Case No: B4/2011/2294 & 2295
Neutral Citation Number: [2012] EWCA Civ 528
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CAMBRIDGE COUNTY COURT
(HIS HONOUR JUDGE YELTON)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday, 2nd February 2012

Before:

LORD JUSTICE THORPE
LADY JUSTICE BLACK
and
SIR JOHN CHADWICK

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IN THE MATTER OF W (Children)

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(DAR Transcript of 
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Mr Gribbin (instructed by Wilkinson & Butler Solicitors) appeared on behalf of the Appellant Mother.

Mr Tom Urwin (instructed by Wilkins Solicitors) appeared on behalf of the Respondent Father.

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Judgment

Lady Justice Black:

1.	We have before us two joined appeals.  They relate to inter-dependent decisions made by HHJ Yelton on 3 and 5 August 2011 in relation to two children, A, aged four, and S, aged two.  They are the children of the appellant mother and respondent father who I call simply “the father” and “the mother” in this judgment.  The application that HHJ Yelton had before him was the father’s application for a variation of an interim contact order made in November 2010.  The original order provided for the father to have contact with the children at a contact centre on the first and third Saturday of each month for two hours and the father wished to be able to have more contact and for that to be away from the contact centre.  He sought an increase gradually to three hours and then to four hours unsupervised contact.

2.	The judge had first to make findings of fact about allegations that the mother had made of unpleasant behaviour against her on the part of the father.  He did so in a judgment on Wednesday 3 August 2011 at the end of three days of evidence.  There is no appeal against the findings of fact made by the judge on that occasion.  By the time judgment was given it was late and the mother had left court to collect the children from nursery, so the judge adjourned the question of what order should be made in relation to contact in the light of his findings until the Friday, 5 August.  However, before doing so he heard and refused an application on behalf of the mother for a Section 7 welfare report by a Cafcass officer and/or a psychological assessment of the father.  The judge did not give a judgment as such on that application.  One can glean his reasons from the argument which has been transcribed.  The father did not in fact oppose a psychological assessment of himself.  However, the judge did not think it was necessary because, as he said in argument, “I am perfectly satisfied he was ill and he is now a great deal better.”  As to the Cafcass report, the judge thought that Cafcass may be able to assist but that it was going to take a long time; we have been told now it would be likely to take in the region of 14 to 16 weeks.  His attention was drawn by counsel for the mother to the well-known case of Re L to which I shall come later and the considerations that the court has to have in mind in deciding whether to order contact following domestic violence.  He did not rule out asking for a Cafcass report later on but he thought in the first instance he should decide on how contact would move forward at a relatively short hearing without expert evidence and without further evidence from the parties themselves.  That short hearing was scheduled to take place on 5 August.

3.	Unfortunately it was not possible for the same counsel to be present when the case came back to court on 5 August although those who appeared were well informed.  Counsel for the mother attempted to persuade the judge to re-open his determination about whether there should be a further psychiatric report or psychological report or any other further investigations before a determination was made about contact.  The judge declined to re-consider the matter and went on to order that from November, the father was to be permitted to take the children out from the contact centre during his contact visits.  This was to be an interim order and the judge provided for a review to take place on 6 December 2011.  The effect of this appeal has been to halt any further progress on the case either by the development of contact so that some of it took place outside the contact centre or by a further review.

4.	Counsel for the appellant submits to us that the judge was wrong to refuse a welfare report and/or a psychological assessment and that he thereby deprived himself of evidence that was necessary in order to determine what was in the children’s best interests.  He also submits that the judge erred in failing to give the mother a fair opportunity to explain the effect of the father’s conduct on her and the children.  Further it is submitted that in dealing with the material that he did have, the judge failed to conduct a proper balancing exercise, identifying and considering any positive factors and weighing them up with the negative implications of the father’s conduct.  The judge’s approach, it is submitted, was not in accordance with best practice as set out in the Practice Direction 12J to the 2010 Family Procedure Rules entitled Residence and Contact Orders: Domestic Violence and Harm and it resulted in him prematurely granting the father’s variation application.  

5.	I do not propose to set out here a detailed catalogue of the findings that the judge made in relation to the father’s conduct towards the mother.  The fact finding judgment concentrates on matters which occurred from September 2005 which is when the parties were married.  For the most part the judge accepted the mother’s account of events.  He provided a pithy summary of the position in argument on 5 August when he said “he has made your client’s life a misery for a very long time”.  In his judgment that day he summarised the later history between the parties in this way: 

“...during the 12 months or 15 months from the autumn of 2009 until the end of 2010 the father behaved in a very hostile and harassing way towards the mother.”

