Case No: B4/2009/0460

Neutral Citation Number: [2009] EWCA Civ 908
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM EXETER COUNTY COURT
(HIS HONOUR JUDGE TYZACK QC)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Tuesday, 7th July 2009

Before:

LORD JUSTICE LONGMORE
and
MR JUSTICE BODEY

- - - - - - - - - - - - - - - - - - - - -

IN THE MATTER OF P (A Child)

- - - - - - - - - - - - - - - - - - - - -

(DAR Transcript of 
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No:  020 7404 1400  Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

- - - - - - - - - - - - - - - - - - - - -

Miss Ingham (instructed by Michelmores LLP) appeared on behalf of the Appellant.

THE RESPONDENT APPEARED IN PERSON, ASSISTED BY A MCKENZIE FRIEND

- - - - - - - - - - - - - - - - - - - - -
Judgment

Mr Justice Bodey:

1.	No report of this judgment shall disclose the identity of the child concerned nor any information likely to reveal her identity.

2.	This is a mother’s appeal with the leave of a single Lord Justice against a fact-finding determination by HHJ Tyzack QC, sitting at Exeter, given at the conclusion of a three-day hearing in December 2008.  He initially gave an extempore headline judgment when the hearing ended, in the hope of being able to proceed to the so-called “welfare” decisions about the child straightaway.  His full written judgment came later, dated 19 January 2009 and delivered or handed down on 16 February 2009.

3.	The child concerned is A, who was born on 17 May 2000 and was therefore eight at the time of the hearing.  She is now aged nine. She was six at the time of the events in issue.  She had and has a Rule 9.5 children’s guardian representing her interests.  The children’s guardian is neutral as regards this appeal.  I shall call the mother “the mother” and the father “the father”.  The underlying question is as to the nature and extent of the father’s contact to A; simple enough one might think; but, as so often happens, it raised not only numerous disputes of fact, but also a need to try to gain some insight into the personalities of the parents and the dynamics of their relationship so as to form a view as to what was likely to have been going on with A and where the truth in various respects might lie.

4.	The background shortly stated is as follows.  In 1996 the parties were married, and A came along four years later in 2000.  Unhappily, the marriage did not survive much longer than that, and it finally broke down in September 2002 when the mother left the matrimonial home with A.  She has been A’s primary carer throughout.  Contact arrangements were regulated by the Guildford County Court in May 2003, September 2003 and again in January 2004.  These orders provided, in brief, for the father to have staying contact every alternate weekend and further contact during holidays, together with some visiting contact.

5.	In April 2004 the mother moved with A from Surrey to Devon, a fact which the learned judge found had put added strain on the contact arrangements. Each parent accuses the other of being difficult about contact in different ways, but the fact remains that the mother did facilitate contact at all material times up until the events which I am about to relate.

6.	On 21 December 2006 the mother issued a notice of application in the Exeter County Court to suspend the father’s contact, stating in her Form C1: 
“…I do not feel that any contact is in the best interests of A.  It appears to me that [the father] has been causing [A] emotional and possibly physical abuse during his contact with [her]. ”

Her application was specifically for a suspension of the father’s contact with A pending investigations.

7.	This was amplified on the basis of the mother’s perception of A’s having increasing anxieties about contact as a result of various unsuitable things which the mother said A was telling her (the mother) that the father was saying to her (A) during contact. These, as recorded by the mother, included the father’s allegedly telling A and I quote from the mother’s notice of application: 

“I am going to smash mummy’s face in”.
“I am going to kick all your family up the backside”.
“If you don’t see me you will go to prison”.
“I will take mummy back to court”.
“Mummy doesn’t love you”.
“I am going to take you away”.
“Mummy is not a proper mummy”.

8.	There were other matters relied upon by the mother in her Notice of Application, again being matters which she said she had been told by A: namely that the father had smacked her, A, for no reason and had told her stories of when he was a child and he had set fire to his bedroom.  The mother said that such stories had made A scared of lit candles.

