F-K (A Child), Re

In children’s proceedings, earlier findings of fact do not attract a strict issue estoppel. A judge may reopen them where unusual circumstances make reconsideration necessary, but must take particular care before reaching a contrary conclusion, especially where the new evidence adds little to the earlier material.

A judge may reject expert evidence, but only for reasons supported by the evidence. Personal assessment cannot replace sound expert analysis. In a complex case, factual findings do not necessarily exclude a psychiatric diagnosis. The child’s welfare remains paramount. Direct contact must be weighed against its possible emotional effects on the resident parent and child. Where further evidence is required, the issue should be remitted for a fresh welfare decision.

This was a long-running private law dispute concerning a ten-year-old child’s contact with her father. Earlier proceedings had resulted in findings that the father had used serious domestic violence and that the mother suffered from post-traumatic stress disorder. The Court of Appeal had subsequently allowed the father’s appeal and directed renewed contact on the basis that treatment for the mother should commence.

After contact again broke down, Judge Masterman reopened the earlier factual findings, rejected the allegations of violence and the diagnosis of PTSD, and ordered contact every third Saturday. The mother appealed. The principal issues were whether the earlier findings could properly be reopened, whether the judge’s fact-finding and rejection of psychiatric evidence were sound, how the effect of contact on the mother and child should be assessed, and whether the trial procedure was unfair.

Appeal allowed unanimously. Permission was granted on grounds 1 to 5 and refused on ground 6. The order of 10 December 2004 and the findings concerning the father’s violence and the mother’s PTSD were set aside. The contact application was remitted to a High Court judge of the Family Division.

1. Reopening earlier findings. There was no strict rule of issue estoppel in children’s proceedings. Judge Masterman was not plainly wrong to reopen Judge Case’s findings because they had been made without oral evidence from the mother, had been challenged on appeal, and were central to the later psychiatric evidence. The decision remained a discretionary one.
2. Fact-finding. Having reopened the issue, the judge was required to exercise particular care before departing from the earlier findings. Since the mother’s evidence had left him little further forward than Judge Case, he should at least have examined the earlier reasoning as a cross-check. His treatment of contemporaneous medical records, the mother’s affidavit, the father’s history and statements, and the baseball-bat incident was inadequate. The resulting findings could not stand.
3. Expert evidence. A judge may reject expert evidence, but must give reasons supported by evidence. A judge cannot substitute personal views for expert analysis. The rejection of Dr Gallwey’s diagnosis rested on flawed factual findings and failed to address the unanimous psychiatric evidence. The approach in Re B (Care: Expert Witness) [1996] 1 FLR 667 and Re B (Split Hearing) [2000] 1 FLR 334 was applied.
4. Future contact. H’s welfare was paramount. Direct contact was, in principle, beneficial and H was not at risk from her father. The court nevertheless had to assess whether contact could be achieved without further psychological damage to the mother and consequential harm to H. Further oral evidence was required. The matter was therefore at large before the High Court, which could order, terminate or restrict direct contact as the child’s welfare required. The case was to remain with Hedley J, with judicial continuity maintained. The importance of the proper approach in Re L, V, M and H [2001] Fam 260 was also emphasised.
5. Ground 6. Preparing a written judgment before supplementary oral submissions did not breach Article 6. The judge heard oral submissions and amended the judgment before handing it down.

• Court of Appeal (Civil Division). The appeal was allowed. The order and factual findings were set aside, and the father’s contact application was remitted to a High Court judge of the Family Division.
• High Court, Cardiff District Registry, Judge Masterman. On 10 December 2004, the judge rejected the earlier findings of domestic violence and PTSD and ordered renewed contact.
• Court of Appeal. On 21 May 2002, the father’s appeal from Judge Case’s order was allowed. Monthly contact was directed to resume after the mother began psychotherapeutic treatment.
• High Court, Judge Case. On 5 February 2002, the father’s residence application was refused and direct contact was suspended for 18 months, with indirect contact continuing.