6.	In the course of his fact finding, the judge reached a number of conclusions about the sort of man the father is.  He found that “certainly last year” (presumably therefore 2010) the father was extremely depressed and in “what might be described as a fragile mental state”.  He said that the father was “an impetuous man, he acts on the spur of the moment, and I accept that he was ill at various times during this dispute, but it is clear that he has an absolute belief that what he does is right, and what the mother does, does not really matter very much”.  He found that the father was a very difficult person with whom to live and that life was so intolerable for the mother that she eventually left and went to live in a women’s refuge for a period.

7.	The judge made findings of actual violence by the father towards the mother; I will mention only examples.  The first incident of violence that the judge found proved was in December 2007 when the father lost his temper and hit the mother and pushed her.  This was at a time when the parents were living together, the final separation coming sometime in the latter part of 2009.  In March 2010, the father pushed the mother over in the presence of his own father and of A.  Thereafter the mother obtained an ex parte non-molestation order but in September 2010, the father spat at the mother and assaulted her during an unpleasant serious argument in A’s presence.  This was at a time when the mother had had A circumcised in Morocco without asking the father or telling him, which the judge found to have been not “terribly sensible” of her but not justifying the father’s behaviour which the judge found to be a gross over-reaction.  

8.	The judge also found that the father did not want the mother to work outside the home as she began to do part time in early 2009, or to go to university as she began to do full time in the autumn of 2010.  These things “wound him up” the judge found.  In 2011 the judge found that the father had sabotaged an opportunity that the mother had to get part time employment in a hotel.  He also found that the father had begun a campaign of verbal and written aggression against the mother in the autumn of 2009, shortly after S was born.  It included a “great barrage of text messages” to the mother because he wanted contact over Christmas 2009.  The terms of the texts were abusive and unpleasant and the judge found that the father had “behaved very badly over that period of time”.  In 2010 the father telephoned on occasions 20 times a day and he left a number of threatening voice mail messages.  His threats included telling the mother that he was going to tell the police she was selling cocaine at the university and on another occasion telling her that if he did not see the children on the following Sunday he would take them from their school on the Monday.  His objective in this was to get more contact.  At some point he was cautioned for harassment. 

9.	The last incident to which reference is made in the fact finding judgment is one on 16 April 2011 when the father spoke to the mother about her intention to call his daughter to give evidence on her behalf in the contact proceedings.  The judge said of it in his judgment that the father took up the cudgels of the case that had not been heard and told the mother that his daughter was jealous and twisted and that was really nothing to do with him, it is a matter for her whether or not she called C to give evidence.  One can see a little more about the event from the schedule of allegations on which the judge was working in the course of the fact finding hearing.  From that it can be seen that the mother’s allegation was that the father had spoken to her about his daughter at a bus stop near to her house, that he then followed her to Cambridge and spoke to her again after she alighted from the bus prior to a contact session occurring, and that following the contact session the father was angry and threatening towards her to the point that the mother felt that she needed to seek support from the contact supervisor.  It is interesting to see that the father’s response to that, as recorded on the schedule of allegations, was not wholly to deny the event.

10.	Mr Gribbin for the appellant referred us in his skeleton argument to various authorities in addition to Practice Direction 12J which I have mentioned.  

11.	He relied on the well known authority of Re L (Contact: Domestic Violence) [2000] 2 FLR 334 to which I have also referred earlier, in which this court set out the proper approach of a court hearing a contact application in which allegations of domestic violence are raised.  The court said that the seriousness of the domestic violence, the risks involved and the impact on the child had to be weighed against positive factors, if any, of contact and that the ability of the offending parent to recognise his past conduct, to be aware of the need to change and to make genuine efforts to do so would be likely to be an important consideration in the balancing exercise.  

12.	He also relied on the later case of Re L (Care Proceedings: Risk Assessment) [2009] EWCA Civ 1008.  The issue in that case was the judge’s handling of a split hearing in care proceedings.  The judge found as a fact that the child sustained serious injuries at the hands of one of the parents but he was unable to say which and that there had been a “global family failure” to protect the child.  He refused the mother permission to have an independent risk assessment carried out.  The Court of Appeal held that he had pre-judged the care proceedings and permitted the mother to obtain a risk assessment.

