Case No: B4/2009/2262
Neutral Citation Number: [2010] EWCA Civ 478
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LEEDS COUNTY COURT
(LOWER COURT No: WF06F00056/WF05P00225)
(HIS HONOUR JUDGE CLIFFE)

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Tuesday, 23rd March 2010

Before:

LORD JUSTICE PILL
and
LORD JUSTICE WILSON
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IN THE MATTER OF K (a Child)

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Mr Alex Taylor (instructed by Crockett and Co Solicitors) appeared on behalf of the Appellant Father.

Mr Philip Booth (instructed by Henry Hyams Solicitors) appeared on behalf of the Respondent Mother.

Ms Jane Curnin (a solicitor in JWP Solicitors) appeared on behalf of the child by her Guardian ad Litem.

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Judgment
Lord Justice Wilson:

1.	A father applies for permission to appeal against an order under the Children Act 1989 by His Honour Judge Cliffe in the Leeds County Court made on 18 September 2009 but for some reason dated 22 September 2009. Wall LJ directed, on paper, that the oral hearing of the application for permission which we have conducted today should be on notice to the two other parties to the proceedings, namely to the mother and to the child by her guardian ad litem, and that, were permission granted, the substantive appeal would be heard forthwith.

2.	The proceedings surround M, a girl, who was born on 19 September 2001 and is thus now 8 years old.  She resides with her mother in Wakefield.  The father resides in Leeds.  

3.	The father initially aspired to appeal against two orders made by the judge.  The first was to refuse his application for an order for direct contact with M.  The father's proposal, supported by the guardian, had been that, in addition to the regular indirect contact which he had been having with M, and which had taken the form of monthly presents and cards, he should have direct contact with her for two hours on four occasions each year under supervision at a contact centre or other resource.  The second was to refuse the father's application for a specific issue order to the effect that M's surname should in part reflect his own current surname.  It would have been quite a challenge for me intelligibly to describe the issue as to surname by reference only to initials. Before the judge the father was ultimately contending for a double-barrelled surname which amalgamated his current surname with the mother's current surname and which had eight syllables and 21 letters.  Today, however, Mr Taylor on behalf of the father informs us that he wishes no longer to proceed with his attempted appeal against the judge's refusal to order that M should bear that surname.

4.	Today the mother appears, by Mr Booth, to oppose the grant to the father of permission to appeal against the judge's refusal to make a contact order and, if granted, to oppose the appeal.  By Ms Curnin, her solicitor-advocate, the guardian supports the proposed appeal against the refusal to order direct contact between M and the father. 

5.	The mother and father originate from Iran.  They were married there.  In 2001 they moved to Belgium.  It was there that M was born.  But the father was there convicted of people-trafficking and was imprisoned.  In 2003, following his release, he moved to England; the mother and M soon joined him.  But the marriage between the parents quickly broke down.  There came a time when, for reasons unclear to me, M went into the care of the father.  He looked after her for more than a year.  Thereafter, perhaps from about 2005, M has been in the care of the mother under, I believe, a residence order.  In due course the mother obtained indefinite leave to remain, with M, in the UK; and she is in the course of applying for British citizenship.

6.	At the time of the breakdown of the marriage there had been an unusual, and for some people a shocking, development.  The father had begun to cohabit with M's maternal grandmother; and the cohabitation still continues.  The relationship had been in existence when the father had been caring for M; and the grandmother had helped him to care for her.  But M had been too young to realise the nature, still less the significance, of the relationship.  By the norms of any culture such a development would be likely to cause profound distress for other members of the family on both sides.  By the norms of Iranian culture, however, the reaction to the father's cohabitation with the maternal grandmother would be likely to be even more extreme.  The mother gave evidence to the judge that, in her mind, the maternal grandmother, ie her own mother, was dead; but the father produced a video-tape which, according to him, suggested that a relationship of reasonable positivity remained between the two of them.

7.	In April 2007, following a substantial hearing, Mr Justice Bodey made an order that the father should have supervised contact with M on four occasions each year.  At the outset of his judgment under proposed appeal HHJ Cliffe stated that his judgment should be considered in conjunction with the judgment of Bodey J given in April 2007 and with a judgment given by HHJ Cliffe himself in January 2008.  Neither of those judgments has been included in the papers filed for our use; and the lawyers on all sides, but particularly on behalf of the father, deserve criticism for failing, until it was far too late, to seek to address the omission.  Accordingly our knowledge of the background is hazy; but in my view we do not need to see it with greater clarity in order to determine the issue raised today.

8.	It seems that Bodey J was profoundly critical of the conduct of the father, in particular towards the mother, in recent years: he found that he was a liar and had made serious threats and at one point -- perhaps in Belgium -- had abducted M from the mother for almost two days.  Nevertheless he concluded on balance (and following the recommendation of a guardian other than the present guardian) that the father and M had had a good relationship and that it would be in her interests for it to be maintained and fostered by limited occasions of direct contact under supervision.

