Case No: B4/2012/1637(B)
Neutral Citation Number: [2012] EWCA Civ 1788
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CHELMSFORD COUNTY COURT
(HER HONOUR JUDGE MURFITT)

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday, 15 November 2012

Before:

LORD JUSTICE THORPE
LORD JUSTICE MCFARLANE 
and
LADY JUSTICE ARDEN
- - - - - - - - - - - - - - - - - - - - -

IN THE MATTER OF W (Children)

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

(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)

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

Ms Helen Knott (instructed by Messrs Sparlings) appeared on behalf of the Appellant father.

Mr David Ball (instructed by the Beavis Partnership LLP) appeared on behalf of the Respondent mother.

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

Lord Justice McFarlane:

1.	This is an appeal in proceedings which relate to the welfare of two girls.  Nothing that is said in this judgment or during the course of this hearing should identify the girls as being subject to proceedings or indeed their parents as being parents of children who are in the course of ongoing family proceedings.

2.	The appeal relates to a decision by Her Honour Judge Murfitt announced in a judgment given on 12 June 2012, which resulted in an order for no further direct contact between the father of the girls, who is MW, and the girls.  There is provision for some indirect contact.  And it is against that conclusion and the conduct of the hearing and the structure of the judgment that the appeal is focused, permission to appeal having been given by Black LJ on 27 July.

3.	The girls are L born on [a date in] 2003 and, therefore, now over nine and a half years, and S born on [a date in] 2005, therefore just seven.  As the judge records at the beginning of one of her earlier judgments, by that stage (which is February this year) there had been some 13 applications, 27 orders and since 2005 there have been at least three hearings relating to non‑molestation injunctions, with seven relating to contact and residence.  The seven should now read nine and includes a further hearing, this one today in the Court of Appeal.  There is a substantial history, therefore, which I do not propose to draw into this judgment.

4.	The parents have been antagonistic towards each other over a period of time and part of (and it may be at the root of) the difficulties in this family is the established fact that the father has been diagnosed since 2005 with "Alcohol Dependency Syndrome" and that he has, despite interventions and courses that he has undertaken, continued, certainly in recent times, to consume alcohol regularly and effectively his presentation before the judge was that he did not currently have a problem with his consumption of alcohol.

5.	The history includes some findings of breach of non‑molestation injunctions and those are recorded by the judge and I do not draw them into this judgment other than to refer to them.  The important aspect of the case for our consideration is contact and the good news, as it were, for this family was that from early 2010 onwards, following intervention from the local Social Services Department via section 7 reports, the consideration by a number of local judges for ways of moving contact on and the cooperation of Mrs SW, the girls' mother, a regime of contact which started with supervised or supported contact at a contact centre moved on to more loosely family supervised contact at Mr W's home.  And latterly, trips out for him with the girls in the community took place and developed in a way which showed encouraging signs.  The judge records this history in her judgment and also records that during this period Mr W was undertaking a course in anger management, some 32 weekly sessions, and was continuing to attend the local alcohol support project.

6.	Matters were not, however, plain sailing and as the judge records contact was at one stage suspended in December 2010 following an altercation that took place at the grandparents' home, where it is said that Mr W, having consumed alcohol, became aggressive to some degree.  But the contact restarted and it was in that context that the father saw the girls on 13 February 2011.  That is a key date because it is the birthday of the older child, L, who was eight on that day.  A birthday party had been arranged in a local public house, which apparently seems to have rooms for such events and the attendance of children.   The plan was for the father to have the girls in his company out in the community before the party, bring them to the party and for him to attend the party.  Unhappily, matters really could not have gone more badly for the girls, for the mother and the father, than was the case on 13 February.  I will turn to the details in a moment, but the upshot was that as a result of what she considered was the father's behaviour on that day, the mother refused all further contact.  There has not been any organised direct contact between the father and the girls since then.  That is some eighteen months or more ago and the court became involved in undertaking a fact finding process as to what had taken place and then determining what the outcome was in welfare terms for the girls as a result of that fact finding process.

