(Court of Appeal, Longmore, Tomlinson, McFarlane LJJ, 20 May 2015)
[The judicially approved judgment and accompanying headnote has now published in Family Law Reports  1 FLR 689
Private law children – Contact – Findings of domestic violence – Assessment of risk - Whether the judge had given appropriate weight to the findings
The full judgment is available below.The mother's appeal from a determination permitting direct contact between the child and the father was dismissed.
The parents of the 3 year old child separated after 5 years of marriage. The father applied for a contact order. The mother submitted a document setting out three incidents of domestic violence which were subsequently found proved.
The father issued a further application seeking more time with the child under a shared residence order. The mother subsequently reported to the police that she had been raped and sexually assaulted during the marriage. A fact-finding hearing found those allegations had been made out and the judge also made limited findings in relation to three incidents of low level domestic violence. Direct contact was not ruled out as the judge concluded that there was no physical risk to the mother or child and no sexual risk to the child.
At the subsequent welfare hearing evidence from a psychiatrist was submitted which found that the mother had experienced significant mental health problems as a result of the abuse she suffered during her relationship with the father. They amounted to post-traumatic stress disorder. It was recommended that the mother required six sessions of cognitive behavioural therapy before the introduction of contact. The judge accepted those recommendations and ordered contact once a week for one hour. The mother appealed, seeking an order for no direct contact or at least until she had undertaken a course of CBT.
The appeal was dismissed. In cases where domestic violence was established the court had to afford appropriate weight to such findings and to conduct a risk assessment as per paras 35-37 of PD12J. It was wise for reference to be made to that provision. Although in this instance the judge hadn't made express reference it could be seen that he had conducted an analysis in a manner which was fully compatible with those requirements.
The judge had had regard to the findings made against the father. Allegations made by the mother which were not found proved were rightly not taken into account. In relation to the findings of low level physical abuse they could of themselves constitute a reason for refusing direct contact with the father. The judge expressly stated that he was not minimising the findings. His conclusion that direct contact, in a supervised setting, had been justified on the basis of the risk assessment and was within the range of justifiable welfare determinations.
Case No: B4/2015/0360
Neutral Citation Number:  EWCA Civ 486
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BRIGHTON FAMILY COURT
Royal Courts of Justice
LORD JUSTICE LONGMORE
LORD JUSTICE TOMLINSON
LORD JUSTICE MCFARLANE
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A (A child)
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Mr Justin Ageros (instructed by Thomas Snell & Passmore) for the Appellant
The Respondent appeared in person and was not represented
Hearing date: 16 April 2015
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Lord Justice McFarlan
This appeal relates to the welfare of a young girl, R, born 5th January 2012 and therefore now aged just over 3 years. R last saw her father in February 2014. On 14th January 2015 His Honour Judge Farquhar, sitting in the Family Court at Brighton, made an order providing for R to have supervised contact with her father once a week, initially for one hour. R’s mother, who is the appellant, now seeks to overturn that decision and replace it with an order for no direct contact between father and daughter for the time being, or at least until the mother has undertaken a course of cognitive behavioural therapy (‘CBT’).
The appeal arises in the following context, which can be shortly stated. At an earlier hearing in September 2014 HHJ Farquhar found that the father had been guilty of abusive sexual conduct towards his wife, including marital rape, during the course of their marriage. He also made more limited findings as to three incidents of “low level” domestic violence and, more generally, to the father’s inability, at times, to control his anger. The mother submits that at the subsequent welfare hearing in January 2015 the judge failed to give any, or any proper, regard to those findings against the father when determining what if any direct contact should be ordered.
At an early stage of the hearing before this court we refused the father’s application for permission to appeal against the findings of fact made against him in the September 2014 judgment.Background
The parties met in 2008 and were married on 9th October 2009. R was born in January 2012 prior to the couple moving in to a property they had purchased in the Spring of that year. The relationship was not, however, destined to last. Matters came to a head on Christmas Day 2013 when, following a build up of tension and an altercation in which the father threw some books which hit the mother, the mother left the matrimonial home with R to go to stay with her parents. The parties were reconciled for a short time between 10th and 20th January, during which the father accepted a police caution in respect of assault on the mother on Christmas Day. The final separation, however, was the parting on 20th January 2014. Thereafter the father spent time with R on five occasions during February, the last being 18th February. That occasion, now more than a year ago, was the last time that R saw her father.
Some six days prior to the final contact the father had filed an application for a contact order under Children Act l989, s 8. On 25th February the mother filed the required Form C1A setting out details of any allegations of harm that she wished to raise. In that document she set out details of the three incidents of domestic violence subsequently found proved, but made no allegation of sexual misconduct against her husband. On 8th March the father filed his own form alleging that the mother had assaulted him, physically chastised their young daughter and generally behaved in a highly controlling manner during their time together. On 17th March the father issued a revised application seeking greater time with R under a “shared residence order”. On 26th March the mother reported to the local police that she had been raped and sexually assaulted in the course of her marriage and those were the allegations which were subsequently made by her within the family proceeding.The Fact Finding Judgment
For reasons that I have described in more detail in my judgment refusing permission to the father to appeal against the findings of fact, and despite his obvious caution about accepting allegations of sexual misconduct that came to be made by the mother only after the father had applied for a “shared residence” order, the judge went on to find as proved on the civil standard the generality of the mother’s sexual allegations. It is not therefore necessary in this judgment to do more than record what the judge’s findings were.
