D (Children), Re [2009] EWCA Civ 1551

Case No B4/2009/1467[2009] EWCA Civ 1551
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
PRINCIPAL REGISTRY OF THE FAMILY DIVISION
(MR JUSTICE COLERIDGE)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Wednesday, 29 th July 2009
Before
LORD JUSTICE THORPELORD JUSTICE SCOTT BAKERLORD JUSTICE WALL
Between
Appellant motherAppellantRespondent fatherRespondent
IN THE MATTER OF D (Children)
(DAR Transcript of
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Mr R Tolson QC (instructed by Sitters & Co) appeared on behalf of the Appellant mother.
Mr C Sharpe QC (instructed by Messrs Battrick Clark) appeared on behalf of the 1 st Respondent father.
Miss C Willbourne (instructed by Messrs Hughes Paddison) appeared on behalf of the 2 nd and 3 rd Respondents, the paternal grandparents.
Mr D Boyd (instructed by the National Youth Advocacy Service) appeared on behalf of the 4 th and 5 th Respondents, the children represented by their Guardian ad Litem.
Judgment
[1]This is an appeal brought with the judge’s permission from an order which Coleridge J made in Exeter on 2 July. Within his order is a provision curtailing the time within which the first respondent mother was to lodge her notice of appeal. The rules provide for a period of 21 days and the judge reduced that to a period of 5 days. The judge was anxious that this court should understand the basis on which he granted permission. Accordingly, he ordered that a transcript of his reasons, which had been orally stated, be prepared at public expense and expedited.[2]Here we are some 27 days later without the transcript, and Mr Sharp QC who appears for the father, respondent to this appeal, has made enquiries with the depressing result that the transcript was apparently sent from Exeter to Plymouth, for what purpose it is hard perceive since Plymouth simply sent it back to Exeter, and there, as Mr Sharp put it, the trail goes cold.[3]Mr Sharp within his skeleton has recorded his recollection of the judge’s words to this court that his grant was not intended to indicate any doubt as to the correctness of his order nor to give any encouragement to the appellant. It was given solely to expedite the process of appeal and to ensure that finality would be achieved in the shortest possible time. Colloquially, he apparently said that he was anxious that this case should ‘jump the queue’ in the Court of Appeal. The judge’s objective has most evidently been achieved. We have the grounds, we have the notice of appeal filed on mother’s behalf and sealed just a day out of time, and we have Mr Robin Tolson QC’s very full skeleton argument, with careful skeletons in response from Mr Sharp, from Miss Willbourne, who represents the grandparents, and from Mr Boyd, who represents the Guardian ad Litem.[4]The case before the judge in Exeter was one of unusual difficulty and complexity. The judge records how time and time again the court hours allotted had proved inadequate and the case had followed him about the circuit, sometimes being heard in Exeter or in Plymouth or in Winchester and on one occasion in London. So some 11 days of judicial time had been allotted to the hearing before the judge came to give his judgment on 2 July.[5]The case had reached the list of the western circuit liaison judge on a direction from HHJ Wassall, who conducted two hearings consuming 12 days of court time and producing two careful reserved judgments.[6]This was a case in which the essential family consisted of the parents, to whose marriage were born two boys, one now aged 11 and the other just 8, but there was an older child, a girl, the child of the mother and thus the stepdaughter of the father. At the age of 15 the stepdaughter had complained to a school friend that she had been sexually abused over a long period by her stepfather. That resulted in routine child protection enquiries which led to a criminal trial, at the end of which the jury after much deliberation acquitted by a majority verdict.[7]Judge Wassall was therefore concerned to establish facts within the family proceedings. He came to the clear conclusion that the father had seriously sexually abused his step daughter over a prolonged period of time, but he had not abused sexually either of the sons, contrary to the settled belief of their mother. That led Mr

Justice Coleridge to say in paragraph 24 of his judgment:

