K (Children), Re [2011] EWCA Civ 1064

Case No B4/2011/0346[2011] EWCA Civ 1064
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BROMLEY COUNTY COURT
HER HONOUR J ATKINSON
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Wednesday 20 th July 2011
Before
LORD JUSTICE MUMMERYLORD JUSTICE LLOYDMR JUSTICE MCFARLANE
In the matter of K (Children)
(DAR Transcript of
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Mr Andrei Szerard (instructed by Ewings and Co Solicitors) appeared on behalf of the Appellant.
Ms Gemma Taylor, Mr Mark Love and Mr Mark Twomey (instructed by LB Bromley) appeared on behalf of the Respondents.
Judgment
[1]This is an appeal from an order made by HHJ Atkinson sitting in the Bromley County Court on 25 January 2011. It affects three children and their mother and their father. The appeal hearing has been conducted without mentioning the surnames of anybody, and plainly, in addition to the ordinary order for anonymity that will follow from this judgment, nothing is to be said which would identify these children as being involved in these proceedings.[2]The order that is appealed by the children's father is in short terms. It is as follows:
"There be no direct contact between the father [and he is named] and the three children."
[3]The background behind the generation of that order, however, is substantial, complicated and fully rehearsed in the papers. In short terms, the three children, N, a boy born in August 2003 and therefore aged seven-and-a-half at the time of the hearing; A, a girl, born in January 2006 and therefore aged 5 at the time of the hearing; and C, another girl, born in October 2009 and therefore just over 1 at the time of the hearing, are the children of HK, their mother, and MK, their father.[4]The background to the cause for concern about the welfare of these children arises entirely from the very substantial and lengthy history of offending by the father. The offences to which I refer are sexual offences against children and/or offences involving him more latterly accessing pornography that relates to children. The offences date back to the mid 1970s when he was convicted of actual assaults, a number of them extremely serious, on young children, the youngest child being 8. He went to prison in 1983 for a substantial term of imprisonment and he was a registered sex offender from 1997 to 2002.[5]Towards the end of that period the father met the mother in the year 2000 and it is the case that she was apparently unaware of any of his offending until matters came to light, as I will describe, in years that followed. The eldest child, N, was born in August 2003; the couple married in September 2004.[6]Matters of a sexual nature came to light in October 2008 when the father was arrested on suspicion of possessing or downloading indecent images of children, and in December of that year a Sexual Offences Prevention Order was granted in respect of him which required him to be separated from his own children save in some limited circumstances and, as I would understand it, from other children. He left the family home at the time these matters came to light in early October 2008. He has not returned to live there since that time.[7]There were breaches of the Sexual Offences Prevention Order which brought the father back before the criminal courts and in the event he was sentenced to a short period of imprisonment in June 2009, but the proceedings which led to this matter coming before HHJ Atkinson in the county court only began in November 2009 when the local authority for the area in which the family lived instituted public law proceedings under Section 31 of the Children Act, and the core reason for doing so was because of an apprehension that the local authority had that the mother failed to understand the seriousness of the father's offending behaviour and the consequent need to protect her children from him.[8]The proceedings took a deal of time to process through the county court, but by the time they came on for final hearing before HHJ Atkinson in January of this year matters had really distilled down to one important and substantial issue, namely the father's contact and matters to do with the establishment of the threshold criteria of significant harm and indeed the outcome for the children in terms of where they should be placed were not really controversial or requiring of a detailed judgment at that stage. I will refer to those briefly, therefore. The threshold criteria were established on the basis of the father's offending, and the outcome for the children was to continue to reside with their mother but that should be under the terms of a supervision order for a period of 12 months. No appeal is brought by any party in relation to those matters.[9]The appeal, as I have indicated, relates to the judge's order that there should be no contact between the father and the children. Because the public law proceedings had effectively come to an end that was, although not expressly stated to be so, an order under Section 8 of the Children Act on the one hand prohibiting the father from having contact and on the other hand making it plain that the mother was not to arrange any contact between him and the children. The order is without time limit, but there is no embargo upon the father exercising his right as the children's father under the Act to apply for the issue of contact to be looked at again in the future.