Family Law Hub

C (A Child) [2013] EWCA Civ 791

Application for permission to appeal an indirect contact order, and a prohibited steps order. The F sought direct contact with his child, and the discharge of the prohibited steps order.

  • Case no: B4/2013/0817

    Neutral Citation Number: [2013] EWCA Civ 791




    Royal Courts of Justice


    London WC2A 2LL

    Friday, 14 June 2013

    B e f o r e:



    (DAR Transcript of

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    Ms Hopkin of counsel appeared on behalf of the Applicant father.

    The Respondent mother did not appear and was not represented.

    J U D G M E N T

    (As Approved by the Court)

    Crown copyright(c)

    Lord Justice Ryder:

    1. This is an application for permission to appeal orders made by Miss Recorder Heaton QC on 6 March 2013 in the Lancaster County Court. The applicant is the father, Mr C, and respondent is the mother, Ms H. This is a worrying case. The applicant seeks permission to appeal two orders that were made on that day. The first is an indirect contact order, and the second a prohibited steps order. He seeks direct contact with his child, and he seeks the discharge of the prohibited steps order.

    2. The case involves allegations of some seriousness. I am not at this stage persuaded that the Recorder was wrong in her evaluative judgment of the risk presented by the allegations in the case, but that presupposes that the issues of fact and opinion upon which the evaluative judgment was based are correctly decided. The question that will be before the Court of Appeal is whether those issues have been decided and, if so, was the process procedurally fair?

    3. A summary chronology is as follows. In 1992 while serving as a soldier in the armed forces, the applicant witnessed the assassination of a policeman resulting, it is said, in post-traumatic stress disorder. In 2004 he and the mother began cohabiting, and on 1 April 2008 their child, who I shall call C, was born. In April 2010 it is said that there was an incident of domestic violence between mother and father which involved the police, and on 6 January 2012, the parents separated.

    4. On 12 January 2012 father had his last direct contact with his child. On 29 March 2012 mother issued a without notice application on the basis, it is said, that father had made threats to remove his child from her care, and there was an emergency hearing to prevent him moving C from a nursery school. It appears from documentation that is before this court that in April 2012 father was prescribed Sertraline to help with his anxiety and depression. On 5 April 2012 the matter was first listed for hearing. It is one of the sad features of this case that the hearings were repeatedly adjourned before different judges until the decision of Miss Recorder Heaton QC was handed down on 6 March 2013.

    5. In the intervening period, father had pleaded guilty to offences under section 4 of the Public Order Act. He had become teetotal on his own account, and had begun to see a cognitive behavioural therapist on a regular basis from or about 15 November 2012 until 15 April 2013. Also within that period, he had ceased to take Sertraline and also had ceased to take Mirtazapine on the basis, it is suggested, of medical advice.

    6. The grounds of appeal were settled when father was still a litigant in person. They assert that Miss Recorder Heaton QC did not have the requisite professional evidence to establish that father had "serious mental health" issues, and that no attempt was made to establish what these were or, in that context, what progress father had made in his counselling and treatment. Furthermore, the applicant submits that when he asked for an adjournment of the hearing to provide this evidence, his application was refused.

    7. In the parallel application which is before the court today, father is able to point to additional medical and probation evidence which is of a very different character from that set out in the judgment of the learned Recorder. It indicates at least a prima facie case of positive progress to confront the issues that he has to the extent that it may well be the case that access to mental health services is no longer necessary, and that the depression and anxiety he has suffered in the past is, insofar as it is relevant, now related to the fact that he is denied contact with his son.

    8. Father is now represented by a specialist children solicitor, to whom this court is very grateful and who this morning has presented an attractive argument in writing based upon the issues in the case and the process by which they were determined. In essence, there was no fact-finding hearing. The evidence of fact was presented by the Cafcass practitioner who gave evidence behind a screen. Her evidence was not agreed and yet the mother, who was the source of some or all of it, was not called to give evidence so that there could be cross-examination. The Cafcass practitioner, it is said, was a witness of fact in her own case because she was the complainant in the criminal process that led to father pleading guilty to a Public Order Act offence, and yet she continued, despite what is said to be an obvious conflict, to be the court's adviser as well as being a witness in the proceedings.

    9. At the beginning of the hearing which led to the judgment on 6 March 2013, father was presented with materials that he had not previously seen, and it is now submitted on his behalf that he endured a hearing within which he did not have access to some of the materials that were filed with the court. That is the peril of having parties to proceedings who do not have the benefit of legal representation. They do not necessarily know of their procedural rights or indeed of the appropriate submission to make at the appropriate time to protect themselves.

    10. The case is at the more serious end of the spectrum of private children cases. The allegations include child abduction, domestic violence, threats to kill and controlling behaviour arising out of an asserted serious mental health condition. Those issues do not appear to have been determined as matters of fact and opinion; they were taken as read.

    11. The litigation took 12 months and there is nothing in the papers before this court that evidences any case management before the hearing complained of so that no key issues are identified for trial, and the Practice Direction relating to domestic violence does not appear to have been followed so that the Recorder was not faced with any identified matters that she would have known required determination.

    12. Some of the facts in issue may be incontrovertible, for example a criminal conviction and admitted psychological issues, but others remain seriously in dispute. The judgment of the learned Recorder may not be wrong in that those issues of fact and professional opinion may rightly be taken as read. However, this court cannot make that assumption.

    13. Ms Hopkin identifies the serious procedural irregularity that the Cafcass officer was a witness of fact and also an adviser to the court. It is difficult to understand how a Cafcass officer, no matter how good, personally or professionally, can give dispassionate advice to the court in that circumstance.

    14. For all these reasons I have come to the conclusion that there are real prospects of success in the arguments raised on behalf of father in relation to the contact order. Necessarily the prohibited steps order follows on from the issues of fact and is inextricably linked with contact in the evaluative judgment of the Recorder, and accordingly I give permission for father to appeal both the contact order and the prohibited steps order.

    15. I cannot and do not say at this stage that any of these assertions are correct, but they are certainly sufficient to set up a good arguable case that there has been procedural irregularity and that the evaluative judgment of the learned Recorder is not based upon findings of fact or professional opinion that has been tested in the way that she thought it had.

    16. There is a parallel application for permission to rely on additional evidence. The materials that this court has seen this morning included the Harassment Act materials which are certainly relevant to the issues of fact in the case. There are also three specific reports from medical clinical practitioners and a probation officer, and I shall give permission for father to rely on these at the full appeal.

    17. It is by no means certain that father will have funded legal representation at the full appeal, and that is a matter which Ms Hopkin is going to have to discuss with the Legal Aid Agency. But insofar as she is able, I am going to give directions that allow for permission to file and serve an amended skeleton argument in support. I am going to ask that this permission judgment and the order today, together with the amended grounds and skeleton, be filed on Cafcass Legal, who shall have permission to file a skeleton argument as to the position of the Cafcass officer seven days after the amended materials have been put before this court.

    Order: Applications granted

Judgment, published: 07/07/2013


Published: 07/07/2013


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