“Neither the father nor the mother accept the judge’s findings except in so far as they agree with them. The father continues to deny his treatment of [his stepdaughter]. The mother is as firm as ever in her conviction that [T], and probably [N], have been abused as well. In my judgement, the single most influential factor which has driven the case to its present impasse is the refusal by either side to accept the judge’s most careful and considered findings and so work with them.”
[8]This intransigence had led to a number of contact orders, contact of the two sons and the father, which had been obdurately disregarded by the mother. So that was the intractable problem that the judge had to resolve. At a comparatively early stage he brought in Dr Hamish Cameron, a child and adolescent psychiatrist, and NYAS, the National Youth Advocacy Service, to replace the CAFCASS guardian. Each of them filed reports in which they clearly indicated, as the least damaging future management of the children, that they should move from the primary care of their mother to the primary care of their paternal grandparents. Each in their respective reports did not seem to place much weight upon the history of the father’s aggravated sexual abuse of his stepdaughter, perhaps for the reason that the application did not in any way extend to her, then some 19 years of age, but was limited solely to contact with his own children who of course he had been found not to have abused.[9]Of course the acceptance of these opinions was not easy for the mother, who understandably traced all her family difficulties to the chronic abuse of her own first born. At a later stage there had been instructions sent to another well known child and adolescent psychiatrist, Dr David Jones, and his contribution to the case was to put much more emphasis on the serious ingredient of sexual abuse, and accordingly the judge when he came to try the case had some divergence of expert opinion from two very distinguished experts.[10]For reasons which the judge set out with clarity, he concluded that things had reached such a pitch that the two sons could not for the future be left in the primary care of their mother for the very simple reason that she could not rid herself of the conviction that they had been sexually abused by their father, and she was inevitably consciously or unconsciously contaminating the boys with this false belief. However, the judge in the end resolved not to make an immediate transfer of care or residence, but to say that the residence order in favour of the grandparents should be suspended so long as the mother complied with a pattern of contact which was specified in general but not in fine detail in his order. It is important to emphasise that in respect of the father’s application for contact, the judge concluded that there should be no direct contact at all until further order. He permitted in the interim some indirect contact and adjourned for review the issue of future direct contact between father and the boys. Mr Sharp has, this afternoon, managed to fix that review hearing for 4 December, and the parties have agreed to expand the order made by the judge below to direct a further report from the Guardian ad Litem in time for that hearing.[11]In one sense it could be said that the outcome for the mother was much less dire than might have been. She has achieved the judicial order that there should be no direct contact between father and the two sons. She has retained their primary care subject to ensuring the delivery of the contact pattern between the boys and grandparents. That was not such a pill to swallow given the fact that there had been some interim contact between the boys and their grandparents, including an overnight stay which had gone tolerably well. Clearly the judge was anxious that there should be finality in this case, and that is the single reason why he set out a procedural timetable to ensure that finality would be achieved by order of this court before the end of the current Trinity Term.[12]Given that introduction, the task facing Mr Tolson as the mother’s leading counsel was formidable. The judge had taken a middle course which was ingenious and clearly reasoned. The judge had for reasons stated preferred the recommendations of Dr Cameron and the NYAS Guardian to the recommendations of Dr Jones. The judge had preferred the opinion of Professor Grubin to that of Dr Jones as to the evaluation or assessment of the gravity and consequences of the sexual abuse of the stepdaughter. So Mr Tolson in his grounds was driven to assert that broadly speaking the judge had breached an impermissible conclusion. The judge was plainly wrong. The judge had failed to weigh a fundamental flaw in the grandparents’ application resulting from a significant change in their litigation stance as the case approached finality. Mr Tolson also argued the judge had failed to apply conscientiously and expressly the welfare checklist contained in section 1(3) of the Children Act 1989.[13]No one could have advanced the mother’s case with greater skill and commitment than Mr Tolson, but if ever there was a case of an advocate seeking to make bricks without straw it was just this case. I fully understand the judge’s confidence that the order which he had crafted was manifestly within the wide ambit of his discretion. Mr Tolson says that this form of conditional residence order, to be triggered only by a breach of a contact order, is unique in the reported cases and impermissible. The judge should have dealt with the situation as a contact application to be tackled within the wider enforcement powers brought in by section 11 of the Adoption and Children Act 2002 that had its commencement during the course of this prolonged trial.[14]I reject that submission. The enhanced measures to be found in section 11 would have been completely inadequate to meet the extreme situation that had developed in this family.[15]Mr Tolson under his second ground attacks the judge’s preference for the opinion of Dr Cameron and the NYAS Guardian over that of Dr Jones. That is a submission that is difficult given that the judge had explained himself in that respect quite clearly. He rejected Mr Tolson’s attack on Dr Cameron’s reports and the report of the NYAS Guardian. He in paragraph 95 said:
“I reject all [Mr Tolson’s] criticism of those experts who have explored this case from every angle and have been acutely conscious of the genesis of the difficulties whilst not allowing that to overrule. Their assistance I have found invaluable and, in the end, highly influential to my eventual decision.”
