about H’s contact with her father, and that H’s welfare is the court’s paramount consideration. The dilemma which the case poses is not particularly unusual, although it takes an extreme form. For all the reasons given by Dr. Gay, it is in principle in H’s interests to have contact with her father. Whatever he may or may not have done to H’s mother, H is not at risk from him. When she has had contact with him, it has been beneficial to her, and she has enjoyed it. Dr. Gay gives wise advice to the mother when he points to the risks of serious damage to H and H’s relationship with her mother if (or rather when) H as an adolescent takes the initiative, meets her father, discovers that he is not the ogre her mother has been painting, and recriminates with her mother for denying her a relationship with her father over many years.[153]Given that, in principle, it is in H’s interests to have contact with her father, the question becomes: can contact be achieved without further emotional or psychological damage to the mother and, through her, to H? If the answer to that question is “yes” then an order for contact may be possible. If the answer is “no” then it may be that the only solution is indirect contact until such time as H is sufficiently independent to make her own decisions. As she is now 10, that time, as Dr Gay advised, is not far away, and the father may take some consolation from that fact, although if contact occurs in the circumstances of an adolescent rebellion or other rift with her mother, H is likely to be further damaged, even if her relationship with her father is restored.[154]I have come to the conclusion that the future progress of this case cannot be decided by this court. It must be decided by a first instance judge on the ground. I reach that conclusion because it seems to me that in deciding the way forward a raft of considerations fall to be taken into account, some at least of which require further oral evidence.[155]One of the key players, in my judgment, is Dr. Gay. I have summarised his evidence earlier in this judgment. He is a very experienced child psychiatrist. I would like him to consider this judgment (and the judgment in the court below) and advise the High Court Judge as to how he sees the way forward for H. Furthermore, if I were the judge making the decision about the way forward, I would want evidence from the mother’s treating psychiatrist, and the psychiatrist to whom H has been referred.[156]Whether, at this distance in time, it is actually necessary now to re-open the facts underlying the mother’s diagnosis of PTSD is also a matter which, in my judgment, should be the subject of further argument before a judge who is capable of taking evidence on the point.[157]For all these reasons, I have come to the conclusion that this court should remit the father’s application for contact to be further considered by a High Court Judge, and that at an early hearing, the judge should give directions for the future conduct of the proceedings. The matter will, however, be at large. It will be open to the judge to terminate direct contact if he feels that the family justice system has reached the end of the road and cannot advance H’s interests by further intervention: it will be open to him to make orders for direct contact if at the conclusion of whatever investigation he deems appropriate, that course is in H’s best interests.[158]We were helpfully told by the guardian that Hedley J will be sitting in Cardiff in March, and that there was a space of a day and a half in his list on 22 and 23 March 2005. With my Lord’s agreement, I have spoken to Hedley J and ask him to keep that space in his list available for this case. He has kindly agreed to do so. The case will, accordingly be listed for further directions before Hedley J sitting in Cardiff on 22 and 23 March 2005 with a time estimate of a day and a half.[159]The parties need to discuss the material which they will wish to be before the judge, and the evidence they may wish to call. For my part, the only direction I think it proper for this court to give is to direct that the parties have permission to disclose copies of our judgments in this case to any expert witness who has already given evidence or provided information or whom it is intended to call. In particular, I would give permission for the guardian to disclose a copy of this judgment and the judgment in the court below to Dr. Gay, and I would invite Dr. Gay, if he can, to provide a brief report for Hedley J on 22 and 23 March on what course Dr Gay now perceives to be H’s best interests in the context of her father’s application for contact.[160]Finally, I would like to make it clear that in my judgment these proceedings, for as long as they remain alive, must remain in the High Court and be reserved to Hedley J. They should not be released to another judge – even another judge of the Family Division, unless that course is unavoidable. Under no circumstances, however, should they be released to a circuit judge. I do not say this out of any disrespect either for Judge Masterman in particular or for the circuit bench in general. Anyone who has sat in the Family Division will know that without the invaluable support of the Circuit Bench the pressure of work in the Division would be intolerable. Furthermore, it is not so long ago that I was myself a Liaison Judge having to field directions from this court that I find a judge of the Division to hear a particular case. I am thus acutely aware of all the difficulties. But this is a case which has gone badly wrong on a number of occasions, and it must now be managed by one judge, and that judge must be a judge of the Division.[161]Furthermore, whilst I appreciate that most of the events in this case took place before Re L, V, M and H and before the President’s recent guidance on the management of private law Children Act cases, I hope that Hedley J, as the Family Division Liaison judge for the Wales and Chester Circuit will take the opportunity, with the Designated Family Judge for Cardiff, to consider what has gone wrong in this case and to take steps that mechanisms are in place to avoid a repetition in other cases.[162]I would therefore make the following[163]During the course of argument, My Lord and I indicated that we were minded to refuse permission on this ground. I should, however, deal with it. Mr. Newton argued that the appearance given by(1) the fact that the judge had prepared a typed judgment before hearing oral submissions and/or(2) his reluctance to hear oral submissions was that the Judge had irrevocably made up his mind as to disposal before hearing oral submissions. Mr. Newton also told us that the judge himself in comments made after delivering Judgment expressed some unease at the procedure adopted and said that he would welcome the Court of Appeal’s views on it. Mr. Newton, in summary, submitted that the procedure adopted was flawed, did not afford the mother a fair trial and amounted to a breach of Article 6.