We use cookies to offer you a better experience and analyse site traffic.

By continuing to use this website, you consent to the use of cookies in accordance with our Cookie Policy.



I agree


Re T & O (Appeal: Fair Hearings: Delegation of Judicial Functions) [2024] EWHC 2236 (Fam)

Re T & O (Appeal: Fair Hearings: Delegation of Judicial Functions) [2024] EWHC 2236 (Fam)

Samuel Davis appeared on behalf of the Appellant mother in this successful appeal against a decision to permit the progression of contact. The appeal is of interest to family practitioners and makes clear the Judge’s role when it comes to (a) challenging evidence and (b) delegating judicial functions. 

On 29 August 2024 the Honourable Mrs Justice Henke handed down her decision in Re T & O, the case concerned the mother’s appeal application against a decision of HHJ Davies on 22 May 2024. 

There is an extensive and protracted litigation history in this case. In summary, in October 2021 Mr. Recorder Roche KC made 21 findings of fact against the father. The father’s application for permission to appeal against those findings was refused and certified as being totally without merit. Throughout the course of the litigation the father made several applications for permission to appeal against the decisions and sought to vary contact. The final orders dated 30 January 2023 included non-molestation and occupation orders and directed that the father should not have any direct or indirect contact with the children except as permitted by court order or agreed in writing with the mother. 

Further attempts to appeal against the decision in relation to contact led to consideration of a s91(14) order. The appellant asserted that the Children Act proceedings were used as a tool of continuing abuse.  A 91(14) order was made for four years on 2 June 2023. The father made further attempts to vary that order. Permission to apply to vary the order was refused and the father applied for permission to appeal against that decision. However, as the father failed to comply with directions to enable the application to be determined the application was struck out on 22 May 2024. The Respondent made a further attempt to vary the order for contact and included, inter alia, reports of observations of contact by the ISW evidence of completing a CDAP programme, a letter from his psychotherapist about the work he had undertaken, the progress he had made, along with the outstanding work for the future.  

On 10 May 2024 HHJ Davies heard the father’s application for permission to circumvent the barring order. The hearing was conducted without notice to the mother and held via CVP. During the hearing HHJ Davies granted the father permission to make his application for contact.

Considering the decision of Re S - CA 1989, S91(14 )) [2023] EWHC 1161 (Fam)  Henke J considered that listing to be a procedural error, however, the mother did not seek permission to appeal that order. 

At the hearing on 22 May 2024, neither party was represented. The mother opposed the father having unsupervised contact with the children and challenged the report confirming the father’s attendance at the CDAP programme; she was not convinced that he had gained insight into his behaviours and their impact on her. The father submitted that he had changed. Hearing submissions from both parties, HHJ Davies ordered the ISW to carry out a Section 7 report on the issue of unsupervised contact. Unsupervised contact would commence if the ISW’s assessment was positive. The order also provided for the parties to file and serve statements setting out their view of the ISW report. 

The mother appealed against that decision. 

The issues before the court were:

  1. Whether the father had undergone real and substantive change and no longer posed a risk of harm to the Appellant or the children;
  2. Whether the Judge was wrong not to take into account the father’s historic manipulation of professionals, including the ISW who should have been safeguarded against possible manipulation or alignment;
  3. Was the judge wrong to make an interim contact order without seeking the children’s views, or alternatively, was it procedurally irregular to hear the case without a guardian;
  4. Was the Judge wrong to find that the children’s views could be adequately represented in a s.7 report;
  5. Did the judge fail to consider the history of the case and if so, was this a serious procedural error;
  6. Was the Judge wrong to allow the progression of contact when the criteria in the final order had not been complied with and no investigation had been conducted into whether the father had undergone real change;
  7. Whether the judge was wrong to delegate her responsibility as the main decision maker to the ISW;
  8. Whether the Judge was wrong to direct a s.7 report without establishing background facts from the ISW;
  9. Was it procedurally irregular and/or wrong for HHJ Davies to determine that a s.7 report should be ordered and determine the issues at an interim hearing without first giving both parties the opportunity to make full submissions. 

Allowing the appeal, Mrs. Justice Henke took into account HHJ Davies' knowledge of the case and the busyness of the court. However, HHJ Henke found that the lower court fell into serious procedural error and made a decision that was wrong for the following reasons:

  1. The case was highly contentious and moving from supervised to unsupervised contact was a significant and substantive step that required consideration of the welfare checklist through the prism of Practice Direction 12J. The evidence of future risk of harm was in dispute and significantly challenged by the mother, this necessited a hearing in which the challenged evidence could be tested through cross-examination of the father and potentially the CDAP reporter and psychotherapist. The order of 22 May 2024 did not provide an effective mechanism for challenge which was unfair. 
  2. The learned judge failed to give any proper regard to §35-37 of PD12J as to whether the order of contact would expose the child to an unmanageable risk of harm;
  3. HHJ Davies wrongly delegated her judicial function to the ISW such that contact was to progress from supervised to unsupervised contact upon the receipt of a positive assessment by the ISW, when the decision should have been made by the judge herself after a hearing which permitted effective challenge of the father’s evidence of change and considered the welfare checklist and PD12J as set out above;
  4. The ISW did not have a copy of the case papers, including the mother’s challenge to the evidence of change, and her role was limited to supervising contact. Therefore, she would not have had the material necessary to make an informed decision about whether or not it was in the children’s best interests to progress contact or decide if it was safe.

Accordingly, the HHJ Davies order of 22 May 2024 was set aside, and remitted to the lower court before another judge. The children were joined as a party to the proceedings and a rule 16.4 Guardian was appointed to represent the children. A reporting restrictions order was made along with no order for costs. 

Case note written by Vistra Greenaway-Harvey

Re T & O (Appeal: Fair Hearings: Delegation of Judicial Functions) [2024] EWHC 2236 (Fam)

Mark Chaloner has also prepared an article on Re T & O (Appeal: Fair Hearings: Delegation of Judicial Functions) [2024] EWHC 2236 (Fam), for Family Law Week, available here.


7th Oct 2024

Samuel Davis

Call 2016

Samuel Davis

Vistra Greenaway-Harvey

Call 2021

Vistra Greenaway-Harvey

42BR's Civil Fraud Webinar Series 2024 - 2025

Register here for our Civil Fraud Webinars, taking place from October 2024 to February 2025. Read more >

Family Law Webinars - Autumn to Winter 2024

Introducing our latest Family Law Webinar Series, running from September to December 2024. Read more >

GET IN TOUCH

 

 

Social media:

    

Awards & Recognition











Developed by CodeShore.Ltd