W (Children), Re

In child-contact proceedings, a factual finding made in earlier child proceedings may be relied upon, but there is no strict issue estoppel. The court retains discretion whether to rehear the issue. Repeated unsuccessful challenges may justify treating the finding as standing. Permission to appeal should be refused where no arguable ground has a real prospect of success. A trial judge may evaluate CAFCASS evidence in the round, assess the witnesses and give substantial weight to children’s wishes and feelings. Discrepancies in peripheral evidence, or the omission of individual matters from a judgment, do not require appellate intervention where the judge considered the evidence overall and was entitled to reach the decision made.

The father sought contact with his 15-year-old twins, who lived with their mother. Portsmouth County Court, HHJ Sullivan QC, refused a contact order on 2 May 2012, principally because the children did not wish to see their father and contact was not considered to be in their best interests.

The father challenged earlier findings made in care proceedings, the reliability of the CAFCASS evidence, the judge’s treatment of communications with the children’s schools, the conduct of the judgment-hand-down process and alleged bias. The central questions were whether any of those matters disclosed an arguable ground with a real prospect of success and whether the earlier findings could properly be relied upon.

Lady Justice Black delivered the judgment. Lord Justice Tomlinson and Mrs Justice Baron agreed.

1. Disposition. The application for permission to appeal was refused. HHJ Sullivan had been entitled to refuse contact in the exercise of her discretion, and no proposed ground had a real prospect of success.
2. Earlier factual findings. The father correctly identified Re B (Children Act Proceedings) (Issue Estoppel) [1997] 1 FLR 285 as the leading authority. In child proceedings there is no strict rule of issue estoppel. The court has discretion whether an issue of fact should be tried afresh, including consideration of whether there was good reason for a retrial and whether a rehearing might produce a different result. Here the earlier findings had been repeatedly considered and unsuccessfully challenged. They therefore stood and properly formed part of the background. Any judge considering contact would inevitably have to proceed cautiously, including in relation to risk assessment.
3. Evidence and discretion. The differences between the CAFCASS report and information later supplied by the children’s colleges had been raised before HHJ Sullivan. She had heard the CAFCASS officer cross-examined, assessed her credibility and considered the material in the round. The school material was relatively small in the overall picture. The children’s own views were more significant, and the judge was entitled not to treat an undated letter from M as pivotal. A judgment need not address every piece of evidence or argument.
4. Disclosure. The court considered it questionable whether the father’s disclosure of parts of the CAFCASS report to the schools was authorised by rule 12.75(1)(c) of the Family Procedure Rules 2010. Local Authority v D (Chief Constable of Thames Valley Intervening) [2006] 2 FLR 1053 was mentioned as a possible authority on the distinction between information and documents. The Court did not decide the point because it was peripheral and could not justify the contact decision being set aside.
5. The hand-down process was not an opportunity to reargue the case, and the allegation of bias disclosed no arguable substance. The order below was accordingly left undisturbed.

1. Court of Appeal (Civil Division): on 28 November 2012, refused permission to appeal against the refusal of contact.
2. Portsmouth County Court: HHJ Sullivan QC refused the father’s application for a contact order on 2 May 2012.