9.	The first two occasions of the direct contact ordered by Bodey J took place, namely in April and July 2007.  Since then, however, there has been no direct contact between M and the father; and so it was that the father applied for a further order for contact.  The cessation occurred because of allegations by the mother, made in the context of an application on her part for the father's committal to prison, that, by attempting to communicate with M  otherwise than on the supervised occasions, including by his visiting M's school in disguise, he had breached a non-molestation order which had been made by a circuit judge and/or a prohibited steps order which had been made by Bodey J.

10.	It fell to HHJ Cliffe, in January 2008, to hear the application for committal. The father appears to have admitted minor breaches of the order or orders; but the judge's findings were that the breaches were far more serious than the father had admitted.  HHJ Cliffe sentenced the father to terms amounting in all to four months of immediate imprisonment.  The father must have been released in the early Spring 2008.  He seems to have expected that the supervised contact ordered by Bodey J would resume; but it did not do so.  His application for a further order for contact with M therefore proceeded.

11.	The guardian decided that the extra dimension of complexity caused by the father's cohabitation with the grandmother, particularly in the context of an Iranian family, needed specialist appraisal.  Thus she instructed Mr Johal, an independent social worker with appropriate ethnic expertise, to write a report in that regard.  On the first day of the hearing of the present applications, namely on 11 June 2009, Mr Johal gave oral evidence to the judge.  Although we have a transcript of the entire proceedings before the judge on the later day of the hearing, namely 18 September 2009, we have no such transcript for the first day; and I am unable to perceive quite what Mr Johal said.  It appears, however, that he said, unsurprisingly, that M, who apparently remains unaware of the cohabitation, would have to be introduced to the fact of it with great care and delicacy.  By that first day of the hearing the present guardian was already supporting the father's application for restoration of the order for supervised contact on four occasions each year; and, although the mother was contending that occasions of supervised contact might represent an opportunity for an entirely inappropriate revelation by the father to M of his cohabitation with the grandmother, it seems that Mr Johal did not subscribe to the view that there was any likely risk in that regard.  

12.	At the adjourned hearing on 18 September 2009 oral evidence was given by the father, the mother and the guardian.  Because I feel driven to express a degree of criticism of the judge's despatch of the application for an order for contact, I would like to preface my remarks with an expression of sympathy for the position in which he found himself on that day and for the way in which, on that day, he sought to assist the parties, and particularly M, in pushing matters forward to a conclusion.  The judge is a designated family judge and, like many other circuit judges who fulfil that role in England and Wales, is clearly overburdened with family work.  There had already been a most unfortunate hiccough of over three months between the first and the second days of the hearing.  The second day, 18 September, was a Friday.  At some stage during that hearing the judge expressed pessimism about the chance of reaching an ultimate conclusion on that day.  When, however, well after 5 pm, the oral evidence was completed, and when counsel asked him whether, in the light of the hour, he would prefer that final submissions be put in writing and thus that he should give judgment later, the judge observed that he would prefer to give an ex tempore  judgment that night because any adjournment would, in the light of pressure on court lists, be likely to be lengthy.  He said: 

"I may only be able to give a judgment in a short-hand form today but I think the parties deserve to have an answer to the questions that are raised."

Then the judge said to the advocates: 

"Can I limit you to five minutes each?"

In his grounds of appeal Mr Taylor made a passing suggestion that it was unreasonable to limit the final submissions of the parties, in particular of the unsuccessful party, upon two applications to only five minutes; but I would not have accepted that submission.  The issues had been very fully ventilated in oral evidence that day and, more importantly, Mr Taylor did not respond to the judge's enquiry by suggesting that such was an unfairly restricted time for his final submissions.  Nor, in the event, does Mr Taylor press any complaint along those lines today.  It was at 6.35 pm that the judge embarked on delivery of his judgment.  It took only a few minutes and the transcript runs to five and a half pages, double spaced.  In the light of the volume of evidence which he had heard, it was indeed, as he had foreshadowed, a short-hand judgment.  Every reasonable allowance must be made for the uncomfortable time constraint under which the judge decided to place himself in the interests of bringing the proceedings to an end.  

