Marshall v Marshall

In child-contact proceedings, a court should not summarily dismiss an application where the written evidence is incomplete and material factual allegations remain untested. A psychological report based substantially on one parent’s account may record that parent’s state of mind, but cannot determine the truth of the underlying events or the contact issue. The court must obtain proper evidence, make appropriate enquiries and findings of fact, and ensure that the child’s welfare is fully considered. The scope and form of further investigation, including oral evidence, expert evidence and separate representation, remain matters for the trial judge’s discretion. Premature dismissal in these circumstances denies the applicant a proper hearing.

The father applied in Telford County Court for contact with his son. The application was opposed by the mother, who made allegations concerning the father’s past behaviour and relied on a jointly instructed psychological report diagnosing chronic post-traumatic stress disorder.

At a directions appointment, Her Honour Judge Hughes dismissed the application without hearing evidence from either party, without a CAFCASS report and without a statement from the father. She refused a further hearing and a fact-finding hearing. The father appealed, raising the premature dismissal of the contact application and the failure to investigate the factual basis of the mother’s allegations. The central issue was whether the application could properly be dismissed on the evidence then available.

1. Appeal allowed. The Court of Appeal, in the judgment of Lord Justice Wall agreed with by Lady Justice Smith and Lord Justice Thorpe, held that the county court judge’s decision was premature and plainly wrong. The order was set aside.
2. A case may sometimes be resolved on written evidence and submissions without oral evidence. That course is usually appropriate only where the written evidence is complete. Here, the father had not made a statement, the factual allegations had not been tested, and there was no CAFCASS report. He had therefore been denied a proper hearing.
3. The psychological report did not determine the truth of the mother’s account. It might accurately reflect her state of mind and the events during the marriage, but it might also have been based on an exaggerated or untrue account. The expert’s conclusions could not replace the court’s own assessment of the evidence, enquiries and factual findings.
4. Before deciding whether contact should be promoted, and whether it could occur without detriment to the mother’s parenting ability, the court needed a proper investigation sufficient to ensure that the child’s welfare was fully taken into account. The mother’s conduct concerning the CAFCASS officer, the child’s removal from nursery and home, and her stated intention that the child should regard her current partner as his father required explanation.
5. The scope and form of the further hearing were matters for the judge conducting the final hearing once the evidence had been properly formulated. The case was transferred to the Nottingham District Registry for an early directions appointment before HHJ Butler QC. The father was directed to file a statement within 14 days. The judge was invited to consider separate representation for the child and the need for further expert evidence. The appellant’s costs were subject to detailed assessment.

1. Court of Appeal (Civil Division) — In [2005] EWCA Civ 641, the appeal was allowed, the county court order was set aside, and directions were given for further proceedings.
2. Telford County Court — On 1 February 2005, Her Honour Judge Hughes dismissed the father’s application for contact and refused a further or fact-finding hearing.