So far as sexual matters are concerned the mother had made 22 individual allegations. However, in the light of the generality of these allegations, the judge dealt with them as categories rather than particular findings fixed to a particular incident on a particular date. At paragraph 4 of this judgment he grouped the sexual allegations into the following categories:
a)Vaginal intercourse that was non-consensual, occasionally in the presence of R;
b)Anal digital penetration, when she had indicated either verbally or by other actions that that should not take place;
c)Oral sex, both on her, when she had said “no” and on him, when she did not wish to do so;
d)“Unwanted groping” (to use the phrase adopted by the judge) in January 2014 during the attempt to reconcile.
In relation to those allegations the judge expressed his findings, again in general terms, at paragraph 59 of his judgment as follows:
“So in terms of the findings in relation to sexual abuse, I am satisfied that there were occasions when vaginal intercourse took place where (Mother) had indicated, by words or actions, that she did not wish it to take place. I am satisfied, despite his denials, that there were occasions when there was digital penetration to the anus, again, although she had stated that she did not wish that to happen. I am satisfied that he gave her oral sex at a time that, again, she indicated, by words and actions, pushing of the head, pulling her hair, how it was indicated, she had indicated that that should not happen and again at least on one occasion she felt forced to give him oral sex, at best reluctantly, and he would have been aware of that by her actions.”
The judge expressly declined to make any findings that R had been present during any sexually abusive activity. But he went on to find that, during the attempted reconciliation in January 2014, “there were inappropriate gropings and fumblings” of the mother “that she did not wish to happen”.
With respect to physical domestic violence the judge found that there had been one occasion when the father had lost his temper during a frustrated experience in trying to arrange car insurance and had thrown a notebook and pen at his wife. Secondly, the judge found that there was an occasion when the father was undertaking some DIY upon a coffee table that he cut himself with a saw. The judge found that as a result the father swore and kicked the coffee table. The judge held that that could not be regarded as an assault on the mother and that the incident was in no way of the same order even as the throwing of the notebook and pen or the events of Christmas Day 2013.
So far as the Christmas Day episode is concerned, the judge found that the father was becoming progressively more and more angry during the course of the day. He was highly critical of the mother’s food preparation and of the manner in which presents had been given by the mother to R. His anger built up and the time came when he threw some books at the mother. The judge found as follows:“For what it is worth, I am not satisfied that he threw the books intending to hit her. He clearly threw them in her direction. They clearly did hit her. It was clearly reckless, and therefore the [police] caution is entirely correct.Matters did not end there. So dissatisfied was he with the food preparation that the father insisted that the mother should go out, on Christmas Day, and buy some more vegetables because he was not satisfied with the manner in which she had cut up the vegetables that had already been purchased. ”The judge describes in more detail the father’s low mood on that day, his pressing need for time out from the mother in order to calm down and in that context the judge went on to find that the mother’s allegation that the father had threatened to hit her, at a time when she was holding R, was proved.
The only other finding with respect to physical abuse is that the judge found that the father “had effectively flicked her around the head on one occasion as well”.
In addition to the allegations made against the father, and found proved by the judge, a striking feature of the fact finding hearing was the mother’s reaction to these events. The judge regarded the mother as being “under immense strain” and finding the whole situation to be very difficult. A friend of the mother, Ms ES, who was called by the mother to give evidence, told the judge that she considered that the mother was hysterical at times and reacted badly to any, even relatively small, trigger with respect to the father or the court proceedings. The judge summarised Ms ES’s evidence on this point at paragraph 29 as follows:
“She (the mother) was finding it hard to be rational in relation to such things. It was her view, that is to say, Ms ES’s view, that the mother hugely overreacted to anything that happened in relation to this case, and it was clear to Ms ES, as it was to (mother’s brother) as well, that the mother’s view that she was fearful that (father) would kill her and R, was not one that could be based on any rational belief….She (Ms ES) indicated how the mother would do a cupboard check when she first arrived in the property, presumably to make sure that (father) was not hiding or something else was not hiding in any of the cupboards, and she found that, not surprisingly, quite strange.”
At paragraph 34, dealing with the mother’s own evidence, the judge says this:“She has a genuinely held belief (that is clear to me) that her life, and that of R, is in danger. She is aware that her friends and family do not share that view, and I have to say, because it is important, that that view is not supported by any of the evidence whatsoever, and by that I mean her evidence as well as his evidence.” Later in the same paragraph the judge says this:
“The allegations of violence, and I do not minimise them, but of course, and this was the mother’s evidence, they are low level allegations. There is certainly no evidence that I have heard of any previous convictions in relation to the father. There are no allegations of drugs or alcohol being an issue here. In short, the risk factors that are frequently present do not appear in this case. So I am entirely satisfied that whilst that is a genuinely held belief by the mother, just as her friends and family say, or brother says, that is an incorrect belief and is certainly not supported by the evidence and is not a finding.”
