Neutral Citation Number: [2013] EWCA Civ 1412

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM a County Court
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday 21st November 2013
Before:

LORD JUSTICE SULLIVAN
LORD JUSTICE RYDER
and
LADY JUSTICE MACUR
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In the matter of C (A Child)

Between:

	 JC 	Appellant	
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	 KH 	Respondent	
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 (Transcript of the Handed Down Judgment of
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Ms Deirdre Fottrell (instructed by Hopkin Murray Beskine) for the Appellant
Ms Madeleine Reardon (instructed by Cafcass Legal) for Cafcass
The Respondent did not appear and was not represented
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Judgment
Lord Justice Ryder: 
1.	The appellant is the father of a young boy who was born on 1 April 2008 who I shall call C.  The respondent is C's mother.  There is evidence before the court that both parents were involved in the care of C during their relationship and that for a period of time C’s father was his primary carer.  C's parents were in a relationship for ten years.  They separated in January 2012, since when mother has been in a relationship with a new partner with whom she has had another child. It appears that father's circumstances were not so fortunate.  He found the ending of the relationship emotionally distressing, he had financial difficulties, he had no accommodation as a consequence of being asked to leave the former matrimonial home when the relationship ended and he was declared bankrupt.  He is a former soldier and on his own account has had some mental health difficulties relating to his military service.  He moved from the North West of England to stay in the South East with extended family members.  

2.	The order complained of was made in the county court on 6 March 2013 in Children Act 1989 proceedings issued by mother in March 2012.  The order prohibited father from removing his son from the care of mother or from his primary school and provided for indirect contact between father and son in the form of letters, cards and small gifts.  It follows that direct contact was refused.  In circumstances which I shall describe the order was the culmination of a series of serious procedural irregularities which caused the decision to be unjust.  The order was also wrong given that one of the irregularities gave rise to an assumption of alleged facts against father when the court had not conducted a finding of fact hearing and accordingly the judge’s welfare evaluation was based on what is said to be a false premise.  

3.	It needs to be understood that the allegations made against father are serious.  The most serious of the allegations and the assertions of risk were not made by mother but by the Cafcass practitioner who was the family court advisor.  The allegations have not been decided and nothing which follows in this judgment should be taken to minimise the risk that might exist if the allegations are true.  Equally, if the allegations are not proved or the risk assessment is as a consequence or otherwise wrong, the child who is the subject of these proceedings and his father have been seriously failed.

4.	I have not identified anyone in this judgment because it has not been possible to ascertain how the failures of due process that I shall describe have occurred.  It is as likely as not that it was because at various significant points in the proceedings both parties were litigants in person.  There was no effective judicial continuity.  It is not helpful for this court to attribute blame and in any event it would be inappropriate given that this court is not in full possession of all of the information that relates to the proceedings.  That said the case presents a salutary lesson to us all to put in place procedures and practices which can accommodate litigants in person who do not know the rules and practice directions of the court.  Since the commencement of the relevant provisions of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO 2012) on 1 April 2013 the majority of parents in private law children disputes are litigants in person and the obligation upon the court to identify and implement due process should not be underestimated.  That will take time and that means a greater share of the court’s limited resources.

5.	I propose to deal with the litigation history from the perspective of the litigant in person, that is from the scant papers that were filed and by reference to any formal record of matters that were raised orally.  In fairness to the judges involved, the same paper record is all that they will have had to inform them from hearing to hearing.  Where there is no record of something of significance that was said orally I shall say so.  This court has had very considerable assistance from a legal team instructed for these proceedings by father who received legal aid after the permission hearing in this court.  His solicitor (Ms Hopkin) undertook the permission hearing and the preparatory work that preceded it  pro bono.  I am also grateful to Cafcass Legal for their helpful assistance.  Mother decided that she did not wish to attend this hearing or to be represented at it.  Her representatives filed a helpful skeleton argument opposing the appeal.

6.	The circumstances that led to family proceedings in the county court are as follows.  Subsequent to the parents’ separation and between 6 January and 29 March 2012, father was seeking direct contact with his son without success.   The parties were by then living at opposite ends of the country and were apparently unable to communicate civilly with each other.  On 29 March 2012 mother made a without notice application to the court for prohibited steps and residence orders.  An order was made on the same day by a deputy District Judge without notice to the father prohibiting father from “removing the child from the care of the Applicant or from [the nursery]”.  A return date of 5 April 2012 was ordered for a hearing between the parties limited to 30 minutes, the time for service was abridged to three days and father was given liberty to apply on 24 hours notice.

