Re W (Children)

Court of Appeal (Civil Division) 
15^th May 2013

On Appeal from Reading County Court
Case n^o: B4/2013/0205
Subsequent appeal: Re W (Children) [2013] EWCA Civ 1488

Before (the judges sitting on the bench)

• Lord Justice Ryder 

Counsel (the barristers representing the parties)

• The mother, J.W. (the Applicant and original Respondent) appeared in person
• The father, J.C. (the Respondent and original Applicant) did not appear and was not represented

Judgment

Lord Justice Ryder —

1.  This is an application by JW, the mother of S and D, the children, for permission to appeal against the order of HHJ Oliver of 4^th January 2013.  That order set out arrangements for contact between the children and their father, JC, and directed the mother to register D, adding the father’s first name as his second middle name.

2.  The factual background can be taken shortly as follows.  The mother and father began a relationship in 2008.  They did not marry.  Their daughter, S, was born on 10^th June 2010 and was given mother’s surname.  In February 2011 mother became pregnant with their son D.  The couple’s separation appears to have taken place over the course of several months between May and November 2011 and, perhaps unsurprisingly, there is a dispute as to how that occurred.  It does not appear to be in dispute that at least by May 2011 the father’s businesses were in financial difficulty, causing him considerable stress and, mother would say as she has submitted to this court this morning, exacerbating his controlling and abusive behaviour.  Also, mother was in the process of bringing a claim in the Employment Tribunal against her former employers.  Mother’s witness statement of 3^rd November 2011 alleges that father had been physically and verbally abusive towards her on numerous occasions when she was pregnant with S in 2010.  That is the broad circumstance in which Judge Oliver was asked to make a decision in respect of both residence and contact.

3.  Judge Oliver, in tracing the prelude to the couple’s separation, focused on two specific arguments, one that took place on 13^th May 2011 and the second on 25^th June 2011.  Just taking these briefly because they are set out in some detail in the judge’s judgment, the first instance appears to have been an argument that starts by text message and is followed by a face-to-face argument during which mother alleges that the father was aggressive towards her, and as a result she decided they needed some time apart and she went to stay with her parents.  The second argument later in 2011 was described by Judge Oliver in these terms:

“She says that he called her words, and pushed her.  She says that she was hit by him.  He says that he was hit by her.”

4.  There is a long history to previous proceedings that does not influence the application that is made to this court, but which it is important to have regard to and which, as I understand it, Judge Oliver was appraised of.  The hearing that took place before Judge Oliver dealt with the parties’ positions, which can be summarised as follows.  Father wanted his first name to be added as one of D’s middle names on the basis that this had been agreed, and an order for contact including unsupervised contact with both children, and a residence order which the judge characterised as a form of enforcement of contact: what some of the judges of the Family Division have described as a suspended residence order.  Mother submitted that although she agreed to give D’s father’s first name as a middle name, she felt pressured into doing so by father, and that she did not want to give D his name as a middle name, not least because she did not wish to create any difference between her two children.  Secondly, unsupervised contact should not be ordered as father is abusive and aggressive.  This is how she put it to the court below: he has personality disorders which require a psychiatric or psychological assessment, and the children would be at risk from father and indeed, as I read the papers, from father’s former business colleagues as a consequence of his business dealings.

5.  Mother was represented by counsel at the hearing below and now appears before this court in person.  Father appeared in person throughout.  In relation to the issue of D’s name, Judge Oliver ordered the insertion of the father’s name on the following basis:

“What is wrong with having [the respondent’s first name] as a second or third given name?  It was obviously agreed in what I regard and can see as being a happy exchange of text messages.  It was not a subject of pressure, or anything like that.  And, if [S] really does need parity, then she can have a third name of her choice, if she likes.”

6.  In relation to father’s character, the judge found (1) that the father’s attitude is not bullying or threatening; (2) citing the father’s counsellor’s opinion that his anger was within a normal range, that the father has a dominant personality, can be short tempered, particularly under stress and financial pressures, and is hypercritical of the mother, but that does not give him a personality disorder and there is no need for an assessment of him; (3) that, while the father is a difficult man, he “clearly cares passionately about his children,” and that the mother did not seem to be able to appreciate this; and (4) that the mother’s allegation that the father has personality disorders, has a history of abusive relationships and fits on-line profiles of domestic violence is “not an allegation made during the relationship or evidence of that in the past (sic).”

