D v D (Procedural Irregularity)
| Jurisdiction | England & Wales |
| Judgment Date | 1989 |
| Date | 1989 |
| Court | Court of Appeal (Civil Division) |
PURCHAS, LJ AND SIR DENYS BUCKLEY
Procedure – irregularity – application by father for access to children – welfare report requested – Judge reading report and indicating view that father should not have access – subsequently holding a full trial – whether irregularity vitiated decision.
The parties were married in 1979. They were divorced in 1988. There were five children of the family. The eldest was 18 and the others were all under 18. After the parties separated the mother and children moved to another area. The father applied for access. A welfare report was prepared and lodged at the county court. Following the usual practice at that court, the report was given to a Judge who endorsed it to the effect that custody of the four younger children was to be given to the mother with no access to the father, and no order was to be made in respect of the eldest child. As a result of that endorsement a document was sent to the parties stating that, having read the report, the Judge proposed to give custody of the four younger children to the mother with no access to the father and to make no order in respect of the eldest child. The document went on to invite the parties to notify the court whether they agreed with this proposal or required a hearing. The father required a hearing. Counsel for the father was of opinion that the practice at the county court was a serious irregularity. However, he took the view that it would be disadvantageous to the father to raise the irregularity at the beginning and to ask for an adjournment for a trial before a different Judge. Further, at the end of the hearing, when it was clear that the Judge had not departed in any way from the order he proposed before the hearing, no objection was taken, and no application was made for a new trial or to set the order aside.
The Judge held a full hearing, The welfare officer had reported that the children did not appear interested in seeing the father. The welfare officer had also written to the children suggesting that they wrote to the father to tell him if they did not want to do so. The children responded by writing to the father. The welfare officer gave evidence confirming his view that the children were not interested in seeing the father. He also explained that it was unusual for a welfare officer to write to the children but that as the mother had not been able to persuade them to write to the father he had sought to encourage them to do so.
The Judge made an order giving custody of the four younger children to the mother and made no order as to access.
The father appealed.
Held – dismissing the appeal: The practice adopted at the county court was undesirable and should be discontinued. It was of the highest importance that a Judge before whom issues were
[1989] FCR 412 at 413
to come for determination should avoid any suggestion, before he had had an opportunity of hearing or reading the evidence involved, that he had reached a view as to the relief he was likely to give in determining the matter. Not only was it desirable that the court should avoid any such suggestion, but it was desirable that there should be no grounds for any of the parties concerned to think that the Judge may have arrived at even a preliminary view as to the order which he would ultimately make. In this case, the document sent to the parties disclosed on its face that the Judge had prejudged the matter and the party against whom the effect of the order would run could never be satisfied that justice had been done. However, there had been a full hearing before the Judge. He had heard evidence from the parties and the welfare officer at length and he had seen three of the children. Even if an application had been made for a trial before another Judge, and that application had been refused, it could not be said there had been a miscarriage of justice in the light of the detailed investigations and the evidence led before the Judge. His conclusion was inevitable in all the circumstances of the case. On all the evidence, including the views of the children expressed in their letters, the Judge had come to the conclusion that it would not be right to make an order for access and that to make an order which forced access would be detrimental to the welfare of the children. Therefore, although there had been a serious irregularity in the hearing, the Court of Appeal was not bound to order a new trial unless some substantial wrong or miscarriage was caused by the irregularity: see RSC Ord 59 r 11(2). In this case, there was no evidence of any kind to indicate that the careful investigation carried out by the Judge, taking into account all the evidence, including his seeing the children, and bearing in mind no application was made that he should not try the case, led to a miscarriage of justice.
AppealAppeal from His Honour Judge Hutton sitting at Gloucester county court.
Charles Geekie for the father.
Alicia Collinson for the mother.
LORD JUSTICE PURCHAS.This is an appeal by the father against an order made by His Honour Judge Hutton in the Gloucester county court on 4 February 1988. In that order the Judge refused an application made by the father for access to four of the five children of the family, resulting from his marriage to the mother.
The appeal has raised unusual and important points with which this court has been asked to deal.
The history, so far as it is relevant to the appeal and the issues raised, can be shortly stated. The parties were married on 12 November 1969. There were five children: "A", who was born on 13 February 1970, so is 18 years of age and with whom the court is not concerned. "M", born on 20 June 1972; "L", born on 30 November 1974; "V", born on 14 August 1979 and "L", born on 24 September 1985. The marriage came into difficulties in the mid-seventies.
Affidavit evidence in the file, with which we have not been concerned in detail, disclosed allegations, denials and counter-allegations. There was a petition in October 1975 which was dismissed in February of the following year, followed by another petition (the effective petition in this matter) filed by the father dated 18 Sepember 1985. Decree nisi was pronounced by His Honour Judge Hutton on 4 February 1988.
The father applied for custody of the children in February 1986. A report by the court welfare officer was ordered in March 1986, but the report was not presented
[1989] FCR 412 at 414
until August 1987 because for some reason, undisclosed, the documents required by Mr Swan, the court welfare officer, did not reach him until June 1987. I mention this to indicate nothing can be said against Mr Swan for any delay which occurred.
The parties separated in May 1985 when the mother left the matrimonial home in Aylesbury taking the children with her. After a short stay in a refuge she established a home for herself and the children in Elkstone, Gloucestershire. She did not tell the father where she had gone. It is not necessary to consider the reasons for that, but it was some time before the father discovered their...
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