P (Children), Re [2015] EWCA Civ 466

Case No B4/2014/3860[2015] EWCA Civ 466
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EXETER COUNTY COURT
(MR RECORDER TOLSON QC)
Venue Royal Courts of JusticeDate Thursday, 9 April 2015
Strand
London, WC2A 2LL
Before
LORD JUSTICE LAWSLADY JUSTICE KING
Between
Appellant MotherAppellantRespondent FatherRespondent
Re P (CHILDREN)
(DAR Transcript of
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Mr Malcolm J Clarke (instructed by Rosie Bracher Solicitors) appeared on behalf of the Appellant Mother
Ms Louise McCullough (instructed by Fletcher Dervish Solicitors) appeared on behalf of the Respondent Father
Judgment
[1]This is an appeal brought by the appellant, MP (“the mother”), against a child arrangements order made by Mr Recorder Tolson QC sitting at the family court at Exeter on 29 September 2014.[2]The orders made provision for the respondent, LP (“the father”), to see the three children of the parents’ relationship, namely AP, who is seven, BP, who is six, and CP, who is four. The child arrangements order provided as follows:
“That six times a year the Father shall have contact on a Saturday from 11am to 4.30pm and the following day (Sunday) from 11am to 4.30pm.”
The order then provided for a collection point and provided for the date of the first contact visit, saying:
“For the first contact in December 2014 only the following special provision will apply. On Saturday 20th December 2014 the beginning and end of contact shall be handled by someone of the Mother’s choosing. The contact shall belong to the Father alone as long as someone else is present namely his Brother and his two nieces (i.e. the Children’s uncle and two cousins). If the Father is unable to have another person present on the first occasion (Saturday 20th December 2014) the Mother is to send someone of her own choosing to accompany the children for the full 5 and half hours. In any event the Father is to have contact without restriction on 21st December 2014 and every two months thereafter on Saturdays and Sundays from 11am to 4.30pm [naming the pick-up and drop-off point].”
[3]In addition to the child arrangements orders just described, the learned Recorder also made a family assistance order in the following terms:
“Devon County Council Local Authority shall, pursuant to s16 Children Act 1989, make an Officer available to advise assist and (where appropriate) befriend the following persons who have (save for a named child) today consented to the making of this Order [and thereafter named the family].”
[4]The issue to be determined by the judge at the hearing was narrow but critical. The parties agreed that there should be direct contact. They further agreed that due to the considerable distances involved that, rather than monthly contact taking place, it should take place as set out in the order; that is to say, six weekends a year for the day on each of the Saturday and Sunday but not overnight. The issue between the parties whether this agreed contact should or should not be supervised and as to whether a so-called finding-of-fact hearing was necessary prior to the judge being in a position to determine this essential welfare issue. Background[5]The mother and father are both from Albania where the mother lived prior to the marriage. The marriage was arranged between the parties and the mother moved to live with the father in London. Whilst there is an issue as to the extent of the violence, it is common ground that domestic violence, often fuelled by alcohol, perpetrated by the father on the mother, was a feature of the relationship. In April 2011 the father was cautioned in relation to an assault on the mother and on 6 June 2011 he was convicted of a further assault on the mother. He was ordered to attend a domestic violence course and also community service orders were made.[6]Although the parties had separated in May 2011 the all-too-common pattern of the mother reconciling with the father on a number of occasions over the next months was reported. The end of the relationship in mid-2011 marked to all intents and purposes the end of contact between the father and the children. On 2 November 2012, given the history of significant domestic violence, a Ms Colleen Filbert, a child centre outreach worker, felt it necessary to report various concerns to the social services when the mother started to talk about resuming contact with the father. Ms Filbert’s anxiety was made all the greater as the children, she records, had told her directly that they had been assaulted by their father and that he had on one occasion smashed up their belongings.[7]This referral by Ms Filbert in 2012 led to an initial assessment being undertaken by social services, which assessment was filed on 14 November 2012. The analysis highlighted the domestic violence which it was alleged had occurred and concerns at the mother’s somewhat inconsistent response to the consequences. A recommendation was made that the mother must work with the Family Support Team for therapy and assistance and in support in managing the children. Failure to do so, it was felt, must lead to a core assessment taking place.