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England and Wales High Court (Family Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> A v R & Anor [2018] EWHC 521 (Fam) (21 March 2018) URL: http://www.bailii.org/ew/cases/EWHC/Fam/2018/521.html Cite as: [2018] EWHC 521 (Fam) |
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FAMILY DIVISION
ON APPEAL FROM HHJ SCARRATT
IN THE FAMILY COURT SITTING AT MEDWAY
Strand, London, WC2A 2LL |
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B e f o r e :
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A |
Appellant |
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- and - |
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R -and- T |
First Respondent Second Respondent |
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Mr Matthew Persson (instructed by Goodman Ray) for the First Respondent
Ms Caroline Topping (instructed by Berry & Lamberts) for the Second Respondent
Hearing dates: 6 March 2018
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Crown Copyright ©
Mr Justice MacDonald:
BACKGROUND
"6. EXPERT INSTRUCTION
Psychologist
The court being satisfied that such instruction is necessary to assist the court and the parties in the resolution of this case.
(i) The parties have leave to jointly instruct Mr Clowry to prepare a report in respect of the time that T should spend with her father.
(ii) The father's solicitor shall draft a letter of instruction to be circulated and agreed by the parties by 4pm on 18.09.17.
(iii) Mr Clowry has leave to see T for the purposes of the preparation of this report.
(iv) The parties have leave to disclose all previous papers together with the position statements prepared for today's hearing.
(v) The report is to be filed and served by 31 October 2017."
"As I say, it's, I was going to say finely balanced, it's perhaps not so finely balanced, but it's not an easy decision. I have come to the view that a) such a report is necessary, not to establish the wishes and feelings of the child, that, that's been done already. But because the court needs assistance with a plan of work to get contact going, if I can put it in the vernacular, and a plan to ensure that contact is advanced and lasting. So I find it necessary, I also find on balance, that it is best done within Court proceedings. There is a history in this matter of non-communication by the parties, and if there is communication, not terribly constructive communication. There is a history of the Court having to make orders for each of the parents to comply with. So, on balance, I am going to order the report but, and I take note of what the Father has said today, it will be recorded in the preamble of the order, that if the outcome is that proceedings should end, if that is the recommendation of the psychologist, the Father would go along with that, because he sees, I've no doubt, as the Guardian states and the Mother sees that that would be best for the child."
"Pursuant to the order of His Honour Judge Scarratt dated 15 September 2017, you are instructed to meet with the parties and the child, as set out in your letter dated 25 August, to prepare a report setting out a robust, clinically legitimate and reputable plan of clinical work for the sound and lasting advancing of contact between T and her father."
"Thank you very much for giving me the support that I need in court. I'm very grateful. Mum told me about a psychologist that the judge wants me to see and I've decided that I'm not going to co-operate with this decision as I believe it would be a waste of time considering the many others I have seen over the years. I'm really fed up. I know it's my Dad doing this, he thinks this will force me to see him more and it's quite the opposite, it will only make everything worse. I am already seeing him, I did yesterday, what more is there. So why do I need to see a psychologist?"
i) The learned judge had not prepared adequately to hear with the matter on 28 November 2017, did not allow the matter sufficient court time and proceeded to make final orders without any proper consideration of the arguments being advanced by the parties.ii) The orders made by the learned Judge on 28 November 2017 were inconsistent with orders he had made earlier in the case, and in particular on 15 September 2017.
iii) The learned Judge was wrong not to persist with securing expert evidence in circumstances where the expert appointed by the court had failed to fulfil his duties as an expert.
iv) The learned judge placed too much weight on T's wishes and feelings when reaching his decisions on 28 November 2017.
v) The learned judge was wrong in the circumstances, to decide that it was in T's best interests for the case to be concluded summarily and on the terms of the final child arrangements order made by the learned Judge.
THE HEARING
"His Honour Judge Scarratt: Yes well, I'm sorry you've had a bit of wait. The fact of the matter was this morning I had a one-day case with five applications and this three-hour hearing.
Miss Cooper: Yes.
His Honour Judge Scarratt: And so District Judge Abigail Smith's diary emptied yesterday and I'm afraid this happens. Cases are moved about. Not ideal but as it happens I have finished my five applications and given judgment so I'm, I'm now free to deal this but you've really got limited time because I have to be at a meeting at 4 o'clock. I've got bundles here, I've not looked at them
Ms Cooper: Yes.
His Honour Judge Scarratt: I mean I'm just going to go on what I know about the case and well I gather Brendan Clowry's report was a nonsense so Judge Abigail Smith tells me.
Miss Cooper: Certainly the District Judge was not impressed.
His Honour Judge Scarratt: Yes, well I, I've, I have looked at that, eating my sandwich at lunch.
Miss Cooper: Yes.
His Honour Judge Scarratt: He's gone completely off piste.
Miss Cooper: Well it, it is right to say
His Honour Judge Scarratt: Well he's gone off piste.
Miss Cooper: Yes.
His Honour Judge Scarratt: I'm putting it to one side and I doubt whether he'll get paid.
