K & S (Children) [2005] EWCA Civ 1660

Case No B4/2005/2187[2005] EWCA Civ 1660
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM PRINCIPAL REGISTRY OF THE FAMILY DIVISION
SITTING AT WOOD GREEN CROWN COURT
(HER HONOUR JUDGE BEVINGTON)
Venue Royal Courts of JusticeDate Wednesday, 16 November 2005
Strand
London, WC2A 2LL
B E F O R E:
LORD JUSTICE THORPE
LORD JUSTICE RIX
LORD JUSTICE WILSON
K AND S (CHILDREN)
(Computer-Aided Transcript of the Stenograph Notes of
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MS CAROLINE GIBSON (instructed by Messrs Barrington Thompson) appeared on behalf of the Appellant
MR JASVINDER KANG (1st Respondent) appeared in person
MR SIMON MILLER (instructed by Messrs Patrick Smith & Co) on appeared behalf of the 2nd Respondent
MS BARBARA MILLS (instructed by CAFCASS Legal) appeared on behalf of CAFCASS
MR IAN ROBERTSON (Solicitor/Advocate)(instructed by Messrs Griffiths Robertson) appeared on behalf of the Children's Guardian
J U D G M E N T

LORD JUSTICE THORPE:

This

[1]appeal has a complicated history. The principal parties are the appellant mother, the father of her first child and the father of her second and third children. Then there must be added the guardian ad litem, now I think representing all three, and CAFCASS Legal who have intervened in the appeal.[2]The relationship between the parents of R, the first-born child, began in 1994 and they cohabited for about a year, during the course of which R was born on 2 February 1996. He is aged 9. The relationship ended in 1997 and swiftly thereafter the mother married Mr S, the father of S and L, who were born respectively on 3 February 1999 and 19 July 2000. It is common ground that Mr and Mrs S separated some two months after the marriage. The mother says that this was because of his violent temper. That of course is not accepted. After that separation it seems that the spouses cohabited intermittently and from those intermittent cohabitations came the conception of the two children. However it seems to be common ground that they separated finally on 26 December 2002. Again the mother says that that final breakdown followed aggressive behaviour by the father, including him smacking S in an unwarranted fashion. That also is in dispute.[3]After the separation, divorce proceedings were commenced by the father and in the spring of 2003 the turbulent relationship between them continued. On 21 March 2003 the mother filed an affidavit in support of an application for protective injunctions. The affidavit asserted that she had received a barrage of harassing and intimidating telephone calls from her husband both at home and at work, as a result of which her employers had put a trace and monitor on incoming calls. She then asserted an incident of harassment on 2 March 2003 and another more substantial incident on 6 March 2003, during the course of which he had intruded in the home, refused to leave and abused her repeatedly in obscene language. She said that she was frightened, humiliated and embarrassed by his behaviour, and that the children were extremely distressed by his behaviour and on the last occasion were huddled on the stairs crying. She said the incident was emotionally damaging to the children.[4]On 14 March she complained of harassment at work and obscene abuse on the telephone. On 17 March she complained of harassment at home when again he had intruded upon her and abused her in obscene terms. She ended her affidavit by saying that she was frightened of the respondent and that she could no longer cope with his unannounced visits, his threats and abuse, which were witnessed by the children.[5]On the same day, 21 March, she initiated police protection, and a notice under the Harassment Act was served on the respondent. He refused to sign that notice.[6]The injunction application was compromised at a hearing on 6 May when, by consent, it was ordered that the hearing be adjourned with liberty to the applicant to restore in the event of breach of the undertaking. To that consent order were scheduled undertakings by the husband not to use or threaten violence against the mother, not to harass or pester or telephone her and not to attend at her place of work.[7]The next evidence within our papers relating to police involvement is a letter of 7 July written by the Domestic Violence Unit at Slough Police Station to the mother's solicitors. The officer confirms that the couple had come to the attention of the Domestic Violence Unit in July 1999 and since that time the police had been called on several occasions to the address. The letter also records the complaint of harassment and the verbal warning given to the husband on 21 March 2003. What is significant is that, having catalogued the various incidents on the police log, the writer concluded with a final report of an incident on 16 May 2003:
