Case No: B4 / 2010 / 0300
Neutral Citation Number: [2010] EWCA Civ 1449
IN THE COURT OF APPEAL  ( CIVIL DIVISION )
ON APPEAL FROM PRINCIPAL REGISTRY OF THE FAMILY DIVISION
(HIS HONOUR JUDGE HOROWITZ QC)

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Friday 29th October 2010

Before:

LORD JUSTICE MUMMERY
LORD JUSTICE RIMER
and
LADY JUSTICE BLACK
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Between:

	In the matter of W (A child ) 	

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The Appellant Father appeared in person.
The Respondent Mother appeared in person.
Miss Kaur (instructed by NYAS) appeared on behalf of the child by his Guardian
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Judgment
Lady Justice Black:

1.	T was born on 17 April 2000.  He is now ten years old.  His parents have been engaged for a long time in proceedings in relation to his contact with his father.  Ultimately the proceedings culminated in an order made by HHJ Horowitz on 18 December 2009.  It provided for direct contact four times a year for two hours, with T's mother to be present throughout, and for twice weekly indirect contact in the form of e-mails or letters.  The judge also made a section 91(14) order under the Children Act 1989 (“the Act”) preventing the father from making any further applications to the court for orders under section 8 of the Act without leave of the court.  That order was to last until 17 December 2011.  The father appeals from the judge's decision, with leave of this court, in relation to contact and the section 91(14) order.

2.	The mother and the father appear in person.  T is a party and has had the services of NYAS in the person of Mr Vobe, who has acted as T's guardian for the proceedings.  T is legally represented.  We are grateful to all of the parties for their very clear and helpful argument both in writing and orally.  

3.	The father and mother lived together between about 1990 and April 2003.  They separated when T was nearly three years old and he remained living with the mother.  Problems over contact seem to have started from the early days of separation.  A court order was made in 2005, but it did not resolve the difficulties.  

4.	From 2006 contact became very sparse.  Considering the case in October 2007, in a context to which I will come in a minute, HHJ Horowitz said that since August  2006 the father had seen his son for only seven-and-a-half hours over several occasions.

5.	The hearing before HHJ Horowitz in October 2007 was a three-day fact-finding hearing, which had as its purpose the investigation of each parent’s case as to why contact had gone wrong.  The guardian had been appointed for T and he was therefore represented during that hearing as well.  

6.	HHJ Horowitz's judgment of 3 October 2007 is an important document.  HHJ Horowitz is a very experienced family judge, and this long and detailed judgment reveals the depths of the investigation that he made at that time into the situation between the adults and in relation to T, and his understanding of the dynamics of the various relationships.  In it, the judge also set out his view as to what was the best way forward.  I need to refer to the judgment in a little detail because it sets the scene for what comes later.  It also forms an important part of the judge's December 2009 decision, as the judge himself made plain.

7.	In October 2007 the judge had: 1) a report from a previous CAFCASS officer.  She did not give evidence, no doubt because her role had by then been overtaken by a NYAS guardian; 2) two reports from Mr Robson of NYAS, then representing T, since replaced by the current guardian, Mr Vobe.  Mr Robson gave evidence briefly; 3) evidence from the mother and the father in writing and orally.  The judge made a number of important general points very clear.  He said that he had before him "two very decent people".  He said that the father loves T and that at times contact had been good, including for instance T whispering on one occasion that he wanted to see more of his father.  He said that he appreciated the need to take a firm and robust view if the court feels that contact has been frustrated.  He made an important finding that this is not a case of implacable hostility.  I quote from paragraph 13 of his judgment :

"…this is not a case, and this is a primary finding of mine, of implacable hostility, conscious or unconscious, by a mother.  It is not a case of cold hostility towards the father, inculcated directly or indirectly, into the child.  The problem here is that although things have gone wrong through some degree of fault on both sides, and of that I am quite certain, it lacks, as I say, that edge of psychic manipulation and defiance that attends other intractable contact disputes."