So far as the father’s allegations against the mother are concerned, the judge dismissed each one and the father did not seek permission to appeal that decision.
In the context of the mother’s appeal, with respect to the judge’s approach to his findings in the context of his subsequent contact decision, the concluding paragraph of the judge’s judgment is important:
“So those are all the findings that I have made, which was the purpose of this hearing. They are clearly serious findings. But I do stress that those findings do not mean that there should not be direct contact between R and her father. The domestic violence, the mother’s evidence, and I agree with her, is at low level. The mother herself accepts that there was not a sexual risk to R, and I agree with her on that. I am not minimising anything of which I have found. There is no evidence, and, as I say, no finding was sought, that there is a physical risk to R, or indeed the mother, and therefore it does not seem to me – I am not going to order it today, I am not suggesting that for a moment, but it does not seem to me that the findings that I have made rule out direct contact.”The welfare decision
By the time the case came back before the judge in January 2015 the court had the benefit of a report from an adult psychiatrist, Dr Mayer, with respect to the mother’s emotional and mental wellbeing. Dr Mayer’s key finding, as summarised by the judge was that:“The mother has experienced…significant problems with her mental health as a result of the abuse she suffered during her relationship with (father) which would fit with a diagnosis of post-traumatic stress disorder (“PTSD”).”
Dr Mayer described a range of symptoms experienced by the mother as including nightmares relating to the abuse, recurrent intrusive memories or flashbacks of the abuse, hyper-vigilance, helplessness, guilt, heightened anxiety associated with cues which remind her of her traumatic experiences together with more general symptoms of depression, anxiety, lack of self confidence, impaired concentration and social withdrawal. Dr Mayer placed the severity of the mother’s PTSD as being between moderate and severe on an arbitrary 3 point scale of mild, moderate and severe.
Dr Mayer advised the court that, as a consequence of her PTSD, the mother would find it “very difficult if (father) were to have direct contact with R as this would inevitably have some spill-over into her life and she would fear for her safety” and later “supervised contact between them would be less anxiety-provoking but still very difficult for (mother)”.
Dr Mayer’s advice was that the mother required properly constituted CBT with a professional skilled in dealing with people who have suffered trauma of this nature. He recommended that there should be some 12 sessions spread over a period of 6 months. Whilst Dr Mayer was apparently clear that his role was to provide adult psychiatric opinion, rather than a global overview as to R’s welfare, in response to questioning he expressed his preferred approach to be that the father should undertake a risk assessment and that the mother should start her therapy before any supervised contact commenced. He suggested that there should if possible be 6 sessions of CBT before the introduction of contact. Dr Mayer was, however, clear that it was impossible to know how the mother would respond to treatment or how a move towards supervised contact would impact upon her mental wellbeing.
With respect to the mother’s continually asserted fear that the father would kill her, Dr Mayer advised that this was a fear, and not a flashback to any past event. The fear could be addressed during CBT as it was “irrational and not delusional”.
The judge expressed himself to have been impressed by Dr Mayer as a professional witness. He said:
“I accept entirely the diagnosis provided by Dr Mayer, as did (counsel for father) in closing, that the mother does have post traumatic stress disorder and that she should have therapy.”
The judge also heard from the CAFCASS officer who had been consistently clear in her opinion that young R needed to have a relationship with her father in order to meet her developmental and identity needs. The CAFCASS officer also advised that the father did not pose any risks to R that would prevent that relationship being re-established through supervised time spent together.
The CAFCASS officer gave evidence after Dr Mayer, and plainly had taken careful note of the psychiatrist’s opinion. The judge summarised the CAFCASS officer’s final position in these terms:
“My position is that R should have contact. It is difficult to see what the way forward is. Contact in a supervised setting should happen and it should give reassurance to the mother. Contact does happen when the parents do pose a risk. The mother should have some preparation of six sessions with a therapist.”
On the question of how long therapy might take and the consequent impact on R the judge records the CAFCASS opinion as being:
“The longer it goes on, the harder it is for R. If it is a couple of months before the re-introduction of contact then that would not impact greatly. If it was six months then that would be too long.”
On the question of whether contact should start immediately, or wait for therapy to become established as advised by Dr Mayer, the CAFCASS officer preferred Dr Mayer’s option but the judge summarises her evidence to the effect that she “would not be vehemently opposed to the other option”.
Later the judge summarises the CAFCASS officer as accepting that there was great uncertainty as to what would happen with respect to the mother’s engagement with CBT. The judge quotes the CAFCASS officer’s evidence as follows:
“That’s what makes it difficult and finely balanced. From R’s perspective only, I would say that contact should start now. My concern is the impact upon the primary carer. It may be if contact went ahead and was OK, it might ease mother’s concerns.”
