Re B. (A Minor) (Disclosure of Evidence)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE GLIDEWELL,LORD JUSTICE BALCOMBE,MR. JUSTICE BOREHAM |
| Judgment Date | 16 July 1992 |
| Judgment citation (vLex) | [1992] EWCA Civ J0716-7 |
| Date | 16 July 1992 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 92/0709 |
[1992] EWCA Civ J0716-7
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE NORTHAMPTON COUNTY COURT
(HIS HONOUR JUDGE WILSON)
Royal Courts of Justice
Lord Justice Glidewell
Lord Justice Balcombe
Mr. Justice Boreham
92/0709
C.A. No. CCFMI 92/0579/F
MR. JEREMY POSNANSKY (instructed by Messrs Toller Hales & Collcutt of Wellingborough) appeared on behalf of the Appellant.
MR. RICHARD VAIN (instructed by Messrs Woolley & Weston of Welwyn Garden City) appeared on behalf of the Respondent.
This is an appeal against part of an order made on 15th April 1992 by His Honour Judge Wilson in the Northampton County Court on an application made on behalf of Mr. Christopher John Bottomley ("the father") to vary an order made by the learned judge on 27th March 1992 on an ex parte application by Mrs. Susan Margaret Bottomley ("the mother").
The father and the mother were married on 2nd June 1979. The mother already had a child by her previous marriage, Louisa Jane Compton, who was born on 16th December 1976 and is thus now 15 years of age. On 16th April 1980 she gave birth to Thomas Edward Kershaw Bottomley ("Tom"). He is now 12 years old. I repeat the order we made during the course of the hearing that there shall be no publicity in any medium which would or might identify either of these children.
The father, the mother and the two children lived together in the matrimonial home at Maulden, Bedfordshire until 27th October 1990 when, as a result of disagreements between the mother and the father, he left at the mother's request. They have not lived together since. On 31st January 1991 the mother filed a petition for divorce and on 19th April 1991 a decree nisi was pronounced.
On 15th July 1991 His Honour Judge Wilson made an order by consent, after the giving of a number of undertakings by the father, which included:
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1. A prohibition on the exercise by the father of his right to occupy the former matrimonial home;
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2. The grant of custody, care and control of Louisa to the mother;
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3. The grant of interim custody, care and control of Tom to the mother;
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4. A provision that there should be no access by the father to Louisa; and
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5. An order that the applications concerning the custody of, and access to, Tom should be adjourned to a date to be fixed, with interim access to Tom to the father, and directions as to the steps to be taken before the hearing of the application.
The undertakings given by the father on that occasion included undertakings that he would not assault, molest or interfere with the mother or either of the children, that he would not communicate with Louisa in any way, that he would not, save in one respect, go within one hundred yards of the former matrimonial home, and that he would not remove the children from the care of the mother save for access to Tom.
On 27th November 1991 the application regarding the custody and access of Tom came before the learned judge. He granted by consent joint custody of Tom to both parents, with care and control to the mother and reasonable access to the father. In certain respects not relevant to this appeal the father's undertakings were amended.
On 27th November 1991 the divorce decree was made absolute.
On 27th December 1991 the father moved to a new home in Oxfordshire. Over the weekend of 17th to 19th January 1992 the father remarried. Tom stayed with his father over that weekend and attended the wedding. This was the last occasion on which there was contact between Tom and his father.
On the morning of 31st January 1992 the mother's solicitors sent to the father's solicitors by fax a letter giving notice that Tom would not have access to his father that weekend, the access being due to start on the evening of that day. By letter dated 7th February 1992 the mother's solicitors said:
"For the record we do confirm all parties in contact with Tom, his School, his Doctor and of course our Client, his mother, have become increasingly aware Tom has been under a good deal of stress recently, it would seem as a result of his father's sudden move to Oxford having told his son the reason for this was a secret and the fact that his father has remarried so quickly and to someone his father had not taken the time to ensure his son knew".
