Re J (A Child): When the past needs to be investigated

Lord Justice Munby
A summary of Re J (A Child) [2012] EWCA Civ 1231, in which a father successfully appealed against residence and contact orders.

The case concerned a boy 'J', who is 'about 9½ years old' and whose parents were never married. The parents separated in November 2003, when the mother left the family home taking J with her. In December 2003 the father applied for parental responsibility, residence and contact, and the litigation has continued almost unabated since then.

The history of the litigation is set out in the judgment of Lord Justice Munby, but essentially until 2008 the father was granted and enjoyed periods of contact, which were then disrupted by the mother after a few months. The 'high water mark' of the father's position was when in January 2008 a shared residence order was made by consent, with him having a generous division of care.

In October 2011 the mother issued an application seeking sole residence, supervised contact and no staying contact, and in November the court made an order suspending the order of January 2008, directing that in the interim J was to live with his mother. In April 2012 the father issued an application seeking a sole residence order in place of the suspended joint residence order.

The final hearing took place on 15 May 2012, before Mr Recorder Bryan sitting in the Southend County Court. He ordered that the previous residence and contact orders be discharged, that J reside with his mother and that there be a contact order in favour of the father under which J would, initially at least, spend considerably less time with him than under the January 2008 order.

The father appealed. He put forward three grounds of appeal, but the case was decided upon the first ground: that the Recorder failed to conduct the hearing fairly, in particular by restricting questioning of the mother.

Giving the leading judgment, Lord Justice Munby explained that in her application of October 2011 the mother was opposed to anything other than supervised contact. However, by the time of the hearing she was expressing herself as being "happy" with unsupervised contact. When counsel for the father had tried to question the mother about this change of stance, she was stopped by the Recorder, who told the mother not to answer and asked counsel whether she really wanted the witness "to rake over all her earlier concerns and worries". There then followed this exchange:
Counsel: "Your Honour the problem is ... that repeatedly what the mother does is she makes allegations that stops contact, she then comes to court and makes ... concessions in court that lead to a small step forward. The point I'm making is ... that if we are going to have a stable regime of contact... that is going to last I think we need to get to the bottom of what the problems are because otherwise the worry the father has is we go away from here, two months down the line all the same allegations, and we come back to court again and we're back to where we were, square one."

Recorder: "Well I think you will find that the court, at least this court, will want to move forward rather than to linger ... I have to approach the case as it is today, the witness has said, and I am sure your client would want to move forward from where it is today rather than, as it were, have a kneejerk reaction ... to kick it back to the [January 2008 order]."

Counsel: "But Your Honour the reality is ... that what she is proposing is that she dictates the way in which it moves forward. That she is saying it should move forward in this particular way only ... when we have never actually established why the previous arrangements were wrong ... But we're now in a situation where the mother is determining that there should be a vast reduction from that level of contact. I'm trying to get to the bottom of why she feels that that is necessary."

Recorder: "Well let me reassure you, you are not going to gain any mileage from this line of cross-examination and I am interested in looking forward and with that in mind do you have any further questions?"
Counsel for the father maintained that by restricting cross-examination of the mother the Recorder ensured that it would be impossible for him to carry out the task required of him and denied the father a fair hearing. Lord Justice Munby found that the father's appeal must be allowed on this ground alone. He stated (at paragraph 32):
"The point is really quite short and simple. Of course the Recorder was right in saying that one had to look to the future: after all, his task was to determine J's future living arrangements. And of course, in one sense, the Recorder was right to look at how matters stood on the day of the hearing: after all, things were as they were. But his error - and in my judgment he here fell into plain and obvious error - was in rejecting [counsel for the father's] entirely justified desire to explore the crucial question of why it was that things were as they were at the date of the hearing. The investigation - the cross-examination - that [counsel for the father] wished to undertake was not something she wished to pursue Micawber-like in the speculative hope, absent any reason to believe so, that something might turn up. On the contrary, and as she explained to the Recorder, there were at least two things she wished to explore, and which in my judgment cried out for investigation: first, why the mother's attitude had changed between October 2011 and March 2012; second, and even more important, why the arrangements agreed in January 2008 had not worked out and why the mother believed they needed to be changed."
In the circumstances he allowed the appeal and ordered a re-trial.

Lord Justice Lewison and Lord Justice Maurice Kay gave consenting judgments.