The judge summed up the CAFCASS officer’s position at paragraph 19 of his judgment:
“Contact should happen, that it should commence within the next four months and that she would wish for that to happen alongside the mother receiving therapy. She thought that it was finely balanced. It seemed to me that she felt it was more important for it to commence within 4 months than it was for the therapy to take place. I accept entirely, as put forward by (counsel for mother), that there cannot be a strict, rigid time figure and that one has to have some flexibility.”
The judge records the mother’s position in evidence which was that she did not think it was appropriate for there to be contact until she had completed therapeutic work. She was concerned at the prospect of a review after only six sessions because she might be forced into accepting supervised contact even if she had not made sufficient progress. She regarded the court process as “sheer hell” and could see the advantage of there being a conclusion, however her evidence, as recorded by the judge, was that “her interests at this stage should come before R’s”.
The judge evaluated the relevant aspects of R’s welfare by reference to the welfare checklist. He regarded the child’s emotional needs as being “the central and vital point” and he was concerned how little he had heard about the child in the course of these protracted proceedings. He was also concerned by the mother’s evidence in which she explained that there were no photographs of the father available to R and that letters written by the father to R as a means of indirect contact were not kept at the child’s home. The judge regarded the impact upon the mother of contact arrangements as being key and posed the central question as: “Could the emotional needs of R be met by the mother if she was having to deal with the question of contact?”
Under the heading “Risk of Harm” the judge expressed himself to be entirely satisfied that there would be no risk of harm to R during supervised contact. The mother’s fear of physical harm had been found to be “irrational”. The only risk of harm, therefore, in the judge’s analysis, was a by-product of the impact that direct contact would have upon the mother and therefore upon her ability to care for R.
The judge then went on to analyse the mother’s proposal in more detail. He was not optimistic that CBT could commence immediately. He considered that it would take an absolute minimum of 4 months to undertake 6 sessions, however he went on to conclude that, realistically, it was going to take longer and he thought that “six months is at best what could be expected”. A further difficulty was that it was not known whether CBT would be successful. This was compounded by a paradox identified by Dr Mayer to the effect that the more successful the mother is, the more likely it is that contact will be ordered, yet this is something that the mother does not wish, subconsciously, to occur, and that may act as a brake upon her progress. The judge therefore considered that there were “a huge number of imponderables” in the proposal that contact should wait at least until the mother has completed six sessions of CBT.
The alternative proposal was for supervised contact to be ordered straight away. The judgment shows that, in the end, the judge preferred this option because he was entirely satisfied that the mother would not be able to access sufficient therapy in a timely manner in order to allow for contact to start up in the next few months. The judge entirely accepted the CAFCASS officer’s advice that R needed to see her father in the next few months, with as least delay as possible. The judge therefore expressed his conclusion, at paragraph 40, as follows:
“With the plan put forward by the mother, there is simply no certainty at all, save for the fact that at least for another six months nothing will happen in terms of R seeing her father. The option of supervised contact now has the benefit of reducing delay. R will be safe in contact itself. I am satisfied of that. The mother is robust and will do all that she can to protect R from the emotional impact and physical impact that this will have upon the mother. There is also the benefit that if the mother sees R going to contact and coming back safe, well and happy, it might well have a beneficial impact upon the mother herself, as well as on R. There have to be cogent reasons not to order contact. The only reason in this case not to order contact is because of the impact on mother – which in itself, as I say, is entirely the fault of the father.”
On the basis of that appraisal the judge did not consider that the case was finely balanced, rather, he viewed the benefits identified in paragraph 40 as hugely outweighing the negative side of the case. On that basis he went on to order the supervised contact which is now the subject of appeal.The appeal
The mother, who appears as a litigant in person, founds her appeal on three distinct bases which are encapsulated in four grounds of appeal. In summary the basis of her appeal is:
a)Despite having made significant findings of fact against the father, the judge went on at the welfare hearing systematically to minimise the sexual abuse and failed to take any account of the multi-dimensional (sexual, physical, emotional and psychological) and prolonged nature of that abuse. In doing so the judge ignored the guidance from this court on the impact of domestic abuse Re L (A Child) (Contact: Domestic Violence)  Fam 260 and the related practice directions;
b)The judge failed to give any, or sufficient, consideration to the consequent risks posed by the father either to R or the mother, beyond the identified problem of impact on her mental health;
c)The judge failed to give sufficient weight to the psychiatric evidence, and in his balancing exercise effectively set it aside because it offered no concrete prediction of how the already extant adverse impact might be made worse.
The current practice requirements are contained in FPR 2010, PD 12J and, in particular, at paragraphs 36 and 37:
“36. In the light of any findings of fact the court should apply the individual matters in the welfare checklist with reference to those findings; in particular, where relevant findings of domestic violence or abuse have been made, the court should in every case consider any harm which the child and the parent with whom the child is living has suffered as a consequence of that violence or abuse, and any harm which the child and the parent with whom the child is living, is at risk of suffering if a child arrangements order is made. The court should only make an order for contact if it can be satisfied that the physical and emotional safety of the child and the parent with whom the child is living can, as far as possible, be secured before during and after contact, and that the parent with whom the child is living will not be subjected to further controlling or coercive behaviour by the other parent.
