Family Law Hub

W (A Child) [2013] EWCA Civ 606

Application for permission to appeal an order limiting F's contact with his daughter after it was found that he had behaved sexually towards her step-sister. Application granted, appeal dismissed.

  • Case No: B4/2012/3152

    Neutral Citation Number: [2013] EWCA Civ 606

    IN THE COURT OF APPEAL (CIVIL DIVISION)

    ON APPEAL FROM OXFORD COUNTY COURT

    (HIS HONOUR JUDGE CORRIE)

    Royal Courts of Justice

    Strand, London, WC2A 2LL

    Friday, 19th April 2013

    Before:

    LADY JUSTICE BLACK

    LORD JUSTICE McFARLANE

    and

    SIR STEPHEN SEDLEY

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    IN THE MATTER OF W (a Child)

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    (DAR Transcript of

    WordWave International Limited

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    The Applicant Father appeared in person, assisted by his McKenzie Friend, Mr Colin Moore

    Ms Cherry Harding (instructed by Oxford Law Group) appeared on behalf of the Respondent Child by her Guardian

    The Respondent Mother appeared in person, assisted by her husband

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    Judgment

    (As Approved by the Court)

    Crown Copyright(c)Lady Justice Black:

    1. This is an application by Mr W for permission to appeal against an order made by HHJ Corrie on 12 November 2012. The case has been listed by Thorpe LJ with an appeal to follow immediately if permission to appeal is granted. HHJ Corrie's order concerns Mr W's contact with his daughter, IW, who was born on 7 January 2004, and is nine years old. IW lives with her mother, who is a party to the contact proceedings, as is IW, who has the benefit of a guardian. I will refer to both of the parents hereafter simply as "the mother" and "the father". IW was represented by counsel in front of HHJ Corrie. She is here. Both parents appeared in person in front of the judge. Before us, the mother is still in person. The father also continues to appear in person, but he has had the assistance of his McKenzie Friend, Mr Moore, who asked that we would permit him to address us on the father's behalf. We allowed that, and we are grateful to Mr Moore for his very clear and helpful contribution to this hearing on the father's behalf. He invited our attention in his submissions to all of the arguments that could properly be advanced by way of appeal.

    2. In order to explain the nature of the father's appeal, I need to set out a brief history of the case. The parties were married in 2000, but they had lived together before then. They separated in November 2005, and a divorce followed. The father subsequently formed a relationship with his present partner, and they have a young son, L, who was born in December last year. The mother has also since remarried. Initially there was frequent contact between the father and IW by agreement. The first court order was made in August 2006 and included overnight staying contact. That stopped when allegations were made that the father had behaved sexually towards IW and her stepsister, N, the mother's daughter by an earlier relationship. The father applied again to the court in January 2009 in relation to contact. In due course it was agreed that contact would resume fortnightly at a contact centre for three hours on a supported, as opposed to a supervised, basis. This was recorded in an order of 20 August 2009. It was an interim measure pending the court examining the case further.

    3. In due course, at a hearing in the summer of 2010, HHJ Corrie made findings of fact in relation to the mother's allegations about the father's conduct. In addition to the allegations concerning sexual misconduct, the mother also alleged that there had been domestic violence. The judge found that both parents were volatile and that they had what he described as a "combustible" relationship. He found proved allegations that the father was violent and threatening towards the mother on a number of occasions during the course of the relationship. He also found proved that the father had behaved sexually with N, as she had described in evidence to the court. The first event that she described took place when she was six or seven years old, and there was a second event, which I think took place at around the same time. The father's conduct involved getting N to give him what he described as a "special hug", which was of a sexual nature. N made a third allegation which related to much later, in 2003, when she was about 16, and the father got into bed with her and behaved sexually with her.

