Re B (Contact: Appointment of Guardian)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Thorpe,Lord Justice Wall,Mr Justice Holman |
| Judgment Date | 31 March 2009 |
| Neutral Citation | [2009] EWCA Civ 435 |
| Court | Court of Appeal (Civil Division) |
| Date | 31 March 2009 |
| Docket Number | Case No: B4/2009/0169 |
[2009] EWCA Civ 435
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM DERBY COUNTY COURT
(HIS HONOUR JUDGE ORRELL)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Thorpe
Lord Justice Wall and
Mr Justice Holman
Case No: B4/2009/0169
THE APPELLANT APPEARED IN PERSON
THE FIRST RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED
Ms S Rogers (instructed by Graysons Solicitors) appeared on behalf of the Second Respondent.
(Draft for Approval)
This is Mr B's appeal from an order of HHJ Orrell of 10 December 2008. The judge himself gave permission for the appeal and the appellant's notice is dated 26 January 2009.
This is a very sad case, in which there have been proceedings in relation to Mr B's contact with his daughter, L, from her age of, approximately, four, through to her present age of 14. So there is a decade of litigation, and sadly the path has been a path of increasing difficulty and barrenness, so that from early days when Mr B enjoyed normal contact relationship with his daughter he has had to resign himself to a situation in which contact has dried up altogether and that, despite the investment of considerable resources within the county court, Mrs Jones came into the case from the beginning as CAFCASS officer and then, following an order made in 2007 by HHJ Pugsley, she became L's section 9.5 guardian. Unfortunately, relations between Mrs Jones and Mr B have deteriorated as the frequency of his contact has diminished as his relationship with L has withered. But, although Mrs Jones has reached retirement age, she still works part-time and still provides guardian support for L, and it is perfectly evident to any outsider that there is a real value in that continuation provided that the relationship between child and guardian is one of mutual respect and confidence.
The case was before HHJ Orrell in May 2008 when he had to resolve difficulties over the funding of an expert, Mr Cheeseman, who had been brought into the case by earlier directions order; and, in reaching his decision, the judge also imposed on Mr B a section 91(14) order and a prohibited steps order which have still got some weeks to run because he gave them twelve months' duration. That order Mr B brought to this court and his application was heard by my Lord, Wall LJ on 14 August 2008. My Lord refused permission to appeal the prohibited steps order for reasons that appear from paragraphs 8 and 9 of the transcribed judgment, and in paragraph 14 my Lord explained why he was refusing the permission application generally. But my Lord did express sympathy, which I am sure we all share, for Mr B's position as a father who has seen contact to his daughter diminish and had to come to terms with the withering of the relationship.
My Lord drew attention to the possible aid that could be given were NYAS involved. So when the case returned to HHJ Orrell in the Derby County Court on 10 October, he made an order which had two principle ingredients. First, he invited NYAS to intervene in the proceedings for the purpose of preparing a report of what assistance could be offered to re-establish face-to-face contact, and specifically they were asked to give consideration as to whether they should act as L's guardian in substitution for Mrs Jones. A second part of the order granted Mr B permission to try to set aside the prohibited steps order prior to its termination on 21 May 2009, and the judge said that such an application should be listed before District Judge Dowse for the district judge to hear CD-ROM evidence prepared by Mr B. Mr B felt that he had recorded conversations between himself and L which would give the lie to any case for a prohibited steps order. Now, what is the history of subsequent development? NYAS, having received the judge's invitation, responded on 4 November with the essential message that, unless they were formally appointed guardian under rule 9(1)(5), they had no access to public funding and as a charity could simply not undertake work. They made the subsidiary point that since L had been preliminary assessed by Mr Cheeseman as a child with above chronological age maturity, it would be NYAS' ordinary practice simply to put her point of view to the court through the mouth of an advocate without, as it were, allocating a case worker to look at welfare issues that might run counter to the case that the child wished presented. So that material was before the court on 10 December. The judge was minded to go a mile further and to go back to NYAS again, sending them all the bundles, including the father's objections to Mrs Jones, to Mr Cheeseman and to the report of the head teacher, all of whom had expressed a view as to L's maturity.
The judge also envisaged the parties filing a short statement to help NYAS get to the core issues. The judge continued:
“I appreciate that this would lead to an adjournment, which is something which the father is unhappy about. The mother and guardian did not express any view as to that suggestion, although I had the impression that they would not actively oppose it, albeit they are not enthusiastic.”
The judge then...
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A review of the developing law on residence, contact, prohibited steps and specific issue orders under section 8 of the Children Act 1989
...fell from 9.9% in 2000 to 4.2% in 2005 and to just 2.8% in 2008.25 For other examples, see Re B (Contact: Appointment of Guardian) [2009] EWCA Civ 435, [2009] Fam Law 573, and Re O (Contact: Withdrawal of Application) [2003] EWHC 3031 (Fam), [2004] 1 FLR 1259. Note also Butler-Sloss P’s com......
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“Dear Judge, I am writing to you because I think it's pathetic”: Re A-H (Children)
...a party to the proceedings” in the vast majority of cases such an individual is a parent. See Re B (Contact: Appointment of Guardian) [2009] EWCA Civ 435 as to the likely interpretation of ss 11A-P. However, the exercise of coercive power in family cases remains controversial. Recalcitrant ......