37. In every case where a finding of domestic violence or abuse is made, the court should consider the conduct of both parents towards each other and towards the child; in particular, the court should consider –
(a) the effect of the domestic violence or abuse on the child and on the arrangements for where the child is living;
(b) the effect of the domestic violence or abuse on the child and its effect on the child's relationship with the parents;
(c) whether the applicant parent is motivated by a desire to promote the best interests of the child or is using the process to continue a process of violence, abuse, intimidation or harassment or controlling or coercive behaviour against the other parent;
(d) the likely behaviour during contact of the parent against whom findings are made and its effect on the child; and
(e) the capacity of the parents to appreciate the effect of past violence or abuse and the potential for future violence or abuse.”
The mother rightly observes that in the welfare judgment the judge failed to cite or refer either expressly or implicitly to the Practice Direction or to the judgment in Re L
or, indeed, to any other relevant judgment. The judge did quote directly from a judgment of mine in Re W (Direct Contact)
 l FLR 494 in which I, in turn, rehearsed previous judicial pronouncements from Sir Thomas Bingham MR in Re O (Contact: Imposition of Conditions)
 2 FLR 124 and Wall J (as he then was) in Re P (Contact: Supervision)
 2 FLR 314. Re W
was not a case focussed upon the impact of domestic abuse and the mother submits that in both Re O
and Re P
, each of which preceded this court’s decision in Re L by four or five years, domestic violence was not a feature. Indeed, Sir Thomas Bingham MR’s judgment in Re O
was expressly referred to by Dame Elizabeth Butler Sloss P in Re L
in the following terms:
“With all those observations I respectfully agree, but it is clear that the Master of the Rolls was considering the risk of emotional harm to the child from the implacable hostility of the mother to contact and not to the entirely different circumstances of domestic violence proved against the parent seeking contact. The issues with which we are concerned in these appeals relate to violence or threats of violence that have been proved, where the fears of the resident parent are reasonable and where serious issues arise as to the risks of emotional harm to the children, a far cry from unreasonable hostility cases.”
The mother’s case on appeal is that, from the high point of making “clearly serious” findings of fact in the September 2014 judgment, the judge immediately, in that judgment, and subsequently in two further judgments, grossly minimised the impact of those findings on the issue of contact. At the conclusion of the very judgment in which the findings were made, the judge pronounced that the father posed no risk to R or the mother (see paragraph 16 above). Subsequently, the judge was aware that the father did not accept the findings, and was therefore unable to access a course in building better relationships aimed at the perpetrators of domestic violence, but the judge held that such an intervention was not necessary in the context of purely supervised contact. The mother submits that the judge’s focus in the welfare judgment was upon the need for her to obtain therapy, albeit to address the consequences of the father’s actions, and not at all upon the future risk to R and/or the mother arising from future abusive behaviour from the father.
The mother enlarged on these points in the course of her well structured oral submissions. She was, at a number of points, highly critical of the fact finding judgment insofar as it relates to her assertion that R was present on occasions when the father was being abusive. For example, the judge’s statement that he was “not making any findings that R was present during the sexual abuse” is, in the mother’s view, not a finding that R was absent on the occasions when the mother asserts that the child was in fact in the bed next to her parents during one or more incident of rape. The mother therefore submits that she is entitled to rely upon that factual assertion in support of her claim that there should be no immediate direct contact.
In the context of physical abuse, the mother asserts that R was often present when incidents took place. In like manner to the finding about R in the context of sexual abuse, the mother points to the judge’s decision not to make any finding in relation to an incident when a pram was thrown as allowing her to continue to rely upon that incident and her assertion that the pram flew over R’s head. Similarly the mother’s allegation that the father had threatened to hit her whilst she was holding R took place, she says, at the top of the stairs and therefore raised potentially serious consequences if the threat had been carried out. The judge does not mention the location in which the threat was uttered and the mother considers that she is entitled to continue to rely upon her assertion that it was at the top of the stairs. Finally in this context, two findings that the judge did make, namely that the father had “flicked her around the head on one occasion” and thrown books at her on Christmas Day took place in the presence of R and, despite the judge not ruling on the point, the mother continues to rely upon that factor as an important element in assessing the impact of those findings on the overall welfare determination with respect to contact.
Having described the mother’s approach to the absence of findings as to R’s presence, it is convenient to deal with that point shortly at this stage. Whilst the mother’s stance, which is to continue to rely upon allegations that she makes unless the judge has formally dismissed them, may be understandable from a lay perspective, it is at odds with the approach that has to be adopted as a matter of law. Fact-finding is a positive process in the sense that a judge is required to identify those facts which have been proved to his or her satisfaction on the balance of probability. Any allegations found to be so proved become established facts within the proceedings. Any allegations not so proved are not established facts in the proceedings and are not, therefore, to be relied upon in forming any further conclusions relating, for example, to a child’s welfare. Both the first instance judge and this court must work on the basis that the only facts to be relied upon in determining the arrangements for R’s welfare are those expressly found to be proved in the judge’s judgment. Where, for example, the judge does not mention the presence of R or the location of the threat to hit, those assertions do not form part of the factual matrix underpinning any welfare decision. In the same manner, where the judge has expressly declined to make a finding, for example the throwing of the pram, then it is plain that that allegation cannot be relied upon any further.