7.	Her Honour Judge Murfitt conducted the fact finding hearing.  Unfortunately, that did not take place until almost precisely one year after the event that was being investigated and her judgment is dated 15 February 2012.  She goes in the course of that judgment into a lot of detail about the event.  I do no more than summarise matters in this judgment.  Of particular note to my eyes in reading these papers was what happened before the father got to the birthday party, as well obviously as what took place once he had arrived.

8.	At paragraph 19 of the judgment the judge sets out in some detail there that the father engineered a conversation with the girls, principally L, whilst he was out in the car with them and he had with him some form of audio recording equipment.  He asks L a number of questions and reassures her on a number of occasions that he is not going to tell anybody what she might say about her mother and he then goes on to question her about how the mother and the mother's partner, Mr H, look after the children and how they approach them.  At the end of the conversation, which of course we all know about because the father tape recorded it, the judge records this:
 
"... [L] again asks her father not to tell mummy and he specifically promises her 'I won't talk about anything [L], I can assure you that.  I am not ‘gonna rock the boat.'"

9.	 Matters move on and he arrives at the party and again the detail is set out in the judge's judgment.  It is plain from his own admission and indeed the evidence of his then partner that during the course of the party Mr W consumed five pints of bitter and I think a half pint of shandy.  On a number of occasions he went up to the mother and sought to engage her in conversation about what he had been told, he said, in the car by the girls that very day.  At one stage the judge quotes this as coming from the evidence, I think of the mother, "On her account of it, Mr W repeatedly came up to her over the next hour saying sarcastically, 'lovely party, you’re going to be crucified when you hear the tape, I've got [L] and [S] on tape saying they want to live with me’." Then later, "it's going to be like a knife in your heart" and “You're going to be crucified".  And the judge records Mrs W's evidence which is that she was reduced to tears at her daughter's birthday party by the girls' father's behaviour.

10.	I focus on those matters to give a flavour of the much more detailed account that the judge gives.  Later in the course of this party, there was an altercation between Mr W and other adults and that is recorded in particular in paragraph 24 of the judgment.

11.	The judge heard at this fact finding hearing evidence from a number of the key players, obviously principally the two parents and she was in particular keen to understand, and found, that L was upset by what had taken place on that occasion.  She made adverse findings of fact about the father's behaviour on that occasion, effectively accepting the account given by the mother and other adult witnesses who were there. But over and above what the judge said about the event itself, she was concerned about the wider picture created by the on/off progress of contact over the course of years, characterised by the orders made in these proceedings and she said this at the last paragraph of her judgment:

"I agree it is a sad pattern.  The stopping and starting of contact cannot be helpful to the children's emotional development.  However I conclude that [Mr W] lacks any insight into how his own behaviour has led to this.  I think that [Mrs W] did attempt to draw a line in the sand, to move contact forward on an amicable basis in the early part of 2011, but that line was effectively kicked over by [Mr W's] behaviour on the occasion of his daughter's 8th birthday."

12.	Reading that as I do, it seems to me almost a message written in neon lights to the father that the judge was expecting him to demonstrate some insight in the period between February 2011 when she said those words and May when she came to determine what the contact arrangements for the future would be.  Unfortunately, as the judge records in her June judgment, the opposite of insight being gained was the case.  The judge was facing at that hearing a polarised position.  The mother was effectively saying enough is enough, I and the children cannot cope any longer with contact to the father even on a supervised basis and there should be no further direct contact.  The father's case was that he wanted to have a return effectively to the regime as it had been before the party, but he would accept some form of supervision, maybe at the grandparents, and if he had to as being the only way of having contact, he would accept more formally supervised contact which was such as was recommended by the author of the section 7 report, Mrs Bartlett; that report being before the court and dated 13 April 2012.

13.	Underneath the father's stance regarding contact on the day in the hearing in May was his openly stated position which was that he saw it being in the children's best interest to leave the primary care of the mother and to reside with him.  In the course of her judgment, the judge rehearses what has been said by each of the two parties in a manner typical of a family judge in these cases, but in particular she notes the following.  At paragraph 23 the mother accepts that there was a good bond between the girls and the father but she really could not contemplate going on further with contact. The mother is quoted as saying, "I cannot have them go through what they have been through all over again. Every time he 'talks the talk' ... I just can't take any more."  Further examples are given.