[16]In relation to the necessary choice between the competing recommendations, again the judge explained clearly, as I read the judgment, the basis of his preference. He was extremely complementary about Dr Jones’s contribution but added:
“However, his involvement in the case over a far shorter period than Dr Cameron and Mrs Provan I think circumscribed his ability to fully consider the practicalities of his suggestions for the way forward. He had seen none of the parties give evidence whereas they had been in court throughout. His views seem to adjust as the hearing proceeded and as the painful realities were driven home to him in oral evidence.”
[17]In the face of that Mr Tolson was obliged to submit that these explanations contained in paragraphs 95 and 88 of the judgment were simply all too brief and did not sufficiently focus on the recommendations that Dr Jones had individually advanced.[18]As to his complaint, ground 3 the shift in the grandparent’s case, we have ascertained from Miss Willbourne that she had indicated to the judge as the case slowly evolved that the grandparents were indeed extending their offer from a short-term bridging placement to a placement of indefinite duration. That came after they had given their evidence, but it seems to me it cannot be made the basis of any complaint since Mr Tolson obviously had the opportunity to seek their recall to enable him to put to them that at their age they simply had not the resources to deliver indefinite care. The judge was in no doubt of the capability of the grandparents. He had considered that at paragraph 47 of his judgment, and at paragraph 120 of his judgment he concluded:
“…I have complete confidence in the grandparents’ ability to handle the situation both practically and emotionally. Plans following their removal and establishment at their grandparents are sound and properly and fully considered. They are able to support the boys through the handover and manage contact.”
[19]Mr Tolson’s grounds 4-11 can be rolled up as an assertion that the judge did not properly conduct the balance that section 1(3) of the Act requires. That argument does not run with me. In paragraph 106 the judge said:
“I have fully in mind all these factors mentioned in the welfare checklist which have been exhaustively canvassed during the hearing.”
[20]Perhaps it is in the final ground of Mr Tolson’s appeal that I concluded that he made most headway:
“The judge’s treatment of the sexual abuse perpetuated by the father upon the children’s half-sister was inadequate. The judge should (i) have accepted the central importance of the issue to the case; and (ii) should not have accepted Professor Grubin’s opinion, in particular that the abuse was the product of difficulties within the father’s marriage to the mother. Generally, the approach of Dr Jones to this issue should have been preferred.”
[21]But dividing that ground in two parts, the second part, to the effect that the judge should have preferred Dr Jones to Professor Grubin, again in my judgment does not run. That was entirely a matter for the judge. He made his choice and he explained it. I do think, however, that there is some mild criticism of the lack of emphasis within the judgment of the huge importance of the impact of the sexual abuse perpetuated by the father on his stepdaughter over an extended period of six years, all achieved by a process of concealment which must have been extraordinarily difficult for the child emotionally. The judge was highly critical of the mother’s stance in relation to the two boys and there was much material to justify his criticism, but perhaps perfection would have seen a greater acknowledgement of the impact of that abuse upon the mother as well as upon her daughter. It must inevitably mitigate any criticism of the stance that she has adopted in relation to her own sons. But although that criticism may be made good by Mr Tolson, it does not seem to me to bear upon the outcome of the appeal given that what the judge was considering was the least damaging management for the future only of the two sons and given that he was excluding direct contact between father and sons by virtue of his order.[22]So for all those reasons I would dismiss this appeal.[23]I agree that this appeal should be dismissed for the reasons given by my Lord. The mother has been given a lifeline by the judge which she would be well advised to take in her interests and in the interests of her boys. It is in my view imperative that she complies faithfully with the contact order made by the judge. If she fails to do so and in consequence loses the residence of the boys, this, as experience has shown in other cases, could have a disastrous effect on their relationship with her as they grow up to adulthood and beyond.[24]I also agree that this appeal must be dismissed. Like my Lord, I was concerned about the criticism legitimately made by Mr Tolson in relation to paragraph 12 of the grounds of appeal, which my Lord, Thorpe LJ has read and which I will not repeat. That caused me over the short adjournment to re-read the judge’s judgment, and having done so I do notice that he makes a number of observations which are in fact critical of the father. Before I turn to them, the order is of course that the father should only have indirect contact with the boys. The prospect of contact by the father to the boys is not, as the judge put it in paragraph 6 of his judgment, risk-free. That is an issue which he is going to have to consider in December.[25]In paragraph 1 of his judgment the judge refers to there being wrongs on both sides. In paragraph 5 he refers to the father being causative of the underlying, deeply-felt hatred felt by the mother for him, and is very far from blameless. Slightly later on he refers in terms to what happened to SB, the father’s stepdaughter. He describes her as central to the determination of the issues in the case because it was her allegation of sexual abuse which led in 2005 to the immediate cessation of contact by the father to his sons. He refers in terms to the hearings before Judge Wassall, to which I will go back in a moment, and he refers in terms to the findings which Judge Wassall made in relation to sexual abuse. He goes on to say:
“Neither the father nor the mother accepts the judge’s findings except in so far as they agree with them. The father continues to deny his treatment of [SB]. The mother is as firm as ever in her conviction that [T], and probably [N], have been abused as well. In my judgement, the single most influential factor the judge says which has driven the case to its present impasse is the refusal by either side to accept the judge’s most careful and considered findings and so work with them.”
[26]However, perhaps the most important reference which