9.	In addition the mother annexed to her Notice of Application (this is still that dated 21 December 2006) a note which she said A had sat down and written, which note was in three parts divided by horizontal lines written in childlike hand: 
“She is not a proper 
mummy but I think 
she is a proper mummy.”

Then: 
“Hallow mumpants
Poppoppop rubrubrub
and I don’t like 
that atall [sic]”

“Its not up to you 
if you do not whant [sic}
to go to my house…”

The note then becomes unintelligible.

10.	On 3 January 2007 a district judge at Exeter County Court made an order on the basis of the mother’s application, which varied contact down to visiting contact only.  That was to take place in Devon every other weekend for each of Saturday and Sunday, but with A being returned home to the mother on each Saturday night.  Subsequently, as the proceedings progressed, contact became limited to supervised contact at a contact centre.  Various experts became involved, all of whom prepared reports, including a CAFCASS officer whom I shall call Mrs L, who saw A several times.  There was a psychological assessment by a chartered psychologist, Carolyn Steen, who also saw A, and a report by a clinical psychologist, Dr Parffrey, who conducted play therapy with A to help her with her perceived anxieties.  Last, there was a psychiatric report in respect of each of the mother and the father by a Dr Gallwey, a consultant forensic psychiatrist. In addition the parties relied upon voluminous statements, which fill a good part of a lever arch file.  It emerged from those statements that this had been a very conflicted relationship, there being agreement between the mother and father about very little indeed.  Each accused the other of having been aggressive, domineering and violent during the course of the marriage, the mother expressing concerns, in particular to her GP, that A might be treated to similar types of behaviour during contact as she, the mother, said she had been subjected to.  Schedules of allegations and cross-allegations were prepared in an attempt to make the fact-finding process more manageable.

11.	HHJ Tyzack had had the case before him for case management purposes on several occasions, particularly in October 2007, March and July 2008 and, lastly, for a pre-trial review on 11 December 2008.  He then took the hearing very shortly after that in December 2008. At the final hearing he heard live evidence from the mother, the father, Dr Gallwey, Mrs Steen and the father’s mother, ie the paternal grandmother.  He read the bundles and viewed a DVD of an argument between the parties, which had been recorded shortly before the marriage broke down in 2002.  At that hearing the mother and the children’s guardian were represented by counsel, in the mother’s case by Miss Ingham, who appears before us.  The father represented himself, as he does today, assisted by a McKenzie friend.

12.	The conclusion reached by the judge was that, whilst he accepted that the father had said some inappropriate things to A about the mother (just by way of example: “Whatever is mummy thinking of?”), he was not satisfied that he, the father, had said to A the more serious and worrying things cited above.  He noted that the earliest report by the child recorded by any independent adult (ie leaving aside the mother) was a report by a general practitioner, Dr S, to whom the mother had taken A in September 2006.

13.	This is the way in which Dr S put it in a letter dated 6 July 2007.  She reported that the mother had come in to see her in the surgery in September 2006 reporting a history of bullying behaviour by the father towards her and stating that she was now concerned that such behaviour might be directed at A.  Her letter continues:

“[A] was brought to see me on 30 November 06 to talk about her visits to her dad.  She came across as a very calm and coherent six-year-old.  She explained that her dad collected her and brought her home again but that he did not come into the house in Devon.  She told me that she was both happy and sad about seeing him, that she enjoyed the activities they do but was also upset by things that he said. She reported that her dad told her that her mummy lies and that he would do things, such as pretending to speak to mummy on a toy phone and then do what she called a ‘poppy’ followed by wiping the phone on his bottom.  She also said that he told her that mummy’s family did not really love her, only he did.  With prompting from mum, she then made a clear report of her dad threatening to smash her mum’s face and also, with prompting, reported being smacked for no reason that she could recall and another incident, when she was playing with a towel, and was accidentally hurt, but then felt blamed for the accident by her dad.  [A] said she wanted to see her dad and did not want her visits to him to stop but wanted the behaviour she described to stop.  