[8]On 13 March 2012, meantime, the father had applied for contact with the children. The court had considerable difficulty in contacting the mother (a location order was in fact made at one stage) and in obtaining her engagement in the proceedings. In May 2013, a little over a year later, the mother contacted the father. This initial contact led to an arrangement that they should meet the weekend of 9 May 2013. The father came to the mother’s home and spent the weekend with her and the children. Sexual relations took place. At about 6.30pm on the Sunday two social workers attended the property together with the police. The mother’s untested account is that the social workers said that the father would have to leave or the children would be taken into protective custody. The mother alleged to the police that the father had raped her over the weekend. The mother subsequently gave a police statement and a video statement to the police alleging rape on many occasions over the preceding couple of days. The father was not prosecuted. This weekend was the last occasion when the children saw their father prior to the Cafcass officer supervising two contact sessions later in these proceedings.[9]In the light of the serious allegations arising from the events of May 2013, on 29 November 2013, some 18 months after the proceedings had commenced, HHJ Wright requested Cafcass to prepare a risk assessment pursuant to section 16A of the Children Act 1989. Cafcass filed its section 16A Children Act report on 23 January 2014. The reporting officer had been unable to speak directly to the mother and inevitably therefore the report had considerable limitations. The father had provided the Cafcass officer with the mother’s telephone number but it was clear that the mother was not prepared to cooperate with the assessment. The Cafcass officer observed that given the father’s conviction in relation to assaulting the mother there was a “static risk” of domestic violence. It was the Cafcass officer’s professional judgment that there would be a possibility that the children could be at risk of harm in the future if direct contact were reinstated. The recommendation was therefore made that a full welfare report pursuant to section 7 of the Children Act 1989 should be prepared prior to the court making a decision.[10]The various case management orders made from time to time have not been made available to the court and are not in the appeal bundle, but it is understood that on 23 September 2014 the Recorder refused an application for a fact-finding hearing and ordered instead that the two sessions of supervised contact take place with the children to be supervised by the senior practitioner dealing with the matter on behalf of Cafcass.[11]The learned Recorder declined to conduct a finding of fact hearing. In particular he referred to the “vast gulf” which existed between the allegations the mother initially made to the police in May 2013 and the substantially toned down allegation contained in a statement prepared in the child arrangement proceedings and which is dated 22 September 2014. In that statement she said that she had accepted that in her attempt to get her point across it can look as though she is “changing her account” or “exaggerating”. The judge referred to her present version of the events of May 2013 as being much closer to that given of the father, namely that the couple had indulged in consensual sex across the course of the weekend as part of what was said by the father to be the mother’s attempt to persuade him to resume their relationship. The judge referred to the scepticism with which the police officers viewed the truth of the mother’s allegations of rape. The judge concluded that even on the mother’s own account there was insufficient evidence upon which he could possibly conclude that the mother had been raped by the father in May 2013. He referred to the mother’s credibility as having been damaged by the account she had given of that weekend in May. The judge regarded the events of the weekend of May 2013 as overtaking all other matters in terms of importance and that there would be insufficient material against the father to reduce the limited contact proposed. He concluded, saying:
“It seems to me that there is nothing which I could reasonably conclude, in terms of domestic violence, that is so recent and so serious that it would significantly bear upon my decision in terms of the contact to be awarded at the end of the day.”
[12]The judge in reaching that conclusion made no further reference to the historic domestic violence or how it should be treated by the court or indeed its significance in relation to the issue of the supervision of contact.[13]At the request of the judge the Cafcass officer, Ms O’Brien, supervised two contact visits. The first visit went well although the father, despite Ms O’Brien’s request to bring things for the children to play with, failed to do so. The second contact visit however took place on the morning of the hearing, 29 September 2014. The father arrived presenting himself to the Cafcass officer who referred to him as smelling “very, very strongly of alcohol”. The father accepted that he had been drinking until three o’clock that morning. In addition he arrived with various family members who he was intending to bring to the contact visit. Ms O’Brien with considerable reservations decided to allow the contact to take place in any event. During the course of her evidence Ms O’Brien also made clear (perhaps unsurprisingly), that the father had little understanding of the age and ability of the children or how to manage them. On this occasion CP, who is still only four and scarcely knows his father, was very quiet and reserved.[14]Ms O’Brien indicated that prior that second contact visit she had not been prepared to make a recommendation one way or another as to the future supervision of contact. Having however observed contact that morning and seen the state the father attended contact in, her recommendation was that contact should be supervised. During the course of her oral evidence Ms O’Brien made her misgivings clear. The judge however told Ms O’Brien (as is recorded in the transcript) that she had to “park your other concerns about past domestic violence entirely as being not relevant to the question of contact as is now posed by the father six times a year”. Ms O’Brien’s response was that she would want to see the father accessing some sort of parenting course to give him the skills to care for three children at once, perhaps through a local family centre. She indicated that she would be “very, very concerned and that he needed to learn how to care for the children and to keep them occupied, careful and safe”. She regarded there as being a very real risk that their address would become known to the father if contact was unsupervised.