[10]The appeal focuses in obviously on the judgment of the learned judge. It is plain that that was an extempore judgment given at the end of a hearing which, as I would understand it, had lasted for one or two days, during which the learned judge had heard oral evidence from both parents but also from a psychologist, from the social worker and from the children's guardian. In the course of the judgement the learned judge summarises the father's offending behaviour and the various risk assessments that had been provided to the court either directly through the psychologist or indirectly as a consequence of the criminal proceedings. It is not necessary for the purposes of this judgment to refer to the detail of those assessments and no point is taken by Mr Szerard on behalf of the father in relation to those matters.[11]The decision for the judge as to the father's contact was plainly a most difficult determination. She described the case as finely balanced, and in doing so adopted the wording of the children's guardian who had categorised it in the same terms in the course of her evidence. The local authority had, at the start of the hearing, favoured some direct contact, albeit supervised, taking place between the father and the children, but they, upon understanding the guardian's final position, had amended their care plan so that they stood alongside the guardian and the mother in urging the court not to order any direct contact.[12]The appeal mounted on behalf of the father is on the clear basis that the judge conducted the balancing exercise erroneously and came to a conclusion which was outside the range of reasonable outcomes that a judge appraised of all the material in the case could have determined. It is accepted that the learned judge correctly summarised the legal approach that she had to adopt, and it is accepted that in conducting the balancing exercise she identified each and every factor that should go into the balance on the one side or the other. So the appeal is put on the basis therefore of the weight that she attributed to each and every aspect of the case.[13]A further and separate matter that is raised on behalf of the father is that in the closing stages of the case, in the light of the guardian's developing evidence, the father had requested the court to adjourn the hearing so that a child and adolescent psychiatrist could be instructed to advise the parties and the court as to the way forward, both in terms of appraising the children of the father's circumstances and the reason behind limited contact, if any, being afforded between father and children, and also to advise the court upon whether or not any direct contact should take place. That application was considered by the judge and rejected, and it is now one of the matters raised by Mr Szerard in the course of his appeal.[14]Before turning to the learned judge's approach it is helpful to remind myself of the approach generally to issues of contact and in particular decisions which may lead to the court refusing contact between a parent and child, and in doing so I turn gratefully to the judgment of Munby LJ in the case of Re C (a child) [2011] EWCA Civ 521. In the course of his judgment, having reviewed the relevant domestic and Strasbourg jurisprudence at paragraph 47, Munby LJ summarises the position in six bullet points as follows:
“47. I do not propose to add to the jurisprudence or to attempt to state in my own words what has already been so clearly said by others. All I need do is to extract from the case-law to which I have referred the propositions upon which Mr Scott-Manderson places particular reliance: • Contact between parent and child is a fundamental element of family life and is almost always in the interests of the child. • Contact between parent and child is to be terminated only in exceptional circumstances, where there are cogent reasons for doing so and when there is no alternative. Contact is to be terminated only if it will be detrimental to the child's welfare. • There is a positive obligation on the State, and therefore on the judge, to take measures to maintain and to reconstitute the relationship between parent and child, in short, to maintain or restore contact. The judge has a positive duty to attempt to promote contact. The judge must grapple with all the available alternatives before abandoning hope of achieving some contact. He must be careful not to come to a premature decision, for contact is to be stopped only as a last resort and only once it has become clear that the child will not benefit from continuing the attempt. • The court should take a medium-term and long-term view and not accord excessive weight to what appear likely to be short-term or transient problems. • The key question, which requires "stricter scrutiny", is whether the judge has taken all necessary steps to facilitate contact as can reasonably be demanded in the circumstances of the particular case. • All that said, at the end of the day the welfare of the child is paramount; ‘the child's interest must have precedence over any other consideration’.”
[15]For my part, I too would accept that succinct distillation of the current law, and it provides the context against which I now evaluate this appeal.[16]It is also plain that the judge, albeit in January, before Munby LJ's judgment was issued in May, approached the importance of maintaining a link between a parent and his children in similar terms, and I quote from her judgment at paragraph 71:
“I start from the premise that contact is in the best interests of the child and I should consider contact unless there are compelling reasons why there should be none; in the first place children have the right to a relationship with each of their parents; it is in their interests they should do so. As I have already observed however, because of the risks identified this father is not in a position to offer care for these children neither is he in a position to be able to have unfettered, unregulated and unsupervised face-to-face contact with them.”

