Re A and B (Minors) (No 2) (Evidence and Procedure)
| Jurisdiction | England & Wales |
| Judgment Date | 1995 |
| Year | 1995 |
| Date | 1995 |
| Court | Family Division |
WALL, J
Child case – proactive duty of court to ensure avoidance of delay – importance of directions appointments – need for tightly drawn directions – private law proceedings and concurrent but independent investigation by local authority into allegations of abuse – court to act as principal co-ordinating agency – power of court to order discovery of documents against persons not parties to the proceedings.
Welfare report – adjournment of proceedings pending report – fixing of date for final hearing should not be deferred until report obtained – date for final hearing to be fixed at time of adjournment.
Welfare report – private law proceedings – allegation of child abuse – concurrent but independent investigation by local authority – court in the private law proceedings able to require local authority to report on the nature, progress and outcome of their investigation by asking for report under s 7 of the Children Act 1989.
In April 1992 the mother commenced divorce proceedings. She alleged that the father had sexually abused the elder girl. This resulted in investigations by the police, the local authority, and a child abuse team at Great Ormond Street Hospital. This investigation began in June 1992 and continued until May 1993. See Re A and B (Minors) (No 1) (Investigation of Alleged Abuse) p 389 ante.
On 15 May 1992 the father issued an application in a county court for contact with the children. By 8 July 1992 no action had been taken by the court in relation to the father's application. At a directions appointment on 10 July 1992 a district judge made an order, in terms agreed between the parents, that the father should have reasonable contact subject to the approval of the local authority involved with the children. Notwithstanding the agreed order, the mother did not allow contact. Consequently, the father sought to have the matter returned to court. But, on 27 July 1992, in the absence of the parties, a district judge directed that a welfare report be prepared on the question of contact and that the father's application be adjourned generally with leave to apply. On 3 August that direction was amended so as to require the welfare report to be filed by 17 October 1992.
On 23 September 1992 the father's solicitor again sought to obtain a proper order for directions from the court. An officer of the court responded by letter intimating that a hearing should await receipt of the welfare report which was due to be filed in October 1992. However, the mother had moved to another area with the children and the matter was allocated to a welfare officer in that area on 9 October 1992. That welfare officer was hampered in the preparation of a report because of the assessment of the elder girl which was taking place at Great Ormond Street Hospital.
On 5 October 1992 the chief clerk at the county court wrote to the father's solicitor that there would be no further directions until the welfare report was obtained. As a result of the delay the father appealed out of time against the orders of the district judge. The father sought an early hearing for interim contact. Although he dismissed the appeal on 28 October 1992 the Judge made directions to the effect that evidence be filed and the matter be set down for hearing on 14 December 1992. However, that hearing did not take place because there was no welfare report and because Ms Tranter, the psychiatric social worker at Great Ormond Street Hospital responsible for the assessment of the elder girl, had stated in letters that she did not think it was in the child's best interests to have contact with the father at that time. As a result the father felt he could not pursue his application for interim contact. The matter was relisted before the Judge on 10 March 1993. The welfare report had been filed. It was neutral and recounted the difficulties the welfare officer had encountered because of the assessment at Great Ormond Street Hospital. Ms Tranter's interim report stated that as a result of her interview of the child it could be said that there had been inappropriate sexualized touching of the child's vaginal area by the father. At that stage there was no expert evidence to counter Ms Tranter's opinion. As a result the matter was again adjourned and a four day hearing fixed to commence on 14 June. The Judge appointed the Official Solicitor to act as guardian ad litem for both children and gave leave to experts to be instructed to assess the children. On 14 June 1993 it was apparent that such was the disagreement between the experts and so complicated was the underlying factual substratum that the four days set aside were wholly inadequate. The Judge therefore transferred the matter to the High Court with a time estimate of 10 days. The transfer to the High Court at this late stage resulted in a very substantial further delay before the present hearing began on 14 March 1994.
Held – (1) By s 1(2) of the Children Act 1989 it was provided that the court should have regard to the general principle that any delay in determining any question relating to the upbringing of a child was likely to prejudice the welfare of the child. The court now had a proactive duty to ensure that that principle was not contravened. The court was required to draw up a timetable with a view to determining without delay any question with respect to the making of a section 8 order and to give directions to ensure that the timetable was adhered to. Section 32 of the Act contained provisions which were in pari materia in relation to public law proceedings under Part IV of the Act. Both sections contained provisions enabling Rules to be made containing provisions to ensure that the proceedings were determined without delay: see rr 4.14 and 4.15 of the Family Proceedings Rules 1991 and rr 14 and 15 of the Family Proceedings Courts (Children Act 1989) Rules 1991.
(2) In this case the father's application for contact was issued on 15 May 1992. He was unable to obtain even an interim hearing until 14 December 1992 following an appeal to the Judge from the refusal of a district judge to list his application for interim contact. It was shocking that the father should have been reduced to appealing out of time so as to obtain a result which could and should have been achieved very much earlier. Further, the matter was not finally heard and decided until 12 April 1994. Such a delay was wholly unacceptable. Directions appointments must be regarded as of critical importance. Although traditionally dealt with by district judges they should be dealt with by a Judge and preferably by the Judge who was to try the case. The lack of planning in this case had resulted in directions as to essential expert evidence not being given for nearly 10 months after the father had commenced his application for contact. Further, where, as in this case, there were private law proceedings and sexual abuse was alleged and a local authority was involved in a concurrent but independent investigation it was essential that the court acted as the principal co-ordinating agency. There should be tightly drawn orders for directions, an effective use of s 7 of the 1989 Act (welfare reports and reports from the local authority), and efficient use of the court structure to ensure both the appropriate level and
earliest possible hearing date for the trial.
(3) The agreed order of 10 July 1992 whereby a contact order was granted in favour of the father subject to the approval of the local authority was defective. The role of the local authority was unclear. The order was loosely expressed and entirely unfocused.
(4) The orders made in the absence of the parties on 27 July and 3 August 1992, by which a welfare report was ordered on the question of contact to be filed by 17 October and the father's application was adjourned generally with leave to restore, were unsatisfactory in the context of the court's duty to be proactive in giving tight directions and setting a timetable. The court should have convened an inter partes directions appointment, directed an urgent report from the local authority under s 7 of the 1989 Act, required that report to be filed within a specified timetable (possibly 14 days), directed the mother to file her statement within a similar time-scale setting out her case on contact and the alleged sexual abuse, and fixed a further directions appointment for consideration of the section 7 report.
(5) Where a court ordered a welfare report it was bad practice to direct that the matter only be set down for hearing once the welfare report was obtained. The court should ascertain from the court welfare officer's department how long was required to produce a report and a date should then be fixed accordingly. The welfare officer often found it useful to consider the evidence in the course of his or her inquiries. Therefore, where a case was clearly going to be contested, the welfare report should be ordered in the context of the overall directions for the filing of evidence and a fixed date for final determination.
(6) Although as a matter of strict law discovery of documents could not be ordered against persons who were not parties to the proceedings, the court had jurisdiction to compel such discovery. In practice it was unlikely that the power would need to be used save in the technical sense that a police authority (i) was unlikely to feel able to release material obtained in the course of an investigation without an order of the court; and (ii) would also require undertakings from the parties that the confidentiality of the material would be respected and that it would be used only for the purposes of private law proceedings. Provided these two conditions were met, there was no reason why orders should not be made in family law proceedings for the discovery of material in the hands of local authorities and police authorities. If issues of public interest immunity of confidentiality arose it would be open to the...
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