7.	The written material before the court at the without notice hearing was mother’s application notice (the C100) and a supplemental information form for use in cases where allegations of harm and domestic violence are raised (the C1A).  Mother was a litigant in person at the time the documents were issued.  Although in error mother struck through the statement of truth on the information form, I shall take it for the purposes of this judgment that she intended to make the statements contained in the documents knowing that proceedings for contempt may be brought against a person who makes a false statement which is verified by a statement of truth.  I make that comment because when a document which purported to be a statement of evidence was eventually filed by mother in these proceedings it did not give particulars of all of the allegations made, for example as to any alleged facts which substantiated a risk of abduction from the mother’s care at the relevant time.  It likewise did not give anything like the detail of the allegations subsequently relied upon by the Cafcass practitioner.

8.	The documents taken together demonstrate that mother was applying for residence and prohibited steps orders.  The application notice was unfortunately silent as to that fact.  The facts alleged against father were as follows:

a.	He was returning to (the area of the child’s nursery and home) on 20 March 2012.
b.	He was intending to see his son without mother’s consent.  
c.	He had “threatened on more than one occasion that he had a right to see his son”.
d.	He had been threatening and abusive towards mother.
e.	In that context, “he may take him (the son) without consent”.
f.	There were concerns about his mental health and lack of (local) accommodation.

9.	Mother characterised her application as being based in a belief in a risk of abduction (by ticking the box that identified that risk) without giving any particulars other than (b), (c) and (e) above which related to having contact without her consent.  She likewise characterised her application as being unrelated to any risk to the child from domestic abuse or violence.  Despite that she particularised the domestic abuse she relied upon as threatening and abusive conversations and a specific request from father that he be allowed to pick up his son from nursery.  

10.	Without hearing more from mother about her fear of abduction, this was an application which on its face was about contact which mother did not want to provide for father.  Without in any way excusing father for what he might have said in the past (which at that stage had not been particularised or proved) or for any threat to exercise his parental responsibility unilaterally (which might have been unwise or wrong in the sense that a dispute in front of the child at nursery or a removal from nursery without agreement would likely be harmful to the child), the case as presented on paper was a dispute about contact with low key allegations which screamed out for a rapid decision.  If a prohibited steps order was to be made at all the risk needed to be substantiated in evidence and the proportionality of the consequence needed to be considered. 

11.	Due process in court proceedings must involve scrutiny of the detail of that which is alleged and asked for.  The need for that is demonstrated on the facts of this case by the inconsistency of the case presented against father which is a sad and usual consequence of a party being unrepresented. It has to be said that the problem was heightened by the leading nature of the enquiries on the application notice and supplemental information form which invite an inference of abduction.  To be clear, where a ‘tick box’ formula is used to identify the existence of abduction and/or domestic violence, it should be a requirement not a request that relevant particulars are given and that requirement should be made clear on the form.  The notice and form would be of much greater use to the judges of the court if they contained in template form a short sequence of narrative paragraphs whose completion is mandatory dealing with the order applied for, the precipitating circumstance, the allegations, the specific proposal relating to the application and the required particulars of exceptional urgency and notice.  In that context, the Family Procedure Rules Committee may wish to consider whether the forms are a sufficient reflection of the duty of full and frank disclosure which exists on those who seek to use a without notice procedure:   In re S (A Child) (Family Division: Without Notice Orders) [2001] 1 WLR 211 at 216: 

"The burden on those who apply for ex parte relief is, as indicated in Memory Corpn plc v Sidhu (No 2) [2000] 1 WLR 1443, a heavy one. And, as the same case shows, the duty of full and frank disclosure is not confined to the material facts: it extends to all relevant matters, whether matters of fact or of law. As Lord Donaldson of Lymington MR said in In re M and N (Minors) (Wardship: Publication of Information) [1990] Fam 211, 229, it cannot be too strongly emphasised that those who seek ex parte injunctions are under an obligation to make the fullest and most candid disclosure of all relevant circumstances known to them."

12.	This court cannot comment upon the merits of the without notice order that was made because no-one knows what the deputy District Judge heard in oral evidence that justified an order.  If one assumes that having heard mother an order of some kind was appropriate, it was not an order in the terms made.  The order was not appealed or set aside and is now academic but on the basis that orders of the family courts are to be complied with, the corollary is that they must be properly made.  The judge was presumably told of matters that are not set out in evidence which justified both the need for prohibited steps and the fact that they were applied for without notice to the father.  That evidence is neither recorded on the face of the order for father to read nor was a direction made that the evidence presented orally was to be transcribed or put into the form of a statement within 48 hours and served with the application notice and the order, so that father might know what had happened and why.  Rules 12.16(4) and (5) Family Procedure Rules 2010 [FPR 2010] require that an application notice and order made without notice are served within 48 hours of the order being made.