"harassment, mother reporting further incidents of harassment, investigation ongoing."
If there had been a further act of harassment on 16 May that would of course have been in breach of the undertakings recorded on the 6th. However it seems that there was no further application or restored hearing within the injunction proceedings.[8]The last piece of evidence within our papers is a further letter of 20 November 2005 from the Domestic Violence Unit and the same officer, which confirms a case pending at Forest Magistrates' Court for harassment against the mother. The letter continues:
"Mr S is therefore currently on bail to attend court on certain dates as instructed by the court. The bail includes conditions for him not to contact Mrs S and not to attend her home address..."
[9]In the meantime the mother had filed with the court on 25 July 2003 an application to remove the children permanently from the jurisdiction to Australia. She had formed a relationship with Mr B, who moved into cohabitation with her in September 2003.[10]Within the S proceedings there were also applications by Mr S for residence order and contact, and there was an application in the K proceedings by Mr K for residence, contact, parental responsibility and prohibited steps orders. All these cross-applications were case-managed towards a final hearing and in preparation the CAFCASS reporter, Miss Y, filed a report on 16 June 2004 in which in paragraph 52 she recorded allegations of violence and harassment by Mrs S against Mr S. She said:
"I have read the reports by WPC Wong, Slough Domestic Violence Unit, which indicate that both Mr S and Mrs S had reported incidents of domestic violence to the Police. I understand from WPC Wong that charges of harassment have been made against Mr S who is due to appear in Court on 14th September 2004. Mr S has vehemently denied these allegations and claims he is being prosecuted on the grounds of his racial origin."
What seems to me surprising is that Miss Y, in her concluding recommendations and summary, did not specifically point up the importance of the outcome of the criminal proceedings to the determination of the issues in the Family Court, particularly in relation to Mr S's outstanding application for contact.[11]The mother on 21 July filed her fourth statement in the proceedings. At paragraph 3 she said:
"In the past the children have received physical and emotional abuse from Mr S as well as frequently being exposed to the physical abuse and constant denigration I received from Mr S in their presence. Mr S has hit the children and would verbally abuse them. This was initially directed at my eldest son but then became directed at S and L on his visits to our home. As a result the children have always been very frightened by Mr S. Mr S is currently on police bail pending criminal charges against him for harassment towards me. I believe that the criminal trial is due to take place on 14th September 2004."
There is one other paragraph within that statement that I note, and that is paragraph 10, where the mother said:
"The CAFCASS officer and her report are currently the nature of a complaint by myself. I am unhappy with the way Ms Y conducted herself and her investigation. I would ask the Court to bear in mind that, until the final hearing, I will not be in a position to challenge that report and thus I ask the Court not to accept the contents of that report at face value."
To that issue she exhibited three letters: one from the health visitor, one from the school teacher and one from the police officer, Miss Wong, which she asserted substantiated her complaints against Miss Y.[12]The criminal trial, according to the mother, was abandoned by the prosecution on 10 September some four days before the fixture. That of course removed the possibility of investigation and conclusion on the application of the criminal standard in advance of the family proceedings fixed to commence on 5 October. The trial was listed before Judge Bevington. It had a three-day time estimate, but overran, the judge sitting on 8 - 11, 14 and 15 October, seven court days in all. They were only sufficient to complete the evidence, and the judge called for written submissions from counsel. We have only the written submissions of Mr Miller, who represented Mr S in the court below, as he does in this court. He has annexed his final submissions and they demonstrate that at the conclusion he was pressing the judge to make a finding. He said:
"There is no truth to the allegations that Mr S has been regularly violent or at all to Mrs S."