Miss Cooper: Yes, well no doubt --
His Honour Judge Scarratt: So where are we now, that being the case.
Miss Cooper: You Honour, we are at the following bit of the case. What he had done was he had interviewed my client and my client and the mother had paid him quite a lot of money. The mother, I don't know if you've seen, I did a further very short position statement, could I just briefly hand that up because I did it last night once the report had come --
His Honour Judge Scarratt: I mean at the end of the day your client's got to accept that [T] has had enough. There's a very poignant note to Mr Gaye, a very experienced Guardian, and last, I don't think you were here last time.
Miss Cooper: No, I wasn't your honour.
His Honour Judge Scarratt: No. Well can I tell you and this is the benefit of having me, judicial continuity.
Miss Cooper: Yes.
His Honour Judge Scarratt: That really last time, the application made by the Guardian being repeated today was made last time, but I felt your client should have a chance and that Clowry, who has now thoroughly blotted his copy book, I shan't be having him again in these Courts, your, and, and I gave the chance for this to happen, but it's not happened but, but at the end of the day I've got a 13 and a half year old girl there who's saying actually, let's have the contact, let's have the drinks and the teas and the lunches or whatever, which have gone on. This is not a case where there's no contact. So I think it can be finished quite, I think your client's got to accept that contact should continue as organised between the parents. Does he agree that?
Miss Cooper: No, Your Honour.
His Honour Judge Scarratt: Well, I'm not having a final hearing with this little girl dragged in now. Have you read the letter from her?"
"His Honour Judge Scarratt: I, I can't make final Orders today at ten to three.
Mr Persson: Well Your Honour, the
His Honour Judge Scarratt: If the father isn't going to agree an order.
Mr Persson: Well Your Honour it, the
His Honour Judge Scarratt: It will be set down for two or
Mr Persson: Well, no the
His Honour Judge Scarratt: Three or days evidence
Mr Persson: That, that it's open to the Court summarily to determine this matter. It's within the Court's case management powers to do so.
His Honour Judge Scarratt: Of course it is but it would be unwise probably."
"His Honour Judge Scarratt: Listen, even if there was a, a further report and then a final hearing which would be probably at Easter, early summer next year, poor [T] waiting around what's the contact Order I am going to make, it would be probably that it be such contact as agreed by the parents. I am not going to, I'm not going to Order staying contact because that's quite improbable at the moment and I'm not going to make an Order of something that just won't happen. Neither would I hear a review hearing. So, I'm not sure what your client thinks the Court is going to Order. I'm certainly not going to Order half the holidays in Hungary and overnight contact. We're way beyond that now. Your client's got to accept that this little girl does not want that sort of contact at the moment."
"His Honour Judge Scarratt: Afternoon. Just, just come and sit there for a moment will you. Everyone is thoroughly disappointed with this work you've done. When I say everyone, I mean everyone. It not what we asked for at all."
"Mr Clowry: Well, with respect to the language I think if that were the attitude and the way in which it was manage, forcing putting great pressure on a child but I think encouraging a child would not, might be productive.
His Honour Judge Scarratt: Well to be fair that's exactly what the Guardian has done in a response, in a, in an email response. He has encouraged her, really, really encouraged her to go.
Mr Clowry: But, I would tend to see situations like that Your Honour not in terms of black and white. Sometimes in a preliminary meeting a child who has never seen psychologist or social worker might, perhaps if I saw the child with the mother, feel then on the basis of evidence having met the person reasonably inclined to continue. If the child is caught up in a very powerful adversarial situation there's a high probability the child is going to reflect certain of the adult attitudes and opinions. If the child were enabled to meet the psychologist whether it be me or anybody else the child might then be prepared to reconsider. I don't know, I don't know the child.
His Honour Judge Scarratt: So you could, you could have a plan of work available by the end of next week could you?
Mr Clowry: Yes, indeed.
His Honour Judge Scarratt: Provided the mother and [T] saw you in the week?
Mr Clowry: Yes indeed Your Honour"
"His Honour Judge Scarratt: Yes well, I'll, on the basis no wants to say anything else I'll, and having now heard from Mr Clowry about what he can and cannot do, I'll make a decision."
THE JUDGMENT
"11. CONTACT
T lives with the Respondent Mother and there shall be the following contact between T and the Applicant Father:
(a) Each month at least 2 hours to include a meal. These monthly sessions shall take place regardless of whether there are any further holiday sessions in addition, as provided for below.
(b) Holidays in addition to the monthly periods of time above, there should be the following further periods, each of at least 2 hours:
(i) Christmas one further period.
(ii) Easter one further period.
(iii) Summer two further periods.
(c) Mobile phone the father may ring T on her mobile phone and the mother shall re-confirm T's current mobile phone number to the father forthwith.
(d) Email the father may email T on her current email address as confirmed at court today.
(e) Such further or other contact as may be agreed between the parties in writing or requested by T which may include holidays in the UK and overseas.
(f) All face to face contact shall be agreed between the parties in writing at least 56 days in advance of a session of direct contact."