13.	We were also taken to the detail of Practice Direction 12J.  In its former incarnation as Practice Direction: Residence and Contact Orders: Domestic Violence and Harm 2008 this featured in Re Z (Unsupervised Contact: Allegations of Domestic Violence) [2009] EWCA Civ 430.  In that case the Court of Appeal stressed that the practice direction must be followed in cases involving allegations of domestic violence.  The issue there was slightly different in that the judge had prematurely terminated the fact finding hearing on his own initiative and ordered unsupervised contact.  However, the message does emerge clearly from the judgment of Wall LJ (as he then was) that the practice direction represents good practice and judges are not entitled “to take shortcuts which either run the risk of compromising the welfare of children or which fail to follow accepted practice”.  

14.	Paragraphs 26 and 27 of Practice Direction 12J set out the factors which are to be taken into account when determining whether to make contact orders in all cases where domestic violence has occurred: 

“26. When deciding the issue of residence or contact the court should, in the light of any findings of fact, apply the individual matters in the welfare checklist with reference to those findings; in particular, where relevant findings of domestic violence have been made, the court should in every case consider any harm which the child has suffered as a consequence of that violence and any harm which the child is at risk of suffering if an order for residence or contact is made and 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.

27. In every case where a finding of domestic violence is made, the court should consider the conduct of both parents towards each other and towards the child; in particular, the court should consider;
(a) the effect of the domestic violence which has been established on the child and on the parent with whom the child is living;
(b) the extent to which the parent seeking residence or contact is motivated by a desire to promote the best interests of the child or may be doing so as a means of continuing a process of violence, intimidation or harassment against the other parent;
(c) the likely behaviour during contact of the parent seeking contact and its effect on the child;
(d) the capacity of the parent seeking residence or contact to appreciate the effect of past violence and the potential for future violence on the other parent and the child;
(e) the attitude of the parent seeking residence or contact to past violent conduct by that parent; and in particular whether that parent has the capacity to change and to behave appropriately.”

15.	One is left in no doubt by those paragraphs as to the matters that should be considered “in every case”.  Harm which the child has suffered as a consequence of violence that has been established and harm that the child is at risk of suffering in the future must be considered, and the court must 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.  Also in every case, the court has to consider the conduct of both parents towards each other and towards the child, and in particular the effect of the domestic violence on the parent and child, the motivation of the parent seeking contact, the likely behaviour of that parent during contact and the effect on the child, his capacity to appreciate the effect of past violence and the potential for future violence on the other parent and child, and his attitude to his past violent conduct and capacity to change and behave appropriately.

16.	The judgment given by HHJ Yelton in this case in relation to contact is short.  It must be remembered that the issue for determination concerned interim contact and that the judge contemplated a review in a matter of months.  On one view of his order, as counsel for the father argues, the variation he made to the existing contact arrangements was relatively slight.  Contact was already on foot and there was no dispute that it should continue, albeit at the contact centre.  Furthermore, although the father sought a rather more radical change to the contact arrangements, on the judge’s order the frequency and duration of the contact was to be unchanged.  However, it must be recognised that the change by virtue of the judge’s decision from contact wholly at the contact centre with the mother’s consent to an arrangement which was not agreed and involved the father being able to take the children out from the centre for a short time unsupervised was in fact a material change in the nature of contact.  

17.	The judge did not refer explicitly to the authorities which have been cited to us or to the practice direction.  That is not necessarily fatal.  A judge is not required slavishly to recite authorities and principles in his judgment.  However, it does have to be clear from the judgment that he has had them in mind and applied them correctly in reaching his decision.  So, for example, a judge will often analyse the factors in the welfare checklist in section 1(4) of the Children Act without referring to that section at all and that is perfectly acceptable.  What does the welfare judgment in this case, taken together with the fact finding judgment and the transcripts of argument that we have seen, disclose about the judge’s approach in this case?  