13.	In accordance with rule 18.10(2) FPR 2010 the service of evidence on father in support of the without notice application was mandatory unless the court ordered otherwise.  Where in private law children proceedings there will often be no written evidence in support because leave to file the same has not yet been given under rule 12.19(2), it is an essential procedural protection that the court orders the applicant to file and serve a statement setting out the matters relied upon orally before the court in the absence of the respondent and/or, where appropriate, to obtain and serve a transcript of the proceedings.  That should have been done alongside service of the application notice.  Any abrogation or variation of this procedural protection must be explained i.e. reasoned by the court and the reason should be stated in the order where, as is likely, there will be no formal judgment.   The magistrates in the Family Proceedings Court and each of the divisions of the High Court have precedent forms of order that are in regular use for paper and without notice orders that helpfully prompt the court to give reasons for the order on the face of the same.  In future, this should be regarded as good practice in all family courts where written reasons or a judgment are not otherwise readily available.

14.	The father’s right to apply to set aside or vary the order is contained in rule 18.11 FPR 2010.  It is an absolute right which must be set out in a statement on the order in accordance with rule 18.10(3).  The form of order used by the court did not contain that statement nor was there any explanation of why the father’s right to set aside or vary was constrained by him having to give 24 hours notice.  The phrase ‘liberty to apply on 24 hours notice’ is simply inapt in the face of the rules or for a litigant in person who has to understand without legal advice what the order means and how the order fits into the context of the alleged facts and the other orders and practice directions of the court.

15.	A prohibited steps order is a statutory restriction on a parent’s exercise of their parental responsibility for a child.  It can have profound consequences.  On the facts of this case, without commenting on the wisdom of any step that either parent took or intended to take when they were already in dispute, and in the absence of an order of the court, father had the same parental responsibility as mother in relation to his son.  Once the order was made, he lost the ability to exercise part of his responsibility and could not regain it without the consent of the court.  That is because a prohibited steps order is not a reflection of any power in one parent to restrict the other (which power does not exist) it is a court order which has to be based on objective evidence.  Once made, the terms of section 8 of the Children Act 1989 do not allow the parents to relax the prohibition by agreement.  It can only be relaxed by the court.  There is accordingly a high responsibility not to impose such a restriction without good cause and the reason must be given. Furthermore, where a prohibition is appropriate, consideration should always be given to the duration of that prohibition.  Here the without notice prohibition was without limit of time.  That was an error of principle which was not corrected by an early return date because that was susceptible of being moved or vacated unless the prohibition also had a fixed end date. The finite nature of the order must be expressed on the face of the order:  R (Casey) v Restormel Borough Council [2007] EWHC 2554 (Admin) at [38] per Munby J.

16.	The principle which is engaged when a prohibited steps order is being considered by the court is the welfare of the child concerned.  On a without notice application there will of necessity be no evidence to contradict that which the applicant asserts and the court must decide whether there is a prima facie case for the order.  There has to be a persuasive case supported by evidence of objective fact (rather than expressions of suspicion or anxiety) that the respondent intends to exercise his parental responsibility in a manner which is likely to harm the child or otherwise be adverse to the child’s welfare having regard to the factors described in section 1(3) of the 1989 Act.  The applicant must give evidence of the (alleged) underlying facts and the sources of any information and belief that are relied upon.  

17.	One must not forget that the reason for a without notice application is usually that there is ‘exceptional urgency’.  That is one of the six exclusive reasons set out in paragraph 5.1 of PD18A FPR 2010.  It is the only reason that could have applied to this application.  There are ordinarily two bases for exceptional urgency: the imminence of the event to be prohibited (and hence usually of the risk of harm to the child) or the need to make an order about that event without alerting the respondent i.e. where notice would arguably defeat the ends of justice.  It is in the nature of due process that where exceptional urgency is relied upon steps should be taken to notify a respondent informally and/or to give him short notice rather than no notice at all.  That principle is set out in paragraph 4.3(c) of PD20A FPR 2010 and  is well established in authority:  X Council v B (Emergency Protection Orders) [2004] EWHC 2015 (Fam), [2005] 1 FLR 341 per Munby J at [53] and R (Lawer) v Restormel Borough Council [2007] EWHC 2299 (Admin) per Munby J at [62]:

“In the first place, "to grant an injunction without notice is to grant an exceptional remedy": Moat Housing Group South Ltd v Harris [2005] EWCA Civ 287, [2006] QB 606 at para [71]. "As a matter of principle no order should be made in civil or family proceedings without notice to the other side unless there is a very good reason for departing from the general rule that notice must be given": Moat Housing at para [63].”
18.	In order for the without notice order to have been properly made in this case the court was required to hear evidence of alleged objective fact relating to ‘exceptional urgency’ in the terms I have set out above.  Neither this court nor father (nor for that matter any subsequent judge dealing with the issues between the parties) knows what evidence was given which justified the step that was taken.

