Re C (A Minor) (Application for Residence Order)
| Jurisdiction | England & Wales |
| Judgment Date | 1995 |
| Date | 1995 |
| Court | Court of Appeal (Civil Division) |
STEYN, LJ AND HALE, J
Residence order application – report available from court welfare officer – court welfare officer unable to attend to give oral evidence – test to be applied on application for adjournment.
Residence order application – interview with child – whether appropriate for Judge to interview child prior to the determination of application to adjourn.
On 29 April 1994, a county court dismissed an application for a residence order made by a father in respect of his 14-year-old son. The child's parents had never married although they lived together for some years, both before and after the child's birth. The child had always lived with his mother but had contact with his father. The father made applications for residence and parental responsibility orders in May 1993 and, following a conciliation appointment, the court ordered the appointment of a court welfare officer and the filing of a report. The report was filed on 7 March 1994, and it was agreed by both parties that the court welfare officer should attend the contested hearing. Despite a request being made to the court for a direction that the court welfare officer attend the hearing, the request was not considered until shortly before the hearing. The parties were informed two days prior to the hearing that the court welfare officer would be unable to attend. The father applied to the Judge for an adjournment of the case which was refused. The Judge then proceeded to hear the case and ordered that the child should continue to reside with the mother.
The father appealed, arguing that the Judge should have granted an adjournment as the court welfare officer was not available to give oral evidence; that the Judge should not have seen the child at the outset of the case before deciding whether or not to adjourn; that the Judge should have attached more weight to the child's educational needs; and that the court should have made a shared residence order providing for the child to spend some time living with both his father and his mother.
Held – dismissing the appeal: (1) The court was required to weigh the likely prejudice to the child from adjourning the case against the prejudice to the proper determination of what would be in his best interests in having the court welfare officer present for the purposes of cross-examination. The test was what was in the best interests of the child. The decision in Re CB (A Minor) (Access)[1992] 1 FCR 320 that the court should not depart from the recommendations in a court welfare officer's report without hearing oral evidence from that officer was not to be regarded as a hard and fast rule of law. Such procedural strait-jackets were undesirable, especially in the light of the balancing act
which was required in the consideration of the welfare principle and the provision as to delay. Taking into account the fact that the report of the court welfare officer did not make any firm recommendations in any particular direction, the Judge was clearly entitled to conclude that he could fairly conduct an examination of what would be in the child's best interests without the attendance of the court welfare officer.
(2) The court was entitled to weigh not only the likelihood of detriment to the child, but also the concrete evidence of detriment from delay which the interview with the child constituted, although this would not be determinative of the case. The degree of reliance placed by the Judge upon the child's views as expressed in the interview was a matter for his discretion, and he exercised that discretion with proper care and caution. He was entitled to take into account the view he formed as a result of the interview.
(3) The Judge accepted that the child's educational needs were a very...
To continue reading
Request your trial
-
Re C (Care Proceedings: Disclosure of Local Authority's Decision-Making Process)
...notice: local authority), Re[1994] 2 FCR 839, [1994] 1 WLR 1220, [1994] 2 FLR 513, CA. C (a minor) (application for residence order), Re[1995] 2 FCR 276, [1995] 1 FLR 617, CA. C (adoption: religious observance), Re [2002] 1 FLR 1119. C (child cases: evidence and disclosure), Re[1995] 2 FCR ......
-
Re L (A Minor) (Residence Order: Justices' Reasons)
...provisions referred to:Children Act 1989, s 1(3). Cases referred to in judgment:C (A Minor) (Application for Residence Order), Re[1995] 2 FCR 276. CB (A Minor) (Access), Re[1992] 1 FCR G v G (Minors: Custody Appeal) [1985] 1 WLR 647. JR v Oxford County Council[1992] 2 FCR 310. Richard Willi......