S (A Child)

In child-contact proceedings, the practical significance of refusing contact must be assessed realistically. A decision described as temporary may in substance exclude contact for a very long period. Where a judge rejects central expert recommendations without hearing the expert or allowing a response to the criticisms, the appeal may be allowed and the matter remitted for rehearing. Joint instruction does not prevent either party from cross-examining the expert where proper grounds exist. Delay harms the child and may prejudice a parent deprived of contact, so the rehearing should be fixed at the earliest practicable date.

The father applied in Southend County Court for contact with O, born on 16 December 2001. Following a fact-finding hearing, the judge was unable to find proved an alleged incident involving the mother, although he found that the allegation had not been made maliciously. A CAFCASS report and a jointly instructed report from Dr Butler followed. Dr Butler recommended that contact be re-established, but a later CAFCASS report was less supportive. On 14 November 2006 HHJ Yelton dismissed the application after rejecting Dr Butler’s recommendation without hearing her evidence. The father appealed. The central issues were the fairness and practical significance of that decision and whether a rehearing was required.

1. Disposition. Munby J gave the principal judgment. Thorpe LJ and Lawrence Collins LJ agreed. The appeal was allowed and the matter was remitted for rehearing before a different judge.
2. Expert evidence. The judge had rejected Dr Butler’s recommendations and criticised her assessment of the practicalities without hearing her oral evidence or giving her an opportunity to respond to the criticisms. Given the fundamental and long-term importance of the contact decision, there was considerable substance in the complaint that the matter had been decided in those circumstances. Dr Butler was therefore to attend the rehearing and give evidence.
3. Practical significance. The judge’s description of the decision as not permanently closing the door did not reflect its likely effect. In context, the refusal would exclude contact for a very long period. The court was required to recognise that practical reality.
4. Jointly instructed experts. Family proceedings are essentially inquisitorial, but a jointly instructed expert may properly be cross-examined by either party where proper grounds for questioning exist. Joint instruction does not create an inhibition against adversarial questions.
5. Delay and directions. Delay was inimical to the child’s interests and prejudicial to the father, who had had almost no contact for nearly three years. The rehearing was to be fixed as soon as possible, with the assistance of the Family Division Liaison Judge. The benefit of the earliest fixed hearing date could outweigh the inconvenience of travelling to another venue.

• Court of Appeal (Civil Division): Appeal allowed. The matter was remitted for rehearing before a fresh judge, with Dr Butler to give evidence.
• Southend County Court: On 14 November 2006, HHJ Yelton dismissed the father’s application for contact.