We talked about sleep and whether she was frightened at times and she said that sometimes, at mummy’s, she did not sleep well but she did not tie this in to her visits or return from visits to her dad. Mum was present throughout this consultation and did at times, as I have reported, need to prompt [A] to tell me about some of the events above, but all the events were reported by [A] herself, in her own words.”

14.	The learned judge commented upon the fact that the CAFCASS officer, Mrs L, had subsequently spoken with A during 2007 and had also been told by A of inappropriate things which A said the father had said to her.  It is clear that this was done without any verbatim recording being kept.  The judge further observed that another social worker had previously spoken with A before Mrs L, namely a Mr B, from whom again there was no record of the conversation with the child.  The learned judge referred in his judgment to the lessons of the Cleveland Inquiry, namely about the delicate and sensitive task of obtaining reliable information from young children, A having been aged six in 2006.  He concluded that it would be “unsafe” to find it proved that the father had said to A the serious and very worrying things which were being alleged against him.  His judgment was underpinned by the following extracts, which show his perception of how the case had grown into being.  He stated that, for the father to have said the things to A which were alleged, it would require the father to be an: 

“…embittered man with an agenda to undermine [A’s] relationship with her mother and having a hostile and aggressive attitude towards the mother, and being quite willing to manifest all these characteristics in front of [A] without having any regard to her welfare at all …”.

He then went on to say this: 

“21. But I do not find the father to be this kind of man at all.  Whilst I accept that he is equally responsible with the mother for the general background acrimony that has pervaded this litigation, and he probably has I find said inappropriate things in front of [A], I do not find him to be an especially embittered and hostile man as is alleged.  For example his attitude to being told that he could stay to watch the nativity play in 2007 having just driven 150 miles, was to accept the decision and drive back to Surrey.  There is no evidence of a scene or argument; that is I find inconsistent with the overall picture of him presented by the mother.  Furthermore I noted particularly that his cross-examination of the mother (conducted of course by him as a litigant in person) bore no trace at all of bitterness and was not actually in the least hostile or aggressive --  it was calm, composed, sensitive and courteous cross-examination. Had he been an angry hostile and embittered man, it would I find have been very difficult indeed for him, as a litigant in person, to have disguised these emotions.  I find as I say that it was a calm and courteous cross-examination -- his questions were carefully composed, thoughtful, logically arranged and sensitively asked ... 

22. On balance I find that the father satisfied me that it was the mother who sought to dominate the way contact was arranged and not the other way round.  I find that the likelihood is that she has not taken any adequate steps to disguise her negativity of the father in [A’s] presence.  Where there are factual differences between them whether on contact issues or their own relationship issues, I prefer the evidence of the father.”

He continued:

“ … the finding I make is that he probably did from time to time say things in [A’s] presence which were derogatory of the mother and inappropriate; and the likelihood is that [A] would not have liked this, and indeed would have told her mother about them.  I find in all the circumstances that the likelihood is that this would have annoyed and irritated the mother and it is likely that she would not have disguised her feelings from [A] … 

25.  So what is the explanation for [A’s] reported remarks? It is always I find very difficult to reach clear conclusions about why a child as young as [A] has said what she is reported to have said.  There are so many possibilities.  I do not find that the mother has deliberately sat [A] down and then carefully coached or drilled her.  However what I do find is that in the emotional conflict that [A] was caught up in over so many years both before and after the separation, she was likely to have been influenced to say things which over time she discovered her mother listened to and were perceived as being very important. 

The probability in my judgment is that this started from something relatively innocuous such as the sort of things that the father admits he has said; then [A] found that her mother was taking her to see a number of professionals -- social worker, doctor and child and family reporter. The danger in my judgment is that in this whole context, this whole process is likely to have conveyed to [A] the message that everything she said was likely to be treated by the mother as being ‘very important’. 

