Y-M (A Child) [2013] EWCA Civ 143

Case No B4/2012/2620[2013] EWCA Civ 143
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM READING COUNTY COURT
(HIS HONOUR JUDGE SIMON OLIVER)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Tuesday 22 nd January 2013
Before
LORD JUSTICE THORPELORD JUSTICE LONGMORELORD JUSTICE MCCOMBE
Between
Appellant MotherAppellantRespondent FatherRespondent
In the matter of Y-M (a child)
(DAR Transcript of
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The Appellant Mother appeared in person.
The Respondent Father did not appear and was not represented.
Judgment
[1]This is an appeal from the judgment of HHJ Oliver, sitting in the Reading County Court, brought by leave of McFarlane LJ given on the 8 November following an oral hearing on 25 October. He granted a stay of the order below and directed a transcript of the judgment of HHJ Oliver. That, when it came to hand, proved to be a transcript of the proceedings and, insofar as the judge gave a judgment to explain the order that he made on that day, it is to be found at page 6 of the transcript in two brief paragraphs which, in an exchange with the applicant father, offers some explanation as to why the judge decided not to follow the course that was recommended by the court welfare officer in her report of 4 September.[2]The litigation was between the parents of a little girl, who is now just five years of age; and, to understand the judgment and the course of proceedings in this court, it is necessary to commence with the earlier order of HHJ Oliver of 6 September.[3]When the case had been before him on 4 May he had requested a CAFCASS Officer to produce a report by 24 August as to contact between the little girl, whose name is C, and her father. The case was then to be relisted before him on 6 September. His main order re-emphasised the order of the district judge of 6 February 2012 which had suspended contact between father and daughter. The CAFCASS Officer's report, pursuant to the order of 4 May, is that dated 4 September to which I have already referred. So the order of 6 September commences with the recital "Upon reading the CAFCASS Officer's report dated 4 September". The orders that follow, having adjourned the matter to hearing on 27 September, directed the father to obtain a report in writing by 25 September from either his GP or a counsellor as to a) whether or not he has an anger management problem that needs support / guidance, and b) if he does have an anger management problem, what steps can be taken to assist him in addressing these issues: how long any course may take and when such a course can start.[4]The third paragraph provided that the father should give a copy of the report to the mother by 26 September; and, finally, that if the GP was unable to provide a report because there might be a waiting list, then the hearing on 27 September should be adjourned until 7 November.[5]Those detailed provisions derived from the recommendation of the CAFCASS Officer in her report of 4 September, in which she had stated her view that the father should seek assistance through his general practitioner to access support and guidance with regard to anger management, that contact should commence on evidence that the father had completed such a programme, that contact should be at a contact centre with supervision and that this, as it were, exploratory contact should be once a month for at least four sessions. The final recommendation was that during such a period as the father attends anger management directions should be made for indirect contact.[6]In the event, the report required by the order of 6 September came in swiftly from the father's GP, Dr Ahmad. He simply reported that he had reviewed the medical records and could find no evidence of any anger management issues. He then stated that the relationship between the patient and his surgery had always been excellent; he continued:
"He tells me that he has not had any forensic history. From my assessment I cannot identify anger management problems at present."
That report explains the order which resulted on the 27th, which provided contact once a month at a contact centre for an afternoon duration within the months of October, November and December, with a review by the judge on 20 December 2012.[7]That of course is a very substantial departure from the CAFCASS Officer's report, which recommended nothing until anger management therapy had been completed and indirect contact only after its commencement. The judicial explanation for departure is found only in the passage in the transcript to which I have already referred. The judge's words were, having referred to Dr Ahmad's letter:
"I am, therefore, satisfied, on the evidence that I have available to me at the moment, but there is no need for Mr Moore to undertake an anger management programme. I am prepared to look at that again in the future, however. What [the CAFCASS report] of 4 September says is, 'Contact commences upon evidence that Mr Moore has started to engage in the above programme'. I am going to re-interpret that to read, 'Contact commences upon evidence that Mr Moore doesn’t have an anger management problem that needs engagement'. Therefore, it seems to me, given that, that the contact should commence, and I am going to order that contact commences at a contact centre for three sessions for two hours in October, November and December."
[8]That ruling provoked the mother's appellant's notice of 15 October and led to the first order of McFarlane LJ of 25 October. That adjourned the matter over to be considered on the papers on receipt of the transcript of judgment. His later order directed, having granted permission, that his clerk should write to Dr Ahmad to ask for him to clarify whether or not he had read the CAFCASS report prior to writing his and to the CAFCASS Officer to seek clarification of her use of the term supervised contact. The judge's clerk duly wrote, and both Dr Ahmad and the CAFCASS Officer replied. From their replies there stands out this very significant record from Dr Ahmad:
"I did not, and subsequently have not, read any report dated 4 September relating to the family from CAFCASS."
[9]In my judgment, plainly that record destroys the reliance that the judge placed on Dr Ahmad's opinion and the judge's conclusion that clearly this was not a case that required any anger management programme. It is, in my view, an apt illustration of the difficulties that do arise, and will arise more frequently in the future, when there are heavily contested proceedings between two litigants in person. Had the parties been represented, I would be reasonably sure that the order of the 6 September would have specified that the solicitors agree a joint letter of instruction to Dr Ahmad to ensure that he knew the issues that he was being asked to address and the considerations that he was being asked to take account of.[10]In this court we have sympathy in that both parents have taken a lot of trouble to prepare their oral submissions today and the quality of those submissions is greatly to their credit. But, having reached the conclusion that the appeal must be allowed and the case remitted, we have the same problems in giving directions as to the course of the remitted hearing. I am in no doubt that it should be remitted to the Reading County Court. I am in no doubt that the court should be requested to provide an expedited hearing. I am in no doubt that we should direct a hearing before another judge of the court, simply to ensure that both parties have confidence in the further course of the case. But we have to overcome the problem of investigating more profoundly whether there really is an anger management problem and, if so, what treatment is required and what treatment is available. So I would reach the conclusion that the best we can do is to further direct that the CAFCASS Officer collaborates with Dr Ahmad, in the first instance sending him a succinct statement of any history that persuaded her that the father suffers from anger management problems and annexing to her letter a copy of her report of 4 September.[11]I would further direct that she attend the expedited remitted hearing and that she should in advance file with the court and serve on the parties a supplemental report that will record her engagement with Dr Ahmad and will have annexed to it any further opinion that he may write.[12]I would accordingly allow the appeal and direct, as indicated, a remitted hearing.[13]I agree.[14]I also agree.

Order

Appeal allowed and remitted to the lower court

Cited in 1 later judgment