8.	The judgment describes the state of affairs at that time with regard to T, and it reveals the nature of the problem that there was then with regard to persuading T to engage in contact or in matters related to it.  Mr Robson of NYAS had had the experience of T “hiding under the bed from him, barricading himself in his room and refusing to come out, hiding under the sofa”.  As the judge put it, “his [that is Mr Robson's] skill and his patience… has met a resistance that still puzzles him.”  Telling us a little more about this phase today, counsel for the guardian said that Mr Robson had taken quite a direct approach to persuading T to go to contact, coming to collect him to take him for it, and it was in the context of this that these problems had arisen, although I am not sure that the father would subscribe to the same view of things.  Dr Berelowitz, a distinguished child psychiatrist with much experience in these sorts of cases, had been sent the papers and had tried to speak to T, but he had found T scarcely willing to speak to him.  He had eventually managed to do that just before the hearing and it was anticipated that he would report in due course.  The judge said, summarising the difficulties, "This is a problem that has stumped what I might call the A Team.”

9.	The father's case before the judge was that the mother was 90 per cent to blame for the position that contact had reached.  According to the judge's finding the father's acceptance of even 10 per cent of the blame was "somewhat notional".  The judge did not accept the father's analysis.  He found some evidence that the mother was in a state of anxiety from time to time and that T tuned into it and was negative about contact.  He also found there was a degree of truth in the father's feeling that the mother's parents' hostility to him had fed the process.  The judge thought, however, that the mother might be right in saying that the mechanism was rather more subtle than the father thought.  The mother put the problem down to T reporting his own anxiety to her, her becoming anxious and then that generating more anxiety in T.  The judge thought there was plausible evidence of T being caught between his two parents and playing to both of them but, in particular, to the mother as his major carer.  The judge looked at some of the things that had gone wrong and was not wholly uncritical of the mother, for example in relation to a letter which had been written by her solicitors when she became alarmed over some summer holiday arrangements, although he was also critical of the father for his response to that situation.
10.	He made a finding about a problem that had arisen in July 2006 when T had been due to go for a period of staying with his father.  The pick-up for that period was to be at school but T refused to go.  That was the precursor to an unfortunate period of difficulty, including an incident when the father went round to T's house and shouted some unsatisfactory things through the letterbox, which the judge felt would have made T feel threatened and besieged in the place where he wanted to keep feeling safe.  The father blamed the mother for the problem over the pick-up at school.  The judge found the mother's presence there that day was a “hugely unfortunate” coincidence and that the events were “a wholly unlooked for but desperately unfortunate disaster.”

11.	The judge identified that the father “so often lets his short-term impulse take over and make a victim of longer term secure relationships.”  He identified a pattern where the father, turning the temperature up, would accuse the mother of lying and wind himself up so as to believe she is not just anxious but telling untruths.  He said that he was satisfied that there had been occasions:

"…and many of them amounting to a mindset in which the father brings an intensity to bear that makes him cross, that makes the mother feel at the receiving end of crossnesses and that makes [T] feel he is caught in the middle.  I am satisfied that this is a substantial cause of the difficulties in which we have found ourselves.  The father has said, honestly and openly, “I flare up, but I deal with it and it's a bubble and it goes down again”.  That may be his temperament but I do not think he fully takes on board how it presents on the other side especially to a small boy watching his parents at war and to a mother who herself is on the anxious side.”

12.	The judge found that the mother had some sort of recognition and understanding of where things might have gone wrong, but he listened in vain for sure signs that the father had gone on the same journey.  The judge felt that they should take the “incremental and patient approach”, as he put it, and that they needed “to get across to [T] the message that his parents are slightly nicer to each other, and his father is not a wanting, wanting, suppressed, even angry figure.  We might begin to unlock [T].”  

13.	In the normal way of these things, those findings of fact formed the basis for future planning of the case, including a report from Dr Berelowitz dated 21 November 2007.  Those findings will also remain a vital tool in any future determination of how to approach T's contact with his father.  

14.	The case came back before the same judge again in July 2008.  Both parties were in person on that occasion.  Dr Berelowitz also attended.  Together the judge and Dr Berelowitz conducted what the judge described as a sort of quasi-mediation, and Dr Berelowitz gave his views on how contact should be progressed.  Various constructive plans were made, including the mother and father both agreeing to engage in some therapy or counselling.  Dr Berelowitz and the guardian both said that direct contact would be counterproductive at that stage.  An order was made for indirect written contact between T and his father twice a week and an order was made that the guardian, who was to be Mr Vobe, was to "take all reasonable steps to promote direct contact and such contact to take place when he considers it appropriate".  As the judge put it in his December 2009 judgment, that left Mr Vobe now firmly in the saddle. 