His written position in opening had not alluded to the domestic violence issue; it was in his final submissions that Mr Miller sought a vindication for his client.[13]The judge reserved her judgment and delivered it on 19 November. It was not a handed-down written judgment but an oral judgment which has been transcribed. The order that she made reflects her conclusion that broadly the merits lay with Mr S and Mr K, whose relationship with their respective children she sought to uphold and develop by her order. The order included a provision that a guardian ad litem should be appointed for S and L. That was done on 5 January 2005. The guardian sought leave to instruct Dr Berelowitz. That leave was granted on 23 February. R was joined as a party on 3 May and Dr Berelowitz reported on 8 June. He of course adopted as his starting point the conclusions reached by Judge Bevington and equally her estimation of the adults in the case. He carried out an independent investigation, meeting not only the adults but the children, and what he found at his interviews accorded with the line taken by the judge.[14]An adult psychiatrist, Dr Wilkins, reported on the mother on 23 August in preparation for a further hearing before Judge Bevington, fixed for three days, to commence on 20 September. The September hearing resulted in a further order in which the judge sought to consolidate and advance contact between the children and their fathers, bringing in an independent social worker who had the task of attending contact and exploring the possibility of developing it beyond the confines of a contact centre.[15]However, the mother's complaint against Miss Y's work had been referred to independent investigation by a Miss M, who delivered her report on 15 July 2005. That report was the foundation of the mother's application to appeal the order of 19 November 2004 out of time. Her application was referred to Wall LJ who on 8 November ordered an oral hearing on notice with appeal to follow. That hearing has been accelerated and brought in at very short notice. That has undoubtedly put the professionals in the case under pressure and we are grateful to Miss Gibson for the mother, Mr Miller for Mr S, Mr Robertson for the children and Miss Barbara Mills for CAFCASS in managing to get skeleton arguments before the court, albeit at the eleventh hour. Mr K, who is in person, has also managed to prepare a written skeleton which he has elaborated in his oral submissions.[16]There are two separate strands to Miss Gibson's attack on the judgment. The first is founded on Miss M's many criticisms of Miss Y's professional performance. She asserts that the judge has manifestly relied heavily on a piece of professional work which has subsequently been demonstrated to be flawed. She criticises the judge for her failure to deal with the three specific complaints advanced by the mother in her statement and in her evidence. Accordingly she asserts that the judge's conclusion is unsustainable, given that she has validated Miss Y in a way that she could not possibly have done had she had available to her the investigation and report of Miss M.[17]Her second strand of criticism is the judge's failure to make any findings one way or the other on the crucial issue of violence and harassment involving not just the mother but also the children.[18]It is undoubtedly a very difficult case for this court. There is an evident tension between the deficiencies suggested by Miss Gibson and the fact that much water has flowed under the bridge since. There has been a great deal of expensive professional work in establishing contact to S and L and Mr Robertson is able to report to us some signs of recent progress. Obviously that should not be jeopardised by a return to hostilities afresh. Furthermore, the criticisms of Miss Y go more to her working practices than to the substance of her report. There is absolutely no evidence of bad faith or bias. Furthermore, she has initiated grievance procedures which are not yet adjudged.[19]Finally, is it not clear how the mother's case on domestic violence was presented either in oral evidence or submissions. We only have such of the case papers as are to be found in our two bundles. We do not have any transcript of evidence, nor do we have any record of the mother's written submissions. This is because there has been a change of solicitors and counsel and Miss Gibson has only come into the case at a very late stage.[20]As to the two strands, there can be no doubt at all that Miss Gibson makes good her primary submission that the judge has relied heavily on the opinion of Mr Y. Indeed that could be said to be the hallmark of the judgment. Paragraphs 46, 49, 50, 53, 54, 55, 59, 64, 65, 67, 68 and 74 all demonstrate the judge's reliance.[21]Furthermore, it is easy for Miss Gibson to demonstrate the judge's failure to deal with the three specific complaints advanced by the mother, namely that Miss Y had either recorded inaccurately or in a misleading way the contribution of the school teacher, the health visitor and Miss Wong. For all that

