R v Willesden Justices ex parte Brent London Borough
| Jurisdiction | England & Wales |
| Judgment Date | 27 July 1987 |
| Year | 1988 |
| Date | 1988 |
| Court | Queen's Bench Division |
SHELDON J
Care proceedings – solicitor for local authority wishing social worker in practical charge of the case to remain in court to give instructions – social worker to give evidence – parent's solicitor applies that social worker be excluded until called to give evidence – whether magistrates right to exclude social worker on basis of a general principle.
Procedure – magistrates' courts – care proceedings and "domestic proceedings" – guidelines as to correct procedure to be adopted in relation to the exclusion of witnesses or other persons entitled to be present.
Procedure – witnesses – no rule of law that witnesses must remain out of court until called – matter for discretion of court.
The local authority applied to a juvenile court for a care order. At the hearing the child was represented by a solicitor instructed by the guardian ad litem and the parent was present and represented by a solicitor. The local authority's case was conducted by a solicitor who arranged for the social worker in practical charge of the case to sit in court so as to give him such instructions as be might require from time to time. That social worker was also to give evidence in addition to the other witnesses for the local authority. At the commencement of the hearing the clerk of the court asked if anyone objected to the social worker remaining in court. The solicitor for the parent objected on the basis that the social worker's evidence and that of other local authority witnesses would be covering similar ground. As a result the court clerk advised the magistrates that the social worker should be excluded from the court and the magistrates so ruled. That ruling was not based upon any consideration of the facts of the particular case but was based upon a memorandum prepared by the clerk to the justices. That memorandum referred to concern as to the propriety of social workers being present in court throughout the proceedings when they were to be called to give evidence and continued with three general propositions: (i) that the court might order witnesses to leave the court if appropriate and consistent with the interests of justice; (ii) that the interests of justice normally required that witnesses did not remain in court before giving evidence; and (iii) that the exercise of the discretion to exclude witnesses was not precluded by the terms of s 47 of the Children and Young Persons Act 1933.
Section 47(2) of the 1933 Act provided (inter alia):
"... no person shall be present at any sitting of a juvenile court except (a) members and
[1989] FCR 2 at 3
officers of the court; (b) parties to the case, their solicitors and counsel, and witnesses and other persons directly concerned in that case; (c) bona fide representatives of newspapers or news agencies; (d) such other persons as the court may specially authorize to be present."
The local authority applied for judicial review.
Held – (1) The emphasis of s 47(2) of the Children and Young Persons Act 1933 was directed at limiting the numbers of those who might be present at any sitting of the juvenile court by identifying the categories of those who might attend. The subsection prohibited anyone not in one of the specified categories from being present but did not create some absolute right in anyone in those categories to be present throughout the sitting, regardless of any other consideration. The subsection was directory and not mandatory and was to be construed as directing that anyone in the specified categories was prima facie to be allowed to be present unless in the particular circumstances some good reason existed for their exclusion: see R v Southwark Juvenile Court, ex parte J [1973] 1 WLR 1300. There was nothing in the subsection which removed in this context the inherent jurisdiction of the magistrates to control their own courts: see R v Gravesham Juvenile Court, ex parte B (1983) 4 FLR 312 and R v Milton Keynes Justices, ex parte R [1979] 1 WLR 1062.
(2) A provision in almost identical terms to s 47(2)(b) of the 1933 Act (referring to parties, their advocates, witnesses and other persons directly concerned in the case) was contained in s 69(2)(b) of the Magistrates' Courts Act 1980 relating to domestic proceedings. But subs (6) of subs 69 of the 1980 Act specifically provided that nothing in the section should affect the discretion of a magistrates' court to exclude witnesses until called for examination. There was no corresponding provision in relation to s 47(2) of the 1933 Act. By ordinary construction, however, s 69(6) of the 1980 Act was to be read, not as creating a power to exclude witnesses, but as emphasizing that the existing power to do so was not excluded by any other provision of that section. Therefore, a magistrates' court's discretion in general terms and subject to any other statutory provision, to exclude potential witnesses and others from court, was the same whether the proceedings were care proceedings in the juvenile court or "domestic proceedings"under the 1980 Act. If there was no order that witnesses should withdraw, there was no justification for excluding the evidence of a witness who remained in court; even where a witness remained in court, the magistrates had a discretion to admit the evidence; but the discretion to exclude witnesses was subject to the important qualification that it did not apply to the parties or their expert witnesses: see Tomlinson v Tomlinson [1980] 1 WLR 322.
(3) Although the qualification of the discretion that parties and their expert witnesses should not be excluded should be observed in all but the most exceptional cases, it was not absolute and could give rise to problems as to who was to be treated as a party and to what extent the principle was to be applied to an expert witness who, in addition to his expert evidence, could give evidence in regard to some disputed matter of historical fact. The qualification was also subject to such statutory provisions as r 18 of the Magistrates' Courts (Children and Young Persons) Rules 1970 (see now r 23 of the Magistrates' Courts (Children and Young Persons) Rules 1988) giving power to hear evidence in the absence of the child or of the parent. In the present case the local authority were a party to the proceedings. They could only appear by some duly appointed representative, and were required by the Local Authority Social Services Act 1970 to appoint a director of social services for their social services functions. But, notwithstanding their inability physically to be present at court, the local authority remained the "party" in question and the social worker could not be regarded as a party. However, the social worker in practical charge of the local authority's case, with authority pro tanto to give instructions on their behalf or on behalf of the director of social services, had similar rights to those of a party and, in general, should be required to leave the court only in circumstances in which it would be proper to order a party to do so. This applied
[1989] FCR 2 at 4
whether or not the social worker was to give evidence. Therefore, the circumstances in which it would be proper to require such an individual to leave the court were likely to be rare.
(4) It followed that the magistrates had a discretion to order the social worker out of court, but that that discretion should have been exercised only after careful consideration of the facts of the particular case and not on the basis of some general principle. In this case, there had clearly been no proper exercise by the magistrates of their discretion. Accordingly, orders of certiorari to quash the magistrates' decision and of mandamus to oblige them to consider whether the social worker should remain in court would have been granted but, as the case in the juvenile court had now been concluded, such orders were no longer required.
(5) However, a formal declaration would be made giving guidelines as to the correct procedure to be followed by a juvenile court in care proceedings: (i) the primary purpose of s 47(2) of the 1933 Act was to limit the categories of persons permitted to be present; (ii) any person to whom such permission was extended prima facie had a right to be present throughout the hearing: see R v Southwark Juvenile Court, ex parte J [1973] 1 WLR 1300; (iii) the right referred to in (ii) was not absolute but was subject to the inherent jurisdiction of the magistrates to control their own courts; (iv) no person was under any obligation to leave the court except where an order was made excluding him, and no such order should be made unless application was made for his exclusion and the magistrates were satisfied it was a proper step to take; if a party was not represented and the magistrates thought a person should be excluded they should invite that party to make such an application: see Tomlinson v Tomlinson [1980] 1 WLR 322; (v) when required to exercise any such discretion the magistrates must take into account all the relevant facts and circumstances of the particular case and should bear in mind that only in the most exceptional cases was it likely to be necessary or proper to exclude (a) any party, or (b) a social worker or other person in practical charge of a case on behalf of a local authority, or (c) the legal representatives of any party, or (d) any expert witness: (vi) there was no general principle...
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