In Court
| DOI | 10.1177/026455058803500312 |
| Published date | 01 September 1988 |
| Date | 01 September 1988 |
| Subject Matter | Articles |
109
IN
COURT
Judges
and
Welfare
Officers
In
a
dispute
between
parents
over
custody
of
a
4V2
year
old
boy,
the
welfare
officers’
report
con-
cluded
that
the
mother
probably
had
a
greater
understanding
of
his
future
needs
and
recommended
she
should
be
given
custody.
The
judge
gave
custody
to
the
father.
The
mother
appealed
on
grounds
that
the
judge
had
not
given
reasons
for
differing
from
the
welfare
officers’
recommendation
and
had
not
per-
mitted
counsel
to
put
any
questions
to
the
officers
who
were
m
court.
The
Court
of
Appeal
upheld
the
appeal,
stating
that
it
was
doubtful
whether
a
judge,
however
experienc-
ed,
would
be
able
to
overrule
careful
assessment
of
the
parties
by
the
welfare
officers,
merely
by
obser-
ving
them
durmg
the
course
of
the
hearing.
The
deci-
sion
not
to
permit
the
parties
to
put
questions
to
the
welfare
officers
so
as
to
elucidate
other
points
prevented
them
from
exercising
an
important
right
m
the
adversanal
process.
Where
the
judge
was
mind-
ed
to
depart
from
the
recommendations,
s/he
ought
to
take
advantage
of
all
the
assistance
available
from
those
attending
the
hearing.
If
the
judge
made
an
order
differing
from
the
recommendation,
s/he
should
give
reasons
for
doing
so.
W
v
W 7he
Time,
June
14.
Arson
and
S.
1 (4)
In
R
v
WILCOCK
(Crim
LR
July
1988)
an
18
year
old
of
previously
good
character
was
sentenced
to
30
months
youth
custody
for
arson,
being
reckless
as
to
whether
damage
would
be
caused,
having
started
a
fire
negligently
at
his
work
place,
causing
over
£8
million
damage
and
nearly
leading
to
the
loss
of
life
of
a
fellow
employee.
There
was
no
suggestion
of
fire-raising
tendencies.
On
appeal,
the
Court
of
Appeal
held
whilst
it
was
unfortunate
that
the
judge
had
not
acknowledged
on
which
of
the
S. 1(4)
criteria
he
was
basing
the
custodial
sentence,
it
was
obvious
that
the
offence
was
’so
serious
that
a
non-custodial
sentence
could
not
be
justified’.
Though
the
seriousness
of
arson
lies
in
the
intent
with
which
it
is
committed,
the
amount
of
the
actual
damage
caused
was
relevant
to
be
bome
in
mind
when
deciding
sentence.
This
was
an
appropriate
term
for
a
case
of
very
serious
recklessness.
Immediate
imprisonment
Preferable
to
Suspension
What
principles
should
govern
the
imposition
of
suspended
terms
of
imprisonment
where
the
defen-
dant
has
spent
time
on
remand
m
custody?
In
R
v
McCABE
(Crim
LR
July
1988)
the
defendant
had
pleaded
guilty
to
burglary
and
theft,
and
had
been
ion
custody
for
four
months
before
being
sentenced
to
three
months’
imprisonment
suspended
for
two
years.
On
appeal
it
was
argued
on
his
behalf
that
he
would
have
been
better
off
receiving
an
immediate
term
of
that
length,
which
would
have
meant
his
iris-
tant
release
without
any
measure
hanging
over
him.
As
he
had
served
the
equivalent
of
a
six
month
sentence
(as
remission
was
then
calculated)
would
the
actual
sentence
have
been
correct
only
if
the
senten-
cing
judge
felt
that
nme
months
was
the
total
]ustittf
ed
term?
The
Court
of
Appeal
held
that
as
the
judge
had
ap-
parently
considered
three
months
was
the
appropriate
sentence,
the
proper
course
would
have
been
to
im-
pose
that
as
an
immediate
term;
otherwise
the
defen-
dant
was
freed
with
the
double
penalty
of
6
months
equivalent
term
served
and
the
prospective
term.
Given
that
to
substitute
immediate
custody
would
be
technically
a
more
severe measure,
and
thus
beyond
the
Court
of
Appeal’s
powers,
a
conditional
discharge
was
given
instead.
It
seems
that
a
judge
imposmg
a
suspended
term
on
a
remanded
prisoner
should
first
decide
the
length
of
sentence
on
the
basis
of
it
being
served
immediate-
ly,
then
deduct
the
amount
to
which
the
remand
penod
was
equivalent,
and
finally
suspend
whatever
remains
of
the
original
length.
David
Thomas
in
his
commentary
adds
a
reminder
that
under
Prison
Rules
a
sentence
cannot
be
reduc-
ed
by
remission
to
less
than
5
days,
so
that
if
a
defen-
dant
has
served
on
remand
a
period
equivalent
to
the
sentence
passed
only
if allowance
is
made
for
remis-
sion,
then
the
defendant
will
have
to
serve
five
days
of
the
sentence
before
being
released
Juvenile
Court
v
Divorce
Court
If
children
involved
in
divorce
proceedings
are
already
in
care
of
the
local
authority
under
Juvenile
Court
CBcI’P
Act
1969
orders,
what
powers
does
the
County
Court
have
to
make
orders
for
access
etc.
In
Re
W
(The
Guardian
23rd
July
1988)
the
father
of
children
so
placed
applied
to
the
County
Court
for
the
revocation
of
the
care
order
and
custody
of
the
children.
The
judge
ordered
that
the
father
should
have
access.
On
appeal
by
the
local
authority,
the
Court
of
Ap-
peal
held
that
the
County
Court
had
no
power
to
take
away
from
the
juvemle
court
authority
to
discharge
its
care
order,
or
to
give
directions
to
the
local
authority
or
make
an
order
granting
a
parent
access.
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