Case Nos: B4/2012/1677,
B4/2012/1677(A)
Neutral Citation Number: [2013] EWCA Civ 618
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE PRINCIPAL REGISTRY
FAMILY DIVISION
(HIS HONOUR JUDGE COMPSTON)
 
Royal Courts of Justice
Strand, London, WC2A 2LL

Wednesday, 16th April 2013
Before:

LORD JUSTICE THORPE
LADY JUSTICE RAFFERTY
and
LORD JUSTICE KITCHIN

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IN THE MATTER OF T (Children)

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(DAR Transcript of 
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Indira Ramsahoye (instructed by Guile Nicholas) appeared on behalf of the Applicant Father

Yolanda Solari (instructed by Bawtrees) appeared on behalf of the Respondent Mother
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Judgment
Lord Justice Thorpe:

1.	This is the hearing for the application for permission, with appeal to follow, directed by me on 20 December 2012.  The applicant is the father of two children, H and Y.  He had established through county court proceedings supervised contact with his children.  Overhanging the proceedings in the court below, and the approach of all was the risk that anything unsupervised might be manipulated by the father into an opportunity to remove the children to his homeland in Algeria.  

2.	There is no doubt at all that there was a heavy responsibility on the judge to safeguard the children against that risk.  There had been a fact-finding hearing by a District Judge, which had resulted in criticisms of the father.  Nonetheless HHJ Hughes QC had established the direction of future judicial control by her order of 5 December 2012 that there should be supervised contact to these children.  The case was before her again in February 2012 and in March 2012, when she had provided for a hearing on 13 June before HHJ Compston if available. 

3.	At that hearing the father appeared in person and, with the aid of an interpreter, the mother was represented by counsel.  So it was undoubtedly a difficult hearing for the judge to conduct: an unrepresented litigant who was having not only to submit through an interpreter but also to cross-examine through an interpreter.  In the end, the judge had to rule on two applications: the father’s application for variation of the supervision arrangements and also his application to change the name of the younger child.  The judge decided both issues against the father.  On the first issue, he reduced the father’s contact to indirect, which was expressed to be once a month a letter or card through a PO box.  On the second issue, the judge simply said that there should be no order on the application for the change of name.

4.	Mrs Ramsahoye, who has today represented the applicant, quite rightly attacks the drastic reduction from supervised contact to indirect contact on the ground that it was premature and without the necessary investigation of practicalities, given the breakdown of the relationship between the supervising agency and the applicant, and given the withdrawal of continuing funding for supervision under the Cafcass scheme.  So Mrs Ramsahoye points to the fact that the supervising agency, Fledglings, in their written report favoured the continuation of the relationship by supervised contact, albeit not willing themselves to continue the arrangements.  She also points to the fact that the Cafcass officer’s final recommendations were equivocal.  The Cafcass officer, in paragraph 19, had recommended that the children be separately represented.  That, as Mrs Ramsahoye submits, carries the implication that there would be ongoing proceedings.  In paragraph 20, the Cafcass officer was really saying no more than that Cafcass funding was to be withdrawn, but that the father, as in receipt of benefits, might be able to obtain discounted rates from a supervising resource.  Then, in the final paragraph, the ultimate conclusion was not that there should be a drastic movement away from supervision, but only the unquestionable conclusion that indirect contact was the only safe option absent available supervision.  

5.	So how did the judge deal with it?  He explains it himself, essentially in paragraphs 10 and 11 of his judgment, as follows: 

“On that basis, what is to be done?  We cannot expect the state to supervise any further.  There is no member of the mother’s family or the father’s family or friends who have been suggested.  Supervised contact, which is the only possible contact, is out of the question at the moment.  I believe the mother when she says: ‘Look, I do not want to cut off contact.  I would accept it being supervised if it can be, but it cannot’.  I am drawn to the decision that the only safe contact for these children is that of indirect contact to the father.”

6.	It does seem to me that Mrs Ramsahoye succeeds in her submission that the judge has reached the conclusion that there is nothing to be done other than to deprive the children of continuing direct contact with the father.  That was not the essence of the recommendations before him, and in such a situation a trial judge has to knock at every door, has to explore every option, before making such a significant shift in the continuing relationship between a parent and young children.  So I am in no doubt at all that Mrs Ramsahoye has established her entitlement to permission and that she is entitled to succeed on this aspect of the case.  She has, in my judgment, demonstrated that the judge misdirected himself in his conclusion and that it is open to this court to substitute an alternative order.

7.	On the father’s application to change the name of the younger child, there is really scarcely any room for responding to Mrs Ramsahoye’s attack, for she demonstrates that the application was duly made, that it had been dealt with (albeit dismissively) in paragraph 18 of the Cafcass officer’s report, that it was canvassed in evidence at page 50 in the transcript within the core bundle and that the judge clearly overlooked his obligation to rule on that second application.  For we see, at page 72 in the core bundle, that only after he had concluded judgment was he reminded by the mother’s counsel, Ms Savari, who said: 

“Your Honour, could I just say that there is a separate application regarding the change of name.  Do you make no order on that application?”

And the judge simply said, “No order”, and those two words are reflected in the order as drawn by the court.  But there is not a word of explanation for the applicant as to why his application failed, and that is indefensible.  

8. So I would allow the appeal on both points.  

  9.    In relation to the first point, I would have no hesitation in saying that it is open to this court to restore the general directions set by HHJ Hughes from which HHJ Compston erroneously departed.  The consequence is that the indirect contact order is set aside and the order for supervised contact restored.  The considerable problems that will need to be overcome in implementing the restoration are illustrated by Mrs Ramsahoye’s investigation of alternative resources.  Four have been identified by her instructing solicitor, but none of them is apparently willing to set an hourly charge that would be within the father’s financial competence.  So any issues as to the practicalities and as to the implementation of the order for supervised contact will be dealt with in the county court by either HHJ Hughes or some other judge of the court.

10.  However, on the question of name change, it seems to me that the principal course is to remit that to the county court given that it is impossible to see that the father’s resisted application was destined to succeed.  Indeed, the indications are that the father will face considerable problems at the remitted hearing in the light of the adverse stance taken by the Cafcass officer.

Lady Justice Rafferty:

8.	I agree.

Lord Justice Kitchin:

9.	I also agree.  

Order:  Application for permission to appeal granted; appeal allowed.