15.	Six contact visits took place in the summer of 2009 from May until August, and contact then ceased.  It has resumed this year, during which there have been four contact visits, but there was no contact between August 2009 and the hearing before HHJ Horowitz in December 2009.  The father had laid the ground for that resumption of contact in May 2009 by saying sorry to T, with Mr Vobe's assistance, for some of his past behaviour and the parents had had two meetings, adults only, before the contact started.

16.	The father felt that contact had stalled later in the year because it had not been developed into a regular feature fixed in advance and taking place without the mother's presence.  The mother and the guardian felt that what had gone wrong was that the father had not allowed T to take things at his own pace and had been too keen to say he wanted more rather than taking things step by step.

17.	I have looked at some of the correspondence from around this time between the father and NYAS but, in the light of our decision in relation to this appeal, I do not propose to analyse it here.

18.	Contact having ceased, the father wrote to HHJ Horowitz seeking to restore the case for directions and the hearing.  The judge wanted a report from Mr Vobe and wanted the case then restored in front of him.  He made an order on the papers on 21 October 2009, which says that the matter was to be listed for "directions review" with a time estimate of one hour.  Directions were included in the order for a “final statement” from the father, to include his proposals for future contact and any evidence on which he intended to rely, a similar statement and evidence from the mother in response and then a “final report” from Mr Vobe.  In due course the date of the “directions review” was fixed as 18 December 2009.  

19.	Just before the 18 December hearing there was a large quantity of snow. The parents live in Sussex and the hearing was in Milton Keynes, so they took the precaution of beating the weather by going to stay in Milton Keynes the night before.  Mr Vobe was unable to do that, being in court the previous day, and the weather conditions on 18 December were such that he was unable to reach court, although his counsel, Ms Kaur, who represents T today as well, did get to court.

20.	Mr Vobe's proposal was for limited contact in the form that the judge subsequently ordered.  He also suggested in his report and through his counsel at the hearing that a section 91(14) order should be made.  The judge was placed in a difficult position by the absence of the guardian.  When we asked him about it today the father could not recollect asking for an adjournment so that full evidence could be heard, but Ms Kaur was able to assist us by telling us that her recollection was that he did.  We have not been shown what, if anything, the judge said in immediate response to the father's application, but he does set out his views on the subject in paragraphs 23 and 24 of his judgment.  He said, paragraph 23:

"I am afraid I have come to the clear view that I am obliged to deal with this matter today on the material that I have."

And in the course of paragraph 24:

"I do not think it would promote [T's] welfare to embark on a new round of litigation.  I have considered and rejected the possibility of convening another hearing at which Mr Vobe might give oral evidence.  I believe I have sufficient material and compelling other considerations to direct me to deal with the matter as I have now, and not to promote further anxiety, delay and distress to [T] directly, indirectly via his mother who has the 24 hour care of him"

21.	The objective of the judge was of course laudable.  He obviously had the interests of the child very much at the forefront of his mind and was conscious of the fact that the litigation had been going on for a very long time, already for over half of T's life.  There can of course be cases in which considerations of this sort compel a court to act on rather less evidence and argument or rather more urgently than it would wish.  There were, however, a number of difficulties in taking the robust action that the judge did in this particular case.  The father had made clear that he challenged the way in which the guardian had addressed the task entrusted to him by the July 2008 order.  His argument was that NYAS had adopted a laissez-faire style of management, misguidedly leaving matters to the mother rather than moving them on using a fixed framework for contact and removing the mother from the event of contact.  He complained that the guardian had not seen T between November 2008 and the final contact period and that he had not attended a contact session or seen the father and child together.  He also complained about the shortness of the guardian's subsequent interviews with T in October and November 2009.   He was proposing that NYAS should step down and a “facilitator”, as he put it, should be involved. 

