Re B (Children) (Residence: interim care order)
| Jurisdiction | England & Wales |
| Judgment Date | 2002 |
| Date | 2002 |
| Year | 2002 |
| Court | Court of Appeal (Civil Division) |
Children – Private law and public law proceedings – Residence order – Interim care order – Judge refusing to grant interim care order by consent – Judge failing to follow expert opinion – Judge refusing to allow guardian to give evidence – Judge granting shared residence order to mother and father of children – Whether judge in error.
The father and his wife married in 1990. In 1995, the father commenced an affair with the mother by which they had two children, born in 1996 and 1999. The children lived with the mother although social services had been involved in the children’s lives from the outset. There was a history of private law proceedings between the father, his wife, and the children’s mother. Following incidents where the mother exhibited uncontrolled tempestuous outbursts and extreme behaviour, the children were placed on the local authority’s child protection register under the category of emotional abuse. A multi-disciplinary assessment report on the mother and two children stated that the local authority would need to initiate child protection procedures unless the adults in the family improved their behaviour. The situation within the triangle of adult relationships deteriorated and the father contacted the local authority after a taped telephone conversation with the mother in which she had expressed a threat to take her own and the children’s lives. The local authority applied to the family proceedings court for an emergency protection order; when this was refused, the authority sought an interim care order in respect of the two children on an application to the High Court made without notice to the mother. The district judge granted the interim care order but remitted the matter for hearing with notice to the mother. At an early stage in the hearing before the judge, he expressed the view that the matter was essentially a private law case without any well-founded public law dimension. On two occasions during the hearing, the parties came close to a consensus that the judge should be requested to grant an interim care order by consent, but the judge refused to endorse such a disposal and categorised the proceedings as contested cross-applications for a residence order. The judge had before him a written report from a senior child psychotherapist, and her oral evidence which was clearly to the effect that it was not safe to return the children to the mother whilst she was in such a state of disturbance. The judge declined to hear evidence from the children’s guardian and made a shared residence order in favour of both the
father and mother with a number of conditions attached to it. The local authority appealed against that decision on the grounds, inter alia, that the judge had erred: (i) in relation to procedure, as the court was not required to reach a final conclusion at an interim hearing; (ii) in rejecting the evidence of the senior child psychotherapist without giving any reasons for departing from it; and (iii) in refusing to allow the guardian to give oral evidence and in failing to refer to the guardian’s investigations and submissions in his judgment. The local authority’s contentions were supported by the father and the guardian.
Held – (1) A judge was entitled to take an independent line, particularly in the family jurisdiction and when considering issues of child protection and child welfare. However, as a generalisation, it was for the judge to support and encourage any communications between the parties that might have led to a consent order. There was a particular value in orders achieved by consent rather than those imposed by the court. In the instant case, it was unfortunate that the judge had twice frustrated the endeavour of the advocates to conclude proceedings by a consent order. Moreover, it had not been possible for the judge to conceive that there was no public law dimension in the case given the clear terms of the earlier multi-disciplinary assessment report which had warned of the need for intervention unless there was a significant change for the better in the adults’ behaviour. Furthermore, the judge’s rejection of the expert evidence could not be supported. The expert witness gave evidence as to the mother’s personality and present state of emotional and psychological disturbance, and was not contradicted by any other witness. The expert’s evidence had precluded the judge from refusing the interim care order.
(2) Although judges exercised a broad discretion in the conduct of proceedings, in the instant case the judge had fallen into plain error by refusing both applications from the guardian to enter the witness box. Given the facts and circumstances, an exercise of the discretion which led him to refuse the guardian the opportunity of giving evidence was plainly wrong. Furthermore, a judgment that made no reference to the court welfare officer was likely to be fundamentally flawed. The guardian had been represented by his advocate who had made clear submissions on his behalf. The judge ought at least to have recorded those submissions in his judgment and explained his reasons for rejecting them.
Accordingly, the appeal would be allowed.
Cases referred to in judgmentsB (a minor) (rejection of expert evidence), Re[1996] 3 FCR 272, [1996] 1 FLR 667, CA.
M v Hampshire CC[1993] 1 FCR 23, [1993] Fam 158, [1993] 1 All ER 944, [1993] 2 WLR 216, [1993] 1 FLR 559.
W (a minor) (care proceedings: interim orders), Re[1994] 3 FCR 102, [1994] 2 FLR 892, CA.
AppealThe local authority appealed against the decision of Nicholas Mostyn QC whereby he refused an interim care order in relation to three children. The facts are set out in the judgment of Thorpe LJ.
Richard Clough for the local authority.
Howard Shaw for the father.
Elpha LeCointe for the guardian ad litem.
Christopher Rice for the mother.
THORPE LJ.[1] This appeal focuses on the interface between private law and public law proceedings concerning two young children, who are respectively almost six years of age and three years of age. They are both boys. As the judge in the Family Division, Mr Nicholas Mostyn QC, emphasised in his judgment, there is a triangular relationship between the father, the mother and the father’s wife. The adults are respectively the father, about 48 years of age, and both the mother and father’s wife, about 42 years of age.
[2] The father and his wife commenced cohabitation in 1986 and married in 1990. In 1995, at a time when their marriage was in difficulties and perhaps they were even separated, the father placed an advertisement in a magazine which led to an introduction to the mother and the commencement of an affair which has had its vicissitudes, but which has undoubtedly involved an interrelationship between the adults that they have found extremely difficult to manage and one from which they have found it very difficult to extricate themselves.
[3] One of the sad aspects of the case is that the father and his wife have been unable to have children. So the father’s only children have been the product of his affair with the mother, resulting in the birth of O on 8 August 1996 and the birth of W on 8 January 1999.
[4] There has been some social work involvement in the mother’s life and in the lives of the children almost from the outset. Equally from an early stage there has been a heavy involvement with the family justice system. Glancing down the chronology submitted helpfully by Mr Shaw, who represents the father, it is easy to see that a variety of Family Division judges have been involved in this case, as also have a variety of circuit judges.
[5] It is quite unnecessary to record in this judgment any of the history of the development of these private law proceedings between the mother and the father. Nor is it necessary to record the vicissitudes of the relationship between the father and his wife, or between the father and the mother. The general pattern has been that almost self-evidently when the marital relationship has waned, the relationship between the father and the mother has waxed and vice versa.
[6] I only note that in August 2000 the mother and father rented a flat in the south of France for a family holiday with the children. The owner of the property, Miss B, lived beneath and during the course of the tenancy, both
when the father was sharing the holiday and after he had left on business, she was subjected to extraordinarily disruptive behaviour (almost all of it the uncontrolled outbursts of the mother) which she subsequently described in a statement put in evidence in the proceedings. What she described were tempestuous outbursts of a very extreme character, enough to cause her, as the owner of the premises, something close to collapse; to the extent that she had to cancel the letting which was to follow immediately. I only stress this episode because it was in evidence before Mr Mostyn at the trial, and he expressly accepted the statement of the owner of the property and rejected the mother’s mitigation which he described as an attempt to finesse away the complaints.
[7] It is perhaps more...
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