(Court of Appeal, Richards, McFarlane, King
LJJ, 29 July 2015)
Private law children – Interim child
arrangements order – Allegations of physical abuse – Appeal – Whether the judge
had been premature to make the order while investigations were ongoing
The father’s appeal from an interim child
arrangements order was dismissed.
Neutral Citation Number:  EWCA Civ 974
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM OXFORD COMBINED COURT CENTRE
(HIS HONOUR JUDGE TOLSON QC)
Royal Courts of Justice
London, WC2A 2LL
Wednesday, 29th July 2015
B E F O R E:
LORD JUSTICE RICHARDS
LORD JUSTICE McFARLANE
LADY JUSTICE KING
IN THE MATTER OF
B (A CHILD)
Computer Aided Transcript of the Stenograph notes of
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Ms N Martin (instructed by Bower and Bailey LLP) appeared on behalf of the Appellant Father
Miss C Barrett (instructed by Penningtons Manches) appeared on behalf of the Respondent Mother
J U D G M E N T
LORD JUSTICE McFARLANE:
This is an appeal from a decision made by His Honour Judge Tolson QC on 25th June 2015 sitting in the Family Court at Oxford. The case before the judge on that day related to a young boy, "R", who was born on 12th March 2009 and therefore is now aged six years. R's parents had cohabited together for a period of some two years up until 2010, but then separated, and the arrangement was that R remained living with his mother, his older half brother, a boy, "V", aged now 18, and a cousin, a girl, "P", now aged 19. R's father returned to live with his own parents. There were difficulties about the arrangements for contact, but those were resolved in the middle of 2012 and governed by an order made by a District Judge on 22nd June 2012. In essence, the arrangement was for R to go and stay with his father once a fortnight over the weekend and also to see his father on every Wednesday evening during the week. There were also arrangements for R to spend extended time with his father during holiday periods. That was the arrangement that was in place until the middle of May of this year. However, the matters that brought the case before the judge occurred on 26th May, on an occasion when R was staying with his father.
It seems that during the ordinary course of domestic activities, R became upset because a pair of his underpants could not be located and he expressed concern to his grandmother as to his mother's reaction if he went home without this particular pair of pants. R then came to say more to his grandmother, and that included the allegation that on occasions his mother would hit him, initially slapping him was the allegation, and then R went on to explain that sometimes his mother would strike him with a belt. He described how his mother would go to the wardrobe, take the belt out of the wardrobe, form it into a form of lasso and then strike him around the head. He also complained of having his arm twisted by his half brother V and complained about being pushed by his cousin P. 
The grandmother was understandably very distressed by these allegations made by this six year old boy. She properly contacted the authorities. That led to a visit from a police officer from the local force responsible for the area where the grandparents lived. The next day a police officer from the Oxfordshire force, which is the location in which the mother lives, together with a social worker from Oxfordshire, visited the grandparents' home. 
His Honour Judge Tolson had a full section 47 report compiled by the social worker from Oxfordshire, which included detail of what R said to the social worker and the police officer during their visit, and it is effectively on all fours with the allegation that his grandmother says she had heard him make the previous day.
The local authority arranged for R to be examined by a paediatrician at the local hospital. That took place on 28th May. The note of that examination, apparently made by the social worker, is recorded within the section 47 report. Again, insofar as that note contains any detail of anything said by R, it is at one with the allegation that was originally made to the grandmother.
The father was advised not to allow R to return home to the mother or to allow any contact between R and the mother. The mother, clearly concerned about this development, sought an order from the court for contact. She made an application to the court for a child arrangements order on 9th June. On the same day the father also made an application to hold the status quo pending a full hearing. Although the case had been listed before two separate District Judges for directions, no direction for the filing of evidence had been made, but the court did have the section 47 report available to it.
The case came on for hearing before Judge Tolson on 25th June. It is apparent that there was a short occasion when counsel attended before the judge in the morning and then the hearing proper commenced in the afternoon. It was not a full hearing in the sense that the judge did not hear any oral evidence and the case was dealt with by submissions. He had, as I have indicated, the section 47 report, but an undated letter, seemingly written in the days shortly before that hearing, by the head teacher of the school that R had been attending prior to his retention in the father's home was also handed to the judge.
Having considered those materials and the submissions made by counsel representing the two parties, the judge determined that, despite what he had been told and what he had read, it was in R's best interests to return to live with his mother pending a full investigation within the court process and that the default position established by the District Judge's order of 22nd June should be re established. It is against that decision that the father now appeals.
With commendable speed, those representing the father issued a notice of appeal the day after Judge Tolson's decision, 26th June. Again, very speedily, that was placed before a judge of this court, Vos LJ, and on reading the papers Vos LJ granted the father permission to appeal, granted a stay on Judge Tolson's order and directed that the hearing of the appeal should be listed with expedition, and in any event before the end of July. It is that hearing that my Lord, my Lady and I have now conducted this morning.