13.	In refusing the application for an order for the restoration of the father's supervised contact with M, the judge referred in particular to two features, namely the father's relationship with the grandmother and his continuing denial of the more serious of the breaches of orders which in January 2008 the judge had found to have occurred and which had formed the basis of the father's committal to prison.  The judge inevitably accepted that the relationship between the father and the grandmother would be one which, when M came to learn of it, would cause her great difficulties.  The nub of the judge's decision on this point was that he felt unable to trust the father not to reveal the relationship to M in the course of any supervised contact.  The judge referred to the fact that it was the appraisal both of Mr Johal and of the guardian that, were he ever to discuss the relationship with M, the father would be likely not to give a balanced presentation of it to her.  The judge duly noted the contention on the part of the father that the proposed contact would be supervised; but the judge was no doubt entitled to consider that no amount of supervision can insure against a sudden disclosure, whether accidental or deliberate.  Yet the likelihood, or otherwise, of disclosure of the relationship during any period of supervised contact had been the subject of further evidence, to which the judge did not expressly refer.  The father, for his part, had pointed out that, during the two occasions of supervised contact in 2007, there had been no reference on his part to the relationship; that  he had made no such disclosure to M at any earlier stage; and that in general terms there would be no motive whatsoever for him to reveal the relationship to her in future such periods.  In the light, however, of the father's own clear lack of credibility, it was surely more significant that the guardian herself had given evidence to the judge that in her opinion the father did not wish M to learn of the relationship and had -- such was her considered view -- no intention of talking to her about it during any period of contact.  More widely the guardian had expressed concern that a plan should be evolved for M to come, at a suitable stage, to learn about the relationship and to digest its significance in an age-appropriate way; and that otherwise, from whatever quarter of the Iranian community in Yorkshire, the information about the relationship could burst unexpectedly upon her and cause her intense confusion and distress.

14.	The second feature upon which the judge in particular relied, namely the father's continued denial of the breaches found against him (and his concomitant assertion that the mother had lyingly framed him), was the basis of a straightforward conclusion on the part of the judge that the father was dishonest and was also, in the words of the judge, "ruthless and arrogant and at times irrational"; and that the father simply could not be trusted to speak or behave appropriately during periods of supervised contact.  The judge concluded by saying that the father needed to do much more over a longer period, and fundamentally to change his attitude, before he would be likely to satisfy the court that he would not destabilise M's relationship with the mother. Mr Booth tells us that the judge's reference to destabilisation was a reference to deliberate denigration of the mother by the father during periods of supervised contact.  I have to say, however, that, having read all 105 pages of the transcript of the second day of the hearing, I did not notice much if any reference to that particular risk; and Mr Booth is constrained to admit that there is no evidence of past denigration of the mother by the father to the child.

15.	I decline to conclude that the judge's coruscating criticisms of the father's general trustworthiness were not based on  evidence which entitled him to make them.  It may well be that the judge will ultimately be seen to have reached an entirely correct conclusion that a resumption of direct contact even under supervision would not be in M's interest.  But, I am sorry to say, there were features which were required to be placed in that other of the two pans in the scales of justice before a proper conclusion could be reached; and, although the judge may have had all the countervailing features in mind, the father was entitled to a judgment which expressly adverted to them.  There is no mention in the judgment of the facts that: 
a) M had had a good relationship with the father; 
b) M had lived with the father for a period of more than a year; 
c) the two occasions of supervised contact in 2007 had proceeded well; 
d) since his release from prison in the Spring 2008, there was no evidence that the father had again infringed any of the injunctions and orders with which, in order to protect M and the mother, the court had surrounded them; 
e) according to the guardian, who had visited her monthly in order to deliver them (and that therefore had an exceptional opportunity to gauge her wishes and feelings), M really appreciated the presents and cards which, since that time, the father had been sending to her; 
f) until about June 2009 M had been pressing the guardian to secure arrangements under which she would see the father again; 
g) in and from about June 2009 M's attitude in that regard had become, in the guardian's word, “flatter”, perhaps (so the guardian suggested) because M had become frustrated at the absence of response to her earlier requests for a resumption of direct contact with him; and 
h) to put it at its lowest, M had never indicated that she did not wish that direct contact be resumed.  
Nor did the judge advert to the court's starting point in any inquiry into contact, namely the need in principle for a child to have some sort of a relationship with both her parents and at least an informed sense of her own identity.

16.	With reluctance I conclude that, absent any reference to these features, the judge's determination of the contact issue cannot stand; that we should grant permission for the father to appeal against it and should set aside the judge's refusal of his application; that we should remit the application for rehearing and should, for that purpose, transfer the proceedings back to the High Court, Leeds District Registry; and that we should gratefully accept the offer of the Chief Family Listing Clerk of the District Registry, made to this court during the short adjournment today, to list the application before Mr Justice Moylan for substantive determination on 28 and 29 June 2010 (estimate: two days).  It will be for Moylan J to decide whether he requires all the oral evidence given to the judge to be given again to him.

17.	Over recent years the mother has endured considerable stress; and I fear that our decision will add to it, to the temporary disadvantage of the child for whom she cares very well.  The case exemplifies the substantial difficulties which arise when a judge who wishes to assist the parties, and particularly the child, delivers a late, short judgment which proves unable to withstand scrutiny in this court.

Lord Justice Pill:  

18.	I agree.

Order: Application granted; appeal allowed