14.	The father when he gave his evidence was, as I have indicated, unable to show any acceptance of responsibility for anything that had gone wrong in the past contact and in particular on 13 February.  And he was recorded as describing his own behaviour at L's birthday party as being "impeccable and exemplary". The judge on that basis had little difficulty in finding that the father was unlikely to change his behaviour, given his express acceptance that he carried on drinking alcohol and could see no problem with that; neither was there any change in his approach to the mother and the children and the issues in the case and his ability to behave.

15.	The recommendation of Ms Bartlett, which I have described, which was for four supervised contacts sessions a year, was supported by her view of how that form of contact had progressed when it had last been undertaken and largely the reports were positive.  She also noted that so far as the children's wishes and feelings were concerned that L, the eldest, was positive about her father and wanted to see him; but in that regard it is right to note that there was a caveat attached to L's desire to see her father, which was that she wanted to see him and to see if he had stopped drinking.  And at paragraph 6.17 of the report it is put in these terms:

"[L] said that seeing dad again would make her happy.  [L] reported that she would like to see her dad again at a contact centre to see if he keeps his word and stops drinking.  [L] had previously expressed anxiety worry about her father or other people getting into the house and taking her or [S] however she said she no longer worries about that because her mother and [G] told her no one could get into the house.  [L] said she would like father to stop drinking and smoking and her mother to stop smoking."

16.	So the bond which all acknowledge exists between the father and the girls and which is one of the two factors that led Black LJ to give permission to appeal, is in my view on that evidence not a straightforward, normal positive bond.  It is a more complicated relationship and one which (as the quote from the section 7 report shows) carries with it a fairly high level of anxiety on the part of the child.

17.	Judge Murfitt's order, of course, goes against the recommendation of the section 7 report and she gives reasons for that in paragraph 30 of her judgment.  She records the evidence of Ms Bartlett and in particular she records the recommendation and then she records her disagreement by saying:
 
"I do not disagree with any of those observations, but I am not satisfied that Ms Bartlett has gone on to assess the extent to which supervision may be capable of protecting the children from that harm.  Neither has she given consideration to the impact of [Mr W's] behaviour on [Mrs W].  [Mrs W], as the children's primary carer and source of attachment, plays an important role in underpinning and supporting their emotional development.  Moreover the effect on her is first amongst the particular items the Court is enjoined to take account of as set out in para 27 of the President's Practice Direction."

And that is a reference to the Practice Direction in relation to matters of domestic violence.

18.	The judge draws matters together and strikes the balance in favour of there being no direct contact for the foreseeable future, although she leaves open the prospect of the girls seeing their father again when they are older and more able to cope with the emotional fallout as it might be from that experience.

19.	Ms Knott on behalf of the father seeks to establish that the judge came to her conclusion either because she was acting erroneously in the way she approached the legal test or that the conclusion was in any event plainly wrong.  In the course of grounds of appeal which encompass at least six or seven points in the written document, Ms Knott has helpfully reduced the points she wishes to make before us today to three. They are, first of all, the argument that the judge was wrong in law and ignored the positive duty laid upon judges to grapple with all the options for establishing contact before concluding that no contact could be established.  Secondly, that the judge made a number of findings of fact which were not capable of being proved to the requisite standard.  And, thirdly, that the judge was in error in rejecting the section 7 report recommendations without giving sufficient weight to the matters that the section 7 report writer was relying upon, effectively supporting her overall conclusion and submission that the judge was plainly wrong.

20.	I will take each of these matters in turn.  Ms Knott rightly points to the judgment of this court in Re C (Direct Contact: Suspension) [2011] EWCA Civ 521, in which Munby LJ drew together the various authorities under the European Convention on Human Rights and in relation to our domestic law and set out there an authoritative list of the key factors pointing to the duty of judges and the State more generally to foster relationships between parents and their children and to move towards reunification where those relationships  have been fractured.  The submission made is that in approaching this case this judge acted in error and in particular that she had adopted a test which was to put the burden on the father of proving that contact should be established.  It seems that the focus of this argument is paragraph 10 of the June judgment where the judge says:
 
"I have been particularly concerned to consider (three months on from my fact finding hearing) whether [Mr W] is able to satisfy me that the physical and emotional safety of [L], [S], and their mother with whom they live, can be secured in the event that direct contact is resumed."