We are grateful to both counsel who have prepared the paper work in the case, that is Miss Barrett for the mother and Miss Shillingford for the father, and we are particularly grateful to Ms Nicola Martin, who has stepped in to the role of representing the father this morning and advanced the arguments that he seeks to make in support of his appeal with commendable clarity and admirable force.
The criticisms that are made of the judge are, in essence, that he was premature in making this decision. No challenge is made to the discretion open to a judge in these sorts of circumstances to make the choice that the judge made, but Ms Martin submits that the judge should not have made the decision on that day on the basis of the material he had before him. Although no express application for an adjournment was made by the father's counsel, it is apparent from her grounds of appeal, and accepted by Miss Barrett who was present, that Miss Shillingford suggested to the judge that the proper course should be to put matters on hold whilst statements were filed and if possible oral evidence heard. Ms Martin also submits that the court could have directed an expedited and focused section 7 report from CAFCASS, and I accept that that also is an option that was open to the judge.
What the judge did, obviously, was to pursue matters to a conclusion on that day. Looking at his judgment, it is possible to see within its short confines that the judge had in his mind each of the relevant factors. He understood that there was a deeper background to the case involving considerable animosity, not so much between the two parents themselves, but between the mother and the paternal grandparents. He regretted the fact that there was no statement setting out the position of the parties or the detail of the evidence, but he says at paragraph 6 that his approach was as follows:
i. "Accordingly, the approach which I have to adopt today whilst commissioning a more detailed investigation will be to have to look to see whether the allegations which [R] appears to have made are of such a level as to justify him remaining in his father's care for the time being in his welfare interests which are of course my paramount consideration."
Ms Martin does not accept that that is a statement of the proper approach that the judge should have adopted. She submits that it indicates that although he says that he will "have to look to see whether the allegations [R] appears to have made are of such a level as to justify him remaining in his father's care", the judge in that paragraph, and also in paragraph 9 of his judgment, indicates that he does not accept to the full the accuracy or the truth of the allegations that are made. 
Dealing with that point on its own, I do not accept that submission. Paragraph 6 describes entirely correctly the approach to be adopted. The court has to work on the basis that the allegations are true and that if a risk is to be identified by what the boy has said, then that risk has to be confronted and evaluated within the overall welfare balance that sits behind the decision whether to send him back to his mother or not, or to arrange some other form of contact between them.
Moving on, the judge clearly had the section 47 report in front of him, and he clearly had the detail from that report because he summarises it and quotes directly from it in his judgment. In particular, he quotes the conclusion of the report, which is to have a box ticked in these terms indicating that the following phrase applies to this case:
i. "the concern was substantiated and the child/young person is judged to be at continuing risk of significant harm."
The judge also says this at paragraph 3:
i. "The local authority however elected at the end of their section 47 report to leave the matter in the hands of the Family Court, recommending to the father and his family that they should retain [R] until the judge was able to rule on the matter."
Ms Martin submits that, although that is a correct recital of the words of the section 47 report, the author of that report could not have contemplated the family court rushing to judgment without going through a proper process and that the judge was wrong simply to bank, as it were, the transfer of responsibility to him that the report suggests. 
I understand that submission and it is not possible for this court to read between the lines of the section 47 report in that regard, but be that as it may, as a matter of law it was for the family court judge to determine this issue. Absent of the local authority issuing public law proceedings, the view of the local authority, whilst important and possibly influential, remained a professional opinion. It was for the family court to determine the issue and the submission that Ms Martin makes on this point really brings her and the court back to the primary submission she makes, which is that the judge should not have decided the issue on the day that he did on the material before him.
In addition to the section 47 report, the judge had the letter from the school, and he quotes part of this in the course of paragraph 7. It is in these terms:
i. "'[R] has been extremely happy in school. He has strong working relationships with all the adults and children at school. His reputation as a kind, eager and willing pupil has been maintained ever since he started at the school. [R] is brought to school by his brother and sister. They have equally good reputations. They are impeccably well mannered. The little interaction in school witnessed between [R] and his siblings is purely positive and nurturing. They appear to love this young man sincerely. I have no reason to believe otherwise.'"
The school obviously, as the judge observed, had had limited occasions to see R with his mother. She works, and the arrangements are that the older youngsters in the house normally take R to and from school. The judge described the letter from the school as "the best external picture" of R at the moment.
Ms Martin makes a number of submissions about this letter. First of all, she submits that it was not "the best external picture". She does not submit to the court that there was a better external picture, but she submits that it is a partisan document, generated following a request from the mother, and that it should not have been given any or any substantial weight by the court, certainly as against, she would submit, the more thorough professional investigation by a child protection professional, namely the social worker, in the section 47 report.
