Re B (A Minor) (Irregularity of Practice)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE GLIDEWELL,SIR ROUALEYN CUMMING-BRUCE |
| Judgment Date | 23 August 1989 |
| Judgment citation (vLex) | [1989] EWCA Civ J0823-1 |
| Docket Number | 89/0844 |
| Court | Court of Appeal (Civil Division) |
| Date | 23 August 1989 |
[1989] EWCA Civ J0823-1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IPSWICH COUNTY COURT
MR RECORDER MELLOR
Royal Courts of Justice
Lord Justice Glidewell
and
Sir Roualeyn Cumming-Bruce
89/0844
MR A. MARSDEN (instructed by Messrs Gotelee & Goldsmith, Ipswich) appeared on behalf of the Appellant (Petitioner)
THE RESPONDENT (Respondent) did not appear
This appeal, from a decision of Mr Recorder Mellor sitting in Ipswich County Court on 7th December 1988, poses a very considerable difficulty for us.
I would like to start by paying tribute to the delicacy, skill and economy with which Mr Marsden has made the difficulty clear and made his submissions to the court. He has assisted us in the sense of highlighting the difficulty; inevitably he has not made it any easier to solve.
This is an appeal against a decision of the learned recorder who refused an application by the mother, Florence Nyambura Muthoka (formerly Mrs Beckett), to define access to her daughter Fiona Beckett (now aged 16) who was 15 1/2 when the decision was made.
The history of the matter I go into only in as much detail as is necessary to make the position clear. The mother is Kenyan by original nationality and Kikuyu by race. The father is British, and they met when he was a serving soldier in Kenya. They were married on 21st December 1964. At some stage they came to live in England. They had two children: David, who is now 19 1/2, and Fiona, to whom I have already referred, who was born on 23rd May 1973.
Some two years after Fiona's birth, her parents separated. They were divorced and the children remained with their mother. That situation apparently obtained until 1984 when David went to live with his father. In the meantime, father had remarried and has at least one child by his remarriage.
On 22nd September 1985, an order was made that the mother should have custody of Fiona, the father should have care and control of David, custody of David remaining with the mother. On 29th August 1986, that position was altered. His Honour Judge Turner granted an order that the father should have custody of Fiona but that there should be reasonable access to the mother. That order remains in force and has not been altered.
There was however no access between mother and daughter until 25th November when there was an attempt to establish a regime of access, that is to say a visit by Fiona to her mother at which the social worker and the senior divorce court welfare officer were both present. I do not propose—indeed it would be positively unhelpful—to go into any detail about that occasion, save to say that everybody was agreed that it was a disaster.
Following that, there was no further visit by Fiona to her mother. Mother made an application for the definition of access, which came before Judge Turner on 9th July 1987. Having regard to the history of the matter, he refused that application. He did not alter the order for reasonable access. Thereafter Fiona, from time to time, telephoned her mother. She lived, and has continued to live since then, with her father and step-mother, her brother David, and her father's family by his new wife. She has now left school and has just started a job. She has also written to her mother on a number of occasions, and we have in the bundle of papers a number of her letters, those which were put before the learned recorder.
On 14th October 1988, the mother made another application for the definition of access. The supervising welfare officer was firmly of the view that such definition was undesirable. The matter came before Mr Recorder Mellor on 7th December 1988. We are told by Mr Marsden, who appeared for the mother on that occasion as he does before us today, that he learnt, while he was at court before the case was called on, that both the supervising officer, a Mr Cooke, and the senior divorce court welfare officer, a Mr Doylend, before the commencement of the hearing of the mother's application, had, at their request, had a private conversation with the recorder about this application.
Mr Marsden has elaborated that today. He tells us that he understands that in fact the officers made three requests to see the recorder. The first two were declined—whether because the recorder had a sense of unease about seeing them, or for whatever reason, we do not know—but on the third occasion he acceded to their request and he saw them for some twenty to thirty minutes.
Mr Marsden tells us, he having practised in Ipswich County Court in family matters, amongst other matters, for some twelve years, that it is a practice in that court for court welfare officers, from time to time, to request an interview with the judge before the hearing of a matter concerning the custody or access to children, and for the judge from time to time to accede to such a request.
If that be correct, and we must accept that it is indeed correct, then it seems, speaking for myself, to be a totally wrong practice. It is a standard principle that if there are contentious matters which are to be discussed in court, then it is only in the most exceptional circumstances that anything should be communicated to the judge privately and not in the presence and hearing of the parties. One knows of course that in relation to sensitive issues, particularly in relation to children, there may be some evidence which ought not to be disclosed to the child, and sometimes ought not to be disclosed even to the parents; in such exceptional circumstances arrangements can be made for those appearing for the parents to be made aware of the evidence.
Mr Marsden has referred us to the decision of this court in H v. H (Irregularity: Effect on Order) [1983] 4 FLR 119. That was a case in which the judge was hearing an application for custody of two children. Before the hearing, the welfare officer, who had prepared the report in the case, had a private conversation with the judge during which the case was discussed. The judge said that nothing that was said influenced his decision. In the event, the order was for joint custody with one of the parents having care and control. The parent who was not granted care and control appealed. One of the grounds of appeal was that the parent had been given...
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