The mother has not sought to appeal the fact-finding judgment and it is therefore not open to her now to argue that the judge’s findings should be embellished by her continued reliance upon aspects of the allegations that she makes that the judge has not expressly found to be proved in his fact-finding judgment. It is important to make this point, partly to correct the mother’s misapprehension as to the legal position, but, also because it helps to explain the mother’s perception that the judge has systematically minimised the seriousness of the allegations upon which she relies. In the sense that he has not found those particular elements proved, the judge is indeed working on a lower level of finding than the mother asserts was the reality. That lower level of finding is, however, the finding that is to be applied by the judge and by this court in the absence of any appeal by the mother against the fact-finding process.
In the context of “minimisation” it is also right to draw attention to the “low level” characterisation that the judge afforded to the findings of physical domestic violence. The term “low level” apparently arose from, or was confirmed by, the evidence of the mother herself. Fortunately, these allegations are indeed “low level” when compared to those cases with which the Family Court is well familiar involving a sustained course of significant personal violence driven by an all-controlling and dominant partner. In the present case the level of physical contact is minimal, no injuries are reported, the incidents seemingly arose out of short-lived anger or frustration (for example connected with the completion of an insurance claim or unsuccessful DIY work) with no indication that the father is an individual who deliberately and regularly resorts to serious violence in order to dominate and control his partner. On the judge’s findings the mother is justified in saying that the observations that I have just made do not apply to his conduct in the sexual arena, to which I will turn shortly. However, the description of the physical abuse findings as “low level” is entirely justified. In the circumstances the mother’s submission that the judge has minimised these allegations is difficult to sustain. If they are low level they will carry comparatively little weight and, insofar as they arose from short-lived frustration in a domestic setting, their impact in determining whether there will be a repeat of such behaviour in the future in the totally different setting of supervised contact must surely be minimal.
The more widely based submission that the mother makes in the appeal, which encompasses the judge’s findings of abusive sexual behaviour, is more substantial. She submits that the findings of sexual abuse of her indicate a systematic or prevalent dynamic within the father’s personality in which he has been emotionally controlling of his wife in an abusive manner over the course of their relationship. The mother submits that the judge should have looked at what she calls the “whole profile” of the father in the light of these findings. At a case management hearing in October 2014 the mother raised the question of an expert risk assessment of the father, but the judge ruled such an assessment out as not being necessary. In taking that course he was, apparently, supported by the CAFCASS officer. Dr Mayer in his evidence identified the need for a risk assessment of the father but, again, the judge declined to arrange for one.
The CAFCASS officer offered a basic risk assessment using a template matrix produced by Barnardo’s (“Barnardo’s Domestic Violence Risk Identification Matrix”). A copy of the template form was produced to this court. It is a complicated document in which a large number of labels that could attach to one or more of the facts arising in a particular case are set out in tabular form and divided into four basic levels of risk running from left to right across the table. In each column particular factual aspects of domestic violence are listed, followed by particular risk factors or potential vulnerabilities that might be present in a particular case, followed by a list of possible “protective factors”. At the left hand side of the table a “Scale 1” risk is “Moderate” whereas at the right hand side a “Scale 4” risk is “Severe”.
In her first report the CAFCASS officer characterised the nature and frequency of the physical incidents as falling within Level 1 (Moderate). The sexual abuse of the mother falls within Level 4 (Severe). In her report the CAFCASS officer moved immediately from that analysis to state her opinion that the risks to R if seeing the father in supervised contact could be managed. The CAFCASS officer was asked during cross-examination on behalf of the father about risk assessment and her reply, at page 479 of the bundle, is as follows:
“I think I am capable of assessing that level of risk given my experience. In terms of risks to children, I certainly feel that I am able to assess the level of risk and I certainly don’t see that there is a significant risk to R, certainly not in a supervised contact setting. In terms of moving forward from that position, if the court was to consider at some point in the future unsupervised contact or primary care or shared care arrangements then that is something that I do think (father) needs to address some work around in terms of the way he manages feelings, the way he reacts to particular emotions or particular contexts and that he may be needs to look at some of those issues….I certainly don’t feel from what I have read that (father) poses a sexual or physical risk to R. However, certainly emotionally, obviously in terms of moderate emotions, making sure that your emotional responses are appropriate in front of a child, those are really important things and I think that those are areas where (father) may need some intervention.”
During cross-examination by Mr Rex Howling QC, who appeared below for the mother, the CAFCASS officer was taken shortly to her risk assessment. Although it is plain that, without apparently a copy of the matrix to hand, the officer believed that the scale had five levels rather than four, she agreed that, in terms of the impact on victim, a ‘level 4’ finding was very significant from the victim’s perspective.