    4. N did not make any complaint about the father's actions at the time that they occurred. She first spoke of events in 2008. Allegations in relation to the father's conduct towards N were also considered by a police disciplinary tribunal, which made a finding that he had behaved in a sexually inappropriate way towards her. As a result of that, he lost his job as a policeman. The father does not accept that the findings made in 2010 are correct, but he does accept that they form the background to the judge's decisions as to contact because they are findings of the court.

    5. Immediately following the findings, contact continued at the contact centre as it had been arranged before. It was then varied in October 2010 to allow for contact to take place once a month outside the contact centre, with the father and IW being accompanied by the paternal grandparents. In July 2011 the judge allowed other family members to assist with contact outside the centre. Experts were instructed to look at the question of the risk posed by the father in the light of the findings of fact that the judge had made. The experts were Professor Perkins, a forensic psychologist, who was to evaluate the risk, and FASS (which stands for the Family Assistance and Safeguarding Service) who were going to explain the findings of fact to IW and undertake such therapeutic work as may be necessary arising from that. Not everything went smoothly with regard to the piece of work involving FASS, but I do not need to go into the details of that.

    6. There was a gap in contact in consequence of the problems. It ceased in May 2012, and it resumed in August 2012 following an order HHJ Corrie in July 2012. The resumed contact was on a more limited basis that it had been before. It took place at the Ward Andrews Centre for Children and Their Families. It was fortnightly, for two hours, and it was supervised. The father submits that the reasoning for that change was so that it would be possible to monitor how IW was following learning, prematurely as it happened, about the findings of fact, to allow for observation of contact so that the court could be told at the final hearing how it had gone, and in order also to respond to and investigate allegations which the mother had made, and HHJ Corrie later rejected, about the father behaving sexually towards IW during contact visits. So it was that slightly more restricted contact was in place when the case came before HHJ Corrie in November.

    7. The father's stance at the November hearing was that the judge should order normal contact as he was not a risk. When I say "normal contact", I mean the sort of contact that would take place with overnight stays, half of the holidays, and so on. The mother argued that the contact needed to remain supervised and that it should continue to be for two hours on alternate weeks at the Ward Andrews Centre at least until IW was 11 or 12 years old. Professor Perkins had concluded, in a report dated March 2012, that the risk posed by the father "remains essentially unquantified, as the current assessment was unable to reach even an initial position with the father in which issues of sexual risk with children would be addressed". The guardian, accordingly, advised the court in November that she was unable to support unsupervised contact between IW and father, as she put it, "whilst the risk of future harm was unquantifiable."

    8. The fact was that at that stage IW wanted to see her father more and to see him in a more natural setting. When the guardian saw her in October 2012, in preparation for the hearing, IW talked with enthusiasm about what she would like in the way of contact, which was to spend weekends with her father from after school on Friday until the start of school on Monday. She spoke with fondness of her father, and the guardian thought she clearly wanted to spend more time with him. The judge said, in his judgment of November 2012, that there had been, as he put it, "a number of successful contacts" since contact had begun again at the Ward Andrews Centre and that it was common ground that IW wishes to see more of the father, her vision being one of going to stay with him. The judge said that IW has a relationship with her father, loves him, but is "too young to understand the sexual risk, which, in the absence of any further explanation or a satisfactory risk assessment, he must be regarded as continuing to present".

    9. The judge recognised that a continuation of the supervised contact was not satisfactory from IW's point of view, but he observed that she was not at an age "in the circumstances of this complex case, for it to be appropriate to attach great, and certainly not overriding, weight to those wishes". He said that IW was not yet old enough to understand the potential risks and that it followed that caution had to exercised on her behalf, although the judge accepted that that may cause her further emotional turmoil. He also acknowledged that she may suffer additional turmoil when she learned of the father's then forthcoming new baby, because she may feel left out and may question her own position in the father's life. In addition, the judge acknowledged that the mother's hostility to the father must have taken some sort of toll on IW and caused her some emotional damage.