the judge says in relation to the mother's attack on Miss Y's work is this:

"Mrs S and Mr B refute the evidence of Mrs Y. Her report was co-written by her colleague from whom I did not hear, but I was concerned by [the mother's] evidence in court that Mrs Y had given untruthful and a deliberately biased report. On the contrary, I was impressed by Mrs Y's clear and objectively balanced evidence. I am satisfied that Mrs Y carried out an entirely professional investigation, untainted by bias."
[22]All that said, I would accept Miss Barbara Mills' submission that the conclusions reached by Miss M - and I emphasise that they must be regarded as provisional until the conclusion of the grievance proceedings - go essentially to procedure, method of work, and technical requirement rather than substance. I remain concerned as to why Miss Y did not direct the judge to the significance of the pending criminal proceedings which would at least have helped the judge to perceive the importance of clear findings in family proceedings on the allegations of domestic violence once the criminal trial had been abandoned.[23]The second strand of Miss Gibson's attack on the judgment is, to my mind, of much greater importance. How did the judge deal with this important issue of violence and harassment? In paragraph 10 of her judgment, she had noted:
"There is a high level of disagreement between Mrs S and Mr S over past arrangements for contact and the parties' history generally."
In paragraph 18 she recorded:
"Mr S claims Mrs S has made allegations [against her husband] concerning domestic violence to support her application to remove the children from the United Kingdom."
In paragraph 20, she noted that Mrs S is "strongly opposed to direct contact between S, L and their father on the grounds of Mr S's past behaviour." But coming to paragraph 40, where

the judge is in the territory of conclusions, she only says:

"A number of issues have been canvassed before me - many going to the credit of the parties. Whilst I bear all these points in mind in coming to my decision, I cannot make definitive findings in respect of each and every one. Time would not permit. Nor would it be useful for me to do so."
In relation to that I would only observe that this central issue of violence and harassment could not properly be categorised as a credit issue.[24]Then finally in paragraph 63 she says, correctly:
"I cannot make findings of fact in relation to Mr and Mrs S's past marriage difficulties; nor even the date of their separations and reconciliations."
[25]How did all this come about? It is difficult to answer that question, given the incomplete evidence that is before us as to the trial process. Mr Miller cannot explain it. Indeed in a sense he only deepens the mystery by emphasising that he too had asked the judge to make clear findings to clear his client and to establish that the allegations had been invented and brought in bad faith. The judge, Mr Miller tells us, was not referred to the crucial authority in this court, which is the case of Re L; Re V; Re M; Re H, which had been cited to us at [2000] 2 FLR 334.[26]The background to the listing of the appeals of L, V, M and H is worth recording. Research had suggested - specifically research conducted by Professor Bailey Harris reported at 1999 International Journal of Law Policy and the Family - that solicitors and district judges in their daily work in the field of contact concentrated on future arrangements and discouraged the ventilation of past history. Independent research demonstrated that children are seriously harmed by witnessing family violence and that violent families used the opportunity created by contact to continue abuse.[27]During the period January 1996 to May 1997 there was little evidence of any shift of judicial approach, and therefore outcome, in cases involving domestic violence. Accordingly, the Children Act subcommittee of the Lord Chancellor's Advisory Body chaired by Wall J (as he then was) had conducted an investigation and produced a report which included clear guidelines to ensure that, in future, issues of domestic violence would not be minimised in contact proceedings. Accordingly, a group of four appeals, all involving issues of domestic violence within the context of contact applications, were assembled, and the court received a report by two well-known experts in the field of child psychiatry, Drs Sturge and Glaser. The broad effect of the judgments in Re L was summarised by Waller LJ at the conclusion of his brief judgment as follows:
"(2) the effect of children being exposed to domestic violence of one parent as against the other may up until now have been underestimated by judges, and advisers alike; (2) it follows that alleged domestic violence is a matter that ought to be investigated, and on which findings of fact should be made because if it is established, its effect on children exposed to it, and the risk to the residential carer are highly relevant factors in considering orders for contact and their form; (3) in assessing the relevance of past domestic violence, it is likely to be highly material whether the perpetrator has shown an ability to recognise the wrong he ... has done, and the steps taken to correct the deficiency in the perpetrator's character."
That last point picks up the paragraphs in the CASC guidelines to this effect:
"(d) the capacity of the parent seeking contact to appreciate the effect of past and future violence on the other parent and the children concerned; (e) the attitude of the parent seeking contact to past violent conduct by that parent; and in particular whether that parent has the capacity to change and/or to behave appropriately."
I only conclude my citation from Re L by referring to the judgment of the President, Dame Elizabeth Butler Sloss, who said:
"341. There are however a number of general comments I wish to make on the advice given to us. The family judges and magistrates need to have a heightened awareness of the existence of and consequences (some long term), on children of exposure to domestic violence between their parents or other partners. There has, perhaps, been a tendency in the past for courts not to tackle allegations of violence and to leave them in the background of the premise that they were matters affecting the adults and not relevant to the issues regarding the children. The general principle that contact with the non-resident parent is in the interests of the child may sometimes have discouraged sufficient attention being paid to the adverse effects on children living in the household where violence has occurred. It may not necessarily be widely appreciated that violence to a partner involves a significant failure in parenting - failure to protect the child's carer and failure to protect the child emotionally. In a contact or other s 8 application, where allegations of domestic violence are made which might have an effect on the outcome, those allegations must be adjudicated upon and found proved or not proved. It will be necessary to scrutinise such allegations which may not always be true or may be grossly exaggerated. If however there is a firm basis for finding that violence has occurred, the psychiatric advice becomes very important. There is not, however, nor should there be, any presumption that, on proof of domestic violence, the offending parent has to surmount a prima facie barrier of no contact. As a matter of principle, domestic violence of itself cannot constitute a bar to contact. It is one factor in the difficult and delicate balancing exercise of discretion. The court deals with the facts of a specific case in which the degree of violence and the seriousness of the impact on the child and on the resident parent have to be taken into account. In cases of proved domestic violence, as in cases of other proved harm or risk of harm to the child, the court has the task of weighing in the balance the seriousness of the domestic violence, the risks involved and the impact on the child against the positive factors (if any), of contact between the parent found to have been violent and the child. In this context, the ability of the offending parent to recognise his past conduct, be aware of the need to change and make genuine efforts to do so, will be likely to be an important consideration. Wall J in Re M (Contact: Violent Parent) [1999] 2 FLR 321 suggested at 333 that often in cases where domestic violence had been found, too little weight had been given to the need for the father to change. He suggested that the father should demonstrate that he was a fit person to exercise contact and should show a track record of proper behaviour. Assertions, without evidence to back it up, may well not be sufficient."
Given that the decision of this court in those combined appeals introduced from that date an entirely reformed practice for the courts of trial, obliging the courts of trial to investigate, sometimes as a preliminary issue, disputed allegations of domestic violence and harassment, I find it difficult to understand how the present case, a mere four-and-a-quarter years later, could have been conducted as though the Court of Appeal had never spoken on the issue. It is for me the most serious deficiency in the trial process in this case and the most impressive of Miss Gibson's criticisms.[28]That leads me to an obvious dilemma: how should the present case be resolved? Against that the proven flaws is the powerful consideration that the deficiency was manifest from the date of judgment, the mother had the opportunity to apply within due time (14 days) for permission to appeal, and no application was mounted. There is no explanation for that, and again Miss Gibson is in a difficulty, since she comes into the case afresh. The delay is compounded by the fact that even when Miss M reports on 15 July there is no application to the court. Tellingly, the mother's first approach to this court comes six days after the judge had conducted her second investigation and laid down a pattern for continuing and expanding contact by an order of 23 September. Delay of that length and that character is impossible to overlook and difficult to mitigate.[29]There are these further considerations. The mother's application for permission to relocate is only indirectly affected by the defect in judgment that I have emphasised. In any event, it was an application that hardly stood on strong ground at initiation; and whatever ground it stood on then has been eroded by subsequent events and the considerable professional investment in the development of the relationship between the children and their fathers. Furthermore, the established defect simply does not bear on the judge's conclusions and orders in relation to R.[30]This dilemma is, in the end, best resolved by granting the mother permission, given the importance of emphasising the obligation on the trial judge to adhere carefully to the guidelines from this court in the conjoined appeals, but to dismiss the consequential appeal, essentially on the ground that the welfare of the children prohibits a return to an unlimited retrial.[31]However, there is no inhibition on setting a clear task for the court to investigate at the first opportunity, albeit belatedly, the case of violence and harassment that has as yet received no judicial determination either in criminal proceedings or in family proceedings. That is important because the management regime adopted in November 2004 and expanded in September 2005 may rest on sandy foundations. However, we will hear argument in due course as to the mechanisms by which that deficiency in the trial process can be made good.

LORD JUSTICE RIX: I agree.

LORD JUSTICE WILSON: I also agree. (Application granted; appeal dismissed; assessment of parties' publicly-funded costs).

Cited in 26 later judgments

and 17 more of the most senior