It may be as well that [A] wanted to gain her mother’s attention, faced as she was in 2004/5 with the new situation of the mother’s partner [B] with his children coming on the scene, and she may well have found that the things she said readily gained that attention.  It may well be, as Mrs Steen, said that [A] was initially upset by being moved from Surrey to Devon and was disturbed by the kind of contact that occurred after that, with so much travelling involved, and that she was then really too young to handle it.”

15.	As regards the above letter from Dr S the judge said in his judgment: 

“If this case had not had the evidential ‘baggage’ of the parental acrimony for so much of [A’s] life, together with the findings I have already made in relation to the mother, it might well have been possible for the court to have found that what [A] was saying to [Dr S] was capable of being believed on a balance of probability.  The difficulty I find is that I cannot ignore those findings and whilst I do find that [A] did say the things set out in [Dr S’s] report and that that is all very troubling that she should be saying those things, I am unable in this case to say that what she said is more likely than not to be true in the sense that she is truly reporting what her father has actually said and done.”

16.	One of the particular passages complained of by Miss Ingham to which I shall revert appears a little later on within the judgment, where the judge said this: 

“The problem is, as I have said above, that there are other possibilities for [A] saying these things; before the court can make a finding that a fact is proved on a balance of probability it needs to exclude all other reasonable possibilities. In this case I am unable to exclude the possibility that it is unsafe to rely on what [A] has said because she has for so long been living within the context of an acrimonious domestic situation, living with a mother who has I find shown herself to be very negative of the father in [A’s] presence and also I find is a person who has tried to distort the way she presents herself to this court and is therefore capable of manipulation for her own purposes”

17.	The professional witness upon whose evidence the judge attached particular weight was the chartered psychologist, Mrs Steen.  About her he said this: 

“Mrs Steen then went on to describe the major changes which occurred in [A’s] life including the move to Devon and the difficulties which this imposed so far as contact was concerned -- especially the substantial amount of travelling involved.  Then she says ‘There is every reason to think that she [A] would have anxieties and fears arising from the years of disruption and conflict between her parents, entailing her mother’s anxieties and her father’s exasperation and frustration.…. Given the history it would be expected that [A] might lack confidence, be fearful of offending either parent and be particularly sensitive to adverse criticism of one of the other and insensitive treatment by either parent..… For whatever reasons she has found some of the experiences she has had with her father frightening and inappropriate… whether the incidents which caused her fear are directly responsible for her bedwetting and nightmares can not be confirmed with any certainty given her experiences in her early childhood which could equally have been a cause for anxiety…’”

The learned judge then recorded Mrs Steen saying:

“… [The mother] in my opinion does not seek to undermine [A’s] relation with her father deliberately.  However [the mother] does not appear to have understood [A’s] needs, fears and insecurities which are not entirely due to inappropriate comments made by [the father].  She should consider attending conciliation meetings with [the father] with the view to working with him so that together they offer [A] a united and caring experience of parenting…”

The judge said he accepted that opinion.

18.	Then, dealing with the father, the judge quoted Mrs Steen as saying this:

“I believe that he has not been particularly sensitive to [A’s] position as totally dependent on her mother.  He appears at times [to] let his criticism of her mother intrude into their relationship… [He] appears to be opinionated and very ebullient in his expressions.  Generally I would not say that he is given to physical aggression though his criticisms of people and situations are acute.  He has been encouraged to get help with the way he approaches [A].  Conciliation meetings conducted by a professional [she means with the mother] would help in this regard…”

The judge also accepted that assessment by Mrs Steen of the father, and he made a finding that the father has always been willing to engage in conciliation.