    10. The judge acknowledged the father's many positive qualities, including his love for IW and his wish to play a major role in her life. He expressly recognised IW's need to have a good relationship with her father, but he considered that it would have to be as good a relationship as can be arranged within the necessity of protecting her from what has to be regarded as an unquantified risk posed by him. The judge accepted the advice of the guardian and the other expert evidence to the effect that the father's role would presently have to be somewhat artificial, concluding that the contact would have to continue to be supervised. He therefore refused the father's application for an increase in contact, ordering that it would continue fortnightly at the Ward Andrews Centre, where it would take place on a supported basis for two hours, with the parents sharing the cost. He also indicated that it would be both desirable and appropriate for the father's partner to attend contact with the new baby, so that IW could meet L when he was born. That led to a provision in the order which has generated some debate, but that is not the province of this court, and it is agreed by everyone that it should be a matter that is attended to by HHJ Corrie in due course.

    11. It is the father's wish to appeal against the decision that HHJ Corrie took in relation to his contact with IW. Thorpe LJ, when he saw the father on the oral hearing of the permission application, encapsulated what he saw as the essence of the proposed appeal. He observed that the real point that the father wishes to argue is that the judge departed in his order from a settled management of contact, which was expanding the relationship that the father had with IW and relaxing the conditions of contact, and reverted to strict supervision without justification. That has certainly been a focal point of the argument in front of us.

    12. What led Thorpe LJ to refer the matter for this hearing was, I think, that the judge may not possibly have given sufficient consideration to the detrimental effect that his contact order may have on the relationship between father and daughter. Thorpe LJ directed that the parties should file short statements updating the position with regard to contact for the purposes of this hearing, and updated statements have been filed. I am afraid that they make depressing reading. After the first few contact visits, IW seems to have started to be reluctant to come to contact or to have fallen ill on the day of contact. A number of contacts have been missed as a result, and the Ward Andrews Centre has warned the parents that the place there may have to be withdrawn. I understand that the case has been returned to court to deal with those issues, amongst others to which I have already made reference and will refer in due course.

    13. Each parent draws their own conclusions from the contact difficulties in recent times. The father postulates that they may suggest that IW is becoming frustrated with having to come to the centre, having a stranger in the room during the contact session and being restricted as to what they can do together, rather than being able to have outside contact like there used to be. He worries that she will lose interest or that she will feel forced to attend and that will have a negative effect on their relationship. The mother puts the problems down, I think, in part to IW learning about the new baby that the father has had and says also that there have been occasions when IW really has been ill and has been unable to attend contact for that reason.

    14. At the start of this appeal hearing, it was suggested that we might adjourn the matter for a short time for discussions to take place between the parties as to the possibility that the case could be returned to the county court to deal with the questions of contact, with another judge hearing the matter but with the benefit of transcripts of what had gone on before in front of HHJ Corrie. We indicated that we did not think that that was a course which was necessarily likely to be productive and that time would be better spent, therefore, proceeding to determine the appeal. In the course of the exchanges that we had at this preliminary stage, we explained that this court is not in a position to adjudicate on the issues raised in the parents' recent contact statements. This court's role is to consider whether the judge erred in the exercise of his discretion in relation to contact in his order of November 2012, and we have to evaluate that question on the basis of the material that was before the judge at that time. Furthermore this court does not normally hear evidence and cannot resolve factual disputes or take any view as to who is right in relation to the cause of the problems that there have been with contact recently and as to what adjustments, if any, need to be made in response to those difficulties. Furthermore the guardian has submitted, in her written submissions, that no order should be made in relation to contact without there first being a further welfare inquiry, investigating for example the effect on IW of the birth of her stepbrother. The guardian rightly says that the appropriate place for that sort of welfare investigation is in the county court in proceedings, she said at that point, managed by HHJ Corrie and she may in due course adhere to that recommendation when we hear further submissions at the conclusion of this judgment. We are told that there is a 30-minute hearing listed for 2 May, and that, the guardian submits, would be the proper opportunity for a review of the whole question of contact.