[15]The judge in the short judgment he gave reminded himself that the children’s welfare was his paramount consideration and said that had he been able to he would have looked to some further supervision of contact but identified a difficulty in that respect because the father was unable to put before the court what he termed a “viable and thoroughly-thought-out plan” for supervision. The judge, in the absence of the father being able to fund any form of contact centre, concluded that, subject to the first session being monitored, thereafter contact would take place wholly unsupervised six times a year for two full days over a weekend and with no restrictions on the father’s contact. The judge concluded that it would be impractical to manage contact any further and that it would be a disproportionate use of public resources to attempt to do so.[16]The judge went on to say that in an attempt to address some of the concerns Ms O’Brien had expressed he intended to make a family assistance order under section 16 of the Children Act 1989. Ms O’Brien did not feel it appropriate that such an order should be made in favour of Cafcass given the safeguarding concerns as she saw them. She felt the local authority would be better able to offer a safety net if the father’s contact as observed by her that morning led to further child protection concerns.[17]The judge was aware that the local authority had not been asked whether they were willing to accept the order and accordingly made an order that the local authority could send representations to the court as to the making of the order. In due course, on 24 October 2014 (after some delay occasioned by the fact that the order was not served upon the local authority), the local authority wrote to the court indicating that as far as they were concerned the case was closed and asking that the family assistance order be reallocated to Cafcass. The position currently is therefore that neither Cafcass nor the local authority have indicated willingness to accept a family assistance order. The appeal[18]The grounds for appeal on behalf of the mother have been refined into five grounds:(1) that the judge failed to give proper consideration to the definition of domestic violence and guidance set out in Practice Direction 12J of the Family Procedure Rules 2010;(2) failed to give adequate reasons for departing from the recommendations of the Cafcass officer that contact be supervised;(3) failed to give the local authority an opportunity to comment before making the family assistance order;(4) failed adequately to consider the welfare checklist; and(5) failed adequately to consider if the physical and emotional safety of the children and the appellant could be secured before, during and after contact. Discussion[19]The judge declined to have a discrete finding of fact hearing. He was concerned in particular about the allegations of rape made in relation to May 2013. Whilst the judge did not refer to the guidance surrounding Practice Direction 12J in relation to findings of fact hearings where allegations of domestic violence are made, and whilst another judge may have reached a different decision, the judge cannot in my judgment be said to be wrong in the exercise of his discretion in having declined to have a finding of fact hearing. The judge looked at the mother’s case at its highest in relation to the events of that weekend. He had the benefit of the police reports (although not, I understand, the interviews) and concluded that, even taking the mother’s case as set out in her statement at face value and effectively ignoring what she now appears to accept as being gross exaggerations in the account she gave to the police, he would be wholly unable to make findings of fact in relation to that weekend against the father.[20]That left the judge with the unchallenged and unchallengeable history of domestic violence which had resulted in a caution and a criminal conviction and the recorded allegations of violence made by the children together with the concerns on the part of the local authority expressed through their initial assessment which were such that they would have stepped in had the mother reconciled with the father. In the circumstances therefore the judge was well aware that there was a substantial history of domestic violence which must form the backdrop against which he considered the welfare of the children, and in particular in relation to which paragraph 36 of the Practice Direction would apply, namely:
“…the court should in every case consider any harm which the child and the parent with whom the child is living has suffered as a consequence of that violence or abuse, and any harm which the child and the parent with whom the child is living, is at risk of suffering if a child arrangements order is made. The court should only make an order for contact if it can be satisfied that the physical and emotional safety of the child and the parent with whom the child is living can, as far as possible, be secured before during and after contact, and that the parent with whom the child is living will not be subjected to further controlling or coercive behaviour by the other parent.”
