Re M-A (A Child)  EWCA Civ 896
Court of Appeal, 25 April 2018, Hamblen and Peter Jackson LJJ
The British mother and the American father had a very brief relationship, as a result of which the child was born in 2014. In early 2015 the father moved to work in Canada. There had been almost continual disagreement between the parents about the child, involving two substantial sets of proceedings about the arrangements for him, plus applications by both parents for injunctions and enforcement, with parallel proceedings. The child was eventually diagnosed with autistic spectrum disorder.
In September 2015 the father had applied for parental responsibility, a change of surname and orders governing the time that the child spent with the father. In April 2016, after lengthy negotiations, a detailed consent order was approved. Under this order the child’s care alternated not only between the parents but also between countries; he was to spend 8 weeks at a time with the mother in England and initially 4, rising to 6, weeks at a time with the father in Canada. Although he had not yet been formally diagnosed, it was already recognised that he needed a professionally-led support package, which was to be the trigger for the child’s time with the father to increase to 6 weeks at a time. The judge also made a family assistance order.
These arrangements did not work. In January 2017 the Cafcass officer restored the matter, on the basis that she had found it impossible to work with the parties. Both parties gave evidence complaining about the other’s behaviour. The relationship between the mother and the paternal grandparents was difficult and the mother had made a hostile telephone call to them; she had also contacted the father’s employers and others and made social media postings calculated to cause difficulty for the father. The judge directed the mother to undergo a psychological assessment; this highlighted the mother’s poor regulation of her negative emotions concerning the father and recommended therapy. By the time of the hearing at the end of 2017, the mother had completed two courses of therapy. The guardian filed three reports; although she considered that both parents were at fault in the breakdown of their co-parenting relationship, her final advice was that the child should move to live with the father. The parents both agreed that they could no longer actively co-parent the child and that one of them should be predominately responsible for arranging his healthcare.
The judge was not persuaded that the mother had developed better insight into her behaviour and its consequences for the child as a result of therapy. He specifically found that she had not changed and that her behaviour towards the father amounted to a form of domestic abuse. In contrast, he found the father and grandparents to be impressive and straightforward witnesses. When considering the welfare checklist, the judge reflected on the domestic abuse that he considered the mother had perpetrated and the emotional harm of living in such an environment. He considered that both parents could meet the child’s needs, except for the mother’s inability to meet his emotional needs, which was the result
of her enormous difficulties in dealing with the disappointments of what she saw as a failed relationship. He concluded that, on all the evidence, the father was better able to meet the child’s welfare needs, and that the child should move to live with the father in Canada. At the guardian’s suggestion he also made a s 91(14) order, restricting this to a 6 month term (the guardian had proposed a 5 year term).
It was only when the judgment was handed down that the parties became aware that the judge had constituted himself as a Deputy High Court Judge for the case. The mother was granted permission to appeal to the Court of Appeal. She argued that the judge had been wrong to find that the mother had not changed and consequently that she was unable to meet the child’s emotional needs and that the judge had been wrong to state that the child had suffered harm and that the mother’s behaviour fell within the definition of domestic abuse.
The Court of Appeal dismissed the appeal, substituting for the original order an order in terms largely agreed by the parents, which, among other changes, removed the s 91(14) order.
Challenging the judge’s evaluation of a witness in relation to one of the key issues in the case was extremely difficult, because the conclusion was quintessentially based on the judge’s direct exposure to the individuals themselves. In the present case, a reader of the bare facts about matters such as the mother’s phone call to the grandparents, her social media activity, her contacting the father’s employer and her response to the diagnosis, could not know whether they were isolated aberrations or whether they represented a more deep-seated ongoing problem. Likewise, a reader of the mother’s statements could not know whether therapy had brought about genuine change or merely outward compliance. The whole purpose of the trial was to establish which of these different possibilities was more likely. That was done by means of the guardian’s investigation and by the testing of the evidence in court. The difficulty for the mother in challenging the judge’s assessment was only multiplied by the fact that the guardian saw matters in the same way as the judge. The finding that the mother had not changed sufficiently to meet the child’s emotional needs was one that had clearly been open to the judge.
In a case in which the guardian had assessed both parents as bearing responsibility for the state of their relationship, there was some substance to the mother’s complaints that the judge had failed to critique behaviour by the father that had contributed to the family’s problems. A more nuanced overall assessment might have made explicit reference to balancing factors in relation to the mother’s strengths and the father’s shortcomings. However, this failing did not come close to upsetting the judge’s overall determination. The judge’s finding that the child had already suffered harm as a result of the parental conflict had been one that was open to him; there was certainly a risk of harm for the future. He had also had ample evidence that the father offered the prospect of a more stable future for the child than the mother. Moreover, although it was not a feature of the decision, the existing transatlantic schedule could obviously not survive the time when the child started at school. He was a child who needed a stable home environment and a directing hand in relation to his treatment.
The court also understood the complaint made in relation to the deployment of PD12J and the concept of domestic abuse. The issue had not been raised in this form by the parties at any stage in the lengthy litigation, but had been introduced by the judge himself in questions. The judge had not been wrong to note that the definition of domestic abuse in paragraph 3 of the Practice Direction included coercive behaviour, defined as including a pattern of abuse used to harm, punish or frighten the victim. This could clearly include malicious social media campaigns and attempts to cause damage by contacting employers. However, it was questionable whether this analysis added anything of any significance in the present case, where the focus was not so much on the impact of the mother’s behaviour on the father but on the consequences for the child. Equally, the judge’s overall conclusions did not depend upon it to any great degree and there was no question of the mother’s time with the child being curtailed as a result: on the contrary, the court’s objective was that he should spend as much time as possible with the mother, consistent with the main decision about where he was to live.
In relation to the judge’s decision to sit as a Deputy High Court judge, there was no indication that the judge had followed the guidance given by the President in December 2016: “Allocation of Work to Section 9 Judges”, referred to in similar circumstances in Re M (A Child)  EWCA Civ 2356. Paragraph 6 of that guidance read: “If at any time a judge who is conducting proceedings considers they should be reallocated to High Court level for hearing by a High Court judge or a section 9 judge, the judge shall, before reallocating the case, discuss the matter with the DFJ, who shall, if necessary, consult the FDLJ.” Further, a judge who was considering the possibility of reallocating a case to High Court level should also, in the normal way of things, inform the parties of this possibility before reaching a decision about it. This would allow the parties to express their views about the appropriateness of the reallocation and its consequences, including for the destination of any appeal.