Neutral Citation Number: [2012] EWCA Civ 1231
Case No: B4/2012/1406
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SOUTHEND COUNTY COURT Mr Recorder BRYAN
Royal Courts of Justice Strand. London, WC2A 2LL,
Date: 12 October 2012
Before:
LORD JUSTICE MAURICE KAY 
LORD JUSTICE MUNBY
and
LORD JUSTICE LEWISON
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In the Matter of J (A Child)
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Ms Ashley Thain (instructed by White & Co) for the appellant father 
The respondent mother appeared in person by video link
Hearing date: 4 September 2012
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Judgment

Lord Justice Munby:
1.	This is an appeal, pursuant to permission granted by McFarlane LJ on 16 July 2012, from a judgment of Mr Recorder Bryan sitting in the Southend County Court on 15 March 2012. The Recorder was hearing proceedings under Part II of the Children Act 1989. He was concerned, as we are, with J, a boy who is about 9½ years old. His parents were never married.
2.	J was bom on [a date]. His parents separated, in circumstances which are disputed and have never been judicially investigated, on 7 November 2003, when the mother left the family home taking J with her. The litigation began, with the father’s application for parental responsibility, residence and contact, on 22 December 2003. The first sadness is that, albeit with two significant interruptions - the first between July 2005 and June 2007 and the second between March 2009 and October 2011 - the litigation has continued ever since. The second sadness is that, even as the case came before us, there appeared to be no end in sight, for the order made by the Recorder on 15 March 2012, at the end of what had been listed as the final hearing, provided for a “further review” on 10 September 2012.
3.	In order to set the scene for the hearing before the Recorder I must sketch out the history of the litigation.
The history of the litigation
4.	Following the parties’ separation J lived with his mother. There were difficulties over contact. The father’s application, as I have said, was issued on 22 December 2003 On 26 January 2004 District Judge Skerratt gave the father leave to withdraw his application for residence. The conciliation and directions hearing he ordered took place before District Judge Johns on 30 April 2004. He made an order for interim contact and gave directions, including directions for a section 7 report from the local authority. Much evidence was filed, followed by the section 7 report dated 26 July 2004. On 28 July 2004 District Judge Skerratt made orders by consent that the father have parental responsibility for J and for interim contact pending a hearing fixed before a Circuit Judge on 4 November 2004. The first contact directed by the District Judge was to take place on 13 August 2004. According to the father, during August and September 2004 the mother did not comply with the order. The mother’s stance as set out in a witness statement dated 13 October 2004 was that she would not allow unsupervised contact because of her concern that the father would not return J. On 18 October 2004 the father issued an application for the attachment of a penal notice to the order District Judge Skerratt had made on 28 July 2004.
5.	The hearing on 4 November 2004 was before His Honour Judge Goldstaub. He ordered that the parties be assessed by a psychologist or psychiatrist, set out the interim contact that was to take place, and directed that the matter be heard by His Honour Judge Yelton on 15 March 2005. According to the father, the contact which had been ordered for 2 December 2004 did not take place. On 6 December 2004 the father applied ex parte to Judge Yelton for the penal notice to be attached; the judge directed a hearing three days later. On 9 December 2004, having heard both parties, Judge Yelton made no order on the father’s application, except to change the location of contact hand over. Dr Stephen Little, a consultant child and adolescent psychiatrist, reported on 12 March 2005. He said that the mother was not suffering from any identifiable psychiatric condition but referred to a number of her personality characteristics which, he opined, were putting J substantially at risk. At the hearing on 15 March 2005 Judge Yelton adjourned the case for a directions hearing on 23 March 2005.
6.	On 23 March 2005 Judge Yelton made a residence order to the mother, directed that the father have weekly contact every Saturday, increasing from 3 hours on 26 March 2005 to 8 hours from 28 May 2005, and ordered that there be a further directions hearing on the first available date after 27 June 2005. The hearing in fact took place, again before Judge Yelton, on 1 July 2005. He adjusted the contact arrangements: contact was to take place on alternate weekends from 10am on Saturday to 5pm on Sunday; every Thursday afternoon from 1pm to 5pm; and for three separate weeks, one in the summer, one at Christmas (not to include Christmas Day) and one at Easter.
7.	According to the father, by October 2006 the mother had again stopped contact. There was correspondence between the parties’ solicitors in the course of which the mother made various allegations against the father. The police became involved.
