On 1st December 2021 Mrs Justice Judd granted an appeal from a mother against a Child Arrangements Order (CAO) made in April 2021 by a Recorder that a child (now 2 years old) would live with his father 6 nights per fortnight and his mother 8 nights per fortnight. The case was recently reported on BAILII as HKS v HSM  EWHC 3423 (Fam) (17 December 2021) and this article analyses the Judgment.
The task for an appeal court was summarised by Judd J as being ‘to determine whether the Judgment is sustainable’. She referred to the classic authority for this [Piglowska v Piglowski  1 WLR 1360] but also gave a couple of delightful phrases from Lewison LJ in Fage UK Ltd & Anor v Chobani UK Ltd & Anor  EWCA Civ 5 as further justification for always treating the first instance judgment with kid gloves:
“The trial is not a dress rehearsal. It is the first and last night of the show.”
“In making his decisions the trial judge will have regard to the whole of the sea of evidence presented to him, whereas an appellate court will only be island hopping.”
Despite cautioning herself thus, Judd J went on to overturn the Recorder’s determination.
The CAO had been made at a final Welfare hearing which took place subsequent to a Finding of Fact hearing before the same Recorder. There had been 15 cross-allegations between the parents, of which the Recorder only found three to be proven, two against the father and one against the mother. The only relevant one for this appeal was the mother’s proven allegation that the father had subjected the mother to coercive and controlling behaviour through covert audio surveillance in the family home over a period of 4 months in 2019. In total the father had obtained 681 hours of recordings of which the mother had no knowledge whatsoever. The father had relied on these recordings when making an allegation of assault against the mother to the Police, such that the mother was arrested, handcuffed, detained and questioned. The Police did not subsequently take the matter any further and nor was that particular allegation of the father proved within the Fact Find.
At the end of the Fact Finding Hearing the Judge made it clear to the parties that he did not consider that any of the proven allegations impacted upon either party’s ability to care for the child. There was no appeal against the Fact Finding Judgment.
The Cafcass analysis post-Fact Find was that there was only a low risk of domestic abuse and the key risk (assessed as ‘medium’) was one of harmful conflict between the parents arising from their inability to compromise and continual cross allegations. The Cafcass recommendation on contact was for the father to have overnight contact each alternate weekend and some tea time contact mid-week.
At the Final Hearing the father aspired to shared care (6 nights per fortnight) whereas the mother wanted a stepped arrangement to alternate weekends with only one overnight per fortnight.
The Recorder criticised the mother’s inability to ‘move on’ within his judgment. He found her position to be entrenched and blinkered and not child-focused. In particular he found her concerns about the father’s behaviour in covertly recording her to be an example of the mother’s failure to move on.
The Recorder’s response to the family dynamic was to favour the father’s position and to make a Shared Care Order (6 nights with the father and 8 nights with the mother), saying that the father-child bond could only improve if father and child spent more time together and the parents had similar routines and boundaries.
Mrs Justice Judd found that the Recorder was wrong to have determined so soon (at the end of the Fact Find) that there was no ‘welfare impact’ arising from the covert recordings. This was a substantial and sustained invasion of the mother’s privacy and it was reasonable for her to have found the experience distressing and anxious-making. The Recorder did not scrutinise the father’s true motivation for covertly recording the mother after dismissing his asserted reasons [concern about the mother’s mental health and/or her plotting to alienate the child]. The mother argued that the father had been, and remained, on a deliberate fishing exercise with the aim of gathering evidence to justify proceedings to remove the child from her care, but the Recorder gave her position no attention at all. He omitted to make any finding as to the motivation of the father in recording the mother.
Interestingly, the submission made on behalf of the father that because the mother had agreed to unsupervised contact the matter of the covert recordings was no longer relevant was not accepted by the High Court. Judd J wisely states:
“There is a difference in the dynamic between parents of a small child having a main base with one parent and staying with or visiting the other on the one hand, and almost equal shared care on the other. If the mother was right as to the father’s motivation in carrying out the covert surveillance and reporting her to the police, then it could have a bearing on whether it would be right to place the child in the middle of a more or less equal shared care arrangement.”
The conclusion the Appeal Court came to was that the first instance judge had prematurely excluded material and relevant evidence (about the impact on the mother of the extensive covert recordings) from consideration at the welfare stage. The mother’s appeal was therefore allowed and the matter remitted for welfare hearing before a different judge.
This is an interesting case because there was no appeal against the Fact Find, despite the mother not being able to prove seven out of her nine allegations against the father. Instead, the appeal focused on the one significant finding which had been made out, but was then specifically excluded by the Judge from being brought to bear at the welfare stage. For the moment at least, the Recorder’s apparent attempt to effectively ‘force’ these parties to work together in a shared care arrangement against the clear advice of the Cafcass Officer has been thwarted.