21.	If that were the only test that the judge described as her approach, there would be the beginnings of the argument that Ms Knott hopes to establish, but I read that observation (which forms only half of a sentence and a short paragraph) as the judge simply picking up on the neon lit observation that she made in the concluding paragraph of her earlier judgment.  That is what she wanted to see from the father as movement on his part in his understanding and ability to just see that he may be part of the problem here rather than an innocent bystander to whom all these things have miraculously happened.

22.	The judge deals with the approach to contact in her evaluation of the welfare officer's report and it is plain that she is approaching matters from the basis that contact should take place.  The court process when looked at as a whole over the course of all the hearings that I have added up and described in the opening paragraphs of this judgment has been to tease out every possibility and give this father and these girls every chance to establish a relationship.  That in the end came to nought on 13 February 2010 and the judge was coming after that to decide whether it was in the children's best interest to have another attempt to restart progress along that road going back to supported contact.

23.	In the course of paragraph 36 of her judgment the judge makes reference to a decision of Wilson J (as he then was) in Re P [1998] 2 FLR 696, where she categorises this case as being one in the third category of cases listed by Wilson J where "there are both sound arguments for the displacement of the presumption that contact is in the child's interests, and also sound arguments which run the other way".  So there the judge in terms is making reference to the presumption that contact is in the child's interests.

24.	Nothing I read in the judgment indicates to me this highly experienced family judge has in some way forgotten the approach to these cases or applied an approach which is contrary to the one described by Munby LJ in Re C.  I therefore do not consider that Ms Knott to make good her argument that the judge has erred in law.

25.	So far as findings of fact are concerned, three are listed for particular consideration.  The first is that the father would continue to be a source of harassment to the mother and the submission made is that the court did not have sufficient evidence to support such a conclusion.  For my part, I find that submission hard to understand.  The whole tenor of the father's behaviour on 13 February 2011 was to harass the mother.  I have quoted precisely what the mother said he said to her.  His purpose of tape recording the children was no doubt to use it in some way to achieve his end of upsetting her current role as primary carer.  And the history of the case as regarded by the judge is peppered with the father intervening in a way which the mother found to be harrassing and abusive.  There are the injunctions that are in place.  There have been the breaches that I have described and there is a more general admission by the father to Mr Smee, the author of earlier section 7 reports, more generally accepting that when in drink he can be aggressive and that his behaviour is behaviour which is unhelpful in the context of contact.  So the first finding of fact that is referred to is one for which I consider the judge had ample material upon which to base her conclusion.

26.	Secondly, it is said that there was no sufficient evidence upon which the judge could conclude that the father's conduct had harmed the mother's emotional and physical health and in this regard it is right that there is no medical or psychological expert evidence before the court to this effect, but I have made reference to the judge's description, or the earlier part of it, of the mother's evidence in the witness box and the mother's account more generally of how she has experienced being on the receiving end of the father's behaviour.  There was obviously her account of how what was no doubt hoped to be a happy occasion, the birthday party, ended for her.  It does not require medical evidence before a judge can make the sort of finding that Judge Murfitt made on this occasion.  She was particularly well placed to make the finding.  She had sat through the fact finding hearing and then some months later sat through the welfare hearing and had heard both of the parties give evidence to her and formed her own view as to the impact of the father's presentation upon the mother's ability to withstand it and the effect of it upon the mother's emotional and physical health, so again in my view there is nothing in the submission that the judge could not have made that finding.