8.	So far as the court was concerned, the next thing that happened was on 8 June 2007, when the father applied for a contact order and a joint residence order. When the matter came before District Judge Rowley on 6 August 2007, each parent was making allegations against the other. The mother had stopped contact, alleging that the father had bruised J’s arm (something which he denies). The District Judge varied the father’s contact to fortnightly supervised contact for 3 hours at a contact centre and gave detailed directions, including directions for each party to file a schedule of allegations and for a section 7 report by CAFCASS, with a view to a fact finding hearing which he fixed for hearing by District Judge Chandler on 30 November 2007. He also fixed the final hearing, also before District Judge Chandler, for 7 January 2008. The schedules of allegations were filed, late and only following an ‘unless’ order, on 23 October 2007; the father’s response to the mother’s schedule followed on 26 October 2007.
9.	At the hearing before District Judge Chandler on 30 November 2007 everyone agreed that there was no need for a fact finding hearing as none of the allegations would affect the level of contact. The father was given leave to withdraw his application for residence. A contact order was made, providing, after an introductory period of increasing contact for the first month, for the same contact as had been directed by Judge Yelton on 1 July 2005, except that the weekday contact was now to be on Wednesday rather than Thursday.
10.	The section 7 CAFCASS report, written by Ms Jill Coatalen, was dated 4 January 2008. It referred to Dr Little’s report, noted that “little has changed since 2005”, observed that “historically contact appears to occur for only a few months at a time before it is once again disrupted”, that is, disrupted by the mother, suggested that “a change in the current status quo would appear to be both appropriate and necessary”, and “to this end” recommended that there be an interim joint residence order “so that the balance of power is shared and no longer held solely by mother.” The report did not recommend that J live with his father full time “because I do not think that a change of this magnitude would be easily accepted by the child.”
11.	At the final hearing on 7 January 2008, District Judge Chandler by consent made a shared residence order and also, as suggested by the CAFCASS report, a family assistance order to the local authority. Paragraph 1 of his order, having directed that there be a shared residence order, provided for the following “division of care”. J was to be with his father on alternate weekends from after school on Friday until start of school on Monday, each week from after school on Wednesday until start of school on Thursday, and for half of all school holidays, including half term holiday. He was to be with his mother for the balance of time. The District Judge gave directions for a review hearing in July 2008. In the event, the hearing took place on 29 August 2008, when District Judge Cooksley discharged the family assistance order and adjourned the case for review in March 2009. On 31 March 2009 District Judge Dudley, having heard the parties in person, ordered that paragraph 1 of the order dated 7 January 2008 should stand as the final order.
12.	On 12 October 2011 the mother issued an application seeking sole residence, supervised contact and no staying contact. On 10 November 2011, District Judge Collier made an order suspending the order of 7 January 2008, directing that in the interim J was to live with his mother, and giving directions, including directions for a further section 7 report by CAFCASS and for a directions hearing on 12 January 2012. The order made no provision for any contact. On 12 January 2012, District Judge Hodges listed the matter for further directions on 16 February 2012 and ordered the mother to “facilitate contact as recommended by CAFCASS, perhaps supervised”. The CAFCASS report, written by a different officer, Mr R Shaffer, was dated 26 January 2012. On 16 February 2012, District Judge Ashworth listed the matter for final hearing, gave directions and ordered “such unsupervised contact as is agreed between the parties to be a minimum of 3 hours every oilier Saturday”.
13.	On 24 April 2012, the father issued an application seeking a sole residence order in place of the currently suspended joint residence order. The final hearing took place, as we have seen on 15 May 2012. By then some limited contact had resumed.
The hearing on 15 May 2012
14.	The mother appeared before the Recorder in person. The father was represented by Ms Martha Holmes. We have the advantage of a transcript of the entire proceedings as well as a transcript of the Recorder’s judgment. The Recorder heard evidence from (in this order) the CAFCASS officer, Mr Shaffer, the mother and the father. This was followed by submissions from Ms Holmes and, more briefly, the mother. After a short adjournment the Recorder then delivered his judgment. It was very brief, running to no more than four pages of double-spaced transcript.
15.	The Recorder ordered that the previous residence and contact orders be discharged; that J reside with his mother; and that the father have contact, initially on alternate Saturdays from 10am to 8 pm, and from 7 July 2012 onwards on alternate weekends from 10am on Saturday until 2pm on Sunday, with two additional non- consecutive weeks during the summer holidays. He directed the matter to be listed for review on 10 September 2012 “with a view to increasing staying contact at weekends and during holiday periods if contact has progressed well”. We were informed that, thus far, contact has proceeded as directed by the Recorder.