The judge then goes on to look at the factors in the case.

[17]In dealing with this appeal I propose firstly to look at the discreet point that is made about the instruction of an expert, and I do so very much with Munby LJ's third and fourth bullet points in mind. The judge has a positive duty to attempt to promote contact and must look at any alternative available options before abandoning hope, and it is the submission on behalf of the father in this case that the court ought to, in January 2011, have adjourned to instruct a child and adolescent psychiatrist if necessary to meet the children and meet the parents, but at the very least to conduct a paper exercise to advise upon how the mother and these children are to cope with the very difficult task of transmitting and absorbing information about the father's past, either now or in the years to come and, secondly, alongside that and no doubt is a consequence of it, what the implications are for the children seeing the father in direct contact, again either now or in the future.[18]The learned

judge dealt with this at paragraph 60 of her judgment:

"I wondered whether I would be helped by further evidence from a child and adolescent psychiatrist and as a fall back position I was encouraged in that by the father, but on balance and on the advice of the guardian I have decided that I would not. As she rightly says, what could a child and adolescent psychiatrist tell me that I do not already know? It is right that he or she might be able to offer me his/her predictions about what might happen, but they would be no more than predictions. It is right that he or she might be able to tell me about experiences that he or she had had which would influence no doubt his/her views about the balancing exercise but at the end of the day it is I who have to carry out the balancing exercise, but at the end of the day it is I who have to carry out the balancing exercise and not the child and adolescent psychiatrist. What he could do is advise me on the theory and carry out what would be really no more than a paper exercise. The guardian is right: I have deal with the 'here and now' and what I know here and what I know now about these children."
So the judge did not adjourn the case to receive that expert advice and proceeded to conduct her own valuation.[19]On behalf of the father it is submitted that the judge was plainly wrong to take that course. The matter is put in these terms, that the difficulty for the children in understanding their father's past behaviour and the reasons why their relationship with him has to be curtailed to a high degree is going to have to be confronted at some stage in the not-too-distant future, and it was therefore important for the judge to have some professional understanding as to that process and the impact of it of contact before coming to her conclusion.[20]The parties other than the father are united in submitting that the judge was either right to reject the application for an adjournment to instruct an expert or, put more neutrally, certainly not "plainly wrong" in taking that course.[21]In evaluating this aspect of the case, I repeat that I have very much in mind the positive obligation on the state and therefore the judge to take measures to look to the reconstitution of the relationship between father and children if that is viable and in the children's best interests.[22]Having considered this aspect of the appeal keenly, and understanding as I do the need for some professional input at some stage in the future for the mother and the children to move forward in grappling with this very difficult task, I nevertheless take the view that the judge was within the exercise of her judicial discretion in coming to the conclusion that she did on this discreet topic. These children are young; the eldest, N, is still under the age of 8. The children, in order to have any understanding of the issues in this case relating to their father's behaviour, will need to be of an age that allows them to understand quite what it is that is being described to them. They will need to have an understanding of the nature of sexual relationships, albeit in a very basic way no doubt, and they will need to have an understanding of the impact of what they are being told may have for their relationship with their father and an understanding of why it may lead, as it does in the judge's view, to a substantial curtailment of their relationship with him.[23]It seems to me that the reference from the guardian picked up by the judge to the "here and now" points to that state of affairs and the very young age of these children. It would seem to me to be beyond contemplation that any process could start here and now to introduce the children to this sort of highly disturbing information. It has got to be a process which plays itself out, as it must do, in the medium to long-term, and indeed the guardian in her evidence offered the very round figure of the age of 10 as being the sort of age when the eldest child might begin to be introduced to this highly sensitive information.