    15. The application for the short adjournment at the beginning of this hearing may well have been prompted by the guardian's sense that, in all these circumstances, the father's proposed appeal has been overtaken in many ways by events. I agree that in some ways this is so. But it can hardly be said that the issues to which the appeal gives rise have become academic, and it is for that reason that we suggested that it would be more profitable for us to resolve the appeal. If we were to, for example, refuse permission to appeal on the basis that the matter was instead to go back to HHJ Corrie or another judge in any event, the starting point for that judge's review of contact would be that he or HHJ Corrie was correct to require stricter supervision of contact than had been taking place prior to the hiatus in contact over last summer. The father argues that HHJ Corrie was not right in that approach, and it seems to me therefore that we had to look at the issues that he had raised by way of appeal and resolve them, so that the matter can have a proper start when the county court reviews it again in due course.

    16. I turn then, at last, to the father's grounds of appeal. They can really be put, I think, under three headings. Firstly, the father argues that there was an established status quo in relation to contact which did not involve supervision of the type provided by the Ward Andrews Centre and which allowed him to go on monthly outings with IW. That arrangement, which I will call "the more relaxed contact order", started in August 2009 and had been going on for nearly three years, and it was only altered for the particular reasons that I have adverted to in the run-up to the final hearing. It is submitted on behalf of the father that the judge needed to give cogent reasons for departing from this and that not only did he not offer any reasons, there were no reasons in fact not to go back to what had been the status quo for that protracted period of time. Reliance, it is said, had been placed on family supervisors and no problems had arisen. It was argued also, with some assistance from McFarlane LJ, that, insofar as the judge thought that the status quo was what had been happening in the immediate run-up to the hearing, he was wrong, because that was merely a temporary expedient to cater for the particular requirements during that period, and the status quo was really what had been happening during the long period of less restricted contact. It is also pointed out on behalf of the father that the risk assessment report, which said that the father posed an unquantified risk, was available in March 2012, but the judge still took steps in May 2012 to enforce the more relaxed contact order and he then also ordered two days of outside contact to replace missed days, and included the possibility of the father attending at IW's school fun day. The father submits that nothing adverse emerged from that time onward to justify a stricter contact regime being imposed in November.

    17. I think the father was right to draw attention to the fact that the professor's report on the risk posed by him was available in March 2012, yet the judge had not at that stage sought to prevent him from having contact outside the centre supervised by members of his family. It is not unfair to question why it was that the judge then relied upon the same material at the hearing in November 2012 as a reason to impose a more neutral or independent supervision and to bring to an end the outings that IW had apparently enjoyed. Similarly, it is fair to ask whether the judge gave sufficient justification for his departure from the former and longstanding contact regime.

    18. However, in my view the reason for the change from the former regime in November is not far to seek. The judge had had to deal with matters on an interim basis prior to the full hearing in November. That hearing was the first opportunity that he had had to hear all of the evidence, including oral evidence from Professor Perkins, and the considered view of the child's guardian. It was incumbent on the judge to consider whether, in the light of the full picture that he now had before him, the risk to IW was such as to require a tighter contact regime. And because he had to make a decision that was in IW's best interests, he had to make his decision about that question with an open mind, not tied by what had gone before, although of course he had to have regard to that. I do not, therefore, consider that the father's argument on the status quo point calls into question the judge's decision.