The grounds of appeal
16.	The father filed his appellant’s notice on 11 June 2012, seeking the setting aside of the order for sole residence in favour of the mother and then, in the alternative, either sole residence in his favour, with contact to the mother similar to the contact previously afforded to him, or a reinstatement of the order of 7 January 2008, or an order for a new trial.
17.	The father’s grounds of appeal fall into three parts.
18.	The first is that the Recorder failed to conduct the hearing fairly. This involves two complaints:
i)	first, that the Recorder failed to provide time for instructions to be taken on a statement provided by the mother on the morning of the hearing and failed sufficiently to query why it had not been provided earlier;
ii)	second, that the Recorder restricted questioning of the mother, preventing the father’s case being put.
19.	The second part of the father’s grounds of appeal goes to the substance of the Recorder’s decision. This is broken down into three complaints:
i)	first, that the Recorder was plainly wrong in that he failed to take into account the failings in the CAFCASS report that had been highlighted in cross- examination and relied too heavily on the evidence of the CAFCASS officer without taking proper account of the other evidence;
ii)	second, that the Recorder was plainly wrong in that he failed to give any proper consideration to or analysis of the mother’s application to vary the previous order, particularly in the context of the lengthy litigation history;
iii)	third, that the Recorder erred in law in considering it necessary for there to be a harmonious relationship between the parents for a shared residence order to be made and failed to recognise that such an order can be used to redress the balance of power between parents.
20.	The third part of the father’s grounds of appeal raises a ‘reasons challenge’ which involves two complaints:
i)	first, that the Recorder failed to give adequate explanation of the changed circumstances justifying the discharge of the previous shared residence order;
ii)	second, that the Recorder failed to give adequate reasons for his decision as to the reduced level of contact to the father.
21.	McFarlane LJ, as I have said, granted the father permission to appeal on 16 July 2012. He commented that “the approach of the learned recorder, which was to ignore all matters in the past and simply take the level of contact currently accepted by the mother as his starting point, is susceptible to proper challenge”, adding that “it may also be the case that the mother’s case was not properly considered by the court.” He expressed the view that “the judgment is so lacking in detail that it is not appropriate to invite the judge now to clarify [his] reasons.”
The hearing of the appeal
22.	The appeal came on for hearing before us on 4 September 2012. The father was represented, in Ms Holmes’ unavoidable absence, by Ms Ashley Thain, who appropriately relied in large part on the skeleton argument prepared previously by Ms Holmes. The mother appeared in person by video link. She had prepared a most helpful written statement which set out her position very clearly. In accordance with a direction given by McFarlane LJ, the father had prepared a witness statement dated 3 September 2012 providing details of his current living arrangements.
23.	At the end of the hearing we announced that the appeal would be allowed, for reasons to be given in due course. We ordered a new trial in front of a different judge. That trial, if it cannot take place before the Designated Family Judge should if at all possible be before a Circuit Judge experienced in family cases. We now give our reasons.
24.	It is convenient to deal with the three parts of the father’s grounds of appeal in turn.
The first part of the father’s appeal
25.	Realistically, if I may say so, Ms Thain did not press the first of the father’s two complaints on this part of his appeal. The key point, which she understandably put at the forefront of her submissions, was that the Recorder wrongly limited the ambit of the factual investigation upon which, as she would have it, Ms Holmes properly wished to embark in her cross-examination of the mother.
26.	The matter arose in this way. In her application filed in October 2011 the mother, as we have seen, was opposed to anything other than supervised contact. By the time of the hearing in March 2011 the mother was expressing herself as being “happy” with unsupervised contact: this was the word she used (Transcript p 46) in answer to questions from the Recorder. Indeed, it seemed from her answers to the Recorder (see Transcript p 51) that she had no objection in principle to overnight contact. When Ms Holmes tried to put this change in her stance to the mother (Transcript p 61) she was stopped by the Recorder (Transcript p 62): “Do not answer this question ... I say do not answer it because I do not see where it is going.” When Ms Holmes tried to explain, the Recorder broke in: “do you really want the witness to rake over all her earlier concerns and worries?”
27.	Ms Holmes persisted:
“Your Honour the problem is ... that repeatedly what the mother does is she makes allegations that stops contact, she then comes to court and makes ... concessions in court that lead to a small step forward. The point I’m making is ... that if we are going to have a stable regime of contact... that is going to last I think we need to get to the bottom of what the problems are because otherwise the worry the father has is we go away from here, two months down the line all the same allegations, and we come back to court again and we’re back to where we were, square one.”