[24]The court has made inquiries as to what is going to happen if no expert is instructed now, and the family, especially the mother, are left to their own devices. Our attention has been directed to the addendum care plan which was before the judge which makes express provision to the availability on a referral basis of expertise in the local Child and Adolescent Mental Health Service being available to the mother and counsel, Mr Love for the local authority, has confirmed that this is the case. The mother will not need this court to urge her to turn to professional advice in the months and years to come, but it seems to me that it is impossible to characterise the judge's decision on this case management decision whether to adjourn or not to instruct an expert as plainly wrong; the judge it seems to me was entitled to the view that she was looking at matters now and making a decision as to contact now. This further step was not necessary and would not give her any fresh insight as to the issue of contact now in 2011. Had the children been older and had the task of introducing them to the information about their father been more imminent, then it may well be that the instruction of an expert would have been all the more pressing, but in 2011 that was not the case.[25]Turning therefore to the generality of the appeal, the matter is put on the basis of balance and, quite rightly on behalf of the father, the positives that exist in this case have been stressed by his counsel before this court as I am sure they were before the lower court. The relationship between the father and the children had been substantially curtailed from the time of his arrest, but until March 2009 he had been having weekly supervised contact with them, although following that date there had been only one or two clandestine meetings which themselves had come to an end in December of 2009. Since that time there had only been one contact session with the older children, that being on 14 June 2010, and consequently at the time of the hearing before the judge and now there had been an extensive period of no contact.[26]That visit in June had upset, he said, or confused the eldest boy, N. N obviously, through his age, has the closest relationship with the father and the greatest degree of memory of the father. He had had a good relationship with the father; he will have enjoyed seeing his father at that visit, but then the visit ended and he was not to see him again. He was confused, and that was a factor that played into the learned judge's judgment.[27]I am not going to take time now and rehearse all of the detailed evidence that the judge so carefully described in her judgment; I propose to turn to the balancing exercise that she undertook from paragraph 57 of her judgment onwards. She helpfully used the welfare checklist in Section 1 of the Children Act as the structure, and she recorded a number of positive aspects of the father's interaction with the children and their relationship with him in paragraphs 57, 58 and 59. Mr Szerard on behalf of the father says that in the course of doing that the judge effectively gave with one hand and took away with the other. He points to the positives that the judge rehearses at paragraph 57 in relation to the children's wishes and feelings and the positive relationship the older ones had with the father, but at the same time the judge refers to the father's offending behaviour and, submits counsel, the judge therefore did not give that positive aspect any further consideration.[28]Having looked at the judgment as a whole I do not accept that submission. It seems to me that the judge did record a number of positives about the father and did so in emphatic terms in the course of her judgment. She also goes on to record the negative aspects and she describes the case as finely balanced. The case would not be finely balanced if she effectively had withdrawn the positives from the balance by negating them at each time she referred to them. It seems to me that overall she looked at the detail and then stood back and saw how that played one way or the other into the eventual outcome. One example of this is at paragraph 61 where the judge's balance is all too plain to see, starting with positives first and then moving on to negatives. She says this:
"Accordingly, I accept that there may be problems for them in the future in not having face to face contact with their father, but a great deal of emphasis has also been placed upon the necessity to ensure the children's security with their mother and not to upset their present state of calm. There has been evidence that [N] in particular was affected by his last contact; no-one can suggest that he was so affected because he did not enjoy the experience because he clearly did; but the point is that he is confused about the experience and what it means about his future with his father and in relation to his father and that has a knock on effect on his day to day functioning it is argued. I accept that to be the case."
[29]There the judge puts both sides of the balance in one paragraph, and again in the following paragraph she highlights the traumatic experience for the children in seeing their father "wrenched away from them" in the way that he was, but she points also to the calmer state of affairs that the children have now experienced because of the period without contact that has transpired.