A and R (Children), Re, Court of Appeal - Family Division, September 13, 2018, [2018] EWHC 2771 (Fam)

Resolution Date:September 13, 2018
Issuing Organization:Family Division
Actores:A and R (Children), Re

This judgment was delivered in public but it is ordered that in any published version of the judgment no person other than the advocates or the solicitors instructing them and other persons named in this version of the judgment shall be identified by name or location and that in particular the anonymity of the children and members of their family must be strictly preserved.

Appeal case no: 2018/0103

Neutral citation no [2018] EWHC 2771 (Fam)



(On appeal from the Central Family Court

Miss Recorder Evans)

Royal Courts of Justice

Thursday, 13 September 2018



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B E T W E E N :



A MOTHER Appellant

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A FATHER Respondent

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JANET BAZLEY QC and SHARON SEGAL (instructed by Hughes Fowler Carruthers) appeared on behalf of the Appellant.

JAMES TURNER QC (instructed by Sears Tooth) appeared on behalf of the Respondent.

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J U D G M E N T[Note: this version of the judgment incorporates amendments made in response to counsel's request for clarification and amplification]


1. This is an appeal against findings made in a judgment delivered by Mr Recorder Evans on 11 June 2018 on cross-allegations of domestic abuse arising in proceedings for a child arrangements order under s.8 of the Children Act involving two boys: A, now aged seven and three-quarters; and R, now aged six.


2. The following summary of the background to the hearing is taken from a very lengthy chronology extending to fifty-two pages prepared on behalf of the appellant mother. Much of that document extends to the details of the disputes in correspondence and various interim applications to the court which it is unnecessary to recite in detail here. The salient details are as follows.

3. The boys' father is aged forty-three and the mother thirty-five. They were married in 2009. They are comfortably off financially and live in Central London. During the marriage, the care of the children was assisted by a series of nannies. It seems to be agreed that there were difficulties in their relationship from an early stage. The mother asserts that the difficulties were caused by the father's intolerant, critical and controlling behaviour. He, on the other hand, asserts that the mother was temperamental, difficult and controlling. The mother further asserts that the father demonstrated an obvious favouritism towards the older child, A, over the younger child, R, and sought to come between A and his mother. The father, on the other hand, denied those allegations and asserted he treated the children equally, but claimed that the mother has always been closer to R and is jealous of the father's relationship with A.

4. Each party also alleges that the other behaved in a way towards the children which, it is contended, was inappropriate. It is the mother's case that the father compared the shape and size of his penis with the boys' genitalia and allowed them to touch his penis while bathing. The father alleges that the mother allowed R to fondle her breasts and, on occasions, inserted her tongue into R's mouth while kissing him. Whether these allegations were true and, if so, whether there was any sexual aspect to the behaviour has been an issue in the proceedings.

5. By the end of 2015, the parties' relationship was in significant difficulties and they started sessions of couple therapy. In May 2016, they separated, with the father renting another house in Central London, leaving the mother and the children in the former family home. Despite the separation, however, the father continued to play an active role in the care of the children.

6. On 27 August 2016, while the parties were preparing to leave with the children to stay in the family's holiday home in Spain, an incident had occurred which, on the mother's case, culminated in an assault on her by the father. This incident featured in the schedule of findings sought by the mother at the hearing before the recorder. A further incident occurred in September 2016. In October 2016, while the family was again staying at the holiday home in Spain, another incident occurred when, on the mother's case, she was assaulted by the father. On this instance it was said that R was present and involved in the incident. This incident also featured as a specific item in the schedule of findings sought by the mother. Further incidents occurred during the following months.

7. In January 2017, the parties concluded the couple therapy and started mediation with a view to resolving issues between them following the apparent breakdown of their marriage. At that stage, by agreement between the parties, the children were spending considerable amounts of time with both parents, although various issues arose as to those arrangements. On 7 April 2017, the mother filed a divorce petition. There followed extensive correspondence between solicitors concerning the child arrangements, leading to an interim arrangement under which parenting time was divided between the parties in a way which provided that the children would spend four nights with their father in every fortnight and that, in addition, he would see them at other times. Difficulties continued to arise between the parents as to the frequency of the father's contact with the children and as to his behaviour during contact, in particular his alleged tendency to encourage the children to say they were unhappy with their mother. Notwithstanding these problems, it seemed that the parties were fairly close to resolving the child arrangements following the mediation which continued over a period of months and involved, apparently, over 100 hours of meetings and a cost in excess of £50,000. Given the very substantial resources devoted to mediation, it is to say the least regrettable that the parties were unable to resolve their difficulties.

8. On 3 July 2017, the father filed an application for a child arrangements order, seeking a slight extension of the interim regime so as to provide that the children would spend five nights a fortnight with him, including alternate weekends from Friday after school until Monday morning. In completing the application form, he ticked the box marked ``No'' in relation to concerns about a risk of harm. In response to the application, the mother's solicitors wrote on 4 July, complaining of the father's aggressive and bullying behaviour during the mediation process and asserting that the application to the court confirmed that he had always intended to subvert that process. They invited the father to agree their proposals as to child arrangements but warned that, if he was unable to agree, the mother would ask the court ``before any order is made to consider, as it must, the conduct of your client towards her and the children and her safeguarding concerns.'' They proceeded to specify a number of allegations of domestic violence and harm which they proposed to raise within the proceedings.

9. There followed extensive further correspondence concerning child arrangements. On 27 July, the father's solicitors wrote responding to the allegations, asserting that their client ``is not the bully in this relationship.'' On 17 August 2017, the mother's solicitors issued an application for child arrangements orders together with a Form C1A in which they set out allegations of harm which it was alleged the children had suffered, and also allegations of domestic abuse against the father. On 18 August, Cafcass sent a safeguarding letter in advance of the FHDRA which had been fixed for 23 August, stating that the author had not been able to speak to the father and, as a result, safeguarding checks were incomplete, but recording that, in the light of the information provided by the mother, the matter had been referred to the local authority.

10. The FHDRA on 23 August took place before the magistrates. Both parties were represented by leading counsel. On behalf of the mother it was asserted that a fact-finding hearing was necessary in relation to safeguarding concerns set out in her letter of 4 July. In response, it was asserted on behalf of the father that no separate fact-finding hearing was required, that the mother was pursuing a tactical course, and that any truly relevant allegations on either side could be investigated in a global hearing. It was submitted that the matter should be dealt with speedily by the appointment of an independent social worker. It seemed that no order was drawn up following this hearing, apparently because the parties were unable to agree the terms, although it was clearly decided that the mother's allegations should be set out in a Scott schedule limited to five allegations, and directions were given as to the filing of statements in relation to those allegations.

11. Meanwhile, the parties were continuing to argue through solicitors as to the details of contact arrangements, in particular as to summer holidays. One particular concern raised by the mother was that the father should be accompanied and supervised during his time with the children, including on holiday. Each party had employed nannies and, on 25 August, the mother wrote to the two nannies employed by the father asking them to sign a letter confirming that they understood that neither of the boys should spend any time with the father without one of them being present. One of the nannies signed the letter but the other did not...

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