I do not accept that submission. A report from a school which is seeing a young child, day in day out for the course of what must be at least most of a year, is likely to be a valuable source of insight for any professional, particularly a judge, having to make a decision such as this. This is not a neutral report, it is not even a mildly positive report, it is a very positive report, both as to the little boy himself indicating by his openness, his eagerness, his engagement with people, that he seems to be a balanced and unworried youngster. It is also significantly a very positive report about V and P, against whom R had made some allegations of physical assault. So it was, in my view, an important document and one on which the judge was entitled to place some substantial weight.
Moving on, the judgment in paragraph 10 describes the process of balancing R's interests that the judge undertook. I am not going to read the whole of paragraph 10 into this judgment, but the other side of the balance, one side obviously being the need to take care and not expose this young boy to the risk of further physical harm, was to see the impact upon him as best the judge could of being separated from his mother for a period of weeks. The judge described this as being "uprooted", not just from his home, but from his whole life experience in that home and, particularly, at the school where he seemingly was so settled and happy. The judge considered that that process, the risk of harm aside, was plainly not in R's interests, and again it seems to me impossible to suggest that the judge was wrong in that view.
So a "judgment call" was required of the judge. Ms Martin does not suggest that that was not the case. The point that she comes back to time and time again, rightly, is the judge's decision to make that choice at that hearing rather than to adjourn the case.
Whilst I understand that submission, the judge did in fact have a lot of detail available to him. In this appeal nobody suggests that if he put the case off for statements to be filed, a week or whatever the period might be later, he would have had one jot of additional information that he did not have on the day of the hearing in relation to the allegations themselves. There is of course, as in any case where there is a dispute about children, a hinterland, other allegations more generally may or may not be made by either of the parties in the course of the main hearing, but those were not being raised before the judge as justifying keeping this young boy with his father, those had not generated any application by the father at any earlier stage. So, on the point before him, I find it impossible to see that the judge would have been in any better position to determine the issue had the case been put off. 
What the boy had said was worrying. The judge, however, was entitled to take a view as to the level of harm that R might be exposed to were he to return to the mother's care. The judge plainly took the view that it was an acceptable risk in this case to return R to the mother's care, both because of the level of allegation that R had made as to past abuse and in the light of the positive indicators about his care by the mother in all other respects that came from the school. 
So the central point that is made by Ms Martin, in my view, does not move the appeal on in favour of it being allowed. This was a decision that the judge was entitled to take on the material before him. His approach to it, in my view, is impeccable. His judgment, short though it is, is clear as to the factors that he had in mind, the weight that he gave to each of them and the decision to which he came. It was a decision that was open to him, it was within his discretion, and in my view it is not open to successful challenge on appeal.
I will therefore in a moment announce my decision, which is to dismiss the appeal, but before doing so I would indicate that the long standing guidance offered by this court as to the willingness of the court to entertain appeals against short term interim decisions in private law cases remains as sound today as it was when it was first enunciated in a number of judgments in the late 1980s and early 1990s. In particular, I draw attention to the case of Re J (A Minor) (Interim Custody: Appeal)  2 FLR 304, which was a decision of this court, Croom Johnson LJ and Butler Sloss LJ, in April 1989. The position was much the same as in this case with a child being retained in the home of one parent and then shortly after that a Circuit Judge making a decision on the issue. The facts do not concern us this morning, but at page 308C Butler Sloss LJ said this:
i. "I must say that I would deprecate the instant appeal of an interim order. We also had our attention drawn to the decision of this court in Edwards v Edwards  1 FLR 205, particularly to the words of Purchas LJ at page 209, where he said:
ii. 'I venture to comment that appeals concerning a matter of care and control, in order to hold the position pending a full inquiry, are very difficult appeals to establish successfully. The reason for this is simple: it is a matter which is essentially in the discretion of the judge, who sees the parties (although in this case they did not give evidence before him) and who has a "feel" of the case, and, moreover, it is essentially a matter for him during the interim proceedings. But essentially in interim orders of this kind it must be difficult to establish such a departure from the principles to be applied in an interim decision so as to enable this court to interfere.'"
Butler Sloss LJ continued:
i. "I would respectfully adopt those words of Purchas LJ and say that this is not the sort of case, unless it is extremely plain, in which there should be an appeal against the first part of an interim order made even prior to having the interim application fully litigated."
In his own words, Croom Johnson LJ expressly agreed with that observation.
I too very much agree that that should be the approach. There is often no right or wrong answer for a judge determining, on less than full evidence, where a child should be in the interim pending a full investigation. It is therefore, in my view, the case that Ms Martin faced a substantial difficulty today in challenging an interim decision. It is not the case here that, to use Butler Sloss LJ's words, "extremely plain" that the judge was in error. Whilst understanding the points that are made, they come nowhere close to persuading me that the judge's interim decision should be overturned. I would therefore dismiss this appeal. LADY JUSTICE KING:
I agree. LORD JUSTICE RICHARDS:
I also agree.