[30]Turning to her decision from paragraph 71 onwards, she says this:"71. I start from the premise that contact is in the best interests of the child and I should consider contact unless there are compelling reasons why there should be none; in the first place children have the right to a relationship with each of their parents; it is in their interests they should do so. As I have already observed however, because of the risks identified this father is not in a position to offer care for these children neither is he in a position to be able to have unfettered, unregulated and unsupervised face-to-face contact with them. That situation is unlikely to change in the foreseeable future and indeed it will not change until this father does something to demonstrate that he has changed; even then I am bound to say unsupervised and unregulated contact may not necessarily follow.72. That being the case, it would contrary to the interests of these children for them to have contact with him at a frequency which is suggestive of him being involved more extensively in their day-to-day lives. It would be against their interests to see him once a week or once a month because that level of contact would be suggestive of developments in his contact with them which would not necessarily be forthcoming. It would be confusing for them. That level of contact would, on the facts of this case and absent any explanation as to why he has had to leave them, certainly lead to a desire that he should be back home with them and questions as to why he is not. That is not going to happen and so to put them into a situation in which they might believe that it might be what would happen would be emotionally harmful to them. Accordingly I agree with the guardian and conclude that there is no base here for so-called relationship contact -- that is contact which maintains in order the relationship that they have had with their father when he was a part of their household.”[31]No substantial challenge is brought by the father to that conclusion as to any regular contact to further the relationship between the father and the children, but the judge's reasoning, in my view, in those paragraphs is at the forefront of her overall assessment of the case.[32]I am not going to read out the other reasons that the judge has given in detail, but they are in summary to be found in paragraph 74 onwards. They are in terms that the father's behaviour cannot be divorced from the issue of contact because of the effect that it will have upon the children when they get to know about it, and in the particular case the judge found that was likely to produce quite devastating results. The judge went on at paragraph 77 onwards to explain that there were a number of issues in addition to the confusion that the children would have and the situation in which they found themselves in seeing the father but only doing so on a restricted basis which they could not be told about. First of all, there was the impact on them of seeing him after a period of comparative calm; secondly there was the opposition of the mother both to contact but also in effect her extreme apprehension as to the impact upon her of the fall-out from the children seeing their father and then coming home after a carefree visit and bombarding her with questions that she could not begin to answer. Thirdly, there were practical problems of locating a suitable contact venue that was prepared to take the father into the premises where other children are present despite his offending behaviour and the need probably for two supervisors to be present.[33]Having evaluated all of these matters, the learned judge came down to the conclusion that it was not in the children's interests to have any face-to-face contact with their father and that obviously is the order that she made.[34]In order to succeed before this court in establishing that the judge's order should be overturned, the father has a heavy burden, as his counsel accepts. This court will only interfere if the learned judge's judgment was plainly wrong. In granting permission to appeal on the 20 May my Lord, Ward LJ said this:
"I am narrowly persuaded that the risk of future harm may not outweigh the benefits of present contact especially for the eldest boy. The appellant must appreciate that the finer the balance the harder it is to show that the judge exceeded the generous ambit within which there is room for disagreement."
[35]I entirely agree with that appraisal. In looking at this case as I have, I have done so with a keen and anxious eye. The order that has been made against this father preventing him having any face to face contact with his children is at the extreme end of the interventions that a court can make in ordinary private family life. The impact upon him and upon the children in not having any face-to-face contact in the period that follows this order is significant and it is therefore right to look very carefully at the question posed by Ward LJ to see whether the judge came to a conclusion that was plainly wrong by attaching undue weight to the negative factors that she identified. Equally Ward LJ is right to point to the fact that the more finely balanced a decision is in a case regarding children the more impossible it will be to challenge on appeal.[36]This was a finely balanced case; it was a case that required anxious scrutiny from the judge, but for my part I consider that the outcome that the judge arrived at was plainly within the ambit of reasonable decisions to which she might have come; she did so after very careful analysis of the evidence; she did so in accordance with the law, and did so after identifying each of the relevant factors for and against. Also, she did so by accepting the advice of the experienced children's guardian who herself had anxiously considered the issues in the case. The judge was not bound to follow the children's guardian's recommendations, but in order to disagree with them the judge would have had to have clear reasons for doing so. It is not possible, in my view, therefore to hold that the judge was in error in this case and I would therefore dismiss this appeal. Lord Justice Mummery:[37]I agree.

Lord Justice Lloyd:

[38]I agree.

Order

Appeal dismissed

Cited in 1 later judgment