Re M (Child) (Ascertaining wishes and feelings)
| Jurisdiction | England & Wales |
| Judgment Date | 1993 |
| Year | 1993 |
| Date | 1993 |
| Court | Family Division |
BOOTH, J
Child – ascertaining the wishes and feelings of the child – whether appropriate for magistrates to interview the child in private.
Welfare report – magistrates substituting own views for those of welfare officer in relation to a child's wishes and feelings – failure to set out reasons.
The parents, who had been married, had two sons now aged 14 and 11. They were divorced in 1989 and a joint custody order was made with care and control to the mother and reasonable access to the father. Difficulties arose after the father started to live with Mrs B. There was physical violence between the father and Mrs B, and the father sustained a broken arm. Later Mr B went to live with the mother and problems arose in relation to the younger boy. At his request, he went to live with his father but after five weeks returned to live with his mother. His father applied for a residence order in respect of the younger boy, stating that the application was made at the boy's own request.
At the hearing, the magistrates received the welfare officer's report which recommended that whilst both households were capable of caring for the younger boy, he would be happier with his father. The magistrates decided to see the boy in private and they did so with the agreement of both parents. The welfare officer was present but took no part in the conversation between the magistrates and boy. The clerk was also present and took notes of the conversation. At the resumed hearing, the welfare officer gave oral evidence, confirming the recommendation made in his welfare report that the boy's expressed wish to live with his father should be given weight to.
The magistrates came to a different conclusion and decided that the younger boy should reside with his mother. The father appealed.
Held – allowing the appeal: (1) Whilst there was a duty on the court to ascertain the wishes and feelings of the child, it should only be in rare and exceptional cases, where a guardian ad litem or welfare officer was involved, that the justices should themselves see a child in private. Any questions that the magistrates may have as to the strength of a child's feelings on the reasons therefore should be put by the court to the parties
themselves, the guardian ad litem or welfare officer concerned.
When magistrates did see a child in private it was crucial that they should make known to the parties what the child had told them which affected their views or which was likely to influence their decision.
(2) The magistrates had erred in substituting their own views, formed during the short interview with the child, for those of the welfare officer. In forming their own impression of the child, the magistrates did not give sufficient weight to the report and evidence of the welfare officer and to his views as to the regard which the court should place upon the wishes of the child. They had also failed to set out their reasons for discounting the views of the welfare officer.
Statutory provisions referred to:Children Act 1989, ss 1(3) and 8.
Family Proceedings Courts (Children Act 1989) Rules 1991, r 16.
Cases referred to in judgment:T (An Infant), Re (1974) 118 Solicitor's Journal 78; Council v S [1993] 2 WLR 216.
W v Sunderland Metropolitan Borough Council [1981] WLR 1, 101.
W v W (Custody of Child) [1988] FCR 640, Sub nom W v W (Minor) (Custody Appeal) [1988] 2 FLR 505.
AppealAppeal from the North Kent family proceedings court.
Christopher Agace for the father.
Joanne Brown for the mother.
MRS JUSTICE BOOTH.This is an appeal by a father, Mr M, from an order of the North Kent family proceedings court made on 27 October last year when they granted a residence order in respect of one of two children to the mother. That order had been made in proceedings instituted by the father on his application for residence order in favour of himself.
The mother and the father were married. The mother is Mrs M. They have two children, the elder born on 23 Sepember 1978 and the younger born on 11 November 1981.
The younger son was the child with whom the justices were concerned and the child concerned in this appeal. He is now aged 11.
In May 1989 a decree nisi was pronounced in respect of the marriage. At the same time a joint custody order was made with care and control of both boys being vested in the mother with reasonable access to the father. Access proceeded without problem. At some point after that divorce the father started to live with a lady, Mrs B. That led to some difficulties between the father and Mrs B's former husband, Mr B, in the course of which, on an occasion in November 1990, there had been some physical violence, as a result of which the father sustained a broken
arm. Despite those problems there were no difficulties between the mother and father in relation to the two children who regularly visited the father and stayed with him at weekends.
In October 1991 Mr B moved in with the mother. This was obviously going to be a difficult position for all the adults and undoubtedly for the children too. It was after that that problems did start to occur. In May 1991 the younger boy expressed the wish to live with his father. That was not the first time that he had told his father this. He had also told his mother that he wanted to go to live with his father. So it was that in May 1992 the mother agreed to him going to live with his father. The younger boy duly went and then saw his mother, by agreement with the father, at weekends. At the same time, of course, he saw his brother too.
About five weeks after he went to live with his father the younger boy, at his own request, returned home to his mother. He has been living at his mother's home ever since in company, of course, with his brother and with Mr B. It was in those...
To continue reading
Request your trial
-
Re W (Child: Contact)
...[1993] Fam 43; [1993] 1 All ER 198. JR v Oxfordshire County Council[1992] 2 FCR 310. M (Child) (Ascertaining Wishes and Feelings), Re[1993] 2 FCR 721. S v Oxfordshire County Council[1993] 2 FCR S v S (Children: Financial Provision)[1993] 1 FCR 805; sub nom S v S (Children: Periodical Paymen......