Re CB (Access: Attendance of Court Welfare Officer)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PURCHAS,MR. JUSTICE DOUGLAS BROWN |
| Judgment Date | 15 January 1992 |
| Judgment citation (vLex) | [1992] EWCA Civ J0115-3 |
| Court | Court of Appeal (Civil Division) |
| Date | 15 January 1992 |
| Docket Number | 92/0036 |
[1992] EWCA Civ J0115-3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE GLOUCESTER COUNTY COURT
HIS HONOUR JUDGE HUTTON
Royal Courts of Justice
Lord Justice Purchas
and
Mr. Justice Douglas Brown
92/0036
No. 88D 0172
MR. BERNARD WALLWORK (instructed by Messrs Flint & Holmes) appeared on behalf of the Appellant (Plaintiff).
MISS JUNE RODGERS (instructed by Messrs O'Mahony Saunders, Cirenceter) appeared on behalf of the Respondents (Interveners).
This is an appeal by Flora Morrison Broad (to whom I shall hereafter refer as "the mother") from an order of His Honour Judge Hutton dated 8th October 1991 whereby he ordered access to a child, Ciaran, who was born on 5th April 1987, to his maternal grandparents now the interveners in a matrimonial suit. In view of the course that the court is to take I restrict this judgment to merely a brief outline of the background circumstances and a short consideration of certain parts of the judgment.
The mother has appealed from that order and she seeks by her notice of appeal either an order that there should be no access of any kind to Ciaran in favour of the maternal grandparents or, alternatively, limited supervised access only.
The mother was born on 12th September 1963. She was married to Royston Valentine Broad, the father of Ciaran. That marriage was dissolved by decree absolute in 1988. For the purpose of this appeal the role taken by the father need not be considered; it is apparent that at present he does not take any part in these proceedings.
There was a second child born to the mother by a different father who likewise no longer plays any part in the second child's life, and there is no suggestion made in this court that he contributes to its maintenance. We are have not been told any details as to whether the father of Ciaran contributes to his maintenance. The mother is unemployed and in receipt of public support under the appropriate provisions. She lives in Manchester, and the grand parents live in Gloucestershire.
In 1981, at the Gloucester Crown Court, the grandfather, having pleaded not guilty, was convicted by verdict of a jury on two counts of indecent assault on the mother and one of common assault. As the court understands it, he received a sentence of imprisonment of nine months, but that may be denied by grandfather.
After the marriage to the father of Ciaran in 1984 the mother lived in Manchester. She separated from Ciaran's father in 1987 and returned to live with the maternal grandparents for something like six months. In due course she regained possession of her home in Manchester and returned there. In the divorce proceedings she was granted custody of Ciaran with reasonable access to the father.
After her return to Manchester in June 1988, the maternal grandparents visited regularly, on an average of about once a fortnight. At Christmas 1988 the grandmother was making allegations that the mother was not caring properly for Ciaran.
Much of the history from that point onwards is in dispute but it is not necessary for this court to attempt to resolve the disputes. The mother's case, however, involved allegations that on occasions her own father showed signs of repeating his previous conduct. She said in her affidavit of 31st July 1989:
"I very much regret the application by the Intervener" -
The grandparents were seeking a formal order for access -
"because I now feel constrained to disclose that since Christmas 1988 my father has on a number of occasions, both when I visited Cirencester and when my parents have visited me, indecently assaulted me. I am prepared to give further particulars thereof if called upon to do so".
She then referred to the conviction, and said:
"He has demonstrated by his recent conduct towards me that his inclination towards unacceptable sexual behaviour has not been extinguished, and for that reason I am wholly opposed to my parents having access to my son Ciaran".
In a nutshell, the case made by the grandparents is that over some four years, access of various degrees had been enjoyed between Ciaran and his grandparents. And no one would deny that in ordinary circumstances access between a child and its grandparents is an extremely important factor in the proper adjustment and rearing of a child.
Over that period there were two occasions upon which, without objection from the mother, and since Christmas 1988 the grandparents have enjoyed staying access at their own home, without the presence of the mother or any adult third party, three weeks in February 1989 which was, of course, prior to the swearing of the affidavit of 31st July 1989, and one week in October 1989 which was of course after the swearing of that affidavit. Apart from that although there has been, with intervals when access was withheld by the mother, contact between Ciaran and his grandparents, this is not a case where there has been a serious loss of contact. The only matter at the heart of this appeal is whether the previously accepted criminal conduct of the grandfather has any and, if so, what effect on the otherwise desirable aim of continuing access between Ciaran and the maternal grandmother.
I should also mention that throughout the grandfather has denied the allegations and has been supported in those denials by the grandmother; both of them steadfastly deny that the grandfather has been guilty of misconduct. Nevertheless, the fact remains that a jury, who it must be assumed by this court were correctly directed as to the dangers of convicting on uncorroborated evidence, convicted him. That is a matter which cannot be ignored. It is also of importance in the present context because the grandmother's attitude about the grandfather's past behaviour would affect her capacity as a monitoring agent on future access if it were held that there was a continuing threat that the grandfather might give way to his unusual propensities and thus constitute a threat to Ciaran.
The matter was considered on a number of occasions, but I need only refer to two. In respect of one a welfare report was prepared by Mr. Taylor, a senior court welfare officer attached to the Gloucester County Court dated 7th November 1989. He not only read the evidence from the court file but personally contacted the mother at her home with the child Ciaran and visited the maternal grandparents at their home in Cirencester. He records that the maternal grandparents told him that the mother was willing to retract the allegation about the grandfather, presumably the one made in her affidavit sworn earlier in 1989, and an agreement had been reached between them about access. He then visited the mother who
"…confirmed that she was agreeable to access taking place on a monthly basis with her parents visiting Manchester to see Ciaran. Other times could be by invitation. [The mother] said she was not willing to retract any of her allegations against [the grandfather]. As [the grandfather], by virtue of his conviction, is a schedule 1 offender, I advised [the mother] to clarify with the local Social Services Department the situation regarding his contact with Ciaran. [The mother] informed me that the Social Services Department were content with the access providing she was present and took responsibility for the child. I have also confirmed this with Social Services".
I now pass, in view of something the judge said, to paragraph 7 of the report:
"My own observations and enquiries have led me to feel that Ciaran is well cared for by [the mother] and I would not have supported the application for a supervision order if it had proceeded.
8. Regarding the access, from my contact with [the grandparents] they presented as interested and concerned grandparents, who would, in other circumstances, have played a part in Ciaran's life. There is the offence recorded against [the grandfather] and whilst I know he strongly refutes the allegations, it is a matter that has been through a court of law. However, I would also agree with the suggestion that providing [the mother] is willing to take responsibility for Ciaran, on access, that this could be the basis of a solution to the matter before the court".
In the presence of that report, a consent application was made on 29th November 1989 which resulted in an order made by Mr. Registrar Greenslade dated 12th January 1990. That provided for:
"…reasonable access to the child".
The apparent agreement and comity between the parties unhappily was short lived. A number of matters transpired. I do think it will serve this judgment to analyse them in any detail. The matter came before the court...
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