19.	The judge went on to say that he found Mrs Steen to be a very helpful expert witness in what he described as “this difficult case”.  He said he found her reports and oral evidence to be on the whole balanced, objective and professional: 

“…I say on the whole because in my judgment she too allowed herself to fall into the trap of elevating what [A] says into unqualified factual occurrences.  With that reservation I accept her assessments of the parents and [A] because they seem to me to be generally consistent with the weight of the evidence which I have heard and read in this case.  Basically I accept her overall assessment of this case…”

20.	When he came to deal with the parents themselves, the judge said this:

“I heard the evidence of each parent and read very carefully all their respective written material.  As I have said above each accuses the other of being controlling and on occasions physically violent. The mother entirely rejects the description in Mrs Steen’s report that there was ‘parental conflict’ saying that every bit was the responsibility of the father and nothing to do with her. She has claimed in the past that she is so terrified of the father that she is unable to come into court when he is present. His case is that she was the dominant party who during the marriage was violent to him and wanted her own way, and then after the separation determined what contact he could have.  He argues that she has sought to present in a very different way to the way he experienced her behaviour and moods.  He also points out that the mother is quite prepared to come into court when it suits her.  

68. In my judgment there are many inconsistencies in the mother’s evidence some of which I have already referred to.  First if she was terrified of the father it is unlikely she would have permitted him to have contact to [A] alone with her at her home or at outings such as swimming, she would surely have wanted someone else there; second she has not been consistent with her alleged inability to come into court when the father has been present -- sometimes she has evidently found it quite possible to do so; third I have already referred above to the DVD;  this does not show a woman who is frightened of her husband -- indeed quite the reverse in my judgment; fourthly his reaction to being told he could not see [A’s] play in 2007 was calm and restrained and finally the father did not come across to me in his evidence or in the way he conducted his case as a bullying aggressive, controlling sort of man.  I was surprised by the mother’s initial reaction to Mrs Steen’s report, namely a reluctance to read it; no satisfactory explanation has been provided for this and in its absence I am driven to the conclusion that the mother quite simply did not agree with it so was not going to read it.  This is consistent with the father’s evidence of her needing to have her own way and of course Mrs Steen was saying things that she the mother did not like”

Pausing there, I understand from the documentation that I have read that the mother had in fact been taken through Mrs Steen’s report, but by her solicitors, and that she had not read it to herself.

21.	Finally, the judge dealt with the evidence of the father’s mother, the paternal grandmother, whom the father had called to give evidence.  She had given evidence in writing about her perception of the mother before the parties separated: namely that she (the mother) had appeared cold, distant and discouraging of a relationship between A and her (the grandmother).  She, the grandmother, spoke of the father’s taking A to her home in the days before contact became circumscribed and of the mother’s insisting on phoning up to speak to A.  She, the paternal grandmother, described A as being anxious and frightened about missing her mother’s phone calls.  On one occasion the grandmother spoke of having overheard the mother say over the telephone to A “…Do you want to come home?”.  If something like that is said by a parent during a child’s contact it generally sheds a light on the insight of that parent.  The judge said that he found the paternal grandmother to be a credible and compelling witness.

22.	Miss Ingham, who represented the mother below, has persuasively put the mother’s case at this appeal and could not have said more in her endeavour to persuade us that the judge’s approach was wrong and that his conclusion should be set aside, with a re-hearing ordered.  Her Amended Grounds of Appeal raise matters of complaint in some 11 paragraphs, all of which I have read and carefully considered, but the main grounds as developed in oral submission are as follows:

23.	First, Miss Ingham says that the judge got the standard of proof wrong.  I have already referred to one of the two passages concerned, but there are in fact two passages where the judge said that he had to “exclude all other reasonable possibilities” before finding a fact proved on the balance of probability.  By his so stating, Miss Ingham submits that the judge erred because he came close to conflating the civil standard of proof with the criminal standard of proof.  I do not accept this argument.  The judge said early on in the judgment at paragraph 11 that “…the standard of proof is the civil standard, namely the balance of probabilities”, and it is quite clear from the context of the criticised passages that, by referring to “other reasonable possibilities or explanations”, he was meaning other possible explanations which were of at least a similar degree of likelihood as that the father had in fact said the things alleged.

