W (Children) [2007] EWCA Civ 753

Case No B4/2007/0925[2007] EWCA Civ 753
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BRADFORD COUNTY COURT
(HIS HONOUR JUDGE BARRY)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Wednesday, 4 th July 2007
Before
LORD JUSTICE THORPEMR JUSTICE BENNETT
IN THE MATTER OF W (Children)
(DAR Transcript of
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Miss J Thomas (instructed by Messrs Williamsons) appeared on behalf of the Appellant.
Miss K Goss (instructed by Messrs Brooke Williams) appeared on behalf of the Respondent.
Judgment
[1]On 17 April 2007 Deputy Circuit Judge Barry heard the father’s application for contact to his two children, L and D. The upshot was that his application was refused. That meant that the father was not going to have contact with the children other than indirect contact of Christmas cards, Easter cards, birthday cards and two additional letters per annum, which were to be sent via CAFCASS.[2]The father was, and is, dissatisfied with that order and applies to us for permission to appeal. The matter was considered on paper by Wall LJ, who made an order that this application for permission should come on speedily and if permission was granted for the appeal to be heard there and then. In the course of his reasons he said that it was difficult to challenge a discretionary decision by an experienced judge who had heard all the evidence. He continued:
“However, it may be arguable that the CAFCASS assessment was too superficial and that the termination of direct contact between the father and children was premature. In short, that the judge had given up too soon and had not sufficiently explored the alternatives. The father should, if possible, come to court armed with practical proposals for the resumption of contact, including proposals to reassure the children that there will be no repetition of the type of incident they described to the CRO.”
[3]The background to this case is that the mother has three children from a previous relationship aged 15, 13 and 10. The parties met as long ago as 1997. On 24 August 1998, L was born. In 2000, the parties married. On 8 October 2002, D was born. Unfortunately, the marriage foundered and in April 2005 the parties separated. They were, at the time, living in Hull.[4]Contact was set up between the father and L and D. In November 2005 the father applied to the court for a contact order. In December 2005 there was a directions hearing. A contact order was made in respect of not only L and D, but also to the other three children to whom I have referred, providing for contact each Saturday for 8 hours and Boxing Day for 8 hours.[5]In March 2006 there was a review hearing at the County Court at Hull. A consent order was made for alternate weekend contact from 4.30 pm of Saturday until 6.00 pm on Sunday, and on intervening weeks from midday Sunday until 6.00 pm. That contact continued until June 2006 when it came to an abrupt end. There has been no contact between father and the two children since then.[6]It is also right to mention that the mother felt compelled, post-separation, to issue proceedings for non-molestation. Orders were made. There were, during 2005, allegations of breach. In October 2005 a non-molestation order was made to continue until 24th October 2006. In November 2005 allegations were made by the mother as to the breach of that order. The matter came before the Hull Country Court on 15 November, when the matter was adjourned and the father was remanded in custody.[7]On 22 November there was a hearing when the judge imposed a six-month sentence of imprisonment suspended for the life of the injunction order, i.e. until October 2006 for breaches that the judge obviously found proved. He found proved that the father had spat in her face and that he had pinned her to the wall and slapped her face, injuring her.[8]In June 2006 the mother applied to vary the contact order, on the basis that the father drank too much, made threats, was aggressive. This had taken place in the presence of the children which had led them to become frightened of the father. One further piece of history that it is necessary to mention that in April 2006 the father fractured his leg. The mother nevertheless agreed to take the children to see the father, but as I have said, in June the contact came to an end.[9]The father, in July, applied to the court to enforce the contact order. Directions were subsequently made for the finding of the evidence. On 24 August the case was transferred to the Bradford County Court because the mother and the children had by then moved to Bradford. A CAFCASS report was ordered. In the meantime the father was to have indirect contact by way of cards and letters.[10]Very regrettably, the report of the CAFCASS Officer, Mr Froggatt, did not become available until 16 February 2007. The report makes it plain that the father was only interviewed once by Mr Froggatt, the Children and Family Reporter, i.e. in December 2006. Thereafter, he interviewed the mother. He went to the mother’s home and met the children. He interviewed all five children in the CAFCASS office and the day before his report was signed off he had a further interview with the mother.[11]The father makes complaint with, I have to say, some justification, that the father’s position about the breakdown, and more importantly about his relationship with the children, does not seem to have been given the attention that it deserved in Mr Froggatt’s report. Mr Froggatt, as I have said, saw the children and he reported that the children expressed considerable opposition to seeing the father. There was not, or does not seem to have been, any analysis or evaluation of whether or not contact could be restarted by some form of supervised contact.[12]When the matter came for hearing in front of the deputy circuit judge, Mr Froggatt gave evidence first and was cross-examined by Mr Lee, the solicitor appearing for the father. Miss Goss, on behalf of the mother, has shown us passages in his cross-examination where it is clear that Mr Froggatt was asked of his views about supervised contact. He said that he thought that the children would be absolutely opposed to contact. However, speaking for myself, I have to say that it would seem to me that it was only at that stage that Mr Froggatt really began to think about the question of having the contact supervised so as to try and lessen any anxiety on behalf of the children, and thus to try and restart the relationship between father and children which had abruptly come to an end in June 2006.[13]The judge had a difficult task, particularly when faced with the apparently acute anxieties of the children to have contact with their father. The judge felt himself driven to decide upon the evidence that he had, particularly from Mr Froggatt, that direct contact would not be in the best interests of the children.[14]Miss Thomas, who now appears for the father, took on board the observations of Wall LJ in his reasons for adjourning the matter for an oral hearing and has produced for us some documentation of an organisation in Bradford called Families Forward. This is a not-for-profit organisation, dedicated to assisting children to cope with the impact of family breakdown. It offers a contact service with additional support for children and their parents and the wider family.[15]Furthermore, and it may be of considerable importance in this case, it offers help and guidance to reduce, if not eliminate, anger in one of both parents of children where the relationship has broken down. In this case that may be of some considerable importance, due to the anger shown by the father towards the mother which formed the basis of the suspended committal order.[16]The documentation that we have suggests that Families Forward would undertake ten sessions, having done all the necessary introductory work, and that the approximate cost, including a report at the end, would be just under £2,500. Miss Thomas has told us that her client is publicly funded. The mother is not, but the Legal Services Commission, we are told by Miss Thomas, will fund the cost of a referral to Families Forward.[17]In my judgment this puts the case in a different light than it was before the deputy judge. He did not have the advantage of being told about Families Forward and thus was not in the position that we are in today to see if there can be some forward movement to restore the relationship between the father and the children. Of course to endorse any referral to Families Forward is not in any way to compel that organisation to set up contact between father and children, if it is concluded by them that it would not be in the children’s best interests. Speaking for myself, it does seem very much to be in the children’s interests, and indeed in the interests of their parents, to see whether or not it is possible for the relationship which endured between father and children up to June 2006 could be restored in some way.[18]Miss Thomas has made clear to us today that the most that she would seek would be such a referral, and before us she is not seeking that there should be an order for contact such as prevailed before June 2006. It seems to me to be desirable that this option -- which I repeat was not available before the deputy judge -- should be explored by Families Forward, who, on the literature that has been produced, would seem to be ideally suited to undertake the necessary work. Accordingly, for those short reasons, I would grant permission to appeal, allow the appeal and make the appropriate referral to Families Forward.[19]I agree that this appeal should be allowed to the extent indicated by my Lord, Mr Justice Bennett, and for the reasons which he has given.

Order

Application granted. Appeal allowed.