    19. Secondly, in a submission drawing on the well-known case of Re H & Ors (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563, the father submits that the judge took the wrong approach to risk and sought to obviate any risk at all to IW, whereas he should have considered whether there was a real possibility of harm to her, in the sense of a risk which ought not to be ignored. It is submitted that the judge should have taken a holistic approach to risk. This would have required the judge to identify and have regard to a number of positive factors. They are enumerated in the father's skeleton argument and I will not go through them again here, the only negative factor being, in the father's submission, the findings against him. A proper consideration of these positive and negative factors would, it is submitted, have dictated at the very least a resumption of the previous contact arrangements. I am not persuaded by this ground of appeal. I do not detect in the judgment that the judge was seeking to avoid all risk to IW. What he was doing was examining carefully what the risk to her was, and how to guard against it, and balancing that against the other risks to IW such as the constraint that possible safeguards against risk in a sexual sense would place on her contact with and relationship with the father. The findings that the judge had made about the father's behaviour towards N, his step-daughter, were serious. They concerned conduct which spanned N's childhood, in that there were findings that related to the period when she was about six and to the time when she was 16. Those findings were bound to give rise to concern that the father was a risk to IW, and nothing that Professor Perkins had been able to say had allayed that concern. The problem was compounded by the failure of the father and his family to acknowledge that the behaviour had occurred. The judge was entitled in these circumstances, in my view, to proceed on a basis that there was a risk to IW which required the putting in place of proper protective measures. He was also entitled to consider, in my view, that such measures could not depend at present on the father's family, given that they did not accept the findings either. I think it is fair to say that this particular aspect of the case, the possible role of the father's family, was not laid before the judge for exploration at the hearing. The judge records the father's case, as I have already said, as being that he should have normal contact. He did not ask to be able to call his family members to give evidence, and the only material that the judge therefore had about them was that which was contained in Professor Perkins' report.

    20. It is argued that the judge should, as I have said, have approached the risk by enumerating the positive protective features that are contained in the father's skeleton argument rather than accepting that there was, as Professor Perkins said, an unquantified risk. As to that argument, I would observe, firstly, that the judge was entitled to accept the evidence of Professor Perkins, who was an expert, whose evidence had been tested in court in front of him, and that evidence gave no comfort to the judge on the question of risk. And, secondly, that the assessment of risk is not simply a case of counting the positive factors and the negative factors in any particular set of circumstances. Some matters carry more weight than others, as in this case the findings of fact carried more weight. And those findings were appropriately treated by the judge, in my view, as giving rise to risk that needed protection for IW. There is no doubt that the judge appropriately took into account important positive features in the case, such as the loving relationship between the father and his daughter, and what the father would have to offer IW if it were not for the risk. I considered the worry that Thorpe LJ expressed as to whether the reduction in contact was wrong because of the risk that it would lead to the relationship between the father and his daughter withering. I also considered the father's argument that contact needs a firmer foundation than the limited meetings permitted by the judge in order to withstand other demands on IW's time as she gets older. However, the judge was entitled in my view to balance the risk to IW's relationship with her father and the risk to her because of the findings of fact that he had made in the way that he did.

    21. Before leaving this ground of appeal, I would say that it is open to the father to raise with the judge at the forthcoming review of contact the question of his family acting as supervisors for the contact. The judge can then consider that matter in the context of the difficulties that have arisen with the present form of contact and, no doubt, with much fuller exploration of the possible role of the family than was possible given the way in which the case was presented to him on the last occasion.

    22. The third heading for the father's complaints on appeal is the question of the weight that he gave to IW's wishes. It is submitted that the judge gave insufficient weight to those wishes. That ground of appeal is, in my view, not arguable. The judge was careful to recognise that IW's wishes were for more contact, but he explained that she is too young to understand the risk that the father poses and that it is not in her best interests that the court should decide in accordance with her wishes.

    23. The father sought in his paper submissions to argue that the judge should have given consideration to whether the relationship between father and child could be furthered by indirect contact. It seems that no application was made for this at the hearing before HHJ Corrie. I agree with the guardian's submission that it is not something that can appropriately be raised on appeal. It is something that may well be worth exploring, but the correct place for that to happen is before the judge when the matter comes back in the county court for review.

    24. Accordingly, although I would grant permission to appeal, I would go on, for the reasons that I have given, to dismiss the father's appeal against HHJ Corrie's order.

    Lord Justice McFarlane:

    25. I agree.

    Sir Stephen Sedley:

    26. I also agree.

    Order: Application granted. Appeal dismissed.


Judgment, published: 29/05/2013

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Published: 29/05/2013

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