27.	The third finding that is said to have been made is that the father denigrated the mother during the course of supported contact and the basis of that is a summary that Judge Murfitt gives in her second judgment, which in terms in my view is a summary of what she had been told by the mother in the course of the first judgment.  It falls as part of the history the mother is giving explaining the stopping of contact in December 2010.  I do not regard what Judge Murfitt said in this regard to be a finding, but if a finding it was it arises from evidence that the judge had.  In paragraph 14 of the fact finding judgment, she quotes the mother's evidence about this and in so far as it is relevant at all to the ultimate conclusion to which the judge came that strand of material does have some evidential base.

28.	Those are the points that are made as to findings of fact.  They are, in my view, findings that were entirely open to the judge for the reasons that I have given and indeed in the light of the judge's overall view of the events of February 2011 it would be hard to escape the first two findings being made against the father in this case.

29.	The third ground of appeal relates to the rejection of the section 7 recommendation.  I really dealt with this in what I have already quoted from the judge's judgment where she deals with her disagreement with Ms Bartlett in paragraph 30 of the judgment.  The two reasons given by the judge, one that Ms Bartlett has not gone on to assess the extent to which supervision may be capable of protecting the children from harm and, secondly, that she has not given consideration to the impact of  the father's behaviour on the mother are both points that the judge was entitled to make.  They are established on the evidence and they are points that she is entitled to flag up as differences of her analysis from that of the welfare officer.  A judge in these cases requires to be able to provide cogent reasons for differing from the recommendation of a welfare officer or social worker such as Ms Bartlett, but the court is not tied to follow the recommendation in every case.  That would be to usurp the role of the judge.

30.	Here, this judge had been fully exposed to this family and their personalities in a way that no welfare officer could be exposed.  The judge had sat through the two hearings.  She was entitled to view matters differently.  She gave two good reasons for differing from the welfare officer's recommendation and in my view her conclusion in that regard is unassailable. 

31.	The difference between the position of the parties in this case is narrow.  The father seeks to have the order overturned and for supervised contact on four occasions a year totalling 12 hours per hour put in its place.  The mother obviously seeks to uphold the order.   It is nevertheless right that permission to appeal having been given that the court should go into this narrow distinction.  From the father's point of view and from the children's point of view even a small amount of contact is of importance to them.  But having looked at this matter carefully as I have, I am in absolutely no doubt that the judge was entitled to make the findings of fact that she made and on the basis of her evaluation of the case and her exposure to the parties she was fully entitled to come to the conclusion to which she came.  It is impossible to hold that she was plainly wrong and for my part, having read all that I have read, I regard the judge as being entirely right in her conclusion.

Lady Justice Arden:

32.	I agree with the very careful judgment of McFarlane LJ.  I consider in short that the judge very much had the children's interests in mind as a primary consideration.

33.	I would just like to add a word of my own about the future.  I do not consider that the view which I have arrived at today means that the respect to be accorded to the relationship between the girls and their father is at an end.  On the contrary, he will, of course, continue to have indirect contact with his daughters.  If he in the future is able to demonstrate that it is in the girls' best interest to have direct contact again, then, of course, the court would consider that application. Indeed, it would also be open to the mother, if that is her view, in the future to say so to the court.

34.	It is my view to be hoped, for the reasons McFarlane LH has given, that for the girls' sake direct contact can be restored in the fullness of time when the father, for instance, shows that he is able to conduct himself in a way that does not jeopardise the well‑being of the children or their mother as their primary carer.

Lord Justice Thorpe:

35.	I also agree that this appeal should be dismissed for reasons carefully explained by my Lord, McFarlane LJ.

36.	I only add that this couple have been at war since the mother suffered the first assault at her husband's hands in June 2005.  It is sad that the responsibility for this warfare lies primarily with the father.  That is clear from a string of judicial findings.  It is also clear that his conduct cannot be disassociated from the alcohol dependency syndrome which he has suffered.

37.	What strikes me is the extent to which these features have consumed public resources; consumed the stretched budget of the Legal Services Commission, consumed the stretched resources of the courts which have had to find enumerable hours and days in which to rule on disputes between the parties.  The manner in which family proceedings are conducted in this country is the subject of a profound current review and this seems to me precisely the sort of case that exemplifies the need for such a review.                       

Order: Application refused