Before this court the mother submitted that the CAFCASS officer’s risk assessment was unsatisfactory. For my part, I cannot see that that is a submission that the mother can now make good. In cross-examination by her own counsel the point was raised, albeit shortly, and the officer was asked to confirm that the impact on the victim with respect to the sexual abuse findings would be very significant. The officer agreed. The judge accepts that the mother’s PTSD is a result of the actions of the father. The CAFCASS officer was not further challenged about her assessment, indeed counsel’s questions sought to confirm the level of risk identified. It does not therefore appear to be open to the mother in this court now to seek to unpick or undermine the CAFCASS officer’s analysis on this point simply by her own lay submissions, unsupported by any alternative evidence on a point that was not taken below.
We heard brief submissions on behalf of the Respondent father by Mr Ageros, who appeared below. He confirmed that, whilst the question of a risk assessment of his client had been raised in cross-examination of Dr Mayer and the CAFCASS officer, no formal application for an expert risk assessment was ever made on behalf of the mother to the judge. In the absence of any application to the judge, it is very difficult for the mother now to raise the absence of an independent expert risk assessment as a ground of appeal.Discussion
At the centre of the mother’s appeal are the twin assertions firstly that the judge failed to afford any, or any proper, weight to the findings of fact that he had made in September 2014 and, secondly, that he failed to have any regard to the required approach to domestic abuse encapsulated in Re L and in FPR 2010, PD12J.
It is plainly correct that the judge did not make any express reference to Re L
or to PD12J. Any court dealing with a case where domestic violence or abuse is established is required to afford appropriate weight to such findings in accordance with the Re L
decision and to conduct a risk assessment in accordance with PD12J, paras 35 to 37. So that there can be no doubt that the court has indeed approached matters in the required manner, it is wise for some express reference to be made, at least, to PD12J in the judgment or record of decision. In some cases the circumstances may justify descending to detailed reference to the terms of paragraphs 35 to 37 in the judgment.
In order to evaluate the merits of the present appeal, it is both necessary and helpful to consider how the judge’s factual findings engage with the approach required by PD12J.
PD12J paragraph 35 requires that ‘the court should ensure that any order for contact will be safe and in the best interests of the child.’ On these two points the judge made express findings. Firstly, he was entirely satisfied that there would be no risk of harm to R during supervised contact. The only harm identified by the judge related to the impact upon R of any adverse reaction to contact from the mother; such harm does not relate to paragraph 35 and the child’s safety during contact. Secondly, the judge entirely accepted the advice of the CAFCASS officer that R needed to start seeing her father again and needed to do so soon and, in any event, during the coming few months. Those two findings, which cannot be seriously challenged on appeal, establish that the terms of PD12J, paragraph 35 support the order for supervised contact that the judge made.
PD12J, paragraph 36 requires the court to consider any harm which the child and/or parent has suffered as a consequence of the violence or abuse that has been proved, and any harm which the child and parent is at risk of suffering if a child arrangements order is made and provides:
‘The court should only make an order for contact if it can be satisfied that the physical and emotional safety of the child and the parent with whom the child is living can, as far as possible, be secured before during and after contact, and that the parent with whom the child is living will not be subjected to further controlling or coercive behaviour by the other parent.’
On the judge’s findings the physical safety of both child and mother will be protected within the context of supervised contact. It is not proposed that there should be any direct communication between the parents and thus there is no potential for the father to exert any controlling or coercive behaviour towards the mother. The problem in the case, in relation to the factors in paragraph 36, related to the ‘emotional safety’ of the mother, and therefore potentially the child, in consequence of the fact that some contact was taking place, rather than any particular behaviour that the father may exhibit during the contact sessions themselves. As the judge’s judgment clearly demonstrates, this was the very factor that was at the centre of the court’s deliberations. On the judge’s findings it was ‘entirely the fault of the father’ that the mother had developed Post-Traumatic Stress Disorder in consequence of the sustained and serious sexual abuse to which, the judge found, she had been subjected. As a result her emotional and psychological wellbeing had been significantly compromised and she was irrationally vulnerable to any re-introduction of the father into the life of their daughter. All of that was plainly at the forefront of the judge’s mind; it was what the case was about. Having considered these matters, however, in his conclusion (paragraph 40 reproduced at paragraph 31 above) the judge balanced them with a finding that the mother was ‘robust and will do all that she can to protect R from the emotional impact and physical impact that [contact] will have upon the mother’. He also considered that, once it was up and running, the mother might benefit from seeing that R could safely go and return from meeting her father. It is, therefore, in my view clear that the judge approached his decision in a manner that was fully compatible with the approach required by PD12J, paragraph 36.
PD12J, paragraph 37 requires the court to consider the conduct of both parents towards each other and towards the child, with particular reference to the matters listed at (a) to (e) [set out at paragraph 34 above]. Sub-paragraph (a) is not relevant and sub-paragraph (b) is only relevant with respect to the effect of the past abuse upon R’s relationship with her mother in the light of its continuing impact upon the mother as a result of the PTSD. On the judge’s findings, the father’s motivation in seeking contact was child focussed rather than to seek an opportunity to continue to interact with the mother in an abusive or controlling manner; the factors arising from sub-paragraph (c) are therefore compatible with an order for contact. Again, the judge expressly considers and makes positive findings with respect to the factors in sub-paragraph (d), which relate to the father’s likely behaviour during contact.