the judge made comes in paragraph 49 of his judgment when he says this:

“Any appraisal of the mother has to start from the fact that she has had to come to terms with the serious sexual abuse of her daughter by the father. Not to make full allowance for that is to overlook the main driver of her attitude and in human terms would be very unfair to her. I have always had it in the front of my mind when dealing with this case. And Mr Tolson QC has repeatedly and rightly emphasised this to me.”
[27]In my judgment that is a clear acknowledgment by the judge of the importance of the issues of the case as is his cross-reference to Judge Wassall’s judgments, both of which of course I have read. It was undoubtedly disgraceful conduct on the father’s part, over a period of some six years, sexually to abuse his step daughter in the way that he did, and the judge in my view was quite right to describe the question of contact by the father to his sons as not free from risk. And when the judge comes to consider the matter in December, a matter which the mother will live to fight again if she wishes to, he will have to balance very carefully various factors including whether or not the father does now genuinely accept the findings of the judge and whether the father genuinely has any form of contrition for the undoubted wrong he has done his stepdaughter. Those are all factors which the judge will have to weigh. The focus of the judge’s enquiry, as my Lords have pointed out, was not on SB, it was on the two boys and the equally irrational belief by the mother that the father had sexually abused both of them. The psychiatric evidence was in my view virtually unanimous. This is immensely damaging to two young boys. To be brought up to believe that their father has sexually abused them when he has not done so is immensely damaging.[28]As my Lord, Scott Baker LJ wisely pointed out a moment ago to the mother, the judge in fact could have made a much more draconian order. He has in fact given her a lifeline, and I hope very much that when she comes to reflect on our judgments when she sees them, no doubt, in writing, she will realise that that is what the judge has indeed done and that she has the opportunity, should she wish to take it, to keep the boys in her care and control. Nothing whatsoever can be said against the boys’ paternal grandparents, save in the mother’s eyes that they are the parents of her former husband. There is absolutely no reason why the children should not have contact with their grandparents, and indeed every positive reason why they should. That is a factor which both psychiatrists regarded as central to the case overall.[29]So the mother has been given a lifeline and, like my Lord, Scott Baker LJ, I hope very much that she takes it. That said, it seems to me that the judge was wrestling with a very difficult case and came to a conclusion which was entirely permissible. In cases like this judges have choices. They can either do nothing, wash their hands of the case and let the case go its way or they can intervene. In a finely balanced case of this nature it seems to me quite hopeless for this court to seek to second guess the judge’s views, and since the judge has reached a conclusion which he has justified and explained, it is one with which in my court this court could not even begin to interfere.[30]Therefore, for those reasons in addition to those given by my Lords, I would dismiss the appeal.

Order

Appeal dismissed

Cited in 3 later judgments