22.	The facilitation he had in mind seemed to have a number of facets, including suggesting to the mother that she did not have to be there for contact, reminding the mother that contact normally happens regularly and it is generally good for the child and setting up a schedule of contacts rather than leaving it to the mother.  This is what he thinks that NYAS should have done. He thought that consistent with Dr Berelowitz's recommendations.  He recognised Dr Berelowitz had advised a three stage package, which he saw as being: Step 1, the father changing his demeanour; Step 2, the mother conveying this to T; and step 3, if this did not work T possibly needing therapy. He considered that step 1 had been achieved.  He had done his bit and a more rigorous approach was needed to achieving the rest.

23.	The guardian did not accept that there was anything wrong with his approach, which he considered had been in line with what had been contemplated in 2007 and 2008.  He attributed the problems to the father's approach in that, as the guardian thought, he was failing to allow T to take things at his own pace and trying to persuade him to see more of him, which T felt that he could not deal with.  The father in turn did not accept that analysis.

24.	This was a debate between the guardian and the father, which was potentially of considerable importance to the outcome of the case.  Normally one would expect it to be explored through cross-examination, each of the other.  The procedure adopted by the judge did not permit that.  He reached his conclusions about the case on the papers and submissions.  Counsel for the guardian submits that that was entirely proper on the facts and that there was nothing procedurally unfair to the father.  She invites attention to the long history of the matter, with which HHJ Horowitz was very familiar.  She questions whether there could actually have been any different outcome even if the evidence had been aired orally with cross examination.  She submits that the issues had been gone into fully in correspondence between the father and the guardian which was available to the court.  She submits that there was ample material for the judge's decision to accept the guardian's evidence.  She points to the father having lost faith in experts at intervals throughout the proceedings: CAFCASS, the previous NYAS worker, Dr Berelowitz (upon whom he now seeks to rely but previously did not favour) and now Mr Vobe. She points out that the father had sought a facilitator's appointment before. She invites our attention to the judge's knowledge of the father and argues that he was in a position to take a view about what had gone right and gone wrong without oral evidence.

25.	I cannot accept that the matters that counsel for the guardian raises are an answer in this case to the father's complaint that he was not allowed to cross-examine the guardian.  It is very common for the parties' respective cases to be set out in writing before the hearing and even argued between them in more formal areas of the law.  This is of course the purpose of pleadings. This process is rarely, however, a substitute for the giving of oral evidence, which is tested in cross examination and I do not consider that, even taken with the other matters to which Ms Kaur took us, it was a substitute here.

26.	Insofar as she seeks to rely on the history as justification enough for the judge's orders, the difficulty is that the matter had in fact changed temporarily during 2009 with the six contact visits.  This was, in the context of this case, quite a regular spell of contact, and there is some evidence that it began well.  What had not been explored, and needed to be, was why it had not progressed and had petered out.  The parties’ views on this were polarised, and, whilst potentially informative, the historical material and the more recent documentation did not contain definitive answers, or could not be said to do so without first being explored more deeply.  

27.	My unease about the procedure is underlined by three other features.  The first concerns the issue of the guardian's evidence.  As some questions had arisen in relation to the guardian's position, the judge retired to his room during the hearing and rang the guardian.  This was, it seems, in an attempt to explore issues which were of concern to the father, one being the shortness of the interviews that the guardian had had with T.  The judge then relayed what the guardian had said to the parties, and no one doubts that he did that entirely accurately and faithfully.  The weather had forced the parties into a difficult position, and this was a pragmatic response by the judge to the dilemma, but it did not, I am afraid, provide the father with the chance to which he was entitled of putting his own questions to the guardian in the witness box.  On one view it actually compounded the problem, because it gave the guardian a further opportunity to explain his position in response to the father's criticisms without the father having a corresponding opportunity to test this new material.

28.	The second feature that underlined my unease is that this hearing was listed for a one-hour review directions hearing.  I think even counsel for the guardian may have been surprised when it turned into a final hearing.  She would, I think, have expected that if there were issues of substance, as there were, the matter would be put over for a full hearing, with any further directions being given that were necessary in preparation for that, although all the necessary material was possibly in place already.  I would have contemplated that that full hearing would involve evidence and cross-examination from both the father and the mother and from the guardian.

