Re C (Section 8 Order: Court Welfare Officer)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE STEYN,MRS JUSTICE HALE,Order |
| Judgment Date | 10 November 1994 |
| Judgment citation (vLex) | [1994] EWCA Civ J1110-1 |
| Docket Number | CCFMI 94/0733/F |
| Court | Court of Appeal (Civil Division) |
| Date | 10 November 1994 |
[1994] EWCA Civ J1110-1
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE BROMLEY COUNTY COURT
(Assistant Recorder Gerrey
Before Lord Justice Steyn Mrs Justice Hale
CCFMI 94/0733/F
MISS E GUMBEY (Instructed by T G Baynes & Sons, Dartford, DA1 1HF) appeared on behalf of the applicant/father.
MISS R WRIGHT (Instructed by Pearsons, New Malden, Surrey KT3 3LR) appeared on behalf of the respondent/mother.
The first judgment will be given by Mrs Justice Hale.
MRS JUSTICE HALEThis is a father's appeal against the order of Assistant Recorder Gerrey in the Bromley County Court on 29 April 1994, when he dismissed the father's application for an order that the child, Clint, who was born 12 October 1980 and is now 14, should live with him.
The parties have never been married. They lived together before, and for some years after, Clint's birth. They separated in the mid-1980's. Clint has always lived with his mother but he has seen a good deal of his father over the years. The father had concerns about his disrupted life, with a number of moves of house and school, the quality of care offered by the mother and about his education.
In May of last year the father made applications for residence and parental responsibility orders. A parental responsibility agreement was made between the parties very shortly after that. There was a conciliation appointment in July of last year, and a court welfare officer's report was ordered on 21 September for not later than the 1 January of this year. This was accompanied by a direction that the court welfare officer had to attend the hearing if his report was not filed in time. It appears, however, that the time for filing that report was extended, so the status of that direction is somewhat unclear. At all events, the report was filed on 7 March of this year. Thereafter both parties agreed that the welfare officer should attend court, and they asked the court for a direction pursuant to the Family Proceedings Rules 1991, r.4.13(3) that he should do so. This request was made in March of this year.
It appears that by an oversight the court did not consider that request until shortly before the hearing. The parties were informed two days before the hearing that the welfare officer would not be able to attend because he was on a course. On the day fixed for the hearing, an application for an adjournment was made by the father to the learned judge. That application was refused. The learned judge went on to consider the case and ordered that the child should remain with his mother.
There are four grounds of appeal, the principal ground relating to whether or not the judge should have granted an adjournment in those circumstances. It is argued that the case of Re CB (A Minor)(Access) [1992] 1 FCR 320 suggests that the court cannot depart from the recommendations in a court welfare officer's report without hearing oral evidence from that officer. At pages 327-328 Purchas LJ said this:
"The second ground upon which, regretfully, I have to criticise the conduct of the case leading to the judgment is that the Judge has rejected seriously expressed evidence as to the possibility of the on going risk to the child stemming from that conviction…." (That was a conviction of the applicant grandfather for a sexual offence against the child's mother). "….about which he, in my judgment, unjustifiably expressed reservation. It has been said more than once in this court that a Judge is not bound by the views of the court welfare officer or indeed any other expert witness; it is not trial by welfare officers. At the same time, the evidence put before the court by the welfare officer comes from neither of the parties and is put before the court at the order of the court. It is, and must always form part of the evidence upon which the Judge must rely in coming to his conclusion.
In cases where there are clear cut recommendations and warnings, such as those recent in the second report, as indeed there were in the first report, in my judgment, it is wrong for a Judge to proceed to form conclusions directly contrary to such recommendations without availing himself of the opportunity of receiving further assistance from the court welfare officer in the form of evidence."
Hence it is argued that, in this case, the learned judge took the court welfare officer as recommending the preservation of the status quo, so that by not adjourning the case, he effectively destroyed the husband's application. It is further argued that the report in March was written before up-to-date school reports had been obtained, so that the welfare officer did not take due account of the up-to-date position as to Clint's school attendance.
It goes almost without saying that the general principles relating to adjournment are that it is in the judge's discretion, and this court is not going to interfere unless he was plainly wrong. But if he can only do justice by an adjournment, he clearly must do so and the non-availability of an important witness may obviously fall within that category.
Nevertheless, it is important to remember what is the issue in children's cases. It is not one of the rights of the parents, but of the up-bringing of the child. Section 1(1) of the Children Act 1989 provides that the welfare of the...
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