24.	When surveying the totality of the evidence before him, the judge concluded there was another equally credible explanation for the child’s allegations, in fact, given his findings about the father, a more likely explanation for the allegations: namely that, against a background of chronic unremitting strife and acrimony between the parents, the mother had probably misconstrued innocuous things said to her by A and that, through her, these things had then come to take on a status of their own as the mother’s anxieties fuelled the things which the child was saying.  

25.	That was a finding entirely open to the learned judge on all the evidence which he had heard, and I am not persuaded that his reference to “excluding other reasonable possibilities” negates his clear recognition that the standard of proof which the mother had to attain was the balance of probabilities: namely that it was more likely that any other possible explanation that the father had in fact been saying the serious things to A.  

26.	Second, and perhaps Miss Ingham’s main point, is that the judge put to one side A’s allegations and the circumstances of her making them, in particular her making them to Mrs L.  Instead, she submits, he concentrated more on the issue of credibility as between the parents, failing to analyse the likely veracity of what A was saying, or to consider how the child had come over to the various adults namely the GP, Dr S, Mrs L, Mrs Steen and Dr Parffrey.  It is right that they all said in different ways, or else implied, that A struck them as an honest child who said what she said calmly and with a measure of detail.  Miss Ingham said more than once that the judge had failed to “analyse” A’s claims and that this failure had distorted his overall view of the evidence.  Again, I am not persuaded of this.  In a sense the submission points up the difficulty in reaching delicate and sensitive decisions such as this one, namely trying to decide what to make of young children’s assertions in a context of relationship acrimony, and where the only person charged with the task and with the information to hand to take an overview is the judge.  He hears evidence from witnesses who are not equipped in that way.  The judge was clearly faced with a child who had told various people various things, although in fact making minimal disclosure to Dr Parffrey, and had done so with every outward sign of being truthful.   So many children do so.  It is frequently a “given” in these situations.  Otherwise such cases as this would barely trouble the court at all.  

27.	What useful “analysis” could the judge have made which would better have informed the task which he had to undertake?  He knew the expert’s views of the child’s demeanour and as to her essential consistency because, as he said, he had read the reports in the bundles and, further, had heard from Mrs Steen. She said for example in her report dated 15 March 2008: 

“[A] now appears to be an intelligent and honest child, who was confident enough to express her fears, likes and dislikes to several people over the last year.  For whatever reasons she has found some of the experiences she has had with her father frightening and inappropriate.  She has been able to tell her mother who is understandably concerned.”

28.	The judge’s task was to consider, therefore, as he did, the only other person privy to what went on as between A and the father, namely the father.  He did so by reference to everything which he had read, heard and seen.  This inevitably, by the way in which the battle lines were drawn, thrust him into findings as to credibility as between the father and the mother, each accusing the other of being domineering, abusive and violent during the course of their relationship.  Having done so, he came down firmly on the side of the father.  

29.	He was aware of and cited in his judgment the mother’s case on affidavit where she said: 

“I do not agree with Mrs Steen’s finding that this is a matter which can be resolved by conciliation.  I am finding these proceedings extremely difficult to cope with and the thought of being in the same room as the Respondent terrifies me and causes me a great amount of anxiety.  I am not, on an emotional level, able to speak with him at the present time and, until there is evidence that [he] is taking steps to address his behaviour, I do not see how any conciliation meeting will help in any event.”

The judge had viewed, as my Lord and I have done, a DVD which was made before the break-up of the marriage.  It showed an argument between the parties which, most unfortunately, occurred in front of the child then aged two.  The mother had opposed the admission of this DVD, saying that it was not complete, which indeed is plain, and saying that the mother was not aware that it was being made.  Therefore (it had been submitted) it would not be fair to admit it into evidence, but the judge did so.  In my judgment he was right to do so.  The court needs all the help it can get, in these extremely difficult cases, in trying to understand the dynamics of a couple’s relationship, being something which manifests itself mainly within the four walls of their home.