7.  The judge considered the factors in section 1(3) of the Children Act 1989  and ordered contact on terms more restricted than those proposed by the father, but critically including unsupervised contact from February 2013.  He dismissed father’s application for residence, either substantive or contingent, and mother filed her notice of appeal and grounds with this court on 25^th January 2013.

8.  It is perhaps helpful just to look at the grounds of appeal before dealing with the submissions that have been very helpfully put by mother with the support of her own father this morning.  Mother’s grounds of appeal are set out in a document which has with it a skeleton argument and can be summarised as follows: (1) that because there had been correspondence between father and the judge before the hearing, the father had “the judge’s ear” and the judge should have recused  himself — that is in effect an allegation of bias; (2) that although the judge held that “nobody apparently wanted the Cafcass  officer to come,” in fact that officer would have had vital evidence and he should have been asked to attend; (3) the judge failed to consider evidence which he would have considered had he applied Practice Direction 12J — Residence and Contact Orders: Domestic Violence and Harm; (4) that the judge’s order in relation to D’s name was not made in accordance with the principles set out in Dawson v Wearmouth [1999] 2 AC 308; and (5) that no reasonable judge “and in particular no female judge” would have reached the same decision.

9.  Mother seeks to have Judge Oliver’s order overturned and to have contact varied to three hours supervised each week, alternating between two different contact centres.  Mother tells this court this morning that at the moment there is no formal involvement of a Cafcass practitioner, but that there is a renewed application for variation of the existing contact order before the County Court having regard to the fact that there have been further alleged incidents, and also the children have not seen their father now for some ten weeks.  It is in that context that I consider the four main headings that mother makes submissions about today.

10.  Dealing first with bias, the test relating to whether a judge has real or ostensible bias in his conduct of proceedings can be found in the case of Ansar v Lloyds TSB Bank Plc [2006] EWCA Civ 146, which is helpfully summarised in the judgment of Sumner J in Re F (children: contact change of name) [2007] EWHC 2543 (Fam) at paragraphs 179 to 182.

11.  Mother this morning highlights the principal issue relating to alleged bias, which is that a hearing date was moved by the court and/or Judge Oliver without reference to her when that was requested by father, and also that the judge took material relating to alleged post-natal depression as read when that came from father.

12.  Dealing with each in turn, it is a sad reflection of the internet age that litigants, particularly litigants in person, feel it appropriate to try and correspond with judges.  In general it is not appropriate, and there will be occasions when a court, in the exercise of proper case management, decides to re-list cases for the convenience of one party and may make an error in not ensuring that both parties’ convenience is taken into account.  It is certainly not the case that a party’s convenience should dictate the case management of a children’s hearing.  I am unable to say, even if the judge was responsible for taking the father’s position against the mother, that that was evidence of bias within the meaning of the test that is set out in the authorities.

13.  As to the question of post-natal depression, the judge is entitled to make reference to what father tells him but did not rely upon that in coming to any decision, and again I am unable to say that that could have been evidence of bias, and so the first ground of appeal is one in which I am unable to find any merit.

14.  The second ground of appeal relates to the attendance of the Cafcass practitioner at the hearing.  As I have already recorded, he was not asked to attend and the judge made an accurate observation in relation to that.  Mother was legally represented, and it is quite impossible in that circumstance to understand how it is, if there were questions that should have been put to the Cafcass officer, that the officer was not asked to attend and those questions put.  That is something that may need to be corrected at a future hearing, which sadly inevitably is going to occur, when the Cafcass practitioner should be asked to attend to answer questions.  It is not, however, a ground of appeal which has any prospects of success.

15.  Dealing then with the two primary grounds of appeal and taking first domestic violence.  The Practice Direction that mother asserts was not followed is Practice Direction (Residence and Contact Orders: Domestic Violence) (N^o 2) [2009] 1 WLR 251.  In summary, that asks for four things to be done by the judge: does the judge identify the factual and welfare issues in the case?  Does the judge identify the relevance of those issues to residence and contact?  Does the judge consider whether to conduct a fact-finding hearing?  And does the judge make it clear how the facts he finds have influenced his welfare decision?