19.	Without that evidence and I emphasise I am dealing with this case sequentially as it would have appeared to a judge from the court papers from time to time, this was a case of a father with parental responsibility who had a child in respect of whom there was no order defining residence or contact.  He was to be taken until proved otherwise as no less a valuable and important part of his child’s life than mother.  The agreement between the parents as to the child’s welfare arrangements had broken down.  They had not attempted mediation nor had they considered entering into an informal parenting plan to help them define their roles in the child’s life.  They had argued and the argument had escalated.  The mother’s response to father’s alleged abusive behaviour was understandable if the allegation about that was true but her characterisation of father’s desire to have contact with his son as a hostile act was not.  It was an exercise of his parental responsibility and in the absence of a safeguarding issue relating to domestic abuse and the child (something it must be recollected mother disavowed in her application notice) it should have been possible to agree contact or make provision for that as soon as the proceedings came before the court.  Had that been considered, matters might not have escalated in the extraordinary way I shall describe.

20.	The repeated guidance of the judges of the Family Division in relation to without notice applications and orders is both valuable and should be followed.  I expressly approve of the summaries of the same collated by Charles J in B v A (Wasted Costs Order) [2013] 2 FLR 958 and by Mostyn J in UL v BK [2013] EWHC 1735 (Fam).  Non compliance with orders can have a very significant effect and it is the duty of the court to prevent one party obtaining unfair advantage of the other by the (mis) use of its process, whether accidental or deliberate.

21.	To return to the litigation chronology, the hearing directed to take place on 5 April 2012 did not in fact occur for reasons that are unclear.  On 23 April 2012 a notice of hearing was issued by a court officer listing the proceedings with a time estimate of 30 minutes on 26 June 2012.  On 1 May 2012 a District Judge adjourned that hearing (which he described as a directions hearing) to 16 July 2012.  So it was that nearly four months after an application was issued and seven months after the dispute began the parties appeared together in a court at the end of a court day when it is apparent that there was no Cafcass practitioner in attendance.  That is not unusual on a court day that is not a ‘Cafcass day’.  Cafcass practitioners are no longer ordinarily resident in and dedicated to a particular court as a stand-by resource.  In that circumstance it is not surprising that little could be achieved in the absence of agreement and the application was adjourned again to be listed for a 'First Hearing Dispute Resolution Appointment' (FHDRA) on 6 August 2012.  The FHDRA took place on that day before a different District Judge when directions were made. There was no agreement between the parties, no interim contact order and no consideration of whether the prohibited steps order was necessary – it simply carried on because it was not discharged.

22.	An FHDRA is intended to be a first hearing as one might expect from its title.  In accordance with paragraph 3.3 of PD12B it is meant to be listed within four weeks and no later than 6 weeks of the application.  That did not happen nor did anyone ever address the question of whether an interim hearing should take place to consider the real dispute between the parties, that is direct contact.  The court is meant to consider setting a date for an FHDRA once the proceedings have been issued in accordance with rule 12.5(a)(ii) FPR 2010.  The court is also meant to consider setting a date for an interim order to be considered and to do “any thing else which is set out in Practice Direction … 12B or any other practice direction” (by rules 12.5(a)(iv) and (c) respectively).  By way of example, PD3A sets out the ‘Pre-Application Protocol for Mediation Information and Assessment’ which applied to these family proceedings and which was ignored in its entirety (with the consequence that mediation was not even considered let alone attempted through the process of a mediation information and assessment meeting (a MIAM).  That is not a mere optional technicality.  

23.	Practice Direction 12B – The Revised Private Law Programme – governed the application in this case.  The practice direction is a comprehensive guide to good practice at an FHDRA.  At paragraphs 1.5 and 1.7 of the practice direction the Revised Programme and the FHDRA are described as being designed to assist parties to reach safe agreements and to identify (understand) and where possible resolve issues that divide them.  At paragraph 2.2 seven essential considerations are listed as the purposes of an FHDRA which are reflected in paragraph 6.1 which describes the content of the order which is to be made.   The practice direction specifically addresses how the risk of harm to a child and the risk of harm to a partner and a child arising out of domestic abuse is to be considered by a court by applying PD12J (Residence and Contact Orders: Domestic Violence and Harm) and PD12L (Children Act 1989: Risk Assessments under Section 16A).

24.	The order made on 16 July 2012 described three safeguarding issues which had been identified by Cafcass : 

“	(i)	concerns about the father's mental health
(ii)	allegations of domestic violence
			(iii)	allegedly threatening behaviour on the part of the father”

It is to be noted that, very properly, the court identified the issues as concerns or allegations that is, they had neither been proved nor accepted by father.  The issues would have been identified by Cafcass as a consequence of their duty to provide a risk assessment for the court under section 16A of the 1989 Act.  There are no particulars and no direction was given for the parties to file evidence about the particulars.