29.	The third feature is a very significant cause of unease and that is the nature of the orders that were made by the judge.  The direct contact that was ordered was infrequent and, by virtue of the section 91(14) order, it might not be varied for two years.  The combination of these orders could properly be described as draconian.  It was therefore necessary that all appropriate procedural safeguards were in place in the process leading to them being made.

30.	It follows that I am of the view that, because of the procedural irregularity of the hearing on 18 December, the orders made on that day cannot stand and I would set them all aside.  There has been argument about the rights and wrongs of imposing a section 91(14) order without a prior formal notice to the father and on the facts of this case, but I do not need to go into that question because that order would necessarily go as a consequence of setting aside the contact order.

31.	I want to make it quite clear that I am not expressing any view at all about the respective merits of the parties' cases in relation to contact or in relation to the section 91(14) order. That will be a matter for the trial judge to explore and to form a view about.  

32.	I have given very careful consideration to whether it would be fair to return this matter to HHJ Horowitz.  The mother would like that to happen and I dare say that the guardian would too.  The judge has immense experience generally and of this case and that would undoubtedly be of value to him, and I am sure that he would in fact approach the case entirely afresh if it were to be returned to him.  However, part of his approach on 18 December was to determine, on the evidence then before him, the very issues that will be amongst those that will have to be determined/redetermined at a full hearing.  In the circumstances, much as one wants to retain the valuable knowledge that the judge already has of the case and of the parties, I do not think it would be appropriate for it to be returned to HHJ Horowitz.

33.	The father has requested that the matter be transferred to a court nearer to the parties' homes in Sussex.  He suggests Chichester.  The mother and the guardian have not expressed a particular view about this, but my provisional view is that a transfer to a county court more local to their homes would be helpful and can now be achieved, given that a different judge is to take over the proceedings.

34.	In addition to setting aside HHJ Horowitz's orders, I would order that the matter should be listed as soon as possible for directions before a judge in whatever county court is appropriate in the region in which the parents live.  I would invite the guardian's solicitors to ensure that that is arranged.  At that directions hearing, arrangements need to be made to set up a full hearing to determine on evidence what it was that led to the failure of contact last year.  I would not be in favour of us making any order appointing a facilitator to replace Mr Vobe or to work alongside him.  It seems to me vital that T should continue to have the assistance of a guardian in this difficult case and the options for arranging that, if it is not to be Mr Vobe or NYAS, are running low.  It is not a step that ought to be taken before a court has considered more fully whether there is validity in the father's criticisms of Mr Vobe and whether he should continue to play a role, and if so what, as well no doubt as considering any other options that any party  puts forward.

35.	In summary therefore I would allow the appeal, set aside HHJ Horowitz's orders of 18 December 2009 and return the case for a hearing in relation to contact and all that is ancillary to that to a different judge sitting in the area of the country in which the parents live.

Lord Justice Rimer:  

36.	I agree.  It is a basic principle of fair procedure that, in coming to his decision, a judge should not receive evidence or other material relevant to his decision of which all the parties before him are not equally aware. The reason for that is obvious. It is so that the parties will have the same knowledge as the judge of all the material that may be taken into account in the decision-making process and can make their representations in relation to it. In the present case the judge's decision in the course of the hearing to have a telephone conversation with T's guardian in the privacy of his room was, with respect, a mistaken step for him to have taken, and the mistake was not cured by the fact that, as we are told, the judge then related the nature of his discussion with the guardian to the parties in court. There was no point in the conversation unless it was for the judge to derive additional assistance by way of evidence from the guardian, and he should not have sought to do so otherwise than in the presence of the parties. The unfairness of this procedure was then magnified when the judge refused the father's application to have the opportunity to cross-examine the guardian on his recent report, although that would of course have required an adjournment, which the judge declined. The perception with which the father must legitimately have been left was that the judge decided the case against him without his having been given any fair opportunity to test the guardian's approach to the question of contact.  

37.	I also respectfully agree with Black LJ's further observations as to the justice of the outcome of the hearing on 18 December 2009. 

38.	I too would allow the appeal.

Lord Justice Mummery:

39.	I agree with both judgments and the court will make an order in the form proposed by Black LJ.

Order: Appeal allowed