16.  In relation to each of those four questions, on the face of the judgment the judge does each of the things asked of him, but he does them in a way which mother complains about.  In particularising that complaint to this court, what she says is that the judge should have referred to police reports and texts or e-mails which were already disclosed onto the court file by previous case management directions.  This court has asked her what the judge would have gleaned if for a moment I assume he did not have knowledge of these matters or refer to them.  It may be, of course, that he did and found them to be unhelpful.  On the assumption for a moment that he did not have reference to them, what would he have found?  Mother says that father’s admission of abuse to an organisation that he had become involved with in relation to counselling was that he admitted being abusive and angry in more of a mental than physical way, and that had the judge looked at the disclosure of the police log of incident reports he would have discovered the anger exhibited by father in the 2^nd May 2011 incident and also a third incident in October 2011 when mother’s father (the maternal grandfather of the children) was threatened by the children’s father.

17.  If I consider that material alongside the material that the judge did consider, I would have to say, as I have said in discussion with mother before this court, that that would not be enough to prevent direct contact taking place with father, nor necessarily would it be enough to lead to the conclusion that direct contact should be supervised.

18.  In submissions before this court the mother has emphasised just how controlling and angry she alleges that father can become, bad-mouthing her in front of the children and others and behaving angrily in front of the children, in effect at contact handovers.  She is clearly concerned that this behaviour will adversely affect the children, if it has not done already, and that a court should consider this issue with some care.  She says that father is a controlling man, and one can draw the inference from the fact that contact has not been taking place for ten weeks when it could have taken place in a contact centre, i.e. if he is not happy with something he will take his own course.

19.  I have considered this ground of appeal very carefully indeed.  Without in any sense belittling mother’s concerns and/or the possibility that there is more material here relating to domestic abuse than the court has so far found as a fact, the material that she sets out is not sufficient, in my judgment, to give permission to appeal on the domestic violence ground, but is sufficient for it to be properly referred to in the subsequent application that is now afoot before Judge Oliver, and for that to be investigated by a Cafcass practitioner as respects the potential adverse effects upon the children.

20.  Dealing then with the change of name, the essence of the submission relates to the fact that the judge did not give due consideration to the principle that a change of name is a question to be resolved by considering the child’s welfare following the principles set out in Dawson v Wearmouth (supra).  The issue here is really very simple and mother has explained it graphically to the court this morning.  At the time of the child’s birth there were cross-undertakings in place that effectively prevented father being present at the birth, and so any agreement made at that stage relating to a name, middle or surname, was necessarily in the context that mother felt under considerable pressure.  The existence of the undertaking would be capable of establishing that.  The consequence of this is that the agreement itself does not necessarily, as the judge had imagined, exhibit a view as to the welfare of the child that had been come to by both parents.  Nor is it a view which she held at the time of the application, and that is the important point at which welfare has to be considered by the judge, because the essence of the application was that there should be a change for this child and that change has to be in the interests of the child.  There appears to have been little or no evidence before the court relating to that important decision in the child’s life.  A Cafcass officer could and perhaps should be asked to give an opinion on the subject having spoken to at least both parents, and on this ground of appeal I have much greater sympathy with the mother and I give permission for her to bring an appeal based upon that discrete issue.

21.  Turning then to the future, these children urgently need a hearing about their contact with their father.  This mother, who is the carer of these children, urgently needs that to be resolved.  The children have now waited ten weeks without contact, and there is no immediately obvious short-term resolution short of the children returning to the contact centre.

22.  I first of all entreat father to take whatever contact is on offer to re-establish contact with the children, and secondly, although this must be a matter for this court hearing the application, strongly suggest that there be an urgent hearing, interim or full, at which a Cafcass officer’s advice is asked on the question of the nature and extent of contact that should be afforded to this father, having regard to the judgment that has been come to by Judge Oliver and the assertion that mother makes relating to the present circumstances that caused the new application to be made and the potential adverse consequences for the children that are most certainly in play.

23.  My conclusion therefore is that I grant permission to mother to pursue an appeal limited to the issue of the change of the child’s name, and I give a direction that a Cafcass practitioner shall see both parents and shall give an opinion to the court in relation to the welfare issues on that subject so soon as that is practicable.  I shall give a direction that a transcript of this judgment shall be made available to the court below for the impending variation hearing that is to take place.

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Orders of the court

Application granted in part.