25.	On 6 August 2012 the third district judge to have conduct of the proceedings recorded the parties' positions which included an allegation by mother that father had been violent.  The judge directed a report under section 7 of the 1989 Act from a Cafcass family court advisor on the question of father's “ 'anger issues' and how these might be managed in promoting contact”   The Cafcass service manager who attended that hearing noted in her records that she had:

“discussed with the Court that because there was a factual dispute further information should be obtained and a finding of fact considered”
26.	There are cases where safeguarding concerns are identified and/or allegations made where the courts decide that the determination of the facts in dispute will not assist the court to decide the ultimate question before it, that is the arrangements for where the child will live and with whom he will have contact in accordance with the welfare of the child.  There are others where it is essential that the risk to the child and/or the child's carer arising out of violence has to be calibrated before a welfare evaluation and determination is made. What is necessary, however, is a clear decision about whether there needs to be a fact finding hearing and if so, what alleged facts need to be decided.

27.	The adjourned FHDRA was listed for a directions hearing on 3 December 2012 which was vacated administratively by the court and re-listed on 21 December 2012.  It is perhaps illustrative of the relatively low key allegations that had been made prior to December 2012, that the judge ordered a section 7 report from Cafcass on an issue relevant to welfare rather than directing a finding of fact hearing.  On the evidence then available, that might have been right and this court does not criticise the judge.  It is, however, a position inconsistent with the maintenance of no direct contact which assumes that the allegations are serious enough to prevent direct contact taking place.  Some eight months after contact had broken down and without any opportunity yet having been provided for the primary issue of contact to be considered, father was again sent away by the court with no direct contact and with unresolved allegations that had yet to be identified for determination by a court on a date as yet unknown but which would on the face of the court's order have been at least 12 months after the dispute first arose.  

28.	The only evidence ever filed by the mother in support of her application was filed on or about 17 August 2012.  That document was a short typed note that was neither signed nor dated and did not comply with rule 17.2(1)(b) FPR 2010 because it was not verified by a statement of truth.  Given that mother never gave oral evidence its weight as admissible evidence which had never been verified is questionable.  In that document mother gave particulars of the domestic violence she alleged in her application documents.  She alleged that father had threatened her and had been abusive to her in telephone conversations from 6 January onwards and that she had “suffered domestic abuse both violent and emotional” during the parties' relationship.  The document descended to two particulars.  The first was an allegation that father had assaulted her and had in the process removed C from the home returning later the same day but only after she had telephoned the police.  The second was an occasion when it was alleged that father had thrown a cup of tea at her.  The only particular of the alleged risk of abduction was that father had gone to the nursery on 6 August 2012 when his son was fortuitously not there and not, it should be noted, that he attempted or intended to remove C from her care or the nursery prior to that date.  

29.	Returning then to the litigation chronology.  The case then got seriously out of hand.  On the same day as the August FHDRA father very unwisely went to the former matrimonial home and to C's nursery school.  The police were called.  On 7 August 2012 Cafcass made internal decisions about the risk that father posed with the consequence that their approach to him thereafter was based upon the assumption that he would be a risk to their practitioners.  On 8 and 9 August 2012 father contacted Cafcass and the nursery and was abusive.  On 9 September 2012 father was cautioned by the police for harassing conduct to mother over the previous two months and in particular for sending her abusive text messages.

30.	Father replied to mother's document by a statement filed on 6 September 2012.  He denied the general allegation of domestic violence.  As to the two particulars, he said that in April 2010 mother had attacked him and that he had temporarily removed C from the home to prevent his exposure to further conflict and the second incident had never happened.  The stark difference in the parties' accounts demanded to be decided having regard to the fact that it was explicit that the child was said by both parties to have been involved.

31.	In line with their internal and un-published risk assessment, Cafcass declined to see father for the expected interview with him in his own home on 18 October 2012.  On 17 October they notified him that the interview would have to take place in the Cafcass offices and would involve two staff.  The reason for that decision was based upon the content of the telephone calls to them by him. Father responded that aside from the merits of the decision with which he disagreed, with such little notice and being without employment, he would be unable to arrange funding to travel the long distance involved.  Father then had second thoughts and on the following day he changed his mind and agreed to an office interview which was re-scheduled for 19 October 2012.

32.	During that telephone conversation with the family court advisor, father became agitated and abusive towards her, mother and the court (or perhaps more accurately one of the judges involved).  The family court advisor telephoned the police.  Father then had abusive conversations with the nursery and with mother, both of whom also telephoned the police.  Father was arrested and charged with offences under section 4 of the Public Order Act 1986.  On 30 October 2013 he pleaded guilty to those offences.  The facts of the offences were described in evidence given in writing by the family court advisor and the nursery manager.  He was sentenced to a 12 month community order and a restraining order prohibiting him from approaching mother's home.