[21]The Cafcass officer was unequivocal about her concerns which had been brought into focus the morning of the hearing at the supervised contact visit. A key issue in relation to this family’s history of domestic violence had been the father’s use of alcohol. In addition he had scarcely seen the children since early 2011 when CP had been under a year old. He had never cared for the children on his own and had arrived at the supervised contact visit “reeking” of alcohol and was thereafter unable to demonstrate his ability to cope with all children, although his affection for the children was evident. The question therefore is whether the Recorder was wrong in ordering contact to be unsupervised after the first visit to take place on 20 December.[22]Ms McCullough on behalf of the father, whilst conceding that the order made by the Recorder was “bold”, submits that the order should be upheld on the basis that it was a discretionary decision made by the judge having had the benefit of hearing and seeing the witnesses. With respect to Ms McCullough, whilst this court is always reluctant to interfere with discretionary decisions made after the hearing of oral evidence, the learned judge in my judgment fell into significant error in his essential approach, which thereafter impacted on his discretionary exercise. It is clear from the short judgment and the transcript of the hearing that the judge: i. Once having found that the evidence in relation to May 2013 could not lead to the making of the finding of fact wrongly thereafter disregarded the historic domestic violence entirely. ii. Appeared to regard any relevance it may have had as relating only to the quantum of contact rather than to the issue of supervision. iii. Whilst the judge referred to the fact that the children’s interests were paramount, he made not even a passing reference to the welfare checklist and there is no analysis as to his reasons for departing from the strongly expressed views of the Cafcass officer that not only was there a risk due to the history of domestic violence but the father was simply in no position to care for the children on his own without some further understanding of a parenting role.[23]The learned judge, having fallen into error in his initial approach, thereafter failed: i. To take into consideration as an important factor in the case the history of domestic violence which the Cafcass officer was clear needed an assessment of risk. Regardless of the rights and wrongs of what happened in May 2013, without such an assessment of risk how could the court be satisfied that such things as handover at unsupervised contact could be safely managed or that the father would not discover the children’s confidential address? ii. Had the judge, mentally if not orally, borne in mind each of the elements of the welfare checklist, he would have addressed the second significant welfare issue in this case. These children hardly know their father and they are still very young. CP is still under five. The second session of supervised contact had revealed the father arriving at contact having been up most of the night drinking, having brought strangers with him without permission, having been unable to manage food for the children and having failed to bring anything to occupy their time. The judge gave no reasons why he disagreed with the Cafcass officer’s view that the court must be satisfied that this father, although I have no doubt he wishes to, could actually look after the three children at once for protracted periods of time before contact became unsupervised.[24]It is well recognised that the management of supervision of contact can be problematic. There are often financial and logistical difficulties in arranging supervised contact either on a temporary or longer-term basis. The court accepts it often has to engage in a difficult balancing and risk assessment exercise. The judge had ordered two sessions of supervised contact specifically in order to assist him and to inform his decision. The second contact visit had thrown up significant concerns. The judge therefore had the evidence in relation to alcohol, a key feature in the domestic violence, and the limitation on the father’s ability at this stage to care for his three children on his own. With respect to the judge, there is no analysis as to his reason for rejecting Ms O’Brien’s recommendation that further assessment should take place and that in the meantime contact should be supervised. His decision appears only to turn on the inability of the father to offer a supervision plan. The learned Recorder failed to consider the practical difficulties and the risk to the mother of handovers in an unsupervised situation without a further risk assessment.[25]The appeal must therefore be allowed. Family assistance order[26]The appeal in relation to the family assistance order must be allowed. Section 16(7) of the Children Act 1989 provides for the making of family assistance orders. So far as section 16(7) is concerned, it provides:
“A family assistance order shall not be made so as to require a local authority to make an officer of theirs available unless— (a) the authority agree; or (b) the child concerned lives or will live within their area.”
[27]It appears therefore that as the children live within the relevant area the court had the power to make an order. However, section 16 is supplemented by Practice Direction 12M provides at subparagraph 1.2:
“Before making a family assistance order the court must have obtained the opinion of the appropriate officer about whether it would be in the best interests of the child in question for a family assistance order to be made and, if so, how the family assistance order could operate and for what period.”
[28]At the time the order was made, the local authority had no continuing involvement with the family. If a family assistance order was to be of value the local authority would have needed an opportunity to consider the case and to determine how the order could operate and for what period. The court is now in a position where both Cafcass and the local authority have each declined to be involved; Cafcass as they regard there to be safeguarding issues better dealt with by the local authority, and the local authority as regard this as a family with whom they have no involvement and therefore believe Cafcass would have been the more appropriate service.[29]It may well be that a family assistance order, as has been submitted by Ms McCullough, could be of great benefit to this family in the future, but that can only be in the context of the local authority having been invited to consider the case as a whole, no doubt against the backdrop of some form of a risk assessment so that consideration can be given as to what help they can give this family and whether it should be in the form of a family assistance order or not. Conclusion[30]One has sympathy for the Recorder in this case. The father had been seeking contact to his children for two and a half years by the time the matter was heard. The delay was largely caused by the mother’s reluctance to engage, no doubt in part due to the history of domestic violence; however whilst there is a presumption of parental involvement in a child’s life but contact can only be in the child’s best interests if the child and their carers are safe in terms of both the physical safety; (that is to say, from violence) and in the physical care given to very young children during the course of contact. In order to achieve that, whilst no specific finding of fact hearing may be necessary, a risk assessment may nevertheless be important, and it may be that supervision in some form or another has to continue to be part of the reintroduction of contact between a parent and child where there is, as here, a history of domestic violence and a considerable period of time where there has been no contact between that parent and their very young children.[31]In all the circumstances the appeal is allowed and the matter must be remitted for review.

Lord Justice Laws:

[32]I agree the appeal should be allowed and the order proposed by my Lady for the reasons given by her.

Order

Appeal allowed