(i)	The judge was very clear that he was making his determination with the findings he had made against the father at the forefront of his mind.  He described them as serious but not so serious that there should not be any contact at all.  
(ii)	He took into account that since the recorder’s contact order in January 2011 the behaviour had largely dropped off and the sort of harassment that was going on before had much improved.  The judge attributed this to there being an association between the father’s mental health and his behaviour and also to the father having been agitated because he was not having contact.  He thought that the father was now better than he had been and he was also of course seeing the children.  
(iii)	The judge was conscious of the need for caution until “the father has proved that he can behave himself and that contact continues to go well”.  
(iv)	He also recognised the impact upon the mother of the father’s past behaviour in that he identified the need for the mother to have the reassurance that the father can behave properly as one of the reasons why contact should not jump immediately to unsupervised contact not based on the centre. 
(v)	He delayed the start of the trips out from the centre for three months until November 2011 so that more time would be permitted to demonstrate the father’s ability to behave properly.  If there were to be a problem during that time he made it clear that the mother could apply again for reports to be commissioned.

18.	I am afraid, however, that notwithstanding that these matters were covered in the judgment, in my view the judge’s approach in this case was not sufficient.  The case had been set up by way of a two-stage hearing in which findings of fact would first be made, as the judge did on 3 August, and then the way forward with regard to contact would be considered in the light of those findings.  The purpose of the parents’ evidence at the fact finding hearing was principally to enable the judge to determine what had happened in the past, factually.  Clearly he will have learned in the course of that something of how events had affected the mother and the children but that was not the focus of that hearing.  It was something that needed to be examined again in the light of the findings that the judge made.  As for the father, he needed to have a chance – once the findings had been made – to explain how he had responded to what the judge had found against him and to give evidence as to how his attitude in future would be likely to be different.  Self-evidently the father could not do that at an earlier stage because by no means were all the matters admitted by him.  That process had to await the outcome of the fact finding hearing.  The parents both therefore needed the opportunity to give further evidence before decisions were made about contact.  

19.	Furthermore the judge had a specific obligation under paragraph 16 of Practice Direction 12J.  That obligation was to consider whether to order a Cafcass report.  The obligation is to order one unless it is not necessary to do so in order to safeguard the child’s interests.  The judge did consider the possibility and was influenced – and one sympathises with him with regard to this – by the delay that there would be and therefore declined to order a report.  That may not have been fatal if the issues in this case had been ones which were within the judge’s own expertise or if he had taken an alternative course to furnish himself with the sort of relevant information that he could have obtained from a Cafcass report.  Here that sort of information could have been supplied – possibly supplied even more effectively – through a psychological report into the case, but the judge also declined to order that.  I am afraid that on the facts of this case that was not the correct decision.  There were matters in this case which the judge either did not examine sufficiently himself or in relation to which he required help from those equipped with extra professional expertise.  The behaviour which the judge found on the part of the father dated back to a time when the parties were together in 2007, a time at which there was no issue with regard to contact and the behaviour could not therefore all be put down to agitation in relation to disputes over contact.  Furthermore, the behaviour had not stopped entirely once the father got contact with the children.  The April 2011 incident took place after that point and it took place also at a time when the children were present and at a time when the parties saw each other at the contact centre.  It was also part of a chronology of events that spanned several years and in that context it could not necessarily be isolated and treated as just one isolated event at the end of a course of conduct.  It also took place, one notes from the argument, at a time when the father was apparently in better emotional health because he was no longer taking antidepressants.  That rather belied the judge’s assumption that the father’s mental health accounted for his problem behaviour.  The reason for his behaviour may have been rather more complex than that and it was necessary to explore further what the problem was and what the father’s attitude was to his past behaviour in order to evaluate how he may respond in the future and what impact this might have on the mother and the children.  Had the judge gone through the discipline of examining the factors set out in the practice direction each in turn, setting out, albeit in a short judgment, what the position was in relation to each of those factors and why, if it be the case, he thought that he could determine them on the evidence as it stood without further expert assistance, in this particular case he would almost inevitably have realised that the correct decision was in fact to adjourn for further assistance from a psychologist at least and it seems to me he would not have felt able to proceed to make decisions immediately as he in fact did.  

20.	In all the circumstances therefore I accept the submissions made on behalf of the appellant mother and I would allow the appeal and seek to give directions with regard to the obtaining now of expert assistance.  I would have in mind that the instruction of a psychologist who assessed the entirety of the case, seeing both of the parents, would be an appropriate way forward although of course there may be submissions to be made as to whether it would be necessary to have a Cafcass report as well as that.  

SIR JOHN CHADWICK:

21.	I agree.

LORD JUSTICE THORPE:

22.	I also agree.

Order:  Appeal allowed.