33.	On 23 October 2012 the family court advisor notified the court that she could not complete the outstanding section 7 report by the date directed (22 October 2012) because of the events of 18 October 2012.  She told the court that father had withdrawn his contact application (although he may have threatened to do so, he had not in fact done so) and stated:

“Following discussions with the Service Manager it is felt that [mother] should not subjected to an un-necessary intervention at this stage and not least as she is now understandably opposed to any future contact”

34.	The unnecessary intervention could only be one or both of two things: the court ordered Cafcass report or the future court hearing.  These were matters for the court and any variation or discharge of the court's directions should have been sought on notice to father and mother or at least in a way that gave them liberty to apply.  The practice of unilaterally communicating with a court can lead to real difficulties where the message is not also copied to parties.  In fact, the e-mail sent to the court on this occasion revealed that the Cafcass practitioner had previously e-mailed the court on 19 October 2013.  This court has not seen that e-mail but its content clearly related to the risk which the Cafcass practitioner believed father then presented.  These were disclosable documents, dealing with an issue in the case and which were not the subject of directions by the court.

35.	The opinions that were being expressed by the Cafcass practitioner were not just in her role as a family court adviser independent of the parties.  She was also a complainant in criminal proceedings.  This court has come to the very firm conclusion that it was wholly inappropriate for the family court advisor to continue to act as the court's advisor and the child's 'effective access to justice' at a time when she was the complainant in criminal proceedings against the father.  It was submitted to us that it is a regrettable fact that Cafcass practitioners are placed in positions of real conflict by complaints and threats made against them and that their priority must be to try and put that to one side and undertake their duties on behalf of children.  We acknowledge that and the extraordinary work that they do in the public interest but there is a dividing line in terms of due process and conflict of interest that was crossed in this case.  A criminal complainant cannot advise in a family case where the person accused by that complainant is a party.

36.	There was no subsequent contact between Cafcass and father.  He was not interviewed and his version of events was not considered.  Just as importantly, any guidance to the court on the question asked by the court was not discussed with him in advance of a report being written.  The family court advisor did however continue her enquiries with mother and with other agencies and professionals during an extended period of two months.  A period which was not sanctioned by the court.  The section 7 report was eventually filed on 19 December 2012 two days before the adjourned directions hearing scheduled for the 21 December (the last court working day before the Christmas holiday began).

37.	The report filed on 19 December 2012 was 19 close typed pages in length.  It described detailed allegations of fact previously unknown to the court in terms which read as if the allegations were true.  The reader is left in no doubt that the family court advisor believed the allegations to be true.  At no stage was it highlighted that the facts had not been established by a process of fact finding in a family court.  It is entirely unclear what facts father had conceded or might concede, which is not surprising given that he was not involved in the preparation of the report.  The author described the risk in the case as being:

“father’s lack of understanding of the impact of his offences on his child in relation to his risk taking behaviours, domestic violence, risk of possible child abduction; the father’s mental health and related issues, public disorder and so on.”
38.	A very detailed analysis of risk was conducted by the family court advisor with the benefit of input from professionals contacted by her during the preparation of her report.  That included whether father’s mental health issues including suicidal ideation, depression and anger and his own social isolation were relevant (on the assumption they were accurately described).  One of those professionals compared father with Raoul Moat (the panel beater, tree surgeon and bouncer with criminal convictions for violence who shot his ex-partner, killed his new partner and seriously injured a policeman in 2010).  That was not only a professionally inappropriate comparison, it was presumably quoted in the report for maximum impact.  Despite that, the author clearly indicated in her report that father’s “mental health status remains an un-assessed risk factor”.  The report recommended the order made by the judge three months later.  It did not recommend that a fact finding hearing should take place.

39.	On 21 December 2012 the proceedings were adjourned to a contested hearing because father did not accept the Cafcass recommendation.  The first available date was on 6 March 2013 before a Recorder.  There were no attempts in the intervening period to update any of the information contained in the Cafcass report, in particular about father and the risk that it is said he presented.  Although both parents were given permission to file further statements the question of how father could or should respond to the serious allegations in the Cafcass report was not addressed, that is the key issues were not identified to be answered and a direction for a fact finding hearing was not made.  