PD12J, paragraph 37(e) requires the court to consider the capacity of the parents to appreciate the effect of past violence or abuse and the potential for future violence or abuse. Here the judge was faced with a father who did not accept the adverse findings of the court and who was therefore not a suitable candidate for any therapeutic or counselling on the issue of sexual violence. On this point the CAFCASS officer’s advice was that the idea that the father should undertake an ‘anger management’ course would arise if he were to become R’s main care, but it was not needed in the context of supervised contact; it may need to be considered again if, at a later stage, unsupervised contact was proposed. In his evidence, the father told the judge that he was willing to attend an anger management course. Despite the father’s rejection of the judge’s findings of sexual abuse, the judge was plainly entitled to conclude that ‘the potential for future violence or abuse’ did not arise in the context of supervised contact.
Having undertaken the detailed exercise of comparing the judge’s findings with the relevant requirements of PD12J, it can be seen that, notwithstanding the lack of any express reference to those provisions, the judge conducted his analysis in a manner which was fully compatible with those requirements. It is, moreover, hard to accept the submission that the judge proceeded to determine the welfare outcome without any real regard to the serious findings that he had made against the father. The judge had given up a number of court days to the evaluation of those findings and, one can assume, would not have done so had he not considered them to be relevant to the issue of future contact. In addition, in the welfare judgment itself, in response to the father’s non-acceptance of the findings the judge says this:‘I make it clear that I am not re-evaluating my judgment. [Father] was of the view that: “I’m going with the findings made by the police and the CPS and say the mother should do the same in relation to that”. It is also his belief that: “The judge has seen the controlling behaviour of the mother and the judge has reconsidered his decision”. Well, clearly that is not the case. We are bound by the decisions that I made on that occasion and I am certainly not resiling from those decisions.’Finally, as I have already observed, the judge was clear that the mother’s adverse reaction was ‘entirely the fault of the father’.
From the mother’s, erroneous, perspective, in which she continues to hold to allegations, or aspects of the factual matrix, which have not been found proved by the judge, the judge’s approach, which is not to take account of such matters, may seem, therefore to minimise them. But, for the reasons that I have already given, these matters, which almost entirely relate to the physical, rather than sexual, findings cannot be taken into account in the context of this appeal in the absence of any appeal by the mother against the fact-finding judgment itself. Further, in relation to the physical findings, these are appropriately accepted to be ‘low level’ and could not, of themselves, constitute a reason for refusing face to face contact between this father and daughter.
Finally, I do not regard the concluding remarks made by the judge at the end of the fact finding judgment as being anything other than a justified and sensible observation to the effect that the findings made do not establish that the father presents as any sexual or physical risk to R or as a continuing physical risk to the mother. The judge expressly says that he is not minimising what he has found, but he also states that those findings do not rule out direct contact. There is plainly a difference between ‘not ruling out’ direct contact and actually ordering the resumption of contact; with respect to the latter the judge said nothing at the fact finding stage and his judgment at that stage does not indicate that he had reached an improperly premature conclusion on the issue.
Having thus analysed the central arguments in the mother’s appeal, it is clear that HHJ Farquhar gave full and proper consideration to each of the relevant factors necessary for the risk assessment required by CA 1989, s 1 and FPR 2010, PD12J. His conclusion that face to face contact was in R’s best interests, in a supervised setting, was justified on the basis of that risk assessment and, in the context of an appeal, it is a conclusion that was well within the range of justifiable welfare determinations.
The remaining basis for appeal is that the judge gave insufficient weight to the psychiatric evidence, which, it is said, he effectively set aside because it could not offer a concrete prediction as to either outcome or timescale. I do not consider that this ground of appeal is established. The judge was required to make a decision in the context not only of the psychiatric evidence, but also in the context of the advice of the CAFCASS officer that delay in restarting contact was to be avoided and that a further period of no contact in excess of four months was contrary to R’s welfare interests. It is the case that the psychiatric opinion could not offer any clarity as to outcome or timescale and, in the circumstances, it is simply not possible to cast the judge’s decision to opt for immediate contact as ‘wrong’ or lacking in justification. It is not correct to say that the judge failed to give the psychiatric opinion sufficient weight. The opinion features prominently in the judgment and is, indeed, the only substantial factor on the other side of the balance of whether contact should re-commence immediately. In the end the judge concluded that it was outweighed by the need not to delay and the judge’s pragmatic appraisal of just how long the process of establishing therapy for the mother would take. That was a decision that the judge was entitled to take and the fact that he decided against the psychiatric opinion does not establish that, in doing so, he failed to accord proper regard to it.
In the light of all of the reasons that I have now given, I would dismiss this appeal.Lord Justice Tomlinson
I agree.Lord Justice Longmore
I also agree.