The judge found as a fact, which is not assailable in this court, that neither party had realised that the fixed camcorder was still running after the father had been videoing the child playing.  This DVD shows very clearly an argument in which the mother was the dominant party, shouting at the father and pointing at him.  Even if, which is not the finding, the father did know that the video was running and could therefore have adapted his behaviour accordingly, it still gave the judge a valuable insight when seen in the light of the mother’s expressed inability to contemplate any conciliation or mediation with the father, due to her great fear of him.  

30.	Other materials were before the judge to help him reach a conclusion as between the parents in deciding on their respective credibility and on the likelihood of how A’s allegations came to light.  For example, in respect of the Nativity play in 2007, of which reference has been made already in this judgment, when the husband (outside supervised contact hours) went to see the play and sat in the audience.  Whether that counts as contact is a moot point.  When the mother saw him in the audience, she took the child off to speak with the school staff, who had say in a letter that the mother told them the child would not be going on stage with the father there.  Accordingly, so that A would not miss being in the Nativity play, the school staff politely asked the father to leave, which he did, making no fuss about it and drove himself back from Devon to Surrey.  The judge was quite entitled to take a poor view of the mother and a favourable view of the father in this respect in that (although it might have been unwise for him to attend the play without any warning) he was completely receptive to the request by the school to leave and did so without making any embarrassing fuss.

31.	Then again in 2008 the mother opposed the father’s attendance at the following year’s Nativity play.  Dr Gallwey’s opinion of her is that she has an adjustment disorder with mixed anxiety and depressive mood.  This was raised before the judge at the pre-trial review in December 2008 as explaining why she could not contemplate the father attending the play.  When it appeared that there were two nights when the Nativity play was being shown, the judge’s view, unsurprisingly, was that that solved the problem.  But no, because the mother had a Christmas party which she wished to go to on the night which would have been hers.  In the result the judge directed that the father be permitted to attend one of the plays, but that was done only in the teeth of opposition by the mother.  In fact, as we understand, the evening went off perfectly alright.

32.	The judge had before him the evidence of the paternal grandmother, namely as to her impressions of the mother and of her hearing the mother ask the child “Do you want to come home?”  That was one of the father’s scheduled allegations.  The judge, as I have said, found the grandmother to be a credible and compelling witness.  Indeed he described it as lamentable that there was no relationship between the grandmother and A. 

33.	Thus there was a raft of material to justify the judge’s finding that the father was not the sort of man to make the serious alleged remarks to the child.  That was clearly to be set against the other material which he had read from the experts, and he ended up not satisfied that the mother had made out her case, particularly in view of the way the evidence through the questioning of the child had been forensically compromised in the early stages.  

34.	Third, Miss Ingham complains that Mrs L, the CAFCASS officer should have been called, if necessary, by the judge before he parted company with her observational evidence in 2007, or criticised the validity of her report.  Again, I do not agree. It may be that, if the father had had lawyers at the pre-trial review, then arrangements would have been made for Mrs L to have been called to explore the points in respect of which the judge ended up criticising her report: but this was not, in my view, essential.  Time was pressing at the main hearing, and one of the tasks of the judge of the pre-trial review was to take proportionate case management decisions.  This was fully ventilated, and it was left that all parties would be enabled to make such comments on Mrs L’s report as they wished.  

35.	The difficulties which Mrs L’s report created through its setting out no verbatim account of her interviews with the child were clear on the face of the document, and there is no suggestion that the learned judge dismissed Mrs L’s conclusions as to the child’s demeanour.  He simply looked at the totality of the evidence in the case, as was his job, and as he was the only person able to do.  