The Recorder responded:
“Well I think you will find that the court, at least this court, will want to move forward rather than to linger ... I have to approach the case as it is today, the witness has said, and I am sure your client would want to move forward from where it is today rather than, as it were, have a kneejerk reaction ... to kick it back to the order of District Judge Chandler in 2008.”
Ms Holmes then made a very pertinent point (Transcript p 63):
“But Your Honour the reality is ... that what she is proposing is that she dictates the way in which it moves forward. That she is saying it should move forward in this particular way only ... when we have never actually established why the previous arrangements were wrong.”
She added:
“But we’re now in a situation where the mother is determining that there should be a vast reduction from that level of contact.
I’m trying to get to the bottom of why she feels that that is necessary.”
The Recorder then made his position very clear (Transcript p 62):
“Well let me reassure you, you are not going to gain any mileage from this line of cross-examination and I am interested in looking forward and with that in mind do you have any further questions?”
28.	Ms Holmes soldiered on for a while. As the short adjournment approached the Recorder said this (Transcript p 68):
“I am going to curtail your cross-examination unless you want to investigate what would be more acceptable to [mother] otherwise we shall move straight to your client.”
Ms Holmes made clear (Transcript p 69) that:
“if I am not able to explore [the allegations being made by the mother] then it does hamper my ability to be able to put my client’s case.”
The Recorder was unmoved:
“Well that may be but it seems to me we are where we are”.
29.	In his judgment the Recorder acknowledged (Transcript para [3]) that he had not permitted cross-examination, as he put it, “going back into the mists of time”. He explained why: “it seemed to me ... and it still seems to me, that the proper starting point for the hearing today is today.”
30.	The point made by Ms Holmes in her skeleton argument and elaborated by Ms Thain in her oral submissions is simple and compelling. The Recorder concentrated on how things might move forward without questioning, or allowing counsel to question, how or why the current state of affairs had come about and whether the mother’s reasons for unilaterally varying the previous court order were justified. This, it is said, was particularly alarming given what Dr Little and Ms Coatalen had said in their earlier reports - material suggesting that there could be a pattern to the mother’s behaviour requiring investigation of the kind the Recorder refused to permit. In short, it is said, by restricting cross-examination of the mother the Recorder ensured that it would be impossible for him to carry out the task required of him and denied the father a fair hearing.
31.	In my judgment the father’s appeal must be allowed on this ground alone.
32.	The point is really quite short and simple. Of course the Recorder was right in saying that one had to look to the future: after all, his task was to determine J’s future living arrangements. And of course, in one sense, the Recorder was right to look at how matters stood on the day of the hearing: after all, things were as they were. But his error - and in my judgment he here fell into plain and obvious error - was in rejecting Ms Holmes’ entirely justified desire to explore the crucial question of why it was that things were as they were at the date of the hearing. The investigation - the cross-examination - that Ms Holmes wished to undertake was not something she wished to pursue Micawber-like in the speculative hope, absent any reason to believe so, that something might turn up. On the contrary, and as she explained to the Recorder, there were at least two things she wished to explore, and which in my judgment cried out for investigation: first, why the mother’s attitude had changed between October 2011 and March 2012; second, and even more important, why the arrangements agreed in January 2008 had not worked out and why the mother believed they needed to be changed.
33.	The Recorder may have been right in doubting the utility of an investigation “back into the mists of time”, but this was not what Ms Holmes was suggesting and it was no answer to the need for a more focused investigation of the kind she wanted to undertake. As my analysis of the litigation shows, there was a very clear point in the past which was the obvious initial starting point for such an investigation: the order made by District Judge Chandler on 7 January 2008. Two things about that order are striking: first, it was made against the background of the concerning matters identified and considered by Dr Little and Ms Coatalen, and taking into account Ms Coatalen’s recommendations; second, it was an order made by consent and moreover, as the order itself makes clear, on an occasion when the mother was represented by counsel. Now of course in a case such as this a consent order does not have the same status as a consent order made in ordinary civil proceedings, but it was nevertheless entirely understandable that Ms Holmes should wish to probe with the mother why she no longer saw the order she had agreed to as being appropriate. Moreover, given what Dr Little and Ms Coatalen had said, Ms Holmes had every justification for wishing to explore whether the explanation for the mother’s change of view since January 2008 lay in those matters which had caused Dr Little and Ms Coatalen concern rather than in the explanations now being offered by the mother.
