Family Law Hub

D-L (Children) [2013] EWCA Civ 936

Appeal in a contact case where the local authority and guardian had made recommendations as to the level of contact between the children and F, but the judge had departed from the experts' recommendations without explaining why. Appeal allowed

  • Case No: B4/2013/0278

    Neutral Citation Number: [2013] EWCA Civ 936

    IN THE COURT OF APPEAL (CIVIL DIVISION)

    ON APPEAL FROM THE PRINCIPAL REGISTRY

    FAMILY DIVISION

    (HER HONOUR JUDGE WRIGHT)

    Royal Courts of Justice

    Strand

    London WC2A 2LL

    Wednesday, 22 May 2013

    Before:

    LORD JUSTICE THORPE

    LADY JUSTICE ARDEN

    and

    LORD JUSTICE BEATSON

    IN THE MATTER OF D-L (CHILDREN)

    (DAR Transcript of

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    Mr Justin Ageros (instructed by Goodman Ray), supported by Mr David Rosen (Solicitor of Darlingtons) on behalf of the Paternal Extended Family, Ms Joanne Ecob (instructed by LB Barnet) on behalf of the Local Authority and Mr Laurie Avadis (Solicitor of Avadis and Co) on behalf of the Guardian, appeared on behalf of the Applicant Father

    Mr Jonathan Cohen QC (instructed by Traymans Solicitors) appeared on behalf of the Respondent Mother

    JUDGMENT

    (As Approved by the Court)

    Crown copyright(c)

    Lord Justice Thorpe:

    1. On 7 January HHJ Wright gave her judgment in relation to contact that each of the parents was to have to two of their children who were living in Manchester under special guardianship arrangements with the father's extended family, and what contact the father was to have to the two other children, who were living with their mother.

    2. The result ordained by the judge is expressed in paragraphs 3 and 4 of her order in which she said that the father should have supervised contact with the children subject to special guardianship a maximum ten times per annum, of which three or four should be in London at the Jewish family centre during the three school holidays. In relation to the two other children in their mother's care, the order was again ten occasions per annum, three or four such as set out in paragraph 3.

    3. The children under special guardianship are Shlomo, who is 7 years of age, and Shoshana, who is 5. The children remaining with their mother are Sara who is 3 and Shira Tova, who is nearly 2.

    4. The parties before the court on 7 January were the parents, of course separately represented, the local authority (the London Borough of Barnet), the extended family (paternal grandmother and paternal aunt) holding the special guardianship order and the guardian for the four children of the marriage. There was an additional party with whom we are not concerned because he is the father of other children born to the mother.

    5. The father was understandably dissatisfied with the judge's conclusion, for he had supported the recommendation of the local authority and of the guardian, which ultimately was to this effect: that the father's contact to Shlomo and Shoshana should continue supervised, restricted to school holidays for a period of three months, to be increased to every 3 weeks providing that the local social worker in Bury had no concerns as to contact in the interim. So the effective recommendation of the local authority and the guardian was not ten times maximum, but precisely 17 times a year or once every three weeks. That should be immediate in relation to the two younger children and should be effective after three months in relation to the two older children, providing that the social worker allocated expressed no concerns.

    6. The essential criticism of the judge is that she departed from the united voice of expertise without explaining sufficiently or at all why she differed from the conclusion and recommendation of those experts. The point arose immediately when, at the conclusion of her judgment, Mr Ageros, who has acted for the father throughout, addressed the court:

    "Did your Honour intend to address in this judgment the reasons why you depart from the views not just of the father but of both the local authority and the guardian?"

    To which the judge said:

    "I hope I have."

    In the following exchanges the judge really added nothing, but reiterated that she considered that the judgment she had already delivered sufficiently explained the reasons for her departure.

    7. That led Mr Ageros to apply for permission to appeal, and permission was duly granted by McFarlane LJ on 24 April. He said that the appeal should be listed on 20 May or as soon thereafter as possible, and it is today the 22nd, only just beyond, that we hear the appeal.

    8. Mr Ageros is today supported by Joanne Ecob, who is instructed by the London Borough of Barnet. Mr Rosen is here for the paternal extended family, and Mr Avadis is here for the guardian. Those three parties unite in supporting Mr Ageros's appeal. So Mr Jonathan Cohen QC, who represents Mrs Lewis, obviously is fighting a large and united front, and he does so with his customary skill and vigour. But the points he takes are readily answered by Mr Ageros.

    9. First, he submits that Mr L sought and the local authority recommended but six visits a year, so how can he complain in this court when he emerged in the court below with ten? Well, Mr Ageros in reply points to the fact that Mr Cohen's submission is only sustainable on a reading of the document D106A. If the earlier document and particularly D105 is read, it is plain that that was not the local authority's position on 7 January, and as my Lady, Arden LJ, pointed out, it is perfectly plain that the judge understood the position fully, for at B51, line 16, the judge said:

    "I do not consider that an arrangement providing for Sarah and Shira-Tova to see their father every three weeks...or a similar arrangement for him to see Shlomo and Shoshana is sustainable."

    10. Mr Cohen's other point is that this was a judge who had been handling a difficult family case over the course of 20 days of trial in 2012. She had a very firm view of each parent. She had expressed highly critical findings of the father in a judgment of 5 October, and implicitly she was carrying those findings forward as the foundation of her reasoning on 7 January.

    11. In reply to that, Mr Ageros naturally points out that, whatever the judge may have thought on 5 October, it was a different case that she had before her on 7 January. There had been an intervening hearing on 25 October and of course further evidence had been prepared directed to the specific issue for decision on 7 January, namely contact.

    12. I reach the clear conclusion that Mr Ageros succeeds in his submissions, supported as he is by three other parties to the proceedings. I do not consider that the judge, either expressly or implicitly, fulfilled her duty to explain in clear and careful language why she was rejecting the recommendations of objective expertise.

    13. Accordingly, I would allow the appeal and propose that we vary the order below so that in paragraph 3 we express the supervised contact with Shlomo and Shoshana to be every three weeks, supervised (that is, contact with their father). However, the implementation of that variation shall await the formality of a letter from the allocated social worker in Bury confirming that during what was intended to be a probationary period nothing has gone wrong. I say it is a formality because Mr Rosen, who represents the special guardian, has informed the court that over the probationary period and beyond it the access visits have been very productive.

    14. There will be a similar variation in relation to Sarah and Shira Tova. Again, the paragraph 4 expression "maximum of ten occasions per annum" will be varied to "every three weeks". It is common ground that the three-or-four-times-per-year inter-sibling visits will be maintained and they will be part and parcel of the once-every-three-week regime.

    15. Mr Cohen, in a submission in rejoinder, suggested that if there was to be an increase in father's contact to every three weeks, then the same should go for the mother. I understand her desire and her sense that anything else would hardly be fair, but it does seem to me that it is not something that we can order since the appellate process is initiated by and limited by the Appellant's Notice and the permission given by McFarlane LJ. No process has been initiated by the mother for variation by way of safeguard in the event of the father succeeding. Obviously the prospects of his success were considerably amplified when the skeletons came in from the local authority, aunt and guardian. It is obviously open to the mother to apply in the Principal Registry for a variation of her contact to Shlomo and Shoshana to reflect the outcome of this appeal.

    Lady Justice Arden:

    16. I agree.

    Lord Justice Beatson:

    17. I also agree.

    Order: Appeal allowed

Judgment, published: 25/07/2013

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Published: 25/07/2013

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