"[19] There is contact in this case. I am satisfied with the Guardian's position that of [T] is left to her own devices with the guidance of an order of the court that there will be some contact between her and the father if I make those orders today. I accept the father's misgivings about this and I accept that the father will not be happy with the amount of contact ordered but ordered it will be and it is the mother's duty as a mother and as a primary carer of the child to ensure that the contact works. If it does not work, I shall hold the mother to blame. It is a difficult task being a parent and a very difficult task being a single parent of a teenage child who has to toe the line and see an absent parent. I accept that.
[20] For all those reasons I have decided today that this will be the end of the litigation. I am not going to instruct or have instructed or entertain any application for further psychologist's reports. I am, though, going to make an order for contact and it will take place once a month for at least two hours between [T] and her father, the mother can be present if [T] wishes. It can be put in the preamble of the order that the mother should not be present on each and every occasion."
THE SUBMISSIONS
The Appellant Father
The Mother
The Child
THE LAW
" Applications for residence orders or for committal to the care of a local authority or revocation of a care order are likely to be decided on full oral evidence, but not invariably. Such is not the case on contact applications which may be and are heard sometimes with and sometimes without oral evidence or with a limited amount of oral evidence The considerations which should weigh with the court include:
(1) whether there is sufficient evidence upon which to make the relevant decision;
(2) whether the proposed evidence (which should be available at least in outline) which the applicant for a full trial wishes to adduce is likely to affect the outcome of the proceedings;
(3) whether the opportunity of cross-examining the witnesses for the local authority, in particular in this case the expert witnesses, is likely to affect the outcome of the proceedings;
(4) the welfare of the child and the effect of further litigation whether the delay in itself will be so detrimental to the child's well-being that exceptionally there should not be a full hearing. This may be because of the urgent need to place the child, or as is alleged in this case, the emotional stress suffered by both children, and particularly D;
(5) the prospects of success of the applicant or a full trial;
(6) does the justice of the case require a full investigation with oral evidence?"
"[14] These are family proceedings, where it is fundamental that the judge has an essentially inquisitorial role, his duty being to further the welfare of the children which is, by statute, his paramount consideration. It has long been recognised and authority need not be quoted for this proposition that for this reason a judge exercising the family jurisdiction has a much broader discretion than he would in the civil jurisdiction to determine the way in which an application of the kind being made by the father should be pursued. In an appropriate case he can summarily dismiss the application as being, if not groundless, lacking enough merit to justify pursuing the matter. He may determine that the matter is one to be dealt with on the basis of written evidence and oral submissions without the need for oral evidence. He may, as His Honour Judge Cliffe did in the present case, decide to hear the evidence of the applicant and then take stock of where the matter stands at the end of the evidence.
[15] The judge in such a situation will always be concerned to ask himself: is there some solid reason in the interests of the children why I should embark upon, or, having embarked upon, why I should continue exploring the matters which one or other of the parents seeks to raise. If there is or may be solid advantage in the children in doing so, then the inquiry will proceed, albeit it may be on the basis of submissions rather than oral evidence. But if the judge is satisfied that no advantage to the children is going to be obtained by continuing the investigation further, then it is perfectly within his case management powers and the proper exercises of his discretion so to decide and to determine that the proceedings should go no further."
"Of course, an experienced judge can cut corners and make substantive orders on short appointments. But if a judge is to take that course, he must be very sure of his ground, and demonstrate clearly that he has taken all relevant considerations into account."
As Lewison LJ noted in Re S-W (Children) [2015] EWCA Civ 27 at [48], family cases, however inquisitorial and streamlined they may be, are not exempt from the basic principles underpinning a fair trial.
"[45] Family judges are encouraged to take control of the management of cases rather than letting the parties litigate the issues of their choosing. In undertaking such a role, a judge must necessarily form, at least a preliminary, view of the strength and/or merits of particular aspects of the case. The process may well lead to parties reviewing their position in the light of questioning from the judge and, by agreement, issues being removed from the list of matters that may fall to be determined.
[46] Despite having to adopt a 'pro-active' role in this manner, judges must, however, remain very conscious of the primary judicial role which is to determine, by a fair process, those issues which remain live and relevant issues in the proceedings. The FPR 2010 makes provision for an 'Issues Resolution Hearing' ['IRH'] at a later stage of care proceedings. As the IRH label implies, it is intended that some, if not all, of the issues will be resolved at the IRH stage. The rules are however plain [FPR 2010, PD12A] that the 'court resolves or narrows issues by hearing evidence' and 'identifies the evidence to be heard on the issues which remain to be resolved at the final hearing'.
[47] The task of the family judge in these cases is not an easy one. On the one hand he or she is required to be interventionist in managing the proceedings and in identifying the key issues and relevant evidence, but on the other hand the judge must hold back from making an adjudication at a preliminary stage and should only go on to determine issues in the proceedings after having conducted a fair judicial process.
[48] There is, therefore, a real and important difference between the judge at a preliminary hearing inviting a party to consider their position on a particular point, which is permissible and to be encouraged, and the judge summarily deciding the point then and there without a fair and balanced hearing, which is not permissible."
DISCUSSION
CONCLUSION