Re CB (A Minor) (Access)
| Jurisdiction | England & Wales |
| Judgment Date | 15 January 1992 |
| Court | Court of Appeal (Civil Division) |
PURCHAS, LJ AND DOUGLAS BROWN, J
Access – application by grandparents for access to child – grandfather convicted of indecent assault on mother when a girl – mother alleging subsequent indecent assaults – all indecent assaults denied by grandfather – welfare officer recommending that regard should be had to risk of interference to child – Judge finding no risk to child – whether that finding justified.
Welfare report – application for access by grandparents – welfare officer recommending that regard should be had to risk of sexual interference of child by grandfather – Judge rejecting recommendation – Judge failing to receive oral evidence from welfare officer – defective exercise of discretion.
The parents were married in 1984. There was one child of the family, a boy born in April 1987. Prior to the marriage the mother had lived with the maternal grandparents in Gloucestershire. After their marriage the parents lived in Manchester. They were divorced in 1988 and custody of the child was given to the mother. From June 1988 the grandparents visited regularly about once a fortnight. They enjoyed both staying and visiting access to the child but there were occasions when the mother refused to allow access. The grandparents intervened in the matrimonial suit seeking an order for access to the child. A welfare report was ordered.
In 1981 the grandfather had been convicted on two counts of indecent assault on the mother when she was a girl. That offence is one of those listed in Sch 1 to the Children and Young Persons Act 1933. A person convicted of such an offence is referred to as "a Schedule 1 offender". When the grandparents intervened seeking access to the child, the mother filed an affidavit in July 1989 stating that since Christmas 1988 the grandfather had indecently assaulted her on a number of occasions and that consequently she was opposed to access by the grandparents to the child.
Notwithstanding the verdict of the jury, the grandfather denied indecently assaulting the mother when she was a child. He also denied subsequently indecently assaulting the mother.
In a report dated 7 November 1989, the welfare officer stated, inter alia, that he had contacted the social services department in Manchester and that they were content for the grandparents to have supervised access. In January 1990 an access order was made by consent but the arrangements quickly broke down. In March 1991 it was ordered that there be further investigation into the circumstances of access. The welfare officer filed a further report in which he adopted views expressed by the Manchester social services department that: (i) in considering access to a Schedule 1 offender, the risk factor to the child had to be the paramount concern; (ii) the risk from an abusing adult could only begin to be reduced and
controlled if the adult had accepted responsibility for the abuse; (iii) the grandfather continued to deny the abuse and had undertaken no work towards changing his behaviour; and (iv) that as the mother had herself been the victim of abuse, it was doubtful whether she could adequately protect the child against the abuser. The welfare officer also stated in his report that it was important to treat the matter in line with child protection issues and that contact by the grandparents had to recognize the fact that the grandfather had sexual offences recorded against him.
At the hearing in October 1991 the Judge heard oral evidence from the grandparents and the mother. He did not receive oral evidence from the welfare officer. In his judgment the Judge stated that he did not know whether the grandfather's conviction in 1981 "was a true conviction' and he referred to it as "an unappealable conviction by a jury on uncorroborated evidence by the girl". As to the allegations by the mother of subsequent abuse, the Judge said he could not make a finding. He stated that he found that there was no risk to the child from the grandfather. He ordered that the grandparents should have staying and visiting access.
The mother appealed.
Held – allowing the appeal: (1) The Judge had misdirected himself in his approach to the grandfather's conviction in 1981 of indecently assaulting the mother. He had paid lip service to the fact of the conviction but had, in effect, gone on to ignore it. By saying that he did not know if it was a true conviction, he was posing the question of the conviction itself. His reference to the lack of corroboration demonstrated a misapprehension of the position. Provided the jury had been properly directed by the Judge at the trial, it was open to the jury to convict without corroboration. If there had not been a clear and unambiguous direction there would have been an appeal against conviction. Therefore, the Judge was not entitled to view that conviction in a qualified light. The Judge's erroneous approach to the grandfather's conviction had led him to making the unsustainable comment that he could not make a finding as to the mother's allegations of subsequent indecent assaults. That was an issue central to the matter he had to investigate and, in failing to face that task, the Judge fell short of the duty imposed upon him.
(2) The Judge had also misdirected himself by rejecting the seriously expressed evidence in the welfare report of the possibility of a continuing risk to the child stemming from the conviction and by finding that there was no risk to the child from the grandfather. The report was part of the evidence upon which the Judge might rely in coming to his conclusion. In this case the report had referred to "child protection issues" and that meant the risk of interference to the child by the grandfather in some form or other. Where there were clear cut recommendations and warnings such as those present in the second welfare report in this case, it was wrong for the Judge to proceed to form conclusions directly contrary to such recommendations without availing himself of the opportunity of receiving further assistance from the welfare officer in the form of oral evidence...
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