40.	Appointments of the type I have so far been describing take time, particularly where one or more of the parties are litigants in person as a consequence of the provisions of LASPO 2012.  If the dispute is not immediately susceptible of conciliation or out of court mediation it will require a lawyer's analysis.  This is after all a court of law.  In the absence of lawyers, the judge has to do that and to do that without assistance and sometimes with quite vocal hindrance.  That requires more time than in a circumstance where the lawyers can be required to apply the rules and practice directions, produce the witness statements, summaries, analyses and schedules, obtain instructions and protect their lay client's interests.  Where a court is faced with litigants in person the judge has to do all that while maintaining both the reality and perception of fairness and due process.  I do not criticise any of the judges involved in this case.  Each was handed a case about which he or she knew nothing and given time only to deal with the most pressing issue or two that had arisen.  That was fire fighting, it may even have been quality fire fighting but it was not case management.

41.	On the morning of 6 March 2013, that is immediately before the contested hearing began, the family court advisor filed and served a 22 page document entitled ‘Chronology of Significant Events’.  The court had not given a direction to permit such a step and so far as can be ascertained there was no advance notice of the same.  The document was a detailed schedule of hearsay evidence that might have been appropriate if it had been directed by a court as a lawyer’s forensic summary of the allegations and materials that had already been filed.  It was not a summary of the evidence filed unless it could be argued to be a record of the source materials for the section 7 report that was filed three months earlier.  It should not have been admitted without argument and it was clearly highly prejudicial and of questionable probative value.  It became the primary evidential document in the case, replacing the mother and almost everyone else who might have had something to say on a question of fact.  The document was made available to father on the morning of the contested hearing that gives rise to this appeal.  

42.	In that context, father made an application to adjourn the contested hearing.  His primary purpose was to adduce up to date evidence about his mental health.  He asserted that his treatment was susceptible of successful completion and that he would be able to demonstrate that with materials from the professionals involved.  In addition and unknown to the family court advisor, the probation officer she quoted in good faith had been replaced sometime in 2012 and as this court now knows, the risk described by father’s senior probation officer who had detailed knowledge of father’s supervision was fundamentally different.  In simple terms, his analysis was that father presented a low risk.  

43.	It is not surprising that the judge who was new to the case was unimpressed by an application to adjourn given the lengthy delay there had been in getting the first contested hearing listed.  Had she known that a fact finding hearing had never occurred she might have been able to find a constructive way to use the hearing to good effect and still afford father the opportunity to update the evidence about risk and to fairly deal with the family court advisor’s materials.    

44.	The hearing then commenced.  The mother did not give evidence to substantiate her allegations and was accordingly not questioned by anyone.  As a matter of pure technical form, her document of 12 August 2013 was never admitted into evidence.  There was therefore no evidence from mother for father to meet and he was accordingly afforded no opportunity to test the direct evidence of domestic violence.  The only evidence came from the family court advisor.  As I have remarked, she treated the allegations as fact.  She gave evidence based upon her report and her substantial chronology, that is hearsay evidence about the facts in issue as well as reported opinion from other professionals and her own opinion.  I do not say that this was entirely inappropriate.  It is appropriate for a family court advisor to identify the facts or alleged facts she has relied upon and the opinions of others that she accepts or adopts in coming to her own opinions and recommendations.  She is after all a qualified social worker whose skill and expertise are those of an expert in that field.   That said, had a fact finding hearing been held, third hand hearsay evidence of facts in issue might not have been given great weight in the absence of the evidence of mother or a concession from father.  

45.	I do not ignore the possibility that an alleged victim of domestic violence from an allegedly over controlling or dangerous perpetrator may need considerable support to give her evidence.  At the very least it should be established just what evidence she is able to give and an appropriate opportunity should be given to the alleged perpetrator to challenge that evidence.  That could have been done by case management or, as I shall describe, by a more inquisitorial process that protected the interests of all involved.  What was not acceptable in my judgment was the presentation of facts that were in dispute as if they were decided.  The judge who heard the case (and who would have had no knowledge of it before she walked into court on the morning) was entitled to know that contrary to the impression given this was a fact finding hearing where the facts were in dispute.  The hearing that was conducted was accordingly not a fact finding hearing, it was a welfare hearing which heard about the severe risk that it was said father presented to mother based upon facts that had never been tested let alone determined by a family court. 

46.	To add to the air of unreality the family court advisor gave her oral evidence from behind a screen.  Special measures in a family court are not fixed by primary or secondary legislation as they are in the Crown Court.  They can however be used in a similar way and for similar reasons.  They are a means of facilitating the evidence of someone who is vulnerable so that the quality of their evidence is not damaged by their vulnerability.  Children who give evidence often do so with the assistance of special measures such as a video link.  It is not inconceivable that a professional witness might need the same facility but it is much less likely: Re W (Care Proceedings: Witness Anonymity) [2002] EWCA Civ 1626, [2003] 1 FLR 329 at [13].  The mischief in this case is compounded by the fact that the family court advisor gave her evidence as an officer of the state behind a screen rendering her effectively anonymous and unseen and she was afforded that facility without due process.  If it was said that such measures were necessary that should have been on application to the court on notice to the father and to the mother and full reasons should have been given.  There was no such application and if there was neither this court nor the father were aware of it and there is no record of any determination.  There is no order.  It should not have happened in the way that it did.