On 26th March 1992 application was made on behalf of the mother under section 10 of the Children Act 1989. The form of application said that it was made in respect of both Tom and Louisa. Orders were sought:
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1. Varying the joint custody order and ordering that Tom should reside with his mother.
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2. Revoking the order for the father to have reasonable access to Tom and for an order that there be no contact between them.
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3. Prohibiting the father from communicating with Tom, and
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4. "That no part of the evidence produced to the court be disclosed to [the father] whilst the present investigations remain to be completed and that a specific order be made directing [the father's] solicitors as officers of the court not to disclose to [the father] the nature of the matters under investigation and the information now laid before the court".
The reason for the making of the application was expressed in the following terms:
"I am fearful of the consequences for both children of the family in the event of the [father] becoming aware of the allegations now being made against him and I refer to my affidavit of even date filed in connection with this my application together with the exhibits thereto in support".
As there said, the application was supported by an affidavit sworn by the mother.
This application came on for hearing ex parte in Northampton County Court before Judge Wilson on 27th March 1992. The judge ordered:
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1. That the father should not have any contact with Tom until the full directions hearing of the application or further order.
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2. That the father's access to Tom should be suspended until further order, and
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3. That the mother should not disclose to the father the affidavit filed by her in connection with her application.
Although it seems that the judge had not specifically so ordered, the form of application then served upon the father was amended by deleting parts of it. The fourth order sought was truncated so that it read only
"That no part of the evidence produced to the court be disclosed to the [father]".
The reason why the application was made was wholly deleted, so that this part of the form was simply left blank.
On 10th April 1992 the father applied for orders discharging the prohibition of contact with Tom, requiring the mother to complete her application form, and requiring her to supply him forthwith with a copy of her affidavit and exhibits. It was this application which came before the learned judge on 15th April 1992.
At the hearing the father was represented by Mr. Vain of counsel who appears before us. The mother was represented by her solicitor, Mr. Mitchell. At the hearing Mr. Vain, without any objection from Mr. Mitchell, referred the judge to two previous decisions of this court, of which the first was In re K (Infants) [1963] Ch. 381 in which the decision of this court was given on 30th October 1962. In that case two children had been made wards of court, and the Official Solicitor was ordered to be their guardian ad litem. At two stages during the course of the proceedings the Official Solicitor lodged statements of fact, accompanied by confidential reports, and on the second occasion the report of a medical specialist on the children. He did not serve copies either of the confidential reports or of the specialist's report on either the mother or the father.
The mother took a preliminary point that she was entitled as of right to see the whole of the material filed by the Official Solicitor, including the confidential reports and the medical report. Ungoed-Thomas J. rejected her contention. On appeal, this court allowed the appeal on the principle that the determination of the question what was best to be done for the welfare of the children was a judicial enquiry, and that it is fundamental to any such enquiry that an interested party has the right to see all information put before the judge to enable him or her to comment on it and if need be to seek to challenge it.
The second decision to which the judge was referred was that in Fowler v. Fowler and Sine [1963] P. 311. In that case this court, in a judgment given on 7th December 1962, followed its previous decision in In re K.
Judge Wilson concluded that he was bound by the decision of this court in in re K to hold that in the present case the father was entitled to see the mother's affidavit. He recognised that such disclosure might cause some harm to the children, but nevertheless concluded that only if there is a specific statutory power to order non-disclosure to a party of material which is placed before the court itself can the court make such an order. He therefore discharged his ex parte order that the mother should not disclose her affidavit to the father, required her forthwith to serve upon the father's solicitors a copy of her affidavit together with the exhibits and a copy of the completed application form, adjourned the application to a date to be fixed and agreed to stay his order pending consideration by the mother of an appeal to this court. On 14th May 1992 he extended his stay until the hearing of the appeal.
Most unfortunately, when they appeared before the judge, neither Mr. Vain nor Mr. Mitchell was aware that the Official Solicitor had appealed to the House of Lords against the decision of this court in In re K...
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