34.	Whether it would have been appropriate for Ms Holmes to seek to push the investigation farther back into the past - even assuming she would have wanted to - was, I should add, not a matter calling for a ruling at the outset. It was a matter to be considered, if the need arose, in the light of how the preceding cross-examination had gone.
35.	Of course, and even in a family case, a judge should stop irrelevant or time-wasting cross-examination. But a judge should always bear in mind that, however carefully he has read the papers beforehand, counsel is likely to have a better grasp of the inner forensic realities of the case. And a judge does well to think twice if, as here, his intervention is met by counsel standing her ground and carefully explaining why she wishes to cross-examine in a particular way, especially if, as here, counsel’s reasons have obviously been carefully considered and are not just ‘off-the-cuff’. Ms Holmes is to be congratulated for doing her duty, politely but firmly standing her ground and telling the Recorder plainly that his ruling was preventing her putting her client’s case. It is a pity that the Recorder did not, even at that point, see any reason to change his mind.
36.	In my judgment, the effect of this was indeed, as submitted to us, to disable the Recorder from carrying out the task required of him and to deny the father a fair hearing. But I go further. To deny the father a fair hearing and a proper opportunity to put his case was also, of course, to deny J a fair hearing. And for the reasons given by McFarlane LJ it may also have meant that the mother’s case was not properly considered.
37.	There is no way in which we can remedy things except by allowing the appeal and directing a re-trial at which those matters which the Recorder refused to consider can be properly investigated. In the circumstances the re-trial must be in front of a different judge.
The second part of the father’s appeal
38.	Given that we have ordered a re-trial which, for reasons that will be apparent, is going to be wider in scope than was permitted by the Recorder, little purpose will now be served by considering this part of the father’s appeal in any detail. Indeed to do so could even be counter-productive. In the circumstances I propose to confine myself to two observations.
39.	The first relates to the point of law about shared residence orders. In the first CAFCASS report, as we have seen, Ms Coatalen had recommended a joint residence order “so that the balance of power is shared”. Mr Shaffer, for his part, did not support the making of a shared residence order “as J’s parents have found it difficult to communicate effectively ... and this would cause problems for J.” The Recorder agreed with Mr Shaffer, referring in his judgment to a feeling of animosity and hostility between the parties.
40.	Ms Thain appropriately took us to what Wall J (as he then was) had said in A v A (Shared Residence) [2004] EWHC 142 Fam), [2004] 1 FLR 1195, [124], and to what Wilson LJ (as he then was) had said in this court in Re W (Shared Residence Order) [2009] EWCA Civ 370, [2009] 2 FLR 436, [15]. I would add a reference to the recent summary by Black LJ in T v T (shared residence) [2010] EWCA Civ 1366, [2011] 1 FCR 267, [25]-[27]. I do not propose to add to the jurisprudence. I observe only that if the Recorder had indeed proceeded on the basis attributed to him in the father’s grounds of appeal he would have fallen into error, but that is not how I read his judgment. I need say no more. The matter will of course be considered afresh by the judge conducting the re-trial.
41.	The other relates to the CAFCASS report. It is on any view a short document and, although it refers to both Dr Little’s report and the earlier CAFCASS report, it does not engage at all with either of them. Nor does it really explain why subsequent events justify departure from the arrangements that were agreed in January 2008. No doubt, given the time that has elapsed since Mr Shaffer wrote his report, a further CAFCASS report will be needed. It might be helpful if it were to address these matters.
The third part of the father’s appeal
42.	The Recorder’s judgment was brief, very brief. Brevity is not, of itself, a ground of appeal; indeed, it can be a virtue. The question at the end of the day is whether the judgment sufficiently explains what the judge has found and what he has concluded as well as the process of reasoning by which he has arrived at his findings, and then his conclusions. The Recorder’s judgment is thin, desperately thin given the scale of the previous litigation and the nature of the issues he had to grapple with, but if this was the only ground of challenge I am sceptical as to whether I would have been persuaded to interfere. As it is, the point does not arise for decision because there is a more fundamental and logically prior ground which is dispositive of the appeal.
Conclusion
43.	It was for this reason that, at the end of the hearing, I agreed with my Lords that the appeal should be allowed and a re-trial ordered.
Lord Justice Lewison:
44.	I agree.
Lord Justice Maurice Kay :
45.	I also agree.