36.	Miss Ingham does have some other criticisms of the judgment and of the judge’s handling of the case as per her written material; but I am satisfied that they are relatively de minimis and could not in any way affect the decision on this appeal, which appeal I would dismiss.

37.	As a postscript (and this is not information which has affected my decision on the fact-finding issue in any way), we are told that contact is presently still supervised and that the case will be reverting to the County Court for a decision as to where to go next.  Mrs Steen recommended that both parents need professional help, but seemingly the mother has not been willing or felt able to “engage”, though the father makes this offer.  This is against the background of contact which as such has throughout gone very well, with the child hugging father, playing well with him, conversing with him, saying that she wants to see him and indicating no fear of him. 

38.	The latest report is from Mr Williams, the children’s guardian, and which is dated 28 September 2008.  He there reports having interviewed A on five separate occasions and having undertaken four observed contact sessions.  In all of these he observed a strong bond between father and daughter. He saw the father able to talk to A at an age-appropriate level; he saw sessions passing off without any hint of trauma; he saw A showing great spontaneity with her father and making it evident that she enjoyed being with him.  He saw both father and daughter enjoying themselves immensely, completely engrossed in each other’s company, interacting with each other in wholly appropriate ways.  He found that A had matured and was now making it clear that she wanted contact to alter so that she could have time with her father alone, without any longer in need of a chaperone.  She showed a deep sense of loyalty to both parents, which Mr Williams described as “quite remarkable in the circumstances”.  He mentions one occasion when he said to the mother that A had had a really good time with the father.  His report says: 

“…At this, [A] glared at me, and it quickly became apparent that she did not want me to discuss the contact that she had had with her Father, with her Mother.  [The mother] appeared genuinely pleased that [A] had enjoyed contact, but this did not appear to placate [A] in the slightest.”

Subsequently he said that he felt that this was significant in showing the split loyalties which the child has.  I would agree.

39.	In mentioning the mother’s attitude to conciliation, the children’s guardian records the following, namely that the mother still believes that what A said was absolutely true and that: 

“ … this coupled to the behaviour which she states was exhibited towards her [ie herself, the mother] shows [to the mother’s mind] that [the father] is a dangerous man.”

This case seems to me to have all the potential for one with serious long term contact problems which, if they were to occur, would do enormous harm to A’s sense of self-worth and would significantly impede her maturation into adolescence and beyond.  The consequences for her of the parents not finding some resolution to these relationship difficulties of theirs which are part of the baggage of their failed marriage are extremely serious. 

40.	I urge the mother as strongly as I can therefore to accept that this decision now means that the fact-finding process is finished and to accept the advice of Mrs Steen, as endorsed by the judge, that the way forward here -- and I would suggest the only way forward, as compared with adversarial litigation -- is by way of conciliation, mediation, counselling or any other such ways which the children’s guardian can recommend, which might enable the father and herself to gain some trust and respect one for the other.

Lord Justice Longmore:  

41.	I agree, and I would particularly wish to associate myself with my Lord’s concluding remarks about the future of this relationship and of A.  I just add, on the substance of the matter this: that Miss Ingham complained, in particular, of the judge’s holding, at paragraph 51 of his judgment, that before a court can make a finding that a fact is proved it needs to exclude all other reasonable possibilities.  She complains that that elevated the standard of proof in this case almost to a criminal standard.  I do not agree with that.  A decision on the question whether a fact is proved on a balance of probabilities must have regard to the alternatives.  The judge has to weigh up the probabilities, and the existence of other possibilities must always be relevant.

42.	The reference to “exclude” or “exclusion” is only relevant to the question whether, on the balance of probabilities, the father had said what A had said he said.  On that question the judge said, applying the test of the balance of probabilities, that the father had not, and that, in my judgment, really has to be the end of the matter. 

43.	I also agree with all the other reasons that Bodey J has given in his judgment and this appeal will be dismissed.

Order: Appeal dismissed