[164]As my Lord stated in the course of argument, the judge’s approach would only be subject to criticism if he had either refused to hear oral submissions, or made it clear that oral submissions would have no effect on the judgment he had already written. In fact, the transcript demonstrates that(1) the judge heard quite extensive oral submissions, and(2) he then went away and made some alterations to his judgment.[165]Against the background of this case, which had overrun, was very difficult, and in which the judge was being helpful by providing a written judgment at the earliest possible opportunity, we can perceive no breach of Article 6, and nothing in the judge’s approach to which exception can properly be taken. On this point, therefore, we are content to adopt the submissions made in Mr. Furness’ skeleton argument. He points out that the decision to put in written submissions was at the instigation of counsel, because the trial had exceeded the time estimate and counsel had tried with the listing officer to obtain a date when they could all attend. He says it was agreed that if submissions were made in writing in advance of the hearing, there could be short supplementary oral submissions and the judge would be able to deliver judgment that afternoon. The judge had agreed this proposal when it was put to him by counsel. Written submissions were then filed, and on 10 December each counsel then made some short supplementary points. Counsel for the guardian for about 20-25 minutes, counsel for father for 5 minutes and counsel for mother for 20-25 minutes. The Judge then retired and made some amendments to a written judgment that he had obviously prepared in advance. Judgment was subsequently handed down. Mr. Furness concludes: The Judge is entitled to run the court in an efficient way for the benefit of litigants. Very often written submissions alone are handed in at the end of a case. Here each party had an opportunity to supplement those submissions. There can be no criticism of the course adopted, particularly when it is a course adopted by him pursuant to a proposal made on behalf of the parties. He is entitled to limit oral submissions - the case had been listed for an afternoon only for submissions and judgment. The Judge listened to the supplementary oral submissions and made amendments. It was clearly in the interests of the parties that there was not a substantial adjournment between evidence and submissions / judgment. This method ensured the shortest delay and therefore a judgment when the evidence remained fresh in the minds of all concerned. It meant the least delay for H in having a decision taken”.[166]For these reasons, we refused permission to appeal on ground 6.[167]I agree with the judgment of Wall LJ and have nothing of substance to add to the masterly way in which he has dealt in detail with each aspect of this difficult case. The anatomy of the case is instructive in emphasising the importance of the proper approach to cases of this kind set out in Re L, V, M and H and the importance of judicial continuity in intractable disputes of this kind.[168]I accept that in all the circumstances it cannot be said that Judge Masterman was plainly wrong in his discretionary decision to embark on a re-hearing of the allegations made by the mother which had been the subject of findings when the matter was before Judge Case. However, in taking that unusual step it was incumbent upon him, late in the day as he came to his task, to exercise the utmost care in coming to a different conclusion. That was because a conclusion that the mother was not suffering from PTSD as a result of her treatment at the hands of the husband stood the case on its head, as compared with the accepted basis on which it had been conducted and on which orders had been made in the past. Judge Masterman’s re-examination of the facts years after the event in a situation in which it was clear that the father (who had an admitted history of drug-fuelled violence) had used considerable violence towards the mother (who was herself the product of a battered childhood) was a fragile basis on which to overturn the long-accepted diagnosis of PTSD. His dismissal of the significance, if not the occurrence, of the baseball bat incident sat ill with the clear contemporary evidence in the medical records that the wife had complained of such an attack immediately on her admission to hospital. It was in any event not a compelling reason to find that the wife did not suffer from PTSD as a result of violence at the hands of her husband, as to which two eminent psychiatrists were satisfied. I endorse the observations of Wall LJ at paragraphs 143-145 of his judgment.[169]Finally, I agree that in an effort to reach a proper resolution in this case, further evidence is likely to be necessary and that the matter should therefore be the subject of directions and ultimate disposal by Hedley J in accordance with the terms of the order proposed by Wall LJ and set out at paragraph 162 of his judgment.

order

- 1. I would grant permission to appeal on grounds 1 to 5 of the appellant’s notice; 2. I would refuse permission to appeal on ground 6 3. I would allow the appeal and set aside paragraphs 1 – 3 of the judge’s order of 10 December 2004. 4. I would also set aside the judge’s findings of fact on the issues(1) of the father’s violence to the mother and(2) the diagnosis of PTSD; 5. I would remit the question of the father’s contact with H to the High Court to be heard by a Judge of the Family Division; 6. I would direct that the father’s application for contact be listed for directions before Hedley J sitting in Cardiff on 22 and 23 March 2005 with a time estimate on one and a half days for Hedley J to consider the future progress of the case and to give whatever directions or to make whatever orders he thinks appropriate; 7. I would direct that the case be reserved to Hedley J and not released by him unless there is no alternative; further that in the event of a release it should be only to a Judge of the Family Division; 8. I would give permission to the parties and to the guardian to release a copy of this judgment to any of the expert witnesses in the case and in particular I would direct that the guardian make a copy of the judgment available to Dr. Gay and to seek his advice on the way forward in H’s interests. Footnote: Ground Six 175. The procedure adopted by the learned Judge of preparing before oral submissions a typed judgement based on the parties’ written submissions by itself or in combination with reluctance to hear oral submissions gave the impression that the learned Judge had irrevocably made up his mind before hearing oral submissions, was flawed, failed to accord the mother a fair hearing and was in breach of Article 6"