47.	I have intimated that a more inquisitorial process may help those judges who need to deal with very difficult cases involving litigants in person where emotions can run very high.  At the hearing at which the section 7 report was first available there was an opportunity for detailed case management.  In less fraught cases this is often a real opportunity for dispute resolution in the same way that an Issues Resolution Hearing provides that facility in public law children proceedings.   That was the latest of the various hearings at which the key issues of fact and opinion could have been identified and if not resolved, described on the face of an order so that the parties and the court would have been clear about the purpose of the contested hearing.  Directions could have included providing short answers to the key issues identified and up to date materials which would have avoided father’s last minute adjournment application and his successful application to this court to adduce additional evidence.  

48.	At the hearing and given that it would have been clear whether the key issues included the need to make findings of fact, the judge can control the process to ensure that it is fair.  Having been sworn, each party can be asked to set out their proposals and to confirm their version of the disputed key facts.  They can then be asked by the judge what questions they would like to ask of the other party.  Where lawyers are not instructed the judge can then assimilate the issues identified into his or her own questions and ask each party the questions that the judge thinks are relevant to the key issues in the case.  It may be appropriate to give the parties the opportunity to give a short reply.   In that way the issues can be proportionately and fairly considered.

49.	At the conclusion of the hearing before us it became clear that separate proceedings under the provisions of the Family Law Act 1996 had been commenced by mother without notice to father.  This court has not had the opportunity to scrutinise that process.  Yet another judge is involved but directions have been given in those proceedings for the facts in issue to be identified and resolved.  Given that this has led to detailed witness statements being filed by the parties, we shall direct that any further directions in those proceedings be listed before the same judge who is allocated to determine the Children Act proceedings.

50.	The problems which have complicated this case are hopefully rare.  The solution is to use the processes of the court to better effect.  The family court is a court of law not a talking shop.  No matter how much its judges will strive to obtain safe agreements between the parties, its rules, practice directions and forensic protections are for a purpose – to do right by all manner of persons, without fear or favour, affection or ill will.  

51.	The President of the Family Division has recently published draft proposals for a Child Arrangements Programme to replace the Private Law Programme in PD12B FPR 2010 (see ‘View from the President’s Chambers No 8’, November 2013, www.judiciary.gov.uk/publications-and-reports/reports/family).  There is nothing inconsistent with the terms of this judgment in the published draft of the materials for that programme.  Litigants in person may, however, find it helpful for without notice requirements and guidance for litigants in person to be more readily available in the form of a ‘pathway’ or ‘plan’ as recommended in the report: ‘Judicial proposals for the modernisation of family justice, July 2012’ at paragraph [55].  There are in existence draft training materials which would satisfy this need.

52.	The President has had the opportunity to see this judgment in draft and wishes to associate himself with the guidance set out at paragraphs 11 to 17, inclusive and paragraphs 20, 26, 40, 47 and 48.

53.	For the reasons I have now given, the appeal was allowed on 8 October 2013, the contact order complained of was set aside and directions were made for a re-hearing in another court by a judge to be allocated by the Family Division Liaison Judge.  The child was joined as a party to be represented by a children’s guardian provided by the National Youth Advocacy Service and a direction was given for an urgent hearing before the new allocated judge to identify the issues and give directions for the filing of evidence.  The family court advisor’s chronology was never properly admitted and that document shall not be admitted into evidence without argument or directions about its admissibility, how reliance is to be placed upon the same and how its contents can be fairly challenged.  Given the conflict surrounding the family court advisor, her section 7 report should also be the subject of argument and a fresh report from the NYAS guardian should be commissioned.  An urgent hearing to consider whether there can be any interim direct contact for father and whether the prohibited steps order is necessary should be undertaken as soon as possible.

Lady Justice Macur

54.	I agree.  The extensive catalogue of errors and repeated breach of the Family Procedure Rules 2010 and other statutory codes identified so comprehensively by my Lord, Ryder LJ serves to underline the fact that this father was denied natural justice at almost every stage of the proceedings. Lack of competent legal representation played its part. The financial and human resource cost to the court system of repeated, non effective short appointments, non focused issue resolution hearings and a consequent appeal by reason of a litigant in person’s lack of expertise is great. The potential for emotional cost to this and other parent/child relationships comprised by delay and lack of due process is inestimable. 

Lord Justice Sullivan

55.	I agree with both judgments.